- DEFINITIONS AND INTERPRETATIONS
1.1. In this Agreement unless the context otherwise requires:
“Acquiring Bank” means the bank(s) or the provider(s) of money processing services with which LATPAY has a contract(s) and which will acquire money from the Client’s customers’ credit and debit payment card accounts and pay such money to the Trust Account less certain deductions;
“Banking Day” means any day on which banks are open for business in London excluding Saturdays, Sundays and public holidays;
“Card Not Present Transactions” means the ability to process the Client’s card payments via the internet or via other non-face-to-face Transactions, in accordance with the terms set out in Schedule 2;
“Card Present Transactions” means the ability to process the Client’s card payments via face-to-face Transactions;
“Card Scheme” means the credit or debit card scheme offered by each of VISA, MasterCard, and any other such card scheme operator authorised by the Acquiring Bank;
“Cardholder” means a person who is the holder of a credit or debit payment card;
“Chargeback” means a debit entry to the Trust Account (where applicable), the reversal of a credit previously settled to the Client’s Account, as a result of an invalid Transaction or a re-imbursement claimed by an Issuing Bank on behalf of a Cardholder for the amount of a Cardholder’s Transaction;
“Cleared Funds” means funds held in the Trust Account that are available for distribution to the Client’s Account;
“Client’s Account” means the bank account to where all Cleared Funds will be transferred by LATPAY for the benefit of the Client;
“Charges” means the fees and charges outlined in Schedule 1;
“Confidential Information” means (a) all information LATPAY receives from the Client in relation to this Agreement; (b) all personal information and data obtained from Cardholders including but not limited to Cardholders’ email addresses, internet addresses and/or other identifying and profiling information; and (c) the existence and contents of this Agreement;
“Deductions” means the (a) service charges, (b) transaction charges, (c) Reserves, (d) Chargebacks, (e) Refunds, (f) all government charges and taxes (including goods and services tax) that apply, (g) the full amount of all sales refund Transactions the Client processes, (h) any overpayments or credits LATPAY have made in respect of Transactions due to errors or omissions, (i) the value of Transactions (including Card Not Present Transactions) which are invalid, including any costs resulting from or monies paid or charges levied in relation to an investigation into the validity of the Transaction or suspected Chargeback, (j) any fees, fines or penalties charged by Card Schemes or costs charged by the Acquiring Bank or Card Schemes, including but not limited to the cost of all forensic investigations, incurred as a direct or indirect result of the Client’s failure to observe its obligations under this Agreement, any procedures set out in the manuals and Operational Guide, and any other practical operating instructions provided by LATPAY, (k) any other money the Client owes LATPAY under this Agreement; (l) reasonable enforcement expenses for any breach of this Agreement and (q) any additional charges imposed by the Acquiring Bank or Card Schemes;
“Dynamic Currency Conversion” (DCC) means a facility which enables some Cardholders to elect to pay for goods or services in their local currency at the time of the purchase. DCC is only available in a number of selected currencies and on eligible Merchant Facilities;
“eCommerce Merchant” means the Client who has been authorised by the Acquiring Bank to accept credit card Transactions whilst conducting the sale of goods or services with a Cardholder electronically over the internet or other network;
“eCommerce Transaction” means a credit card Transaction between the Client and a Cardholder where the Cardholder sends card data to the Client over the internet or other network (including via a Website), regardless of how the data is transmitted from the Client to the Acquiring Bank;
“Floor Limit” means the total value of sales or cash out which the Client is authorised from time to time to make to a Cardholder on any one occasion in respect of any one card without obtaining an authorisation number from LATPAY. LATPAY may change the authorised floor limit at any time by giving notice;
“Group” means, in relation to a company, that company and any company which is a holding company of that company or a subsidiary of that company or of such holding company;
“Intellectual Property Rights” means patents, inventions, utility models, petty patents, registered and unregistered design rights, know-how, copyrights, semi-conductor topography rights, rights of extraction relating to databases, the right to use software, marks, trademarks, trading names, domain names and all other similar proprietary rights which may subsist in any part of the world including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations;
“Internet” means the publicly accessible non-proprietary global data network comprising interconnected networks using TCP/IP (transmission control protocol/internet protocol);
“Issuing Bank” means the bank that issued the card to the Cardholder;
“Key Loader Solution” means the Software developed and implemented in accordance with this Agreement and which is used to inject security keys and terminal identification numbers into the Terminals so that they are able to pass Transactions securely to the Acquiring Bank Transaction network. The Key Loader Solution shall be managed in accordance with Card Scheme requirements;
“Merchant Facility” means the facility made available by the Acquiring Bank for the benefit of the Client to enable the Client to accept payments using cards;
“Other Service” means any of the services described in Schedule 4;
“Operational Guide” means the guide provided by LATPAY to the Client which contains instructions on how the Client is to comply with this Agreement;
“PAN” means the Primary Account Number or Cardholder account number commonly located on the front of a Card;
“PCIDSS” means Payment Card Industry Data Security Standards. This refers to the data security standards mandated by Visa and MasterCard to facilitate protection of Cardholder payment data from unauthorised access, which is applicable to any person who stores, processes or transmits card data regardless of that storage or transmittal device;
“PCI PA-DSS” means Payment Card Industry Payment Application Data Security Standards, developed and updated by the PCISSC from time to time, and applying to software vendors and other vendors developing payment applications that store, process or transmit Cardholder data, as part of an authorisation or settlement process, where these payment applications are sold, distributed, or licensed to third parties;
“PCISSC” means the Payment Card Industry Security Standards Council, being a not-for-profit organisation responsible for the development of the PCIDSS, the PCI PA-DSS and other standards;
“PIN” means personal identification number;
“Prohibited Use” means any use described in Schedule 3;
“Refunds” means a refund of the amount of a Transaction to a Cardholder totalling no more than the original Transaction value;
“Reserve” A percentage of the transaction value retained in the Reserve Trust Account, with funds sufficient to satisfy the Merchant’s current and future obligations as determined by LATPAY or the Acquiring Bank; as set out in Schedule 1;
“Reserve Trust Account” means a bank account operated by LATPAY for the sole purpose of holding Reserves;
“Sensitive Authentication Data” includes any full magnetic stripe, PIN verification or code otherwise known as CAV, CVC, CVC2, CVV, CVV2, PVV, PIN and PIN Block data information listed in clause 6.4.
“Service” means the service operated by LATPAY to credit and debit payments for its Clients via the Internet through the Acquiring Bank, and includes any Other Service provided by LATPAY to the Client;
“Service Provider” means the provider of any software or hardware that the Client operates to assist with the acceptance of card payment details;
“Software” means the Terminal software, the Key Loader Solution, the computer software or firmware comprised in the Terminal Management System and the operating system, application software and any updates issued from time to time;
“Technical Standards” means: (a) the PCI-PA-DSS, PCIDSS and 3DES; (b) any standards relevant to the Merchant Facility(ies); all applicable Card Scheme rules, industry mandates and requirements of industry bodies (c) all applicable pin entry device security requirements, including but not limited to requirements in relation to the protection of security information, controls and audit and pin entry device management; and (d)any other standards and requirements notified by LATPAY to the Client from time to time in writing. These standards may be amended or replaced over time;
“Terminal” means the hardware used to accept card payments and the software that is installed on that hardware, and includes any replacement hardware;
“Terminal Management System” (TMS) means the Software, computer and communications infrastructure which is used to store Terminal records, Terminal configuration data, Software and Software information, and to upload all of these to the Terminals;
“Transaction” means a financial transaction conducted by a Cardholder when interacting with the Client;
“Transaction Date” means the day on which a Transaction takes place; and
“Transaction Receipt” means a receipt for the Transaction containing the information set out in the Operational Guide;
“Trust Account” means a bank account operated by or on behalf of LATPAY for the purpose of (1) receiving from the Acquiring Bank; (2) Paying the Reserve Account; (3) Receiving funds from the Reserve Account; and (4) paying Cleared Funds to the Client’s Account; and
“Website” means any website owned or operated by the Client in respect of which Cardholders make or receive payments in respect of Transactions and facilitate an eCommerce Transaction which includes but is not limited to a web page, web portal or smart phone application;
1.2. Unless otherwise specified, words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporated; and, in each case vice versa.
1.3. A reference to a party to this Agreement or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns.
1.4. This Agreement is not to be interpreted against the interests of a party merely because that party proposed this document or some provision in it or because that party relies on a provision of this Agreement to protect itself.
- LATPAY OBLIGATIONS
2.1. use its best endeavours to provide the Service to the Client on a 24 hour, seven (7) days a week basis, subject to the Acquiring Bank providing its services during these times;
2.2. transfer by Electronic Funds Transfer, the balance of all Cleared Funds into Client’s Account less Deductions;
2.3. provide the Client with real-time online reports to enable the Client to reconcile all Transactions; and
2.4. perform ongoing merchant monitoring of the Client as required by LATPAY, the Card Schemes or the Acquiring Bank.
- CLIENT’S OBLIGATIONS
3.1. The Client undertakes:
3.1.1. to use its best endeavours to maintain Fraud and Chargeback rates below chargeback thresholds set by the Card Schemes.
3.1.2. to reconcile all Transactions.
3.1.3. to perform fraud control and risk monitoring in accordance with the requirements of LATPAY, as is advised from time to time.
3.1.4. to provide a complete copy of the Transaction Receipt to the Cardholder (unless otherwise stated, for example, contactless Transactions) at the time of payment for goods delivered or services performed and advise the Cardholder to retain the receipt as proof that payment has been made. The Transaction receipt may be delivered in either of the following formats:
(a) electronic (e.g. email or fax); or
(b) paper (e.g. hand-written).
3.1.5. to respond promptly to all customer inquiries, including cancellations and order changes.
3.1.6. to provide LATPAY with a complete list of the Client’s Websites and inform LATPAY of any changes to such list within five (5) Banking Days of such change.
3.1.7. to comply with applicable laws, and all relevant and applicable Card Scheme Rules, relevant to the operation of its business;
3.1.8. not to use the Service or the Merchant Facility for a Prohibited Use.
3.1.9. not to return the Cardholder’s number to the Cardholder either electronically or on the Transaction receipt.
3.1.10. not to do anything that constitutes or encourages a violation of any applicable law or regulation in United Kingdom or an overseas jurisdiction, including but not limited to the sale of illegal goods or the violation of export controls, obscenity laws or gambling laws.
3.1.11. not offer for sale goods or services, or use or display materials, that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate.
3.1.12. not generate a significant number of complaints for failing to be reasonably accessible to customers.
3.1.13. that it and any service provider who participates in the storage of card payment details on behalf of the Client, must fully comply with the PCIDSS. LATPAY will advise the Client on the volume of Transactions processed.
3.1.14. that it does not, either directly or indirectly, process any Transaction or present any voucher to LATPAY or the Acquiring Bank which was not originated as a result of a Transaction between the Client and a Cardholder to whom the Client has actually supplied the goods and/or services for which the card was used in payment unless the Client has been approved by the Acquiring Bank to process pre-payment Transactions and the Cardholder has expressly authorised the Transaction; and
3.1.15. that it does not split a Transaction into two or more Transactions on the same card to avoid having to obtain an authorisation.
3.2. The Client is responsible for all goods and services, including, but not limited to, the supply of those goods or services to the Client’s customers, where payment for those goods or services is made via the Service.
3.3. For Merchant Facility(ies) that facilitate Card Present Transactions, the Client is responsible for all materials used or displayed at the Client’s point-of-sale.
3.4. For Merchant Facility(ies) that facilitate Card Not Present Transactions:
3.4.1. the Client must ensure that the URL of the Website must be substantially similar to the trading name of the Client and be designed in such a way that a reasonable Cardholder is able to readily identify it as the Client’s Website without any confusion.
3.4.2. the Client is responsible for all materials used or displayed on the Client’s Website, and all acts or omissions that occur at those Websites. The Client must ensure that their Website complies with all requirements contained in the Operational Guide.
3.5. The Client agrees to provide LATPAY and the Acquiring Bank with reasonable access to view, monitor and audit the pages of the Website.
3.6. The Client must make provision for payment and delivery of goods or services as specified at the Client’s Website. Payment pages provided will be accredited by the Acquiring Bank or an accredited provider and must adhere to the relevant security requirements.
3.7. Any eCommerce Transaction forwarded to LATPAY must be identified with the appropriate Card Scheme eCommerce indicator. LATPAY will supply the Client with details of these requirements on request.
3.8. The Client must ensure that it:
3.8.1. does not substantially change the Client’s goods or services or other material aspects of the Client’s Website from the time it was accepted by LATPAY without its written agreement;
3.8.2. keeps all information on the website true, accurate, current and complete;
3.8.3. does not change the Client’s domain name without first obtaining the written consent of LATPAY to the change of name; and
3.8.4. fulfils customer orders in a timely manner and adequately deal with a customer’s warranty or service requirements.
3.9. The Client is responsible for:
3.9.1. ensuring that the connection between LATPAY and the Client’s Website is operational. LATPAY does not warrant that the provision of the services will be continuous, uninterrupted or without errors;
3.9.2. ensuring that its Website is secure, and that Cardholder information is encrypted during the exchange of Cardholder information between the Client’s Website and the payment gateway. The Client must utilise LATPAY’s hosted payment page or ensure that the level of encryption for Cardholder information is compliant with the standards of the PCIDSS and PCI PA-DSS;
3.9.3. ensuring that at no time does it store Cardholder information; and
3.9.4. ensuring that any service provider that the Client engages to participate in the payment process is to be approved by LATPAY. LATPAY is not responsible for the functioning of any third-party service provider.
- FEES AND PROCESSING CHARGES
4.1. In consideration for the services, the Client shall pay to LATPAY the Charges, which shall be deducted from funds held in the Trust Account.
4.2. Unless otherwise stated in Schedule 1, LATPAY may at any time review the Charges payable under this Agreement and will notify the Client of such changes in accordance with this Agreement.
4.3. The Client must pay:
4.3.1. all duties, taxes and charges, including goods and services tax, in relation to this Agreement or any document related to this Agreement to which it is a party.
4.3.2. all fees charged by the Acquiring Bank in relation to Card Schemes.
4.4. Unless stated otherwise in Schedule 1, the amounts payable to LATPAY under this Agreement are exclusive of any goods and services tax.
- ROLLING RESERVE
LATPAY warrants, covenants and represents to the Client that:
5.1. funds held in the Reserve Trust Account will:
5.1.1. be held in trust;
5.1.2. will at all times be held for the benefit of the Client; and
5.1.3. will be held in a separate bank account;
5.2. it will not grant or purport to grant any security or other legal or beneficial interest in the funds held in the Reserve Trust Account to any other person; and
5.3. it shall release to the Client Cleared Funds held in the Reserve Trust Account immediately as and when such amounts become due.
- PROCESSING TRANSACTIONS
6.1. The Client must:
6.1.1. accept all valid cards and process all Transactions in accordance with this Agreement, the Operational Guide and any other practical operating instructions that LATPAY provides to the Client from time to time;
6.1.2. obtains prior authorisation for any sale using a credit card if it exceeds the Floor Limit. An authorisation only confirms that the Cardholder has sufficient funds available to cover the purchase, and that the card has not been reported lost or stolen. It does not protect the Client from subsequent Chargebacks which may be affected by the Acquiring Bank; and
6.1.3. verifies the identity of the Cardholder, and ensures any Cardholder authorisation is not forged, obtained by fraud or deception, unauthorised or that the Transaction is not otherwise invalid.
6.2. The Client will not undertake any Transaction that does not comply with the requirements as set out in the Operational Guide.
6.3. LATPAY will not be responsible or liable for any delay that might occur in the processing of payments or any lost Transactions that might occur where the Merchant Facility is not available for any reason. This includes instances where cash-out Transactions are not available.
- SALES REFUNDS
7.1. The Client agrees to accept all liability and take sole responsibility, and, for the avoidance of doubt, not to delegate or apportion liability or responsibility to LATPAY or the Acquiring Bank, for:
7.1.1. resolving disputes, complaints or enquiries in accordance with the Card Scheme rules with Cardholders who use the Service; and
7.1.2. invalid Transactions (including, but not limited to, Chargebacks) in connection with any Service.
For the avoidance of doubt, the Client acknowledges and agrees that LATPAY and the Acquiring Bank shall not be involved with resolving a dispute (including a Chargeback) in relation to a customer of the Client.
7.2.The Client will establish a fair policy for exchange or return of merchandise, as is reasonable in the ordinary course of the Client’s business, and give credit upon each return, not in cash, but by means of a sales refund Transaction. This includes establishing a fair policy for refunds for each return of merchandise or for each order disputed by the Cardholder. This clause 2 also applies to all Merchant Facilities that facilitate Card Not Present Transactions, including without limitation, mail, telephone, internet orders and standing authority Transactions.
7.3. Client must only accept payments and make refunds in respect of goods or services which have been supplied by the Client.
7.4. The Client agrees that LATPAY and the Acquiring Bank will not be responsible for any unauthorised sales refund Transactions processed through the Service, even if those Transactions may cause the Trust Account to be debited by the amount of the Transaction(s).
7.5. Where LATPAY or the Acquiring Bank do not supply Terminals to the Client, LATPAY and the Acquirer Bank shall not be responsible for any unauthorised sales refund Transactions processed through the Terminal.
7.6. LATPAY will control and be responsible for access to the Terminal sales refund password. LATPAY will change its password if for any reason it thinks it has become known to persons other than those who LATPAY has authorised to complete refund Transactions.
- INVALID TRANSACTIONS
8.1. A Transaction is invalid if it satisfies the criteria for an invalid Transaction as set out in the Operational Guide.
8.2. A telephone, internet or mail order Transaction is also invalid if the Transaction is not authorised by the Cardholder, or in the case of a standing authority, the authority has expired or was cancelled prior to the Transaction. The Client acknowledges that authorisations obtained provide no guarantee that the person providing the card details is the Cardholder.
8.3. The Client acknowledges and agrees that the Acquiring Bank may refuse to accept, or may Chargeback, any Transaction if:
8.3.1. the Transaction is invalid, or the Acquiring Bank considers it to be invalid;
8.3.2. the Cardholder claims the Transaction is invalid or disputes liability for any reason;
8.3.3. the Client processes a cancelled recurring Transaction; and
8.3.4. the Cardholder asserts a claim for set-off or a counterclaim.
8.4.Chargebacks may be processed to the Trust Account up to 18 months or according to card scheme rules after the date of the original Transaction.
8.5. The Client undertakes to abide by industry best practices to minimise fraud and chargebacks as set out in the manuals from time to time.
8.6. Client must forward valid transactions for clearing to LATPAY no later than 3 days after the date of a transaction. If at the time of transaction the cardholder agrees to a properly disclosed delayed delivery of the services, then clearing must be no later than 3 days after the date of shipping. If Client cannot meet the agreed upon time limit, Client shall obtain the cardholders approval for shipping and if approval is obtained a new authorisation should be done. LATPAY can at its discretion accept or deny clearing transactions 6 months from Authorisation date.
9. ACCOUNTS AND DEDUCTIONS
9.1. The Client authorises LATPAY to make Deductions from funds held in the Trust Account in respect of Transactions to which such Deductions relate or from any other funds held by LATPAY and LATPAY may adjust any payment to the Client’s Account to correct any errors identified. If LATPAY debits the Trust Account in which there are insufficient funds, then the payment may be reversed and the Client will be regarded as not having made the payment.
9.2. If at any time there are insufficient funds in the Trust Account to allow all Deductions to be made, LATPAY may pay the shortfall from the Reserve Trust Account or from future payments received.
9.3. LATPAY may appropriate funds held in the Trust Account, towards any and all amounts the Client owes LATPAY under this Agreement. If LATPAY does this, the balance of the Trust Account will reduce by the amount used for this purpose. LATPAY will notify the Client promptly after exercising its right to appropriate money in the Trust Account and the Client.
9.4. The Client must pay on demand the amount of any debt the Client owes LATPAY under this Agreement which remains unpaid. Should the Client fail to pay any debt which the Client owes LATPAY by the date LATPAY sets as the due date for that debt, this will be deemed a default of the Client and LATPAY may commence enforcement action and report the Client’s default to a credit reporting agency, in accordance with any notice period required by law, which may affect the Client’s credit rating and the Client may have difficulty obtaining finance in the future.
9.5. LATPAY may also debit or credit the Trust Account with the amount of any deficiencies or charges LATPAY establishes are payable following an audit or check of the Client including where the audit has been carried out by a third party on behalf of LATPAY or the Acquiring Bank.
9.6. The Client is responsible for reconciling the statements that LATPAY sends the Client under this Agreement to ensure that payments to and from the Trust Account have occurred in accordance with this Agreement. It is the Client’s obligation to check the accuracy of the statements. If the Client fails to notify LATPAY within 3 months of an incorrect fee being processed, and thus an incorrect amount was debited from the Trust Account, or a payment should have been made to the Client, then the Client will have no claim against LATPAY and the account with LATPAY will be deemed settled. This includes but is not limited to Terminal rental fees, minimum Merchant Facility service fees, termination fees and Transaction fees.
This Agreement shall remain in force for 2 years from the date of execution hereof and thereafter shall be terminable by either party on thirty (30) days written notice to the other party, subject to any earlier termination under clause 15 below.
11.1. The Client must maintain and retain in its possession (while complying with all applicable security requirements) its books of account and records (including all Transaction information, voucher and copy rolls and other information that this Agreement requires them to retain) relating to a Transaction for at least 18 months after the Transaction;
11.2. The Client must also keep reasonable records about its compliance with this Agreement including records about when it implemented a variation notified by LATPAY and the Client’s compliance with PCIDSS. The Client must retain these records for at least 6 years and provide access to these records when the Acquiring Bank requests.
11.3. The Client must:
11.3.1. permit LATPAY and the Acquiring Bank to inspect and examine its books of account and records;
11.3.2. not sell, purchase, provide or exchange a Cardholder’s name or card number information in any form, unless providing card number information to LATPAY or an agent solely to allow the Client or the Client ‘s agent to process Transactions;
11.3.3. keep all systems and media containing a card number, Cardholder or Transaction information in a secure manner. If the item needs to be discarded, the Client shall destroy it in a manner which makes the information unreadable;
11.3.4. provide LATPAY or the Acquiring Bank with all clear and legible documentation relating to a Transaction when requested or within fourteen (14) days of the request. Otherwise LATPAY or the Acquiring Bank may treat the Transaction as invalid and process a Chargeback to the Merchant Facility; and
11.3.5. agrees to LATPAY and the Acquiring Bank monitoring Transactions processed via the Merchant Facility.
11.4. The obligations under this clause 11 survive termination of this Agreement for any reason.
12.1. The Client acknowledges and agrees that:
12.1.1. LATPAY or the Acquiring Bank may from time to time, conduct an internal or independent risk audit of the Client;