MERCHANT AGREEMENT: TERMS OF SERVICE
This Merchant Terms of Service (TOS) encompasses the terms governing acceptance of debit and credit cards by Merchant and includes provisions applicable to Additional Services such as foreign currency services, equipment purchase and maintenance, gateway services, processing alternative payment methods, and terminal leasing (as selected by Merchant on the Merchant Application).
THIS MERCHANT TOS, TOGETHER WITH THE MERCHANT APPLICATION AND SCHEDULES THERETO (COLLECTIVELY, THE MERCHANT AGREEMENT) COMPRISES THE TERMS AND CONDITIONS UNDER WHICH WELLS FARGO BANK, N.A, CANADIAN BRANCH. (BANK), NUVEI TECHNOLOGIES CORP. (NUVEI), KEV SOFTWARE INC. (KEV) AND/OR THIRD PARTIES, WILL PROVIDE PAYMENT PROCESSING AND RELATED SERVICES TO MERCHANT.
Bank is the Member and Acquirer as defined in the Rules.
Subject to the requirements of applicable Card Association Rules, NUVEI, KEV and BANK may allocate their respective duties and obligations between themselves as they deem appropriate at their sole discretion, and NUVEI, KEV or BANK may jointly or individually assert or exercise the rights or remedies provided to BANK hereunder. For purpose of the Agreement, unless expressly stated to the contrary, KEV and NUVEI are collectively referred to hereinafter as Servicer.
The information collected under the Merchant Application by NUVEI will be used for underwriting the Merchant Application, and if accepted, to provide the merchant services hereunder. The information provided will be kept confidential and stored in a secure environment. Your personal information may be processed and stored in the U.S. by a third-party service provider acting on NUVEIs behalf and may be subject to disclosure to law enforcement and regulatory agencies in the U.S.
Servicer, Bank and Merchant agree as follows:
ARTICLE 1 DEFINITIONS
1.1 Acceptance Currency means the international currencies Merchant has selected for multi-currency processing, as per Article 6, Section C.
1.2 Account means a commercial chequing or demand deposit account maintained by Merchant (and referred to in Section 5.18 entitled Deposit Account) for the crediting of collected funds and the debiting of fees and charges under the Merchant Agreement.
1.3 Alternative Payment Method or APM means process of a payment method (other than Cards) which Nuvei may provide to Merchant, when available and dependent on the Merchants region (as notified by Nuvei to the Merchant from time to time).
1.4APMP means a third party which regulates or is responsible for processing any APM(s) and which is in an arrangement with Nuvei which enables Nuvei and the Merchant to (a) accept payment by End Users using APMs; and (b) receive value in respect of such payments
1.5 Application, Application Form or Merchant Application means the Servicer application form completed by the Merchant, and which references these Terms and Conditions
1.6 Authorization means a computerized function or a direct phone call to a designated number to examine individual Transactions to obtain approval from the Card Issuer to charge or debit the Card, as the case may be, for the amount of the sale.
1.7 Bankcard means a Visa or Mastercard branded card or an INTERAC debit card.
1.8 Card means (i) a valid credit or debit card bearing the Visa, Mastercard or INTERAC branded marks; or (ii) any other valid credit or debit card accepted by Merchant by agreement with Servicer.
1.9 Card Association means Visa, Mastercard, INTERAC, or any other brand in conjunction with which Card Issuers provide Cards accepted by Merchant by agreement with Servicer.
1.10 Card Issuer means the financial institution or company which has provided a Card to a Cardholder.
1.11 Card Not Present (CNP) means that an Imprint of the Card is not obtained at the point-of-sale.
1.12Cardholder means the person whose name is embossed upon the face of the Card, or other authorized users of the Card.
1.13 Cardholder Information means any non-public, personally identifiable information about a Cardholder, including any combination of Cardholder name plus the Cardholders social insurance number, drivers license or other identification number or credit or debit card number, or other bank account number.
1.14 Chargeback means the procedure by which a Sales Draft (or disputed portion thereof) is returned to Servicer by a Card Issuer because such item does not comply with the applicable Card plans operating regulations.
1.15 Credit Voucher means a document executed by a Merchant evidencing any refund or price adjustment relating to Cards to be credited to a Cardholder account.
1.16 Code refers to the access codes and procedures as more fully described in Article 6, Section B.
1.17 Data has the meaning set out in Section 7.05.
1.18 Data Privacy Requirements means Applicable Laws and guidelines pertaining to privacy such as the Personal Information Protection and Electronic Documents Act, Card Association bylaws, operating regulations and rules related to data security, data integrity and the safeguarding of Cardholder Information including the Payment Card Industry Data Security Standard (PCI), Mastercards Site Data Protection Program (SDP), Visas Account Information Security Program (AIS), INTERAC requirements and such other reasonable requirements provided by Nuvei from time to time.
1.19 EFT means the Electronic Funds Transfer system managed by Payments Canada.
1.20 End User means (i) a Cardholder, or (ii) a person that purchases goods or services from the Merchant through an INTERAC Transaction, EFT Transaction or the use of an APM.
1.21 End-User Information means any non-public, personally identifiable information about an End-User, including any combination of End-User name plus the End-Users social insurance number, drivers license or other identification number or credit or debit card number, or other bank account or APM account identifier.
1.22 Equipment has the meaning set out in Article 6, Section A.
1.23 Equipment Schedule means the Equipment Schedule found in the Merchant Application, which includes Equipment descriptions and fees related thereto.
1.24 Event of Default has the meaning set out in Section 4.02(b).
1.25 Foreign Cardholders and Foreign Transactions refer to the cardholder and transaction relating to Dynamic Currency Conversion (DCC).
1.26 Gateway Services has the meaning set out in Article 6, Section B.
1.27 Imprint means (i) an impression on a Sales Draft manually obtained from a Card through the use of an imprinter, or (ii) the electronic equivalent obtained by swiping or dipping a Card through a terminal and electronically capturing Card Data and printing a Sales Draft.
1.28 INTERAC Settlement Account shall refer to the NUVEI owned bank account to which the face value of the debit Transactions of Merchant are credited and from which Servicer shall effect a single deposit of debit and credit Transactions to Merchants account as more fully described in Article 3.01.
1.29 Law or Laws or Applicable Laws means all laws, statutes, codes, ordinances, decrees, rules, regulations, by-laws, statutory rules, principles of law, published policies and guidelines, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, including general principles of common and civil law, and the terms and conditions of any grant of approval, permission, authority or license of any governmental authority, including without limitation, all consumer credit and consumer protection Laws, and anti-money laundering Laws; and the term applicable with respect to Laws and in a context that refers to one or more persons, means that the Laws apply to the person or persons, or its or their business, undertaking or property, and emanate from a governmental authority having jurisdiction over the person or persons or its or their business, undertaking or property.
1.30 Marks has the meaning set out in Section 2.02.
1.31 MATCH has the meaning set out in Section 2.16(a).
1.32 MCP or MCP Transaction shall refer to the multi-currency processing services as more fully described in Section 8.1.
1.33 Merchant Agreement means the Merchant Application once approved and accepted by Servicer together with this TOS, and any supplementary documents referenced herein, and all schedules and amendments to the foregoing. (This definition of Merchant Agreement is consistent with that ascribed to it in the Merchant Application.)
1.34 Merchant Application means the application which Merchant signed and submitted to Servicer in order to be eligible to receive the payment processing services described in this TOS. (This definition of Merchant Application is consistent with that ascribed to it in the Merchant Application itself.)
1.35 MSP or Merchant Service Provider has the meaning set out in Section 7.5.
1.36 Non-Qualifying Transaction means any sale Transaction that fails to qualify for lowest interchange rate assigned by the applicable Card Association for Merchants standard card industry code.
1.37 Program Currency refers to the currency of a Foreign Cardholders Card.
1.38 Representative(s) means any employee, service provider, subcontractor, agent, representative, contractor, associate, officer, director, principal of Merchant or any other third party engaged by Merchant.
1.39 Qualifying Transaction means any sale Transaction that is not a Non-Qualifying Transaction.
1.40 Reserve Account has the meaning set out in Section 3.06.
1.41 Retrieval means responding to requests for documentation relating to a Transaction.
1.42 Rules means the respective and collective by-laws, rules, regulations, operating manuals, operating letters and policies, and cardholder data security standards, as such may be amended from time to time, and established and imposed by Card Associations, APMPs, Acquirer, INTERAC or other payment provider.
1.43 Sales Draft means the paper form, whether electronically or manually imprinted, evidencing a Transaction.
1.44 Scrip means any substitute for currency which is not legal tender.
1.45 Schedule A means Schedule A found in the Merchant Application, which schedule includes VISA, MASTERCARD, INTERAC and other rates and fees, including for e-commerce services. Additional fees are listed below in Article 5.
1.46 Terminal refers to a point-of-sale device into which Cards are swiped or dipped for purposes of processing Transactions, including any mobile card reader that connects to a mobile device, and may also refer to a virtual terminal. If Merchant has elected in the Application to rent a Terminal from Nuvei, the additional terms contained in Appendix 1 Equipment Rental Agreement shall apply to Merchants Terminal lease.
1.47 TMP refer to the terminal maintenance program as more fully described in Section 5.03.
1.48 Transaction means any sale of products or services, or credit for such, from a Merchant for which the Cardholder or other End-User makes payment or receives credit through the use of any Card, EFT or APM and which is presented to Servicer for collection or payment.
1.49 Voice Authorization means a direct phone call to a designated number to obtain credit approval on a Transaction from the Card Issuer, whether by voice or voice-activated systems.
ARTICLE 2 CARD ACCEPTANCE
2.01 Honouring Cards. Merchant will accept all valid Cards when properly presented by Cardholders in payment for goods or services, subject to applicable Card Association Rules requiring Merchant to elect whether to accept credit only, debit only or both debit and credit Cards. Merchants election is set forth in the Merchant Application. Merchant may not establish minimum or maximum amounts for Card sales as a condition for accepting any Card. Merchant may not require any Cardholder to pay any part of any discount rate or other charge imposed upon Merchant by the Merchant Agreement. However, nothing herein shall prevent Merchant from offering discounts to customers for different methods of payment (e.g., cash, debit or credit card purchases) and differential discounts among different payment networks, provided any such discounts are clearly marked at the point-of-sale and not prohibited by Applicable Laws. Merchant may not engage in a Transaction (other than a mail, internet, telephone order, or preauthorized sale to the extent permitted under the Merchant Agreement) if the person seeking to charge the purchase to his or her Card account does not present the Card to permit Merchant to compare the signature on the Card to the signature on the Sales Draft and obtain an Imprint or otherwise use the physical Card to complete the Transaction.
2.02 Advertising. Merchant will prominently display the promotional materials provided by Servicer in its place(s) of business. Merchants use of promotional materials and use of any trade name, trademark, service mark or logo type (Marks) associated with a Card Association is limited to informing the public that the Card will be accepted at Merchants place(s) of business. Merchants use of promotional materials and Marks is subject to Servicers direction and to the Card Association Rules. Merchant may use promotional materials and Marks only during the term of the Merchant Agreement and will immediately cease use and return any inventory to Servicer upon termination thereof. Merchant may not use any promotional materials or Marks associated with Visa, Mastercard or Interac in any way which suggests or implies that either endorses any goods or services other than Card services.
2.03 Card Acceptance. When accepting a Card, Merchant will follow the steps provided by Servicer for accepting Cards and will: (a) determine in good faith and to the best of its ability that the Card is valid on its face; (b) obtain Authorization from the Card Issuer to charge the Cardholders account; (c) unless the Sales Draft is electronically generated or is the result of a mail, internet, phone or preauthorized order, (i) obtain an Imprint of the Card including embossed data from the merchant imprinter; and (ii) except where Cardholder verification requires the processing of the Cardholders PIN, obtain the Cardholders signature on the Sales Draft and compare that signature to the signature on the Card, where Cardholder verification requires the processing of the Cardholders PIN, in lieu of obtaining the Cardholders signature, Merchant shall have the Cardholder enter Cardholders PIN to process the Transaction; (d) enter a description of the goods or services sold and the price thereof (including any applicable taxes); (e) deliver a true and completed copy of the Sales Draft to the Cardholder at the time the goods are delivered or services performed, or, if the Sales Draft is prepared by a point-of-sale terminal, at the time of the sale; and (f) offer the Sales Draft to Servicer for purchase according to procedures and the terms of the Merchant Agreement.
2.04 Authorization. Merchant will obtain an Authorization for all Card sales. If Merchant cannot, for any reason, obtain an electronic Authorization through the use of a terminal, Merchant will request a Voice Authorization from Servicers designated authorization centre and will legibly print the Authorization number on the Sales Draft. Merchant will not obtain or attempt to obtain Authorization from Servicers authorization centre unless Merchant intends to submit to Servicer a Transaction for the authorized amount if Authorization for the Transaction is given. Merchant may not divide a single Transaction between two or more Sales Drafts on a single Card to avoid Authorization limits that may be set by the Card Issuer. Merchant acknowledges that an Authorization provides only that the Cardholder account has sufficient credit available to cover the amount of the current sale and that an Authorization is not a guarantee that the Transaction will not be subject to dispute or Chargeback and does not warranty the Cardholders identity. Merchant may not attempt to obtain an Authorization by successively decreasing the sale amount. Servicer may refuse to purchase or process any Sales Draft presented by Merchant: (a) unless a proper authorization code or approval code has been recorded on the Sales Draft; (b) if Servicer determines that the Sales Draft is or is likely to become uncollectible from the Cardholder to which the transaction would otherwise be charged; or (c) if Servicer has reason to believe that the Sales Draft was prepared in violation of any provision of the Merchant Agreement. Merchant will use, and may not circumvent, fraud identification tools requested by Servicer, including Address Verification System processing, CVC2/CVV2 processing and acknowledges that the use of these tools may prevent Merchant from accepting certain Cards as payment. Merchant acknowledges that its use of fraud identification tools may not prevent fraudulent Card usage and agrees that any fraudulent Transaction may ultimately result in a Chargeback, for which Merchant retains full liability under the Merchant Agreement.
2.05 Retention of Cards. Merchant will use its best efforts, by reasonable and peaceful means, to retain or recover a Card when receiving such instructions when making a request for Authorization or if Merchant has reasonable grounds to believe the Card is counterfeit, fraudulent or stolen. Merchants obligations under this Section do not authorize a breach of the peace or any injury to persons or property, and Merchant will hold Servicer and Bank harmless from any claim arising from any injury to person or property or other breach of the peace in connection with the retention or recovery of a Card.
2.06 Multiple Transaction Records: Partial Consideration. Merchant may not prepare more than one Sales Draft for a single sale or for a single item but will include all items of goods and services purchased in a single Transaction in the total amount on a single Sales Draft except under the following circumstances: (a) for purchases in separate departments of a multiple department store; (b) for partial payment, instalment payment, delayed delivery or an advance deposit; or (c) for delayed or amended charges governed by Card Association Rules for travel and entertainment merchants and Transactions.
2.07 Telephone Orders, Mail Orders, Internet, Preauthorized Orders and Instalment Orders. Unless Merchant has been approved by Servicer to accept mail, internet or telephone orders (as reflected on the Merchant Application), Merchant warrants that it is a walk-in trade business, located in a retail business place where the public moves in and out freely in order to purchase merchandise or obtain services. If Servicer determines Merchant has accepted unapproved Card Transactions which are placed by telephone, generated through telephone solicitation or mail order or through other means that do not create a Sales Draft that bears the Card Imprint and Cardholders signature, Servicer may immediately terminate the Merchant Agreement, debit back to Merchant all such unapproved Card Transactions from the first day of processing hereunder and exercise all other rights hereunder to protect against loss, including but not limited to, withholding funds, establishing a Reserve Account, demanding other security, foreclosing on security interests and exercising all rights triggered by the termination of the Merchant Agreement. Unless approved by Servicer, the Merchant Agreement does not contemplate acceptance of Cards for preauthorized orders or for orders generated by mail, internet or telephone. If an occasional Card Transaction is made by mail, phone or preauthorized order, the Sales Draft may be completed without the Cardholders signature or an Imprint, but in such case Merchant will create a sales slip containing Cardholder data, an Authorization number, the sale amount and the letters MO, TO, IO, or PO, as appropriate. Receiving an Authorization will not relieve the Merchant of liability for Chargebacks.
2.08 Bona Fide Purchases by Merchant to the Cardholder. Merchant must estimate and obtain Authorization for the amount of the Transaction based upon the Cardholders intended length of stay at hotel, car rental, restaurant(s) (and/or approximate tip/gratuity). Additional Authorization must be obtained and recorded for charges actually incurred in excess of the estimated amount. Regardless of the terms and conditions of any written preauthorization form, the Sales Draft amount for any lodging, vehicle rental or restaurant Transaction must include only that portion of the sale, including any applicable taxes evidencing a bona fide sale by Merchant to the Cardholder and may not include any consequential charges. Nothing contained herein is intended to restrict Merchant from enforcing the terms and conditions of its preauthorization form through means other than a Card Transaction.
2.09 Returns and Adjustments; Credit Vouchers. Merchants policy for exchange or return of goods sold and for adjustments for services rendered will be established and posted in accordance with the applicable Rules. Merchant will disclose to a Cardholder before a Card sale is made, if applicable; (i) that if merchandise is returned, (a) no refund, or less than a full refund, will be given, (b) returned merchandise will only be exchanged for similar merchandise of comparable value, or (c) only a credit toward purchases will be given, and (ii) that special conditions or circumstances apply to the sale (e.g., late delivery, delivery charges, restocking fees, or other non-credit terms). If Merchant does not make these disclosures, a full refund in the form of a credit to the Cardholders Card account must be given upon the Cardholders request. The above disclosures must be made on all copies of Sales Drafts or invoices in each case in letters approximately 1/4 (64 mm) high and, with respect to all Sales Drafts and all invoices requiring a signature, in close proximity to the space provided for the Cardholders signature. Any change in Merchants return, cancellation or adjustment policies must be submitted in writing to Servicer not less than 14 days prior to the change and approved by Servicer, which approval shall not be unreasonably withheld. Servicer may refuse to process any Sales Draft made subject to a revised return, cancellation or adjustment policy which Servicer had not approved.
2.10 Cash Payments. Merchant may not receive any payments from a Cardholder for charges included in any Transaction nor receive any payment from a Cardholder to prepare and present a Transaction for the purpose of affecting a credit to the Cardholders Card account.
2.11 Cash Advances; Scrip Purchases. Merchant may not (i) present to Servicer for collection any Transaction for the purpose of obtaining or providing a cash advance either on Merchants Card or the Card of any other party and (ii) accept any Card at a Scrip terminal. Violation of either clause of this Section is grounds for Servicers immediate termination of the Merchant Agreement.
2.12 Duplicate Transactions. Merchant may not present to Servicer for collection duplicate Transactions. Servicer may debit Merchant for any duplicate Transaction adjustments and Merchant is liable for any Chargebacks resulting therefrom.
2.13 Presentment of Fraudulent Transactions. Merchant may not accept or present to Servicer for collection any fraudulent Transaction and may not under any circumstances present for processing or credit, directly or indirectly, Transactions originated with any other merchant or any other source. Merchant may accept only Transactions arising from bona fide purchases from Merchant for the goods and services for which Merchant has been approved under the Merchant Agreement. If Merchant presents to Servicer for collection any prohibited Transaction, Nuvei or Bank may: (a) immediately terminate the Merchant Agreement; (b) withhold funds and establish a Reserve Account as provided herein; and (c) report Merchant to MATCH (as defined in Section 2.16) file, and any Interac equivalent. Merchants employees actions are chargeable to Merchant under the Merchant Agreement.
2.14 Collection of Pre-existing Debt. Merchant may not prepare and present to Servicer for collection any Transaction representing the refinancing of an existing Cardholder obligation including, but not limited to, obligations: (a) previously owed to Merchant; (b) arising from the dishonour of a Cardholders personal cheque or relating to a Chargeback; or (c) representing the collection of any other pre-existing indebtedness, including collection of delinquent accounts on behalf of third parties.
2.15 Data Security Personal/Cardholder Information. Merchant may not, as a condition of sale, impose a requirement on Cardholders to provide any personal information as a condition for honouring Cards unless such information is required to provide delivery of goods or services or Merchant has reason to believe the identity of the person presenting the Card may be different than that of the Cardholder. Merchant will not, under any circumstances, release, sell or otherwise disclose any Cardholder Information to any person other than Servicer or Bank or the applicable Card Association, except as expressly authorized in writing by the Cardholder, or as required by Applicable Law.
(a) Safeguards. Merchant will maintain appropriate administrative, technical and physical safeguards for all Cardholder Information. These safeguards will (a) ensure the confidentiality of Cardholder Information; (b) protect against any anticipated threats or hazards to the security or integrity of Cardholder Information; (c) protect against unauthorized access to or use of Cardholder Information that could result in substantial harm or inconvenience to any Cardholder; and (d) properly dispose of all Cardholder Information to ensure no unauthorized access to Cardholder Information. Merchant will maintain all such safeguards applicable to Merchant in accordance with Data Privacy Requirements and Applicable Law.
(b) Compliance with Data Privacy Requirements and Card Association Data Security Rules. Merchant represents, warrants and covenants that it is and will remain throughout the term of the Merchant Agreement, in compliance with obligations pertaining to the collection, use, disclosure, retention of Cardholder Information including, data security, data integrity and the safeguarding of such information as set out in the Data Privacy Requirements in effect and as may be amended, supplemented or replaced. Merchant will maintain appropriate administrative, technical and physical safeguards for all Cardholder Information. These safeguards will (a) ensure the confidentiality of Cardholder Information; (b) protect against any anticipated threats or hazards to the security or integrity of Cardholder Information; (c) protect against unauthorized access to or use of Cardholder Information that could result in substantial harm or inconvenience to any Cardholder; and (d) properly dispose of all Cardholder Information to ensure no unauthorized access to Cardholder Information. Merchant will cause all of its Representatives to comply with the Data Privacy Requirements at all times. Merchant will report any non-compliance immediately to Servicer. To help accomplish the foregoing, Merchant and its Representatives will encrypt, at appropriate standards required by the Data Privacy Requirements, all debit, credit or stored value card numbers whether in storage, transport or backup and will not store data security codes on its systems, network or software. Merchant will notify Servicer of any vendor utilized by Merchant after the approval of the Merchant Application, which has access to Card or Transaction information. (c) Annual Certification. Merchant will provide an annual certification to Servicer if requested by Servicer (in a form acceptable to Servicer) certifying compliance with the data security provisions of the Merchant Agreement, including compliance with applicable Card Association requirements such as PCI, SDP, CISP, DSR and DISC. Merchant will provide annual certifications for Merchants service providers, subcontractors and agents.
(d) Information Use Limitations. Merchant may not sell, disclose, or otherwise make Cardholder Information available, in whole or in part, in a manner not provided for in the Merchant Agreement, without Servicers prior written consent. Merchant may, however, disclose Cardholder Information to its service providers, subcontractors and agents who have a need to know such information to provide the Services described in the Merchant Agreement, provided that those individuals or entities have assumed confidentiality obligations in accordance with the Merchant Agreement, or as may be required by legal process or Applicable Law, rules, regulations and guidance and have entered into a written agreement with Merchant containing Merchants and such individuals or entities agreement to the foregoing data security provisions including compliance with Card Association rules, regulations or bylaws.
(e) Response to Unauthorized Access. Merchant will notify Servicer within 24 hours after it knows of any breach in security resulting in an unauthorized access to Cardholder Information. Merchant will provide any assistance that Servicer, the issuing bank of any Cardholder, and their regulators and the Card Associations deem necessary to contain and control the incident to prevent further unauthorized access to or use of Cardholder Information. Such assistance may include, but not be limited to, allowing Servicer and Card Associations to use its risk information for normal business practices, preserving records and other evidence and compiling information to enable Servicer and the issuing bank(s) or the Card Associations to investigate the incident and provide assistance and cooperation to: (a) file suspicious activity reports (as applicable); (b) notify their regulators (as applicable); and (c) notify the affected Cardholder (as required). Unless the unauthorized access was due to Servicers acts or omissions, Merchant will bear the cost of notifying affected Cardholder. Servicer has the right to immediately stop all Transactions, enforce rectification and terminate the Merchant Agreement immediately for cause if Merchant trespasses the transaction security protocol or uses a mobile point of sale, including a smartphone, tablet, or any other dedicated wireless device that performs the functions of a cash register or electronic point of sale terminal without Servicers authorization.
2.16 Termination.
(a) MATCH. Merchant acknowledges that Servicer may be required to report Merchants business name and the names and other identification of its principals to the Member Alert to Control High Risk Merchants (MATCH) file maintained by Mastercard and/or the Consortium Merchant Negative File (CMNF) file maintained by Discover. Merchant expressly agrees and consents to such reporting if Merchant is terminated for any reason requiring listing on the MATCH file or CMNF. Merchant waives and will hold harmless Servicer and Bank from any claims that Merchant may raise as a result of Servicers MATCH file reporting, or Discovers CMNF reporting.
(b) Notification of Changes. Merchant will notify Servicer immediately if it intends to (a) transfer or sell any substantial part of its total assets, or liquidate; (b) change the basic nature of its business, including selling any products or services not related to its current business; (c) change ownership or transfer control of its business; (d) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a party to the Merchant Agreement assumes any interest in Merchants business; (e) alter in any way Merchants approved monthly volume, average, or maximum ticket; (f) changes its return policies or to another fulfillment house different from those identified in the Merchant Application; or (g) changes to its Account. Merchant will notify Servicer promptly in writing if it becomes subject to any voluntary or involuntary bankruptcy or insolvency petition or proceeding. Merchants failure to provide notice as required above may be deemed a material breach and will be sufficient grounds for termination of Merchant and for Servicers exercise of all its rights and remedies provided by the Merchant Agreement. If any change listed above occurs, Servicer may immediately terminate the Merchant Agreement.
2.17 Merchants Warranties. Merchant represents and covenants that: (a) all information contained in the Merchant Application or any other documents delivered to Servicer in connection therewith is true and complete and properly reflects Merchants business, financial condition and principal partners, owners or officers; (b) Merchant has power to execute, deliver and perform the Merchant Agreement, and the Merchant Agreement is duly authorized, and will not violate any provisions of Law, or conflict with any other agreement to which Merchant is subject; (c) Merchant holds all licenses, if any, required to conduct its business and is qualified to do business in every jurisdiction where it is required to do so; (d) there is no action, suit or proceeding at Law or in equity now pending or to Merchants knowledge, threatened by or against or affecting Merchant which would substantially impair its right to carry on its business as now conducted or adversely affect its financial condition or operations; (e) each Sales Draft presented to Servicer for collection is genuine and is not the result of any fraudulent or prohibited Transaction or is not being deposited on behalf of any business other than Merchant as authorized by the Merchant Agreement; (f) each Sales Draft is the result of a bona fide Card Transaction for the purchase of goods or services from Merchant by the Cardholder in the total amount stated on the Sales Draft; (g) Merchant has performed or will perform all of its obligations to the Cardholder in connection with the Card Transaction evidenced thereby; (h) Merchant has complied with Servicers procedures for accepting Cards, and the Card Transaction itself does not involve any element of credit for any other purposes other than as set forth in the Merchant Agreement, and is not subject to any defence, dispute, offset or counterclaim which may be raised by any Cardholder under the Card Associations rules, the Consumer Credit Protection Act (15 USC 1601) or other relevant state or federal statutes or regulations; and (i) any Credit Voucher which it issues represents a bona fide refund or adjustment on a Card sale by Merchant with respect to which a Sales Draft has been accepted by Servicer.
2.18 False Statements. During the term of the Merchant Agreement and for two years following its expiration or termination, Merchant shall not make, publish or communicate to any person or entity or in any public forum any false statements (written or oral) about Servicer, its directors, officers or employees, or its products or services, where such statements harm or are likely to harm the goodwill, reputation, stature or profitability of Servicer or deter others from doing business with Servicer.
ARTICLE 3 PRESENTMENT, PAYMENT, CHARGEBACKS, RESERVE ACCOUNT
3.01 Presentment. Servicer will accept from Merchant all Sales Drafts deposited by Merchant under the terms of the Merchant Agreement and will present the same to the appropriate Card Issuers for collection against Cardholder accounts. Merchant must transmit Sales Drafts and Credit Vouchers to Servicer or its processing vendor on the same or next business day immediately following the day that such Sales Drafts and Credit Vouchers have been originated. All presentment and assignment of Sales Drafts, collection therefor and reassignment or rejection of such Sales Drafts are subject to the terms of the Merchant Agreement and regulations of the Card Association.
3.02 Provisional Credit. Servicer will only provisionally credit the value of collected Sales Drafts to Merchants Account and reserves the right to adjust amounts collected to reflect the value of Chargebacks (actual and anticipated), fees, penalties, late submission charges, reserve deposits, negative Sales Draft batch deposits and items for which Servicer does not receive final payment.
3.03 Endorsement. By presenting Sales Drafts to Servicer for collection and payment, Merchant agrees to sell and assign all its right, title and interest in each Sales Draft completed in conformity with Servicers acceptance procedures and constitutes an endorsement by Merchant to Servicer of such Sales Drafts. Servicer may supply such endorsement on Merchants behalf.
3.04 Prohibited Payments. Bank may receive payment of any Sales Draft presented by Merchant and paid by Bank unless and until there is a Chargeback. Unless specifically authorized in writing by Servicer, Merchant may not collect or attempt to collect any Sales Draft, including Chargebacks, and will hold in trust for Bank and promptly deliver in kind to Servicer any payment Merchant receives, in whole or in part, of the amount of any accepted Transaction, together with the Cardholders name and account number and any correspondence accompanying payment.
3.05 Chargebacks. Merchant will accept for chargeback any sale for which the Cardholder disputes the validity of the sale according to prevailing Card Association regulations, or a Card Issuer or Servicer determines that Merchant has in any way failed to comply with Card Association regulations or Servicers procedures in accepting a Card and presenting the resulting Sales Draft to Servicer for purchase. Section 2.03 notwithstanding, Servicer may charge back the amount of a Card sale for which the Cardholder disputes having authorized the charge if Merchant failed to obtain the Card Imprint or the Cardholders signature. Merchant may not initiate a sale Transaction in an attempt to collect a Chargeback. Merchant will pay the current published fee of $25.00 for each Chargeback.
3.06 Reserve Account. Although Servicer has determined that Merchant does not need to establish a reserve (Reserve Account) to begin processing Transactions, Servicer retains the right to impose a Reserve Account requirement upon Merchant, in its reasonable discretion to mitigate against a potential risk of loss or excessive Chargebacks. Provided, however, such a reserve shall be limited to the amount reasonably necessary to mitigate against the risks for which the Reserve Account was imposed and only for a period of time reasonably necessary to protect against such loss. If a Reserve Accounts is required, Merchant acknowledges and agrees that Servicer may either require Merchant to fund a Reserve Account or, in Servicers reasonable discretion, Servicer may withhold amounts from settlement to be held in a Reserve Account by Servicer. Merchant further acknowledges and agrees that its Reserve Account may be commingled with reserve funds held for other merchants. Amounts held in the Reserve Account will remain in the Reserve Account until the risk of loss or other circumstances reasonably supporting Servicers imposition of the reserve have passed, which shall not exceed 180 days post termination of the Merchant Agreement. Merchant acknowledges and agrees that this Reserve Account may be used to fund any and all Chargebacks or returned items that Merchant fails to satisfy as required in the Merchant Agreement. In the event that Servicer exercises its right to establish a Reserve Account pursuant to this Section, Merchant may, subject to the following provisions, terminate the Merchant Agreement upon 30 days advance written notice to Servicer provided Servicer receives such written notice from Merchant of its intention to so terminate within 90 days of the date on which Servicer establishes the Reserve Account. Upon Servicers receipt of Merchants written notice pursuant to the immediately preceding sentence, Servicer may, at its option and as applicable, return any funds held in a Reserve Account to Merchant, and, in the event Servicer elects to return the reserve to Merchant, Merchant shall not have the right to terminate the Merchant Agreement pursuant to this Section and the Merchant Agreement shall remain in full force and effect notwithstanding Merchants written notice to terminate.
(a)In the event a reserve is held, Merchant acknowledges and agrees that, until such time as all of the amounts owed by Merchant and its obligations, including its obligation to pay all chargebacks, are paid to Servicer in full or Merchant has otherwise provided security for such obligations, all funds in the Reserve Account shall be considered to be held by Servicer for Servicers sole interest, benefit, and protection, shall be considered to be the property of Servicer, and shall not be considered to be held for the benefit of Merchant or be considered to be an asset for or property of Merchant.
(b) Notwithstanding any of the foregoing and provided Merchant is not a governmental entity, as an additional and cumulative right under the Merchant Agreement, if Servicer reasonably believes that Merchant will in the future owe any such amounts under the Merchant Agreement, including for returns, anticipated chargebacks, fines, fees, or any other item described in the Merchant Agreement, Servicer may also identify, sequester, segregate or transfer to itself (including its own bank account(s)) any portion of the Reserve that Servicer reasonably believes is needed to pay such obligation and may hold and use such amount for its own benefit and protection (as opposed to any such amount being held for Merchants benefit or the benefit of any third party). Merchant shall not have any possessory or equitable interest in any funds identified, sequestered, segregated or transferred pursuant to this Section.
3.06.3 The aforementioned rights and remedies are not intended to be exclusive and are intended to be cumulative of all of Servicers other rights and remedies under the Merchant Agreement and
The aforementioned rights and remedies are not intended to be exclusive and are intended to be cumulative of all of Servicers other rights and remedies under this Agreement and Applicable Law.
ARTICLE 4 TERM, TERMINATION, EFFECT OF TERMINATION AND EXCLUSIVITY
4.01 Term. Subject to Section 4.02, the Merchant Agreement once Servicer accepts it, as evidenced by Servicers issuance of a MID to Merchant, and unless otherwise terminated in accordance with Section 4.02 below, will continue on a month-to-month basis until Merchant provides written notice of non-renewal at least fifteen (15) days before the end of the then-current monthly term. However, notwithstanding anything to the contrary in sections 4.02 and 4.05, the Merchant may terminate this agreement with or without cause seven (7) days after signing the Merchant Application and Agreement.
4.02 Termination.
(a) Without Cause. Servicer or Bank may terminate the Merchant Agreement, without cause, upon thirty (30) days advance written notice to Merchant, except, with respect to Bank, where Bank is required by law, regulation, regulatory agency, Card Association, or Card Association Rules to terminate the Merchant immediately or sooner than ten (10) days.
(b) For Cause. Bank or Nuvei may terminate the Merchant Agreement in its sole discretion, effective immediately, upon written or verbal notice to both Merchant and KEV, or by terminating Merchants gateway access or closing Merchants Terminal, if Bank or Nuvei reasonably determines either that any of the conditions enumerated as a reason for the establishment of a Reserve Account exist or that any of the following conditions exist (each an Event of Default): (i) Merchant has violated any provision of the Merchant Agreement; (ii) there is a material adverse change in Merchants business, operations, financial condition, assets or prospects; (iii) if any case or proceeding is commenced by or against Merchant under any federal or provincial or other law related to insolvency, bankruptcy, receivership or other debt relief; (iv) any information which Merchant provided to Bank or Nuvei, including Merchant Application information, was false, incomplete or misleading when received; (v) any information which Merchant provided to Bank or Nuvei, including Merchant Application information, has thereafter become false, incomplete or misleading; (vi) an overdraft in the Account exists for more than three days; (vii) Bank or Nuvei believes that Merchant or any of Merchants officers or employees has been involved in processing Transactions arising from fraudulent, criminal, suspicious or otherwise unauthorized Transactions; (viii) Merchant is or will be unable or unwilling to perform its obligations under the Merchant Agreement or Applicable Law; (ix) Merchant has failed to timely pay Bank or Nuvei any amount due; (x) Merchant has failed to promptly perform or discharge any obligation under the Account or the Reserve Account; (xi) any of Merchants representations or warranties made in connection with the Merchant Agreement was not true or accurate when given or has thereafter become untrue; (xii) Merchant has defaulted on any agreement it has with Bank or Nuvei; (xiii) Bank or Nuvei is served with legal process seeking to attach or garnish any of Merchants funds or property in Bank or Nuveis possession, and Merchant does not satisfy or appeal the legal process within 15 days of such service; (xiv) any Card Association Rules are violated, amended in any way so that the continued existence of the Merchant Agreement would cause Bank or Nuvei to be in breach of those rules or any Card Association no longer permits Merchant to participate in its Card program; (xv) if any guaranty supporting Merchants obligations is revoked, withdrawn, terminated or altered in any way; (xvi) any circumstances arise regarding Merchant or its business that create harm or loss of goodwill to any Card Association; (xvii) termination is necessary to prevent loss to Bank or Nuvei or Card Issuers; (xviii) Merchants type of business indicated on the Merchant Application or as conducted by Merchant could endanger Bank or Nuveis safety or soundness; (xix) Merchants owner, officer, guarantor, or corporate entity has a separate relationship with Bank or Nuvei and that relationship is terminated; (xx) Merchant appears on any Card Brands security reporting; (xxi) Bank or Nuveis security for repayment becomes impaired; (xxii) an event of default under any other indebtedness of Merchant shall have occurred the effect of which is to permit the holder thereof to accelerate the due date of all or part of such indebtedness; or (xxiii) one or more judgments shall have been entered against Merchant which judgment or judgments shall have remained unsatisfied for a period of 45 days from entry thereof. Merchant shall notify Servicer in writing immediately upon becoming aware of the occurrence of an Event of Default, or an event which with the passage of time or the giving of notice, or both, would constitute an Event of Default.
4.03 Effect of Bankruptcy. Any account or security held by Bank or Nuvei will not be subject to any preference, claim or stay by reason of bankruptcy or similar law. The parties expressly agree that the acquisition of Card Transactions hereunder is a financial accommodation and if Merchant becomes a debtor in any bankruptcy or similar proceeding, the Merchant Agreement may not be assumed or enforced by any other person and Bank or Nuvei will be excused from performance hereunder.
4.04 Effect of Termination. When termination becomes effective, the parties rights and obligations existing under the Merchant Agreement survive. If the Merchant Agreement is terminated, regardless of cause, Nuvei and Bank may withhold and discontinue the disbursement for all Cards and other Merchant Transactions in the process of being collected and deposited and Bank and Nuvei may, without notice to Merchant, refuse to accept or revoke acceptance any Sales Draft or Credit Voucher or the electronic transmission thereof, if applicable, received by Bank or Nuvei on or any time after the occurrence of any Event of Default. If Merchant is terminated for cause, Merchant acknowledges that Nuvei or Bank may be required to report Merchants business name and the names and other identification of its principals to the MATCH file maintained by Visa and Mastercard and any Interac equivalent. Merchant expressly agrees and consents to such reporting if Merchant is terminated for any reason requiring or permitting listing on the MATCH file and Interac report. Merchant waives and will hold harmless Bank and Nuvei from any claims that Merchant may raise as a result of Bank or Nuveis MATCH file reporting, or Discovers CMNF reporting. If Merchant is terminated for cause, Servicer may, without prior notice to Merchant, debit Merchants Account and Reserve Account in an amount equal to the amount then owed to Bank or Nuvei, increase the fees payable by Merchant hereunder, require Merchant to deposit, as cash collateral, such amount as Servicer may require to secure Merchants obligations hereunder, and report to one or more credit reporting agencies any outstanding indebtedness of Merchant (or any guarantor of merchant’s obligations under the Merchant Agreement). Merchant will immediately cease requesting Authorizations. If Merchant obtains any Authorization after termination, the fact that any Authorization was requested or obtained will not reinstate the Merchant Agreement. Further, immediately upon termination Merchant will return all Servicer property, forms, or equipment. All obligations for Transactions prior to and after termination (including payment for Chargebacks and Bank or Nuvei expenses relating to Chargebacks) survive termination. Neither Bank nor Nuvei is liable to Merchant for damages (including prospective sales or profits) due to termination. Following termination, Merchant will upon request, provide Servicer with all original and electronic copies of Sales Drafts and Credit Vouchers that have been retained by Merchant as of the date of termination. Upon termination, any amounts due to Bank or Nuvei will accelerate and be immediately due and payable, without any notice, declaration or other act whatsoever by Servicer.
4.05 Early Termination. [Reserved]
4.06 Exclusivity. [Reserved]
4.07 Payment Networks; New Products/Services. With respect to Visa and Mastercard products, if Merchant accepts credit card payments from a particular Card Association (e.g., Mastercard), Merchant is not obligated to accept debit cards issued by Canadian issuers belonging to such Card Association (e.g., Maestro cards), and vice versa. Similarly, Merchant is not required to accept any new product or service introduced by the Card Association, unless Merchant expressly consents prior to such acceptance. For greater certainty, Merchant shall not be permitted to accept any new product or service, even if it has the technical capability to do so, unless Merchant has given its express consent to Servicer indicating acceptance of such new product or service.
ARTICLE 5 MISCELLANEOUS; FEES
5.01 Monitoring. Merchant acknowledges that Servicer may monitor Merchants daily presentment activity. Servicer may upon reasonable grounds suspend disbursement of Merchants funds for any reasonable period of time required to investigate suspicious or unusual presentment activity. Servicer will make good faith efforts to notify Merchant promptly following suspension. Servicer is not liable to Merchant for any loss, either direct or indirect, attributable to any suspension of funds disbursement. In order to maintain quality service, telephone communications with Merchant may be monitored and recorded without further notice or disclosure.
5.02 Forms. Merchant will use only the forms or modes of transmission of Sales Drafts and Credit Vouchers that are provided or approved in advance by Servicer, and Merchant may not use such forms other than in connection with Transactions pursuant to this Agreement.
5.03 Terminal Maintenance Program
A. (a) During the term of this Merchant Agreement, and provided Merchant is not delinquent in respect of any obligation hereunder, NUVEI shall repair or replace, at its option, all defective or damaged terminals sold or leased to Merchant (the Terminal Maintenance Program or TMP). Replacement terminals may be manufactured from new or refurbished parts; all such replacements will be functional equivalents of the replaced terminal. Merchant is responsible for ensuring that terminal is sufficiently packaged considering the condition of any defective or damaged terminal prior to shipment and bears the full risk of loss or damage for any terminal that is further made defective or damaged as a result of such terminal being improperly packaged upon shipment. (b) To receive TMP services, Merchant must (i) notify KEV and NUVEI of such defect or damage to a terminal no later than 10 business days from discovering the defect or when the damage was discovered and provide its identification number and terminal serial number; (ii) describe the symptoms and causes of terminal problems to NUVEI; (iii) follow NUVEIs instructions; and (iv) return the defective or damaged terminal to NUVEI no later than twelve (12) weeks from discovering the defect or when the damage was discovered. Replaced terminals become NUVEIs property. Failure to return any replaced terminal within the aforementioned twelve (12)-week period will result in a charge of $200 per terminal. All shipping costs to return defective or damaged terminals shall be borne by Merchant. For the avoidance of doubt, any further costs including but not limited to cost of shipments of replacement terminals, terminal re-deployment, key injection costs shall be borne by NUVEI. There shall be no additional charges for deployment of replaced terminals to the Merchants. (c) TMP does not cover (i) lost or stolen terminals; (ii) damage caused by Merchants gross negligence; (iii) unauthorized modifications, use of incompatible devices or accessories, extreme ambient environments, fluctuation or surges of electrical power, electrical or magnetic interference, lightning, static electricity, fire, acts of God or other external causes; (iv) equipment with serial numbers that have been altered, defaced or removed; (v) cosmetic damage having no effect on functionality; or (vi) consumable parts, such as batteries.
B. Merchant will be entitled to receive paper rolls upon request to NUVEI, while enrolled in the TMP. Costs for ground shipping shall be borne by NUVEI.
5.04 Indemnification. (a) Merchant shall at its expense and upon demand indemnify, defend and hold harmless Bank and its officers, directors, members, shareholders, partners, employees, agents, subcontractors, representatives and any Card Association (each an Indemnified Party) from any liability of any kind, loss, claim, damage, interest, fine, penalty, fee, charge, cost and/or expense (including reasonable and properly incurred legal and other professional (including expert witness) fees, costs and/or expenses) (collectively Losses), which an Indemnified Party suffers or incurs in relation to any action, cause of action, dispute, controversy, complaint, suit, litigation, proceeding, claim, demand or assessment, fine or similar charge whether arising in contract, tort or otherwise (collectively Claim) brought against an Indemnified Party by a third party where such Claim is caused by Merchant or arises out of any material breach of this Merchant Agreement by Merchant or as a result of, or in connection with Merchants misrepresentation, material breach or failure to comply with the Rules or Applicable Law, and/or with respect to Merchants websites, trademarks, products or services, and where relevant to Banks use of the above, and including without limitation, in relation to actual or alleged infringement, misappropriation, or violation of any third-party intellectual property rights. Notwithstanding the preceding, Merchant is not liable to indemnity an Indemnified Party if such Losses are caused by, related to or arise out of such Indemnified Partys recklessness or willful misconduct, or the Indemnified Partys material breach of this Agreement. Merchant will promptly reimburse Bank for any Assessments imposed by the Card Association in connection with this Agreement, including the data security provisions, and authorizes Bank to deduct any such sums from amounts to be cleared and settled with Merchant. (b) As to each of Merchant, KEV, and Nuvei, each party shall at its expense and upon demand indemnify, defend and hold harmless the other partys officers, directors, members, shareholders, partners, employees, agents, subcontractors, and representatives (each Other Indemnified Party) from any Claim brought against an Other Indemnified Party by a third party where such Claim is caused by such party or arises out of any material breach of this Merchant Agreement by such party or as a result of, or in connection with such partys misrepresentation, material breach or failure to comply with the Rules or Applicable Law, and/or with respect to such partys websites, trademarks, products or services, in relation to actual or alleged infringement, misappropriation, or violation of any third-party intellectual property rights. Notwithstanding the preceding, none of KEV, Nuvei, or Merchant is liable to indemnify an Other Indemnified Party if such Losses are caused by, related to or arise out of such Other Indemnified Partys recklessness or willful misconduct, or the Other Indemnified Partys material breach of this Agreement.
5.05 Records. In addition to any records Merchant routinely furnishes to Servicer under the Merchant Agreement, Merchant will preserve a copy of all Sales Drafts and Credit Vouchers and any evidence of Authorization of the Cardholder for at least two years after the date Merchant presents the Transaction to Servicer.
5.06 Requests for Copies. Within two business days following Merchants receipt of a request by Servicer, Merchant will provide to Servicer either the original or a legible copy (in a size comparable to the actual Sales Draft) of the Sales Draft and any other documentary evidence available to Merchant that Servicer reasonably requests to meet Servicers obligations under applicable Laws or otherwise to respond to questions concerning Cardholder accounts.
5.07 Compliance with Law; Taxes. Merchant will comply with all Applicable Laws to Merchant, Merchants business and any Card Transaction. Merchant shall be liable for all taxes, except Servicers income taxes, required to be paid or collected as a result of the Merchant Agreement.
5.08 Fees and Charges. (a) Merchant will pay to NUVEI the fees and charges set forth in the Merchant Application. Additionally, Merchant is subject to any Card Association fee updates introduced prior to the date on which Nuvei issues a MID to Merchant, provided that Nuvei notifies Merchant and KEV of such updates prior to issuance of the MID. If Merchant physically alters related equipment, uses any wireless service for a purpose not strictly related to processing Transactions or otherwise misuses any wireless services, NUVEI shall be entitled, in addition to any other recourses and remedies hereunder, to terminate this Merchant Agreement immediately and/or charge NUVEIs costs for such wireless services plus a sum equal to 20% of the total costs of such services. All fees relating to wireless services shall be aggregated on Merchants statement; a breakdown is available upon request. Any amounts not paid when due are subject to a late payment charge of 2% per month (26.8% per annum). NUVEI may also, at its option (i) withhold settlements until such time as all outstanding amounts have been duly acquitted; and/or (ii) suspend or terminate all services hereunder.
(b) NUVEI may upon 90 days prior notice adjust all fees, rates and charges set forth on Schedule A to reflect inter alia changes in, or additions to (i) Card Association fees (including but not limited to interchange, assessments, and all other Card Association fees, costs or charges); or (ii) pricing of third-party vendor goods or services used in connection with the provision of services hereunder. All such adjustments shall become effective on the 90th day following notice by NUVEI unless Merchant provides notice to NUVEI of its intent to opt out of such adjustment prior to the effective date. Failing receipt of such notice, this Agreement shall remain in full force and effect and the adjustments shall apply to services performed by BANK and Servicer after the effective date of the adjustment. The preceding opt-out and termination rights shall not apply where adjustments to fees, rates or charges (i) are made in accordance with a pre-determined schedule or this Merchant Agreement; or (ii) are not related to debit and credit transactions, in which case any such adjustment may be made upon 20 days prior notice to Merchant.
(c) Notwithstanding any provision to the contrary, but without limiting Merchants right to terminate for a price adjustment described in the preceding paragraph 5.08 (b), NUVEI may adjust any fees, rates and charges if the Card Association or a government entity increases or decreases any fees, rates and charges in connection with the services provided hereunder and NUVEI did not receive sufficient prior notice of such increase to reasonably permit NUVEI to comply with the foregoing 90-day timeframe; in such case, the amount of the prior notice shall be reasonable under the circumstances, and the adjustment shall become effective no later than such adjustment becomes effective as to NUVEI. Moreover, if a Card Association or a government entity reduces any fees, rates and charges in connection with the services provided hereunder and NUVEI does not adjust the Merchants fees, rates and charges set forth in Schedule A accordingly, Merchant may terminate the Merchant Agreement.
(d) NUVEI shall provide to Merchant 180 days prior written notice before making any significant structural fee adjustment (e.g., the introduction of a new interchange category or new type of Card).
(e) The Transaction qualification (Qualified or Non-Qualified) are based on transaction interchange category and defined in the document Understanding Merchant Pricing found here http://www.pivotalpaymentsdirect.com/UnderstandingPricingCT Merchant shall, prior to signing this agreement, ensure they read and comprehend the aforementioned Understanding Merchant Pricing document and hereby attest they have received acceptable answers to any and all questions they may have raised regarding said document and their pricing. If any Transaction is Non-Qualified, then Merchant will be charged the Non-Qualified rate on top of the Qualified rate (as applicable and as set forth on Schedule A). Non-Qualified fees include increased Card Association interchange rates and fees, as well as a Servicer surcharge. Information concerning Visa and Mastercard interchange rates is available, respectively, at www.visa.com and www.mastercard.com.
(f) NUVEI will provide Merchant with monthly electronic statements reflecting the fees and charges to be paid by Merchant. Merchant must review the statements and inform Servicer of any errors within 60 days of the date of the statement. Servicer will have no obligation to provide refunds for errors that the Merchant fails to report within such 60-day period.
5.09 Security Interest. [Reserved]
5.10 Pre-Authorized Debits (PADs). Merchant authorizes NUVEI or BANK and any third party hereto, to initiate debit and credit entries to the Account (as more fully described in Section 5.18 below), the Reserve Account or any other account maintained by Merchant or any guarantor at any financial institution for amounts owed under the Merchant Agreement, which amounts may be variable. Merchant agrees that any withdrawals by Bank or Nuvei or any third party hereto in accordance with this Merchant Agreement are business PADs, as defined in Rule H1 of Payments Canada. This authorization includes initiation by Bank or Nuvei of monthly variable recurring payments and/or occasional one-time payment of any amounts payable pursuant to this Merchant Agreement. Merchant waives its right to receive pre-notification of the debit amount before such debit is processed. This authorization shall survive the termination of the Merchant Agreement and remain in effect until full and final payment of all of Merchants obligations. If (i) Merchants Account is closed, transferred, invalid or out of funds; (ii) Merchant withdraws its authorization for Bank or Nuvei to make withdrawals from the Account(s); or (iii) Bank or Nuvei cannot access such Account(s) for any reason, then Bank or Nuvei may terminate this Merchant Agreement and Merchant shall immediately pay all applicable fees and damages. If a new account is opened at another branch or bank, this authorization shall have the same force and effect as if it had originally been directed to that branch or bank and Merchant shall provide Bank and Nuvei all reasonably requested information in relation to such new account. Any delivery of this authorization to such new bank or branch shall constitute delivery by Merchant. Merchant must give Servicer no less than 30 days prior written notice of any changes to the Account(s) and/or cancellation of this authorization. If debits from Merchants Account(s) do not comply with this Merchant Agreement, Merchant has certain recourse rights (e.g., Merchant has the right to seek reimbursement for any debit that is unauthorized or inconsistent with this Merchant Agreement). Merchant may contact its financial institution or visit www.cdnpay.ca for further information and cancellation resources. Neither Bank nor Nuvei will be liable for any delays in receipt of funds or errors in debit entries. The above authorization applies only to the method of payment and does not have any bearing on the contractual obligations between Merchant, Bank and Nuvei under this Merchant Agreement.
5.11 Modifications to Agreement. The Merchant Agreement is subject to amendment required to conform with Card Association Rules or any APMP rules, as amended from time to time, and Merchant expressly acknowledges that any election by Bank or Servicer regarding means to comply with either Card Association Rules or Applicable Law or regulation will not diminish or otherwise impact any of Banks or Servicers rights hereunder. Subject to Section 5.08 above, Servicer may from time to time amend any provision or provisions of the Merchant Agreement upon 20 days prior notice to Merchant. Amendments required due to changes in either Card Association or an APMPs rules and regulations or any Applicable Law or judicial decision may become effective on such shorter period of time as Servicer may specify if necessary to comply with the applicable rule, regulation, Law or decision. If there is any conflict between a part of the Merchant Agreement and any present or future Association Regulation or applicable Law or regulation, only the part of the Merchant Agreement that is affected shall be modified and that modification shall be limited to the minimum necessary to bring the Merchant Agreement within the requirements of the Association Regulation, law or regulation.
5.12 Warranty Disclaimer. NEITHER BANK NOR SERVICER MAKES ANY WARRANTIES REGARDING THE USE, OPERATION OR PERFORMANCE OR NON- PERFORMANCE OF SOFTWARE, SYSTEMS, OR THIRD -PARTY PROCESSORS UTILIZED IN CONNECTION WITH THE MERCHANT AGREEMENT, WHETHER EXPRESS OR IMPLIED, AND EACH EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SERVICER SIMILARLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO ANY PRODUCT HEREUNDER.
5.13 Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION HEREIN, (I) BANK AND SERVICERS AGGREGATE LIABILITY MAY NOT EXCEED THE AMOUNT OF THE SALES DRAFT IN CONNECTION WITH A TRANSACTION LESS ANY APPLICABLE FEES AND CHARGES AND (II) BANK AND SERVICERS AGGREGATE LIABILITY SHALL NOT, UNDER ANY CIRCUMSTANCE, EXCEED THE FEES PAID BY MERCHANT UNDER SCHEDULE A OF THE MERCHANT APPLICATION (NET OF INTERCHANGE, ASSESSMENTS AND ALL OTHER CARD ASSOCIATION AND THIRD-PARTY FEES IMPOSED ON BANK OR SERVICER) DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT UPON WHICH SUCH LIABILITY IS BASED. FOR THE AVOIDANCE OF DOUBT AND NOTWITHSTANDING ANYTHING LISTED IN THIS SECTION OR THE MERCHANT AGREEMENT, THE BANKS TOTAL LIABILITY WITH RESPECT TO THIS MERCHANT AGREEMENT SHALL NOT EXCEED TEN THOUSAND ($10,000). NEITHER BANK NOR SERVICER IS LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (WHETHER ANY SUCH CLAIM ALLEGES BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY. MERCHANT WAIVES ALL CLAIMS AGAINST BANK AND SERVICER FOR ANY LOSS, CLAIM, DEMAND, PENALTY, ACTION, DELAY, COST OR EXPENSE (INCLUDING REASONABLE LEGAL FEES) OF ANY KIND UNLESS MERCHANT PROVIDES WRITTEN NOTICE TO SERVICER OF THE OCCURRENCE THAT GAVE RISE TO THE ALLEGED LIABILITY WITHIN 30 DAYS AFTER MERCHANT KNEW OR SHOULD HAVE KNOWN OF THE OCCURRENCE. FURTHER, MERCHANT WILL REIMBURSE BANK AND/OR SERVICER FOR ALL EXPENSES AND COSTS, INCLUDING LEGAL FEES, WITH REGARD THERETO.
5.14 Waiver. Banks or Servicers failure to enforce one or more of the provisions of the Merchant Agreement will not constitute a waiver of the right to enforce the same or other provision in the future.
5.15 Written Notices. All written notices and other written communications required or permitted under the Merchant Agreement must be either personally delivered or sent by email, facsimile, and the sender obtains a fax or email confirmation receipt, courier, charges prepaid, addressed as follows:
(a) If to Servicer
Nuvei Technologies Corp. 1100 Boulevard Ren-Lvesque O #900, Montral, QC H3B 4N4 Attn: Legal Dept.
and
KEV Software Inc. 1167 Caledonia Rd. Toronto, Ontario M6A 2X1 Attn: Mr. Bram Belzberg, CEO
(b) If to Merchant:
At the email address, facsimile number, address provided as the billing address and to the contact listed on the Merchant Application.
A written notice shall also be deemed sent and received if notification is given to the Merchant: (i) through any technological platform offered by Servicer and used by Merchant to access its account; or (ii) by way of Merchant billing statement, whether such billing statement is sent via a technological platform or mail.
Any written notice delivered to the party to whom it is addressed will be deemed to have been given and received on the day it is so delivered at that partys address, provided that (i) it is so delivered before 5:00 p.m.; and (ii) if that day is not a business day then the written notice will be deemed to have been given and received on the next business day. Merchant acknowledges and agrees that written notice and other written communications required or permitted to be given by Servicer under the Merchant Agreement shall also be properly given if contained in the on- line or monthly statement provided to Merchant by Servicer, or if sent via electronic mail at the email address provided by Merchant. For purposes of this Section 5.15, references to a time of day shall mean that time of day in the jurisdiction of the receiving party (e.g., 5:00 p.m. shall mean 5:00 p.m. in the jurisdiction of the receiving party) and references to business day shall be mean a day other than a Saturday, Sunday or statutory holiday in the jurisdiction of the receiving party. If the addressee of a notice rejects or otherwise refuses to accept a notice hereunder, or if the notice cannot be delivered because of a change of address for which notification of change was not given, then notice will be deemed received upon rejection, refusal or inability to deliver.
5.16 Choice of Law; Arbitration. The Merchant Agreement is governed by, and is to be construed and interpreted in accordance with, the laws of the Province of Ontario exclusively. Each of the parties agrees that all issues, claims and dispute arising from or related the Merchant Agreement (including with third parties who are not parties to this Merchant Agreement) shall be referred to and determined by private, confidential arbitration in Ontario before a single arbitrator chosen by the parties, the whole at their joint cost. To the extent permitted by applicable law, each of the parties irrevocably waives any objection (including any claim of inconvenient forum that it may now or hereafter have) to arbitration arising out of or relating to the Merchant Agreement in the courts of Ontario, as well as any right it may have to launch or participate in any class action against Servicer or Bank. Where applicable laws do not permit the use of compulsory arbitration or the waiver of class-action rights, the arbitration and class-action provisions of this Section 5.16 shall be subject to severance.
5.17 Entire Agreement; Interpretation; Assignability. This Merchant Agreement expresses the entire understanding of the parties with respect to the subject matter hereof and except as provided herein, may be modified only in writing executed by Servicer and Merchant. The Merchant Agreement may not be assigned by Merchant, directly or by operation of law, without Servicers prior written consent. Servicer or Bank may assign its rights and obligations under the Merchant Agreement, without notice to Merchant. The Merchant Agreement will be binding upon and inure to the benefit of the parties respective heirs, personal representatives, successors and assigns. The Merchant Agreement shall not be construed more strongly against any party, regardless of which party was more responsible for its preparation.
5.18 Deposit Account. Merchant will at all times maintain an Account at a bank that is a member of the Payments Canada EFT system and will provide Servicer with proper authorization to debit the Account. All credits for collected funds and debits for fees, payments and Chargebacks and other amounts for which Merchant is liable under the terms of the Merchant Agreement will be made to the Account. Merchant may not close or change the Account without written notice to Servicer. Merchant will be solely liable for all fees and costs associated with the Account and for all overdrafts and Merchant shall immediately deposit into the Deposit Account an amount sufficient to cover any overdraft and any related service charges or fees. All credits and debits to the Deposit Account made hereunder are subject to review, verification and acceptance by Servicer. In the event of error, Merchant authorizes Servicer to make correcting credits or debits, as the case may be, without notice to Merchant.
5.19 Credit and Financial Inquiries; Additional Locations; Inspection. Bank and Nuvei may make, at any time, any credit inquires which it may consider necessary to accept or review acceptance of the Merchant Agreement or investigate Merchants ability to perform its obligations hereunder, or its Sales Draft presentment and Card acceptance activities subsequent to acceptance of the Merchant Agreement. Such inquiries may include, but are not limited to, a credit and/or criminal background check of the business including its proprietor, partners, principal owners, shareholders or officers. Upon Bank or Nuveis request, Merchant will provide the written consent of any person for which an inquiry has been or is to be made if such person has not executed the Merchant Agreement and will provide any financial statements, income tax and business tax returns and other financial information as Bank or Nuvei may consider necessary to perform initial or periodic reviews of Merchants financial stability and business practices. Merchant may accept Cards only at locations approved by Servicer. Additional locations may be added subject to Servicers approval. Servicer may delete any location by providing notice as provided herein. Merchant will permit Bank or Nuvei, at any time and from time to time, to inspect locations to confirm that Merchant has or is adhering to the terms of the Merchant Agreement and is maintaining the proper facilities, equipment, inventory, records and license or permit (where necessary) to conduct its business. Bank or Nuvei, their respective internal and external auditors, and its regulators may audit compliance with (i) the Merchant Agreement, (ii) all Applicable Law (iii) Data Privacy Requirements, (iv) Card Association Rules and regulations and (v) guidance applicable to the services, Card acceptance, Transaction processing, and data security provisions hereof. Merchant will make available its records maintained and produced under the Merchant Agreement, and Merchants facilities will be made accessible, upon notice during normal business hours for examination and audit. Nothing in this Section may be construed to require Merchant to give access to its facilities, personnel or records in a manner that unreasonably interferes with its business operations. Each party will bear its expenses of any audit.
5.20 Marketing of Non-Bankcard Services. From time to time, Servicer may offer to Merchant certain additional products and services, which may or may not be related to the acceptance or processing of Card Transactions. If such an offer is made, Merchant may decline the offer or, based on acceptance of the offer by Merchant, in accordance with terms provided by Servicer, and such non-Bankcard organization, be liable for payment associated with its acceptance of such additional products and services.
5.21 Force Majeure. Each of Bank and Servicer will be released from liability hereunder if it fails to perform any obligation where the failure occurs by reason of any act of God, fire, flood, storm, earthquake, tidal wave, sabotage, war, military operation, terrorism, national emergency, pandemic, epidemic, mechanical or electronic breakdown, computer malfunction (whether software, hardware of firmware related), transmission link failures, communication failures, unanticipated loads, transactions or infiltrations of Gateway Services, delay or error in clearing or processing a Transaction (including through Interchange), or any other systems, failure, delay or error by any third party or in any third-party system, civil commotion, governmental regulation or the order, requisition, request or recommendation of any governmental authority, or either partys compliance therewith, or any other similar cause beyond either partys reasonable control.
5.22 No Third-Party Beneficiary; No Partnership. Other than with respect to NUVEI or the wholly-owned (directly or indirectly) subsidiaries of KEV and affiliates of KEV that may provide services to Merchants from time-to-time, no person or entity may be deemed a third-party beneficiary of the Merchant Agreement. Nothing in the Merchant Agreement shall be deemed to create a partnership, joint venture or any agency relationship between the parties.
5.23 Language. This Merchant Agreement and all related documentation were drafted in English at the express consent of the parties hereto. Les parties ont demand que les prsents contrats ainsi que les documents sy rattachant soient rdigs en langue anglaise.
5.24 Inconsistency. Subject to Section 6.05, in the event of any inconsistency between the terms of the Merchant Application and this TOS, the terms of the Merchant Application shall prevail.
ARTICLE 6 ADDITIONAL SERVICES
THE FOLLOWING SECTION A (EQUIPMENT PURCHASE), SECTION B (E-COM MERCE/GATE WAY), SECTION C (FOREIGN CURRENCY PROCESSING) WILL APPLY IF SELECTED BY MERCHANT IN THE MERCHANT APPLICATION. DEFINED TERMS SHALL HAVE THE SAME MEANING AS THOSE ASCRIBED IN ARTICLE 1, HEREABOVE. THE ADDITIONAL SERVICES ARE PROVIDED BY NUVEI ONLY.
A. EQUIPMENT PURCHASE
6.01 Sale of Equipment. NUVEI agrees to sell and Merchant agrees to purchase from NUVEI the equipment described in the Equipment Schedule (Equipment).
6.02 Purchase Price. Merchant agrees to pay the price of the Equipment together with all applicable taxes, in accordance with the terms set out in the Equipment Schedule (Purchase Price) and this Merchant Agreement.
6.03 No Warranties. ALL EQUIPMENT AND RELATED PRODUCTS AND SERVICES PROVIDED BY NUVEI HEREUNDER ARE PROVIDED AS IS AND WITHOUT WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR INTER- OPERABILITY OR COMPATIBILITY OF EQUIPMENT WITH ANY HARDWARE (PERIPHERAL OR OTHER) OR SOFTWARE INCLUDED OR NOT WITH THE EQUIPMENT, PRODUCTS OR SERVICE.
6.04 Title and Risk of Loss. NUVEI will own the Equipment until complete payment of the Purchase Price by Merchant. The preceding notwithstanding, the risk of loss passes to Merchant from the moment the Equipment is delivered to the location specified by Merchant when the Equipment was ordered. If Merchant fails to pay any amount owing to NUVEI in respect of the Equipment, NUVEI shall have the right without prejudice to any other available rights or remedies, to terminate this Merchant Agreement forthwith and to take immediate possession of and remove the Equipment, at Merchants sole expense and risk. Merchant shall not have the right to offset any amount owing by NUVEI or Bank against payment due in respect of the Equipment.
6.05 Inconsistency. In the event of any inconsistency between the terms of this Section A and any other terms and conditions of this Merchant Agreement, the provisions of this Section A shall prevail.
B. E-COMMERCE / GATEWAY
7.1 License. Following the successful enrolment of Merchant through NUVEIs registration page, NUVEI shall grant to Merchant a personal, non- transferable, non-exclusive, revocable and limited license to use its payment gateway services, which services include an e-commerce gateway application software that authorizes payments, MCP Transactions and an online transactional reporting tool (Gateway Services).
7.2 Control Panel.
(i) To access the Nuvei online reporting system (Nuvei Control Panel), Merchant shall provide a valid, working administrative email address and identify an Administrator to access the Nuvei Control Panel. Subsequent changes in the identity of the Administrator will require submitting additional documentation signed by the Administrator or a C-level executive of the Merchant. Nuvei recommends that the Administrator be a C-level executive of the Merchant. By electing to allow the Administrator access to the Nuvei Control Panel, Merchant hereby grants the Administrator full access/action permissions to Merchants account(s) on the Nuvei Control Panel. Unless expressly requested by Merchant or the Administrator, the Administrator is the only person who is authorized on behalf of Merchant to define, allocate and manage the access of the Merchants additional authorized users to the Nuvei Control Panel. This includes, but is not limited to, role management, requesting password re-allocation, and granting a shared log-in (Administrator Permissions). Merchant specifically authorizes the Administrator to appoint authorized users with Administrator Permissions without the need for further Merchant approval. Merchant is fully aware of the scope and potential consequences of such permission. When contacting Nuvei, the Administrator and authorized users with Administrator Permissions will be taken through security procedures to validate their identity.
(ii) Account activation email shall be initiated by the Nuvei Control Panel directly by the Administrator and those users authorized by the Administrator. The Administrator and such authorized users shall be referred to jointly as Authorized Users. Unless expressly waived by Nuvei, only company e-mail domain addresses are acceptable for Authorized Users (i.e. not Hotmail, Gmail, Yahoo, etc.). Generic email accounts (e.g., admin@merchantcompany.com) must be role-based and may not be an internal distribution group. Any changes to the identity of the Administrator must be made via the administrative email address provided. Password resets are only available by calling the Nuvei Technical Support Team. A password reset may only be initiated by the Administrator. The Administrator is authorized to perform a password reset for any Authorized User.
(iii) Merchant shall not attempt, nor permit persons who are not identified herein, or by the Administrator, and confirmed by Nuvei as an Authorized User, to access the Nuvei Control Panel and shall promptly notify Nuvei of any suspected or actual unauthorized access. Any action taken by an Administrator or an Authorized User while such person was logged into the Nuvei Control Panel shall be deemed to be authorized by the Merchant. Nuvei shall not be responsible for any loss occurring as a result of a failure to maintain access permissions or to keep those access permissions secure. Merchant shall be fully and solely responsible for the establishment and maintenance of procedures to ensure the control and confidentiality of access permissions and any account passwords. Merchant is solely responsible for terminating access permissions for an Administrator or Authorized User that is no longer authorized to access the Nuvei Control Panel because such person has left the company or otherwise. Merchant represents and warrants that it has in place, and shall continue to maintain and enforce, stringent security policies that address, amongst other things, the proper guidelines for authorized users to use the Nuvei Control Panel and how to retain and safeguard user IDs and passwords, such as periodical password changes, prohibition of usage of public computers/networks, and disablement of utilities/browsers that remember username/password.
(iv) The Nuvei Control Panel is accessed through the internet which is a public system over which Nuvei has no control. Merchant fully agrees to use the Nuvei Control Panel at Merchants sole risk.
(v) ANY PERSON WHO ENTERS THE CORRECT ACCOUNT IDENTIFICATION AND SECURITY VALIDATION AND VERIFICATION INFORMATION IN THE NUVEI CONTROL PANEL WILL BE ABLE TO ACCESS THE MERCHANTS ACCOUNT. ANY TRANSACTION COMPLETED USING THOSE ACCESS PERMISSIONS WILL BE DEEMED AUTHORIZED BY MERCHANT. NUVEI SHALL HAVE NO LIABILITY FOR ANY LOSS OR DAMAGE THAT MAY OCCUR AS A RESULT OF ANY UNAUTHORIZED ACCESS TO THE NUVEI CONTROL PANEL USING AN ADMINISTRATORS OR AUTHORIZED USERS CORRECT ACCOUNT IDENTIFICATION AND SECURITY VALIDATION AND VERIFICATION INFORMATION.
(vi) Nuvei reserves the right to change the access guidelines and requirements to access the Nuvei Control Panel at any time and without notice. Nuvei may, at any time, suspend or otherwise restrict certain or all functionalities and/or access permissions including, but not limited to, instances in which Nuvei suspects unauthorized access or compromise of the account security.
7.3 Merchant Obligations. (1) Merchant shall provide a valid, working administrative email address on enrolment. Any changes to Merchants account must be made via the administrative email address provided upon enrolment. The security of Merchants account is dependent in part upon Merchant maintaining the security of such administrative email address. Merchant shall be fully and solely responsible for any unauthorized changes to Merchants account via this email address. (2) Merchant will be given an ID code and password to allow Merchant to have access to Gateway Services. Merchant shall be fully and solely responsible for the establishment and maintenance of procedures to ensure the control and confidentiality of identification codes and passwords and other access procedures (Codes). FAILURE TO PROTECT THE CODES MAY ALLOW UNAUTHORIZED PARTIES TO ACCESS THE GATEWAY SERVICES. Merchant is required to put in place internal procedures to limit such risk, including, but not limited to (a) changing the password at least once every 120 calendar days; (b) keeping every identification code under secure conditions; and (c) not keeping, in any form or in any place, any list of passwords. Merchant agrees to comply with any access or identification procedures and security protocols established from time to time by NUVEI, and if Merchant believes that any Code or security procedures has or may have become known by an unauthorized person (whether employed by Merchant or not), Merchant shall immediately notify NUVEI by telephone and confirm to NUVEI in writing such oral notification within 24 hours.
7.4 Merchants Responsibilities. Merchant understands and acknowledges that Gateway Services are merely a processing conduit. NUVEI has no control of or responsibility for accepting, processing or filling any orders for purchases by Merchants customers, or for handling any related inquiries. Merchant shall be fully and solely responsible for verifying the accuracy and completeness of all Card and APM transactions submitted and processed via Gateway Services, including determining the appropriate action to be taken for each such transaction (approve, void, reject or decline). NUVEI shall not be liable for any improperly processed transaction or illegal or fraudulent access to Merchants gateway account. Merchant agrees and acknowledges that it shall be fully and solely responsible for all activities conducted through Gateway Services. Merchant shall be fully and solely responsible for the content and promotion of its Web site. Merchant represents and warrants that it is the owner and/or that it has full right and authority to disseminate all information, data, graphics, text, video, music or other intellectual property which forms part of its Web site, which is provided by Merchant to persons purchasing goods or services from Merchant, or which is used by Merchant in its advertising and promotion.
7.5 Protecting Data. Merchant acknowledges and agrees that in the course of providing Gateway Services to Merchant, NUVEI will capture certain personal and identifiable information, including Cardholder account numbers and transactional information (Data). NUVEI shall not disclose Data to other third parties or use the Data except to the extent the use or disclosure of Data is necessary in (i) providing Gateway Services (including the dissemination of Data required by the acquiring bank, payment processor, any reseller, or financing agency (each a Member Service Provider or MSP)); (ii) maintaining records for internal tracking, reporting and support purposes; or (iii) complying with industry requirements, a court or governmental agency request or subpoena, or to defend NUVEIs rights in a legal dispute.
Merchant shall be fully and solely responsible for the security of Data residing on servers operated, controlled or owned by Merchant or a third party designated by Merchant. Merchant agrees to use commercially reasonable efforts, at its sole cost and expense, to maintain the security of its systems, including creating firewalls to protect against unauthorized access and any other Data Privacy Requirements. Merchant shall immediately notify NUVEI of any actual or suspected security breach involving Data and allow, at Merchants expense, NUVEI or any NUVEI agent to investigate and implement any measures reasonably required to prevent future occurrences of any such breaches. Merchant shall at all times comply with Data Privacy Requirements, as amended from time to time.
7.6 Singular Use. Gateway Services are provided for single Merchant Accounts. Merchant is prohibited from processing payments for or on behalf of any other individual or business.
7.7 Records. Merchant shall be solely responsible for compiling and retaining records of all transactional information for Merchants records. Except as otherwise provided herein, NUVEI shall not have the obligation to store, retain, report or otherwise provide any copies of or access to any Data collected or processed by NUVEI or any of its suppliers. Merchant shall be solely responsible for all equipment, hardware and software required to access or use Gateway Services.
7.8 Fees. Merchant shall pay to NUVEI the Gateway fees listed in Schedule A of the Merchant Application, including all applicable taxes.
7.9 Limitation of Liability. MERCHANT AGREES AND ACKNOWLEDGES THAT USE OF GATEWAY SERVICES ARE AT MERCHANTS SOLE RISK. ANY GATEWAY SERVICES, GOODS OR SOFTWARE PROVIDED HEREUNDER ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS, AND NUVEI GIVES NO OTHER EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, WHETHER STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO: WARRANTIES THAT THE GATEWAY SERVICES WILL BE COMPLETE, ACCURATE, SECURE, TIMELY, AVAILABLE, ACCESSIBLE, UNINTERRUPTED OR ERROR-FREE; IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE; OR THOSE ARISING BY OPERATION OF LAW, COURSE OF DEALING OR USAGE OF TRADE. MERCHANT UNDERSTANDS AND ACKNOWLEDGES THAT NUVEI SHALL NOT BE LIABLE FOR ANY IMPROPERLY PROCESSED OR AUTHORIZED TRANSACTION, OR ILLEGAL OR FRAUDULENT ACCESS TO MERCHANTS GATEWAY ACCOUNT OR DATA. THIS DISCLAIMER OF WARRANTIES CONSTITUTES AN ESSENTIAL PART OF THIS MERCHANT AGREEMENT. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS MERCHANT AGREEMENT.
EXCEPT AS OTHERWISE PROVIDED IN THIS MERCHANT AGREEMENT, MERCHANT EXPRESSLY AGREES THAT NUVEI SHALL NOT BE LIABLE FOR ANY LOSS (HOWEVER ARISING, INCLUDING NEGLIGENCE), ARISING FROM OR RELATED TO: (A) MERCHANTS FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE ITS GATEWAY ACCOUNT; (B) IMPROPER, ILLEGAL, UNAUTHORIZED OR FRAUDULENT TRANSACTIONS PROCESSED THROUGH MERCHANTS GATEWAY ACCOUNT; (C) DISRUPTION OF MERCHANT SERVICES, SYSTEMS, SERVER OR WEB SITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (D) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A MSP, APMP OR BANK; OR (E) UNAUTHORIZED ACCESS TO (i) DATA, CARDHOLDER INFORMATION (INCLUDING CREDIT CARD NUMBERS AND OTHER DATA), TRANSACTION DATA OR PERSONAL INFORMATION BELONGING TO NUVEI, MERCHANT OR ANY THIRD PARTY OR (ii) THE GATEWAY SERVICES, OR ANY SYSTEM OR PROGRAM ASSOCIATED THEREWITH; OR (F) THE LIMITATION OF THE FUNCTIONING OF ANY GATEWAY SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH.
NUVEI MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO THIRD-PARTY PRODUCTS OR SERVICES (INCLUDING THOSE OF A MSP OR APMP). MERCHANTS USE OF ANY SUCH THIRD-PARTY PRODUCTS OR SERVICES IS AT ITS OWN RISK. NUVEI ASSUMES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM ANY THIRD-PARTY PRODUCT OR SERVICE, REGARDLESS OF WHETHER OR NOT NUVEI IS A RESELLER OF OR REFERRAL AGENT FOR SUCH PRODUCT OR SERVICE.
7.10 Indemnification. Merchant shall defend, indemnify, and hold harmless each of Bank and Servicer and any of their respective officers, directors, agents and employees, from and against any and all claims, actions, proceedings and suits, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees), to which Servicer, Bank, the Card Associations, and other card sponsors may be subjected arising in whole or in part from the MCP and DCC services, any Card transaction involving Merchant, any act or omission of Merchant in connection with any such Card transaction, use of any third-party vendor, any breach of the Merchant Agreement by Merchant, or the Merchants or any third-party vendors violation of Applicable Laws or Card Association operating regulations, or any return of goods, price adjustment or other dispute with or claim by a Cardholder or End-User against Merchant (whether or not such Foreign Cardholders or End-Users claim is valid), including, but not limited to, claims or losses of any Cardholder or of any third party. Without limiting the generality of the foregoing or any other provision in this Merchant Agreement, Merchant agrees to be solely responsible for its actions in honouring or refusing to honour Cards and in retaining Cards in accordance with Card Association merchant operating procedures; and Merchant will indemnify, defend and hold the Card Associations, Service, Bank, and other members of the Card Associations harmless from any claim, loss or liability arising from any injury to persons, property or reputation which occurs as a result thereof.
7.11 Gateway Software/Limited License. Other than the express license granted herein, NUVEI grants no right or license to Merchant by implication, estoppel or otherwise to the Gateway Services. NUVEI and its licensors shall retain all ownership rights, title, and interest in and to its own products and services and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein. Merchant shall not: (i) attempt to reverse engineer, decompile, disassemble or otherwise translate or modify the Gateway Services software or related technology in any manner; (ii) sell, assign, license, sublicense or otherwise transfer, transmit or convey the Gateway Services software, or any copies or modifications thereof, or any interest therein, to any third party.
7.12 Inconsistency. In the event of any inconsistency between the terms of this Section B and any other terms and conditions of this Merchant Agreement, the provisions of this Section B shall prevail.
7.13 Termination. The license to Gateway Services shall immediately terminate upon the earlier of: (i) termination of expiration of this Merchant Agreement; (ii) termination of the Gateway Services; or (iii) failure of Merchant to comply with any provisions of this Section B. NUVEI may terminate Gateway Services for any reason with or without notice.
C. FOREIGN CURRENCY PROCESSING
8.1 Multi-Currency Processing Services (MCP)
Multi-currency processing (MCP) enables a Merchant to price its goods and services in various selected currencies (each an Acceptance Currency) and the Cardholder then decides to purchase the goods and services in the currency of his/her choice (e.g. Euro) (MCP Transaction). The Cardholder provides the card details at the point of sale and completes the Transaction in the chosen Acceptance Currency (e.g. Euro). The Transaction is authorized and submitted to the Card Associations for clearing and settlement in the chosen Acceptance Currency. However, the Merchant receives settlement of the MCP Transaction in Canadian Dollars in the same way as it receives settlement of other Transactions under the Merchant Agreement.
It is the Merchants responsibility to set its prices in the various Acceptance Currencies. NUVEI can make available to the Merchant for download a daily currency exchange rate table. However, the Merchant can choose to set prices for its goods and services as it wishes, either by reference to such exchange rate table, or any other exchange rate source, or as localized pricing in a fixed amount in the Acceptance Currency (e.g. 29.99). MCP Transactions will be cleared through the applicable Card Associations in the selected Acceptance Currency. The MCP shall apply only to those Cards issued under the brands of Visa, Mastercard or such other Card Associations included within the MCP that are billed to the Cardholder in an Acceptance Currency.
The conversion of the MCP Transaction from the Acceptance Currency to Canadian Dollars will be effected based upon a daily exchange rate table produced for the conversion of transactions from the involved Acceptance Currency to Canadian Dollars, which is obtainable from NUVEI. Upon authorization of a MCP Transaction, the authorization message returned to the Merchant will contain the Canadian Dollar amount into which that MCP Transaction will be converted to assist Merchants in reconciling their accounting. Merchant acknowledges that because of the fluctuation in currency exchange rates, localized pricing of goods and services in foreign Acceptance Currencies is likely to result in the Merchant receiving different amounts in Canadian Dollars from day to day, which may be more or less than the typical Canadian Dollar price of the Merchants goods or services. This risk is reduced if Merchant uses the daily exchange rate table made available by NUVEI.
Servicer reserves the right to add, delete or suspend any Acceptance Currency to or from the MCP, as the case may be, at any time without notice to Merchant. Further, NUVEI may terminate or suspend MCP services for any reason upon notice to the Merchant.
8.2 MCP Service Requirements
Merchant will comply with all reasonable instructions provided by NUVEI pertaining to Merchants participation in MCP. Without limiting the foregoing, Merchant agrees to comply with the following specific MCP requirements:
(i) Disclosure of Foreign Currency Amount at Point of Sale: In order to comply with Card Association regulations, the Merchant must display the amount of the MCP Transaction at the point of sale, including an Internet website buy page, in the various Acceptance Currencies that the Merchant wishes to offer, to enable the Cardholder to select the Acceptance Currency for the Transaction BEFORE providing his Card information for payment. Merchant agrees that it will at its sole cost use a point of sale device, or system which is certified by NUVEI for use with the MCP.
(ii) Disclosure of Foreign Currency Amount on Receipt: In accordance with Card Association Rules, all MCP Transaction receipts must show the amount of the Transaction in the correct Acceptance Currency chosen by the Cardholder and such amount must be preceded by the appropriate international currency symbol, or currency code for that Acceptance Currency.
(iii) Timely Presentment of MCP Transactions: The Merchant must present all MCP Transactions for settlement to NUVEI within one day after authorization, in order to minimize the risk of loss attributable to movement in the currency exchange rates for the various Acceptance Currencies between the time that a Foreign Transaction is completed and the submission of the batch clearing and settlement files to NUVEI. For the avoidance of doubt, neither Servicer nor any of its vendors bears responsibility for any foreign exchange loss attributable to an MCP Transaction processed using MCP.
(iv) Credits/Returns: In the event that Merchant issues a credit, reflecting either the partial or complete return or reimbursement of a MCP Transaction, Merchant must process said credit in the Acceptance Currency. In determining the Canadian Dollar amount of the credit to be deducted from the Merchants account, NUVEI shall use the MCP exchange rate applicable on the date of presentment of the credit or return transaction by Merchant. Due to the differences in the currency exchange rates applied to the underlying MCP Transaction and the related credit respectively, Merchant acknowledges that the final amount of the Canadian Dollars and could well be more. Merchant acknowledges that it will be responsible for the full amount of the credit, as set forth in the Merchant Agreement.
(v) Chargebacks: A Chargeback incurred in connection with a Foreign Transaction will be transmitted to Servicer by the applicable Card Association in the Acceptance Currency and converted by such Card Association into Canadian Dollars at the Card Association designated foreign exchange rate. Due to the variances in currency exchange rates applied to the underlying MCP Transaction and the related Chargeback respectively, Merchant acknowledges that the final amount of the Chargeback will differ from the original settlement amount received by the Merchant for the MCP Transaction in Canadian Dollars and could well be more. Merchant acknowledges that it will be responsible for the full amount of the Chargeback, as set forth in the Merchant Agreement.
(vi) Merchant Options: Merchant shall indicate to Nuvei which currencies it wishes to use as Acceptance Currencies. Merchant can change options by written request to NUVEI not less than 30 days notice.
8.3 Dynamic Currency Conversion (DCC)
(i) The Dynamic Currency Conversion enables certain of Merchants customers, whose Cards are denominated in certain currencies (Program Currency) other than Canadian Dollars (Foreign Cardholders), to present a Card at Merchants point-of-sale and to pay for a purchase in the currency of the Foreign Cardholder, based upon a rate of exchange determined by NUVEI, while Merchant receives settlement of the foreign transaction in Canadian Dollars (collectively, a Foreign Transaction).
(ii) Merchant acknowledges and agrees that a Foreign Transaction will be converted to the Program Currency in which the Card is denominated based upon an exchange rate in effect at the time of authorization for retail transactions and that the Foreign Transaction, as converted, will be cleared through the Card Associations) in the currency in which the Card is denominated. The Program shall apply only to those Cards issued by Visa, Mastercard or under the brands of such other Card Associations included within the DCC program that are billed to the Foreign Cardholder in a Program Currency. Additionally, DCC may not apply to credit-return transactions, or certain Foreign Transactions that are referred to Servicer for authorization or otherwise authorized by Merchant via telephone. NUVEI reserves the right to add, delete or suspend any currency to or from the Program, as the case may be, at any time without notice to Merchant. Further, NUVEI may terminate or suspend DCC services for any reason upon notice to the Merchant.
8.4 DCC Service Requirements.
Merchant will comply with all reasonable instructions provided by NUVEI pertaining to Merchants participation in the DCC program. Without limiting the foregoing, Merchant agrees to comply with the following specific DCC requirements:
(i) Program Disclosure: Merchant agrees to comply with all instructions and specifications applicable to DCC as provided by NUVEI from time to time. Without limiting the generality of the foregoing, Merchant shall follow DCC program procedures, as may be amended by NUVEI from time to time.
(ii) Foreign Cardholder Opt-In: Merchant shall, based upon the instructions provided by NUVEI and/or the Card Associations, from time to time, provide Foreign Cardholders with the ability to opt-in, or consent to participate in DCC. In the event that a particular Foreign Cardholder elects not to opt-in, it is understood that NUVEI will process that Foreign Cardholders transaction in Canadian Dollars. Merchant agrees to make such reasonable modifications as NUVEI may request to increase the likelihood of Foreign Cardholders opting-into the DCC program. It is understood that any Foreign Transaction for which Merchant fails to provide a Foreign Cardholder with the opt-in procedure as described herein may be subject to a Chargeback as defined in the Agreement.
(iii) Timely Presentment of Foreign Transactions: Merchant acknowledges that the timely presentment of Foreign Transactions is necessary for participation in the DCC program. For the avoidance of doubt, Foreign Transactions must be presented within twenty-four (24) hours of the completion of the Foreign Transaction. Notwithstanding the foregoing, Foreign Transactions submitted by Merchants involved in the hotel, lodging and cruise industries must be submitted within twenty-four (24) hours of a Foreign Cardholders checkout from the Merchants establishment, failing which Merchant may be subject to additional charges.
(iv) Credits/Returns: Unless Merchant uses point-of-sale technology that is not capable of processing credit-returns in the Program Currency in the manner required by NUVEI, a credit-return to a Foreign Cardholders account, reflecting either the partial or complete return or reimbursement of a Foreign Transaction, will be converted to the Program Currency using the exchange rate applicable on the date of presentment of the credit by Merchant, and that credit, as converted, will be cleared through the applicable Card Association in the Program Currency in which the Card is denominated, and if such support is not in place, then such credit or return transaction will be processed in Canadian Dollars, subject always to applicable Card Association rules.
(v) Chargebacks: A Chargeback incurred in connection with a Foreign Transaction will be transmitted to Servicer by the applicable Card Association in the Program Currency and converted by such Card Association into Canadian Dollars at the Card Associations designated foreign exchange rate. Given the potential variances in exchange rates applied to the underlying Foreign Transaction and Chargeback, Merchant acknowledges that the original amount of the Chargeback will likely differ from the original settlement amount received by the Merchant for the Foreign Transaction in Canadian Dollars. Notwithstanding anything herein to the contrary, Merchant acknowledges that it will be responsible for the full amount of the Chargeback under the terms of this Merchant Agreement.
(vi) Merchant agrees that any increased Interchange cost attributable to the increase in the price of the goods or services in Canadian Dollars prior to its conversion by the applicable service fee shall be borne by Merchant.
8.5 Indemnification.
Merchant agrees to indemnify Servicer, Bank, the Card Associations, and other card sponsors against any and all claims, demands, losses, damages, liability, actions, costs, judgments, arbitral awards and expenses (including reasonable attorneys fees), to which Servicer, Bank, the Card Associations and other card sponsors may be subjected arising in whole or in part from the MCP and DCC services, any Card transaction involving Merchant, any act or omission of Merchant in connection with any such Card transaction, use of any third-party vendor, any breach of the Merchant Agreement by Merchant, or the Merchants or any third-party vendors violation of Applicable Laws or Card Association operating regulations, or any return of goods, price adjustment or other dispute with or claim by a Cardholder or End-User against Merchant (whether or not such Foreign Cardholders or End-Users claim is valid), including, but not limited to, claims or losses of any Cardholder or of any third party. Without limiting the generality of the foregoing or any other provision in this Merchant Agreement, Merchant agrees to be solely responsible for its actions in honouring or refusing to honour Cards and in retaining Cards in accordance with Card Association merchant operating procedures; and Merchant will indemnify, defend and hold the Card Associations, Service, Bank, and other members of the Card Associations harmless from any claim, loss or liability arising from any injury to persons, property or reputation which occurs as a result thereof.
SCHEDULE DATA PROTECTION
Definitions 1.1. In this Data Protection Schedule the following words shall have the following meanings:
(a)Controller, process, and processor have the meanings given to them in the applicable Data Protection Law;
(b)Data Subject means an individual who is the subject of personal data;
(c)Data Protection Law means: (i) the General Data Protection Regulation ((EU) 2016/679) (GDPR); and (ii) any other laws, regulations and secondary legislation enacted from time to time relating to data protection, the use of information relating to individuals, the information rights of individuals and/or the processing of personal data; and
(d) Personal Data means information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person.
1.2. Terms and expressions not defined in this Schedule shall have the meaning set out in the Merchant Agreement.
Compliance with data protection law 2.1. Merchant and Nuvei shall comply with the applicable Data Protection Law as it applies to personal data processed under this Agreement. This clause is in addition to, and does not relieve, remove, or replace, Merchant or Nuveis obligations under the applicable regulation.
Data processing 3.1. Merchant and Nuvei agree and acknowledge that for the purpose of Data Protection Laws Merchant will be acting as a data controller and Nuvei will be acting as a data processor in respect of the Personal Data that is the subject of this agreement.
3.2. The Merchant is solely and wholly responsible for establishing and maintaining the lawful basis for the processing of personal data by Nuvei under this Agreement in order to fulfil its obligations and with respect to including (where applicable) the obtaining of all necessary consents from data subjects.
3.3. A description of the data processing carried out by Nuvei under this Agreement is set out in Part 1 of the Appendix to this Data Protection Schedule.
3.4. The Merchant acknowledges that aggregated, anonymized data may be created based on Personal Data. Data subjects are not identifiable from this data. This Data may be used and or shared with third parties for the purposes of billing, product enablement and build, testing or product improvement and for the purposes of replying to requests from public authorities.
3.5. The Merchant and Nuvei agree to ensure that all staff are appropriately trained in line with their responsibilities under applicable data protection law.
3.6. Data protection enquiries should be addressed to Nuveis Data Protection Officer at privacy@nuvei.com
3.7. In respect of the personal data processed by Nuvei as a data processor acting on behalf of the Merchant under this Agreement, Nuvei shall:
(a)process the personal data only on the Merchants written instructions, for compliance with legal obligations to which Nuvei is subject (in which case it shall, if permitted by such law, promptly notify the Merchant of that requirement before processing), and where processing is necessary for the purposes of the legitimate interests pursued by Nuvei including the prevention of fraud and the maintenance of information security (except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, or where the data subject is a child);
(b) ensure that it has in place appropriate technical and organizational measures to protect against unauthorized, unlawful or accidental processing, including accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data, such measures in each case to be appropriate to the likelihood and severity of harm to data subjects that might result from the unauthorized, unlawful or accidental processing, having regard to the state of technological development and the cost of implementing any measures.
(c) ensure that persons engaged in the processing of personal data are bound by appropriate confidentiality obligations;
(d) keep a record of the processing it carries out, and ensure the same is accurate;
(e) comply with any lawful request from the Merchant requesting access to, copies of, or the amendment, transfer or deletion of the Personal Data to the extent the same is necessary to allow the Merchant to fulfil its own obligations under the Data Protection Law, including the Merchants obligations arising in respect of a request from a data subject;
(f)notify the Merchant, except if otherwise prohibit by other applicable laws or regulation, if it receives any complaint, notice or communication (whether from a data subject, competent supervisory authority or otherwise) relating to the processing, the personal data or to either partys compliance with the Data Protection Law as it or they relate to this Agreement, and provide the Merchant with reasonable co-operation, information and other assistance in relation to any such complaint, notice or communication;
(g) notify the Merchant if, in its opinion, an instruction from the Merchant infringes any Data Protection Law (provided always that the Merchant acknowledges that it remains solely responsible for obtaining independent legal advice regarding the legality of its instructions) or Nuvei is subject to legal requirements that would make it unlawful or otherwise impossible for Nuvei to act according to the Merchants instructions or to comply with Data Protection Law;
(h)ensure in each case that prior to the processing of any personal data by any sub-processor, terms equivalent to the terms set out in this Data Protection Schedule are included in a written contract between Nuvei and any sub-processor engaged in the processing of the personal data;
(i)subject always to the requirement of sub-clause 3.7(h) regarding a written contract, the Merchant hereby gives its prior written authorization to the appointment by Nuvei of each of the sub-processors or categories of sub-processors (as the case may be) who will process personal data listed in Part 2 of the Appendix to this Data Protection Schedule, and to the extent this authorization is in respect of a category of sub-processors, Nuvei shall inform the Merchant of any intended changes concerning the addition or replacement of other categories of sub-processors;
(j)For personal data collected in regards to European Union, only transfer the personal data outside of the European Union (including to the UK if it ceases to be a member of the European Union) if it has fulfilled one of the following conditions:
i. the Personal Data is transferred to a country approved by the European Commission as providing an adequate level of protection for Personal Data,
ii. the transfer is made pursuant to European Commission-approved standard contractual clauses for the transfer of Personal Data
iii. or other appropriate legal data transfer mechanisms are used.
The transfer of personal data may take place worldwide subject to the aforementioned arrangements. If the legal means by which adequate protection for the transfer is achieved ceases to be valid, Nuvei will work with the Merchant to put in place an alternative solution. The Merchant acknowledges that Nuvei may disclose the data to any applicable Acquirer, APMP, Card Scheme and their respective sub-processors, (including sub-processors located outside the EEA and such other entities to which it may be reasonably necessary to disclose and transfer personal data including the competent regulatory authority, law enforcement authorities and anti-terrorism or organized crime agencies to whom it is necessary to disclose data.
(k) inform the Merchant (and in any event within five business day of becoming aware of such an event) if any personal data processed under this Agreement is lost or destroyed or becomes damaged, corrupted, or unusable or is otherwise subject to unauthorized or unlawful processing including unauthorized or unlawful access or disclosure;
(l) inform the Merchant (and in any event within five (5) business days) if it receives a request from a data subject for access to that persons personal data and shall:
promptly provide the Merchant with reasonable co-operation and assistance in relation to such request; and not disclose the personal data to any data subject (or to any third party) other than at the request of the Merchant or as otherwise required under this Agreement; (m)provide reasonable assistance to the Merchant in responding to requests from data subjects and in assisting the Merchant to comply with its obligations under Data Protection Law with respect to security, breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;
(o)subject to the requirements of commercial and client confidentiality, make available to the Merchant such information as is reasonably required to demonstrate compliance with this Data Protection Schedule and, subject to any other conditions set out in this Agreement regarding audit, allow for and contribute to audits, including inspections, of compliance with this Data Protection Schedule conducted by the Merchant or a professional independent auditor engaged by the Merchant. The following requirements apply to any audit:
i. the Merchant must give a minimum sixty (60) days notice of its intention to audit;
ii. the Merchant may exercise the right to audit no more than once in any calendar year;
iii. commencement of the audit shall be subject to agreement with Nuvei of a scope of work for the audit at least ten (10) days in advance;
iv. Nuvei may restrict access to certain parts of its facilities and certain records where such restriction is necessary for commercial and/or client confidentiality;
v. the audit shall not include penetration testing, vulnerability scanning, or other security tests;
vi. the right to audit does not include the right to inspect, copy or otherwise remove any records, other than those that relate specifically and exclusively to the Merchant;
vii. any independent auditor will be required to sign such non-disclosure agreement as is reasonably required by Nuvei prior to the audit; and
viii. the Merchant shall compensate Nuvei for its reasonable costs (including for the time of its personnel, other than the client relationship manager) incurred in supporting any audit.
Appendix to the Data Protection Schedule
Part 1 Description of the processing
Subject matter of the processing The processing of personal data to the extent necessary for the provision of the services set out in this Agreement between Nuvei and Merchant. Duration of the processing The duration of the processing of personal data by Nuvei under this Agreement is the period of this Agreement and the longer of such additional period as: (i) is specified in any provisions of this Agreement regarding data retention; and (ii) is required for compliance with law. Nature of the processing Such processing as is necessary to enable Nuvei to comply with its obligations, pursue its legitimate interests, exercise its rights under this Agreement, and to comply with its statutory obligations, including collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction. Purpose of the processing The performance of Nuveis obligations, exercise of its rights under this Agreement, the pursuit of its legitimate interests, its compliance with statutory obligations, including the performance of functions required or requested by the Merchant. Personal data types Personal data provided to Nuvei by or on behalf of the Merchant, including personal data provided directly to Nuvei by a data subject or third party: (i) on the instruction or request of the Merchant; or (ii) on the request of Nuvei where Nuvei has been authorized to make such request by the Merchant or is legally required to make such request. The personal data processed under this Agreement will include (depending on the scope of Services provided): name; address; date of birth; gender; nationality; location; email address; billing address; address; Country; Country code; zip code; post code; userID; telephone number; IP address, primary account number and associated card information (or similar number or code identifying an alternative payment method). Categories of data subjects Personal data related to individuals associated with the Merchant (including its past, current, and future shareholders and directors). Personal data related to individuals purchasing goods and/or services from the Merchant. Obligations and rights of the controller As set out in the Agreement.
Part 2 Authorized sub-processors and categories of sub-processor
Authorized sub-processor / category of sub-processor Description of the processing carried out by the sub-processor / category of sub-processor Other members of the Nuvei Group and Affiliates Any of the processing carried out by Nuvei Nuveis partners, service providers, affiliates and subsidiaries Use of personal data in the provision of payments and ancillary services, chargebacks, the investigation of suspected incidents of fraud and other services necessary to support the provision of payment services. Any applicable Acquirer, Alternative Payment Method Provider, Financial Institution, Card Scheme and their respective sub-processors, (including sub-processors located outside the EEA) Use of personal data in the provision of payments and ancillary services, chargebacks, the investigation of suspected incidents of fraud and other services necessary to support the provision of payment services. Compliance service providers Use of personal data in the performance of checks to identify politically exposed persons, persons that are subject to sanctions and other checks required by laws to which Nuvei is subject. Technology service providers used in the administration of payment, reconciliation and fraud services Use of personal data to facilitate the provision of payment services (including ancillary services) and fraud services. APPENDIX 1 EQUIPMENT RENTAL AGREEMENT
THIS EQUIPMENT RENTAL AGREEMENT (AGREEMENT) is made of even date as the Merchant Application and Agreement (Merchant Agreement) by and between Nuvei and Merchant.
WHEREAS Merchant has entered into a Merchant Agreement with Servicer for the processing of payment card transactions;
AND WHEREAS Nuvei has agreed to rent the above-described processing-related equipment (Equipment) to Merchant;
NOW THEREFORE, the Nuvei and Merchant agree as follows:
RENTAL. Subject to the terms and conditions hereof, Nuvei hereby agrees to rent Equipment to Merchant for a monthly fee per item of Equipment, the whole as set forth above. Neither KEV nor Bank are a party to this Equipment Rental Agreement.
TERM AND TERMINATION. The term of this Agreement shall follow that of the Merchant Agreement, as defined in Section 5 of the Merchant Agreement, unless sooner terminated pursuant to this Section. Merchant may terminate this Agreement by providing no less than 30 days notice to Nuvei. For the avoidance of doubt, Merchants obligation to pay any outstanding fees or other amount hereunder shall survive termination of this Agreement for any reason. In the that this Agreement terminates for any reason, Merchant shall, within twelve (12) weeks of the date of termination, and at Merchants sole expense, return the Equipment to Nuvei in its original condition (save for normal wear and tear). If Nuvei does not receive the equipment within said timeframe, Merchant agrees to immediately pay to Nuvei the amounts corresponding to the unreturned Equipment $200 per terminal. All amounts are in US Dollars.
Terminal Maintenance Program. During the term of this Merchant Agreement, and provided Merchant is not delinquent in respect of any obligation hereunder, Nuvei shall repair or replace, at its option, all defective or damaged terminals sold or leased to Merchant (the Terminal Maintenance Program or TMP). Replacement terminals may be manufactured from new or refurbished parts; all such replacements will be functional equivalents of the replaced terminal. Merchant is responsible for ensuring that terminal is sufficiently packaged considering the condition of any defective or damaged terminal prior to shipment and bears the full risk of loss or damage for any terminal that is further made defective or damaged as a result of such terminal being improperly packaged upon shipment. To receive TMP services, Merchant must (i) notify KEV and Nuvei of such defect or damage to a terminal no later than 10 business days from discovering the defect or when the damage was discovered and provide its identification number and terminal serial number; (ii) describe the symptoms and causes of terminal problems to Nuvei; (iii) follow Nuveis instructions; and (iv) return the defective or damaged terminal to Nuvei no later than twelve (12) weeks from discovering the defect or when the damage was discovered. Replaced terminals become Nuveis property. Failure to return any replaced terminal within the aforementioned twelve (12) week period will result in a charge $200 per terminal. All shipping costs to return defective or damaged terminals shall be borne by Merchant. For the avoidance of doubt, any further costs including but not limited to cost of shipments of replacement terminals, terminal re-deployment, key injection costs shall be borne by Nuvei. There shall be no additional charges for deployment of replaced terminals to the Merchants. TMP does not cover (A) lost or stolen terminals; (B) damage caused by Merchants gross negligence ; (C) unauthorized modifications, use of incompatible devices or accessories, extreme ambient environments, fluctuation or surges of electrical power, electrical or magnetic interference, lightning, static electricity, fire, acts of God or other external causes; (D) equipment with serial numbers that have been altered, defaced or removed; (E) cosmetic damage having no effect on functionality; or (F) consumable parts, such as batteries. Merchant will be entitled to receive paper rolls upon request to Nuvei, while enrolled in the TMP. Costs for ground shipping shall be borne by Nuvei.
REPRESENTATIONS AND WARRANTIES OF NUVEI. NUVEI MAKES ABSOLUTELY NO REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, AS TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF ANY EQUIPMENT AND EXPRESSLY DISCLAIMS SAME. INDEMNIFICATION. Merchant agrees to indemnify and hold Nuvei harmless from and against all claims, liability, damage, loss or expenses which may occur to or arise from the rented equipment, including any costs relating to collections and/or the return of such rented equipment.
LIMITATION OF LIABILITY: AMOUNT. IN NO EVENT SHALL NUVEI BE LIABLE TO MERCHANT FOR ANY LIABILITY, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, IN AN AMOUNT GREATER THAN THE WHOLESALE VALUE OF THE RENTED EQUIPMENT.
LIMITATION OF LIABILITY: DAMAGES. IN NO EVENT SHALL NUVEI BE LIABLE TO MERCHANT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS AND REVENUE, LOSS OF DATA OR LOSS OF USE, ARISING OUT OF THE MANUFACTURE, SALE, SUPPLYING OR FAILURE OR DELAY IN SUPPLYING THE RENTED EQUIPMENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
This Agreement, together with any documents to be delivered pursuant hereto, constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations, and discussions, whether oral or written, of the parties. Any terms used herein but not defined shall have the same meaning as is ascribed to such term in the Merchant Agreement. This Agreement shall be governed by and interpreted exclusively in accordance with the laws of the State of Arizona, whose jurisdiction the parties hereto irrevocably submit. All amendments to this Agreement must be in writing.