By reason of his subscription to the PayFort Service, the Merchant hereby agrees to the application of the below General Conditions, hereinafter referred to as the “General Conditions” to his contractual relationship with PayFort, to the exclusion of all other terms and conditions, including those of the Merchant.
Except for the change of the General Conditions governed by Article 13.8 below, no variation or addition to this Agreement shall be valid unless in writing signed by a representative of each of the parties to this Agreement (“Parties”). Such variation or addition shall only be applicable to the specific contract for which it has been agreed.
The Merchant acknowledges that it is entering into the Agreement as a professional and not as a consumer.
In the below General Conditions, as well as in the Merchant Contract, the following terms are defined as follows, when spelled beginning with a capital letter:
Financial Institutions: Every financial and/or banking organisation chosen by the Merchant and to which the Merchant is affiliated in order to manage his payments. The above mentioned Financial Institutions are commonly referred to as “Acquirers”.
Merchant: Any physical or moral person contracting with PayFort for the supply of the PayFort Service for the processing of payments in the framework of his sales application (for example, his e-commerce site).
Merchant Contract Proposal: Any document enabling the subscription of the PayFort Service mentioning the rendered service and its prices, sent to the Merchant by PayFort by e-mail or any other means, downloaded by the Merchant and signed by the latter.
Merchant Clients: Any physical or moral person purchasing from any Merchant
Merchant Contract: (i) the Current Merchant Contract Proposal referred to also as “Agreement” issued by PayFort and accepted in all its terms by the Merchant, leading to the activation of the PayFort Account of the Merchant or (ii) any other contractual document, including its annexes, entered into by PayFort and the Merchant in relation to use of the PayFort Service. In the absence of indication to the contrary, the Terms and Conditions shall apply to any Merchant Contract;
Merchant personal data: The data introduced by the Merchant in the PayFort Account, including, in particular, the postal and e-mail addresses used by PayFort in communications with the Merchant.
Merchant Users: Employees of the Merchant likely to use the PayFort Service or who may be concerned by its supply.
PayFort: the company supplying the PayFort Service.
PayFort Account: The account opened in the name of the Merchant on the PayFort Site, permitting the Merchant, in particular, to configure his user parameters and the management of his transactions.
PayFort Service: The payment service described in Article 1 of the present General Conditions, the exact designation of which is provided by PayFort or a commercial partner of PayFort.
PayFort Site: The Internet site accessible at the Internet address http://www.payfort.com/ or any other address of any subsidiary permitting access to the PayFort Account.
PSPID: PSPID is short for “Payment Service Provider ID”. A PSPID is the unique, non-modifiable access code to the PayFort payment platform, chosen by the Merchant when registering.
Software: The software referred to in Article 7 of the present General Conditions. The term refers to any software designated as such by PayFort or by an PayFort commercial partner, to the trade names for the products and services supplied, as well as any registered trademarks and other names.
Solution Provider: A company, external to both the Merchant and PayFort, integrating the PayFort Service into Merchant sales applications.
Third Parties: Any physical or moral person other than PayFort, its employees, the Merchant and Users of the Merchant.
USERID: A Merchant user’s unique identifier used together with a password as credentials to log into the PayFort Website or to request the PayFort Website the processing of transactions. For standard PayFort Accounts, PSPID and USERID are the same. For advanced PayFort Accounts, several USERID may be linked to a same PSPID, or a single USERID may give access to several PSPID data.
Where appropriate, a reference in the General Conditions to a person includes corporations, partnerships and other unincorporated bodies of persons.
Article 1. Object
- PayFort, acting as Payment Service Provider (PSP), provides the Merchant with a payment service enabling the Merchant to send, receive and manage the financial data gathered from his e-commerce site or received from any other manual or automatic distance sales management system, and to send said data to the Financial Institution(s) selected by him for the purpose of payments processing, to the extent the selected Financial Institutions are available and compatible with the service provided by PayFort within the framework of the Merchant Contract (“the PayFort Service”). The Merchant is entitled to create his own PayFort Account, update his profile, and consult or manage his payments via the PayFort Site.
- The PayFort Service is only for purpose of and only includes the payment module described in article 1.1, to the exclusion of any other commercial or functional aspect linked to the Merchant sales process, such as the creation and hosting of a product catalogue, the delivery of merchandise or the financial management of Merchant transactions.
Article 2. Address of the PayFort Account
2.1 The PayFort Account of the Merchant is accessible via the login option as specified on the PayFort Site. The options “login”, “subscribe”, “open my account”, “create an account”, etc, represent clearly indicated links on the PayFort Site, the labels of which can change to the sole discretion of PayFort. The address of the PayFort Site (http://www.payfort.com/) as well as all the others addresses included in the General Conditions, are given for information purposes only, and are subject to change. In such event the Merchant will be advised of such change in writing with at least 15 calendar days advance notice.
Article 3. Creation and management of the PayFort Account
- The Merchant, under his own responsibility creates his own PayFort Account by means of the “Create a test account” button on the PayFort Site. The Merchant himself chooses his PSPID. If the PSPID chosen by the Merchant is already used by another Merchant, the Merchant will be advised thereof by PayFort during the process of creation of the PayFort Account. He will then be asked to choose another available PSPID. When the Merchant has validly chosen his PSPID, and once agreed by PayFort, he will receive his password by e-mail. The Merchant hereby releases PayFort from any liability in the event of interception or improper use by a Third Party of the password thus communicated. The Merchant must change his password the first time it is used, and may then change it as many times as he wishes via the administration menu of his PayFort Account. The PSPID and the password enable the Merchant, via the “Access to my PayFort Account” option on the PayFort Site, to follow the stages of configuration of his account. After explicit and prior acceptance of the General Conditions, he confirms on-line the last stage of the configuration of his PayFort Account, which then launches the account activation procedure. The Merchant is informed that except in specific mentioned cases, the completion of this procedure will lead to the creation of a test account. Such account is activated without cost by PayFort. It allows the Merchant to thoroughly test freely the entire functionalities of his PayFort Account. When he deems the moment appropriate, the Merchant activates on line his PayFort Account in the production environment, by using the “Subscribe” option. At this point the account becomes a full paying account.
3.2 – The Merchant acknowledges that it has freely selected the navigation software to access the PayFort Site and that PayFort shall have no liability in respect thereof for any reason whatsoever.
Article 4 – Integration of the PayFort Service
4.1 The Merchant may utilise his PayFort Account in manual mode or may integrate the PayFort Service into a distance sales application, for example, his e-commerce site. If he opts for an integration of the PayFort Service, a technical documentation is available on request, addressed to PayFort, and/or may be downloaded on line, from the “Support” section of his PayFort Account. He may also be helped with this task by a Solution Provider. The Merchant acknowledges that the selection of one method over another is the free choice of the Merchant and that PayFort shall have no liability in respect of any problems relating to the bad integration of the PayFort Service into the applications of the Merchant.
Article 5. Security and control of transactions
5.1 – The Merchant acknowledges the importance of security rules. For complete information on the security rules, he should refer to the PCI DSS (Payment Card Industry Data Security Standards) standards available on the websites of Visa, MasterCard for example or with the Financial Institutions.
Among other things, the Merchant must at all times:
- ensure the application of security patches on all his machines, as well as the activation of secure configurations on the latter;
- never store sensitive information, such as credit card numbers or visual cryptograms (CVC/CVV), on any type of support;
- protect all passwords and change them regularly, in particularly, the PayFort Account access password;
- protect access to all his servers and applications, as well as to his technical infrastructure in general, particularly, with the aid of a firewall and anti-virus;
- Implement procedures for the development of secure applications.
5.2 – The PayFort Service supplies several automatic or manual tools allowing the Merchant to control the consistency between payments processed by PayFort and his own sales system. The PayFort system enables, in particular:
- the on-line consultation of transactions via the Merchant’s PayFort Account;
- through SHA-1 key systems to ascertain the consistency of the payment data;
- to send payment notices by e-mail to Merchants
- The use of other means of electronic notification in real time or deferred time.
- The Merchant undertakes to set up and apply adequate procedures of control to ensure the good execution of the payments. He will be responsible for any damage resulting from any breach of his obligations under this article 5. The Merchant acknowledges that the installation of insufficient transaction controls can be detrimental not only for the Merchant himself, but also for the other users of the PayFort services, as well as for the Financial Institutions.
5.4 – Merchants are also informed that the PayFort Service offers a “Fraud Detection Module” restricting the risk of fraud and/or the negative effects thereof on the activity of the Merchant and of the Financial Institutions.
5.5 – PayFort strongly recommends Merchants to set up as many mechanisms of control as possible, especially in the case of applications of electronic commerce, and PayFort reserves the right to limit the financial capabilities of the PayFort Account (types of allowed operations, maximum number of transactions per period, etc), if it judges controls and/or follow-ups by the Merchant to be insufficient. The creation of adequate follow-up measures and control mechanisms, as well as the implementation of security options made available by PayFort (article 5.4) is to the free option of the Merchant and PayFort shall have no liability in respect thereof.
Article 6 – Intellectual property rights over the Software and the PayFort Service – copyrights
6.1 – As the vendor of the Software and the PayFort Service, PayFort warrants that it holds all rights and permits necessary to allow the Merchant to use both the Software and the PayFort Service. PayFort shall hold the Merchant harmless against any and all damages (including costs) that may be awarded to be paid in respect of any claim or action that the normal use or lawful possession of the Software or the PayFort Service by the Merchant infringes, in whole or in part, the intellectual property rights of a Third Party (an “Intellectual Property Infringement”) provided that the Merchant:
(a) Gives notice to PayFort of any intellectual property infringement forthwith and delay upon becoming aware of the same; and
(b) gives PayFort the sole conduct of the defense to any claim or action in respect of an intellectual property infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of PayFort; and
(c) Acts in accordance with the instructions of PayFort and gives to PayFort such assistance as it shall reasonably require in respect of the conduct of the said common defense including the transmission of all procedural documents and all relevant documentation.
6.2 In that case PayFort shall bear all reasonable costs incurred in conducting such common defense.
6.3 PayFort shall have no liability to the Merchant in respect of the infringement of intellectual property rights of Third Parties if this results from any breach by the Merchant of his obligations under the General Conditions
6.4 – The PayFort Service was exclusively created and developed. PayFort is the owner and the holder of all the intellectual property rights over each and all its elements. The Software is, and shall at all times remain, the exclusive property of PayFort.
6.5 – The Merchant undertakes to refrain from:
(a) Reverse compiling, copying or adapting, in whole or in part, the Software made available by PayFort,
(b) Assigning, selling, transferring, leasing, dealing in or encumbering the Software, making it available to any Third Party or using the PayFort Service on behalf of any Third Party
(c) Making the PayFort Service or the Software available on any file sharing service,
(d) Removing or altering any copyright or other proprietary notice on any of the Software or the PayFort Service
(e) Using the Software or the PayFort Service for purposes other than those set forth in the Merchant Contract with PayFort.
6.4 – The Merchant acknowledges that the entire documentation of PayFort, available among others by download from the “Support” option of its PayFort Account is and shall remain at all times the exclusive property of PayFort. This documentation is protected by the copyright of PayFort. It can only be used in the strict framework of the Merchant Contract. The transmission, disclosure or copying of this documentation, in whole or in part, as well as the use or disclosure of its content, in whole or in part, or its misuse without the explicit written consent of PayFort is strictly prohibited.
Article 7 – License on the Software and other intellectual property rights
7.1 – PayFort grants the Merchant, who accepts the same, a non-exclusive license to use, to the extent strictly necessary for enabling him to create and manage his PayFort Account according to the selected formula and within the limits and conditions stated in the Merchant Contract: (i) the Software provided through the PayFort Site; and (ii) all other intellectual property rights relating to the PayFort Service.
7.2 PayFort reserves the right to change or amend the Software at any time, to provide the Merchant with a new version thereof, and to change the functionalities and characteristics of the Software.
7.3 – The license set out in article 7.1 is personal to the Merchant and cannot be assigned or sub-licensed without the prior written consent of PayFort. The license does not transfer any property whatsoever, which rights shall remain owned entirely by PayFort. The license provides no right to the source code or decompiled Software, except for the prerogatives conferred under national legislation relating to the legal protection of computer programs. The Software shall be used by the Merchant only, to the exclusion of any other person and excluding the sale, rental, sub-contracting, leasing, etc. of said Software or of the PayFort Service.
Article 8 – Hosting by PayFort
8.1 – PayFort undertakes to host the PayFort Account of the Merchant.
8.2 – The Merchant shall provide PayFort, without delay and exhaustively, with all information relating to any fact or circumstance relating to the hosting which might give rise to any action or complaint by a Third Party against PayFort.
8.3 – PayFort can perform all such operations necessary to host and protect the PayFort Account, in particular: the creation of backup copies of its content.
8.4 – In this context, PayFort must comply with the restrictions imposed by the Financial Institutions. In particular, PayFort shall be entitled to store sensitive information, such as credit card numbers or visual cryptograms (CVC/CVV), for a limited period of time only.
Article 9 – Liability, warranties and commitments
In case of breach of its contractual obligations, PayFort’s liability can be withheld in the following conditions and within the limits set out hereafter:
(i) General limitation of liability: PayFort shall only be liable for serious and repeated contractual breaches which can be directly imputed to it.
Online payment operations being complex and requiring the intervention of a number of parties, it is explicitly acknowledged that PayFort shall only be held liable for facts originating in the infrastructure managed by PayFort and over which PayFort exercises power of control. PayFort shall not be held liable for facts originating upstream or downstream. In particular, any loss resulting from upstream or downstream connectivity defect shall not engage the liability of PayFort (for example residing in the fault of the Acquirer, or Internet connectivity,). No exception can be conceded to the present clause.
(ii) Exclusion of certain losses: PayFort shall not be liable to the Merchant in contract, tort, for breach of any statutory duty or howsoever otherwise arising and shall therefore not pay any compensation for any loss of profits, business, revenue or anticipated savings; or for any loss of goodwill or injury to reputation; or for any type of indirect or consequential or special loss or damage, or loss or damage as a result of any recourse, in particular where the occurrence and the evolution of the damage were beyond PayFort’s control.
This exclusion shall apply regardless of whether or not the principle of the damage and its extent were foreseeable at the conclusion of the Merchant Contract, even if PayFort was advised of the possibility that such damage could occur.
(iii) Limitation of the amount of liability – limitation of compensation: Any liability of PayFort not excluded by the provisions of the General Conditions shall be limited to the amount of the Merchant’s monthly invoice for the period immediately preceding the event giving rise to liability.
This limitation of liability is necessary in order to maintain the proportionality principle between the claimed damages on one hand and the prices invoiced by PayFort as well as the breaches committed on the other hand.
(iv) Death, Personal injury and fraud: Nothing in the General Condition shall limit PayFort’s liability for death or personal injury; caused by its negligence or for fraud.
(V) Except where explicitly agreed otherwise and in writing, PayFort’s liability is exclusively governed by the provisions set out herein. PayFort’s cannot be held liable under the General Conditions for any breach of service levels. Such liability can only be accepted in the case of subscription to an SLA and within the limits set out therein.
9.1 Warranties relating to the hosting and functioning
9.1.1- PayFort provides the hosting and ensures the functioning of the PayFort Service using the hardware and software environment freely selected for the purpose of hosting the PayFort Account.
9.1.2- The protection of the PayFort Account is carried out with all appropriate and reasonable means chosen and implemented by PayFort with an obligation of best efforts. The Merchant, managing his PayFort Account under his sole responsibility remains exclusively liable for the selection and management of the PSPID, the connection data (credentials) of the Merchant Users (USERID) and related passwords.
9.1.3- The Merchant manages his PayFort Account under his sole responsibility and ensures its good administration. PayFort shall not be held liable for any losses or damages of any kind incurred by the Merchant (such as operating losses, data loss, etc.) caused by improper functioning of the PayFort Service as a result of any change made to the same, whether or not voluntarily, by the Merchant or any person other than PayFort and the employees thereof, unless such change is carried out in total conformity with explicit instructions given by PayFort.
9.1.4- The Merchant bears sole liability for his PayFort Account as regards other holders of PayFort Accounts in relation to any loss generally, of any nature whatever, suffered by any other holder caused by fraud or serious negligence in the use of the PayFort Account or any of the components thereof (PSPID or password, for example). The PayFort log files tracing access to his http servers and his PayFort servers shall prevail in this regard. The Merchant shall be liable to PayFort in the event of any action brought by a Third Party for any damage suffered by such parties in such regard, such as interruptions in, or access problems relating to, their PayFort Account.
9.1.5- Without prior express and written authorization by PayFort, the Merchant shall not permit any Third Party to use his PayFort Account, in whole or in part.
9.1.6- PayFort shall not be held liable for losses suffered by the Merchant or any Third Party resulting from a case of force majeure or any event above and beyond the control of PayFort.
9.2 – Declarations and warranties relating to the content of the PayFort Account.
9.2.1- With the exception of the elements supplied by PayFort, the Merchant is and remains fully liable for the content of his PayFort Account, including the configuration parameters of said PayFort Account, as well as the related financial transactions themselves (hereinafter referred to as “the Content”). The Merchant undertakes to keep said Content up to date, as well as to keep said Content exact, complete and permanently updated.
9.2.2- The Merchant warrants that (i) the Content of his PayFort Account is and will not be in violation of the intellectual property rights of any Third Party, or the right to protection of privacy, fundamental right of individuals, the right of representation or any other right of a Third Party; (ii) the Content is and will not be contrary to good morals, public order and any applicable codes of conduct; (iii) the software and files supplied by the Merchant are free of viruses; (iv) the Content is and will not be in violation of the applicable laws or regulations, such as the laws relating to trade practices.
9.2.3- The personal data, communicated by the Merchant to PayFort, will be securely transmitted and stored. For this purpose, the Merchant recognizes that PayFort has given him all the necessary guarantees concerning the organizational and technical safety measures relating to the processing of this data. PayFort will in this matter only be held liable to the Merchant for its gross negligence or its fraud or in the event of its non-observance of the reasonable and explicit instructions given to it by the merchant relating to data protection.
9.2.4 The Merchant acknowledges and accepts the compulsory communication by PayFort of all personal and payment data to any Third Party, whose intervention is necessary for the good execution of the payment process, including the Financial Institutions. The Merchant undertakes to inform his own clients (Clients of the Merchant) thereof and he holds PayFort harmless of all liabilities in this respect.
9.3 – Warranties relating to the Merchant – Commitments of the Merchant
9.3.1- The Merchant warrants that he possesses the legal capacity and all permits necessary to sell his products/services using the PayFort Account.
9.3.2- The Merchant undertakes to use his PayFort Account solely for professional purposes and only for payments due and payable to said Merchant. The Merchant is the counterparty in all membership contracts with the Financial Institutions and is the sole contracting party with regards to the same. The Merchant hereby provides an assurance that he is not acting as an intermediary.
9.3.3- Prior to using the PayFort Account, the Merchant undertakes to inform himself with the Financial Institutions with whom he has concluded the above mentioned membership contracts in order to process all payments adequately as well as to comply with the user instructions of said Financial Institutions. The Merchant also undertakes to provide PayFort, via the configuration of the PayFort Account or by e-mail, with all useful information received from the Financial Institutions to ensure the proper processing of all transactions, for example, the Merchant Activity Code (MCC code) or transaction origin code (e-Commerce, recurrent payments, distance sales). The Financial Institutions and the Merchant shall be solely responsible for ensuring the proper flow of all financial payments.
9.3.4- In particular, the Merchant shall ask the Financial Institutions managing his VISA/MasterCard payments whether he is required to possess a PCI (Payment Card Industry) certification.
9.3.5- The Merchant undertakes to implement efficient practices concerning security management, in conformity with article 5.1 above.
9.3.6- The Merchant undertakes to exercise regular, efficient and sufficient control over all transactions, in conformity with article 5.2 above.
9.3.7- PayFort only acts as a technical intermediary between the Merchant, the Merchant Clients and the Financial Institutions, for the purpose of payments processing. The payments themselves, however, shall be made directly to the Merchant by the Financial Institutions without PayFort being able to interfere whether in the process or in the information retransmitted at this occasion. The modalities of these payments are described in the membership contracts entered into directly between the Merchant and the Financial Institutions. PayFort shall not be held responsible for incorrect execution of such payments.
9.3.8- The Merchant shall use the PayFort Service according to the documentation supplied to him by PayFort. He shall not disrupt the PayFort Service, for example by badly implementing the service or by using it for purposes which are not explicitly provided for under the Merchant Contract. For example systematic queries of the system to check its availability or useless repetitive queries to know the status of non-existing transactions or of transactions for which the status will not evolve anymore are forbidden.
Article 10 – Price – Payments
10.1- PayFort shall furthermore be unilaterally entitled to change its prices, with one month prior notice. Said price increases shall only become effective for the services rendered as from the end of the month prior notice period. The Merchant may, however, during the month notice period, cancel his contract without costs; said cancellation being effective at the end of the above mentioned notice period.
10.2- The PayFort Service shall be invoiced to the Merchant on a monthly basis electronically to the email ID provided by the merchant. PayFort shall be entitled to change the invoicing interval with one month prior notice to the Merchant. The yearly subscription fee and the fee for the options shall be paid in advance, at the beginning of the period while the costs for the use of the Service (i.e. the transactions passed by the PayFort Account) will be invoiced at the end of each month, based on real consumption and/or if applicable on the agreed transaction package.
10.3– Merchant agrees to pay PayFort on any penalties, charges, expenses assessed by third parties to PayFort due to online services processing.
Article 11 – Duration
11.1- In the absence of indication to the contrary, the Merchant Contract enters into force upon activation of the PayFort Account. In the event of a Merchant Contract Proposal, PayFort will in principle activate the PayFort Account upon receipt of the Merchant Account Proposal, signed by the Merchant, and all other documents and information deemed necessary by PayFort. PayFort nevertheless reserves the discretionary right of decision relating to activation of the PayFort Account.
11.2- In the absence of indication to the contrary, the Merchant Contract is as from its date of entry into force concluded for a fixed initial term of one year. At the end of this initial term, the Merchant Contract will automatically renew for successive periods of one (1) year (each a “current period”) on the same Terms and Conditions as contained herein Agreement.
Unless agreed otherwise, the Merchant Contract can only be terminated by notice given in writing at least 3 months prior to the end of the current period (“Notice Period”). To be valid, such notice must be given by registered post or fax on the commercial paper of the notifying Party, bearing its original signature.
11.3- Any termination of the Merchant Contract outside the above mentioned term, shall imply the immediate collectability of the total fixed monthly charges remaining due, for the rest of the current period, reserving the right for PayFort to charge the Merchant any other costs of cancellation and/or costs of debt recovery suffered or incurred by PayFort.
11.4- The Parties shall nevertheless be entitled to terminate the Merchant Contract with immediate effect without prior notice and without costs or compensation in the event of the following situations on the part of the other Party:
11.4.1-The other Party commits any material breach of its obligations as agreed upon in the Merchant Contract and fails to remedy the breach within 1 month after being required by written notice to do so, or
11.4.2-If the other goes into liquidation, insolvency, becomes bankrupt, has a receiver appointed, makes a composition or voluntary arrangement with its creditors or enters administration, or a moratorium comes into force in respect of the other, or in case of protective seizure and distrait of the Merchant in the hands of PayFort, filed by a creditor of the Merchant.
11.4.3-Merchant is unable to pay its debts as they fall due.
11.4.4-Change in the Merchant type of business.
11.4.5-Merchant is involved in fraudulent activities, gambling or violating online payment services.
Article 12 – Confidentiality
12.1- All data, regardless of the medium and their nature, relating to the Merchant or to PayFort and designated as being confidential, as well as all data not expressly designated as confidential but which should reasonably be deemed confidential by reason of the medium, nature or content is to be considered confidential. Each party remains the owner of all data made available to the other party.
12.2- Each party undertakes to take all necessary steps to protect the confidential nature of all confidential data under the terms of the present General Conditions, agreeing, in particular, to:
12.2.1-only use the confidential information of the other for the purpose of fulfilling its obligations set out in the Merchant Contract and not for any other purpose whatsoever;
12.2.2-communicate all such confidential data supplied within the framework of fulfillment of the Merchant Contract, in whole or in part, orally or in writing, solely to the personnel and representatives of the parties, who shall be informed thereof within the framework of the collaboration described in the Merchant Contact; such data may be made available to the legal authorities upon written request;
12.2.3-refrain from making any such confidential information available to any Third Party without the prior written consent of the other party;
12.2.4-to return to the other party, upon request and without delay, all documents, copies, notes, recordings, memoranda or other documents issued by said other party which might contain confidential information.
12.3- The obligation of confidentiality as described in article 12 shall remain in effect throughout the entire lifetime of the Merchant Contract. It shall moreover subsist for five years following the end of the test period or termination of the Merchant Contract, regardless of the grounds for termination.
12.4- The following data is to be considered confidential, without need for special mention:
– All financial data.
– The Terms and Conditions of the Merchant Contract.
– All User Manuals and guides relating to PayFort products and services.
Article 13 – General provisions
13.1- In the event of technical problems relating to his PayFort Account, the Merchant can access the PayFort Site for the purpose of on-line consultation of any available documentation and FAQ, use of the “Support Box” option appearing under the “Support” option in the menu of his PayFort Account to create an incident ticket, send e-mail messages to support@PayFort.com or contact the PayFort Help Desk by telephone (the PayFort telephone number is available on the PayFort Site, on the “Contact” page) during opening hours: 9:00h – 18:00h –time of the contracting PayFort subsidiary, on working days. Friday, Saturday, and public holidays are not considered a working day.
Non-electronic support (telephone, meetings, etc.) is free under the following conditions:
– The type of subscription selected by the Merchant shall not exclude said free support;
– The Merchant shall master the PayFort Service and shall first have attempted to find the Cause of the problem in the available documentation.
– The problem must originate from the PayFort Service, and not from any system upstream or downstream.
– if the support request relates to a test account, the Merchant shall activate a production PayFort Account within 3 months of said support request at the latest.
In the event of failure to fulfill the above conditions, the Merchant may be invoiced for such support at the price of AED 150.
13.2 – Force majeure
13.2.1- The Parties shall not be held responsible for delays or failings in the fulfillment of the Merchant Contract if such delays or failings arise from facts or circumstances reasonably perceived to be above and beyond the control of either party, being unpredictable and inevitable.
13.2.2 The Parties agree that the viruses or other defects resulting from unauthorized access to software or non-authorized access to the PayFort Site or any type of hacking, including in particular DOS attacks, shall be considered a case of force majeure.
13.2.3- The Party invoking such facts or circumstances shall immediately inform the other Party in writing and take all steps to avoid such cases of force majeure by reducing, insofar as possible, the duration thereof. Said Party shall also inform the other Party upon cessation of said facts or circumstances.
13.3 – Administration of proof
13.3.1-PayFort and the Merchant agree that a communication shall be deemed validly sent by e-mail, in the absence of any stipulation to the contrary in the Merchant Contract.
13.3.2-PayFort and the Merchant agree that the information relating to communications and contracts recorded by PayFort on a durable and non-modifiable support shall possess the force of proof, in the absence of evidence to the contrary.
13.3.3-PayFort shall not be bound by any possible agreement concluded by the Merchant, on or via the Internet, with service providers applying other methods of contractual proof.
13.4 – Assignment of the account
13.4.1- PayFort shall be entitled, at any time, to transfer the Merchant Contract to another company in the PayFort Group, i.e., a company with at least 50% the same shareholders, without the prior consent of the Merchant.
13.4.2-The Merchant shall not assign the rights and obligations arising from the present Merchant Contract concluded with PayFort, in whole or in part, by assignment, merger, split or any other means of assignment, whether particular or universal, without the prior written consent of PayFort. In the event of refusal on the part of PayFort, PayFort shall inform the Merchant of the grounds for said refusal and shall be entitled to cancel the contract without compensation or prior notice.
13.5 – Clauses declared null and void and/or inapplicable
13.5.1 In the event that any provision in the Merchant Contract (including the General Conditions) shall be declared null and void and/or inapplicable, said provision shall be deemed non-existent, and all other provisions of the Merchant Contract (including the General Conditions) shall remain in effect. The parties undertake to take all steps to eliminate said provision declared null and void and/or inapplicable and to replace the same with a provision approaching, insofar as possible, the economic objective of the provision declared null and/or inapplicable.
13.6 – Waiver
13.6.1 The failure of either Party to exercise his rights at any time shall in no way imply a waiver of said rights.
13.7 – Entirety of the Agreement
13.7.1-The Merchant Contract contains all the commitments between the Parties and replaces all other prior contractual commitments between the Parties.
13.7.2-Each Party confirms that any statement, representation or warranty agreed upon during the Agreement negotiations is included in the Merchant Contract.
13.8 – Changes to the General Conditions
13.8.1 The current general conditions are at all times available on the PayFort internet Site.
13.8.2 The Merchant will be informed of all modification of the General Conditions of PayFort via an obvious notice in his back office and on his relevant monthly invoice.
13.8.3 PayFort can at any time change all or some of the present General Conditions, to the extent that such minor changes only concern non-essential clauses obligations of the Conditions and do not affect material obligations of the Parties. Such changes enter into force from the moment that the Merchant has been informed thereof.
13.8.4 If changes relate to material obligations of the Agreement, the General Conditions applicable at the time the proposed change is made available to the Merchant, continue to apply until the expiry of the term of the then current period. At that date, the Agreement will be renewed with application of the new general conditions. The changes thereto are deemed accepted by the Merchant unless he cancels his contract with a written notice period of one month, as from the reception of the communication notifying of the proposed changes. Such a cancellation occurs without costs.
13.8.5 Exceptionally, PayFort can unilaterally change the essential elements and material obligations contained in the General Conditions with immediate effect, on the condition that PayFort proves:
– Such changes are necessary as a result of new terms and conditions imposed upon PayFort by a Third Party such as (i) a credit card company, a Financial Institution, a hardware or software supplier, etc. (the list is provided for information purposes and is in no way exhaustive) or (ii) a legal authority;
– Without such changes, the activity of PayFort would have suffered a negative impact or been rendered impossible.
In such case, the Merchant may terminate the Merchant Contract as mentioned in the paragraph here above.
13.9 – Client list and promotions
13.9.1 The Merchant agrees that his name shall appear on the PayFort client list. PayFort shall be entitled to use said list freely in its commercial efforts. PayFort shall furthermore be entitled to summarize, under a heading such as “What They Are Saying”, any non-confidential message sent by the Merchant permitting PayFort to conclude that the Merchant is satisfied. PayFort shall send the Merchant a copy of the text which it intends to use, prior to making any actual use of said text. Failure on the part of the Merchant to refuse within five calendar days of said sending shall be deemed equivalent to Merchant consent to said use.
Article 14 – Applicable law
14.1 The Merchant Contract is governed by the law of the state of the registered office of the PayFort entity which has entered into the Merchant Contract.
Article 15 – Settlement of disputes
15.1- The Parties undertake to take all steps to reach an amicable agreement to any dispute relating to the Merchant Contract.
15.2- In the absence of an amicable agreement, any dispute shall be submitted to the exclusive jurisdiction of the courts and tribunals competent for the place of the registered office of the PayFort entity which has entered into the Merchant Contract.
Article 16 – Notices:
Any notice to be given by any of the Parties shall be in writing and shall be served by sending the same by commercial courier or facsimile to the address set out below or such as address as party may from time to time notify the other Party:
Address: Dubai Internet City, Building 17 P.O. Box 500606, Dubai, UAE
Phone: +971 4 4337810
Fax: +971 4 3663929
Attention: PayFort Support
Any notice so served shall be deemed to have been served when delivered during working days and office hours