Black42Pay Merchant Terms and Conditions
Registering with Black42Pay the Merchant must accept Terms and Conditions. This Agreement is a legal contract between the Merchant and the Black42Pay Limited which shall be considered "parties" or "a party" in this Agreement.
The Agreement shall be deemed concluded since the moment of signing it by the parties to this Agreement or if the Agreement specifies another date of signing.
The Agreement shall be deemed in full force until one of the party or both parties together terminate this Agreement by giving notice to the other party.
1. Definitions to Agreement
1.1. As used in this Agreement, the following terms shall have the following meanings:
Agreement means the Agreement between BLACK42PAY and the Merchant that can be edited from time to time and includes the cover pages and any schedules;
BLACK42PAY Services means any services provided by BLACK42PAY under this Agreement, including the E-Wallet Payment Service, the Gateway Service, and any other service agreed between the parties;
BLACK42PAY Website means the website of the BLACK42PAY for the provision of services, currently accessible at https://www.Black42Pay.com, excluding any external websites to which the website points by way of hyperlink or otherwise;
Merchant Website means the website of the Merchant;
Merchant Account means the Merchant's registered account held with BLACK42PAY in accordance with BLACK42PAY's general Terms of Service;
Payment Method means any card payment systems (VISA, MasterCard, or others, national or local systems), bank payments (direct banking systems, direct debit systems, or bank transfer systems) or electronic payment systems (electronic money, phone payments.);
E-Wallet means BLACK42PAY's e-wallet payment service, using which a BLACK42PAY account holder can send funds to other client or recipient specifying an email address as the recipient's identifier (regardless of whether this is performed through the BLACK42PAY Website or a payments gateway integrated into the Merchant Website or otherwise);
Wallet means a separate BLACK42PAY sub-account used to sort payment activity of a single business or to conduct several businesses under one BLACK42PAY account. Each BLACK42PAY wallet includes multiple currencies.
Business Day means the other day than a Saturday or a Sunday or a public or bank holiday;
Gateway Service means any BLACK42PAY service using a payment gateway integrated into (but not necessarily hosted on) the Merchant Website for receiving payment instructions from a customer;
Manual means any of the technical manuals applicable to the BLACK42PAY Services and published on the BLACK42PAY Website, or, in case of a merchant integration through a third-party service provider, any third-party integration instructions or manuals;
Confidential Information means the information which is considers "Confidential" or should be reasonably expected to be confidential having regard to the context of disclosure or the nature of the information; 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 shall be deemed confidential;
Regulatory Requirements means any law, statute, regulation, order, judgment, decision, recommendation, rule, policy, or guideline passed or issued by parliament, government, or any competent court or authority or any payment system (including but not limited to bank payment systems, card payment systems such as Visa, MasterCard, or any other payment, clearing, or settlement system or similar arrangement that is being used for providing the services hereunder);
Reserve means such amount or percentage of the balance of the Merchant Account as determined by BLACK42PAY for the purpose of securing claims by BLACK42PAY against the Merchant.
1.2. 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.
1.3. The phrases introduced by the term "included", "including", "in particular" or any other similar expression shell be deemed as illustrative only and will not limit the sense of the words preceding that term.
1.4. BLACK42PAY's general account terms of service (the Terms of Service), available on the BLACK42PAY Website, shall form a binding part of this Agreement. If (but only to the extent that) any provision of these Standard Merchant Terms and Conditions conflicts with any provision of the Terms of Service, the former shall prevail.
2. Terms and Provision of Services
2.1. BLACK42PAY's E-Wallet Payment Service and Gateway Service help to execute payments from a customer to the Merchant. Any payment moneys sent by customers and received by BLACK42PAY shall be transferred into the Merchant Account immediately after deduction of any fees due to BLACK42PAY.
2.2. The Merchant is aware that the receipt of a payment into the Merchant Account does not amount to the receipt of cleared funds.
The Merchant remains liable to BLACK42PAY for the full amount of the payment and any fees deducted therefrom (the "Reversal Amount") if the payment is later reversed for any reason. In case of such a payment reversal, BLACK42PAY will first debit the Merchant Account with the Reversal Amount and any applicable third-party chargeback or reversal fee. If BLACK42PAY is unable to fully recover the Reversal Amount and the applicable third-party chargeback or reversal fee from the Merchant Account (including any moneys transferred into it after the payment reversal), it reserves the right to invoice the Merchant for the unrecovered balance.
2.3. BLACK42PAY reserves the right to suspend, at any time and at its sole discretion, the Merchant Account (or certain functionalities thereof such as uploading, receiving, sending, and/or withdrawing funds) if transactions are made which BLACK42PAY in its sole discretion deems to be (I) made in breach of this Agreement or (II) are suspicious with regard to money laundering, terrorism financing, fraud, or other illegal activities. BLACK42PAY will make reasonable efforts to inform the Merchant of any measure unless BLACK42PAY is prohibited from doing so by law or under an order from a competent court or authority.
2.4. The Merchant acknowledges and agrees that the BLACK42PAY service operates solely as a payment intermediary and that BLACK42PAY (I) under no circumstances functions as a seller, buyer, dealer, middleman, retailer, auctioneer, supplier, distributor, manufacturer, broker, agent, or merchant of any product or service being ordered, obtained, or procured by any funds processed through its services; and (II) makes no representations or warranties and does not ensure the quality, safety, or legality of any product or service purchased with funds received through the BLACK42PAY Services.
2.5. The Merchant acknowledges and agrees that any dispute regarding any product or service purchased or procured by any funds requested or received through the BLACK42PAY Services or any transaction involving the BLACK42PAY Services is between the sender and receiver of the funds and/or the supplier and receiver of the goods or services. Any transaction connected with the products and services offered by the Merchant shall only obligate the Merchant. BLACK42PAY shall not be a party to any resulting dispute including but not limited to disputes over performance and liability issues relating to the delivery, quality, quantity, or use of the products and services offered by the Merchant. Without applying the liability restrictions, the Merchant shall fully indemnify BLACK42PAY against any claim by third parties relating to the use of the products and services offered and shall reimburse BLACK42PAY in full for the reasonable costs of any legal defence.
3.1. BLACK42PAY shall make available to the Merchant and its current and prospective customers the BLACK42PAY Services as specified in this Agreement and as further described on the BLACK42PAY Website.
3.2. The Merchant shall open and maintain a Merchant Account by selecting following account type on the BLACK42PAY Website. As part of the registration process, the Merchant will have to accept the Terms of Service, which apply to every BLACK42PAY account.
3.3. The Merchant shall integrate the BLACK42PAY Services into the Merchant Website and operate the same in accordance with the relevant Manuals.
3.4. The Merchant grants BLACK42PAY the right to access the Merchant Website for the purpose of conducting manual checks or automated searches in order to investigate the accuracy of information contained on the Merchant Website in relation to the BLACK42PAY Services, provided that (I) BLACK42PAY shall be under no obligation to conduct such searches or checks and (II) any such searches shall under no circumstances be deemed an approval of any contents of the Merchant Website.
3.5. In addition to the security requirements set forth in the Terms of Service, the Merchant shall enable the login restriction tools offered in the "Security" section of the BLACK42PAY Profile for both the Automated Payment Interface and the Merchant Account login through the BLACK42PAY Website. Recommended protection level is Phone security involving security PIN-codes sent to a mobile phone in order to perform any operation or account modification.
The Merchant shall further restrict any login to its Merchant Account to a pair or a range of IP addresses.
3.6. Without prejudice to payments prohibited under the Terms of Service, the Merchant shall not receive payments as consideration for the delivery of tobacco products, prescription or non-prescription drugs, illegal downloads, or goods or services infringing intellectual property rights of a third party, or for any other goods or services the offering or provision of which is illegal under applicable law.
3.7. The Merchant shall cooperate with BLACK42PAY to investigate any suspected illegal, fraudulent, or improper activity.
3.8. Upon commencement of the Agreement and at any time thereafter for purposes of complying with Regulatory Requirements, the Merchant shall provide BLACK42PAY with such information about its business, corporate structure and constitution, shareholders, partners, members, directors, key employees, or in the case of a trust, its beneficiaries. In particular, the Merchant shall inform BLACK42PAY in writing of any changes to its business model or the goods or services it sells or distributes if such change is or can reasonably be expected to be relevant with regard to compliance with Regulatory Requirements. Without applying the liability limits, the Merchant shall indemnify BLACK42PAY against all losses arising out of the Merchant's failure to notify BLACK42PAY of any such changes that are relevant for compliance with Regulatory Requirements applicable to BLACK42PAY or the Merchant.
3.9. The Merchant shall provide its customers with a clear and fair return and refund policy.
The Merchant shall provide and keep up to date return and refund policy information in his Wallet properties Business Practice section to reflect any changes to such policy.
4.1. For the purposes of establishing a Reserve, BLACK42PAY reserves the right to prevent a certain amount of funds from being withdrawn from the Merchant Account or used for payments to third parties. This shall apply regardless of any termination of this Agreement for as long as funds are held on the Merchant Account. The amount of the Reserve (either expressed as an absolute amount or as a percentage of past payments into the Merchant Account) shall be determined by BLACK42PAY at any time in its sole discretion. BLACK42PAY shall notify the Merchant of the imposition of a Reserve and its amount as well as any increase or reduction of the Reserve without undue delay.
4.2. Without restricting BLACK42PAY's discretion under section 4.1, BLACK42PAY may take into account, amongst others, the following factors when determining the amount of any Reserve:
4.2.1. the Merchant ceases its business or a substantial part thereof;
4.2.2. the Merchant materially alters the nature of its business;
4.2.3. the Merchant's business activities carry a higher than normal risk of chargebacks or other reversals of costumer payments;
4.2.4. the Merchant's overall financial standing;
4.2.5. the Merchant becomes insolvent or is otherwise unable to pay debts as they fall due;
4.2.6. BLACK42PAY receives a disproportionate number of customer complaints, chargebacks, or other payment reversals, fines, penalties or other liability related to the Merchant Account; or
4.2.7. BLACK42PAY reasonably believes that the Merchant will not be able to perform its obligations under this Agreement.
4.3. The Merchant agrees to provide BLACK42PAY, upon reasonable request and at the Merchant's expense, with information about its financial and operational status, including the most recent financial statements. The Merchant shall also undertake, at its own expense, any further action (including executing any necessary documents and registering any form of document) reasonably required to establish such form of security as reasonably required by BLACK42PAY.
4.4. If required by BLACK42PAY, the Merchant shall pay such amounts into its Merchant Account as is reasonably determined by BLACK42PAY to fund an initial Reserve or to react to unforeseen increased risks of payment reversals that is not covered by the Merchant Account's then current balance.
4.5. Notwithstanding any of the foregoing, where a Merchant incurs a negative balance on his Merchant Account or becomes otherwise liable for the repayment of monies, the Merchant shall be obliged to make good such negative balance or make a corresponding payment to BLACK42PAY within seven days of BLACK42PAY's request or demand for such payment.
5.1. The fees for the BLACK42PAY Services are stated on the Fees section of the Website of BLACK42PAY. Unless otherwise indicated, fees are quoted in Euro.
5.2. Fees are quoted exclusive of Value Added Tax. In case Value Added Tax or any other sales tax is or becomes chargeable, BLACK42PAY will add such tax to the amount payable but shall, where required, provide information on the net amount, the amount of tax, and the tax rate applied.
5.3. Any fee payable by the Merchant shall be deducted from the Merchant Account balance. If the Merchant Account balance is insufficient, or the Merchant Account balance becomes negative, BLACK42PAY reserves the right to invoice the Merchant for any shortfall.
5.4. The fees are subject to change.
5.5. Where BLACK42PAY is unable to deduct any fees or other monies payable by the Merchant from the balance of the Merchant Account, BLACK42PAY shall issue an invoice for the amount owed. Invoices are payable within fifteen days of the date of the invoice.
6. Change of Terms and Conditions
This Agreement can be edited or changed from time to time. These changes can be made by mutual agreement between the parties or by notice from BLACK42PAY to the Merchant under the following procedure:
6.1. BLACK42PAY shall give the Merchant notice of any proposed change to this Agreement (a "Change Notice").
6.2. 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 the email address registered with the Merchant Account.
6.3. The proposed change shall come into effect automatically one month after the date of the Change Notice, unless the Merchant gives written notice to BLACK42PAY that it objects to the proposed changes.
6.4. BLACK42PAY may stipulate in a Change Notice a different time period for the coming into effect of any change provided that such time period may not be less than one month.
6.5. If no objection notice is received by BLACK42PAY within the stipulated time frame, the Merchant is deemed to have accepted the change.
6.6. The Merchant has the right to terminate this Agreement with immediate effect at any time before the change becomes effective.
7. Guaranties, Merchant Guaranties, Intellectual Property
Each party guarantees to the other party that:
7.1. it has and will keep all required rights, and authorizations to enter into this Agreement and to fulfil its obligations;
7.2. it has in place and will maintain adequate facilities (including staff training, internal controls, and technical equipment) to comply with its data protection and confidentiality obligations hereunder.
The Merchant guarantees:
7.1. the goods and services that are available to customers comply with applicable law in any jurisdiction in or to which the Merchant is making its goods and services available and that the Merchant has at all times all requisite licences and permits in place to engage in the advertising and provision of its goods and services;
7.3. it is not receiving funds in connection with any illegal, fraudulent, and that the Merchant is not sending or receiving funds to or from an illegal source.
7.4. Black42Pay owns all intellectual property rights in relation to Merchant Services. The Merchant is not entitled, without Black42Pay’s written consent, to use, in whole or in part, trademarks, product names or logotypes related to Merchant Services for any other purpose than to inform of the fact that the Merchant accepts Black42Pay as a payment solution. Any use of Black42Pay's intellectual property rights shall be in accordance with the instructions given by Black42Pay.
8.1. Neither party shall be liable in contract, tort (including negligence or breach of statutory duty) or otherwise for any indirect or consequential loss or damage of any kind including punitive or exemplary damages or for any loss of profit or loss of contract, loss of goodwill or reputation, loss of opportunity, loss of revenue or third-party loss whether foreseeable or otherwise, except cases when this clause is not in conflict with other provisions of this agreement.
8.2. Subject to sections 8.3, 8.4, and 8.5 and any other section explicitly excluding the effect of this section, the aggregate liability of each party in contract, tort, negligence, or otherwise arising out of or in connection with this Agreement in any period of twelve months from the commencement date or any anniversary thereof (each a "Contract Year") shall be limited to the lower of (I) EUR 10,000 or (II) the total amount of fees received by BLACK42PAY from the Merchant in the previous Contract Year (or, in the first Contract Year, the fees received to date).
8.3. Nothing in this Agreement shall operate to exclude or restrict a party's liability
8.3.1. for fraud and fraudulent misrepresentation;
8.3.2. for death or personal injury due to negligence;
8.3.3. for remittance payments due to the Merchant subject to the provisions of this Agreement;
8.3.4. for wilful and malicious misconduct;
8.3.5. for damage to real or tangible personal property;
8.3.6. for a breach of section Confidentiality (subject to section 8.6); and
8.3.7. to the extent that such exclusion or restriction is prohibited under applicable law.
8.4. Unless expressly stated otherwise, no indemnity obligation under this Agreement shall be subject to the limitations of liability contained in this section.
8.5. In case of a breach by the Merchant of any of the sections 3.3 to 3.8 (inclusive), section 7 (regarding intellectual property licensed to the Merchant under a sub-license granted by any Payment Method):
8.5.1. the liability restrictions of sections 8.1 and 8.2 shall not apply;
8.5.2. the Merchant shall indemnify BLACK42PAY against all third-party claims, losses, damages, fines, or penalties, arising out of or in connection with such breach; provided always that any contributory negligence on BLACK42PAY's part shall be taken into account so as to reasonably and proportionately reduce the Merchant's liability under this section.
8.6. BLACK42PAY shall not be liable for any of the following:
8.6.1. a hardware, software, or Internet connection is not functioning properly;
8.6.2. any suspension or refusal to accept payments which BLACK42PAY has reason to believe to be made fraudulently or without proper authorization;
8.6.3. the payment instructions received contain incorrect or improperly formatted information; or
8.6.4. unforeseen circumstances preventing the proper performance despite any reasonable precautions taken by BLACK42PAY. Such circumstances may include, but are not limited to acts of god, power outages, fire, flood, theft, equipment breakdowns, hacking attacks, internal mechanical or systems failures, and downtimes of the BLACK42PAY website.
9.1. Merchant undertakes, during the term of this Agreement and thereafter, not to disclose to a third party or to unduly use, on their own behalf or on behalf of a third party, information that a Party has received from the other Party and which relates to the other Party’s activities. A Party shall immediately, upon request by the other Party, return all confidential information relating to the other Party that has been received under this Agreement.
9.2. Notwithstanding the foregoing, it will 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.
9.3. The confidentiality obligations shall not apply to information that (I) is or becomes public knowledge through no action or fault of the other party; (II) is known to either 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; (III) 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 (IV) information independently developed by either party's employees or agents provided that either party can show that those same employees or agents had no access to the Confidential Information received hereunder.
10. Data Protection
10.1. Each party, acting as data processor, must process personal data in accordance with Regulatory Requirements.
10.2. Where one party acts as the data processor (the "Data Processor") of personal data processed by the other party as data controller (the "Data Controller"), the Data Processor shall always follow the Data Controller's reasonable instructions regarding the personal data processed.
10.3. In case the Merchant integrates any fast registration gateway functionality as further described in the relevant Manuals in order to facilitate payments by new BLACK42PAY customers, the Merchant shall procure all necessary consents from such customers to process and share with BLACK42PAY any data required to facilitate the use of such fast registration functionality.
11.1. Without prejudice to termination rights under the Terms of Service, BLACK42PAY may terminate this Agreement immediately:
11.1.1. 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 the Merchant goes into liquidation either voluntarily (otherwise than for reconstruction or amalgamation) or compulsorily;
11.1.2. upon the occurrence of a material breach of this Agreement by the Merchant if such breach is not remedied within five (5) business days after written notice is received by the Merchant identifying the matter or circumstances constituting the material breach; or
11.1.3. if the Merchant violates or fails to comply with any applicable law, regulation, or any order by a competent court or government authority.
11.2. The Merchant may terminate this Agreement at any time without reason by giving notice to BLACK42PAY.
11.3. BLACK42PAY may terminate this Agreement at any time without reason by giving one month notice.
11.4. Any termination under the Terms of Service shall be deemed a termination of this Agreement.
12. Assignment, Third Party Rights
12.1. The Merchant may assign its rights under this Agreement to a third party only with the prior written consent of BLACK42PAY.
12.2. The Merchant may outsource the performance of its obligations under this Agreement only with the prior written consent of BLACK42PAY.
12.3. A person who is not a party to this Agreement has no rights to enforce any term of this Agreement.
12.4. In case the Merchant
12.4.1. acquires another existing BLACK42PAY merchant or its business;
12.4.2. is acquired or its business is acquired by another existing BLACK42PAY merchant;
12.4.3. merges with another existing BLACK42PAY merchant; or
12.4.4. enters into a cooperation with another existing BLACK42PAY merchant
the Merchant shall pay, upon BLACK42PAY's notice to the Merchant, either (I) its current fees or (II) the current fees applicable to the other merchant or (III) such reasonable combination of its own current fees and the fees payable by the other merchant as determined by BLACK42PAY. BLACK42PAY shall send a notice within one month of the later of (a) completion of the acquisition, merger, or cooperation, or (b) of BLACK42PAY's gaining knowledge of such acquisition, merger, or cooperation. If no notice is sent within this time period, the Merchant shall continue to pay its current fees. In this case the fee change shall apply on the date which is one month after the Merchant's receipt of the notice.
13.1. Relationship of the Parties
The Merchant and BLACK42PAY are separate independent contractors under this Agreement, and nothing will be construed to create a partnership, joint venture, or other agency relationship between them. Neither party has authority to enter into agreements on behalf of the other.
Merchant fully bears responsibility to determine which taxes apply to the payments received, and to report the correct tax to the appropriate tax authority. BLACK42PAY is not obligated to determine whether taxes apply, and is not responsible to collect, report, or remit any taxes arising from transaction.
13.3. Choice of Law
This Agreement and any legal relationship between the parties arising in connection with it shall be governed by and construed in accordance with the laws thereof, regardless of the venue or jurisdiction in which a dispute is being determined. Each party hereby irrevocably submits to the nonexclusive jurisdiction of the courts.
13.4. Non-solicitation of Employees
The Merchant and BLACK42PAY undertake that they will not for the term of this Agreement and a period of six months thereafter on their own behalf or on behalf of any person directly or indirectly canvass, solicit, or endeavour to entice away from BLACK42PAY or the Merchant or an associated company any person who has at any time during the term of this Agreement been employed or engaged by BLACK42PAY or the Merchant or an associated company.
Any waiver of a right under this Agreement can 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.
If any part of this Agreement becomes invalid then such part shall be severed from the remainder of the Agreement, which shall continue to be valid, and shall be replaced by an adjustment made between both parties of this Agreement.
13.7.1. Any notice, request and other correspondence pursuant to or in connection with this Agreement shall be in English language and shall be sent to the other Party by email, registered mail or personal delivery at its address as specified at the beginning of this Agreement.
13.7.2. Any Party shall, upon a change of its address, notify the other Party of such change in accordance with the procedures provided for in this section.
13.8. Entire Agreement
This Agreement includes the entire agreement between the parties and all issues and annexes to which this Agreement may relate.
Amendments, variations or any changes to the Agreement come into force only after they are recorded in writing and signed by the parties of this Agreement.