HowToPay is the trading name and registered trademark of Confidia AG.
The following expressions used in this Agreement have the following meanings:
“Acquirer” means the bank conducting payment collection and settlement on behalf of a Merchant, from the card issuing or cardholder bank.
“Agreement” means the Merchant Processing Agreement Terms and Conditions, along with the Merchant Pricing Schedule.
“Card” means a Credit Card referred to in the Merchant Processing Agreement or otherwise authorised by How To Pay for use on its secure payment processing site for the purpose of initiating a transfer of funds by the cardholder through the online payment gateway.
“Cardholder” means the person to whom a Card has been issued or a person who is authorised to use a Card.
“Card Transaction” means any transaction by a Cardholder using a Credit Card for the purposes of payment of a service or good.
“Chargeback” refers to a transaction value that is debited to the bank account the Merchant maintains under this Agreement due to a cardholder disputing a card transaction. Chargebacks are payments identified as being invalid or non-collectable after initial acceptance on account of fraud, lost/cancelled/unissued/invalid account identification, unresolved customer complaint or other cause which results in the deduction of the Service Charges from money otherwise payable to How To Pay.
“Confidential Information” means:
(i) In respect of How To Pay, any written or oral information that is not Excluded Information and that:
- about the affairs of How To Pay and is obtained by the Merchant from How To Pay or someone on behalf of How To Pay; or
- How To Pay makes the Merchant aware is considered by How To Pay to be confidential and proprietary; or
- is personal information for the purposes of any applicable privacy laws, (collectively,”How To Pay’s Confidential Information”).
(ii) In respect of the Merchant, any written or oral information that is not Excluded Information and that:
- is about the affairs of the Merchant and is obtained by How To Pay from the Merchant or from someone on behalf of the Merchant; or
- the Merchant makes How To Pay aware is considered by the Merchant to be confidential and proprietary; or
- is personal information for the purposes of any applicable privacy laws, (collectively,”Merchant’s Confidential Information”).
“Credit Card” means a valid credit card issued by, and bearing as applicable the symbols of either Visa or MasterCard or charge card issued by American Express, Diners Club or JCB Charge Card schemes.
“Customer Verification” means a process involving How To Pay’s fraud analysts contacting merchant’s customers in order to verify that they authorised credit card purchases, to ascertain product or service delivery quality or to play a role in attempting to resolve disputes with merchants.
“Customer” means an individual or entity that acquires goods or services on the client Merchant website.
“Deductions” means any amount owing to How To Pay by the Merchant whether arising out of this Agreement or otherwise, including, but not limited to any liability incurred by How To Pay as a consequence of this Agreement, Processing Fees and Reversals.
“Excluded Information” means:
(i) In respect of How To Pay’s Confidential Information, information that the Merchant can establish:
- was in the public domain when it was given to the Merchant;
- becomes, after being given to the Merchant, part of the public domain, expect through disclosure contrary to this Agreement;
- was in the Merchant’s possession when it was given to the Merchant and had not been acquired in some other way (directly or indirectly) from How To Pay; or
- was lawfully received from another person who had the unrestricted legal right to disclose the information free from any obligation to keep it confidential.
(ii) In respect of Merchant’s Confidential Information, information that How To Pay can establish:
- was in the public domain when it was given to How To Pay;
- becomes, after being given to How To Pay, part of the public domain, expect through disclosure contrary to this Agreement;
- was in How To Pay’s possession when it was given to How To Pay and had not been acquired in some other way (directly or indirectly) from the Merchant; or
- was lawfully received from another person who had the unrestricted legal right to disclose the information free from any obligation to keep it confidential.
“ISP” means Internet Service Provider.
“IPSP” means Internet Payment Service Provider or Third Party Processor.
“Intellectual Property” means all present and future rights conferred by statute, common law or equity in or in relation to copyright, trademarks, business and domain names owned by How To Pay or any of its related
“Merchant” means the client person, persons or separate entity (company) named in the Merchant Processing Agreement as the “Merchant” and vendor of online services, subscriptions or tangible products.
“Merchant Processing Agreement” means the internet Merchant Processing Agreement signed by the Merchant and How To Pay as amended from time to time to cover all the services associated with providing a payment gateway or payment service provider products.
“Merchant Volume” means the total value of all transactions processed by How To Pay on behalf of the Merchant before any Deductions.
“Order Shipment Report” means a report produced by the merchant displaying current orders and their shipment status. This report will also display tracking numbers of shipments.
“PCI DSS” means compliance with Payment Card Industry Data Security Standards which is a mandatory requirement for protecting cardholder data, overseen by the PCI Security Standards Council (PCI SSC).
“Payment Gateway System” means the process where, on instructions transmitted through an online secure payment page, a Cardholder’s bank account is debited and the Merchant’s bank account credited or vice versa as the case may be:
(i) in relation to goods or services supplied or cash made available by the Merchant to the Cardholder; or
(ii) with the amount of any refund in respect of goods and services supplied by the Merchant to the Cardholder.
“Personal Information” means information about an individual whose identity is apparent or can reasonably be ascertained, from the information.
“Privacy Law” means all legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to Personal Information.
“Refund” means the refunding of a previously processed Card transaction back onto the previously processed Card.
“Reserves” means a number of payment monies held back for a period up to 180 days as security against an unacceptable level of chargebacks. Acquiring banks may hold back reserves to the value of 10% of total transactions processed by How To Pay.
“Reversals” means any chargebacks, credits, deductions, penalties, refunds, cancellations, allowances, returns or similar event that would cause a reversal of a payment from a Customer to a Merchant.
“RevShare” means an affiliate program product offered by How To Pay whereby an online Merchant will share a percentage of sales revenue generated to reward the provision of additional site traffic by an affiliate program member that leads to sales.
“Service Charges” means the amounts indicated by fees set out in Schedule 1
“Subscription ID” means the unique numeric code issued to the cardholder who joins a client Merchant’s membership program
“VAT“, GST or value-added tax means any tax on the supply of any goods, services, real or personal property or any similar tax.
- NATURE OF ENGAGEMENT
2.1 The client Merchant hereby engages How To Pay to provide either directly or indirectly, as the case may be, online and electronic transaction payment processing services (“The Services”) as described in this Agreement for the websites that are the subject of this Agreement (as described in the attachment), and for any additional websites that subsequently become the subject of this Agreement. Both parties agree to the terms and conditions set out below for a term of two (2) years, provided, that this Agreement shall be automatically renewed until terminated pursuant to section 17 below.
- DESCRIPTION How To Pay SERVICES
3.1 How To Pay may provide the Services directly and may also assist with making introductions to and to generally facilitate a contractual relationship with acquiring banks where it is an authorised sales or service partner, for the purposes of securing an Internet Merchant account.
3.2 How To Pay may act as the Merchant’s Internet Payment Service Provider/Third Party Processor which includes the provision of payment processing, reporting and in some instances, member support.
3.3 How To Pay uses software and hardware configurations to provide an Internet-based payment gateway service to online Merchants that generally may include one or more of the following:
3.3.1 A link from Merchant’s internet site to that of a securely hosted page of How To Pay or accept transactional information from an approved/accredited service provider in order to capture payment of online products and services offered by the Merchant, and payable by a customer or member cardholder
3.3.2 Utilise Merchant’s own internet Merchant account for enabling credit card processing, as well as access to e-wallet and electronic automated check processing (ACH) systems
3.3.3 Utilise How To Pay’s own IPSP Master Merchant account facility for enabling credit card processing,
3.3.4 Provide a payment gateway mechanism to:
(a) securely capture and transmit payment particulars by encryption in compliance with card issuers’ Payment Card Industry Data Security Standards
(b) conduct requisite fraud protection checks using specialist third-party risk management products
(c) request authentication and authorisation of payment from the card issuer or bank account holder
(d) finalise payment processing results, whether approved or declined
(e) prepare transaction reports and service charges for Merchant
(f) provide the option of affiliate program membership
3.3.5 Depending on the nature of the Services provided by How To Pay, all funds relating directly to credit card and ACH payments may be paid directly by the acquiring banks to the Merchant account holder in accordance with their own commercial terms or alternatively by How To Pay in accordance with the terms of this Agreement.
3.3.6 How To Pay will provide payment instructions for credits or debits to the acquiring banks based on transactional information including, but not limited to, sales, adjustments, refunds/reversals, chargebacks, reserves, affiliate program payouts and processing fees/charges.
3.4 Conditions precedent
The formation of this Agreement is subject to the following conditions precedent:
(a) Merchant completing in full all outstanding details required in the Schedules to this Agreement or any other compliance requirements including the execution of any other document required by How To Pay to provide the Services.
(b) Merchant providing all documentation and information requested by How To Pay to enable it to consider the Merchant’s suitability for Services; and
(c) How To Pay providing notice to the Merchant that it agrees to provide the Services to the Merchant.
- RIGHTS AND OBLIGATIONS OF How To Pay
4.1 Grant of Non-Exclusive License
4.1.1 How To Pay grants Merchant a non-exclusive licence to use its payment gateway software
4.1.2 This Agreement does not grant Merchant any rights in connection with the use Trademarks (registered or otherwise) by How To Pay or rights to any other intellectual property associated with the service unless with the express written authorisation of the owner.
4.2 Payment Processing Services
4.2.1 How To Pay shall provide the software and services described in this Agreement and any revisions to that software during the term of this Agreement at the expense of the Merchant in relation to the Rate specified in the Schedule. These fees are in addition to any Bank Discount Fee or other charges imposed by the Bank and shall be payable by Merchant directly to How To Pay. A sign-up/setup fee may be payable at the time of execution of this Agreement.
4.2.2 Processing invoices are sent to Merchant via email and/or posted in the administration area of the software at the prescribed intervals ins Schedule 1.
4.2.3 The liability of How To Pay to Merchant with respect to any transaction shall be limited to the obligation of How To Pay upon written notice from the Merchant or the cardholder to reprocess the transaction. How To Pay shall in no event be liable for incidental or consequential damages whatsoever.
4.3 Customer Verification
4.3.1 How To Pay may, at any time and at its sole discretion without the express permission of the merchant, contact its customers in order to confirm whether:
- transactions were authorised by the cardholder,
- services or products were rendered in the manner promised, of merchantable quality and delivered in a timely manner,
- disputes were properly resolved in an efficacious manner
4.3.2 Any investigation or customer verification conducted by How To Pay may result in a series of actions that require rectification by the merchant. Any such requests by How To Pay must be carried out as soon as possible to avoid account suspension.
4.3.3 How To Pay undertakes to conduct these calls in a careful, selective and sensitive manner in order to minimise disruption to the merchant’s business though How To Pay will not be liable for any losses arising from dissatisfied customers resulting from customer verification calls or investigations.
4.3.4 During the initial 3 month probation period with a new bank, or where orders warrant suspicion, How To Pay will call verify a % of the cardholders to ensure the legitimacy of orders. These calls are billed at $2.50 per verification.
4.3.5 Any merchant whose disputes increase beyond 2% chargebacks will move onto How To Pay’s persistent monitoring program, under which How To Pay reserve the right to call verify up to 80% of cardholders if necessary to maintain merchant’s dispute ratios below card-scheme limits. These will be charged as normal verification calls.
- RIGHTS AND OBLIGATIONS OF THE MERCHANT
5.1 Pre-conditions for Provision of Services
5.1.1 Merchant is approved by the acquiring bank and has permission from the bank to (directly or through an agent) accept payments through a number of the following payment types, but not limited to Visa, MasterCard, other credit card companies, and/or ACH.
5.1.2 Merchant must comply with all rules relating to all card schemes for card-not-present transactions that they accept including requirements specific to the regions in which they operate. Merchant must familiarise and implement recommended with e-commerce risk management practices of card schemes.
5.1.3 Merchant desires to use software operated by How To Pay and hosted on How To Pay’s website which acts as a payment gateway between the Merchant and the bank (“the software”) and How To Pay wishes to grant Merchant a non-exclusive licence to use the software. Merchant and How To Pay mutually agree to the following terms and conditions:
5.2 Accept Non-Exclusive License
5.2.1 Merchant will use the software for all transactions by Merchant on the Internet
5.3 Use of Transaction Data
5.3.1 Merchant gives How To Pay full and exclusive rights to move, without limitation, all transaction data,
Merchant information, and confidential information (as defined) as needed to be moved by How To Pay from time to time in the process of conducting its services to Merchant.
5.3.2 How To Pay will handle the data is such a manner as to be consistent with Payment Card Industry Data Security Standards.
5.3.3 Merchant must comply with all Payment Card Industry Data Security Standards requirements as directed by How To Pay or an acquiring bank.
5.3.4 Any known or suspected breach of cardholder data security or any knowledge of cardholder fraud must be reported immediately to How To Pay and Merchant’s acquiring bank in accordance with their instructions or follow guidelines provided by the card schemes.
5.4 Payment of Fees and Settlement
5.4.1 During the term of this Agreement Merchant warrants that it will pay all fees set out in Schedule 1 in accordance with clause below.
5.4.2 All transactions will be processed in the currency of the transaction. How To Pay reserves the right to subsequently convert the transaction currency where it deems it necessary to do so and to charge a reasonable fee (which shall be determined at How To Pay’s sole discretion) for such conversion.
5.4.3 All fees shall be payable and not to exceed five (5) business days from receipt by Merchant from How To Pay of written invoice by on-line transmission and shall be delinquent if not paid in full within five (5) business days thereof and subject to a “late fee” imposed by How To Pay provided that How To Pay is authorised to deduct any fees or amounts payable by the Merchant to How To Pay or its banks from any Settlement.
5.4.4 Merchant is responsible to make sure Merchant has received processing invoices from How To Pay. If no invoice has been received or displayed, failure to pay on time may result in additional late fees and/or interruption of processing services at How To Pay’s sole discretion.
5.4.5 How To Pay reserves the right to change any fees charged for the services rendered or the introduction of new services that attract a fee. In the event of an increase, that fee will become payable within 7 days following a notice posted on our website or notification given directly to you.
5.4.6 Unless otherwise stated, all fees will be subject to the application of local VAT/GST rates and quoted in Australian dollars.
5.5.1 Payment of Settlement How To Pay will make payment to the Merchant’s nominated account (“Settlement Account”) in Schedule 3 based on the transactions processed by How To Pay less:
(a) the Processing Fees;
(b) any Reversals;
(c) any special Fees or Fines imposed by the acquiring bank
(d) any amount necessary for the Reserve; and
(e) any Deductions, (the “Settlement”).
5.5.2 Settlement currency amounts will be paid in the currency agreed within Schedule 3, as supported by the Acquirer
5.6 Payment of Fees and Settlement
5.6.1 During the term of this Agreement Merchant warrants that it will pay all fees set out in Schedule 1 in accordance with clause below.
5.6.2 All transactions will be processed in the currency of the transaction. How To Pay reserves the right to subsequently convert the transaction currency where it deems it necessary to do so and to charge a reasonable fee (which shall be determined at How To Pay’s sole discretion) for such conversion.
5.6.3 All fees shall be payable and not to exceed five (5) business days from receipt by Merchant from How To Pay of written invoice by online transmission and shall be delinquent if not paid in full within five (5) business days thereof and subject to a “late fee” imposed by How To Pay provided that How To Pay is authorised to deduct any fees or amounts payable by the Merchant to How To Pay or its banks from any Settlement.
5.6.4 Merchant is responsible to make sure Merchant has received processing invoices from How To Pay. If no invoice has been received or displayed, failure to pay on time may result in additional late fees and/or interruption of processing services at How To Pay’s sole discretion.
5.6.5 How To Pay reserves the right to change any fees charged for the services rendered or the introduction of new services that attract a fee. In the event of an increase, that fee will become payable within 7 days following a notice posted on our website or notification is given directly to you.
5.6.6 Amounts settled to the Merchant will only correspond with what the Acquirer has paid to How To Pay. How To Pay is not liable for any intern payments on any extended holdbacks by the Acquirer.
5.6.7 Minimum Settlement amount How To Pay will not be required to pay a Settlement until such payment exceeds 3,000.00.
5.6.8 Settlement Schedule Settlements will be paid into the Settlement Account on a daily basis with an initial holdback for a three (3) day period or as otherwise stipulated in Schedule 1
5.7.1 Establishment of Reserve How To Pay may, at its sole discretion, withhold the Reserve for any valid reason, including but not limited to as security against future Deductions.
(a) The Reserve will be set at a default amount of 10% unless otherwise specified in Schedule 1.
(b) The Reserve will be held on a 180-day rolling basis.
5.7.2 Deductions from Reserve
(a) How To Pay may, at its sole discretion or under instruction from the acquiring bank, deduct from the Reserve any amount for Deductions that relates to refunds, chargebacks, outstanding fees or fines incurred as a result of Merchant activity
(b) Notwithstanding the quantum of Reserve, the Merchant remains liable for payment of any
Deductions that exceed the amount held in the Reserve.
(c) In the event How To Pay or acquiring bank makes any deduction from the Reserve or that the Reserve is deemed insufficient to cover disputes or fines, the Merchant is required to immediately provide funds to restore the Reserve to its proper value or increase beyond the original amount as required collateral/security.
5.7.3 Holding of Reserve
In the event of the expiry, closure, or earlier termination of this Agreement, How To Pay may hold the Reserve for the greater of:
(a) twelve (12) months from the date of expiry, closure, or earlier termination of this Agreement;
(b) the allotted time has expired for applicable Reversals; or
(c) all amounts payable by the Merchant to How To Pay under this Agreement or otherwise have been paid.
5.7.4 Treatment of Reserve
The Merchant shall not pledge, assign, use as collateral or otherwise encumber the Reserve or any other sum withheld by How To Pay under this Agreement. The Merchant further agrees that upon withholding, the Reserve becomes the property of How To Pay or acquiring the bank and the Merchant has no legal or equitable rights in respect of the Reserve until such time as any period for holding the Reserve under this Agreement expires.
5.8 Affiliate Program
How To Pay has no affiliate program at this time. As such we ask Merchants that run their own Affiliate programs to make sure all affiliates comply with all terms stated in this agreement in advance fully. The merchant is fully responsible for the actions of its Affiliates.
5.9 Merchant Internet Site
5.9.1 Merchant shall be solely responsible for the establishment, hosting and maintenance of its website(s) and its connection to the internet (the”Merchant internet site(s)”), fulfilling all orders for products and services sold by Merchant to its users on the Merchant internet site(s).
5.9.2 Merchant warrants that it owns in accordance with the Domain Ownership Declaration, or has a valid license to use, all intellectual property associated with website content and affiliated software and that no copyright has been infringed.
5.9.3 Regarding website content and conduct, Merchant agrees that it will not perform or fail to perform any act which would violate State or Federal law in their local country, European or international law. Merchant further agrees to abide by any state and federal or national regulations regarding US 18 s2257 (adult regulation) compliance, content and product ownership, and holds How To Pay completely legally and financially harmless for any violations of such regulations or laws by Merchant.
5.9.4 Merchant must not partake in any fraudulent or damaging activities, use these facilities for the proceeds of crime or money laundering or attempt to compromise How To Pay service or reputation. Any such attempt will result in immediate termination of this Agreement and associated services, with notification given to the relevant government crime investigation authorities.
5.9.5 Merchants offering internet gaming or gambling service web content must be appropriately licensed to do so by the state or national government of the jurisdiction in which they are based. Compliance must be adequately demonstrated to How To Pay. Merchant is solely responsible for complying with the relevant rules and laws of the licensing body that relate to identification (KYC) and qualification of players.
5.9.6 How To Pay reserves the right to reject applications from potential Merchants who provide products and service content online that are illegal, illicit, promote violence or are obscene. All content must be legitimately and legally acquired, with supporting the evidentiary proof. How To Pay also reserves the right to randomly check the websites of Merchants to ensure retention of compliance with the composite rules of card companies and policies of How To Pay and its acquiring banks.
5.9.7 Merchant must display a web page to users purchasing products or services from Merchant that provides the user with an acknowledgement that a transaction has been completed and secured by How To Pay (the “acknowledgement page”) and show How To Pay’s brand.
5.9.8 Merchant agrees to fully comply with How To Pay’s Merchant Website Compliance Policy. Execution of this Agreement confirms that Merchant has read and understood this policy and will comply with these rules at all times. In order to determine compliance with How To Pay and card scheme rules, Merchant must always provide How To Pay with a valid user ID and password for unimpeded access available to full members, without limitation, to enable random inspections to be carried out.
5.9.9 Merchant agrees that in addition to Merchant’s branding on the acknowledgement page, the acknowledgement page will include the relevant logos of each credit card scheme or payment method that is accepted.
5.9.10 Merchant agrees that its online order form shall comply with an appropriate format established by the Bank and all Visa and MasterCard Rules.
5.9.11 Merchant agrees to disclose any intentions of customer rebilling and must state so on the sign-up page before the secure join form as well in terms and conditions agreement posted on the site and linked to from one or more areas before the customer proceeds to the actual secure join form. Merchant must provide phone numbers and email addresses which are easily accessible for customers to reach the Merchant or the entity handling service for the Merchant.
5.9.12 Merchant must state that these contact methods are for “customer service and cancellations”.
These contact methods must be posted throughout several areas of the website in a non-password protected area. It is also highly recommended that the Merchant’s company name appear throughout the site to identify to the customer who is billing them as well as the businesses registered operating address and customer support phone number.
5.9.13 Merchant shall not discriminate against persons making purchases using a card, either with respect to the exchange of, the return of, or adjustment on goods or services purchased unless Merchant conspicuously discloses its discriminatory returns and refunds policy at the time of sale. If Merchant does not offer refunds or make such other restrictions, the words “no refund”, or other appropriate terminology, shall be prominently and legibly written or typed on the order form used by Merchant with respect to the performance of this Agreement and provided to the purchaser. Merchant understands that the terms “No Refunds” is not legally valid in all countries and in such zones must offer a refund.
5.9.14 Any advertising or other promotional material of Merchant shall not be in violation of the provisions of this Agreement. The How To Pay name, style and any registered trademarks or trade names of How To Pay shall remain the property of How To Pay and shall not be used by Merchant except in compliance with this agreement or independently written authorisation.
5.10 The generation of spam (unsolicited commercial advertising without properly identifying the sender’s details) by client Merchants is prohibited in most countries and is not permitted under any circumstances. Any identified breach will result in instant termination of this Agreement.
5.10.1 The merchant will inform How To Pay in advance of ALL Internet Domains that will be used to generate sales and or collect funds using the merchant’s facilities provided by How To Pay. A merchant must not operate a domain with this Merchant service without prior approval of How To Pay in writing.
5.11 CHARGEBACK AND REFUND MANAGEMENT
5.11.1 Merchant agrees that in the event Processor is presented, during any monthly period, with chargebacks and/or retrieval requests relating to the Transactions of the Merchant processed by the Processor in excess of one percent (1%) measured by transactional volume or by number of transactions, such chargebacks and/or retrieval requests will be deemed to be excessive and allow the processor to take action including, but not limited to, terminating this agreement. Failure to maintain the ratio of chargebacks below 1.00% may result in immediate account suspension or termination. See section 17.
5.11.2 Merchant agrees that in the event Processor is presented, during any monthly period, with refund requests relating to the Transactions of the Merchant processed by the Processor in excess of five per cent (5%) measured by transactional volume or by number of transactions, such refund requests will be deemed to be excessive and allow the processor to take action including, but not limited to, terminating this agreement. Failure to maintain the ratio of refunds below 5.00% may result in immediate account suspension or termination.
- TRANSACTION PROCEDURES
6.1 Authorisation of transactions shall not in any way be binding on How To Pay as to the validity of any transaction or transaction receipts. How To Pay gives no assurances that any transactions will be honoured or that How To Pay (or the acquirer or card Issuer) shall not exercise any chargeback or other rights of reduction or set-off under this Agreement even where such transaction has been authorised.
6.2 How To Pay shall seek online authorisation from the acquirer for all transactions.
6.3 In the event that authorisation to complete the transaction is given to How To Pay, the authorisation code shall be given to Merchant. Such authorisation code will be recorded upon the transaction confirmation.
6.4 Transactions above any applicable trading limit established in Schedule 1 may not be accepted by How To Pay unless otherwise agreed.
6.5 Subject to section 9, if offered by a cardholder, How To Pay will accept for processing a card payment which we are authorised to accept. Acceptance for processing and online authorisation of the transaction does not guarantee payment by the cardholder.
6.6 Merchant agrees that, in respect of all processing services, the acquirer will remit payments via How To Pay which shall be solely responsible for paying to Merchant the remittance and the authorisation and settlement of transactions within the terms of Merchant’s agreement and consistent with Merchant’s obligations under this Agreement.
6.7 Upon processing a transaction, How To Pay shall issue an electronic transaction confirmation to Merchant and the cardholder at the email addresses provided.
6.8 It is understood, acknowledged and agreed that Merchant shall not process any transaction that is not in compliance with the terms of the agreement between Merchant and How To Pay or How To Pay’s bank for purpose of the card or cards.
6.9 Merchant is also responsible for reviewing the transactions in its account on a regular basis and notifying How To Pay promptly of suspected unauthorized activity through Merchant account.
6.10 If the credit card transaction is approved by bank or bank’s agent, an order confirmation shall be sent by How To Pay to Merchant who will include all details of the sale transaction except the credit card number, CVC and expiration date. Concurrently, How To Pay may send a receipt to the purchaser for Merchant and in Merchant’s name which will contain the transactions details, billing amount, statement descriptor, Merchant contact details and customer support phone number. (Merchants and How To Pay’s).
6.11 Merchant will receive from How To Pay in a password protected secure administration, transaction reports, including customer identifiers that exclude card related data in real-time. These reports may be reviewed and downloaded by Merchant. This will provide to Merchant a daily record regarding all transactions for each day and at set intervals, payment amounts.
6.12 Merchant may be authorised to enter transactions received by MOTO (mail, by telephone, by fax) or in person from cardholder only with authorisation, using the manual data entry screen provided by How To Pay. The transaction fee is the same for manual transactions.
6.13 Merchant agrees to provide a brief description of the goods or services purchased with a card, together with other disclosures.
6.14 Merchant agrees to provide How To Pay with membership login details with unlimited and unrestricted access at no cost for each and every one of Merchant’s Web sites registered with How To Pay for monitoring purposes.
7.1 The parties agree to sign and be bound by the provisions of a Mutual Non-Disclosure Agreement (NDA) if How To Pay deems necessary, which must be signed before the exchange of confidential and sensitive data.
7.2 Merchant agrees not to in any way discuss, slander, make discriminating posts or mention in any way on any forum, newsgroup or public blog on the internet or in any written word or media in any way without the express written permission of How To Pay. This obligation remains for a period of one (1) year after the termination of this Agreement.
7.3 Merchant agrees that all agreements, contracts, emails, phone conversations or any form of contact are held confidential and in agreement with the Non-Disclosure Agreement (if provided to Merchant). The Merchant agrees to not disclose any details in relation to this Agreement to any person or party and will be held legally responsible.
7.4 Merchant shall comply with any directions issued to it by How To Pay as a consequence of the services provided by How To Pay to Merchant under this Agreement.
7.5 Merchant shall not sell, purchase, provide or exchange purchaser information in any form obtained by Merchant as a result of a transaction covered by the terms of this Agreement to any third party other than to Merchant’s bank or to Merchant’s agent for the purpose of assisting
Merchant in its business or pursuant to a government request. All information concerning purchaser so obtained shall be maintained in a reasonably secured manner with limited access to selected personnel until discarding and must be destroyed in a manner that will render the data unreadable. All data once received by How To Pay becomes the property of How To Pay and cannot be used without the written permission of How To Pay.
8.1 Merchant further agrees to defend, save and hold harmless How To Pay and indemnify How To Pay for any and all claims, actions, suits, losses, damages and liabilities and costs including attorneys fees, relating to or resulting from any violation of, or failure to comply properly with, or claim or charge that there has been a violation of or failure to properly comply with European/Federal/National or State laws, rules or regulations arising out of any acts or omissions of Merchant as a result.
8.2 Merchant agrees to indemnify How To Pay and hold How To Pay harmless from and against any and all claims, demands, liability and causes of action by any person imposed by way of claim without commencement of litigation or arbitration, defence, setoff or counterclaim arising from a transaction covered by the terms of this Agreement or arising out of or in connection with this Agreement or the performance of this Agreement.
8.3 Merchant will indemnify and hold How To Pay harmless in respect of any loss or damage sustained as a result of How To Pay’s refusal to renew or enter into an agreement with Merchant and Merchant agrees that How To Pay’s refusal does not amount to a restraint of trade.
8.4 Merchant indemnifies How To Pay in respect of all loss or damage no matter how arising caused by unauthorised, illegal or improper access to How To Pay’s site or the services from any location or access points within Merchant’s control, custody or power.
- LIMITATION OF LIABILITY
9.1 Merchant acknowledges that How To Pay is not a financial or credit reporting institution. How To Pay is responsible only for providing data transmission to effect certain payment authorizations for Merchant and is not responsible for the results of any credit inquiry, the operation of websites of ISPs or financial institutions or the availability or performance of the Internet, or for any damages or costs Merchant suffers or incurs as a result of any instructions given, actions taken or omissions made by Merchant, Merchant’s financial processor(s), Merchant’s financial institution or any ISP.
9.2 In no event will How To Pay’s liability arising out of this agreement exceed the fees paid to How To Pay by hereunder during the twelve (12) month period immediately preceding the event which gave rise to the claim for damages. In no event will How To Pay or it’s licensors have any liability to merchant or any other party for any lost opportunity or profits, costs of procurement of substitute goods or services, or for any indirect, incidental, consequential, punitive or special damages arising out of this agreement, under any cause of action or theory of liability (including negligence), and whether or not How To Pay has been advised of the possibility of such damage. These limitations will apply notwithstanding any failure of essential purpose of any limited remedy. Notwithstanding the above, the limitations set forth above shall be enforceable to the maximum extent allowed by applicable law.
9.3 Merchant shall be liable to Acquirer and Processor for all fees, fines, and penalties that may be assessed against Acquirer or Processor by either Visa/Mastercard network as a result of Merchant’s activities hereunder.
10.1 Notwithstanding anything else in this Agreement, How To Pay will not be liable for the non-payment to the Merchant of any Settlement or portion thereof:
(a) which results from:
(i) transactions that are ineligible, fraudulent, illegal or violate applicable laws;
(ii) transactions in which the Customer claims to have been performed without their consent;
(iii) transactions in which the Customer disputes any liability because of the Merchant’s goods and/or services were not received or were returned, rejected, defective or because the Merchant failed to perform any obligation in connection with such goods and/or services; or
(b) where despite its reasonable endeavours, How To Pay does not receive a settlement from a third party service provider or financial institution in respect of the transactions constituting the relevant Settlement for any reason.
(c) where merchant ceases to forward new sales, or drops below 50% of average sales without prior explanation, How To Pay reserves the right to suspend payment in order to cover potential losses associated with merchant refunds or chargebacks. This applies even if How To Pay elects not to immediately suspend the account.
(d) where merchant fails to provide How To Pay with their most recent Order Shipment Report within 3 days before settlement.
(e) where verification of data on shipped sales on Order Shipment Report provided by the merchant is deemed by How To Pay to be unsatisfactory without prior satisfactory explanation.
10.2 Merchant acknowledges and accepts that How To Pay offers a non-indemnified Service and that How To Pay’s liability for settlements to the Merchant shall be limited to the amounts received by How To Pay from its third party service providers or financial institutions. Account closure/termination made wholly by financials institutions will result in no outstanding merchant funds being settled to How To Pay or the Merchant.
11.1 How To Pay’s website and services are provided on an ‘as is’ basis with obligations limited to the terms of this Agreement. How To Pay gives no warranty or condition, express or implied, other than those expressly set out herein.
11.2 How To Pay does not warrant that the performance of functions contained in the services will be uninterrupted, error-free, that defects will be corrected, or that the website or How To Pay’s hardware or computer systems would be free of viruses or other harmful components or programs. How To Pay does not warrant or make any representations regarding the accessibility or the use or the results of the use of the services and Merchant hereby acknowledges that he/she has relied upon own enquiries and inspection in relation to the services including the “Test Gateway” transactions and the use of the services during the trial period before entering into this Agreement and using the services of How To Pay.
11.3 How To Pay does not give a warranty of completed transactions, nor can it warrant that any cardholder, Merchant or financial institution will complete a transaction. How To Pay accepts no liability associated with such risks. Merchant agrees to accept these risks and indemnify and hold harmless How To Pay in respect of such risks.
- REFUND POLICY
How To Pay’s account setup expenditures include, but are not limited to, application assessment and underwriting, background checks, acquirer discussions, purchase of Merchant ID codes, technical work incurred and any fees in relation to the attached Rate Schedule. It is, therefore, our policy that once Merchant setup is complete on the How To Pay transaction server, no refunds shall be honoured relating to establishment charges.
How To Pay shall be entitled to set-off any of Merchant liabilities to How To Pay (whether present, future, actual or contingent) against any amounts owing to Merchant. How To Pay does not have to give prior notice to do this. Merchant has not entitled to set-off any liabilities of How To Pay under this Agreement (whether present, future, actual or contingent) against any funds due to How To Pay under this Agreement.
- FORCE MAJEURE
How To Pay shall have no liability for any failure or delay caused by Merchant acts or omissions or resulting from actions taken by How To Pay in good faith to avoid violating a law, rule or regulation of any governmental authority or which is caused by circumstances beyond our control whether foreseeable or not, including (without limit) breakdown or failure in transmission or communication links or any third party equipment, industrial disputes, acts of god including natural disasters or war.
15.1 This Agreement shall be binding upon the parties hereto and to their successors or assigns. This Agreement may not be assigned by Merchant without the prior written consent of How To Pay. Any attempt to assign this Agreement by Merchant without the prior written consent of How To Pay shall be null and void.
15.2 Failure by How To Pay to enforce any of its rights under this Agreement shall not constitute a waiver of any right not enforced, nor of any of How To Pay’s other rights under this Agreement.
Notwithstanding any other provision of this Agreement, How To Pay may amend this Agreement by providing not less than ten (10) days prior written notice of such amendment and its terms to Merchant WHEREFORE, How To Pay and Merchant agree effective the date below written.
17.1 This Agreement shall become effective when accepted by How To Pay and shall remain in effect until terminated by How To Pay.
17.2 This Agreement can be terminated at any time by How To Pay due to, but not limited to, a breach of terms and conditions of this Agreement, high chargeback ratios, fraud, insolvency or bankruptcy, poor service, violation of card scheme rules, conduct that is unlawful or a criminal conviction of a director, if How To Pay is directed to cease services by Merchant’s acquiring bank, lack of sustained processing or when How To Pay determines that the relationship is no longer mutually beneficial. If the problem is deemed correctable How To Pay will notify Merchant in writing, offering detailed steps Merchant must take in order to meet compliance. An account closure and investigation fee of $5,000 may be applied if the merchant is terminated for conditions listed in 17.2, or if any fines are received on the merchant’s account.
17.3 Merchant may terminate this Agreement at any time on the giving of one month’s notice in writing to How To Pay, and How To Pay will terminate this Agreement and will no longer offer processing services. Merchant is held responsible for the terms and conditions for a period of 1 year in relation to confidentiality and incidents that may have occurred during the period of service but for which consequences arise following termination.
17.4 Upon a termination by How To Pay of this Agreement, Merchant shall no longer submit transactions to How To Pay nor use any of the materials issued or provided under this Agreement at the request of How To Pay, Merchant shall return to How To Pay at Merchant’s expense any software or other items provided by How To Pay for purposes of this Agreement. How To Pay may hold, as security against any future Deductions, the Reserve and any outstanding funds owing to the Merchant for a period of twelve (12) months from the date of termination
17.5 Remaining unpaid balances due to How To Pay by Merchant are subject to collections and arbitration efforts imposed by How To Pay. Any fees incurred for such efforts will, in addition, be the responsibility of the Merchant and any transactions processed during the time in which balances are due, may at How To Pay’s sole discretion be refunded and/or voided.
17.6 Any transactions in process at the time of termination are the responsibility of Merchant to maintain its records with respect to transactions under this Agreement shall survive any such termination.
18.1 Suspension of Merchants Account
How To Pay may, at its sole discretion, elect to suspend the provision of the Services to the Merchant in the event of:
(a) a breach of this Agreement by the Merchant;
(b) the Merchant incurring a level of Reversals that is, in How To Pay’s sole determination, unacceptable; or
(c) How To Pay determining, at its sole discretion, that the suspension of the Services to the Merchant is in the best interests of maintaining the efficiency and capability of the Services.
18.2 Period of suspension
Pursuant to this Agreement, How To Pay may suspend the provision of the Services to the Merchant for a period of up to three (3) months. Notwithstanding any other term of this Agreement, during the period of suspension, How To Pay shall not be liable to make Settlements to the Merchant.
How To Pay may, at its sole discretion, elect to reactive the provision of the Services to the Merchant. How To Pay may impose further reasonable conditions upon the Merchant before such reactivation takes place.
18.4 No waiver
No election by How To Pay to suspend the provision of the Services to the Merchant shall constitute a waiver of any right to immediately terminate this Agreement.
18.5. Bank Investigation
An account investigation fee of $1,000 may be applied if the bank alerts How To Pay to Suspicious activity occurring on the account requiring attention.
This Agreement is governed by and construed in accordance with the laws of Australia and the parties hereby submit to the non-exclusive jurisdiction of the courts of NSW Australia.
- DISPUTE RESOLUTION
20.1 Subject to sub-clause 17.2, the parties agree not to commence any legal proceedings in respect of any dispute arising under this Agreement, which cannot be resolved by discussion, until the procedure provided by clause 17.2 has been utilised.
20.2 The Parties agree that any dispute arising during the course of this Agreement is dealt with as follows:
(a) the Party claiming that there is a dispute will send the other a written notice setting out the nature of the dispute;
(b) the Parties will try to resolve the dispute through direct negotiation by persons who have been given authority to resolve the dispute;
(c) if the Parties are unable to resolve the dispute within 10 Business Days from the receipt of the notice referred to in subparagraph (b) the dispute is to be submitted to a higher level of management within each Party’s organisation;
(d) if the Parties are unable to resolve the dispute within 10 Business Days from a referral of the dispute under subparagraph (b) the dispute is to be submitted to mediation or some other alternative dispute resolution procedure agreed by the Parties; and if:
(i) there is no resolution of the dispute;
(ii) there is no agreement on submission of the dispute to mediation or some alternative dispute resolution procedure; or
(iii) there is a submission to mediation or some other form of alternative dispute resolution procedure, but there is no resolution within fifteen (15) Business Days of the submission or such extended time as the Parties agree in writing before the expiration of the fifteen (15) Business Days, then either Party may commence legal proceedings.
(e) This clause 17 does not apply if either Party commences legal proceedings for urgent interlocutory relief.
(f) Despite the existence of a dispute, How To Pay and Merchant will (unless agreeing in writing not to do so) continue to perform their obligations under this Agreement.
21.1 Any notices required or permitted by this Agreement shall be sent to the addresses on the signature page by courier or registered or certified mail with return receipt requested. Notices shall be deemed given upon personal delivery to the addressee, or three days after the date of mailing if sent by registered or certified mail.
21.2 Either party may change its address for purposes of this Agreement by notifying the other party in accordance with the terms of this paragraph.
The signature below of Merchant or Merchant’s authorized representative acknowledges that Merchant has read, understood, and accepted this Agreement, that this internet Merchant service Agreement contains the entire agreement of the parties and that no other agreements, instruments or writings are in effect, and that Merchant assumes all obligations under this Agreement.
- RELATIONSHIP OF THE PARTIES
Both parties acknowledge that they are independent contractors in the performance of this Agreement and that this Agreement is not intended to and does not create an agency, partnership, trustee/beneficiary or joint venture relationship between the parties. Both parties acknowledge that they are solely responsible for their own operations and business expenses and that there will be no sharing of profits and losses amongst the parties under this Agreement.
- PERSONAL GUARANTEE
The Merchant agrees that as principal and ultimate beneficial owner, he/she shall provide a personal guarantee.
- CROSS CORPORATE GUARANTEE
The Merchant agrees to disclose all joint and related companies, including parent and holding shareholder companies, and provide a cross-corporate guarantee which may be requested by How To Pay throughout the term of this agreement.
- CURRENCY CONVERSION
**Currency Conversion: As the bank is located within Australia, their processing currency is AUD. This means that transactions may be authorised in a non-native currency, but converted by the processing bank at the point of sale to be processed in AUD. This may result in a very minor variation on the value of the transaction as it is charged to the customer.
- KEY OPERATIONAL POINTS:
The following key operational points must be considered in day-to-day trading:
- All CHARGEBACK / Refund ratios must be maintained below 1% at all times
- Merchant MUST operate a proactive, English speaking customer support department
- Merchant MUST send email receipts to all customers for all purchases
- Merchant MUST provide proof of shipment via export/spreadsheet each week prior to the release of settlement. This must be updated in your login to www.howtopay.com
- Merchant MUST proactively deal with any refund/dispute requests within 24 hours. Should the matter not be resolved within 3 working days, its the policy of How To Pay that the client should be fully refunded by the Merchant.
- Merchant MUST reply to How To Pay on any communication notices within 24 hours to [email protected]
- Merchant MUST actively use account provided or otherwise notify How To Pay of cessation or intention to reduce volumes
- Merchant MUST collect full client details on every purchase, including valid email, address and phone number following full KYC Guidelines. See: https://support.howtopay.com/news/kyc
- Merchant must NOT sell any banned or restricted substances or provide free samples of any products with orders.
- Merchant must NOT ship any substances that are illegal or controlled in clients jurisdiction
- Merchant MUST process minimum volumes of payment processing as agreed or their processing may be restricted and or other merchant processing rates apply.
- Merchant MUST accept that any fine from processing as notified by the Card Schemes will be deducted from processing
- Merchant MUST provide bank settlement details prior to receiving settlement funds.
- Merchants may have the payout of funds placed on 10-day hold should we receive more than two chargebacks and or complaints from Merchants clients. Furthermore, should at any time we feel that the security of clients and or members is at risk we may impose a 10 day hold on funds.
- All transactions greater than $500 requires the Client to have first provided the merchant full KYC/ Government issued ID PRIOR to the Merchant sending the Payment Request.
- Merchants are forbidden to log into customer bank accounts to initiate payment. Customers experiencing difficulties processing payment through their banking facilities should be directed to contact their bank for assistance.
- All customer payments must be initiated by the end customer including logging and authorisation of payment from their bank account/credit card.
- Merchants are forbidden to log into customer computer utilising remote desktop sessions to assist facilitate payment. Customers must be allowed to process payment at their own discretion/free will.
- Merchants are required to keep up to date KYC information. Any expired ID will not be accepted and cannot continue to use the How To Pay services.
- How To Pay reserves the right to close any account it deems is in violation of the terms without notice.
- Should a number of complaints be made by clients making payment the Business account may be suspended for up to 180 pending investigation by not only us but any 3rd party banks and or providers involved.
- How To Pay reserves the right to close any account it deems is in violation of the terms without notice.
- Rates and fees for services may be adjusted to reflect the costs and risks involved in servicing the member at the discretion of How To Pay/ Confidia AG.
- Any member that is not contactable and or responding within 7 days of any notice may be suspended without notice pending resolution of the matter at the sole discretion of How To Pay/ Confidia AG.
- CUSTOMER/BILLING SUPPORT
All Merchants customers will receive an automatic email receipt for their transaction from How To Pay. This will provide them with your customer support phone number + Email for any first line enquiries and product questions, whilst also providing our billing support contacts for customers who cannot the Merchant but need immediate action or resolution regarding payments.
28. Referrals and Commissions
Each business account will be given a referral link when onboarded. These links can be used to refer other businesses and can earn commission at a rate set forth by How To Pay/ Confidia AG. These rates are subject to change at the sole discretion of How To Pay and Confidia AG. How To Pay reserves the right to suspend agent accounts along with their respective commission accounts at any time.
29. PCI DSS
The merchant is responsible for adhering to the appropriate level of PCI DSS compliance. Prior to processing the merchant will be required to provide either a fully completed PCI DSS Self Assessment Questionnaire and/or supply a certificate of compliance/attestation of compliance from a Qualified Security Assessor where level 1 or level 2 compliance applies. If the merchant is using a registered service provider for payment capture and card data storage proof of PCI DSS compliance may also be required