Adyen Terms and Conditions

 

Pursuant to the AffiniPay Services Agreement (the “AffiniPay Agreement”), you are also required to accept these Adyen Terms and Conditions (for use with AffiniPay) (these “Terms and Conditions”). Any terms used but not defined in these Terms and Conditions will have the meaning provided in the AffiniPay Agreement.

These Terms and Conditions constitute a legal agreement between you, AffiniPay, Processor and an Acquiring Institution (collectively, the “Servicers”), which is formed by the Servicers’ offer of these terms to you, your acceptance of these terms, and Servicers’ subsequent provision of services to you in accordance with these Terms and Conditions. Any Servicer or Card Network may enforce any provisions of these Terms and Conditions. 

 

  1. Definitions

In these Terms and Conditions, the following definitions will apply:

 

3D Secure

The “Three-Domain Secure” protocol developed by Visa International Inc. (Visa) branded as “Verified by Visa” and “MasterCard SecureCode” developed by MasterCard International Inc. (MasterCard), including successive versions thereof and any amendments thereto.

Acquiring Institution

An entity that is authorized by a Network Owner to enable the use of a Payment Methods by accepting Transactions from Customers on behalf of the Network Owners, routing these to the Network Owners or Issuers and collecting and settling the resulting funds to Customer.

AffiniPay Platform

The e-commerce platform made available by AffiniPay for use by Customer.

Authorization

The process whereby a Payer (or Customer on Payer’s behalf) requests permission for a Payment Method to be used for a particular purchase of Customer’s Service or Product.

Capture

The confirmation by Customer to Processor that a Transaction for which it received an Authorization is to be executed and the Account of a Payer is to be actually charged for the Transaction.

Card

Any form of Credit Card or Debit Card, which may be used by a Payer to carry out a Transaction on such Payer’s Card account.

Card Network

Visa, MasterCard, Discover, American Express or comparable parties licensing Cards.

Cardholder

Any person who is issued a Card and possesses and uses a Card and, where required on a Card, whose signature appears on a Card as an authorized user.



Chargeback

A Transaction which is successfully charged back on request of a Payer or the Issuer pursuant to the relevant Network Rules resulting in a cancellation of a Transaction in respect of which a Customer has been paid or was due to be paid. If a Chargeback occurs for a Transaction in respect of which Customer already received Settlement of the related funds, this results in the unconditional obligation for Customer to immediately return the Settled funds to Processor, to enable Processor to return such funds to the Network Owner or Acquiring Institution.

Customer, you/your

The party entering into the AffiniPay Agreement and these Terms and Conditions and for which Processor processes Transactions related to Customer Service and Customer Products.

Customer Agreement

The terms agreed to in the AffiniPay application process, the AffiniPay Agreement, these Terms and Conditions, as well as the terms of any documents referred to in the application process that comprise the agreement entered into between Servicers and Customer for the provision of the Services to Customer, including all Schedules and other documents appended thereto by reference.

Customer Product / Customer Service

A product/service that Customer is selling or offering and for which Transactions are processed.

CVM Code

The 3- or 4-digit numeric verification code that is printed on a Card. This code may be referred to as a CVV, CVV2, CVC, CVC2, CSC, CSC2, CID or other similar term, depending on the Card Network.

Delivery Date

The date on which the complete Customer Product and/or Customer Service is delivered to a Payer who paid for the corresponding Transaction.

Fine

Any fine, uplifted service fee or other additional payment as imposed by the Network Owners and/or Acquiring Institutions to AffiniPay, Customer and/or Processor, as a result of situations such as, but not limited to, breach of Network Rules by Customer or caused by Customer or AffiniPay, excessive fraud levels or excessive Chargeback levels.

Fraud Control Tool

The fraud control tool set made available by Processor as part of the Services, which assigns a fraud score to Transactions indicating the likelihood of the Transaction being fraudulent and enables AffiniPay (on behalf of Customer) to automatically reject Transaction based on threshold values set by AffiniPay on behalf of Customer.

Issuer 

An institution that issues Payment Methods to a Payer and whose name appears on a Card or bank account statement as the Issuer or who enters into a contractual relationship with a Payer with respect to the Payment Method.

Order Currency

The Currency in which the Transaction is originally offered to a Payer.

Payer

A person or entity, including Cardholders, that is paying for the Customer Products/Customer Services.

Payment Currency

The Currency in which a Transaction is processed.

Payment Details

The information which makes up a Transaction message which needs to be submitted to the Payment Interface to enable the processing of the Transaction by Processor and to perform fraud checks, including details regarding a Card, a Payer, relevant authentication details and the payment amount.

Payment Interface

An electronic connection method provided by AffiniPay or Processor to Customer for providing the Payment Details for individual Transactions allowing Processor to provide its Services with respect thereto.

Payment Method

A method of enabling payments by Payers to Customers such as Cards, online and offline bank transfers and direct debits offered by the Network Owners.

Processor

Adyen N.V., a company registered in Amsterdam under number 34259528 and having its seat at Simon Carmiggeltstraat 6-50, 1011 DJ in Amsterdam, the Netherlands.

Refund

A (partial) reversal of a particular Transaction on the initiative or request of Customer, whereby the funds are reimbursed to a Payer.

Network Owner

The party offering and/or regulating the relevant Payment Method.

Network Rule

The collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Network Owners as may be amended or supplemented over time and with which Customer must comply when using the relevant Payment Method. Processor or AffiniPay may make extracts and summaries of the Network Rules available to Customer, but only the then current applicable Network Rules as issued by the relevant Network Owner are binding on Customer.

Service(s)

The collective set of payment processing, fraud control, reconciliation, reporting, Settlement and other services as provided by Processor to Customer to enable Customer to use Payment Methods to receive payment from its Payers.

Settlement

The payment of amounts owed by Processor to Customer, owed with respect to amounts received by Processor from Acquiring Institutions or Network Owners for Transactions validly processed for Customer, minus the amounts for Refund and Chargebacks, fees and the amounts needed to keep Customer Deposit on the then current Deposit Level. “Settle” and “Settled” will have the corresponding meanings.

Software

The collective set of programs and data developed and/or operated by Processor as needed to provide the Service to its Customers, including the Payment Interface.

Transaction

An Authorization request of a Payer for a payment from a Payer to Customer submitted by Customer to Processor.

Uncompleted Order Amount

The total amount of Authorized, Captured and/or Settled Transactions for Customer on any point in time, for which Customer Products and/or Customer Services have not been delivered to the relevant Payers at that time and/or for which the return rights or order cancellation rights of a Payer under the terms and conditions of Customer and/or applicable law have not yet lapsed.



  1. Description of the Service

    1. Payment Processing

Customer will be using the Services via the AffiniPay Platform. AffiniPay is representing Customer towards Processor with respect to Customer’s use of the Services and Processor may assume that AffiniPay is authorized and mandated by Customer to use the Services, submit Transactions on behalf of Customer and in accordance with Customer’s permissions and instructions which AffiniPay will obtain from Customer.

Customer is obliged to ensure all data that Processor requests to be provided for a Transaction, including those needed for fraud checks, are provided. If Customer fails to provide the requested data with each Transaction, Processor may be forced under the Network Rules to suspend Transaction processing and/or Transactions may be refused by the relevant Network Owners or Acquiring Institutions. Processor may revise the required data needed to process Transactions from time to time by informing Customer via AffiniPay as needed to be able to process such Transaction and conduct fraud checks under applicable Network Rules. AffiniPay is required to (i) access Transaction level data to provide support to Customer at the level of individual Transactions and (ii) technically manage user settings of Customer with respect to the Services on Customer’s behalf (e.g. 3D Secure or fraud control settings).

 

  1. Customer Registration and KYC Check

In order to enable Processor to comply with anti-terrorism, financial services and other applicable laws and regulations and KYC (‘Know Your Customer’) requirements imposed by the Network Owners and Acquiring Institutions, Customer must when entering into the Customer Agreement and thereafter upon Processor’s request provide certain information about itself and its activities (the “Registration Information”). Customer warrants unconditionally that all Registration Information it provides is correct and up to date.

Customer will provide Processor with at least five days’ prior written notice via AffiniPay of any change of the Registration Information. Customer will upon request from Processor provide such additional information and supporting documentation as Processor may reasonably determine to need to ensure compliance with applicable laws and regulations and Network Owner and Acquiring Institution KYC requirements. Customer agrees that Processor may run further checks on Customer’s identity, creditworthiness and background by contacting and consulting relevant registries, government authorities and Customer relations. Processor will process Customer’s Registration Information in accordance with its Privacy Statement (available on www.adyen.com).

Processor’s acceptance of Customer as user of the Services and the relevant Payment Methods is strictly personal and limited to the use by Customer of the Services for payment of Customer’s own products and services. Customer may not use the Services to facilitate the payment for products or services sold by third parties and therefore may not resell the Services to third parties. Customer will only use the Services in the pursuit of its trade, business, craft or profession.

Support for each Payment Method is subject to acceptance by the relevant Network Owner or Acquiring Institution used by the Network Owner, which such Acquiring Institution or Network Owner may withhold or withdraw in its discretion at any time. Customer hereby authorizes Processor to submit

Registration Information received from Customer to the relevant Network Owners and Acquiring Institutions to obtain permission for providing access to their Payment Methods for Customer.

 

  1. Payment Method Support

Supported Payment Methods as part of the Services may change from time to time. Processor will give at least 1 month notice (through AffiniPay) of any discontinued or changed support of any Payment Method, unless this is not reasonably possible given the cause for this decision. Processor will use its reasonable endeavors to offer an alternative for any discontinued Payment Method to Customer.

Customer understands that Acquiring Institutions and/or Network Owners may cancel certain Payment Methods, change the characteristics thereof or change the acceptance criteria under which they make them available. As a consequence, Processor may be forced to block Customer from further use of a Payment Method or impose additional restrictions or conditions on its continued use as a consequence of such decisions of the relevant Acquiring Institution and/or Network Owner. Where possible Processor will use its reasonable efforts to give Customer prior notice (through the AffiniPay) of any such change or cancellation with respect to a Payment Method.

 

  1. 3D Secure

Processor will as part of the Services support 3D Secure authentication where supported by the relevant Network Owner and/or third party Acquiring Institution.

 

  1. Payment Currency

Processor will have the right to offer a Payer the option to use a different currency than the Order Currency, in which case Customer will still always receive Settlement of the Transaction amount in the Order Currency (except in case another currency is agreed or Customer does not make a bank account available for Settlement in the Order Currency).

 

  1. Fraud Control

All Transactions processed as part of the Services will be screened by Processor’s Fraud Control Tool, which performs a number of checks on a Transaction and attaches a resulting total score to the Transaction, which represents the likelihood of the Transaction being fraudulent. The Fraud Control Tool does not guarantee the prevention of fraudulent Transactions, nor against resulting Chargebacks or fines. Regardless of the resulting total score, Transactions may be fraudulent or non-fraudulent. AffiniPay will technically manage the settings of the Fraud Control Tool on behalf of Customer. In addition, Processor reserves the right to cancel Transactions that it has reasonable grounds to suspect to be fraudulent or involving other criminal activities, even if the Fraud Control Tool failed to block the Transaction.

 

  1. Settlement

Funds from a Payer charged for the validly processed Transactions of Customer are settled by the relevant Acquiring Institution or the Network Owner to the account(s) held by Processor. The funds Processor receives from payment service users or via another payment service provider and held in the payment processing account(s) by Processor are safeguarded in accordance with the safeguarding requirements of The

Dutch Central Bank (De Nederlandsche Bank). Processor will subsequently settle received funds directly to Customer - withholding from the received funds the fees agreed between AffiniPay and Customer – who is the creditor of the received funds and holds sole power of disposition over such funds. The Settlement is based on the binding Customers’ Settlement instructions which are submitted by AffiniPay on behalf of Customer via the AffiniPay Platform. AffiniPay is under no circumstances entitled to make any individual instructions (other than Settlement instructions described in the previous sentence) to Processor regarding the settlement of the funds.

Processor is only obliged to provide Settlement of Transactions for which it has received funds from the Acquiring Institution or the Network Owner. It is Customer's responsibility to evaluate if the conditions imposed by the Payment Methods for Settlement (as communicated from time to time by through the AffiniPay) are acceptable to Customer. This is specifically relevant for certain Payment Methods that are not monitored and regulated by governmental financial services authorities, such as, but not limited to, non-Card Network related prepaid cards and short message service (SMS) and interactive voice response (IVR) payments. Customer understands and agrees that Processor will not compensate Customer for late or non-performance, insolvency or bankruptcy of the Acquiring Institution or Network Owner due to which Customer receives late Settlement or no Settlement at all for processed Transactions.

Processor reserves the right to withhold Settlement of Transactions if they are suspected to be fraudulent, related to illegal activities or likely to become subject to a Chargeback by Processor and/or the relevant Acquiring Institution and/or Network Owner, until satisfactory completion of Processor's investigation, that of the relevant Acquiring Institution or Network Owner or that of a third party nominated by any of these parties. Customer will give its full co- operation to any such investigation.

No interest will be due over amounts held by Processor prior to Settlement of such funds to Customer.

 

  1. Required Data

Customer will from time to time upon request of Processor provide all required information regarding the then current actual or expected Delivery Dates for processed Transactions and estimates for the average time between Transaction Authorization and the related Delivery Date. Further, upon Processor’s request, Customer will provide Processor all requested information on Customer’s then -current ability to provide Customer Products and Services it sells by means of the Services, its financial status, solvency and liquidity.

 

  1. Customer Obligations and Restrictions

Customer may only use the Services for payment of those Customer Products and Services which Customer agreed with AffiniPay to be offered through the AffiniPay Platform. Customer will not use the Services for the payment of Customer Products and/or Customer Services (i) where it is illegal to offer or provide these to or from the relevant country and/or (ii) which are stated in Processor's Prohibited and Restricted Products and Services List which is set forth on www.adyen.com (provided that, notwithstanding the linked Prohibited and Restricted Products and Services List, the categories “bankruptcy lawyers”, “Charities”, “Private Medical Practices and eDoctors”, “PACs”, “other Political/Charitable Donations” are Customer Products and/or Customer Services for which a waiver was granted and which are therefore allowed). This list may be updated in Processor’s discretion where needed to ensure legal compliance, compliance to Network Rules, prevent high levels of Chargebacks and/or to reduce exposure to potentially fraudulent or illegal transactions. Customer will be informed of such updates by AffiniPay. Where a published change affects a significant portion of Customer’s Product or Services, Customer may terminate the Customer Agreement by giving written notice to Processor (via AffiniPay). Processors´ acceptance of Customer as customer should not be

interpreted as an advice or opinion of Processor as to the legality of Customer’s Products and Services and/or of Customer’s intended use of the Services therefore.

The Services of Processor should not be used (and Transactions may not be submitted for processing) for prepaying Customer Products and Services for which the Delivery Date is in part or in whole more than 12 months after the date the Transaction is submitted for processing. This can make Transactions more likely to be subject to Chargebacks.

 

  1. WARNING – Fines from Network Owners

For violations of certain key requirements under the Network Rules by Customers, some Network Owners (and in particular the Card Networks) may levy significant fines. The Network Owners do this to protect Payers, Customers and providers of the Payment Methods collectively against misuse, fraud, illegal activities, breach of applicable laws, reputational damage and excessive costs. Key examples of Network Rules that are subject to such fines: (i) using the Payment Method for other Customer Products and Services than for which Customer received express authorization to use it from AffiniPay; (ii) using the Payment Method for Customer Products and Services which are violating applicable laws; (iii) using the Payment Method for selling Customer Products and Services for which the Network Owner explicitly prohibited its use (e.g. adult content, drugs, arms, gambling); (iv) using the Payment Method for the benefit of a third party / reselling the use of the Payment Method to a third party (the authorization for Customer to use a Payment Method is strictly personal); (v) percentage of Transactions of a Customer which is subject to a Chargeback is above the applicable acceptable level; (vi) breaches of security and confidentiality obligations with respect to Payment Details (see clauses 4.1 and 4.3 for more information on this); or (vii) fraudulent, misleading activities of which Payers are the victim.

Customer is strongly advised to regularly review the then current Network Rules (made available via AffiniPay) and relevant changes to applicable laws as applicable to its Customer Products and Services and business practices to ensure compliance to applicable Network Rules. Where Customer finds the Network Rules (including Fine possibility) to be unacceptable, Customer is free at any point in time to stop using the relevant Payment Method (the Network Rules and these terms remain applicable to previously processed Transactions for Customer).

Where Processor becomes aware of and/or receives any notice of a potential exposure to a Fine related to any Customer behavior, Customer will, upon Processor’s request, provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation, notwithstanding all other rights and remedies of Processor in such situation as per these Terms and Conditions. Where possible Processor will share relevant feedback received by Customer with the Acquiring Institution/Network Owner handling the potential Fine so it can be taken into consideration by the Acquiring Institution / Network Owner.

 

  1. Taxes

Customer agrees to defend, hold harmless and indemnify Processor from and against any VAT, turnover and other taxes or levies including penalties, interests, surcharges ("Taxes") due on any product or service of Customer or AffiniPay (including but not limited to any Transactions, Customer Products and Customer Services) and costs or damages related to such Taxes. Customer will (i) apply all reasonable efforts to ensure that Processor cannot be held liable for any Taxes and costs or damages related to such Taxes, (ii) will promptly inform Processor of any such liability and (iii) will provide Processor with all relevant information and documentation in that respect. Furthermore, Customer and AffiniPay shall

be jointly and severally liable towards Processor for any such Taxes and costs or damages related to such Taxes.

 

  1. Set-Off

Without prejudice to any right to set-off which Processor may be entitled to as a matter of law, Processor may set-off any amounts due to Customer against any amounts owed or other liabilities of Customer, now or at any time hereafter due, owing or incurred by Customer to Processor under, in connection to, or pursuant to these Terms and Conditions and/or the Customer Agreement.

 

  1. Integration

    1. Integration via Partner

Customer will integrate with the Payment Interface via the systems of AffiniPay and with the assistance of AffiniPay as agreed between Customer and AffiniPay. Processor is not responsible for such integration but will ensure the Payment Interface is available for use by AffiniPay for such purpose and will where needed provide second line support for such integration via AffiniPay.

 

  1. Changes to Software

Processor reserves the right to change or amend the Software and the interface to it at any time, to provide Customer with a new version thereof, and/or to change the functionalities and characteristics of the Software. No changes will be implemented by Processor which materially reduce functionality of the Services which was explicitly committed to be provided under the Customer Agreement, except where this is made necessary by: (i) the need to follow generally accepted changes in industry standards, (ii) changes in applicable laws or Network Rules, (iii) need for increased security due to security risks identified by Processor or (iv) other reasonable grounds which warrant the reduction of functionality. 

 

  1. Security of Payment Details

Customer guarantees not to copy, capture or intercept Payment Details such as credit card numbers, CVM Codes, ‘PIN’ codes that are provided by a Payer for payments to be processed via the Services. This rule is imposed by the Network Owners to protect Payers against misuse of their Payment Details (e.g. Card numbers) and is strictly enforced by the Network Owners, and a violation of this rule can lead to the application of significant fines by Network Owners. If Processor has reason to believe that Customer is copying, capturing or intercepting Payment Details, Processor has the right to suspend processing of Transactions and Settlement. Customer will fully indemnify and hold Processor harmless from any losses, claims (including applied fines by the Network Owners), costs or damage Processor incurs as a result of Customer’s breach of this obligation.

 

  1. Customer Communications

All first line communications with Customer regarding the use of the Services will run through AffiniPay. Processor will also inform Customers of relevant changes in applicable Network Rules, financial laws and regulations via AffiniPay.

 

  1. Security and Compliance

Processor will take reasonable measures to provide a secure payment system and will keep its systems used to provide the Services certified in accordance with the PCI-DSS security standards.

 

  1. Chargebacks and Refunds

    1. Chargebacks

Customer will take all reasonable steps to ensure that Customer Products and Services are actually delivered in accordance with applicable Network Rules, laws and orders placed by a Payer, to avoid any Chargebacks. In case Processor has reasons to suspect that Customer is not delivering its Customer Services or Customer Product on or prior to the Delivery Dates used to calculate the Uncompleted Order Amount and/or if Processor has reason to suspect that Customer Products or Customer Services for which Processor processes Transactions are

based on fraud, likely to cause high Chargeback volumes and/or illegal, Processor has the right to suspend Settlement of all related Transactions and/or block Authorizations until Processor has been given assurances to its satisfaction that the relevant Customer Products and Services are actually delivered in accordance with applicable laws and orders placed by a Payer.

 

  1. Refunds

Refunds will be charged as a Transaction by Processor and a Refund fee can be applied by Processor after giving prior notice to Customer, if manual intervention is needed or additional costs are incurred by Processor to process such Refund. Processor will not execute a Refund (meaning the relevant sum will not be returned by Processor to the relevant Payer, directly or via the relevant Acquiring Institution / Network Owner) in case the funds for this cannot be subtracted from the next Settlement or are not funded otherwise. Refunds are not funded by Processor from its own means.

 

  1. Property Rights

The property rights in the Software and other materials and all other intellectual property rights related to the Services are owned by Processor and its licensors. The Customer Agreement does not transfer any intellectual property rights with respect thereto and only provides Customer a limited, non-exclusive and non-transferable license to use the Software and all other materials made available by Processor solely for the purpose of using the Services in accordance with these terms and the applicable usage instructions communicated to Customer via Processor website from time to time.

 

  1. Confidentiality, Privacy and Compliance

    1. Confidentiality

All information relating to Customer or to Processor and designated as being confidential, and all information not expressly designated as confidential but which should reasonably be deemed confidential by reason of its nature or content is considered “Confidential Information”. Each party remains the owner of all data made available to the other party. 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 (including AffiniPay) which have a need to have access to such information in order to exercise rights and obligations under the Customer Agreement; and
  • to refrain from making any Confidential Information available to any third party without the prior written consent of the other party except for Processor where necessary to perform the Services.

The obligation to maintain confidentiality does not apply to information:

  • available to the general public;
  • disclosed to one of the parties by a third party without any obligation of confidentiality;
  • already in the possession of or known to one of the parties at the time of disclosure;
  • developed independently of the Confidential Information by the other party; or
  • if and to the extent to one of the parties and/or their employees are obliged under an act or by decision of a court or administrative authority to disclose such information.

The obligation of confidentiality as described in this clause will remain in effect will remain in effect for a period of ten years following the termination or expiration of the Customer Agreement, regardless of the grounds for termination.

The following data is to be considered confidential, without need for special mention:

  • all financial data;
  • any agreed Customer specific terms and conditions in the Customer Agreement, if applicable; and
  • all user manuals, guides and any Software relating to Processor’s products and services.

 

  1. Privacy

Where Processor processes personal data while performing the Services it will act as data processor under the direction and responsibility of Customer and/or AffiniPay in accordance with EU General Data Protection Regulation 2016/679, including any successor thereof, and applicable Dutch privacy laws. Customer will comply with the personal data protection laws of Customer’s country of origin and of those countries in which Customer offers its goods and/or services from time to time, in particular when processing and sending personal data to Processor in the context of using the Services and submitting Transactions. Both Processor and Customer will implement appropriate measures to protect personal data against misuse. Processor will not use personal data processed by Processor for Customer under the Customer Agreement for any other purpose then providing the Services and complying with applicable laws and Network Rules.





  1. Use of Services

In accordance with Dutch laws on hacking and computer crime, Customer will only use the Services for the purposes as agreed herein and will specifically not perform or allow to be performed any actions detrimental to the security or performance of the Services without Processor’s prior written consent.

 

  1. Duration and Cancellation

    1. Duration

These Terms and Conditions will be entered into for an indefinite period until terminated by any party (a) in accordance with the terms hereof or (b) by giving at least 2 months’ written notice to the other parties. Such notices may be given via AffiniPay by any party. These Terms and Conditions will automatically terminate when the AffiniPay Agreement terminates or expires.

  1. Termination

Processor has the right to terminate the Customer Agreement and/or stop processing or Settlement of Transactions for Customer immediately in part or in whole if:

  • The provision of Customer's Services/Products for which Processor provides the Service is reasonable suspected by Processor to be in breach with legislation in the country where the Customer Services/Products are offered from or to.
  • Customer has materially changed the type of Customer Services/Products without obtaining Processor’s prior written permission to use the Services for the new or changed types of Customer Services/Products;
  • Customer materially breaches any of the terms of the Customer Agreement, the Network Rules and/or applicable laws in the context of using the Services.
  • An Acquiring Institution or Network Owner demands Processor to stop or suspend providing Services to Customer with respect to Payment Methods made available by such Acquiring Institution or Network Owner to Processor.
  • Processor finds there are clear indications that Customer is or is likely to become insolvent and/or unable to provide a material part of the Customer Products/Services. or
  • The AffiniPay Agreement has been terminated or has otherwise expired and/or an event permitting a termination by AffiniPay under the AffiniPay Agreement occurs.

 

  1. Liability

    1. No Liability for Third Parties

Processor will 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 Network Owners and Acquiring Institutions or for events or activities originating outside the systems of Processor (such as internet disturbances or malfunctions in third party systems), except in case such events were caused by the intent or gross negligence of Processor.

 

  1. Limitation of Liability

The total liability of Processor under the Customer Agreement towards Customer for breach of contract, tort or under any other legal theory in any calendar year is limited to an amount equal to 10,000 euro. Processor will not be liable for any special, indirect, or consequential damages (including any loss of profit, business, contracts, revenues or anticipated savings, or damage to good name) as a result of breach of contract, tort or under any other legal theory.

Neither Processor, Customer nor any other party to the Customer Agreement excludes or limits its liability under the Customer Agreement for intent, gross negligence, death, fraud or personal injury.

  1. Indemnification

If any claims for damages, costs and expenses are asserted against Customer by third parties asserting that these third parties are the owner of any rights regarding the Software and/or systems of Processor, Processor will indemnify Customer without delay from these third- party claims, including Customers reasonable costs of its legal defense, and offer Customer the necessary assistance in its legal defense.

Customer will indemnify and hold Processor harmless from any claim (including legal fees) brought against Processor by any third party (expressly including Network Owners and Acquiring Institutions and their claims for payments of fines) as a result of Customer’s breach of the terms of the Customer Agreement, applicable laws and/or the Network Rules applying to the Payment Methods used by Customer.

 

  1. General Provisions

 

  1. Null Provisions

In the event that any provision of these Terms and Conditions is declared null and void or inapplicable, said provision will be deemed non- existent, and all other provisions of the Customer Agreement (including these Terms and Conditions) will remain applicable. The parties undertake to take all steps to eliminate the provision declared null and void and/or inapplicable and to replace the same with a provision approaching, insofar as possible, the economic objective of the provision declared null and/or inapplicable.

 

  1. Entire Agreement

The Customer Agreement contains all the commitments between the parties and replaces all other prior contractual commitments between the parties. No representation, warranty or undertaking given by any of the parties to any of the other parties under the Customer Agreement will be of any force or effect unless expressly reduced to writing and repeated in the Customer Agreement, and all implied or prior representations, warranties and undertakings are, save to the extent expressly set out in the Customer Agreement, expressly excluded to the fullest extent permitted by law.

 

  1. Changes to these Terms and Conditions

Processor may revise these Terms and Conditions from time to time by giving at least 30 days written notice to Customer via AffiniPay. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer may terminate the Customer Agreement by giving at least one month written notice to Processor (such termination notice to be sent at the latest 60 days after Customer received notice of the change). Customer is not entitled to object to and will not have the rights set out in this clause for any change which Processor implements in order to comply with applicable law, regulations or requirements imposed by the relevant Acquiring Institutions and/or Network Owners or financial regulators. For such imposed changes shorter notice periods may be applied by Processor as is needed to comply with the relevant requirement.

 

  1. Online Contracting – written confirmation

If Customer has entered into the Customer Agreement with Processor via AffiniPay’s website or via any other online means, Processor may at any time request that Customer re-confirms its acceptance of the terms of the Customer Agreement (including these Terms and Conditions) by means of a written document signed by an authorized representative of Customer. If Customer does not comply with such request within five working days after receiving a request by Processor to do so (which request may be issued to Customer via the contact email address submitted by Customer when concluding the Customer Agreement), Processor reserves the right to suspend all or part of the Services until Customer has complied with such request.

 

  1. Translations

The terms of the Customer Agreement, including these Terms and Conditions are made available to you in English. Any other terms or disclosures made available to you regarding this Customer Agreement in any non-English language do not form part of our agreement and are for informational purposes only.

 

  1. Applicability of Payment Services Directive

Title 7B of Book 7 of the Dutch Civil Code (Burgerlijk Wetboek) and other laws and regulations implementing Directive (EU) 2015/2366 (“PSD2”) or its predecessor, Directive 2007/64/EC ("PSD"), are not applicable to the extent it is permitted to deviate from relevant provisions in relationships with non-consumers, in accordance with Article 38 and 61 PSD2 (or Article 30 and 41 PSD).

Where Processor provides payment services for Customer within the European Economic Area ("EEA") and where a Payer's payment service provider is located in the EEA, the parties hereby agree and confirm in accordance with article 62(2) of PSD2 that Customer will pay the charges levied by Processor and a Payer will pay the charges levied by his payment service provider (i.e. the ‘SHA’ (shared) principle).

 

  1. Dispute Handling

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 Customer Agreement, 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.

 

  1. Applicable Law and Jurisdiction

These Terms and Conditions are solely governed by Dutch law, excluding the Convention on Contracts for the International Sale of Goods. In the absence of an amicable agreement, any dispute relating to the validity, interpretation or fulfilment of these Terms and Conditions will be submitted to the exclusive jurisdiction of the competent courts of Amsterdam the Netherlands.