Terms and Conditions
Euronet Merchant Services Payment Institution Single Member Societe Anonyme
Merchant Acquiring Terms and Conditions
1. This document sets out the terms and conditions on which we, Euronet Merchant Services Payment Institution Single Member Societe Anonyme, whose registered office is at 1, Sachtouri Street & Poseidonos Avenue, 17674, Athens, Greece (“epay“) will provide Merchant Acquiring Services and any applicable Value-Added Services to you (the “Merchant“).
1.1 Please note that these terms and conditions are for use only with:
a) incorporated entities (i.e. bodies corporate such as limited companies, public limited companies, and limited liability partnerships); or
b) partnerships; or
c) sole proprietors.
1.2 Some of the provisions of this Agreement shall apply only with respect to Merchants who qualify as a Micro-enterprise (as defined herein).
1.3 Please read these terms and conditions and the Operating Guide that epay provides to you carefully as they contain details of binding legal arrangements between you and us. If there is anything you do not understand, please ask and epay will be happy to assist you.
1.4 Remember that once you sign the Merchant Application Form, and epay accepts your application, you will be bound by these terms and conditions. epay will notify you of its acceptance of your application in accordance with the terms set out below.
1.5 epay is a payment institution, authorised and regulated by the Bank of Greece. To find out more about us, see the Bank of Greece Register: https://www.bankofgreece.gr/en/main-tasks/supervision/supervised-institutions.
1.6 You should retain a copy of this document. epay can provide you with additional copies of these terms and conditions if you ask us.
2. DEFINITIONS AND INTERPRETATION
2.1 The following terms when used in this Agreement or any document referred to herein shall have the following meaning:
“3DS” means the ‘’Three-Domain Secure’’ protocol developed by Visa International Inc. (Visa) as ‘’Verified Secure’’ and ‘MC Identity Check’’ developed by MasterCard International Inc. (MasterCard), including successive versions thereof and any amendments thereto;
“Activation Fee” means the cost and effort associated to the activation of a terminal and/or API, as set out in the Merchant Application Form;
“Affiliate” means, in relation to a Person, any Person that directly or indirectly through one or more intermediaries controls or owns that Person, or is controlled or owned by that Person, or is under common control or ownership with that Person (for these purposes, “control” shall mean ownership of a share greater than 50% of the other Person or the ability to direct or determine the decision making process of such Person);
“Agreement” means the Merchant Application Form, these terms and conditions (the “General Terms and Conditions“) and the Schedules;
“API” means a secure application programming interface established based on industry standards between the Merchant’s website and epay’s / epay’s subcontractors environment for the purposes of processing of CNP Transactions;
“Business Day” means any day other than a Saturday, Sunday or a public or bank holiday in Greece;
“Card” means a credit, debit charge, purchaser or other payment card issued under a Card Scheme listed in Schedule 1 whose payment transactions epay is able to process or acquire in accordance with the terms of this Agreement; the minimum characteristics of each Card shall include the Card number, the full name of the Cardholder (except for prepaid cards), the Card expiration date and the CVV2/CVC2;
“Cardholder” in relation to any Card means the person to whom the Card is issued;
“Card or Payment Scheme” means any card payment scheme and/or system (such as VISA, MasterCard®, American Express or others, including national or local systems) or bank payment scheme and/or system (such as direct banking systems, direct debit systems or bank transfer systems);
“Card Verification Code” means a sequence of digits printed on a Card (e.g. for Visa – CVV2, for Mastercard CVC2), which is used to further authenticate the Cardholder during a CNP Transaction;
“Change Notice” has the meaning given in Clause 19.2;
“Chargeback” means a Transaction that is disputed by a Customer and there is a demand from a Customer’s payment service provider or the operator of the Card or Payment Scheme to reverse and refund the amount of the Transaction;
“Chargeback Claim” means any amount claimed from epay or a refusal of any payment to epay by an issuer of any Card in relation to a Chargeback;
“Chargeback Ratio” means either:
(a) the ratio of the number of Chargebacks to the number of Transactions; or
(b) the ratio of the value of Chargebacks to the value of Transactions,
in the course of a one calendar month period;
“CNP Transaction” or “Card Not Present Transaction” means a Transaction by a Customer where neither the Customer nor the Card are physically present at the point of sale at the time of the Transaction including MO/TO Transactions and e-Commerce Transactions;
“Commencement Date” means the date on which epay: (i) agrees that the Merchant has satisfied all relevant Conditions Precedent; or (ii) has waived such Conditions Precedent in accordance with Clause 3.4 and notifies the Merchant to that effect;
“Conditions Precedent” means the conditions set out in Schedule 2;
“Contract Year” means each period of 12 months commencing on the Effective Date and each anniversary of the Effective Date;
“Confidential Information” means any information which is marked as “Confidential” or “Proprietary” or should be reasonably expected to be confidential having regard to the context of disclosure or the nature of the information; including, without prejudice to the generality of the foregoing, the terms of this Agreement, as well as business plans, data, strategies, methods, customer and client lists, technical specifications, transaction data and customer data;
“Customer” means any Cardholder who orders, purchases, leases or otherwise receives any Merchant Product/Service pursuant to a Transaction by Card;
“Data Protection Laws” means applicable legislation protecting the Personal Data of natural persons, including GDPR, together with applicable legislation implementing or supplementing or replacing the same from time to time or otherwise relating to the Processing of Personal Data of natural persons, together with binding guidance and codes of practice issued from time to time by relevant supervisory authorities;
“DCC Transaction” a transaction as described and defined in Schedule 1, Part C- Dynamic Currency Conversion of this Agreement;
“DCC Services” means the services described and defined in Schedule 1, Part C- Dynamic Currency Conversion of this Agreement and provided pursuant to that Schedule;
“Discount” means in relation to any Transaction (and per Transaction):
(c) the amount equivalent to the product of the Transaction amount multiplied by the percentage Discount Rate, plus, if applicable, the Discount Rate in the fixed amount; plus
(d) the applicable interchange fee (together with any applicable Card Scheme fees) for that Transaction; plus
(e) any scheme and other network fees introduced or varied by the Card Schemes or card issuers that are levied on epay for that Transaction; plus
(f) any tax payable in respect of or in relation to the Discount or the Services (other than a tax calculated on or by reference to income or profits);
if the Merchant has selected blended pricing in the Merchant Application Form, points (b) and (c) shall not apply;
“Discount Rate” means the percentage amount and/or fixed amount designated at the Merchant Application Form, referenced at the Merchant Application Form as a fee and/or a charge;
“e-Commerce Transaction” means a Transaction by a Customer where neither Customer nor the Card are physically present at the point of sale at the time of the Transactions and the Transaction Data are presented by the Cardholder to the Merchant and/or epay through the API;
“Effective Date” means the day on which epay sends notification that it has accepted the Merchant’s application;
“Euros” or “EUR” means the lawful currency of the European Union;
“epay Branding” means trademarks, service marks, trade dress, get up and other representations of the branding of epay and/or its Affiliates, together with all related marketing and promotional materials;
“epay e-commerce platform” means a platform provided by epay or on behalf of epay to enable the Merchant to accept e-commerce Transactions;
“Extended Term” has the meaning given to it in Clause 13;
“Fees” means the fees and charges payable by the Merchant to epay for the Services as set out in the Merchant Application Form;
“Floor Limit” means any monetary Transaction limit (as notified to the Merchant by epay from time to time) above which the Merchant must obtain epay’s authorisation prior to completing a Transaction. The Floor Limit may be established in connection to all Transactions, regardless of type of Transaction, or for specific type(s) of Transactions, e.g. MO/TO Transactions or e-Commerce Transactions so different Floor Limits may apply from time-to-time as communicated to the Merchant;
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as updated from time to time;
“Initial Term” has the meaning given to it in Clause 13;
“Instalments” means a service provided to a holder of a domestically issued Greek credit Card by the issuer of this Card allowing this Cardholder to pay in instalments for the purchase or lease of Merchant Products/Services from the Merchant, where the number of instalments is chosen, within applicable instalment framework, by the Merchant; Instalments are enabled by epay on the Merchant’s request and upon prior approval of such request by epay;
“Intellectual Property Rights” means patents, copyrights, utility models, trademarks, design rights, database rights, trade secrets and other rights in confidential information, trade and business names and all other intellectual property rights of any kind, whether registered or unregistered, subsisting from time to time anywhere in the world;
“Interested Party” means epay or any of its respective Affiliates;
“Liability” means any liability of one party to the other arising under or in connection with this Agreement including liability for breach, anticipatory breach, misrepresentation (including pre-contractual misrepresentation) or repudiation and whether arising in contract, tort (including negligence), through an indemnity, under statute, in equity or at law and “Liabilities” shall be construed accordingly;
‘’Merchant Application Form’’ means the application form provided by epay to the Merchant, which the Merchant completes and submits to epay for epay’s assessment of the potential collaboration with the Merchant for the provision of services described in this Agreement;
“Merchant Acquiring Services” means the services described in Clause 4 of this Agreement, subject to the terms of this Agreement;
“Merchant Category Code” has the meaning set out in Clause 5;
“Merchant Losses” means any and all actual and reasonably anticipated losses incurred by any Interested Party:
(a) as a result of:
(i) negligence, fraud, dishonesty or wilful misconduct by the Merchant, any Affiliate of the Merchant or any Third-Party Vendor, or by any of the officers, directors, employees, agents, representatives, customers of the Merchant, any Affiliate of the Merchant or any Third Party Vendor;
(ii) any breach of this Agreement by the Merchant or Merchant’s Affiliate (including a breach of any representation, warranty, covenant, agreement or undertaking made by the Merchant or any Merchant’s Affiliate in or in relation to this Agreement or any certificate or other instrument or agreement delivered by or on behalf of the Merchant or any Merchant’s Affiliate in connection with this Agreement);
(iii) any breach of the rules of a Card or Payment Scheme and/or any applicable PCI DSS by the Merchant, any Affiliate of the Merchant or any Third Party Vendor; or
(b) for any other reason arising or resulting from any and all amounts (including, unpaid Fees, settlement charges, fines, expenses (including any sums imposed by an operator of a Card or Payment Scheme), Chargebacks, refunds or reasonable fees and expenses of legal and other advisers, court costs and other dispute resolution costs, incurred by an Interested Party) which at any time may be:
(i) owed by the Merchant to any Interested Party; or
(ii) payable by any Interested Party to any third party,
in each case under or in connection with this Agreement;
“Merchant Product/Service” means any good, product or service offered by a Merchant to its customers and which is ordered, purchased, leased, or otherwise provided to a Customer pursuant to a Transaction, including any Transactions where the Merchant supports others operating within its premises, in which case the Merchant shall be deemed to have all rights and full capacity to transact on such Merchant Product/Service;
“Merchant Representative(s)” means the Merchant, its directors, officers, employees, members of staff, contractors (including those of its Affiliates) and/or third party sub-contractors who are engaged in, either directly or indirectly, the discharging of the Merchant’s obligations under this Agreement;
“Merchant Settlement Account” means the Merchant’s account as notified by the Merchant to epay in the name of the Merchant into which the Settlement Payment shall be made unless otherwise agreed in writing between the parties;
“Micro-enterprise” means any enterprise which, at the Effective Date, does not exceed the limits of at least two of the following three criteria:
(a) Total assets: 350,000 euros;
(b) Net turnover: 700,000 euros;
(c) Average number of employees during the reporting period: 10 people;
“MO/TO Transaction” means a Transaction by a Cardholder where the Cardholder is not physically present at the point of sale at the time of the Transaction and Transaction Data are presented by the Cardholder to the Merchant and/or epay by means of telephone and/or mail order;
“Multicurrency Transaction” a transaction as described and defined in Schedule 1, Part D – Multicurrency of this Agreement;
“Multicurrency Services” means the services described and defined in Schedule 1, Part D – Multicurrency of this Agreement and provided pursuant to that Schedule;
“Operating Guide” means the operating procedures issued by epay (and as amended from time to time) in relation to the Services, including relevant portions of the operating manuals, official rules, bulletins, notices and similar documents issued by Card or Payment Schemes or Payment Networks in effect from time to time;
“Payment Instrument” means, where applicable, either: (i) a device, procedure or instrument made available to the Merchant as part of the Services for the purpose of facilitating Transactions, including cash, credit cards, debit cards and instant money transfer methods or (ii) in the case of a Cardholder a variation on a Card that such Cardholder can use to initiate, conduct and conclude a Transaction under the Merchant Acquiring Services offered by epay;
“PCI DSS” means the guidelines or standards of the PCI SSC;
“PCI SSC” means the Payment Card Industry Security Standards Council;
“Payment Network” means the procedures and systems used to settle and process certain financial transactions in connection with the Transactions;
“Payment Services Directive” means the Payment Services Directive (EU) 2015/2366 as amended from time to time;
“Payment Services Laws” means Law 4537 GG I 84/15.5.2018 transposing the Payment Services Directive in to national law and regulations made thereunder, as amended from time to time;
“Person” means an individual, a body corporate, an association, a partnership, a trust or any other entity or organisation;
“Personal Data” shall have the meaning given to it by applicable Data Protection Laws;
“POS Terminal(s)” means Terminal(s) offered by epay for hire to Merchant;
“POS Terminal Hire Period” means the rental period agreed by the Merchant and epay commencing on the date of delivery of a POS Terminal;
“Piraeus Bank Pre-funded Transaction(s)” means a series of Transactions made in connection with Instalments, where an amount of all Transactions from the series, except the amount of the first Transaction, was pre-funded to the Merchant by Piraeus Bank Société Anonyme with registered offices in Athens, at 4, America Street, VAT No. 996763330 and registration No. 157660660000 under the trading name “Piraeus Bank” (“Piraeus Bank”) under a separate agreement between the Merchant and the Piraeus Bank, as notified to epay by the Merchant and/or the Piraeus Bank;
“Processed Personal Data” means Personal Data relating to Transactions acquired or processed by epay in the course of providing the Services;
“Prohibited Transaction” has the meaning given in Clause 11.1 of this Agreement;
“Regulator” means any government department or other regulatory, statutory and other entity, committee or body (including, without limit, Card or Payment Schemes or PCI SSC) which, whether under statute, rules, regulations, codes of practice or otherwise, is entitled to regulate, investigate, or influence the matters dealt with in this Agreement or any other affairs of epay or any of its Merchants;
“Regulatory Requirements” means any law, statute, regulation, order, judgment, decision, recommendation, rule, policy or guideline passed or issued by any government, Regulator or any competent court or authority or any payment scheme and/or system (including but not limited to bank payment systems, Card or Payment Schemes or any other payment, clearing or settlement system or similar arrangement that is being used for providing the services hereunder and including any applicable consumer protection laws, anti-money laundering laws and other laws and regulations), together with PCI DSS and/or any applicable voluntary codes of practice or guidelines which are generally adhered to in the payment services industry, including those endorsed by any Regulator in any jurisdiction;
“Relationship Manager” has the meaning given in Clause 31.2 of this Agreement;
“Reserve Amount” has the meaning given to it in Clause 8 of this Agreement and represents the amount specified by epay to the Merchant when epay confirms its acceptance of the Merchant Application Form;
“Rules” means all applicable rules, regulations and guidelines of any third party (and any and all policies or procedures as may be provided by epay to the Merchant in connection with such rules, regulations and guidelines), as they may exist from time to time and as applicable to the Services provided under this Agreement, including without limitation those issued by the Card and/or Payment Networks listed in Schedule 1 together with any other applicable Card or Payment Scheme, as well as those issued by the national and regional automated clearing house networks and any other Payment Network through which transactions hereunder may be processed or acquired;
“Schedule” means a schedule to these General Terms and Conditions;
“SEPA Direct Debit Mandate” or “Mandate” means a mandate in favour of Epay, by which the Merchant has authorized (a) epay to send recurring instructions to a bank that maintains the Merchant Settlement Account to debit the Merchant Settlement Account and (b) the bank that maintains the Merchant Settlement Account to debit the Merchant’s bank account in accordance with the instructions from epay;
“Service Schedules” means the relevant parts of Schedule 1 describing the Merchant Acquiring Services and each of the additional Value-Added Services selected by the Merchant on the Merchant Application Form;
“Services” means the Merchant Acquiring Services and the relevant Value-Added Services selected by the Merchant in the Merchant Application Form and approved by epay or as added to the scope of this Agreement from time-to-time pursuant to Clause 19;
“Settlement Payment” means any payment made by Epay to the Merchant Settlement Account for the purpose of settling Transactions under this Agreement to the Merchant, regardless of whether or not such payment is later reversed;
“Terminal” means a point of sale terminal and all other point of sale devices, hardware, associated equipment, software and other electronic computer and telecommunications devices and equipment used by the Merchant to process Transactions and which conforms with such requirements as are set by the applicable Card Schemes and by epay from time to time;
“Third Party Terminal” means a Terminal sold, hired, leased or otherwise provided to or on behalf of the Merchant by any Person other than epay;
“Third Party Vendor” means any Person providing services to or facilitating the Merchant’s operations and which is not an Affiliate of epay and which must comply with the PCI DSS;
“Token” means a unique sequence of 16 digits that meets the requirements of a valid card number (validated by the Luhn algorithm) and have an 888888********** format; each Token is uniquely related to a Merchant, a Card (hashed and encrypted) and a code that is generated by a Merchant through Tokenization Web Service and uniquely identifies the specific Token provisioning request;
“Tokenization Web Service” means a web service made available to the Merchant by epay through which the Merchant sends a Card data and receives back a Token;
“Transaction” means any transaction, including CNP Transaction, between the Merchant and a Customer in connection with which a Card or applicable Payment Instrument is used for the purchase or lease of Merchant Products/Services from the Merchant and/or a transaction for the reversal of such a purchase or lease; for avoidance of doubt, if the Merchant has accepted the purchase or lease of the Merchant Products/Services from the Merchant to be made in Instalments, each Instalment is deemed to be a separate Transaction and all Instalments in connection with this purchase are deemed to be a series of Transactions;
“Transaction Data” means all information required or used by an operator of a Card or Payment Scheme, or a Customer’s payment service provider, in order to process a Transaction and any other information used or generated in the processing of Transactions in connection with this Agreement;
“Unattended POS Terminal(s)” means POS Terminal(s) to be used for the performance of Transactions without the involvement of the Merchant and/or any other Person except the Cardholder in the payment process;
“Unregulated POS Terminal Hire Terms” means the services provided, subject to the terms of this Agreement, in accordance with Schedule 3 of this Agreement; and
“Value-Added Services” means any additional service provided by respectively by epay or Third Party Vendor;
“Virtual POS Terminal” means an electronic application made available by epay to the Merchant to enable the Merchant to accept CNP Transactions.
2.2 Headings are for convenience only and shall not affect the construction or interpretation of this Agreement.
2.3 References to Clauses and Schedules are to clauses and schedules of this Agreement.
2.4 Unless the contrary intention appears, words in the singular include the plural and vice versa; words importing the masculine gender include the feminine and neuter and vice versa; references to persons include bodies corporate, unincorporated associations, partnerships or an authority.
2.5 Any phrase introduced by the term “includes”, “including”, “in particular” or any similar expression shall be construed as illustrative only and shall not limit the sense of the words preceding that term.
2.6 Reference to any agreement, contract or document shall be construed as a reference to it as varied or supplemented from time to time.
2.7 If there is any conflict between the clauses of the terms of this Agreement and any of its Schedules, the conflict shall be resolved in accordance with the following order of precedence:
(a) the Service Schedules;
(b) the other Schedules; and
(c) the other the terms set out in the main body of this Agreement.
3. PROVISION OF SERVICES – GENERAL TERMS
3.1 epay shall provide the Services to the Merchant in accordance with the terms of this Agreement.
3.2 For the purposes of the Payment Services Laws, the Merchant confirms as at the date of this Agreement that: (a) it is acting for the purposes of its trade, business or profession; and (b) it has all legal rights and full title and capacity in accordance with all applicable Regulatory Requirements to sell and/or transact with Customers in respect of the Merchant Products / Services to be acquired by epay under this Agreement. If the Merchant is not a Micro-enterprise, the Merchant agrees that epay may provide the Services differently to the way prescribed in the Payment Services Laws and in such circumstances the applicable provisions of the Payment Services Laws are disapplied to the fullest extent possible under Articles 38 and 61 of the Payment Services Laws.
3.3 The Merchant undertakes to satisfy all Conditions Precedent within 30 days of the Effective Date.
3.4 epay shall be obliged to provide the Services to the Merchant only from such time as epay has confirmed to the Merchant that the Conditions Precedent have been either satisfied or waived by epay i.e. the Commencement Date.
3.5 The Merchant acknowledges that epay operates solely as a payment service provider and that epay:
(a) under no circumstances acts as a seller, buyer, dealer, middleman, retailer, auctioneer, supplier, distributor, manufacturer, broker, agent or merchant of any Merchant Product/Services and/or Value-Added Services provided by Third Party Vendors; and
(b) makes no representations or warranties in respect of any Merchant Product/Services and/or Value-Added Services provided by Third Party Vendors and does not ensure the quality, safety or legality of any Merchant Product Services and/or Value-Added Services provided by Third Party Vendors.
3.6 Nothing in this Agreement shall oblige epay to take any action or make any omission in breach of Regulatory Requirements.
4. PROVISION OF SERVICES
4.1 The Merchant acquiring services shall consist of:
(a) acquiring Transactions between the Merchant and the Cardholders in accordance with Schedule 1;
(b) facilitating the processing of Transactions between the Merchant and the Cardholders in accordance with Schedule 1; and
(c) providing a facility for dealing with merchant queries and complaints resolution in relation to the Services described in this Agreement.
4.2 epay shall also provide and/or facilitate provision by Third Party Vendors one or more of the applicable Value-Added Services as selected by the Merchant on the Merchant Application Form, or as added to the scope of this Agreement by the parties from time-to-time, to the Merchant. The specific terms and conditions relating to the Value-Added Services provided by epay are set out in the applicable parts of Schedule 1.
5. MERCHANT CATEGORY CODE
Based on the information provided by the Merchant about its business, epay will, at its reasonable discretion in consideration of the Rules, assign a Card acceptor code (a “Merchant Category Code”) to the Merchant.
6. API, TOKENIZATION WEB SERVICE AND POS TERMINAL HIRE
6.1 If the Merchant has been approved by epay to process CNP Transactions, epay will make available to the Merchant the API and Tokenization Web Service in accordance with Schedule 1, Part A.
6.2 If the Merchant has requested to hire one or more POS Terminals from epay, epay will provide the POS Terminal(s) to the Merchant to hire in accordance with the Unregulated POS Terminal Hire Terms of Schedule 3.
7.1 epay shall pay to the Merchant the total amount of the Transactions effected with the Merchant, which have been properly submitted to epay by the Merchant in a daily batch file in accordance with the Operating Guide and pursuant to this Agreement and accepted for payment by epay less:
(a) the aggregate Discount on all such Transactions and, for Piraeus Bank Pre-Funded Transaction(s), also aggregate Discount on all subsequent Transactions of this series;
(b) any previous over-payment due to refunds or credits granted by the Merchant;
(c) all Chargeback Claims or other claims under Clause 11 (Disputed Transactions); and
(d) an amount equal to all deductions or withholdings in respect of tax (if any) as are applicable to, or have been or will be taken into account in calculating payments to epay from a Card or Payment Scheme or card issuer in respect of or relating to the Transaction referred to in this Clause 7.1
IMPORTANT NOTE: for Piraeus Bank Pre-Funded Transaction(s), epay shall pay to the Merchant the total amount of the first Transaction of this series effected with the Merchant, which have been properly submitted to epay by the Merchant in a daily batch file in accordance with the Operating Guide and pursuant to this Agreement and accepted for payment by epay less Discount applicable for this Transaction and less Discount applicable to all subsequent Transactions of this series, which amounts (less applicable Discount) epay shall pay to the Piraeus Bank based on electronic notification provided by the Piraeus Bank on behalf of the Merchant to epay.
7.2 All payments to the Merchant shall be made to the Merchant Settlement Account.
7.3 Payments shall be made to the Merchant no later than the end of the next Business Day after epay receives amount of a Transaction from the issuing institution.
epay shall be entitled to deduct or withhold from such payments any deductions or withholding required by law.
7.4 It is important that the Merchant regularly checks the accuracy of any and all payments to the Merchant under Clause 7.1 to ensure any transactions that have been incorrectly accounted for are identified and notified to epay at the earliest possible opportunity. If the Merchant:
(a) is not a Micro-enterprise it:
(i) must notify epay as soon as it becomes aware that a Transaction may have been incorrectly accounted for in settlement and other payments and in any event within five (5) Business Days of discovering the reason for the objection or concern after the transaction date, unless epay has failed to make available information on the Transaction as required by law; and
(ii) shall not, subject to any compulsory rules of a Card or Payment Scheme, have the right to dispute any Transaction or any Settlement Payment for such Transaction after three (3) months of its occurrence;
(b) is a Micro-enterprise it:
(i) must notify epay as soon as it becomes aware that a Transaction may have been incorrectly accounted for in settlement and other payments and in any event no later than thirteen (13) months after the Transaction date, unless epay has failed to make available information on the Transaction as required by law; and
(ii) shall not, subject to any compulsory rules of a Card or Payment Scheme, have the right to dispute any Transaction or any Settlement Payment for such Transaction after thirteen (13) months of its occurrence.
7.5 Any payment by epay in accordance with the terms of this Agreement shall be made without prejudice to any claims, rights or remedies that epay may have against the Merchant and shall not constitute any admission or acknowledgment by epay that the Merchant has duly performed its obligations under this Agreement or of the correctness of the amount so paid.
7.6 epay has the right to, at any time and without notice, to offset any claims, costs, charges, penalties and expenses (including Merchant Losses) that it has incurred as a result of this Agreement against amounts it owes to the Merchant in accordance with Clause 7.1.
8. RESERVE AMOUNT
8.1 epay may require the Merchant to provide funds equal to the amount specified by epay to the Merchant when (i) epay confirms its acceptance of the Merchant Application Form and/or (ii) at any time throughout the term of the Agreement in accordance with Clause 8.2. This amount will be the “Reserve Amount“, and shall be available to pay epay for all, actual and reasonably anticipated Merchant Losses.
8.2 epay may at any time throughout the term of the Agreement request and/or change the amount it requires the Merchant to provide by way of a Reserve Amount by notifying the Merchant at any time if in epay’s reasonable view:
(a) the risk profile of the Merchant changes;
(b) there has been an increase or reduction in:
(i) transaction volume or value of more than 30%;
(ii) Chargeback Ratio of more than 1%; or
(iii) refunds transaction volume or value of more than 30%,
in the course of a Contract Year in comparison to the previous Contract Year, or, for the first Contract year, over the course of a calendar month in comparison to the pervious calendar month;
(c) there has been a change in:
(i) the Merchant’s business such that they would no longer be assigned the Merchant Category Code epay assigned to the Merchant in accordance with Clause 5;
(ii) ownership or control of a Merchant; and/or
(iii) location of a Merchant;
(d) there is evidence of fraudulent activity on a Merchant account or at point of sale;
(e) there is a risk of the Merchant becoming insolvent or otherwise unable to pay its debts as they fall due; and/or
(f) the Merchant will not be able to perform its obligations under this Agreement.
8.3 If epay notifies the Merchant that the Reserve Amount is required and/or has increased, the Merchant shall promptly provide such funds such that it provides the full amount of the Reserve Amount as requested.
8.4 epay may review the Merchant’s risk profile from time to time (although it may not be under an obligation to do so) and, if in epay’s reasonable opinion the risk presented by the Merchant has decreased, epay may decrease the Reserve Amount and pay back the difference to the Merchant.
8.5 epay will pay the Reserve Amount to the Merchant following termination of this Agreement once epay is satisfied that:
(a) all relevant payments in connection with Chargebacks and refunds have been made; and
(b) there is no reasonable prospect of incurring any fines or other Liabilities in respect of the Transactions.
9. FLOOR LIMITS
9.1 Details of the Floor Limit (if any) are set out in the Operating Guide.
9.2 Where subject to a Floor Limit, the Merchant shall not complete a Transaction in excess of the Floor Limit without epay’s prior written approval.
10. REFUNDS AND CHARGEBACKS
10.1 If the Merchant accepts a return from a Customer of any goods or software sold or licensed under a Transaction or agrees to make a refund or provide a rebate to a Customer of the amount of the Transaction or any part thereof for any reason or if the Customer cancels the Transaction or is entitled under the Merchant’s return, refund or rebate policy to a refund or rebate of all or part of the amount of the Transaction, the Merchant shall give a refund or rebate to the Customer only by issuing a credit in the appropriate amount to the relevant Customer’s Card account and submitting the same to epay under this Agreement (and in no other way), as long as the Card is still valid. If epay notifies the Merchant that the Merchant owes any amount to epay due to any refund or rebate having been processed, the Merchant shall promptly transfer such amount to the bank account specified by epay.
11. DISPUTED TRANSACTIONS
11.1 Notwithstanding any other provision of this Agreement or any authorisation and/or authorisation code numbers given in relation to the relevant Transaction or series of Transactions, epay shall be entitled to refuse payment to the Merchant of all or part of the amount of any Transaction less the Discount (where such Discount is applicable), or, if payment has been made and at epay discretion, to send, on a basis of SEPA Direct Debit Mandate, recurring instructions to Piraeus Bank, or on the basis of any other payment instructions accepted by Piraeus Bank, to debit the Merchant’s account with such sum and/or require immediate reimbursement from the Merchant of such sum, in any one or more of the following events:
(a) the Customer returned the product to the Merchant or disputes the nature, quality, quantity, use or fitness of the goods sold and/or services rendered under the Transaction, or alleges that the Merchant has breached the terms of the contract of sale or service entered into between the Merchant and the Customer or any representation or warranty made by the Merchant to the Customer;
(b) the Customer disputes or denies that the contract of sale or service with the Merchant was entered into by him, or that delivery of the goods sold and/or performance of the services rendered under the Transaction was received by him, or alleges that the payment instruction has been given or altered without his knowledge, consent or authority;
(c) the contract of sale or service entered into between the Merchant and the Customer in relation to the goods and/or services rendered under the Transaction is void or voidable at law or the use of the Card or the performance of any person’s obligations under such contract of sale or service involves any illegal or unlawful act;
(d) the Customer or the issuer of a Card claim that a Card used to effect the Transaction is counterfeit or that the Cardholder’s signature has been forged, provided that there is a substantial difference between the signature on the Card and the signature on the transaction receipt, or the Customer alleges that the Transaction is in any way fraudulent or tainted or affected by fraud or forgery; whether or not the Merchant was aware thereof;
(e) the Transaction is not submitted for settlement by the Merchant within three (3) Business Days of the Transaction Date;
(f) payment in relation to the Transaction has been mistakenly or wrongly made by epay or by the Customer to the Merchant;
(g) no authorisation has been sought by and/or granted to the Merchant for the Transaction or the series of Transactions, as required under this Agreement;
(h) the Card used for the Transaction is not a valid Card or is expired;
(i) the Merchant does not furnish to epay the original or copy or printout of any statement, bill or invoice or other document or record relating to the Transaction as soon as reasonably possible upon request as required by epay;
(j) in seeking authorisation for a Transaction, the Customer’s name and/or Card or Card account number and/or the validity period of the Card and/or any other details were given to epay incorrectly (whether or not as a result of the Merchant’s fault or neglect);
(k) a Chargeback Claim relating to the Transaction is received by epay or the issuer of any Card refuses for whatever reason to honour any Transaction;
(l) epay is of the opinion that there is any fraud, forgery or suspicious circumstances surrounding any Transaction;
(m) there has been a material breach by the Merchant of any other of its obligations under this Agreement, or of any security measures or guidelines issued by epay, the Card Schemes or the competent authorities;
(n) the alleged Transaction masks a transaction whereby the Merchant pays the Customer; or
(o) there has been use or attempted use of transaction receipts of a specific transaction for a duplicative or a multiplicative credit to the Merchant resulting in a fictitious or fraudulent transaction against epay,
11.2 If the Disputed Transactions and the amounts refunded to Customers due to such disputes exceed 0.5% of the amount of all monthly Transactions for a period of two (2) months, the Merchant shall be obligated to take all appropriate measures for the decrease of the percentage of Disputed Transactions and refunded amounts. If the Merchant does not take, or does not take to a satisfactory extent, the appropriate measures for the decrease of such percentages, the Merchant shall fully indemnify epay for any fine that might be imposed on epay by any authority or agency. epay shall make available to the Merchant the relevant list of such fines, upon request.
11.3 In the event epay cites to the Merchant the occurrence of any of the above circumstances, the Merchant shall be entitled to request epay to provide information reasonably sufficient to evidence the same and epay shall use reasonable efforts to obtain and provide the same, provided, however, that epay shall not be obliged to provide any information which is not in its possession or any information with respect to which it is under an obligation of confidentiality. epay shall be required to notify the Merchant as soon as reasonably possible in respect of any Chargeback Claim from the issuer or other issuer of the Card and in any event in accordance with the respective Rules. With the exception of Clause 11.1(m), epay’s reasonable determination of whether any of the events in Clause 11.1 have occurred shall be final and binding on the Merchant unless the Merchant can provide evidence to epay’s reasonable satisfaction that the event in question did not occur. If epay proceeds to any payment it had the right to refuse hereunder, the paid amount, as evidenced by epay’s records which the Merchant acknowledges have full evidentiary value, plus foreign exchange adjustments, if applicable, will be refunded by the Merchant to epay or it will be withheld, by way of setoff, by epay from then current or future payments due the Merchant.
12. PROHIBITED TRANSACTIONS
12.1 The Merchant shall not use the Services in any way in relation to Transactions relating to goods, products or services that are notified to the Merchant by epay as prohibited from time to time (each, a “Prohibited Transaction“). As at the Effective Date, such prohibited goods, products and services include:
(a) get rich quick schemes;
(b) real estate seminars;
(c) investment programmes or opportunities;
(d) credit repair, if not previously approved by epay;
(e) mortgage reduction services;
(f) pseudo-pharmaceuticals (including anti-aging pills and sex nutrients);
(g) chain letters;
(h) free gifts, prizes, sweepstakes or other trade promotions offered as an
inducement to purchase any goods or services;
(i) collection agencies or solicitor/attorney firms involved in debt collection or any other service relating to collecting payments or receivables, if not previously approved by epay;
(j) travel clubs;
(k) flea markets (i.e., businesses or individuals operating from a booth, whether full-time or part-time, with or without any lease, licence and whether indoor or outdoor);
(l) illegal or unlawful goods or services or any goods or services providing support, assistance or encouragement of the supply or use of illegal or unlawful goods or services;
(m) illegal or unlawful lottery, gambling or gaming activities;
(n) pyramid or multi-level marketing or distribution schemes;
(o) money or airtime credit transfer services;
(p) cheque cashing services;
(q) arms dealing or military or defence-related goods or services;
(r) prescription or non-prescription drugs or drug paraphernalia (including slimming pills and body enhancers);
(s) illegal weapons;
(t) pornographic content or services or other material which incite violence, hatred or racism or which are considered to be obscene;
(u) illegal downloads or goods or services infringing intellectual property rights of any person in any jurisdiction;
(v) government IDs and licences including replicas and novelty times or any other counterfeit products;
(w) unregistered charities; and
(x) any other goods or services the offering or provision of which is illegal under Regulatory Requirements,
or any other goods, products and services that may be specified as a Prohibited Transaction from time to time in the Operating Guide.
13.1 This Agreement shall commence on the Effective Date. Unless terminated earlier in accordance with clause 28 (Termination) or this clause 13, this Agreement shall continue for an Initial Term of thirty-six (36) months from the Effective Date.
13.2 If the Agreement has not been terminated early by either Party then the Initial Term shall automatically extend for further Extended Terms of twelve (12) months each on an on-going basis.
13.3 Either party may give written notice to the other party not later than three (3) months before the end of the Initial Term or the relevant Extended Term in order to cease the automatic renewal. Notwithstanding the foregoing, Merchants that are Micro-enterprises may give written notice to Epay no later than one (1) month before the end of the Initial Term or the relevant Extended Term to terminate this Agreement at the end of the applicable term.
14. THE MERCHANT‘S GENERAL OBLIGATIONS
14.1 In addition to its other obligations under this Agreement, the Merchant must comply with the applicable Rules. If notified by epay that any of its activity is or may reasonably be deemed non-compliant the Merchant shall promptly cease such activity on deemed receipt of notice from epay.
14.2 The Merchant shall not appoint sub-merchants or permit any third party to submit Transactions to epay without epay’s express agreement in writing.
14.3 The Merchant shall ensure that the Customer understands that the Merchant is responsible for the Transactions, including delivery of the Merchant Product/Services, customer service and dispute resolution.
14.4 The Merchant acknowledges and agrees that any dispute regarding any Merchant Product/Service is between the Customer and the Merchant. In particular, any Transaction shall obligate only the Merchant in respect of the Merchant Product/Service. The Merchant shall not require epay to be a party to any resulting dispute between it and any Customer relating to any Merchant Product/Service including disputes over its performance and liability issues relating to its delivery, quality, quantity or use.
14.5 The Merchant shall provide epay with all information and assistance necessary or desirable to enable epay to provide the Services to it in accordance with the terms and conditions of this Agreement.
14.6 The Merchant shall comply with epay’s instructions in relation to the receipt and use of the Services.
14.7 The Merchant shall not make the Services available to any other Person and shall immediately notify epay of any unauthorised access or attempted unauthorised access by any Person.
14.8 The Merchant agrees and confirms that the Merchant Product/Service shall, at all times, be marketed and/or distributed as Merchant Product/Service marketed/sold by the Merchant and the Merchant shall take all necessary steps and/or precautions to ensure that the Merchant Product/Service are not mistaken or misrepresented as being associated with, being sold or marketed by or being offered for sale by epay. epay will be entitled to require and the Merchant shall add to its website such disclaimers, warranties and indemnities as epay may require from time to time in this regard.
14.9 The Merchant shall place, in a visible location within its establishment, relevant insignia (trademarks, logos etc) regarding card acceptance. Any marketing or advertising regarding card acceptance requires epay’s prior express consent.
14.10 The Merchant shall ensure that the marketing and promotion of the Merchant Product/Service (including the contents of its relevant website(s)) and the Merchant Product/Service are at all times in compliance with Regulatory Requirements and in accordance with public policy, including, without limitation, compliance with all applicable licensing regulations, customs, tax and other regulations. If in the view of epay or any regulatory, statutory, judicial or quasi-judicial authority, there is any breach in this regard, epay may call upon the Merchant to:
(a) amend the content of the marketing and promotion of the Merchant Product/Service or any part of it; or
(b) remove or discontinue such marketing and promotion of the Merchant Product/Service or any part of it.
14.11 The Merchant shall: a) not offer the Merchant Product/Service to Cardholders in prices that are higher than prices charged to other customers, b) not impose fees or expenses due to the use of a Card as part of the purchase price or otherwise, c) not require a minimum purchase amount to accept Card payments, d) accept Cards during any sales season, offering the Merchant Product/Service at the relevant reduced price, e) not accept payment by Card for products or services it does not offer or for transactions that are not within the normal field of its commercial activity or for transactions made between a Cardholder and a third party, and f) not hinder or avoid in any way the use of Cards.
14.12 Other than as expressly provided in this Agreement, epay will not be responsible for any delivery, after-sales service, payment, invoicing or collection, customer enquiries (not limited to sales enquiries), technical support maintenance services and/or any other obligations or services relating to or in respect of the Merchant Product/Service. Such services shall be the sole responsibility of the Merchant and the Merchant shall bear any and all expenses and/or costs relating thereto.
14.13 In the event that a Customer wishes that the goods the Customer purchased be sent to a specific location, the Merchant shall either insure the goods and include the relevant insurance cost in the payment receipt, or request a signed statement by the Customer acknowledging that the goods will be shipped without insurance, at the Customer’s risk. If the Merchant does not comply with the above, the Merchant shall bear the risk of damage or loss.
14.14 The Merchant shall retain copies of the issued Transaction receipts for at least thirteen (13) months after their date of issuance to allow epay to inspect them, if requested.
14.15 The Merchant shall retain any Card, if so requested by epay, and shall deliver the retained Card to its issuer, as instructed by epay.
14.16 If the Merchant operates seasonally, the Merchant shall promptly notify epay of the dates of commencement and cessation of its activities each year, and shall provide epay with contact information for its representative for the period during which the it is closed for business.
15. COMPLIANCE WITH RULES AND THE OPERATING GUIDE
15.1 The Merchant shall comply with and be subject to the Rules.
15.2 epay will notify the Merchant of the relevant requirements of Card Scheme or Payment Scheme Rules applicable to the Services and shall, from time to time and within a reasonable time following epay’s receipt of notice of material changes in the Rules, advise the Merchant of such changes.
15.3 At all times during the term of this Agreement, the Merchant shall (and shall procure that the Merchant’s Affiliates) comply with the Operating Guide.
15.4 The Merchant acknowledges that it must comply with the PCI DSS. To this end, and given that non-compliance by the Merchant with the PCI DSS may lead to fines being imposed by Card Schemes, the Merchant shall explicitly undertake, in this respect, the following obligations:
(a) be directly certified to PCI DSS, in accordance with the instructions of Card Schemes, by recognized and providers of information security services and information systems who are approved by the Card Schemes;
(b) (B) renew the above certification at the intervals required and maintain it in force throughout the Term of this Agreement, in accordance with the applicable guidelines of the Card Schemes and the PCI SSC, and taking into account the services provided in the context of this Agreement between epay and the Merchant;
(c) provide epay with any confirmation of the discharge of the above obligations under (A) and (B) upon demand;
(d) be regularly informed by epay, the departments of the Card Schemes and the PCI SSC (https://www.pcisecuritystandards.org/) upon its own initiative, on the relevant procedures.
epay shall bear no liability to the Merchant for the terms and conditions of obtaining and/or renewing this certification.
16. MUTUAL WARRANTIES
16.1 Each party represents, warrants and undertakes to the other party that:
(a) it is a company duly incorporated and having the capacity, legal right and full power and authority to enter into this Agreement and perform its obligations thereunder;
(b) this Agreement is duly executed by its authorised representative(s);
(c) it has obtained and shall maintain all necessary licences, permits, authorisations, approvals and consents necessary in order for it to enter into and perform its obligations under this Agreement in accordance with Regulatory Requirements;
(d) the persons executing this Agreement on its behalf are authorized, pursuant to the law and its constitutional documents, to bind it in relation with all obligations it undertakes hereunder, and that it recognizes as valid, effective and binding all transactions to be performed by its representatives within the terms and conditions that its competent governing body has set; and
(e) until the Effective Date, there has been no change affecting its legal status or its representation authorities.
17. MERCHANT WARRANTIES
17.1 The Merchant represents, warrants and undertakes to epay that:
(a) it shall deliver to the Customers the Merchant Products/Services sold to them in connection with the Transactions without undue delay and otherwise comply with its terms and conditions of sale or supply, as the case may be, including compliance with any applicable laws and regulations of any foreign country if the goods or services are to be shipped, provided or performed in such foreign country;
(b) it shall comply with all Regulatory Requirements relating to it, its business, the Services and any transactions conducted in connection with the Services; in particular, if Merchant has made available to Customers purchase of the Merchant Products/Services in Instalments, Merchant shall comply with consumer credit laws;
(c) the Merchant Products/Services that are made available to Customers and the sale or supply, as the case may be, shall comply with Regulatory Requirements and shall not infringe upon any third party’s rights and interests, including without any limitation, any Intellectual Property Rights and proprietary rights;
(d) it shall not submit any Transaction that the Merchant knows or should know to be illegal, fraudulent or not authorised by the Customer, or that it knows or should know to be authorised by the Customer colluding with the Merchant for a fraudulent purpose (for the purposes of this Clause 17, the Merchant is responsible for the conduct of its employees, agents and representatives);
(e) it shall not submit Transactions or otherwise receive funds in connection with any illegal, fraudulent, deceptive or manipulative act or practice and shall not send or receive funds to or from an illegal source; and
(f) it has a permanent establishment and/or business registration in the country referenced as its address in this Agreement which is where the Services are provided and that it is subject to taxation and therefore subject to filing income tax returns in that country relating to the Transactions made there and submitted to epay; and
(g) it has and shall maintain and comply with at all times during the term of this Agreement any consents, licences or permission that are required (regulatory or otherwise) to provide its goods and/or services to Customers, enter into and perform Transactions and to otherwise conduct its business
(h) it is aware, understands and has fully considered risks of choosing to enable Customers to purchase or lease of Merchant Products/Services in Instalments, specifically that in the event of Card issuer and/or Customer’s default to pay an Instalment or portion thereof, the Merchant may have a claim against Card issuer and/or Customer, but not against Epay.
18.1 The Merchant shall pay to epay the Fees and all other sums payable by the Merchant to epay in accordance with the terms and conditions of this Agreement. Unless otherwise indicated, Fees are quoted in EUR.
18.2 epay will provide statements to the Merchant on a monthly basis. epay will also grant the Merchant access to the merchant portal maintained by epay or on behalf of epay under URL as epay shall notify to the Merchant in writing from time to time.
18.3 Fees are quoted exclusive of value added tax, service tax, business tax and any other taxes. In case value added tax, service tax, business tax or any other sales tax is or becomes chargeable, epay shall be entitled to deduct such tax from any amount(s) payable to the Merchant, provided that epay shall provide information on the net amount, the amount of tax and the tax rate applied by way of statement(s) issued to the Merchant.
18.4 The Merchant shall make all payments under this Agreement without withholding or deduction in respect of any tax unless required by Applicable Law. If any withholding or deduction is required by Applicable Law, the Merchant shall pay epay such additional amount as is required to ensure that epay receives the same total amount that it would have received if no such withholding or deduction had been made.
18.5 Any fee payable by the Merchant and/or any related tax shall be deducted from the Settlement amount(s) payable to the Merchant.
18.6 Where epay is unable to deduct any Fees or other monies payable by the Merchant pursuant to this Agreement from a Settlement Payment:
(a) epay will collect such amounts directly from the Merchant’s bank account under a direct debit mandate established in accordance with Clause 3.3 where such direct debit has been required to be established as a Condition Precedent, or on the basis of any other payment instructions accepted by Piraeus Bank; and
(b) if epay is not able to collect such amounts directly from the Merchant’s bank account for any reason , the Merchant shall pay to epay such amounts on demand.
Any amounts collected by way of direct debit, or otherwise, under this Clause 18.6 shall be reflected in the statements that Epay provides to the Merchant.
18.7 In case of overdue payments, epay reserves the right to claim interest on the outstanding amount, at its discretion, at a rate of 1.5% per month or the maximum rate allowed by law, whichever is less.
18.8 The Fees are subject to change in accordance with Clause 19.
19. CHANGE OF TERMS AND CONDITIONS
19.1 This Agreement is subject to change from time to time.
19.2 Subject to Clause 19.3, changes may be made by notice from epay to the Merchant under the following procedure:
(a) epay shall give the Merchant notice of any proposed change to this Agreement (each, a “Change Notice“);
(b) a Change Notice may be given by letter to the current or last known trading address of the Merchant or the Merchant’s registered office or by email to any of the email addresses provided in the Merchant Application Form and/or any of the email addresses the Merchant has registered with epay; and
(c) any proposed change shall come into effect automatically on the first Business Day of the month being no less than:
(i) if the Merchant is not a Micro-enterprise, fourteen (14) days after the date of the Change Notice; or
(ii) if the Merchant is a Micro-enterprise, two (2) months after the date of the Change Notice
(d) for Merchants that are Micro-enterprises, if the such Merchant objects to a Change Notice and notifies this to epay before the date of the proposed change set out in Clause 18.2(c)(ii) above, the Merchant will be deemed to have given notice of termination of this Agreement, with such termination to take effect on the on the expiry of a period of notice as set out in Clause 12 or day on which the proposed change becomes effective, whichever is earlier.
19.3 Amendments to this Agreement due to changes in a Card or Payment Scheme’s fees, interchange rates, assessments, Rules, gift card systems or any Regulatory Requirements or judicial decision shall become effective at such time that Epay may specify.
19.4 epay may amend the Operating Guide by giving written notice thereof at least fourteen (14) calendar days prior to the effective date specified in the notice, provided that an earlier effective date may be chosen if the Merchant consents thereto or if the change is made necessary by a change in any Regulatory Requirements, rule or regulation, or in the interpretation thereof, by any Regulator or Card or Payment Scheme.
19.5 Notwithstanding the provisions of this Clause 19, epay may:
(a) vary any currency exchange rate which is applied to payments (if any) made pursuant to this Agreement where such variation is due to a change in the reference rate or is more favourable to the Merchant; and/or
(b) vary the terms and conditions herein to the extent that this is required by Regulatory Requirements,
without notice and with immediate effect.
20. INTELLECTUAL PROPERTY RIGHTS
20.1 Except as expressly provided, nothing in this Agreement shall transfer, assign, license or otherwise grant either party any right, title or interest in or to the other party’s or its Affiliates’ Intellectual Property Rights.
20.2 The Merchant shall not use the epay Branding or mention epay’s name in any public communication without epay’s prior written consent in each case.
20.3 The Merchant hereby grants epay a limited, non-revocable, worldwide, no royalty license to use the Merchant’s name, trademark(s) and logo(s) for marketing purposes, in epay’s website(s), social media accounts, and other marketing communications, during the term of the Agreement.
21. MERCHANT LIABILITY
21.1 The Merchant shall be responsible for all Merchant Losses and Liabilities including those arising out of the operation by the Merchant of its business (including credit risk, fraud risk, Chargeback risk and the processing of Transactions and related amounts), unless and solely to the extent that such losses and Liabilities are sustained as a direct result of the failure by epay to perform its obligations under this Agreement and the Merchant notifies epay of its failure within 30 days of becoming aware of its occurrence. Accordingly, the Merchant shall upon written demand indemnify, defend, protect and hold harmless epay and its Affiliates from and against:
(a) all Merchant Losses incurred or suffered by epay;
(b) all Liabilities arising as a result of or in connection with any amounts due to epay under this Agreement; and/or
(c) negligence, fraud, dishonesty or wilful misconduct by the Merchant or any Affiliate of the Merchant, or by any of the officers, directors, employees, agents, representatives, customers of the Merchant or any Affiliate of the Merchant.
21.2 In addition to Clause 21.1, the Merchant shall upon written demand indemnify, defend, protect and hold harmless Epay and its Affiliates from and against costs, expenses or losses arising as a result of or in connection with any third party claim(s) arising out of or in connection with:
(a) a breach by the Merchant of the terms of this Agreement; or
(b) any claim made or threatened by a third party (including any Customer) relating to any Merchant Product/Service and/or Instalments.
21.3 For the avoidance of doubt, neither party shall be obliged to indemnify the other party in respect of any losses or Liabilities it has incurred, to the extent that its losses or Liabilities are caused by, arise out of, or relate to:
(a) a breach of contract by the other party; or
(b) fraud or wilful misconduct of the other party.
21.4 The Merchant is responsible for issuing and maintaining, for a period of fifteen (15) months, the tax information and other supporting documents relating to each Transaction. The Merchant undertakes to make available to epay, at any time and immediately for review, the supporting documents, corporate books or other information relating to electronic payments at the request of any competent Regulator.
22. EPAY LIABILITY
22.1 epay shall not be liable to the Merchant:
(a) in case of an act or default of a third party;
(b) to the extent that the Merchant’s breach of this Agreement or other act or default has contributed to the loss claimed by the Merchant;
(c) for any failure to perform epay’s obligations under this Agreement where performance of that obligation would have put epay in breach of Regulatory Requirements;
(d) for any failure to perform its obligations under this Agreement due to an event beyond epay’s reasonable control or unforeseen circumstances, including power outages, theft, equipment breakdowns, hacking attacks, internal mechanical or systems failures, war, civil disturbance, acts of God, flood and fire, but excluding strikes or other industrial action by employees of the epay or its suppliers and subcontractors;
(e) for any damage suffered by the Merchant in the event of interference or attempted interference with its systems, or in the event of non-operation of its systems, for reasons other than gross negligence or wilful misconduct of epay;
(f) in any circumstances for:
(i) loss of business, loss of goodwill, loss of opportunity, loss of profit or any other form of consequential or indirect losses; or
(ii) any loss to the Merchant that epay could not reasonably have anticipated when the Merchant first submitted a Transaction or series of Transactions for authorisation, settlement or processing or gave epay an instruction under this Agreement.
22.2 The aggregate liability of epay, in contract, tort (including negligence or breach of statutory duty), negligence or otherwise arising out of or in connection with the Services and/or this Agreement shall not in any Contract Year exceed the lower of:
(a) the total amount of Fees paid or payable to epay by the Merchant in respect of the Service in the previous Contract Year (save that where the claim arises during first Contract Year following the Effective Date, such amount shall be set at the total amount of Fees which have actually been paid in connection with the Services in such period pro-rated to a 12 month period); and
(b) €10,000 (ten thousand Euros).
22.3 Nothing in this Agreement will exclude or limit any Liability epay has as a result of acting fraudulently or negligently or any legal duty or Liability it may have to the Merchant or any Liability that epay is not allowed by law to exclude.
22.4 The parties agree that the limitations and exclusions of liability in this Agreement are reasonable and proportionate, after due consideration of the fee levels and other compensation for the services provided hereunder and having regard to the risks associated with merchant acquiring activities in particular, as well as the ability to insure against and otherwise mitigate such risks.
22.5 epay shall exclusively bear the risk of non-payment of charges made by Cardholders, and shall remain obligated to pay the Merchant the amount of the Transactions, under the terms of Clause 7 herein. For avoidance of doubt, epay shall not bear the risk of non-payment of charges made by Cardholders in connection to Instalments, nor be liable to the Merchant in case of a default of any third party, including a Card issuer and/or Cardholder, in connection to Instalments.
22.6 epay shall not be liable to the Merchant or to any third party for the accuracy of any payment information sent by the Merchant to epay hereunder.
22.7 epay shall be entitled to rely on statements, explicit or implicit, data and information provided by the Merchant and its representatives under this Agreement and is not obliged to check nor is liable to the Merchant or any third party for any errors or inaccuracies in the data transmitted electronically or for any lack of legal capacity of the parties or for fraud against the Merchant by persons outside epay’s Affiliates and/or agents.
23.1 During the term of this Agreement and thereafter, each party shall use and reproduce the other party’s Confidential Information only for purposes of this Agreement and only to the extent necessary for such purpose and shall make disclosure of the other party’s Confidential Information only to its employees, consultants or independent contractors with a need to know and shall not otherwise disclose the other party’s Confidential Information to any third party without the prior written approval of the other party.
23.2 The party using, reproducing and/or disclosing any Confidential Information of the other party will be referred to in this Clause 23 as the “Disclosing Party“.
23.3 Notwithstanding Clause 23.1, it shall not be a breach of this Agreement for either party to disclose Confidential Information of the other party if required to do so under law or in a judicial or governmental investigation or proceeding or as may be necessary to discharge Regulatory Requirements.
23.4 The confidentiality obligations shall not apply to information that:
(a) is or becomes public knowledge through no action or fault of the Disclosing Party;
(b) is known to the Disclosing Party without restriction, prior to receipt from the other party under this Agreement, from its own independent sources as evidenced by such party’s written records, and which was not acquired, directly or indirectly, from the other party;
(c) either party receives from any third party reasonably known by such receiving party to have a legal right to transmit such information, and not under any obligation to keep such information confidential; or
(d) information independently developed by the Disclosing Party’s employees or agents provided that the Disclosing Party can show that those same employees or agents had no access to the Confidential Information received hereunder.
23.5 The Merchant shall not disclose to any third party any Customer account information obtained by reason of a Transaction, except to:
(b) any Affiliate of, or provider of services to, epay; or
(c) any Third Party Vendors on the condition that they will keep such Customer information confidential and will comply with all applicable Regulatory Requirements in relation to such Customer information.
23.6 To prevent any unauthorised disclosure to third parties, the Merchant shall (and shall procure that any person to whom the Merchant transfers such data shall) destroy or delete all material containing the Customer’s account information and other Customer data when such transaction data is no longer needed by the Merchant or such other person, or as otherwise may be required by Regulatory Requirements or this Agreement.
23.7 The Merchant shall take any and all actions required to ensure Customer data is not disclosed, other than in accordance with this Agreement, or otherwise misused in any manner.
23.8 The Merchant authorises epay to disclose the Merchant’s and Merchant’s Affiliates’ name, address and any other information:
(a) to the Card or Payment Schemes as reasonably required for epay to exercise its rights and comply with its obligations under this Agreement, the relevant Rules and Regulatory Requirements;
(b) to any epay Affiliate; and
(c) to any third party which otherwise has a reason to know such information for the purpose of performing any obligation hereunder.
23.9 The Merchant acknowledges and deems as reasonable epay’s right to request, at its discretion, the necessary commercial or banking information concerning the Merchant and to inspect the Merchant’s books and records regarding Transactions made with Cards. These rights shall not be exercised in an abusive or oppressive manner.
24. DATA PROTECTION
24.1 For the purpose of this clause 24, the terms “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach” and “Process/Processing/Processed” have the same meaning as described in the GDPR and shall be construed accordingly.
24.2 Each party will at all times during the term of the relationship undertake all necessary steps to ensure that it operates within the requirements of the Data Protection Laws.
24.3 The Merchant shall ensure that all of its Third Party Vendors shall comply with the Merchant’s obligations under this clause 24, and the Merchant shall remain liable for all actions and omissions of Third Party Vendors as if they were the Merchant’s.
24.4 Each party, either through the provision of Services and/or discharging of their respective obligations under this Agreement, may Process Personal Data of the other Party and/or their respective employees or members of staff or the Merchant’s Representative(s) or in the case of the Merchant Personal Data of Customers. In such cases each party warrants that any such Personal Data will only be Processed in order to provide the Services and/or discharge the obligations as provided in this Agreement.
24.5 Merchant acknowledges and agrees that it shall be fully liable for all actions or omissions of any third-party Processor to whom it transfers Personal Data (including, but not limited to, Merchant’s Affiliates and/or any Merchant Representative(s)).
24.6 Any breach by the Merchant of this clause 24 and/or the Data Protection Laws shall be deemed a material breach of this Agreement.
epay hereby informs the Merchant and the Merchant acknowledges that, for the purpose of the protection of the credibility and resolution of transactions, the limitation of fraud in payment instruments and the reinforcement of safe card use, the private limited company ‘’Tiresias – SA Banking and IT Systems’’ with its registered seat at 2, Alamanas Street, 151 25, Marousi, maintains an Enterprise Registry in which enterprise data (VAT number, ID card numbers for sole proprietors, corporate name, trade name, registered seat address, phone number, agreement conclusion date, grounds and date of termination, note of use of POS terminals by the enterprise) of different enterprises are submitted, whose agreements have been terminated for one of the following reasons:
(a) acceptance of credit or debit cards , which have previously been reported as lost or stolen;
(b) acceptance of cards not issued by a credit institution or an issuing and/or card management company (hereinafter referred to as ‘’Institutions’’) or by a similar foreign Institution (e.g. counterfeit cards);
(c) performance of or input of data for actual or fictitious transactions without authorization by the cardholder;
(d) the merchant facilitated or caused the theft or disclosure of any Card or transaction information;
(e) legalization of income from illegal activities (Money laundering);
(f) the merchant is bankrupt, under liquidation or compulsory administration, or it is not operating for any reason or it is dissolved;
(g) falsification of the amount of the transactions on transaction receipts;
(h) self-financing by creating fictitious transactions;
(i) breaking a transaction into several individual transactions;
(j) inaccurate card applications sent by the merchant to the Institution in the context of their cooperation;
(k) inaccurate application for cooperation between the merchant and the Institution;
(l) performance of transactions, invoking a fictitious approval;
(m) unreasonably high number of chargebacks/disputed transactions;
(n) breach of the cooperation agreement for card acceptance between the merchant and the Institution, for reasons not otherwise included above.
The Enterprise Registry also includes, under the same terms, data (last name, first name, father’s name, VAT number, ID card number, full address, work and home telephone numbers) of the merchant’s Legal Representatives at the time of the termination of the agreement as per the above (up to four). Among the information and data included in the Enterprise Registry are the following: a) naked bad checks (sealed}, b) unpaid (on expiry) bills of exchange and promissory notes, c) bankruptcy petitions – court orders rejecting bankruptcy petitions due to insufficient assets of the debtor, d) petitions and court orders for conciliation/resolution (Article 99 et seq. Of Bankruptcy Code), e) declared bankruptcies, f) payment orders and orders for surrender of leasehold, g) foreclosures of real estate and movable property, h) mortgages, conversions of mortgage prenotations to mortgages, and prenotations of mortgage, i) complaints of contracts of all kinds of loans and credits to natural persons and undertakings, orders for payment, auction schedules (Movable and immovable property}, seizures of real estate and checks to be paid under Law p.d. 17.7/NO 13.08.1923, j) petitions and court orders for the judicial trustees of mortgages, administrative sanctions against tax offenders, conciliation/resolution applications and decisions, bankruptcy applications, declared bankruptcies and decisions rejecting bankruptcy applications on the grounds of the debtor’s lack of sufficient property; applications and decisions for the settlement of debts under Law 3869/2010, and k) company data from the Government Gazette (FEK) and the General Commercial Registry (GEMI).
The time of retention of the data accessed through the Enterprise Registry is five (5) years from the date of the transaction in connection with which they were accessed. The recipient of the Enterprise Registry data is epay. The data is made available to epay for its own use, are not resold, are not further transmitted and is not kept for longer than the aforementioned time.
Every data subject shall retain the right to access, rectify, erase or restrict processing, object to or complain before the Hellenic Data Protection Authority (HDPA) regarding the use or processing of his or her data as stipulated herein. Any complaint must be made in writing (including by email) addressed either to Tiresias or to epay, acting as Tiresias’ agent for such purpose. Detailed information about the sources of the data contained in the above files, their recipients, the time to keep the data entered by archive or as a whole, and how you exercise your rights is provided available to you through the Tiresias website at http://www.tiresias.gr.
epay informs the Merchant that it has a legitimate interest in accessing the above records and data, and processing the Merchant’s data contained therein, as processing is necessary for the performance of a contract to which the Merchant, as the data subject, is party or in order to take steps at the request of the Merchant, as the data subject, prior to entering into such contract, pursuant to Article 6.1.b of the GDPR.
25.1 The Merchant authorises epay to make, at any time during the term of this Agreement, any credit inquiries which, in epay’s opinion, may be necessary or prudent.
25.2 If requested to do so by epay, the Merchant shall provide the written consent of any person for which an inquiry has been or is to be made if such person has not executed this Agreement and will provide any financial statements, income tax and business tax returns and other financial information as epay may consider necessary to perform initial or periodic reviews of its financial stability and business practices.
25.3 The Merchant shall allow representatives of epay, or those of a Regulator, during normal business hours or, in the case of emergency, at any other time, to inspect, audit and make copies of the Merchant’s books, accounts, records and files pertaining to any Services, including any Transactions, acquired or processed by epay or epay’s Affiliate. The Merchant shall provide all reasonable access, co-operation and information in connection with any such inspection and/or audit, as may be required for the purposes of complying with epay’s regulatory obligations. The Merchant shall further procure authority from any Third Party Vendor for epay to perform a similar inspection and/or audit of such Third Party Vendor.
26. THIRD PARTY VENDORS
26.1 The Merchant shall not use any Value Added Services of any Third Party Vendor without the prior written consent of epay. If such consent has been given, the Merchant shall:
(a) procure that such Value Added Services and the Third Party Vendor are fully compliant with all Regulatory Requirements;
(b) ensure, where the Third Party Vendor provides Customer data processing, storing, and/or transmitting services (or any combination of these to the Merchant), that any such Third Party Vendor is registered with each of the Card Schemes and listed on such Card Schemes’ website; and
(c) be bound by the acts and omissions of the Third Party Vendor.
For purposes of this Clause, use by the Merchant of Value Added Services of Piraeus Bank is deemed as approved by epay, unless the Merchant has been notified to the contrary by epay.
26.2 The Merchant shall provide, maintain and pay for all power and telecommunication connections necessary to operate any Third Party Terminal, including payment for all related charges incurred by the Merchant in gaining access to and using the Services.
26.3 If the Merchant uses Value Added Services for the purpose of data capture and/or authorisation or otherwise with respect to Third Party Terminals, the Merchant agrees that:
(a) the Third Party Vendor providing such Value Added Services will be the Merchant’s agent in the delivery of Transactions to epay; and
(b) assume full responsibility and liability for any failure of that Third Party Vendor to comply with the Laws, the Card Scheme Rules and the Agreement.
26.4 epay shall not be responsible for any losses or expenses incurred by the Merchant or any third party as a result of any error by a Third Party Vendor, or of any failure by the Merchant to operate the Third Terminal in accordance with any applicable operating instructions or by any malfunction in a Third Party Terminal.
27. NOTIFICATION OF MATERIAL CHANGES TO MERCHANT
27.1 The Merchant shall provide epay with no less than thirty (30) calendar days’ advance written notice of:
(a) any transfer, sale or liquidation of all or substantially all of its consolidated assets;
(b) any change in the basic nature of its business, including selling different products or services not related to its current business;
(c) any change in ownership or transfer of control of its business, in which case the assignee or successor shall also notify epay, and both the Merchant and the assignee or successor shall be jointly and severally liable to epay under this Agreement;
(d) any change in its corporate identity and/or organization, including any change of seat or representation;
(e) forming any joint venture, partnership or similar business arrangement whereby any person or entity not a party to this Agreement assumes any substantial interest in its business; or
(f) any change in its business operations that will likely cause account activity to materially exceed its historical monthly volume,
each a “Merchant Material Change”.
27.2 The Merchant shall notify Epay in writing:
(a) immediately in the event of any bankruptcy, receivership, insolvency, levy or similar action initiated by or against it or any of its principals;
(b) of any material change to its financial condition or the information contained in its Merchant Application Form (within three calendar days of such occurrence);
(c) if it becomes aware or reasonably suspects that the conduct of its business contravenes any applicable Regulatory Requirements; and
(d) immediately if it is threatened with or becomes party to any action, suit or proceeding at law or in equity that could substantially impair its right to carry on its business or materially adversely affect its financial condition or operations.
28.1 If the Merchant is a Micro-enterprise, the Merchant may terminate this Agreement in accordance with Clause 18.2(d) of this Agreement or on provision of one month’s notice to epay.
28.2 Without affecting any other right or remedy available to it, epay may terminate this Agreement with immediate effect by giving written notice to the Merchant:
(a) if the Merchant files a petition for bankruptcy, becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or a receiver is appointed for the Merchant or its business or any of its assets, or the Merchant goes into liquidation either voluntarily (otherwise than for solvent reconstruction or amalgamation) or compulsorily; or there is any equivalent event in any jurisdiction where the Merchant has an office, branch or assets; or the Merchant’s financial position gives Epay (in its sole discretion) sufficient grounds to fear for the continuity of the Merchant’s business;
(b) upon the occurrence of a breach of this Agreement by the Merchant and if such breach is remediable, it is not remedied within five (5) Business Days after written notice is received by the Merchant identifying the matter or circumstances constituting the breach;
(c) notwithstanding Clause 28.2(b), if, in the reasonable opinion of Epay, the Merchant breaches this Agreement in an important way or the Merchant or any of its employees commits fraud; and
(d) notwithstanding Clause 28.2(b), if the Merchant repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify, in the opinion of Epay, that taken together, such repeated breaches are either:
(i) material, or
(ii) are inconsistent with the Merchant’s intention to give effect to the terms of this Agreement;
(e) upon the occurrence of a Merchant Material Change (as defined in Clause 27.1(f)) to the extent that the change, in epay’s reasonable opinion, means that it is no longer feasible to continue with this Agreement;
(f) if the Merchant fails to comply with any Regulatory Requirements;
(g) if the Merchant acquires, is acquired by or merges with a business that accepts Prohibited Transactions;
(h) if there is a change in Regulatory Requirements that prohibits epay from accepting Transactions from the Merchant;
(i) if, as a result of a risk or policy review undertaken by epay, it is no longer feasible to accept Transactions from the Merchant;
(j) if epay is, for any reason, unable to offer the payment methods sought by the Merchant at any time;
(k) if the Merchant or any of the Merchant’s Affiliates (as applicable) appears on any Card or Payment Scheme’s security reporting;
(l) if necessary to comply with Regulatory Requirements or if epay has been so directed by a governmental or regulatory authority of competent jurisdiction;
(m) if the Merchant or any of the Merchant’s Affiliates uses any of the Card or Payment Scheme or epay marks other than in strict accordance with the Operating Guide and the terms of this Agreement, or the relevant Jurisdiction Specific Terms and Conditions (as applicable), or the Merchant’s (or the relevant Merchant’s Affiliate’s) agreement with a Card or Payment Scheme, where that breach is not cured by the Merchant or the Merchant’s Affiliate (as applicable) within 30 calendar days following receipt of written notice of such breach; or
(n) if the Chargeback Ratio exceeds 0,5% of transactions by volume, or 0,5% of the aggregate amounts and the Merchant has failed to bring the Chargeback Ratio below this level within 2 months following receipt of written notice of the excess.
29. CONSEQUENCES OF TERMINATION
29.1 Termination of this Agreement, however it arises, shall not affect any actual or contingent liabilities or claims of either party which accrue before this Agreement terminates. Any clauses or other provisions of this Agreement which are intended, either expressly or by implication, to continue post termination shall continue in effect following termination, including, without limit the provisions of Clauses 16, 17, 20, 21, 22, 23, 24, 25, 29, 30, 31, 32, 35, 37, 38, and Schedule 3.
29.2 The Merchant acknowledges and agrees that any annual Fees paid pursuant to this Agreement are non-refundable and any termination pursuant to Clause 27 shall not entitle it to any refund of any annual Fees paid, in whole or in part.
29.3 Without prejudice to Clause 29.1, the Merchant shall continue to be responsible for all Merchant Losses resulting from Transactions processed under this Agreement prior to its date of termination, for all other amounts which are due or become due after termination of this Agreement and any breaches of any rules of a Card or Payment Scheme and/or Regulatory Requirements which are notified to epay at any time after this Agreement has ended.
29.4 On termination of this Agreement, the Merchant shall:
(a) promptly return to epay any equipment and materials supplied by epay. In case of failure, epay will charge the replacement value of the non-returned equipment and materials;
(b) cease to use all and any Confidential Information made available to it pursuant to or in connection with this Agreement and shall return the same to epay (or at epay’s option, destroy or erase the same);
(c) immediately pay all outstanding amounts and unpaid amounts due and owing to Epay; and
(d) immediately cease using the name of epay and any epay Branding which have been directly or indirectly provided or made available to the Merchant and/or any Card or Payment Scheme brands the use of which has resulted from operation of this Agreement.
29.5 All promotional materials, advertising displays, emblems, charge forms, credit vouchers and other materials of any nature whatsoever supplied by epay to Merchant, if any, will (as between epay and the Merchant) remain the property of epay and will be immediately returned to epay upon termination of this Agreement. The Merchant shall be liable for, and shall upon written demand indemnify epay against, any and all losses, costs and expenses suffered or incurred by epay arising out of the failure to return (or destroy if so requested by epay) any such materials following termination.
30.1 The Merchant may not assign any of its rights under this Agreement to a third party without the prior written consent of epay.
30.2 The Merchant may not sub-contract or out-source the performance of any of its obligations under this Agreement without the prior written consent of epay.
30.3 epay may transfer or assign its rights and/or obligations under this Agreement in whole or in part to any of its Affiliates at any time or any third party (a “transferee“) without the Merchant’s consent and shall give written notification to the Merchant of any such assignment.
30.4 epay will only assign or transfer or assign its rights and/or obligations under this Agreement if, in its reasonable opinion:
(a) the transferee to whom it makes the transfer is capable of performing epay’s obligations under this Agreement; and
(b) the way in which the Merchant is treated under this Agreement will not be affected adversely in an important way by, or following, that transfer.
30.5 epay may share information about the Merchant with a prospective transferee or person providing funding (to epay or to the prospective transferee), regardless of whether epay actually assigns or transfers all or epay’s rights and/or obligations to such transferee or the funding is actually provided.
30.6 Where epay assigns or transfers (including by declaration of trust) all or any part of epay’s rights and/or obligations under this Agreement to a transferee, references in this Agreement to epay shall become references to that transferee, with effect from such assignment or transfer.
31. RELATIONSHIP OF THE PARTIES AND DISPUTE RESOLUTION
31.1 The Merchant and epay are independent contractors under this Agreement, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between them. Neither party has authority to enter into agreements of any kind on behalf of the other.
31.2 The parties may each appoint representatives (“Relationship Managers“) and, if Relationship Managers have been appointed, each party shall notify the identity of their Relationship Managers to the other in accordance with Clause 33 within 10 days of executing this Agreement or appointment, whichever occurs later.
31.3 If Relationship Managers have been appointed, the Relationship Managers shall meet (in person or by conference call) at least annually to review the relationship between the parties.
31.4 The parties shall attempt to resolve any dispute in relation to any aspect of, or failure to agree any matter arising in relation to, this Agreement informally through discussion. If Relationship Managers have been appointed, discussion shall be held between the Relationship Managers.
31.5 If, within fifteen (15) Business Days of the Dispute having been referred to the individuals specified in Clause 31.2 or such longer period as the Parties may agree, no agreement has been reached, the Dispute may be referred to and finally resolved by the courts specified in Clause 34.1.
32. NON–SOLICITATION OF EMPLOYEES
The Merchant undertakes that it shall not for the term of this Agreement and a period of six months thereafter on its own behalf or on behalf of any person directly or indirectly canvass, solicit or endeavour to entice away from epay or epay Affiliate any person who has at any time during the term of this Agreement been employed or engaged by epay or Epay Affiliate.
33.1 Any notice to be given under or in connection with this Agreement must be given in writing and delivered either by hand, first class prepaid post or other recognised delivery service, or by facsimile. Notwithstanding the foregoing, epay may give notice to the Merchant by sending an email to any of the email addresses registered with epay.
33.2 Notices shall be sent to the address of the relevant party as set out in this Agreement or as otherwise notified by a party to the other from time to time in accordance with this Agreement. Any notice given in accordance with this Clause 33 shall be deemed to have been received:
(a) if delivered personally, at the time of delivery;
(b) in the case of pre-paid first class post, special or other recorded delivery on the second Business Day after the date of posting; and
(c) in the case of facsimile, on the date it is transmitted.
33.3 Where epay serves notices by email, the provisions of Clause 33.2(c) relating to the service of notices by facsimile shall apply to the service of such notices by email.
33.4 The parties agree to conduct all communication in relation to this Agreement in Greek.
34. GOVERNING LAW AND JURISDICTION
34.1 This Agreement and any legal relationship between the parties arising in connection with it shall be governed by and construed in accordance with Greek law.
34.2 The terms of this Agreement are subject to the exclusive jurisdiction of the courts of Athens, Greece.
Any waiver of a right under this Agreement by either party shall only be effective if agreed or declared in writing. A delay in exercising a right or the non-exercise of a right shall not be deemed a waiver and shall not prevent a party from exercising that right in the future.
36. COSTS AND EXPENSES
Except as expressly provided by the terms and conditions of this Agreement, each party shall be solely responsible for its own costs and expenses of negotiating, preparing and executing this Agreement and for its costs and expenses of performing its obligations under this Agreement.
If any part of this Agreement is found to be invalid, unlawful or unenforceable then such part shall be severed from the remainder of this Agreement, which shall continue to be valid and enforceable to the fullest extent permitted by law.
38. NO IMPLIED TERMS
38.1 epay makes no representations or warranties in connection with the subject matter of this Agreement and hereby excludes all terms, conditions, representations and warranties, express or implied, regarding any matter, including any implied term that the Services are or shall be fit for any purpose, are of satisfactory quality, shall not infringe the Intellectual Property Rights of any Person, shall be free from any error or defect or shall achieve any particular result.
38.2 Without limiting the generality of Clause 38.1, epay makes no representation or warranty and gives no undertaking that the Services will always be available, accessible, uninterrupted, timely, secure, accurate, complete, or error-free. epay further expressly disclaims any liability for unauthorised access to facilities or to the Merchant’s data or programs due to accident, illegal or fraudulent means or devices used by any third party, or other causes beyond epay’s reasonable control.
38.3 The Merchant acknowledges and agrees that information received by it in connection with the Services are for reference purposes only and Epay shall not be responsible for the accuracy or completeness of such information.
39. ENTIRE AGREEMENT
This Agreement including all Schedules and other documents referred to in this Agreement represents the entire agreement of the parties in relation to its subject matter. Each party acknowledges that it has entered into this Agreement in reliance only on the representations, warranties, promises and terms contained in this Agreement and, save as expressly set out in this Agreement, neither party shall have any liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.
Subject to Clause 19, no variation or amendment to this Agreement shall be effective unless recorded in writing and signed by the duly authorised representatives of both parties.
41. COMPLAINTS PROCEDURE
41.1 The Regulator competent to monitor epay’s compliance with Payment Services Laws is General Secretariat for Trade and Consumer Protection of the Ministry of Economy and Development.
41.2 If you have reason to complain about epay, you should contact your Relationship Manager or the customer call centre in the first instance. epay shall make every effort to respond, in writing or, if agreed between you and us, to another fixed means, to your complaint within a reasonable time and no later than fifteen (15) Business Days of receiving the complaint. In exceptional cases, if the response cannot be given within fifteen (15) Business Days, for reasons beyond epay’s control, epay shall send an interim response, clearly stating the reasons for the delay in responding to the complaint and specifying the deadline within which the Merchant will receive the final response, in any case no later than thirty five (35) Business Days of receiving the complaint.
41.3 If we have been unable to reach agreement on an acceptable solution then you may be able to refer the matter to the General Secretariat for Trade and Consumer Protection of the Ministry of Economy and Development (GGEPK) at the following address:
General Secretariat for Trade and Consumer Protection of the Ministry of Economy and Development
Kaningos Square, 101 81 Athens
41.4 Information about epay’s complaints handling procedures is available on request.
MERCHANT ACQUIRING SERVICES
Epay will acquire Visa, MasterCard, and UnionPay international Transactions (for avoidance of doubt, Epay will acquire UnionPay International Transactions Card present Transactions only).
1. MERCHANT’S OBLIGATIONS
1.1. The Merchant shall be required to adapt to any changes or upgrades of epay’s electronic applications by carrying out any work that may be required on its part in order to take advantage of the most up-to-date versions. The Merchant acknowledges that such changes and upgrades are of substantial significance in the context of this Agreement. The Merchant will ensure that all changes or upgrades are concluded in the time specified by epay in its communications. The Merchant acknowledges that if and where important security updates, or the like, are required it is of paramount importance to comply with epay’s specified timeframe. Any failure to comply with the time limits laid down may lead to epay having the temporarily suspend all or part of the applicable Services. epay has the right to suspend all or part of the Services if it deems reasonable in the circumstances. If such failure is not rectified within a reasonable period of time after further written notice from epay to the Merchant, epay shall have the right to terminate all or part of the Agreement accordingly.
2. MERCHANT’S LIABILITY
2.1. The Merchant acknowledges that by being provided with confidential access codes / credentials to epay’s merchant platform as set out on the Operating Guide, it certifies the Merchant’s identity. As such the Merchant is obliged to act and procure its employees, staff and/or directors all act with due care and at all times in accordance with epay’s instructions. The Merchant must and must procure the aforementioned take the necessary security measures to prevent unauthorized third parties from using such codes; keep them secret and not communicate to third parties and also use its best efforts to ensure such are not leaked. The Merchant, as the holder of these codes, shall be solely responsible for and shall bear the risk of any damage to it or to epay through the unauthorized access by a third party and such shall constitute Merchant Losses.
2.2. The Merchant will take all necessary measures to maintain and support its own applications, protect its applications from third party damage and interference, and keep them in good and safe working order to ensure that Card data is transmitted to epay in a timely reliable and secure manner. The Merchant must also ensure that all Card data is held and processed in accordance with all applicable Rules. The Merchant shall inform epay without undue delay of any such damage or malfunction in its computer and telecommunications systems or in the event of a customer leak and shall take all necessary steps to resolve any such problems. The Merchant undertakes to make changes to its hardware and software system in accordance with the applicable specifications notified to it by epay. The Merchant will be liable for any Merchant Losses as set out in this Agreement.
3. EPAY’S LIABILITY.
3.1. Epay shall not be liable for any material or non-material damage to the Merchant in the event of any loss of its personal access codes / credentials to epay’s electronic system, for any reason or in the event that a third party otherwise has unlawfully obtained access to those codes.
3.2. epay has no responsibility for the legal and credit situation of Customers whose Cards are charged at any time with the amounts of electronic payments made as set out herein; nor, therefore, for the possibility or impossibility of completing the payment for reasons related to the payment authorization procedures by the issuing institution. In addition, epay is not obliged to verify the identity of Customers making electronic payments.
3.3. epay shall not be liable if it does not pay to the Merchant any sums corresponding to electronic payments prohibited by applicable Regulatory Requirement and/or Rules.
PART A – CARD PRESENT TRANSACTIONS
The terms of this Schedule 1, Part A shall also specifically apply to Card Present Transactions.
1. MERCHANT’S OBLIGATIONS
1.1. The Merchant confirms that the conduct of its business at its premises complies with all applicable Regulatory Requirements.
1.2. The Merchant shall prominently and unequivocally inform Customers of the identity of the Merchant at all points of interaction.
1.3. In connection with the use of a Card, the Merchant is required to:
a) check the authenticity, and the expiration date of the Card, as well as the Cardholder’s identity;
b) verify the similarity of the Cardholder’s signature on the transaction proof of payment with the Cardholder’s signature on the Card;
c) stay informed of any written or oral announcements issued by epay regarding Cards which, for any reason, should no longer be accepted or used;
d) not proceed to transactions in cases where a Card has expired, the signature or Cardholder identity information differ from the signature or information on the Card, or the Card has been excluded from use, unless epay allows the transaction by sending a special approval to the Merchant via a special code; and
e) for Cards that require PIN input, assist the Cardholder in inputting his/her personal pin number either directly in the POS or in the specialized PINPAD device provided by epay to the Merchant.
Part B – Card Non-Present Transactions (CNP Transactions)
The terms of this Schedule 1, Part B shall also specifically apply to Card Non-Present Transactions.
1. API, AND TOKENIZATION WEB SERVICE, EPAY E–COMMERCE PLATFORM, EPAY BY LINK AND VIRTUAL POS
1.1. If the Merchant has been approved by epay to process CNP Transactions, epay will make available to the Merchant the (i) API and/or (ii) Tokenization Web Service, and/or (epay e-commerce platform, and/or (iii) Virtual POS, and/or (iv) epay by link service (altogether referred to as epay’s electronic applications), depending on which CNP Transactions have been made available to the Merchant. epay will periodically make available maintenance releases of the epay’s electronic applications. The Merchant shall follow the procedure(s) in the Operating Guide to use epay’s electronic applications, including download any updates.
1.2. The Merchant acknowledges that epay’s electronic applications are constantly evolving, are subject to changes and additions and are not dependent on any currently existing technology, and that, in this context, epay is entitled to change, from time to time, the data and parameters of the relevant applications, including, for instance, the method of interconnection of systems, the equipment requirements of the users of each application, the methods and systems of organization of user identity, the use and upgrade of security systems etc.
2. MERCHANT’S OBLIGATIONS
2.1. Merchant shall prominently and unequivocally provide all other information as required by the Rules, in particular the Merchant shall inform the Customers of:
a) the Merchant’s location;
b) the Merchant’s contact details, including telephone number and email address;
d) description of security measures;
e) provide to Customers a complete description of the Merchant Product/Service marketed/sold by the Merchant;
f) return and refund policy;
g) the currency in which a transaction will be made;
h) any export restrictions that will apply to the Merchant Product/Services; and
i) policy on a delivery and shipment of the Merchant Product/Services.
2.2. For CNP Transactions, in order to enable epay to provide the Services, the Merchant shall:
a) establish and at all times maintain the connection with epay’s technical infrastructure, in particular epay’s electronic applications, through API, web services and/or any other interface made available by epay to the Merchant and as communicated to the Merchant from time to time; and
b) effect CNP Transactions through epay’s electronic applications dedicated to particular types of CNP Transactions.
2.3. In connection with the use of a Card, the Merchant is required to:
a) obtain last name, first name, residential address of the Customer, Card number, Card expiry date and, if applicable, Card Verification Code, as well as any other data as may be required by Card Schemes;
b) stay informed of any written or oral announcements issued by epay regarding Cards which, for any reason, should no longer be accepted or used;
c) not proceed to transactions in cases where, as detailed in this Clause, a Card has expired, Customer provided incorrect Transaction Data or the Card has been excluded from use, unless epay allows the transaction by sending a special approval to the Merchant via a special code;
d) in case of orders by mail or phone (MO/TO Transactions), obtain epay’s approval and write ‘’order by mail’’ or ‘’order by phone’’, as applicable, on the transaction receipt;
e) in case of e-Commerce Transaction, if applicable, generate a Token through Tokenization Web Service;
f) in case of recurring e-Commerce Transactions, obtain and provide to epay all required information about each recurring e-Commerce Transaction in the format and standard required by epay as set out in the Operating Guide; and
g) for Cards that require strong customer authentication, implement and maintain a solution enabling Customers to complete strong customer authentication, including by using the latest 3DS.
2.4. If the Merchant has been approved by epay to process MO/TO Transactions, including through the Merchant’s call centre facility, notwithstanding other provisions of this Agreement, the Merchant represents, warrants and undertakes to epay that:
a) all persons that serve Customers are the Merchant’s authorised representatives;
b) a Card information obtained as required by this Agreement will be provided to epay in an encrypted format and by means of communication as set out in the Operating Guide.
PART C- DYNAMIC CURRENCY CONVERSION
The terms of this Schedule 1, Part C shall apply to Transactions initiated by Cards that are eligible for dynamic currency conversion services.
1.1. Dynamic Currency Conversion (“DCC”) is a financial service in which Cardholders of non-Euro Cards have the option of converting the Transaction amount into their billing currency when making a Transaction at merchant located in Greece (a “DCC Transaction“).
1.2. In case of a DCC Transaction, epay is the DCC provider and is converting the purchase amount into the Cardholders’ billing currency instead of the Card issuing institution (“DCC Services“).
2. DCC SERVICES
2.1. epay have developed a solution where merchants can then offer DCC Services to non-Euro Cardholders at their locations and/or at their e-commerce platforms.
2.2. epay will provide the DCC Services for eligible Cardholders at the POS Terminals and/or on the Merchant’s ecommerce platform in order to cater for all eligible Transactions.
2.3. DCC Transactions initiated by Cardholders will be routed via epay’s payment gateway that is connected to each of the Card of Payment Schemes.
3.1 epay will provide an initial training materials and/or training session to the Merchant’s nominated employees to ensure the general standard of the DCC Services offered comply with the Card or Payment Scheme Rules.
3.2 After epay have provided the training, the Merchant will be responsible for ensuring that its nominated employees train the remaining employees.
3.3 The Merchant hereby commits to inform its employees of the DCC Services and the requirements in order to be in compliance with this Agreement.
3. ELIGIBLE CURRENCIES
3.1. The DCC Services will be available for a specific list of currencies which are supported by each of the Card or Payment Schemes.
4. DCC TRANSACTION REVENUES
4.1. For each DCC Transaction, epay will use the currency exchange rates as provided by epay, the Card or Payment Schemes or other third-party provider of epay and valid for the calendar day when the DCC Transaction takes place.
4.2. The currency exchange rates that will be offered to Cardholders will include a margin set by epay on top of the currency exchange rates of epay or received from the Card or Payment Schemes or other third-party provider of epay.
4.3. The applicable DCC margin will be determined by epay from time to time. epay may from time to time in its absolute discretion amend the DCC margin.
5. SETTLEMENT OF DCC TRANSACTIONS
5.1. Each Business Day, epay shall be responsible for performing the settlement of DCC Transactions with the Card or Payment Schemes as part of the regular daily settlement process.
PART D- MULTICURRENCY
The terms of this Schedule 1, Part D shall apply to CNP Transactions effected in a different currency than EUR.
1.1 Multicurrency is a service in which CNP Transaction is effected, including authorised by the issuing institution, in a non-Euro currency selected by the Merchant in the Merchant Application Form and then converted by epay and settle with the Merchant in EUR (a “Multicurrency Transaction“).
1.2 In case of a Multicurrency Transaction, epay is the provider of an exchange rate and is converting the Transaction amount into the Merchant’s settlement currency (EUR) instead of settling it in the Transaction currency (“Multicurrency Services“).
2. MULTICURRENCY SERVICES
2.1 epay will provide the Multicurrency Services for eligible Merchants on the Merchant’s ecommerce platform.
2.2 Multicurrency Transactions initiated by Cardholders will be routed via epay’s payment gateway that is connected to each of the Card of Payment Schemes and/or Card issuing institution.
3.1 epay will provide an initial training materials and/or training session to the Merchant’s nominated employees to ensure the general standard of the Multicurrency Services offered comply with the Card or Payment Scheme Rules.
3.2 After epay have provided the training, the Merchant will be responsible for ensuring that its nominated employees train the remaining employees.
3.3 The Merchant hereby commits to inform its employees of the Multicurrency Services and the requirements in order to be in compliance with this Agreement.
4. ELIGIBLE CURRENCIES AND CURRENCY EXCHANGED RATE
4.1 The Multicurrency Services will be available for a specific list of currencies indicated by epay and as selected by the Merchant in the Merchant Application Form.
4.2 For each Multicurrency Transaction, epay will use the currency exchange rates as provided by epay, the Card or Payment Schemes or other third-party provider of epay and valid for the calendar day when the Multicurrency Transaction takes place. epay will communicate the currency exchange rates referred to in this Clause on a daily basis by making them available for the Merchant by means of communication notified by eapy from time to time. Changes in the currency exchange rates may be applied immediately and without notice.
5. SETTLEMENT OF MULTICURRENCY TRANSACTIONS
5.1 Each Business Day, epay shall be responsible for performing the settlement of Multicurrency Transactions with the Card or Payment Schemes and/or Card issuing institutions as part of the regular daily settlement process. In particular, Payments shall be made to the Merchant no later than the end of the next Business Day after epay receives amount of a Transaction from the issuing institution and shall be made in EUR to the Merchant Settlement Account.
6. REFUNDS AND CHARGEBACKS
6.1 Subject to Clause 6.2, refunds and Chargebacks will be processed by epay in accordance to the regular process set out in the Agreement.
6.2 For any refunds and Chargebacks epay will use the currency exchange rates referred to in the clause 4.2 valid for the day of a refund and/or Chargeback. If epay notifies the Merchant that the Merchant owes any amount to epay due to any refund or rebate having been processed, the Merchant shall promptly transfer such amount to the bank account specified by epay.
1. The Merchant must complete and sign the Merchant Application Form.
2. As part of the application, the Merchant must provide the following:
(a) details of the level of card turnover;
(b) management accounts for the previous year;
(c) evidence of PCI Compliance Certificate;
(d) the Merchant’s:
(i) business registration details;
(ii) business address;
(iii) contact information;
(iv) contact person; and
(v) relevant banking details (including Business Identifier Codes and International Bank Account Numbers);
(e) the Merchant’s Certificate of Incorporation, Article of Association;
(f) photo ID of Merchant contact person;
(g) latest two years of audited financial statements for the previous year;
(h) processing statements for the previous three months;
(i) evidence of the ultimate beneficial owner,
(j) photos of the retail store of each Merchant where spot payment is offered, and
(k) a SEPA Direct Debit Mandate in favour of epay from the Merchant Settlement Account.
3. As part of the application, the Merchant may be required to provide the following:
(a) evidence of regulatory licences (if any);
(b) copies of guarantees/warranties;
(c) latest two years of audited financial statements for the previous two years;
(d) processing statements for the previous six months;
(e) copies of current marketing material used by the merchant (if applicable);
(f) a copy of guarantees/warranties offered to consumers (if applicable); and
(g) any other information reasonably requested by epay.
4. Following acceptance by epay of the application the Merchant shall:
(a) pay epay the Reserve Amount of EUR specified by epay to the Merchant when epay confirms its acceptance of the Merchant Application Form;
(b) provide and maintain a guarantee for the amount specified by specified by epay to the Merchant when epay confirms its acceptance of the Merchant Application Form, issued by the merchant’s parent company; and
(c) maintain during the term of the Agreement a SEPA Direct Debit Mandate in favour of epay from the Merchant Settlement Account; and
(d) pay Activation Fee;
(e) maintain during the term of the Agreement the Merchant Settlement Account with Piraeus Bank.
Unregulated POS Terminal Hire Terms
1.1 The following terms and conditions in this Schedule 3 are in addition to the terms and conditions set out in the Agreement.
2.1 The Merchant shall hire from Epay, and Epay shall provide to the Merchant, the number of POS Terminals notified as required by the Merchant, together with other equipment necessary for its installation (including a power cable, a telecommunication cable for use with each POS Terminal), together with other facilities necessary to support the system at the merchant location(s) for the POS Terminal Hire Period, and the Merchant shall comply with the requirements set out in the Operating Guide. For avoidance of doubt, Epay is not required to provide to the Merchant paper rolls.
2.2 For the avoidance of doubt, such hire periods apply in relation to each Terminal from the date of its delivery.
2.3 The Merchant shall pay to Epay the POS Terminal Rental Fee in respect of each POS Terminal provided and any additional charges payable under the terms of this Schedule 3 of which the Merchant is notified from time to time.
2.4 For the avoidance of doubt, the fees payable under this schedule (including the POS Terminal Rental Fee, POS Terminal Activation Fee and where applicable the POS Terminal Repair Fee and the POS Terminal Return Fee) shall form part of the Fees and shall be payable in accordance with the provisions of Clause 18 of the Agreement and are in addition to any other fees and charges payable under the Agreement. Such fees shall be due and payable as administrative fees irrespective of whether transactions are being performed using the POS Terminals. The Merchant acknowledges that the amount of such fees is reasonable, fair and actual, as well as proportionate to the value of the services offered by Epay.
3.1 Subject to paragraph 3.2 of this Schedule 3, epay shall install the POS Terminal(s) at each Merchant location.
3.2 The Merchant shall be responsible for providing each POS Terminal with power and telecommunication access and any associated costs and/or expenses for such provision shall be paid by the Merchant. epay will not be under any obligation to install any POS Terminal if such links are not in place.
3.3 Any POS Terminal being installed or awaiting installation on the Merchant premises shall be at the Merchant’s sole risk.
4.1 The Merchant will use the POS Terminal(s) only in the Merchant’s legitimate trading premises, being premises in which the Merchant have previously informed Epay that the POS Terminal(s) are to be installed and in which Epay has installed such POS Terminal(s).
4.2 The Merchant must not use the POS Terminal(s) with any service provider other than epay, and must not sublease the POS Terminal(s) or assign or concede their use to any third party.
4.3 The Merchant shall be solely responsible for the operation and maintenance of all equipment, and at all times operate and maintain the equipment in accordance with the Operating Guide or instructions in existence from time to time together with any instructions issued by Epay from time to time, and pursuant to any approval from Epay (if and when required).
4.4 The Merchant will only use such materials in connection with the POS Terminal(s) as have previously been approved by Epay. Damage to, or malfunction of, the equipment or materials resulting from the use of non-approved equipment and materials will be the Merchant’s responsibility.
4.5 The Merchant will give Epay three (3) months’ notice in writing of any proposed changes to any electrical power supplied or to the telecommunication links in or to the premises where the POS Terminal(s) are located. Epay reserves the right to terminate the Merchant’s hire of such POS Terminal(s) upon three (3) months’ notice if Epay reasonably considers that the aforementioned change or changes will or could affect the operation of the POS Terminal(s).
5.1 Support for each POS Terminal will be provided by epay through its “Merchant Acquiring Call Centre”. Contact details of “Merchant Acquiring Call Centre” are provided in the Operating Guide.
5.2 epay will make available to the Merchant maintenance releases of its software periodically. In the event the devices are unable to update automatically, the Merchant shall follow the procedure(s) in the Operating Guide to download software updates.
5.3 In the event a POS Terminal is inoperable, epay will provide a replacement POS Terminal to the Merchant.
5.4 The Merchant will take reasonable care of each POS Terminal it hires, will keep such POS Terminal in a safe condition and in good working order and will not alter, amend or interfere with it.
5.5 The Merchant will report to epay any damage to any POS Terminal immediately upon becoming aware of such damage.
5.6 In the event of damage, abuse or negligence of any POS Terminal such that epay is required to repair the POS Terminal, the Merchant will pay to epay a POS Terminal Repair Fee in respect of each POS terminal that Epay is required to repair.
5.7 The Merchant will permit epay, epay’s agents, sub-contractors or any other person authorised by epay, to enter the Merchant’s premises (or, if necessary, will obtain permission for epay, epay’s agents, sub-contractors or any other person authorised by epay, to do so) at all reasonable times for the purpose of inspecting, repairing, maintaining or removing the POS Terminals and will give such persons all reasonable assistance.
6. OWNERSHIP OF POS TERMINALS
6.1 The POS Terminal(s) will remain the property of epay. The Merchant shall not sell, charge, encumber, part with possession or otherwise dispose of any POS Terminal(s).
6.2 epay may assign ownership of the POS Terminal(s) without the Merchant’s consent.
7. RETURN OF THE TERMINALS
7.1 If the POS Terminal Hire Period terminates (for whatever reason) then the Merchant will pay to epay upon termination or expiry of the rental period:
(a) all arrears of POS Terminal Rental Fees outstanding for hire of the POS Terminal(s) up to and including the month of termination;
(b) damages for any breach of the terms contained in this Agreement and/or the User Guide and all costs, expenses and fees incurred by epay in recovering possession of the POS Terminals and/or enforcing our rights under this Agreement; and
(c) if the POS Terminals are not recovered by epay within thirty (30) days after termination of the hiring, an amount equal to epay’s reasonable estimate of the market value of the Terminals at the date of termination of the hiring.
7.2 Upon termination or expiry of the POS Terminal(s) hire arrangement hereunder, the Merchant will immediately, and in any event within three (3) Business Days, deliver the POS Terminal(s) along with other equipment provided by epay in accordance with paragraph 2.1 to epay at such place within Greece as epay may reasonably require, in good order repair and condition (fair wear and tear only excepted).
7.3 In the event that the Merchant fails to comply with the requirements of paragraph 7.2 of this Schedule 3, epay shall be entitled to retake possession of the POS Terminal(s) and for that purpose and without notice to enter any premises where the POS Terminal(s) are, or where Epay reasonably believes them to be, without incurring liability to the Merchant or any person claiming through the Merchant, or to setoff an amount equal to the POS Terminal(s) replacement value against any amounts due by epay to the Merchant.
8.1 The Merchant will insure against loss of, or damage to, the POS Terminal(s).
8.2 The Merchant recognizes as valid and binding all entries to be made through the POS Terminals to be installed in its premises and waives its right to dispute any entry and/or to seek compensation for any damage or malfunction due to entries made through such POS Terminals. epay shall bear no liability to the Merchant or any third party in case of incorrect entry of a transaction by the Merchant.
8.3 The Merchant acknowledges that epay is not the manufacturer of, dealer in, or expert in POS Terminals or similar goods. Accordingly, in consideration of epay agreeing, upon the Merchant’s request, to assign to the Merchant and epay jointly all and any rights Epay may then have as purchaser of the POS Terminal(s) or otherwise in respect of the POS Terminal(s) against any dealer or supplier of the POS Terminal(s) and their manufacturer, the Merchant hereby releases and discharges epay from all present and future obligations and liabilities which epay may have to the Merchant, or any person claiming through the Merchant, in respect of:
(a) the quality or condition of the POS Terminal(s); and/or
(b) all losses, costs, expenses (including legal expenses), damages and liabilities whatsoever that may be caused by the POS Terminal(s) while they are on the Merchant’s premises.
8.4 The Merchant shall pay epay on demand an amount equal to:
(a) all actions, proceedings, costs, claims, demands, charges, expenses (including legal expenses), losses and damages, whether arising in tort, contract, for breach of statutory duty or otherwise, which epay may suffer or incur (including the cost of repairing, replacing or removing the POS Terminal(s)) by reason of, or in any way attributable to, the Merchant’s use of the POS Terminal(s); and
(b) all losses, costs, expenses (including legal expenses), damages and liabilities whatsoever that may be caused to or by the POS Terminal(s) while they are on the Merchant’s premises.
9. UNATTENDED POS
9.1 In connection with Unattended POS, the Merchant is required to:
(a) provide electricity, at its expense, to each Unattended POS and to bear any other transaction-specific charge or taxes levied on consumers and collected on electricity bills (e.g. municipal charges, VAT, real property tax, etc.).
(b) exercise general care of the surroundings where the Unattended POS is located, so that the use of the Unattended POS by its authorized employees and by epay’s officers or its authorized associates be as unobstructed as possible and so that access to it not be obstructed by other objects.
(c) ensure that (i) the location – installation site of the Unattended POS is clean and is always kept clean, without any floor slope, away from heat sources (radiators, boilers), gas supplies, water supplies (taps, pipes), (ii) adequate lighting is provided and adequate electrical lines are available for the necessary connections, including alarm connections; (iii) the following is provided: infrastructure and equipment for a wired telephone line and telephone wall jack; power supply; security camera with recorder facing the Unattended POS, with video recording infrastructure with a recording period as deemed appropriate by epay, but of at least 30 days, (iv) antenna infrastructure and equipment for wireless communication over 3G with epay’s systems as an alternative (back up) communication infrastructure in the event of a break in the wired connection is provided; (v) sufficient space is provided around the Unattended POS for the technicians and maintenance staff of the Unattended POS who are responsible for the task of regular preventive and/or emergency corrective maintenance and support of the Unattended POS for maintenance or repair; (vi) the location and installation site of the Unattended POS is designated, sufficiently isolated, without adjacent doors or windows allowing intrusion of unauthorized persons or animals; (vii) adequate ventilation and air conditioning is provided at the location and installation site of the Unattended POS; (viii) the location and installation site of the Unattended POS is not visible to unauthorized third parties (e.g. customers) and is secured in a special cabinet or construction of metallic or other durable material; (ix) the location and installation site of Unattended POS shall be located in a room or other enclosed space with a security door and lock, for limited access, (x) the location and installation site of the Unattended POS shall be equipped with a generator and a UPS system in the event of power failure or voltage fluctuations.
(d) accept the on-site examination and fitness check of the location and installation site of the Unattended POS by epay, with the presence of its designated partners, if appropriate, for the complete and safe service to the Merchant.
(e) immediately find another site with appropriate infrastructure, if the agreed location and installation site of the Unattended POS does not have the appropriate infrastructure as described above.
It is expressly agreed that, from and after the installation of any Unattended POS, epay will not be liable for (a) malfunction or destruction of the Unattended POS through repair, maintenance operations, conversion or other type of intervention by persons not authorized by epay or its affiliates; (b) malfunction or destruction of the Unattended POS by force majeure (indicatively, but not limited to, fire, lightning, flood, etc.); (c) malfunction or destruction of the Unattended POS from being moved by an unauthorized person inside or outside its location and installation site; (d) theft or vandalism of the Unattended POS. /