Merchant Services Agreement T&C (HKT)

Schedule 1
Standard Terms and Conditions

1. Engagement and Term

1. 1.1.  The Merchant shall appoint the Company as its PSP for Transactions completed through the Website or Retail Store and POS Terminal and the Company shall accept such appointment pursuant to the terms and conditions of this Agreement.
2. 1.2.  The Merchant acknowledges that the services of the Company shall be limited to the following:
   1. (a)  integration of the Supported Payment Method processing and settlement programme or system with the Website and/or POS Terminal;
   2. (b)  assisting in payment processing for Transactions between the Merchant and the Account Holders by means of Supported Payment Methods; and
   3. (c)  settlement of payment received by the Company from Acquirer to the Merchant in accordance with clause 3.

   The Company shall in no event be liable to any work otherwise than as specified in this clause.

3. 1.3.  Notwithstanding any provision in this Agreement, the Company may decline to process any Transaction in its sole and absolute discretion without assigning any reason thereto.
4. 1.4.  This Agreement shall be valid for an initial term of two calendar years (“Initial Term”) unless earlier termination occurs pursuant to clause 12.
5. 1.5.  After the Initial Term, this Agreement shall automatically renew for successive two-year periods (each a “Renewal Term”) unless either party elects not to renew by giving not less than 3 months’ prior written notice to the other.

2. Fees for the Services

1. 2.1.  Upon each settlement of the Transaction Volume to the Merchant by the Company, the Merchant shall pay the Transaction Fee to the Company as service fees. The Merchant hereby directs the Company to deduct the Transaction Fee from the Transaction Volume.
2. 2.2.  Upon each settlement of the Transaction Volume to the Merchant by the Company, if an Outward Payment fee is required, the Merchant shall pay the Outward Payment Fee to the Company. The Merchant hereby directs the Company to deduct the Outward Payment Fee from the Transaction Volume.
3. 2.3.  For the avoidance of doubt, all the Fees in the Merchant Application Form & Merchant Services Agreement paid by the Merchant to the Company, save the Rolling Reserves and Collateral, shall be non-refundable.
4. 2.4.  The Company shall offer Transaction Fees to the Merchant and the Merchant has agreed to the Transaction Fees as reflected in the Merchant Application Form & Merchant Services Agreement .
5. 2.5.  The Company may set-off the Fees in the Merchant Application Form & Merchant Services Agreement of this Agreement (or any of them) from the Reserve Account, Collateral or Merchant Account at its sole and absolute discretion when the same falls due.

3. Settlement and Refund

1. 3.1.  The Company shall settle to the Merchant based on the Fees in the Merchant Application Form & Merchant Services Agreement and in accordance with the Settlement Schedule in the Merchant Application Form & Merchant Services Agreement.
2. 3.2.  Notwithstanding any provision of this Agreement, the Company shall not be obliged to conduct settlement of all or part of the Settlement Volume to the Merchant if the Transaction Volume (or any part thereof) is held by the Acquirer or relevant Payment Network for any reason whatsoever. The Company shall only resume its obligation under clause 3.1 upon receipt of Acquirer’s or relevant Payment Network’s settlement of the full amount of the Transaction Volume (less any fees charged by the Acquirer or relevant Payment Network in relation to the Transactions) by the Company.
3. 3.3.  Neither the Company nor the Merchant shall refund to Account Holders directly in any way.
4. 3.4.  If an Account Holder requests and is due a Refund in accordance with the Merchant’s after-sale service policy or a Refund is otherwise required by applicable laws in relation to a Transaction, the Merchant must initiate the Refund process by logging into the Company’s online Merchant Portal to select the Transaction in question and selecting the option to Refund it. Such Refund must be requested within sixty (60) calendar days of the Transaction, failing which the Company may reject the Refund request at the Company’s sole discretion. The Merchant must then enter the refunded amount for each suchTransaction, which is capped at the aggregate Transaction Volume for that Transaction.
5. 3.5.  The Company is only obliged to process any Refund to the extent that the Merchant Account has sufficient funds in the currency of the particular Refund at the relevant time and, to the extent the Company does not hold such funds, the Merchant agrees to put the Company in funds to do so prior to such Refund being undertaken, and the Merchant shall hold the Company free of any liability in respect of the payment of Refunds to the extent that they are presented to the Company and the Company is not in funds to pay these.

6. 3.6.  The Company shall make a request for Refund to the Acquirer within two (2) Business Days from the date of the said Refund request.
7. 3.7.  If any Transaction is accepted for a refund or any transaction amount adjustment, the Company may first deduct the refunded or adjusted amount from the Merchant Account and then to make a Refund to the Account Holder by depositing such refunded or adjusted amount into the Account Holder’s account directly. The Company will then set-off the refunded or adjusted amount together with the administrative fees (if applicable) against the next payment payable by the Company to the Merchant.
8. 3.8.  For the avoidance of doubt, the Company shall not be responsible for any claim or liability that the relevant Account Holder may seek from the Merchant in the event of any delay in processing such refund.

4. Statement of account

1. 4.1.  The Company shall, upon each settlement stipulated in clause 3, provide a set of statement of account to the Merchant in relation to the Settlement Volume for that settlement.
2. 4.2.  In the event that there is any error in the statement of account, the Merchant shall, within fourteen (14) days from the date of receipt of the same, make a report to the Company. The Company may, at the request of the Merchant, conduct investigation of the error. All costs in connection thereto shall be borne by the Merchant. In the event that the Merchant fails to report such error within the prescribed time limit, the Merchant shall be deemed, save as manifest errors, to have agreed that all the entries of such statement are correct, such statement shall be conclusive evidence as to the entries and balance shown therein and shall be binding upon the Merchant.

5. Obligations of the Merchant

1. 5.1.  The Merchant shall ensure that the Retail Store and/or Website contain all of the followings:
   1. (a)  terms and conditions regarding the handling of currency of each Transaction (if applicable);
   2. (b)  a complete and accurate description and price/price list for all the goods and/or services offered by the Merchant for sale;
   3. (c)  a comprehensive and accurate statement of the arrangement for return of the goods and/or services purchased and refund (if applicable); and
   4. (d)  such other information as the Company may from time to time reasonably require.
2. 5.2.  The Merchant shall submit the Website to the Company for approval upon execution of this Agreement and shall ensure that the Website in which the Company provides the Services shall be in the form and substance of the Website submitted.
3. 5.3.  In the event that there is any amendment or modification to the Website, the Merchant shall submit the same to the Company for approval before launching of the same.
4. 5.4.  The Merchant shall ensure that the Website shall contain the following information:
   1. (a)  a complete and accurate description and price list with currency (including delivery charges, if applicable) for all the goods and/or services offered by the Merchant for sale which shall comply all applicable laws and regulations including the Trade Descriptions Ordinance;
   2. (b)  a statement of the contractual terms that shall apply to the Transaction for sale of the goods and/or provision of services and that confirm the identity of the Merchant as the seller with the responsibility for effecting the Transaction is solely that of the Merchant, so that the Account Holder can readily identify the Merchant as the Transaction counterparty and whose name will appear on the Account Holder’s statement from the relevant Supported Payment Method or bank;
   3. (c)  a statement of the arrangement for delivery of the goods and/or services purchased;
   4. (d)  a statement of the arrangement for return of the goods and/or services purchased and refund;
   5. (e)  the Merchant’s complaints procedure and customer service contacts including e-mail address and telephone number and address of the principal place of business;
   6. (f)  the Merchant’s address of its fixed place of business;
   7. (g)  applicable legal and export restrictions (if any);
   8. (h)  the legal restrictions (if known);
   9. (i)  the Merchant’s consumer data privacy policy;
   10. (j)  the Merchant’s security capabilities and policy for transmission of payment details;
   11. (k)  the Merchant’s terms and conditions of a promotion, if restricted; and
   12. (l)  such other information as the Company may from time to time require.
5. 5.5.  The Company may from time to time request the Merchant to remove or amend all or part of the information posted on the Website and the Merchant shall comply with such request within 2 days from the date on which the request was made by the Company.

6. 5.6.  In connection with the sale of its goods and/or services at the Retail Store and/or on the Website, the Merchant shall ensure that:-
   1. (a)  all necessary permits, licenses and authorizations from any authority have been obtained;
   2. (b)  the sale or provision of the Products/Services does not contravene the laws of Hong Kong or the laws in any other jurisdiction in or from which they are to be sold or provided;
   3. (c)  the information contained in the Retail Store and/or Website shall not:(1) be in breach any intellectual property rights of any third party;
      (2) be misleading, untrue, inaccurate, incomplete, deceptive, defamatory or likely to be so;
      (3) harass, threaten, embarrass or cause distress, unwanted attention or discomfort upon other merchants or users of the Company or other individuals or entities;
      (4) contravene any applicable law, rule or regulation in any applicable jurisdiction; (5) expose the Company to the risk of any claim, legal or administrative action; or
      (6) be considered by the Company as in appropriate in its sole and absolute discretion.
7. 5.7.  The Merchant shall forthwith report to the Company in writing if any of the following events take place:
   1. (a)  the Merchant suspects that the payment information provided in any Transaction is submitted by a person other than the Account Holder without the Account Holder’s authorization;
   2. (b)  the Account Holder submits incorrect payment information, including payment amount or currency;
   3. (c)  the Merchant has been advised of any invalid Transaction from the Account Holder’s account;
   4. (d)  the Transaction does not comply with any of the applicable laws or regulations or any of the terms of this Agreement;
   5. (e)  it is suspected that there is any money laundering or terrorist financing concern over any Transaction;
   6. (f)  the Merchant suspects that any of the Account Holder’s information is untrue, inaccurate or incorrect;
   7. (g)  the Merchant believes that its account or payment channel is no longer secure, particularly due to theft,  unauthorized disclosure or unauthorized use of Merchant’s authentication information necessary for accessing its account at the Company, including, without limitation, user name, password, or account number stored on or used by the Company.
8. 5.8.  The Merchant shall throughout the term of this Agreement display prominently on each of its Retail Store(s) and/or Website where the Merchant accepts Transactions, all applicable Supported Payment Method and Payment Network identification, as required by and in accordance with the relevant Payment Network Rules and guidelines. The Merchant shall not use the relevant Supported Payment Method and Payment Network identification for purposes other than those prescribed in this Agreement. The Company shall be entitled to do onsite review on the brand presence of the relevant Supported Payment Method(s).
9. 5.9.  In connection with the use of the POS Terminal, the Merchant shall ensure that the POS Terminal is used with reasonable care and maintenance. The Company reserves the right to inspect the POS Terminal from time to time. Should the POS Terminal become damaged, the Merchant must notify the Company as soon as practicable. The Merchant shall be liable for any damage caused to the POS Terminal whilst in its custody. Should the POS Terminal require repair, the Company reserves the right to debit/set-off the amount from the Merchant Account or Deposit and/or invoice the Merchant to recover such repair fees.
10. 5.10.  The Merchant acknowledges that the Company may communicate with the Merchant from time to time via the means as set out in clause 19. The Merchant shall from time to time inspect the various communication channels, including the Merchant Portal, for any notices being posted or sent to the Merchant by the Company.

6. Undertakings

6.1. The Merchant hereby undertakes with the Company that it shall:

1. (a)  comply with all laws and regulations in its place of incorporation, Hong Kong and the country or region where settlement is to be made;
2. (b)  honour all valid Cards, Wallets in accordance with the relevant Payment Network Rules without discrimination when properly presented by an Account Holder for payment;
3. (c)  conduct Transactions in accordance with the Company’s Best Practice Training Material;
4. (d)  in the context of the Services and in order to enable us to comply with Applicable Law, including counter terrorist financing, financial services, anti-tax evasion, anti-bribery and corruption and anti- money laundering laws and regulations imposing customer due diligence (“CDD”) and know your customer (“KYC”) requirements, as well as with the relevant Payment Network’s and/or Acquirer’s requirements, in addition to the CDD / KYC already conducted on the Merchant prior to the signing of this Agreement, the Merchant shall share information relating to or arising out of this Agreement (including Transaction information) with the Company from time to time. The Merchant shall provide any information or documentation requested by the Company to verify information about the Merchant’s business or in connection to this Agreement. The Merchant hereby authorises the Company to submit the CDD and/or any other relevant information received from the Merchant to the relevant Payment Networks and/or the Acquirer to obtain permission for providing access to their payment methods for the Merchant, or for any ongoing monitoring related purpose in respect of this Agreement, as required;

5. (e)  conduct all Transactions through the POS Terminal or Website;
6. (f)  sell nothing other than the Products/Services as listed in the Merchant Application Form &Merchant Services Agreement;
7. (g)  obtain approval from the Company before selling any products or services other than theProducts/Services;
8. (h)  inform the Company of any change of business nature, shareholding and directorship of theMerchant;
9. (i)  properly keep the Transaction information (including but not limited to information on theProducts/Services. invoices, receipts, the amount, currency, time and counterparties to each Transaction, and other relevant documents and detailed data and records of the Transactions) for 7 years from the date of each Transaction or, if longer, for the period of time required by the applicable laws or regulations:
10. (1)  the detailed data under trade in products shall, in principle, include the name and quantity of the subject matter, Transaction currency, amount, parties of each Transaction and countries they are from, and order time;
11. (2)  the detailed data under trade in services shall, in principle, include the type of service, specific Transaction information (such as the scheduled flight and time under the air ticket, the hotel name and time of accommodation, letter of admission under overseas study, etc.), quantity, Transaction currency, amount, parties of each Transaction and their location, and order time;

1. (j) in accordance with the requirement of authenticity, accuracy, completeness, traceability and consistency of the data, provide all such Transaction information to the Company for the Company’s inspection within 3 Business Days from the date of such request. The Merchant shall be responsible for any losses suffered by the Company as a result of false, inaccurate, incomplete, untraceable, inconsistent or deniable order information or any improper operation conducted by the Merchant.

6.2. The Merchant hereby undertakes with the Company that it shall not:

1. (a)  establish a minimum or maximum Transaction amount as a condition for honouring any Cards,Wallets;
2. (b)  in relation to Transactions conducted via Supported Payment Methods under this Agreement as opposed to other payment methods, charge additional fees, or charge additional fees in any disguised forms or provide lower quality of services;
3. (c)  pay directly to an Account Holder by way of a complete or partial refund in respect of a Transaction paid by the use of a Supported Payment Method;
4. (d)  in any circumstances, make any cash advance by the use of a Supported Payment Method;
5. (e)  take any measures to collect, keep or use an Account Holders’ information, including but not limited to data encoded in magnetic stripe cards or chip cards, verification code, valid period, passwords and other sensitive information;
6. (f)  misappropriate the services of the Company for remittance of funds or any other purpose that is solely related to funds transfer without an underlying Transaction or for other illegal, immoral or illegitimate purposes;
7. (g)  use reverse engineering method to decode payment systems, software, or POS Terminal, or copy, modify, edit, consolidate or alter such systems or software, including but not limited to source code, object programs, software files, data running in local computer memory, data transmitted from Account Holders’ terminals to servers, server data and so on, or modify or add additional functions to the original functions of such systems mentioned hereinabove;
8. (h)  use resources (including but not limited to customer information, Transaction data, POS Terminal, promotional and marketing materials and so on) for purposes beyond those prescribed in this Agreement, or transfer those resources to any third party;
9. (i)  the Company reserves the right to refuse service, terminate accounts, and/or cancel orders at its absolute discretion if the Company reasonably believes that a user’s conduct violates any applicable laws or is harmful to the interests of the Company and other users;
10. (j)  in any manner whatsoever indicate or imply that the Company endorses or otherwise makes any representations about the Products/Services; and
11. (k) display or suffer to be displayed on, and shall forthwith on demand by the Company remove or procure to be removed from, the Retail Store or Website any material which the Company considers in its absolute discretion to be pornographic, obscene, indecent, or of a gambling nature, or which is prohibited from being published in mass media by any law of Hong Kong, the place of incorporation of the Merchant or any other applicable law.

7. Representations and Warranties

1. 7.1.  The Merchant hereby represents, warrants and undertakes to and with the Company (and its successors in title) that each of the Warranties is, as at the date hereof and shall ensure that at all times during the subsistence of this Agreement are, true, accurate and not misleading in all respects and the Warranties shall be deemed to be repeated and given on each date during the subsistence of this Agreement.
2. 7.2.  Each of the Warranties given under this Agreement or pursuant hereto shall remain in full force and effect notwithstanding termination of this Agreement.
3. 7.3.  The Merchant acknowledges and accepts that the Company is entering into this Agreement in reliance of each of the Warranties and the provisions contained therein.
4. 7.4.  Each of the Warranties shall be separate and independent and save as expressly provided shall not be limited by reference to any other clause or anything in this Agreement or its schedules.
5. 7.5.  The Merchant undertakes with the Company that:
   1. (a)  it shall not allow or procure any act or omission which would or be likely to constitute a breach of any of the Warranties as if they were given on each date from the date of this Agreement to the date of termination of this Agreement pursuant to clause 12 or which would make any of such Warranties inaccurate or misleading if they were so given; and
   2. (b)  it shall promptly disclose in writing to the Company any event or circumstance which may arise or become known to them at any time which is inconsistent with any of the Warranties or which would have constituted a breach of the Warranties.

8. Reviews, investigations, inspections and audits

1. 8.1.  The Company may in its absolute discretion conduct a review of the Merchant’s level of compliance (including but not limited to financial crime compliance and sanctions compliance) with its obligations under this Agreement, whether annually or on any other periodical basis or by way of a spot check (“Review”), in which case the Merchant shall promptly provide the Company with such information, materials and records and in such format as the Company may designate and require.
2. 8.2.  In case of any investigation or audit by the Company, a regulatory authority, a Payment Network and/or Acquirer (as applicable), under Applicable Law and/or the relevant Payment Network Rules with respect to Chargebacks, suspected fraud or other requests for information, the Merchant undertakes to fully co- operate in the investigation and/or audit of such records.
3. 8.3.  The Merchant shall provide all information/documents which the Company from time to time requests during the course of investigation within 2 Business Days from the date of such requests.
4. 8.4.  The Merchant agrees to allow the Company, on fourteen (14) days’ prior written notice, to inspect its locations to confirm that the Merchant is in compliance with the terms of this Agreement and is maintaining the proper facilities, equipment, inventory, records, licences and permits where necessary to conduct its business. The Company’s representatives may, during normal working hours, inspect, audit and make copies of Merchant’s financial reports, books, accounts, records, and files pertaining to any Transaction processed under this Agreement.
5. 8.5.  Where such audit / inspection is undertaken at the specific request of a Payment Network or the Acquirer, the Merchant shall pay any costs and charges incurred by the Company in respect of such audit / inspection.
6. 8.6.  In the event that a Payment Network or Acquirer imposes any penalty to the Company for any reason whatsoever, the Merchant shall indemnify the Company and keep the Company fully and effectively indemnified against all losses, costs, expenses, penalties, fees, proceedings etc. (including, without limitation, professional fees such as accountancy fees, investigation fees and legal fees) incurred or sustained by the Company as a result of such imposition.

9. Chargeback and Assessment Liability

1. 9.1.  The Merchant agrees that it is solely responsible for and indemnifies the Company in respect of any and all Chargebacks and Assessments under this Agreement. Each Chargeback and Assessment represents a debt immediately due and payable to the Company on demand by the Merchant on its occurrence notwithstanding any expiry or termination of this Agreement or any Services.
2. 9.2.  Any Chargebacks for which the Merchant is required to reimburse the Company shall correspond to the whole or part of the processing value of the original Transaction, as applicable.
3. 9.3.  Where a Chargeback or an Assessment occurs, the Company shall immediately be entitled to debit/set- off the amount from the Merchant Account in accordance with this Agreement and/or invoice the Merchant to recover: (i) the full amount of the relevant Chargeback or Assessment; and (ii) any other Losses which we have incurred as a result of or in connection with such Chargeback or Assessment (“Chargeback and Assessment Costs“).
4. 9.4.  Where the full amount of any Chargeback, Assessment and/or any Chargeback and Assessment Costs is not debited by us from the Reserve Account, Additional Collateral, and/or Merchant Account and/or paid under invoice, then we shall be entitled to otherwise recover from the Merchant by any means the full amount of such Chargeback, Assessment and/or Chargeback and Assessment Costs still due and owing.
5. 9.5.  The Merchant acknowledges that the Company will make investigations on any Chargeback or Assessments, however, the ultimate decision or determination on the validity of any Chargeback or Assessment by any Issuer, Payment Network or Acquirer, shall be final and binding in respect of any Chargeback or Assessment.
6. 9.6.  If a Chargeback occurs for a Transaction in respect of which the Merchant already received a Settlement Volume of the related funds, this results in the unconditional obligation for and liability of the Merchant to immediately return an amount equivalent to the Transaction Volume for that Transaction to the Company in addition to any Chargeback and Assessment Costs. The Company hereby reserves its right to deduct for such amount from any money in the Merchant’s account with the Company. The Merchant shall not hold the Company liable for any loss or damage to the Merchant that may arise in respect of the foregoing decision of the Company made in good faith under this clause. For the avoidance of doubt, the Transaction Fee for the Transaction subject to Chargeback shall not be refunded to the Merchant.
7. 9.7.  The Merchant shall indemnify on demand and hold the Company harmless from all and any Losses brought against the Company by any third party (expressly including the Payment Networks and the Acquirers) and/or otherwise incurred by the Company specifically in respect of all Chargebacks, Assessments and Chargeback and Assessments Costs.
8. 9.8.  The Company shall be entitled to charge a fee for each Chargeback in accordance with the Merchant Application Form & Merchant Services Agreement.

10. Reserve Account, Collateral and Other Related Provisions

1. 10.1.  The Merchant agrees that either a fixed reserve amount or a percentage of the daily gross sales volume processed by the Company may be subtracted from settlements received by the Company from the Acquirer or relevant Payment Networks as the Reserve(s), and shall be retained by the Company in order to be used to cover unpaid Fees, Deductions or other payment obligations of the Merchant under this Agreement. Where Reserve(s) are a percentage of the daily gross sales value processed, it may be capped or converted to a fixed reserve amount after a set period of time, to be held in the Reserve Account, as determined by the Company. The difference between the held and released Reserve(s) will be communicated to the Merchant in the Company’s online Merchant Portal. The Reserve Account is a separate element of the Merchant Account, which serves the reserve functionality. The fixed reserve amount or applicable Rolling Reserve(s) Rate shall be set out in the Merchant Application Form & Merchant Services Agreement. However, the Company, at the Company’s sole discretion, may change the fixed reserve amount and/or Rolling Reserve(s) Rate and/or the terms of the Reserve Account based on Merchant’s payment processing history immediately upon a written notification to the Merchant. The Merchant agrees that it is not entitled to any interest on the funds credited in the Reserve Account, that it has no right to direct that account, and that it cannot and will not assign or grant any security interest in those funds or that account, or allow any encumbrance upon the funds contained in that account.
2. 10.2.  In addition to the Reserve Account, the Company may request the Merchant to provide funds to the Company as Collateral as a security to guarantee payment of any and all Merchant Liabilities including any Losses owed to due to an Acquirer and/or the relevant Payment Network. The Company will fund the Collateral, replenish and maintain it at the designated level by deducting the required amount from Merchant Account or any other funds due to the Merchant.
3. 10.3.  The Company may in its sole discretion at any time and without prior notice draw and receive amounts from the Collateral, as required to cover any amounts owed to the Company and/or relevant Payment Networks which cannot be deducted from settlement due to a lack of funds or otherwise. The Company may subsequently: (i) replenish the Collateral from the Merchant Account and such other funds due to the Merchant under this Agreement; or (ii) require that the Merchant immediately makes a payment to the Company for the amount required to replenish the Collateral.
4. 10.4.  Collateral held by the Company will remain with the Company for twenty-six (26) weeks following the date of termination of this Agreement (the “Collateral Reserve Period”), provided, however, that the Merchant will remain liable to the Company for all Merchant Liabilities occurring beyond such twenty- six (26) week period.
5. 10.5.  Unless otherwise advised by the Company, the Collateral will be held and maintained for a minimum of the Collateral Reserve Period. If after expiry of the Collateral Reserve Period there is still a risk of more Merchant Liabilities, then the Company will have the right to withhold the Collateral until such risk is eliminated. Upon expiration of the Collateral Reserve Period (or longer, as the case may be), any remaining amount of Collateral will be transferred to the Merchant. The Company will inform the Merchant of any charges debited to the Collateral during this period.
6. 10.6.  The Company may change the Collateral upon notice and in our sole discretion depending on Refund ratios, fraud ratios, Chargeback ratios and other risk considerations.
7. 10.7.  The Merchant expressly acknowledges and agrees:
   1. (a)  to any charge or debit made by us against the Collateral;
   2. (b)  that it is not entitled to any interest on the Collateral;
   3. (c)  that it has no right to direct the Collateral; and
   4. (d)  that it cannot and will not assign or grant any security interest in the Collateral or allow any encumbrance upon those funds.

11. Data Protection

1. 11.1.  For the purposes of this Agreement, “Data Subject”, “Data User”, “Personal Data” and “Processing”shall have the meanings ascribed to them in the PDPO.
2. 11.2.  Each party warrants and undertakes to comply with its respective obligations under the Data ProtectionLegislation and, without prejudice to the foregoing, the Merchant shall not act or omit to act in a manner that will or is likely to result in the Company breaching its obligations under such Data Protection Legislation.
3. 11.3.  In accordance with the provisions of the PDPO, the Merchant consents to the Company using any Personal Data in respect of the Merchant which may be held by the Company in connection with transaction processing facilities, and to the Company supplying such personal data to any selected third parties (who owes to the Company a duty of confidentiality similar in scope and extent to the duty of confidentiality of the Company owing to the Merchant herein) to use for such purposes. The Merchant also consents to any such personal data being transferred to another legal jurisdiction outside Hong Kong and to any matching procedures (as defined in the Ordinance) being carried out in respect of such Personal Data.
4. 11.4.  The Parties agree that, for the purposes of Data Protection Legislation, it is their mutual understanding that the Parties shall not constitute joint data users.
5. 11.5.  Each Party acknowledges that, for the purposes of Data Protection Legislation, it is an independent Data User in relation to the Transaction Personal Data and that it determines the purposes for which and the manner in which the Transaction Personal Data is, or is to be, processed.
6. 11.6.  The Merchant shall ensure that in respect of all Transaction Personal Data provided to the Company under this Agreement, and in respect of the use of that Transaction Personal Data under this Agreement:
   1. (a)  all necessary fair processing notices have been provided to and consents obtained from DataSubjects by the Merchant; and
   2. (b)  all necessary steps have been taken to ensure that Transaction Personal Data has been collected and processed in accordance with the principles set out in Data Protection Legislation.
7. 11.7.  If the Merchant receives any complaint, notice or communication from a Data Protection Authority which relates directly to:
   2. (a)  the Acquirer or the Company’s processing of the Transaction Personal Data; or
   3. (b)  a potential failure by the Acquirer or the Company to comply with Data Protection Legislation in respect of the activities of the parties under or in connection with this Agreement,11.7.  If the Merchant receives any complaint, notice or communication from a Data Protection Authority which relates directly to:the Merchant shall, to the extent permitted by Law, promptly notify the Company and provide such information as it shall reasonably request in that regard.
8. 11.8.  The Acquirer and the Company may make periodic searches of, and provide information about the Merchant to credit reference, market research, customer feedback and fraud prevention agencies, and the Acquirer’s and Company’s group companies and agents. The Merchant acknowledges that any information provided to credit reference agencies may be used by other credit providers to take decisions about the Merchant. Further information about how the Company uses this information can be found in the Company’s Privacy Policy (as published on the Company’s website).
9. 11.9.  If a Data Subject makes a written request to either Party to exercise any of their rights under Data Protection Legislation in respect of Transaction Personal Data, the receiving Party shall respond to that request in accordance with Data Protection Legislation. To the extent the request concerns processing of Transaction Personal Data undertaken by the other Party, the receiving Party shall:
10.       (a) promptly and without undue delay forward the request to the other Party; and
11.       (b) cooperate and provide reasonable assistance in relation to that request to enable the other Party to respond in accordance with Data Protection Legislation.
12. 11.10. The Merchant acknowledges that the Acquirer or the Company may disclose Transaction Personal Data to any Data Protection Authority, law enforcement authority or regulator.

12. Termination and Suspension

1. 12.1.  The Company may terminate this Agreement forthwith if any of the following happens:
   1. (a)  any Transaction is being investigated or any complaint is received by the Company in respect of any Transaction of the Merchant which may involve fraud, deception, counterfeit goods or services or criminal in nature in the opinion of the Company;
   2. (b)  the Merchant is declared bankrupt of being wound up;
   3. (c)  no Transactions are made by the Merchant for a consecutive period of three (3) months;
   4. (d)  the Merchant is no longer accepted by the Acquirer as a merchant;
   5. (e)  the Company is no longer accepted by the Acquirer to provide the Services;
   6. (f)  the Acquirer ceases to be a member of the relevant Payment Network(s);
   7. (g)  either Party becomes subject to any sanction imposed or any investigation by a regulatory authority; or
   8. (h)  there is a substantial Chargeback.
2. 12.2.  The Merchant may terminate this Agreement by giving not less than 3 months’ written notice to the Company.
3. 12.3.  With or without any prior Review, and with or without any prior notice to the Merchant, the Company may terminate this Agreement or the provision of any Services to the Merchant, or suspend for so long as the Company shall deem appropriate the provision of any Services to the Merchant, in each of the following circumstances, namely:-
   1. (a)  any material non-performance or non-observance by the Merchant of any provision of this Agreement on the part of the Merchant to be performed or observed, or any suspected occurrence of the same;
   2. (b)  the occurrence or suspected occurrence of any fraud, deception, money laundering, criminal activity, activity that may jeopardize the integrity of the system(s) of the Company, or any other activity or matter which the Company may in its absolute discretion require to be investigated into;
   3. (c)  the Merchant’s refusal to cooperate in sanctions due diligence investigations;
   4. (d)  the listing of the name of the Merchant or its affiliates, or any of their directors, managers, officers, partners, employees or agents on related sanctions lists; and
   5. (e)  where entering into a Transaction will breach any law or regulation on sanctions.
4. 12.4.  Any termination or suspension aforesaid shall be entirely without prejudice to any antecedent rights or obligations of any party to this Agreement.
5. 12.5.  Collateral held by the Company will be held and maintained for a minimum of the Collateral Reserve Period following the date of termination of this Agreement, provided, however, that the Merchant will remain liable to the Company for all Merchant Liabilities occurring beyond such twenty-six (26) week period.
6. 12.6.  As Chargebacks and Assessments may arise a considerable period after the date of the relevant Transaction, the Merchant acknowledges and agrees that, notwithstanding any termination of the Merchant Agreement for any reason, the Company shall remain entitled to recover Chargebacks, Assessments and Chargeback and Assessments Costs from the Merchant in respect of all Chargebacks, Assessments and Chargeback and Assessment Costs that occur in relation to Transactions effected during the term of the Merchant Agreement.
7. 12.7.  The termination or suspension of this Agreement shall not prejudice or affect the rights and liabilities accrued between the Merchant and the Company prior to the date of such termination or suspension. All indemnities, restrictions and obligations of the Merchant herein shall survive termination of this Agreement.
8. 12.8.  Notwithstanding any provision in this Agreement, the Company shall be entitled to withhold payment of the Collateral then held by the Company (or any part thereof) to the Merchant for a period of up to twelve (12) months from the date of the termination of this Agreement. For the avoidance of doubt, no interest shall be payable on any payment of the Collateral withheld by us.

13. Indemnity

13.1. The Merchant shall compensate and indemnify the Company for and keep the Company fully and effectively indemnified against:

1. (a)  all direct and indirect Damages (including, without limitation, accounting, legal and other professional advisors’ fees) incurred by the Company on an indemnity basis in connection with any breach of the terms herein by the Merchant and/or the Company’s enforcement thereof;
2. (b)  any claim, proceeding, Damages (including, without limitation, accounting, legal and other professional advisors’ fees) that may arise to be incurred by the Company in connection with the provision of any of the Services, whether or not arising from or in connection with the Merchant’s improper use of such Services or any Damages to the Company (or its assets, computer hardware, devices, facilities or software) as a result of accessing and/or using such Services; or
3. (c)  the infringement of the patents, registered and unregistered trademarks, registered design, copyright, passing off action or other intellectual property rights of any third party which may be brought against the Company in connection with the Products/Services supplied by the Merchant.
4. 13.2.  Without prejudice to any of the rights of the Company herein, the Merchant hereby agrees to, undertakes and covenants with the Company that it shall bear solely and absolutely all the obligations, liabilities and the losses, costs, and expenses incurred by the Company in relation to all complaints made by the Acquirer or the Account Holders.
5. 13.3.  Clauses 13.1 and 13.2 shall not be applicable if such Damages are caused by gross negligence or wilful default of the Company.

14. Extent of liabilities of the Company

1. 14.1.  The Company makes no representations and gives no warranties whatsoever and disclaims all obligations, representations or warranties whatsoever arising by operation of law, implication or otherwise:
   1. (a)  in respect of the Services, its title, accuracy, completeness or standard and fitness for a particular purpose;
   2. (b)  as to the security or protection of the computer systems used by the Company against unauthorised entry, access or download;
   3. (c)  as to the non-interruption, reliability and efficiency of the Services and the Merchant’s use thereof; and
   4. (d)  that the Services or any component thereon is error-free and Virus-free.
2. 14.2.  The Company shall, in connection with its provision of the Services, take reasonable steps to:
   1. (a)  comply with all applicable laws and follow the prevailing market practices from time to time; and
   2. (b)  ensure that the software for provision of payment service is running properly and is protected by up-to-date firewall and antivirus software.
3. 14.3.  Notwithstanding anything herein contained, the Company shall not be liable for any loss (whether director indirect) to the Merchant whatsoever and howsoever for its use of or inability to use the Services or as a result of any unauthorised attempts, whether successful or otherwise, to access, intrude, invade, overflow, download or otherwise circumvent or attack any security systems in place to protect the data or information on the Company’s servers or other computer systems unless such loss is directly caused by gross negligence or wilful default of the Company.
4. 14.4.  The maximum liability of the Company to the Merchant whatsoever and howsoever arising shall not exceed the total amount of the Setup Fee and one year’s Annual Fee received by the Company (or would have received by the Company, in the event that the Setup Fee and/or Annual Fee was or were waived) from the Merchant under this Agreement.

15. Currency

1. 15.1.  For the purpose of this Agreement, all sums payable by the Company to the Merchant shall be in the Settlement Currency as set out in the Merchant Application Form & Merchant Services Agreement.
2. 15.2.  Any amount received or recovered in a currency other than the Settlement Currency (as set out in the Merchant Application Form & Merchant Services Agreement) by the Company shall be exchanged to the said Settlement Currency at an exchange rate determined by the Money Service Operator (“MSO”) or bank as appointed by the Company.

16. Assignment

1. 16.1.  This Agreement shall bind the parties, their respective successors and any permitted assignee or transferee. Any reference in this Agreement to any party shall be construed accordingly.
2. 16.2.  The Merchant may not assign or transfer any of its obligations or rights under this Agreement.
3. 16.3.  The Company may at any time assign to any person (“the Assignee“) all or any of its obligations and rights under this Agreement or create an encumbrance over them in favour of such person by notice to the Merchant. The Assignee shall have the same benefits, obligations and rights of the Company as if it were an original party to this Agreement.
4. 16.4. The Company may disclose on a confidential basis to a potential assignee, participant, transferee or any other person proposing to enter into contractual arrangements with the Company in relation to this Agreement such information as it may think fit, including, without limitation, information about the Merchant and its assets, businesses, financial conditions and the Transactions, as it may think fit, whether such information has been made available pursuant to this Agreement or otherwise provided that not less than 30 days’ prior notice has been given by the Company to the Merchant.

17. Confidentiality

1. 17.1.  For the purposes of this clause, “Confidential Information” means all information of a confidential nature disclosed (whether in writing, verbally or by any other means and whether directly or indirectly) by one party (“Disclosing Party”) to any other party (“Receiving Party”) whether before or after the date of this Agreement and include this Agreement.
2. 17.2.  During the term of this Agreement and after termination or expiration of this Agreement for any reason whatsoever the Receiving Party shall:
   1. (a)  keep the Confidential Information confidential;
   2. (b)  not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with clauses 17.3, 17.4 and 17.5; and
   3. (c)  not use the Confidential Information for any purpose other than the performance of its obligation under this Agreement.
3. 17.3.  During the term of this Agreement, the Receiving Party may disclose the Confidential Information to its professional advisors and bankers (“Recipient”) to the extent that it is necessary for the purposes of thisAgreement.
4. 17.4.  The Receiving Party shall procure that each Recipient is made aware of and complies with all theReceiving Party’s obligations of confidentiality under this Agreement as if the Recipient were a party to this Agreement.
5. 17.5.  The Receiving Party may disclose any Confidential Information where such disclosure is required pursuant to any legal or regulatory requirement.
6. 17.6.  The obligations contained in clauses 17.2 to 17.5 (inclusive) shall not apply to any ConfidentialInformation which:
   1. (a)  is at the date of this Agreement or at any time after the date of this Agreement comes into the public domain other than through breach of this Agreement by the Receiving Party or any Recipient;
   2. (b)  can be shown by the Receiving Party to the reasonable satisfaction of the Disclosing Party to have been known to the Receiving Party prior to it being disclosed by the Disclosing Party to theReceiving Party; or
   3. (c)  subsequently comes lawfully into the possession of the Receiving Party from a third party.

18. Force Majeure

1. 18.1.  The Company shall not in any way be liable to the Merchant for any delay or non-performance of any of its obligations under this Agreement arising in whole or in part from any act of God, civil commotion, strike, industrial dispute, war, war-like hostility, change in legislation, act or omission of the Company or the Acquirer in relation to processing and settlement of Transactions, criminal or civil investigation against the Company or the Acquirer, or other calamity or circumstances whatsoever beyond the control of the Company.
2. 18.2.  The Merchant further agrees that the Company shall not in any way be liable to the Merchant for any delay, non-performance of any of its obligations under this Agreement arising in whole or in part from any Virus, unauthorized access, unauthorized use or loss of service or such other circumstances whatsoever beyond the control of the Company.

19. Notice

1. 19.1.  Without affecting other methods of communication, any statement, notice, demand or other communications from the Company are deemed to be received by the Merchant:
   1. (a)  when posted on the website of the Company;
   2. (b)  when left at any of the address of the Merchant on the record of the Company, or 48 hours after mailing to such address or 7 days if the address is overseas;
   3. (c)  when posted on the Merchant Portal; or
   4. (d)  when sent by electronic mail or facsimile to the email address or facsimile number of the Merchant stated in the Merchant Application Form & Merchant Services Agreement.
2. 19.2.  Without affecting other methods of communication, any statement, notice, demand or other communications from the Merchant shall only be received by the Company by actual receipt by theCompany.

20. Amendment

1. 20.1.  Save and except the circumstance under clause 20.2 here in below, the Company reserves the right at all times to amend the terms and conditions of this Agreement or any of them without any prior notice to the Merchant. Any such amendment shall become effective and binding on the Merchant upon issue of the same to the Merchant irrespective of actual knowledge thereof on the part of the Merchant.
2. 20.2.  For amendments to any fees in the Merchant Application Form & Merchant Services Agreement (“Change”), the Company shall give no less than thirty (30) days’ written notice (the “Change Notice Period”) to the Merchant of the amendment. If the Merchant does not notify the Company of its objections to the Change within the Change Notice Period, the Merchant will be deemed to have accepted the Change. If the Merchant notifies us of its objection to the Change within the Change Notice Period and the Company does not withdraw the Change in writing before the date on which the change becomes effective, the Merchant may terminate this Agreement immediately by serving a written notice to the Company no later than the effective date of the Change (a “Change Termination Notice”). If the Merchant does not serve a Change Termination Notice (or if it uses any of the Services after the Change effective date), then it will be deemed to have accepted the Change on the Change effective date.
3. 20.3.  Any amendment proposed by the Merchant shall only be effective upon approval by the Company and the Merchant’s payment of an administrative fee to the Company from time to time determined by the Company at its sole and absolute discretion.

21. Evidence and determination

21.1.  A certificate signed by the Company or its officers about a matter is conclusive evidence of the matter except manifest errors.

21.2.  In this Agreement, any determination as to whether any circumstance, event, matter or situation is “appropriate”, “material”, “necessary”, “reasonable”, “satisfactory” or “substantial” shall be made by the Company, whose determination shall be binding and conclusive on the Merchant.

32.1. In this Agreement, the following words shall have the meanings set out below unless the context otherwise requires:

2. 32.2.  Headings are for ease of reference only and do not form part of this Agreement.
3. 32.3.  Expressions in the singular include the plural and vice versa and in a gender include all other genders.
4. 32.4.  In this Agreement, unless the context requires otherwise, any reference:
   1. (a)  to a clause or schedule is a reference to a clause of or a schedule to this Agreement;
   2. (b)  to a person includes an individual, a body corporate, a partnership, any other unincorporated body or association of persons and any state or state agency;
   3. (c)  to this Agreement, any other document or any provision of this Agreement or that document is a reference to this Agreement, that document or that provision as in force for the time being or from time to time amended in accordance with the terms of this Agreement or that document; and
   4. (d)  to an enactment includes that enactment as it may be amended, replaced or reenacted at any time, whether before or after the date of this Agreement, and any subordinate legislation made under it.
5. 32.5.  The schedules form part of this Agreement.

33. Governing law and jurisdiction

This Agreement (including the Schedules hereto) shall be governed by and construed in accordance with the laws of Hong Kong and the parties hereby irrevocably submit to the non- exclusive jurisdiction of the courts of Hong Kong.

Schedule 2

Representations and Warranties

1. General

1. 1.1.  Each shareholder listed in the Merchant Services Application Form & Merchant Services Agreement and in the latest record in the Companies Registry (Hong Kong) (“CR Record”) is the legal and beneficial owner of such number of the shares of the Merchant next to his/her names in the CR Record.
2. 1.2.  There are no encumbrance on, over or affecting any of the shares of the Merchant.
3. 1.3.  The Merchant has full power, authority and legal rights to enter into the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement as the case may be.
4. 1.4.  This Agreement constitutes valid and legally binding obligations on the Merchant and is enforceable against it in accordance with its terms.
5. 1.5.  All authorizations, consents, licences and approvals required from any governmental or other authority for or in connection with the execution, delivery and performance of this Agreement have been obtained.
6. 1.6.  The Merchant is generally subject to civil and commercial law and to legal proceedings. Neither theMerchant nor any of its assets or revenues is entitled to any immunity or privilege (sovereign or otherwise)from any set-off, judgment, execution, attachment or other legal process.
7. 1.7.  The submission by the Merchant to the non-exclusive jurisdiction of the Hong Kong courts as a party to this Agreement is valid and binding.

2. Accuracy and Adequacy of Information

1. 2.1.  The information given in the Merchant Services Application Form & Merchant Services Agreement is true and accurate in all respects.
2. 2.2.  The copy of the memorandum of association of the Merchant and the Articles provided to the Company is complete and accurate in all respects, and has attached to it copies of all resolutions and other documents required by law to be so attached.
3. 2.3.  The Merchant shall promptly provide the Company with all such further information or document or authorization for obtaining such information or document as the Company shall from time to time require.

3. Compliance with Legal Requirements

1. 3.1.  The Merchant has been duly incorporated and constituted, and is legally subsisting under the laws of its place of incorporation.
2. 3.2.  Compliance has been made with all legal and procedural requirements in connection with the Merchant concerning:
   1. (a)  its memorandum of association and Articles or other constitutional documents (including all resolutions passed or purported to have been passed);
   2. (b)  the filing of all documents required by the Companies Ordinance or other appropriate legislation to be filed with the Registrar of Companies or other appropriate regulatory bodies;
   3. (c)  payments of interest and dividends and making of other distributions; and
   4. (d)  appointments of directors and other officers.
3. 3.3.  The Merchant is empowered and duly qualified and has the necessary licences and authorizations to carry on its business in such countries in which it operates.
4. 3.4.  The Merchant shall duly comply with all applicable laws, rules and regulations of Hong Kong, its place of incorporation and its country in which settlement is conducted in conducting the Transactions and using the Services.
5. 3.5.  The Merchant shall not use the Website or the Services for the any unlawful, fraudulent or improper activities.
6. 3.6.  There has been no material breach by the Merchant or by any of the officers or employees of the Merchant (in their capacity as such) of any legislation or regulations affecting the Merchant or its business.
7. 3.7.  Compliance with the terms of this Agreement does not and shall not:-
   1. (a)  conflict with, or result in the breach of, or constitute a default under any agreement or documents to which the Merchant is a party, or any provision of constitutional document of the Merchant or any encumbrance, lease, contract, order, judgment, award, injunction, regulation, license, permit or other restriction or obligation of any kind by which or to which any assets of the Merchant is bound or subject; or
   2. (b)  result in the creation, imposition, crystallisation or enforcement of any encumbrance over any of the assets of the Merchant.

4. Business

1. 4.1. In respect of the business of the Merchant:
2. (f)  there are requisite corporate powers in respect thereof, all applicable legislations, rules and regulations have been complied with and observed, and there has been no breach or contravention of the same;

6. (g)  all qualifications, registrations, licences, know-how or other approvals necessary for the proper conduct of the business of the Merchant have been obtained and maintained and no event or omission has occurred whereby any of the same or the renewal thereof is or is likely to be thereby adversely affected, suspended or revoked;
7. (h)  all qualifications, registrations, licences and other approvals may continue to be carried on and held by the Merchant up to and until the date of termination of this Agreement; and
8. (i)  the carrying on of which in no way contravenes or infringes any third party right including, without limitation, patents, industrial designs, copyrights and trademarks and other intellectual property rights.

1. 4.2. There are requisite corporate powers for ownership of the Merchant in respect of each of the Products/Services (if applicable).

5. Products/Services

1. 5.1.  The Merchant has obtained all licences and permits from the government or regulatory authorities to sell or provide the Products/Services.
2. 5.2.  At the time when each of the Products/Services passes or delivers to the Account Holders (or their respective nominees), such Products/Services are free from encumbrance.
3. 5.3.  Each of the Products/Services is of merchantable quality or of a reasonable standard and fit for a particular purpose.
4. 5.4.  The Products/Services shall correspond with the description provided by the Merchant and the Merchant has exercised its best endeavours to comply with the Trade Descriptions Ordinance and other applicable laws and regulations in Hong Kong or elsewhere.

6. Others

1. 6.1.  The Merchant shall use the name or logo of the Company in a mutually agreed position of the Website and Retail Store(s) as notified by the Company.
2. 6.2.  The Merchant shall be responsible for all fees, charges, taxes or duties payable as a result of any dealing through the Company and the costs and charges of the Company in the investigation of any Transaction involving or suspected to involve any dishonesty or fraud.
3. 6.3.  The Merchant shall not reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes any portion of the Services.