Terms and conditions

FINOLITA

Terms and Conditions

Gateway – Aggregation – Acquiring

1.              Company Information

Company

UAB Finolita Unio

Registration Number

303090931

License Authorisation Number

LB000490

Located at

Lvovo str. 25, LT-09320 Vilnius, Lithuania

Referred to as

“Finolita”

2.              Introduction

These Terms and Conditions (“T&C“) outline the terms and conditions under which FINOLITA will provide the SERVICES as specified in the AGREEMENT. In the event of a conflict between these T&C and other provisions of the AGREEMENT, the other provisions of the AGREEMENT shall prevail.

FINOLITA and the MERCHANT shall ensure full compliance with the RULES of the relevant CARD SCHEMES, OTHER FINANCIAL INSTITUTIONS and PAYMENT PROVIDERS. In the event of a conflict between the AGREEMENT and these RULES, the provisions of these RULES shall prevail.

3.              Definitions

ACQUIRER or ACQUIRING BANK: a financial institution which is a member of MasterCard International Limited and/or Visa International and thus licensed to acquire the MERCHANT’s TRANSACTIONS and PROCESS them for CLEARING and SETTLEMENT purposes.

ACQUIRING SERVICES: the routing of TRANSACTIONS for AUTHORIZATION, PROCESSING, CLEARING and SETTLEMENT of funds.

AGGREGATION FEE: shall mean the fees FINOLITA is charging the MERCHANT with for rendering the AGGREGATION SERVICES.

AGGREGATION SERVICES: the routing of TRANSACTIONS for AUTHORIZATION, PROCESSING, CLEARING, SETTLEMENT and concentration of funds by facilitating OTHER FINANCIAL INSTITUTIONS on behalf of the MERCHANT.

AGREEMENT: Gateway and/or Aggregation and/or Acquiring Agreement including all Schedules, these T&C and any other material agreement entered into between FINOLITA and the MERCHANT with regard to the SERVICES.

APPLICABLE LAWS: all applicable laws and regulations, the prevailing rules and regulations of any regulatory authority and the RULES to which each party is subject to in respect of the performance of its obligations under the AGREEMENT.

AUTHORIZATION: the confirmation to the MERCHANT, in response to an enquiry from the MERCHANT, stating that a TRANSACTION involving a CARD or a non-CARD payment account is permitted.

BANKING DAY(S): a day or days on which banks are open for business in London and, where a payment is to be made in a currency other than in Euros, in the principal financial center of the country of such currency.

CARD: a current credit or debit charge card issued by CARD ISSUERS licensed by MasterCard International or Visa International or any other credit or debit card(s) as approved by FINOLITA.

CARDHOLDER-NOT-PRESENT TRANSACTION: a TRANSACTION which is completed when neither the cardholder nor the cardholder’s CARD is present at the point of sale.

CARD ISSUER: a CARD SCHEME MEMBER in its capacity as an issuer of a CARD or Account.

CARD SCHEME: Visa International, MasterCard International or such other card scheme as notified to the MERCHANT by FINOLITA.

CARD SCHEME MEMBER: a financial institution which participates in the CARD SCHEME.

CHARGEBACK: an invalid or disputed TRANSACTION that is rejected by the CARD ISSUER, CARD SCHEME or financial institution.

CHARITY: an entity with an annual income of less than £1,000,000 which is an English and/or Welsh, Northern Irish, or Scottish charity in accordance with the PSR.

CLEARING: collecting and listing all TRANSACTIONS, which are subject to SETTLEMENT to the MERCHANT.

CUSTOMER ORDER LETTER: the correspondence initiating a CARDHOLDER-NOT-PRESENT TRANSACTION duly completed by a cardholder.

EEA: European Economic Area.

FLOOR LIMIT: the threshold where upon its exceeding a TRANSACTION has to be authorized. This threshold is defined by FINOLITA as a currency amount as a result of the KYC PROCEDURES.

FCA: Financial Conduct Authority UK.

GATEWAY SERVICES: shall mean the technical processing of TRANSACTIONS between an ACQUIRER, PAYMENT PROVIDER or FINOLITA and the MERCHANT.

GENERAL DATA PROTECTION REGULATION or GDPR: means the Regulation of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.

INTELLECTUAL PROPERTY RIGHTS: without limitation any patent, trade mark, trade name, business name (including domain names and URLs), copyright, registered design, database right, unregistered design right (including rights in semiconductors) or other intellectual or industrial property protection and any application for such protection, and all rights in any secret process, moral rights, know-how and inventions (whether patentable or registrable or not) or other confidential information in each case whether registered or unregistered and including applications for the grant of such rights and all other rights or equivalent forms of protection anywhere in the world.

KYC: Know Your Customer.

KYC PROCEDURES: the process carried out by FINOLITA in order to fulfill the KYC requirements set forth by the CARD SCHEMES, OTHER FINANCIAL INSTITUTION or public authority.

MERCHANT NUMBER: the unique processing number allocated by FINOLITA to each location/currency or origination/currency of SETTLEMENT.

MICRO-ENTERPRISE: an enterprise which employs fewer than 10 persons and has a turnover or annual balance sheet that does not exceed EUR 2,000,000.

NEGATIVE FILE/WARNING BULLETIN: a list of blocked Card Account Numbers supplied to the Merchant by FINOLITA.

OTHER FINANCIAL INSTITUTION: any institution which regulates or is responsible for any OTHER PAYMENT SERVICE.

OTHER PAYMENT SERVICE: payment services other than ACQUIRING SERVICES. Such Service(s) as the parties may agree shall be provided by FINOLITA to the MERCHANT including PROCESSING to collect payments for goods and/or services or providing connectivity between the MERCHANT and FINOLITA, and FINOLITA and any OTHER FINANCIAL INSTITUTION.

PAYMENT PROVIDER: a financial institution (OTHER FINANCIAL INSTITUTION) offering payment methods such as e-wallets, pre-paid vouchers, etc. to a MERCHANT or FINOLITA.

PAYMENT SERVICES DIRECTIVE or PSD2: means the Directive 2015/2366/EC of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC.

Payment Services Regulations or PSR: means the Lithuanian Republic Law on Electronic Money and Electronic Money Institutions (22 December 2011 No XI-1868), Law on Payment Institutions (10 December 2009 No XI-549) and Law on Payments (17 April 2018 No XIII-1092), the implementation of the PSD2 in the Republic of Lithuania.

PCI: Payment Card Industry.

PCI DSS: Payment Card Industry Data Security Standards.

PROCESS or PROCESSING: means (i) by FINOLITA, the submission of transaction data to the payment processing system of an ACQUIRER or a PAYMENT PROVIDER; (ii) by the ACQUIRER or FINOLITA, the submission of transaction data to the CARD ISSUER or OTHER FINANCIAL INSTITUTION in order to obtain an AUTHORIZATION for the TRANSACTION and to obtain funds for SETTLEMENT (including CHARGEBACK or a REFUND).

REFUND: an amount for the credit of a cardholder’s CARD account or a non-CARD account holder’s account or as a result of the generation of a REFUND RECEIPT.

REFUND RECEIPT: any electronic or paper records the MERCHANT may use for the purpose of recording a REFUND to a cardholder’s CARD or a non-CARD account.

RULES: all current and future by-laws, rules and regulations of CARD SCHEMES, OTHER FINANCIAL INSTITUTIONS or FINOLITA, which are applicable to the SERVICES or other payment methods.

SERVICE(S): any services provided to the MERCHANT by FINOLITA as agreed upon in the AGREEMENT; particularly the PROCESSING, CLEARING and SETTLEMENT of MERCHANT TRANSACTIONS and other payment related services by FINOLITA to MERCHANT including (i) PROCESSING, CLEARING and SETTLEMENT, (ii) MERCHANT credit research, (iii) MERCHANT activation and approval, (iv) MERCHANT security and recovery, (v) back office services, and (vi) CHARGEBACK and retrieval services.

SETTLEMENT: the settlement via a bank transfer by FINOLITA to the MERCHANT of the net relevant amount from TRANSACTIONS under the AGREEMENT.

SETTLEMENT CURRENCY: shall mean Euros or any other currency for SETTLEMENT as agreed in writing between FINOLITA and the MERCHANT in accordance with the AGREEMENT.

SETTLEMENT CYCLE: shall mean the period of time as agreed during which FINOLITA will collect funds on behalf of the MERCHANT before transferring these monies to the indicated bank account(s) of the MERCHANT and as set forth in the AGREEMENT.

SETTLEMENT VALUE: the net amount resulting from the submission of TRANSACTIONS and REFUNDS for CLEARING and after taking into account any deductions made as set out in the AGREEMENT.

THIRD PARTY SOLUTION PROVIDER: a provider of software and/or hardware facilitated by the MERCHANT in order to establish and maintain a valid and working connection to the FINOLITA payment system, or being facilitated by the MERCHANT in addition and in parallel to the connection to the FINOLITA payment system.

TRANSACTION(S): act of payment between a cardholder or a non-CARD account holder and a MERCHANT resulting in the generation of a TRANSACTION RECEIPT or other report.

TRANSACTION RECEIPT: an electronic or paper record of a TRANSACTION generated at the point of sale or website evidencing the purchase of goods or services by a cardholder or a non-CARD account holder from a MERCHANT using a CARD or any other electronically processed payment option.

4.              Services

4.1.           General

The SERVICES to be delivered by FINOLITA to the MERCHANT are specified in an Aggregation and/or Acquiring and /or Gateway Agreement. FINOLITA will provide the SERVICES to the MERCHANT only upon successful completion of its anti-money-laundering and risk due diligence and its KYC PROCEDURES. FINOLITA will prior to accepting the MERCHANT, as well as on a recurring basis, execute its evaluation and assessment of the MERCHANT and carry out its KYC PROCEDURES upon which the specific risk and security arrangements for the MERCHANT shall be defined.

4.2.           Changes to Services

Changes to the SERVICES shall be agreed upon between the parties in written form and shall be subject to the following process:

1.    The MERCHANT shall submit a change request to FINOLITA’s commercial department for review.

2.    Subsequently, FINOLITA shall review the change request, consider its impact and at its sole discretion approve or reject the change request.

3.    if the change request is approved, FINOLITA shall provide an estimate of the expected implementation period and work effort.

4.   The change request, if approved, shall be implemented into the AGREEMENT.

Notwithstanding the above, FINOLITA may issue new policies with regards to the SERVICES, which will be published on www.FINOLITA.com. FINOLITA will notify the MERCHANT by giving 60 days’ notice in advance, unless the change is required immediately due to legal or regulatory requirements. If the MERCHANT continues using the SERVICE(S) provided by FINOLITA past the date when these new policies become effective, it is deemed that the MERCHANT has accepted these changes.

5.              FINOLITA Aggregation and Acquiring Services

5.1.           General

The MERCHANT hereby instructs and authorizes FINOLITA to claim on its own behalf, but for the account of the MERCHANT, the settled TRANSACTION amount from the relevant financial institutions and authorizes FINOLITA to receive and to hold this amount on behalf of the MERCHANT.

5.2.           Additional Agreements

Depending on the SERVICES the MERCHANT subscribed to with FINOLITA, the MERCHANT may have to enter into additional agreements with OTHER FINANCIAL INSTITUTIONS and/or ACQUIRING BANKS in order for FINOLITA to render the SERVICES to the MERCHANT. In case such an additional agreement is required, but not concluded for any reason, the effected payment method shall not be considered part of the SERVICES and FINOLITA shall not be held responsible in any way whatsoever for the non-availability of the relevant payment method.

FINOLITA has the right to permanently or temporarily disconnect the MERCHANT from certain payment methods if such payment methods cease to be supported by any corresponding OTHER FINANCIAL INSTITUTION. Under no circumstances will FINOLITA be liable to the MERCHANT for any failure of any OTHER FINANCIAL INSTITUTION to effect payments or perform its service in any other way.

5.3.           Processing Liabilities

FINOLITA shall not be liable to the MERCHANT for any failure of a financial institution, including a financial institution’s failure to effect payments.

5.4.           Processing Limit

FINOLITA shall apply a processing limit to the aggregate value of TRANSACTIONS in respect of any specified period. FINOLITA is entitled to retain any amount processed in excess of the processing limit without prior approval for a period of up to 12 months. FINOLITA may vary the processing limit at any time by giving the MERCHANT 30 days’ notice.

5.5.           Reserve Requirement

For all aggregated payment methods and the ACQUIRING SERVICES, a specific reserve requirement is stipulated in the AGREEMENT.

The reserve requirement can either be fulfilled by a deposit into the reserve account indicated by FINOLITA (security deposit), as a third party guarantee accepted in writing by FINOLITA (guarantee) or by an automatic transfer of a share of the SETTLEMENT amounts to the reserve account indicated by FINOLITA until requirements are met (rolling reserve – paid out to the MERCHANT after an agreed time).

Upon termination of the AGREEMENT such reserve shall be retained by FINOLITA to cover for any remaining potential liabilities regarding CHARGEBACKS. No interest will be paid to the MERCHANT. FINOLITA reserves the right to adjust the reserve requirements by giving the MERCHANT 30 days’ notice.

5.6.           Settlement of Funds

FINOLITA shall ensure that SETTLEMENTS to the MERCHANT’s bank account are made at the latest 4 BANKING DAYS after the end of the SETTLEMENT CYCLE. In case any OTHER FINANCIAL INSTITUTION does not settle to FINOLITA’s account, the MERCHANT agrees that FINOLITA does not have to settle before the involved OTHER FINANCIAL INSTITUTION has executed the corresponding settlement.

The MERCHANT acknowledges that FINOLITA has no influence on the duration of the settlement periods maintained by financial institutions and agrees to cover any bank transfer costs related directly to the SETTLEMENT from FINOLITA.

6.              FINOLITA Gateway Processing Services

6.1.           Payment Methods

FINOLITA has the right to permanently or temporarily disconnect the MERCHANT from certain payment methods if such payment methods are not provided by the relevant financial institution.

6.2.           Additional Agreements

The performance of certain SERVICES or parts thereof may require the MERCHANT to enter into additional agreements with FINOLITA, FINOLITA’s affiliates or one or more financial institutions. If such an additional agreement is required, but not concluded for any reason, the specific service to be covered by the additional agreement shall not be considered part of the SERVICES and FINOLITA shall held without responsibility.

6.3.           Processing Liabilities

FINOLITA shall not be liable to the MERCHANT for any failure of a financial institution, including a financial institution’s failure to effect payments.

7.              Merchant Obligations

7.1.           Merchant Business Information

The MERCHANT represents and warrants that the information provided in the application and the KYC PROCEDURES is true and accurate and provides an accurate picture of the true nature of the MERCHANT’s business. The MERCHANT will notify FINOLITA immediately of any relevant changes, including, but not limited to:

·      Legal representative(s)

·      Bank account (for SETTLEMENT)

·      Website/Online shop URL

·      Major ownership

·      Key geographical markets

·      Financial standing

·      Line of business

FINOLITA shall receive such notification at least 30 days prior to the effectiveness of the change.

7.2.           Implementation and Security

The MERCHANT is at its own costs and expenses responsible for the correct technical implementation of and connection to the technical systems of FINOLITA. The MERCHANT will ensure that its technical systems are at all times kept fully functional and in compliance with the market standard particularly by taking appropriate security measures to avoid unauthorized access. FINOLITA has implemented a number of security features into its system. The MERCHANT shall at its own costs and expenses ensure that these features take their full effect. FINOLITA will support the MERCHANT by providing relevant technical guidelines.

The MERCHANT shall notify FINOLITA at least 30 days in advance of any technical adjustments that could possibly affect the performance of the SERVICES.

FINOLITA is at any time entitled to adopt, adjust, change or progress the API used to perform the SERVICES. FINOLITA will notify the MERCHANT within due course. If such measure requires the MERCHANT to update its software or interface, the MERCHANT is obliged to perform such update within 6 weeks upon notification.

In case of facilitating CARD-related services, the MERCHANT is obliged to follow the rules and regulations set forward by the PCI Council (www.pcisecuritystandards.org) and to provide a valid proof of compliance with the standards of PCI.

7.3.           Use of the Services

The MERCHANT shall:

1.    provide FINOLITA with any information necessary to provide the SERVICES and respond promptly, at least within 5 BANKING DAYS, to requests of FINOLITA to provide direction, information, approvals, authorizations or decisions that FINOLITA deems necessary to perform the SERVICES;

2.    assist FINOLITA with the implementation and performance of the SERVICES, if necessary;

3.    implement adequate security measures to prevent its programs from damage including data (re-)storage;

4.   not forward its access data (User ID, password) for the SERVICES to any third parties. The MERCHANT acknowledges that, for security reasons, ghost names and pseudonyms cannot be used;

5.    inform FINOLITA immediately, if an employee or otherwise associate, who was given access to the SERVICES, resigns. FINOLITA will close this access for security reasons; and

6.   in case of facilitating CARD-related services, put the respective logos of the CARD SCHEMES at the Merchant’s website on display.

If FINOLITA is unable to perform the SERVICES for any reasons beyond the control of FINOLITA which are caused by the MERCHANT, FINOLITA shall not be held responsible in any way.

7.4.           Business Conduct

While using the SERVICES, the MERCHANT undertakes

1.    to provide such necessary information to its customers as required pursuant to APPLICABLE LAWS;

2.    not to sell any goods or offer services prohibited pursuant to APPLICABLE LAWS;

3.    to comply with the RULES set forth by CARD SCHEMES, OTHER FINANCIAL INSTITUTIONS or PAYMENT PROVIDERS involved in rendering the SERVICES;

4.   to comply with applicable EU and/or national data protection laws including the GENERAL DATA PROTECTION REGULATION (“Data Protection Laws”);

5.    to perform its obligations toward its customers, including the assumption of responsibility for the acceptance of a customer order and its fulfilment, in the agreed manner;

6.   not to use the SERVICES for any improper purpose or in any manner, which may constitute a violation of APPLICABLE LAWS or which may cause damage to FINOLITA’s reputation or which may expose FINOLITA to investigation, prosecution or legal action; and

7.    to indemnify FINOLITA and hold FINOLITA harmless for all costs (including legal fees) and damages incurred resulting from a claim by a customer of the MERCHANT or any other third party in connection with the business model or an act or omission of the MERCHANT.

8.              Payment Terms

8.1.           Invoices

FINOLITA will submit on a monthly basis in arrears invoices to the MERCHANT stating the fees and reimbursable expenses incurred. Each invoice shall clearly state the work performed, the TRANSACTIONS, requests and volumes handled and the reimbursable expenses incurred.

Notwithstanding the above, the setup fee will become due and payable (i) immediately after FINOLITA has established the test environment for all SERVICES or (ii) 6 weeks after the commencement of the business relationship in case FINOLITA is unable to perform the SERVICES because the MERCHANT violates its duty to collaborate.

In the month of the commencement of the business relationship between FINOLITA and the MERCHANT monthly fees shall be invoiced on a pro rata basis. The fees for the last month of the business relationship are invoiced in full.

FINOLITA shall be entitled to carry out payment transactions over the Merchant’s FINOLITA account for quality protection purposes. Such transactions will be invoiced to the MERCHANT in accordance with the applicable service fees.

8.2.           Payment Details

The MERCHANT is obliged to pay all fees and expenses in the currency of the invoice by bank transfer to the account designated by FINOLITA. All invoices shall be paid within 15 BANKING DAYS from the date of the invoice. The MERCHANT is not entitled to hold back any payments to FINOLITA, regardless of the reason.

8.3.           Set-Off

All payments to be made by the MERCHANT under the AGREEMENT shall be calculated and be made without any deduction for set-off or counterclaim.

FINOLITA may set off any obligation due from the MERCHANT under the AGREEMENT against any obligation (whether or not matured) owed by FINOLITA to the MERCHANT. If such obligations are in different currencies, FINOLITA may convert either obligation at a current market rate.

8.4.           Taxes

The MERCHANT shall pay directly or reimburse FINOLITA for any taxes arising from or in connection with the provision of the SERVICES excluding any taxes on FINOLITA’s net income.

8.5.           Late Payment

If the invoice is not fully settled within 20 BANKING DAYS from the date of the invoice, FINOLITA is entitled to receive default interest at a rate of 1.5% per month on the overdue amount from the due date up to the date of actual payment.

In case of AGGREGATION and/or ACQUIRING SERVICES, FINOLITA is entitled to deduce such overdue amounts from the next SETTLEMENT(S) to the MERCHANT.

In case of GATEWAY SERVICES, FINOLITA is entitled to suspend the SERVICES in case an invoice is overdue provided that it has notified the MERCHANT in writing of such intended suspension by giving 30 days’ notice in advance.

8.6.           Fees

The MERCHANT shall bear all costs associated with its registration with an ACQUIRING BANK, the CARD SCHEMES, OTHER FINANCIAL INSTITUTIONS or PAYMENT PROVIDER.

The MERCHANT shall bear all costs charged by banks for the transfer of monies from FINOLITA to the MERCHANT.

8.7.           Increase of Fees

FINOLITA is entitled to adjust the fees and the reimbursable expenses as set out in the AGREEMENT on the basis of the consumer price index (the “CPI“, published on www.statistics.gov.uk), or any index replacing the CPI. Such adjustments shall be calculated on the basis of the annual inflation as of December of the respective year.

In order to adjust the fees and/or the reimbursable expenses, FINOLITA shall notify the MERCHANT in writing of the envisaged adjustment within the first 6 months of each calendar year. If FINOLITA does not adjust the fees and/or the reimbursable expenses in one or more years, it shall remain entitled to make such adjustments retroactively in each of the following years.

9.              Warranties and Remedies

9.1.           Warranties

Without limiting any other warranties in accordance with this AGREEMENT, FINOLITA represents and warrants that it possesses the resources, expertise, knowledge and skills necessary to perform the SERVICES in accordance with the provisions set out in the AGREEMENT.

Without limiting any other warranties in accordance with this AGREEMENT, the MERCHANT represents and warrants that each TRANSACTION submitted for PROCESSING (i) represents a bona fide sale/rental of products or services not previously submitted; (ii) represents an obligation of the cardholder for the amount of the TRANSACTION; (iii) the amount charged in the TRANSACTION is not subject to any dispute set-off or counterclaim; (iv) does not represent the refinancing of an existing obligation of the cardholder; and (v) to the MERCHANT’s knowledge does not indicate any facts or circumstances which would impair the validity or collectability of the cardholder’s obligation.

9.2.           Notice of Defects

In case the MERCHANT identifies a defect in the SERVICES, the MERCHANT shall immediately inform FINOLITA. FINOLITA will on an urgent basis make all reasonable efforts to repair the defect and deliver the SERVICES at the agreed level. In case of an unjustified defect notice, the MERCHANT shall compensate FINOLITA for any expenses incurred.

9.3.           Warranty Limitations

If the MERCHANT modifies, enhances, amends or connects with unauthorized software to FINOLITA’s interface, it shall not have a warranty claim against FINOLITA in connection with such modification, enhancement, amendment or connection.

The MERCHANT has no warranty claim against FINOLITA if a defect, interference, damage or a similar default occurs due to improper use, use which is not in accordance with the description, non-compliance with installation requirements, improper equipment or data medium or because of other circumstances beyond the reasonable control of FINOLITA.

9.4.           Exclusions

FINOLITA is not responsible for any infringements of third party copyrights, patents or trade secrets in case (i) the MERCHANT has made amendments to original documents, interfaces or similar works prepared by FINOLITA without the express approval of FINOLITA, or (ii) the MERCHANT fails to use the most recent versions of such SERVICES by FINOLITA.

10.          Liability

10.1.        Limitation of Liability

FINOLITA shall not be liable for any action or omission taken by it under or in connection with the AGREEMENT, unless directly caused by its gross negligence or wilful misconduct.

FINOLITA shall not be liable for any indirect damage, loss, consequential damage or damage caused by the MERCHANT’s failure to fulfil its contractual obligations, including loss of profits or anticipated savings or incidental damages.

In any case, FINOLITA’s liability shall be limited to the lower of EUR 100,000 or the fees paid to FINOLITA within the last 6 months before the damage occurred.

10.2.        Exclusions

FINOLITA shall not be liable for any loss of data which occurred due to inadequate data storage or data re-storage of the MERCHANT.

Furthermore, FINOLITA shall not be liable for damages resulting from TRANSACTIONS (e.g. Refund, outpayment) of employees or other associates of the MERCHANT and for statistic evaluation created out of data provided by FINOLITA.

10.3.        Force Majeure

Except in respect of payment liabilities, neither party shall be liable for any failure or delay in its performance due to reasons beyond its reasonable control, including acts of war, acts of God, earthquake, flood, riot, embargo, sabotage, governmental act or failure of the internet, provided that the delayed party gives the other party prompt notice of the reasons for such failure or delay.

11.          Non-Solicitation

The MERCHANT shall not recruit and/or employ, even through third parties, any employee of FINOLITA for a period starting from the date of the execution and ending 12 months following the termination or expiration of the AGREEMENT.

In the event of a breach of this clause, the MERCHANT shall pay (not subject to judicial mitigation) FINOLITA the amount of one year’s gross annual wage of the recruited employee.

12.          Information and Data Security

FINOLITA will manage information and data security with reasonable efforts to restrict unauthorized access and will use best efforts to ensure that its employees and representatives are fully aware of the risks associated with information and data security issues. FINOLITA utilises encryption and other security technology to protect private information of the Merchant from unauthorized access.

FINOLITA ensures that information and data under its responsibility is properly backed up on a daily basis and that arrangements for recovery processes are in place.

FINOLITA further ensures that proper measures are in place to enable continuation of SERVICES, as far as reasonably possible, in case of the occurrence of an unexpected disruption event.

12.1.     Data Privacy/Processing of Customer Data

12.1.1.  Compliance

Each of FINOLITA and you, acting as a controller, will process the Customer Data in compliance with applicable Data Protection Laws.

12.1.2.  Purposes

FINOLITA will only process the Customer Data:

           as required in order to meet our obligations pursuant to the AGREEMENT;

           as agreed in writing between the parties;

           as required or allowed by law applicable to us;

           for fraud prevention or investigation purposes, or other risk management purposes;

           for customer identification and information verification purposes, including in connection with “know your customer”, anti-money laundering or anti-terrorism financing purposes;

           in accordance with Card Scheme Rules;

           to enforce our rights, or the rights of other persons in a financial transaction; or

–        to comply with policies applicable to our obligations under the Merchant Agreement, including to protect the security of the Customer Data.

12.1.3   Transparency

As a controller of the Customer Data, you will provide an information notice to Data Subjects meeting the requirements of Data Protection Laws, including the information referred to in Articles 13 and 14 of the GDPR (the “Customer Privacy Notice”); and

As a controller of the Customer Data, FINOLITA will provide an information notice to Data Subjects meeting the requirements of Data Protection Laws, including the information referred to in Articles 13 and 14 of the GDPR (the “Acquirer Privacy Notice”).

12.1.4   Assistance

Each party will provide the other party with such assistance and co-operation as it reasonably requests to enable the requesting party to comply with any obligations imposed on it by Data Protection Laws in relation to the processing of the Customer Data. A party will be entitled to refuse or limit its assistance where the requesting party is in the position to fulfil the obligations without that party’s assistance.

12.1.5   Notices

All notices and other communications between the parties under this clause 12.1 must be provided in accordance with clause 17.1 and, in the case of FINOLITA, also by email to FINOLITA Data Protection Officer.

12.1.6   Privacy Policy

For full details of FINOLITA’s Privacy Policy, please visit the website at https://finolita.com/privacy-policy .

13.          Intellectual Property Rights

Each party acknowledges the intellectual and industrial property rights of the other party whether registered or not. The MERCHANT shall pay full compensation to FINOLITA for any violation of FINOLITA’s copyrights or other INTELLECTUAL PROPERTY RIGHTS. FINOLITA will pursue any violation of its INTELLECTUAL PROPERTY RIGHTS with claims for injunctive relief and damages. FINOLITA is entitled to refer to the MERCHANT as reference client and to use its name, brand and logo for all kinds of marketing activities and campaigns free of charge, including, but not limited to, the use in marketing folders. The MERCHANT herewith agrees that FINOLITA’s logo is displayed to the MERCHANT’s customers, whenever the MERCHANT uses the standard payment selection page and/or standard payment details page.

14.          Confidential Information

“CONFIDENTIAL INFORMATION” means any information belonging to or in the possession or control of a party that is of a confidential, proprietary or trade secret nature and that is furnished or disclosed to the other party, including, but not limited to, information concerning a party’s business, ideas, products, customers or services. CONFIDENTIAL INFORMATION will remain the sole property of the disclosing party. CONFIDENTIAL INFORMATION shall not include information that is (i) lawfully in the possession of the receiving party prior to its receipt from the disclosing party, (ii) developed independently by the receiving party without access to the information disclosed by the disclosing party, (iii) is or becomes publicly available, otherwise than as a consequence of any wrongful or unlawful act of the receiving party (including a breach of the AGREEMENT) and (iv) lawfully received from a third party free of restrictions and without breach of this AGREEMENT.

CONFIDENTIAL INFORMATION shall not be disclosed to any third party. However, FINOLITA shall be entitled to disclose CONFIDENTIAL INFORMATION to third parties if it reasonably deems such disclosure to be necessary or useful for the provision of the SERVICES.

CONFIDENTIAL INFORMATION may be disclosed in accordance with a judicial or other governmental order, provided that the recipient party gives the disclosing party notice prior to such disclosure and, if possible, reasonable opportunity to obtain a protective order or the equivalent.

Upon termination of the AGREEMENT, the receiving party, at the first request of the disclosing party, shall return or destroy all CONFIDENTIAL INFORMATION belonging to the other party, except data regarding financial transactions or any other data required to be kept under APPLICABLE LAWS or best practices. FINOLITA shall ensure that all records relating to anti money laundering activities shall be kept for at least 7 years from the end of the business relationship.

15.          Termination for Good Cause

Either party may terminate the AGREEMENT at any time with immediate effect by giving prior written notice if

1.    the other party commits a material and irremediable breach of the AGREEMENT;

2.    the other party commits a material but remediable breach of the AGREEMENT and does not remedy such breach within 20 BANKING DAYS upon receipt of a written notice stating the material breach and requesting remedy;

3.    the other party becomes insolvent or any corporate action, legal proceedings or other procedure or step is taken or threatened in relation to (i) the suspension of payments, a moratorium of any indebtedness, winding‑up, dissolution, administration or reorganisation, (ii) a composition, assignment or arrangement with any creditor or (iii) the appointment of a liquidator, receiver, trustee in bankruptcy, judicial custodian, compulsory manager, administrative receiver, administrator or similar officer;

4.   the other party commits a breach on its obligations according to GENERAL DATA PROTECTION REGULATION and other laws.

FINOLITA is entitled to suspend its SERVICES if the MERCHANT fails to properly fulfil its obligations under the AGREEMENT. In that case FINOLITA shall notify the MERCHANT thereof within 3 BANKING DAYS following the suspension. The right to extraordinary termination as set herein shall remain unaffected by such suspension.

FINOLITA may at any time terminate the AGREEMENT or parts of the AGREEMENT with immediate effect if:

1.    the MERCHANT fails to notify FINOLITA of any material change in the nature of its business, goods and/or services or of any additional business the MERCHANT commences or any material business the MERCHANT closes down within 5 BANKING DAYS of such change;

2.    an event occurs that may affect or a matter is brought to the attention of FINOLITA which it considers may affect the MERCHANT’s ability or willingness to comply with any or all of its contractual obligations or liabilities hereunder or if any other change in MERCHANT’s circumstances or the circumstances of MERCHANT’s business occurs (including a deterioration in or a change of the MERCHANT’s financial position or ownership) which FINOLITA, acting in good faith, considers material to the continuance of the SERVICES;

3.    anything happens to MERCHANT or in relation to MERCHANT or arising from or incidental to MERCHANT’s business or the conduct of the MERCHANT’s business (including trading practices and individual activities) which FINOLITA, acting in good faith, considers disreputable or capable of damaging the reputation of FINOLITA or that of any financial institution, detrimental to FINOLITA’s business or that of any financial institution in its financial network or that may give suspicion of any criminal activity;

4.   FINOLITA, acting in good faith, reasonably considers any activity or omission of the MERCHANT to increase the risk of a claim against or loss or liability of FINOLITA or a financial institution in its financial network;

5.    any claim or action relating to the business relationship between FINOLITA and the Merchant is threatened or commenced by or against the MERCHANT or FINOLITA which FINOLITA, acting in good faith, considers material to the continuance of the SERVICES;

6.   any security granted to FINOLITA by the MERCHANT ceases to be enforceable, is withdrawn or loses considerable value;

7.    the RULES require FINOLITA to terminate the AGREEMENT or if a CARD SCHEME gives notice to FINOLITA that it considers the provision of the SERVICES to the MERCHANT to constitute a breach of the RULES;

8.   the MERCHANT treats FINOLITA or any of its officers and employees in an improper manner;

9.   the Merchant violates any duty to collaborate under the AGREEMENT;

10. the SERVICES are used by any third party or any third party benefits from the SERVICES without FINOLITA giving its prior written consent;

11.  FINOLITA, acting in good faith, reasonably believes that the MERCHANT is involved in any activities or omissions that would qualify as a criminal offence pursuant to APPLICABLE LAWS;

12. the MERCHANT disrupts FINOLITA’s regular business activities by means of, for example, spoofing, parameter tampering, exploitation of bugs, brute force or denial of service attacks and any other malicious activities.

13. the MERCHANT exceeds any threshold set out in the RULES of CARD SCHEMES, OTHER FINANCIAL INSTITUTIONS, PAYMENT PROVIDERS or FINOLITA;

14. the MERCHANT fails to successfully pass any anti-money-laundering or risk due diligence or KYC PROCEDURE executed by FINOLITA or fails to provide to FINOLITA the relevant PCI certificate or PCI Self-Assessment Questionnaire upon request.

15. the MERCHANT does not accept a variation of the risk and security arrangements (i.e. processing limit, reserve requirements) following any assessment or evaluation of the MERCHANT.

16. the MERCHANT is in default with the payment of any amounts payable to FINOLITA.

In any case, termination shall not affect any liabilities incurred by the MERCHANT prior to termination.

16.          Payment Services Regulations (PSR)

The AGREEMENT is subject to the PSR, the implementation of the PSD in Lithuania. In accordance with the PSR additional provisions with regards to MICRO-ENTERPRISES and CHARITIES as set out in Clauses 16.2 to 16.3 shall apply.

16.1.        General Provisions

With regard to the PSR the following general provisions shall apply to the AGREEMENT:

1.    Chapters III and IV of the Law on Payments require the provision of certain information and prescribe certain rights and obligations arising in the context of payment services.

2.    Except as otherwise specifically stated in the AGREEMENT, Chapters III and IV of the Law on Payments and the corresponding terms of this Clause 16.1 apply only where: the payment service provider of the other party to the payment transaction is located within the EEA and payment is effected in Euro or the currency of an EEA state which has not adopted the Euro.

3.    3. If the MERCHANT is not a consumer and/or does not fall under other exceptions listed in Article 3 of the Law on Payments, it agrees that provisions of Chapter III, Parts 1, 2 and 3 of Article 4, Parts 1, 2 and 5 of Article 11, Part 3 of Article 29, Articles 37, 39, 41, 44, 51 and 52 of the Law on Payments do not apply to the AGREEMENT, and that the time period set out in Article 36 of the Law on Payments is replaced with a time period of 6 months.

4.   In the event of any inconsistency between the terms of this Clause 16.  and other provisions of the AGREEMENT, the terms of this Clause 16.  shall prevail.

5.    The MERCHANT will only be liable for charges levied by FINOLITA and will not be liable for any fees of the payment service provider of the other party to the payment transaction.

6.   FINOLITA may not prevent the MERCHANT from (i) requiring payment of a charge or (ii) offering a reduction to, any payer for the use of any particular CARD or other means of payment.

7.    FINOLITA shall make funds available to the MERCHANT immediately after the funds have been credited to FINOLITA’s own account.

8.   FINOLITA shall be entitled to deduct the full amount of its own fees and charges from amounts received from payers for the account of the MERCHANT. Subject thereto, FINOLITA shall ensure that the MERCHANT receives the full amount of each TRANSACTION and will ensure that the MERCHANT receives a statement incorporating details of those charges.

9.   The credit value date for the MERCHANT’s payment account will be no later than the BANKING DAY on which the corresponding payment is credited to FINOLITA’s account. FINOLITA shall ensure that the amount is at the MERCHANT’s disposal immediately after the amount has been credited to FINOLITA’s account. This applies regardless of whether the payer’s payment service provider is located within or outside the EEA.

10. FINOLITA shall ensure that the full amount of each payment TRANSACTION is credited to the MERCHANT, subject only to deduction of service fees as set out in the AGREEMENT.

11.  FINOLITA shall not be liable for any contravention of any of the requirements of this Clause 16.1 where:

·      the contravention is due to unforeseeable circumstances beyond FINOLITA’s control; or

·      the contravention is due to the obligations of FINOLITA under any applicable provisions of national or EU law.

12. FINOLITA may apply changes to the exchange rate it uses in providing foreign currency exchange to the MERCHANT. FINOLITA’s foreign currency exchange rate is based on the appropriate CARD SCHEME’s exchange rate, which can be found on the relevant CARD SCHEME’s website.

16.2.        (not used)

16.3.        Mandatory Information

FINOLITA herby provides the following mandatory information in accordance with the PSR to the MERCHANT:

1.    The name of the payment service provider and ACQUIRING BANK is UAB Finolita Unio.

2.    The address and contact details of FINOLITA are set out in the AGREEMENT.

3.    FINOLITA is regulated by the Bank of Lithuania. FINOLITA’s registration number is set out in the AGREEMENT.

4.   A description of the payment services to be provided, the information to be provided by the MERCHANT in order to execute payment orders and the form and procedure for giving consent to the execution of payment transactions and for the withdrawal of consent are set out in the AGREEMENT.

5.    Where Merchant is acting as a payer, the time of receipt of a payment order is the time at which the payment order is received by FINOLITA. If the payment order is received on a day other than a BANKING DAY or after 16:30 hours on a BANKING DAY, the payment order is deemed to be received on the first BANKING DAY thereafter.

6.   Where MERCHANT is acting as a payer, FINOLITA shall ensure that the amount of the payment transaction is credited to the relevant payee’s payment service provider’s account by the end of the next BANKING DAY following the day of receipt of the payment order.

7.    Details of the service fees to be levied by FINOLITA in respect of the SERVICES are set out in the AGREEMENT.

8.   Communications shall be sent to the respective party’s notification address or to such other address as either party may designate in a written notice unless stated otherwise in the AGREEMENT. Reference to “address” here includes reference to “email address”. The manner and frequency with which information under the PSR must be provided or made available to the MERCHANT are set out in the AGREEMENT. The AGREEMENT is concluded in English and all communications are to be conducted in English.

9.   (not used).

10. The MERCHANT must take all reasonable steps to keep safe any personalised security features issued to the MERCHANT by FINOLITA which are used to authorise TRANSACTIONS, including any usernames, passwords or other security protocols. The MERCHANT shall notify FINOLITA immediately on becoming aware of the misappropriation or unauthorised use.

11.  FINOLITA has the right to suspend the use of the SERVICES on reasonable grounds relating to its security or its suspected unauthorised or fraudulent use. Except where the notification would compromise reasonable security measures or is otherwise unlawful, FINOLITA shall notify the MERCHANT of any such suspension and the reasons for the suspension in advance or, if unable to do so, immediately after. FINOLITA shall issue the MERCHANT with a new payment instrument as soon as practicable after the reasons for the suspension cease to exist.

12. (not used).

13. Where the MERCHANT is acting as a payer, FINOLITA shall immediately refund the amount of any unauthorised TRANSACTION to the MERCHANT and restore the debited account to the state it would have been had the unauthorised TRANSACTION not taken place.

14. (not used).

15. (not used).

16. (not used).

17. (not used).

18. The duration of the AGREEMENT is for an indefinite period unless stated otherwise elsewhere in the AGREEMENT.

19. (not used).

20.            This AGREEMENT is subject to the Governing Law and Jurisdiction in accordance with Clause 17.11.

21. For any complaints about the SERVICES, the MERCHANT shall contact FINOLITA as set out in the AGREEMENT. FINOLITA will endeavour to resolve any problems as quickly as possible in accordance with its customer complaints policy and APPLICABLE LAWS. If the MERCHANT considers that FINOLITA has breached any of its obligations under the APPLICABLE LAWS, the MERCHANT shall be able to refer such complaint to the Bank of Lithuania, which can be contacted by post at Totorių g. 4, LT-01121 Vilnius, Lithuania, by telephone on +370 5268 0029, +370 5268 0804, or by email at info@lb.lt.

22.            Before resorting to the courts, the parties agree to use their best efforts to negotiate in good faith and settle amicably any dispute that may arise out of or relate to the AGREEMENT or a breach of the AGREEMENT. Only if negotiations fail to result in a settlement, the matter at the election of either party may be submitted for resolution to a court of competent jurisdiction.

17.          General Provisions

17.1.        Notices

Any notice shall be in writing and be deemed duly served:

1.    if personally delivered, at the time of delivery;

2.    if posted to an inland address in the UK, on the actual receipt; or

3.    if sent by facsimile transmission, upon receipt by the sender of a successful facsimile transmission report.

If in the case of personal delivery or facsimile transmission such delivery or transmission occurs after 6.00 p.m. on a Banking Day or on a day which is not a BANKING DAY, receipt shall be deemed to occur at 9.00 a.m. on the next following BANKING DAY. Notwithstanding the above, any notices to the MERCHANT shall be deemed to have been received within 5 BANKING DAYS of posting or transmission as appropriate. The MERCHANT shall inform FINOLITA immediately of any change of its address, facsimile number or email address.

17.2.        Assignment

Neither party may assign or otherwise transfer the AGREEMENT or any rights and/or obligations thereunder without the prior written consent of the other party. However, FINOLITA may transfer its rights and/or obligations under the AGREEMENT to any other company within its group of companies without the prior consent of the MERCHANT. FINOLITA shall be liable for the performance of such company as for its own performance. FINOLITA reserves the right to fulfil any of its duties and powers under this AGREEMENT by the use of agents or subcontractors.

This AGREEMENT shall inure to the benefit of and bind the respective successors and permitted assigns of the parties.

17.3.        Third Party Solution Provider

The MERCHANT acknowledges that any THIRD PARTY SOLUTION PROVIDER appointed by the MERCHANT shall at all times remain the agent of the MERCHANT for the purposes of this AGREEMENT. The MERCHANT assumes full responsibility for the acts and omissions of any THIRD PARTY SOLUTION PROVIDER and acknowledges that FINOLITA bears no responsibility or liability for such acts or omissions.

17.4.        Consumer Data Privacy Policy

The MERCHANT shall post a consumer data privacy policy in accordance with the GENERAL DATA PROTECTION REGULATION on its Site(s) as a condition of Card Scheme acceptance in accordance with APPLICABLE LAWS. Additionally, shall display its security capabilities and policies on its Site(s).

17.5.        Property

Any equipment supplied by FINOLITA shall remain the property of FINOLITA and shall be returned to FINOLITA upon request.

17.6.        Severability

In the event that any provision of the AGREEMENT is void in whole or in part, the validity of the remaining provisions shall not be affected thereby. The parties undertake to replace the void provision by a valid provision, which comes closest to the economic purpose of the AGREEMENT.

17.7.        Variation

No variation of the AGREEMENT shall be effective unless made in writing. FINOLITA is entitled to amend the AGREEMENT from time to time. The MERCHANT shall be notified in writing no later than 60 days before the amendments become effective, unless these amendments are required immediately due to legal or regulatory requirements. Such amendments shall be deemed approved, unless FINOLITA has received a written objection from the MERCHANT. The notification to the MERCHANT shall point out this consequence and lay out the material content of the amendments. In case the MERCHANT raises an objection, FINOLITA shall have the right to terminate the AGREEMENT by giving 2 weeks’ notice within 6 weeks following the receipt of the objection.

17.8.        Waiver

No waiver by FINOLITA of any breach of this AGREEMENT shall operate as a waiver of any subsequent or continuing breach.

17.9.        Entire Agreement

This AGREEMENT together with the relevant RULES constitutes the entire agreement between the MERCHANT and FINOLITA in relation to the subject matter therein and any previous agreements with similar effect shall terminate immediately on the commencement.

17.10.     Compliance with Local Law

The MERCHANT shall ensure compliance with APPLICABLE LAWS in respect of its obligations under the AGREEMENT and shall immediately notify FINOLITA of any circumstances that might prevent compliance with APPLICABLE LAWS and/or the AGREEMENT.

17.11.     Governing Law, Jurisdiction

 

The AGREEMENT and all non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law, excluding the UN Convention on Contracts for the International Sale of Goods, the UK conflict of law rules and the UK international private law. The courts of England shall have exclusive jurisdiction to settle any dispute arising out of or in connection with the AGREEMENT. FINOLITA shall, however, not be prevented from taking proceedings in any other courts with jurisdiction at its sole discretion.