Terms and Conditions for Acquiring Services

These Terms and Conditions (the “Terms and Conditions”) have been drafted on the basis that the agreement between the Merchant, Paynetics AD (“Paynetics”) and the partner (be it independent sales organization or a payment service provider) that offers merchants POS terminals, processing and other non-regulated services (the “Partner”), where relevant, relating to Merchant Services (the “Agreement”) is comprised of each of the following documents:

(i) The Terms and Conditions.

The following Terms and Conditions contained herein, shall also apply to:

(ii) The Merchant Agreement (the “MSA”); and

(iii) The Agreement between the Merchant and the Partner for the POS terminal(s), processing and other non-regulated services (the “Terminal Agreement”) (where relevant).

Each of the Terms and Conditions, the MSA and the Terminal Agreement, together with such other documents as the parties may from time to time agree shall constitute part of the Agreement between the Merchant, Paynetics and the Partner.

The Merchant is obliged to review carefully all of the documents comprising the Agreement between the Merchant, Paynetics and the Partner and which set out the terms on which the Merchant will receive Merchant Services and Technical Services. Where otherwise indicated, references in the Agreement to capitalised terms are to terms as defined in the Terms and Conditions, and/or the MSA and the Terminal Agreement.

1. Definitions and Interpretation

1.1 In the Agreement the following words and expressions have the following meanings:

Access Codes	usernames, passwords and any other security information required by the Merchant to access the Merchant Payment Account;
Acquiring Services	means the processing by Paynetics of Transactions and the receipt and disbursement of related funds under the Agreement;
API	means a technical integration API provided by the Partner to the Merchant;
Applicable Law	All laws, rules and requirements applicable to Paynetics, the Partner and the Merchant when carrying out their obligations under the Agreement;
Assessment	means any and all assessment, fee, cost, expense or charge of any nature which a Card Scheme levies under its Card Scheme Rules at any time directly or indirectly in relation to any aspect of the relationship between the Parties;
Business Day	means a day other than a Saturday or Sunday or a bank or public holiday on which banks are open in Bulgaria;
Card	means a payment card or another device issued under Card Scheme Rules issued in physical or virtual format;
Card Account	means the account to which the financial institution has issued a Card so that their client can perform one or more of several services that relate to giving the client access to their account;
Cardholder	means a person to whom or for whose benefit a Card is issued;
Cardholder Data	means the data, including Card Account information, which relates to a specific Cardholder;
Card Issuer	means any financial institution, bank, credit union or company that issues (or causes to be issued) cards to cardholders;
Card Scheme	means such payment network(s) specified in the Agreement, or as the Parties may agree in writing from time to time after the Commencement Date;
Card Scheme Rules	means all applicable rules, regulations and operating guidelines issued by the Card Schemes;
Chargeback	means the reversal of a Payment by the issuer of a Card;
Chargeback Costs	means the administrative charge for processing a Chargeback and any reasonable costs, expenses, liabilities or Assessments that Paynetics may incur as a result of or in connection with a Chargeback;
Commencement Date	the date on which all Parties have executed the Agreement;
Confidential Information	means: all information of a confidential nature (including trade secrets and information of commercial value including but not limited to all information of a commercially confidential nature relating to the operations, contracts or commercial or financial arrangements) which may become known to one Party (“receiving Party”) from the other Party (“disclosing Party”), any information relating to a Party’s operations, processes, plans, intentions, designs, market opportunities, marketing, sales, strategies, trade secrets, technical, developmental, product operating, performance, cost, know-how, business and process information, computer programming techniques, file formats, interface protocols, interface formats, computer programs and software (including, but not limited to, source code, object code, software output, screen displays/file hierarchies, graphics and user interfaces), and all record bearing media containing or disclosing such information and techniques; samples, models or prototypes, or parts thereof; formulas; and third party confidential information, the provisions of the Agreement and the negotiations relating to it and the operation of the Agreement, but does not include information which is public knowledge or already known to the receiving Party receiving the information at the time of disclosure or which subsequently becomes public knowledge other than by a breach of the Agreement or subsequently comes lawfully into the possession of the receiving Party from a third party;
Damages	all payments, costs, expenses, losses, claims, damages, awards, orders, liabilities, compensation, Chargebacks and legal and regulatory proceedings of any nature whatsoever;
Data Protection Law	means (a) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 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 (General Data Protection Regulation), (b) The Bulgarian Law on Personal Data Protection (LPDP), (c) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on Privacy and Electronic Communications, as may be amended or updated from time to time), (d) any legislation or regulations which implement Directive 95/46/EC, (e) any national implementing laws, regulations and secondary legislation as amended or updated from time to time, in Republic of Bulgaria and (f) any successor legislation superseding or replacing the GDPR or the LPDP;
Fees	means the fees applicable for the services provided, as specified in the MSA together with the fees as set out in the Terminal Agreement, where relevant;
Group	in relation to a company, means that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company;
Group Company	in relation to a company, means any member of its Group;
Intellectual Property Rights	means inventions, patents, registered designs, trademarks, service marks, domain names, trade and business names (including internet and email addresses), applications for any of the foregoing, copyrights, unregistered designs, Confidential Information, Know-how and database rights including all extensions and renewals and the goodwill attaching to any of them and applications for any of them and any right or form of protection of a similar nature and having equivalent or similar effect to any of them which may subsist anywhere in the world;
Merchant’s Bank Account	means the bank account that the Merchant is obliged to maintain under Clause 4 of the Terms and Conditions;
Merchant Funds Account	means the segregated bank account(s) in which “relevant funds” will be held by Paynetics separately from Paynetics’ own funds in accordance with the applicable provisions of the Law on Payment Services and Payment Systems (Amended Law);
Merchant ID	means the unique number(s) that is assigned to the Merchant’s Merchant Payment Account to identify the Transactions during processing via the Card Scheme(s);
Merchnat Payment Account	means the data account in Paynetics’ and, where relevant, Partner’s systems that records the Transactions; the amounts paid to or payable by the Merchant in relation to the Transactions and Fees; and other information related to the Merchant and the subject matter of the Agreement;
Merchant Services	means the handling by Paynetics and the Partner, as applicable, of electronic payment transactions (to include acquiring, e-commerce, mail order telephone order (MOTO) and POS Services) on behalf of the Merchant;
Month	means a calendar month;
OCT	means original credit transaction (originated funds withdrawal) based on Card Schemes capabilities, by virtue of which funds are being sent from the Merchant to the Cardholders and originated by the Merchant;
Party	means each party to the Agreement;
Payment	means a payment by a Cardholder using a Card for the purchase of goods or services from the Merchant;
PCI DSS	means the Payment Card Industry Transaction Data Security Standard provided by the PCI Security Standards Council as described at https://www.pcisecuritystandards.org;
Point of Sale (POS)	means the location at which a retail transaction is carried out;
POS Service	means services connected with the electronic funds transfer point of sale system pursuant to which transfers of funds for payments of goods and services from the Merchant are processed by Paynetics and the Partner, where relevant;
Publicity	means any written or oral publicity, news release or other public announcement;
Reason Code	means a code used by any Card Scheme to classify a specific activity, act or omission;
Recurring Payments	means a repetitive periodic Payment agreed in writing and in advance between a Cardholder and the Merchant (such as subscriptions or instalments) for debiting of the Cardholder’s Card;
Refund	means the repayment by the Merchant to a Cardholder of all or part of a Payment;
Refund Reversal	means a transaction initiated by the Merchant to reverse a Refund to which the Cardholder was not entitled (also known as a “Retro Charge”);
Regulator	any person or body concerned with the enforcement or supervision of, making or compliance with Applicable Law;
Representative	all employees, temporary staff, independent contractors, part-time staff, call centre operatives, marketing and sale personnel, legal advisors, agents, representatives and all other people, in each case retained by or otherwise working under the direction of any member of either Party;
Representment	means a transaction initiated by the Merchant to reverse a Chargeback, where the relevant Card Scheme decides that the Merchant has successfully challenged the Chargeback;
Rolling Reserve	means an amount equal to a proportion of the proceeds of Payments received by Paynetics, specified in the MSA, which is held by Paynetics in the Merchant Funds Account for a period of time, subject to the provisions of the MSA;
Security Account	means any bank account established and managed by Paynetics or the Merchant for the deposit of funds by the Merchant to protect Paynetics against actual or contingent liabilities or losses from Chargebacks, adjustments, fees, Card Scheme fines and other charges and liabilities that may be due and payable in connection with the Merchant ID, the Transactions and/or the Agreement;
Services	means the services as set out in the Merchant Services Agreement;
Settlement	means an act that discharges obligations in respect of funds or securities transfers between two or more parties;
Settlement Amount	means the amount owed by either Party to the other as a result of the operation of the Settlement Process in relation to the Transactions;
Settlement Period	means the period in respect of which the Settlement Amount is calculated in accordance with the Settlement Process;
Settlement Process	means the settlement process specified in the MSA;
Supported Currencies	means the currencies in which Transactions may be processed under the Agreement;
Technical Services	means any services supplied by Paynetics and/or the Partner that are not regulated payment services (e.g., data transfer or “gateway” services) as specified in the MSA and the Terminal Agreement (where relevant);
Term	the duration of the Agreement specified in the MSA and the Terminal Agreement;
Terminal	means any electronic device used to capture Card details, for obtaining authorisations and submitting Transactions to Paynetics;
Territory	means the countries included in the area of licence of Paynetics as authorised by the Card Schemes;
Transaction	means Payments, Recurring Payments, Chargebacks, Refunds, Representments and Refund Reversals;
Transaction Data	means documents, data and records of any kind relating to Transactions;
Verification	means the use of all reasonable means made available via Paynetics and the Partner, and/or the Card Schemes to verify that Transactions are valid including but not limited to address verification service (“AVS”) and 3D Secure authentication with the respective Card Scheme.

1.2 Headings in the Agreement are for ease of reference only and do not affect its interpretation.

1.3 The plural includes the singular and the other way around.

1.4 Where anything in the Agreement requires any Party to do or refrain from doing anything, the Party agrees that it is its obligation to ensure that its Representatives comply with the requirement.

1.5 The Agreement is concluded in the English language and all communications (including any notices or the information being transmitted) shall be in English. In the event that the Agreement is translated, for Merchant convenience, into any other language, the English language text of the Agreement shall prevail.

2. Merchant Services and Technical Services

2.1 The Agreement governs the process by which Paynetics will make available the Merchant ID and provide Merchant Services for the Merchant to accept Payments.

2.2 In return for the Fees, Paynetics shall supply the Merchant with the Merchant Services in accordance with the Agreement, with reasonable care and skill, and in compliance with Applicable Law and the Card Scheme Rules.

2.3 In return for the Fees related to the Technical Services, Paynetics and the Partner, as applicable, shall supply the Merchant with the Technical Services in accordance with the Agreement, with reasonable care and skill, and in compliance with Applicable Law, however, the Parties acknowledge that Technical Services are not regulated under the Law on Payment Services and Payment Systems (Amended Law).

2.4 The Merchant confirms that it is not a consumer within the meaning of the Law on Payment Services and Payment Systems (Amended Law) and agrees that consumer protective regulations of Directive (EU) 2015/2366 do not apply to the Agreement.

2.5 Paynetics reserves the right to amend the Agreement (including, the level of any Fee) at any time, without liability, simply by providing written notice of such amendment to the Merchant, and such amendment shall become effective on the latter of: (i) the date on which such written notice is received by the Merchant; or (ii) a date specified by Paynetics in such written notice. In such case the Merchant may terminate the Agreement immediately and without charge before the proposed change takes effect, otherwise the Merchant shall be deemed to have accepted such change.

2.6 Subject to ongoing compliance by the Merchant with all the conditions in the Agreement Paynetics and the Partner will authorise the Merchant requesting the processor to accept Payments through the API as soon as its testing is successfully completed with the Card Schemes and with the prior approval of Paynetics and the Partner.

2.7 The Parties will agree the initial amount for the Rolling Reserve as set out in the MSA for each Merchant ID prior to the commencement of the relevant processing.

2.8 For the avoidance of doubt, while Paynetics and the Partner shall be responsible for the Verification of Cards via the API, the Merchant shall be solely responsible for Chargebacks, Chargeback Costs and Chargeback fees charged by the Card Scheme, as per the MSA.

2.9 Paynetics may provide OCT services to the Merchant, subject to the following terms and conditions:

• 2.9.1 Any OCT shall be originated by the Merchant and performed by Paynetics following receipt of an instruction from the Merchant containing all necessary information, including, without limitation, Card details and Cardholder data.
• 2.9.2 The Merchant shall be liable for all OCTs.
• 2.9.3 All OCTs shall be subject to the Card Scheme rules, limitations and requirements as may be applicable from time to time.
• 2.9.4 All OCTs shall be subject to additional requirements as provided for in the MSA.

3. Merchant Payment Account and Merchant IDs

3.1 The Merchant Payment Account is a data account in Paynetics and Partner’s systems that includes Transaction details (including applicable Fees, dates and, where relevant, the currency of the Transaction and any applicable exchange rate(s) and certain details about the Merchant.

3.2 To be eligible for a Merchant Payment Account, the Merchant must be a Merchant incorporated in the Territory.

3.3 Each time the Merchant seeks to access the Merchant Payment Account Paynetics and the Partner will check the Merchant’s identity by asking for Access Codes. As long as the correct Access Codes are entered, Paynetics and the Partner will assume that the Merchant is the person giving instructions and making Transactions and the Merchant will be liable for them, except to the extent provided for in Clause 3.5. The Merchant must therefore keep the Access Codes secret and make sure that they are not stored in a way that enables others to impersonate the Merchant. If the Merchant discloses the Access Codes to any person or entity whom the Merchant employs or otherwise retains, appoints or authorises to access the Merchant Payment Account, the Merchant is also responsible and liable for any access, use or misuse or disclosure of the Merchant’s Access Codes or Merchant Payment Account by such person or entity.

3.4 Paynetics and the Partner can refuse to act on any instruction that Paynetics and/or the Partner believes: (i) was unclear; (ii) was not given by the Merchant; or (iii) might cause Paynetics and/or the Partner to breach a legal or other duty; or if Paynetics and/or the Partner believes the Service is being used for an illegal purpose.

3.5 Unless and until the Merchant notifies Paynetics and the Partner by email to the e-mail address notified to it for that purpose that the Merchant believes that someone else knows the Access Codes or can use the Service by impersonating the Merchant:

• 3.5.1 the Merchant will be responsible for any instruction which Paynetics and/or the Partner receives and acts on, even if it was not given by the Merchant; and
• 3.5.2 Paynetics and the Partner will not be responsible for any unauthorised access to Confidential Information about the Merchant in the Merchant Payment Account.

3.6 Paynetics and the Partner will do all that Paynetics and the Partner reasonably can to prevent unauthorised access to the Merchant Payment Account. As long as the Merchant has not breached the other terms contained in this Clause 3, Paynetics and the Partner will accept liability for any loss or damage to the Merchant resulting directly from any unauthorised access to Merchant Payment Account pursuant to Clause 15 of the Agreement.

3.7 Amounts shown in the Merchant Payment Account are denominated in the currency the Merchant has chosen from among the Supported Currencies. Interest does not accrue on any funds corresponding to such amounts.

3.8 Funds in the Merchant Funds Account will be held in one or more segregated bank accounts separately from Paynetics’ own funds, in accordance with the provisions of the Law on Payment Services and Payment Systems (Amended Law). No interest will be paid by Paynetics on funds held in the Merchant Funds Account.

3.9 Merchant IDs may only be introduced and operated with the formal written consent of Paynetics which may at its discretion withhold its consent to any Merchant ID, or to any changes being made to any Merchant ID (such discretion to be exercised reasonably; and for the avoidance of doubt any withholding of consent for reasons relating to available resources and temporary staffing shortage shall be considered a reasonable exercise of discretion).

3.10 Prior to the allocation by Paynetics of any Merchant ID, the Merchant must provide full details of the proposed use of such Merchant ID to Paynetics. The details must include, but not be limited to:

• 3.10.1 Full details of the Merchant, the nature of its business and the nature of the proposed Payments.
• 3.10.2 A completed Merchant application form on Paynetics’ then current standard from in relation to the proposed Merchant ID.
• 3.10.3 the projected volumes and turnover of Payments and Refunds.

3.11 Paynetics will promptly provide initial feedback to the Merchant, and unless prohibited by Applicable Law, and notify the Merchant of any matters which may lead Paynetics to withhold its consent to providing a Merchant ID.

3.12 The use of each Merchant ID by the Merchant must:

• 3.12.1 be and remain fully compliant with any provisions of the Card Scheme Rules (as notified to the Merchant by Paynetics and/or the Partner or otherwise);
• 3.12.2 be and remain fully compliant with all Applicable Law, as well as Paynetics’ policies and procedures.

4. Merchant’s Bank Account and Security Account

4.1 During the Term, the Merchant must maintain a Merchant’s Bank Account at a duly authorized credit institution in the sole name of the Merchant to which Paynetics may pay any Settlement Amount, and the Merchant shall have the sole mandate in respect of such account.

4.2 The Merchant shall notify Paynetics in writing in advance of any changes proposed by the Merchant or any third party in respect of the Merchant’s Bank Account (including, without limitation, the location of the branch at which such account is held) and shall not implement such changes without Paynetics’ prior written consent (such consent not to be unreasonably withheld or delayed). If any change in the Merchant’s Bank Account details is imposed on it, the Merchant shall notify Paynetics in writing immediately, giving full details of such changes and the reasons for them.

4.3 Paynetics may at any time require the Merchant to maintain with the Merchant’s bank an instruction to authorise Paynetics to directly debit from the Merchant’s Bank Account all sums that become due and payable by the Merchant to Paynetics under or in connection with the Agreement in the event that any amount remains due and payable by the Merchant to Paynetics after the Settlement Process has been followed. The Merchant will ensure that the Merchant’s Bank Account shall at all times have a credit balance sufficient to meet any sums due and payable to Paynetics under or in connection with the Agreement. Paynetics shall if practicable notify the Merchant in advance of any sum’s payable by the Merchant to Paynetics which Paynetics intends to debit by direct debit. This Clause shall not prejudice any rights the Merchant may have under Applicable Law to recover payments made to Paynetics by direct debit.

4.4 Paynetics may at any time require the Merchant within 30 days after receiving Paynetics’ written request that a person or persons reasonably satisfactory to Paynetics, provide Paynetics with a guarantee, indemnity or other security (including the replacement of any existing security) in such form and over such assets as Paynetics may reasonably require to secure to its reasonable satisfaction the performance of the Merchant’s obligations (including contingent or potential obligations) from time to time under the Agreement.

4.5 The Merchant shall ensure that any Security Account that Paynetics requires under Clause 4.4 will contain sufficient funds to cover any Terminal fees, unbilled processing costs plus Paynetics’ estimated exposure based on the Merchant’s susceptibility to Chargebacks, returns and unshipped merchandise and/or unfulfilled services. Paynetics may (but is not required to) apply funds in the Security Account toward and may set off any funds that would otherwise be payable to the Merchant against, the satisfaction of any amounts which are or become due from Merchant pursuant to the Agreement. The Security Account will not bear interest, and the Security Account shall be subject to Paynetics’ sole dominion and control. The Merchant hereby irrevocably grants to Paynetics a security interest in the Security Account and any and all funds on deposit therein, together with the proceeds thereof that may at any time be in Paynetics’ possession and control. The Merchant agrees to execute and deliver to Paynetics such instruments and documents that Paynetics may request to perfect and confirm the security interest and right of setoff set forth in this Clause 4.5. The Merchant hereby authorizes the Merchant’s financial institution where the Security Account is maintained to comply with the instructions originated by Paynetics with respect to the Security Account. The Merchant’s obligations and Paynetics’ rights under this Section shall survive termination of the Agreement.

5. Fees, Chargebacks and Settlement

5.1 The Merchant must pay to Paynetics in accordance with the Settlement Process:

• 5.1.1 the Minimum Transaction Fee amount of Fees specified in relation to each Merchant ID in the MSA;
• 5.1.2 the Fees relating to the Technical Services specified in the MSA;
• 5.1.3 the Fees relating to the Merchant Services as specified in the MSA;
• 5.1.4 the Fees as specified in the Terminal Agreement (where applicable);
• 5.1.5 All fees, fines, or Assessments that Paynetics incurs with the Card Scheme and or Regulator in relation to the Transactions. If a fee or fine is imposed by the schemes or Regulator, then Paynetics will also pass on an additional fee for the same value for putting the Paynetics license at risk;
• 5.1.6 Any other fees Paynetics incurs in relation to the Services, subject to the prior written consent of Merchant, such consent shall not be unreasonably withheld;
• 5.1.7 all Paynetics’ costs and expenses incurred in and for the setting up and arrangement of each Merchant ID, as set out in the MSA, as well as any other costs incurred by Paynetics with each Card Scheme relating to the Merchant Services, including foreign exchange fees and fines;
• 5.1.8 If payments are processed through non-approved sites, Paynetics will have no obligation to settle the funds processed from these sites with the Merchant.

5.2 Paynetics shall in accordance with the Settlement Process:

• 5.2.1 credit to the Merchant Payment Account(s) at the end of every Settlement Period the amount of funds received in relation to Payments, Refund Reversals, Representments during such Business Day, if applicable, from the Card Scheme, net of Chargebacks, Chargeback Costs, Refunds, OCTs, Fees, amounts payable to Paynetics under any indemnity given by it under the Agreement, any other amounts referred to in Clause 5.1 and any deferral(s) under Clause 5.3; and
• 5.2.2 disburse each Settlement Amount to the Merchant in the Supported Currency or as otherwise agreed with the Merchant.
  In circumstances where a currency conversion is applied to the Settlement Amount, Paynetics shall use its prevailing exchange rate of the day, applied on the date of disbursement, or such other reference rate as Paynetics may notify the Merchant. The reference rate will fluctuate and is therefore indicative only.

5.3 Paynetics may defer payment of any Settlement Amount:

• 5.3.1 if, following any deductions pursuant to Clause 5.2, the amount of such Settlement Amount is less than the minimum threshold that Paynetics reasonably determine in its sole and absolute discretion (of which Paynetics will notify the Merchant from time to time), until the total Settlement Amount payable reaches that threshold as set in the MSA;
• 5.3.2 where Paynetics reasonably believes that a Transaction may be fraudulent or involves other criminal activity, until the satisfactory completion of Paynetics’ investigation or that of any Card Scheme, regulatory or third party; or
• 5.3.3 without limit in amount or time, if Paynetics becomes aware or reasonably believes that the Merchant is in breach of or likely to be in breach of its obligations under the Agreement.

5.4 The Merchant hereby irrevocably authorises Paynetics from time to time without notice and both before and after demand to set-off by whatever means the whole or any part of the Merchant’s liabilities to Paynetics under the Agreement against any Settlement Amount due to the Merchant against any sums owed by Paynetics to the Merchant under the Agreement. Any exercise by Paynetics of its rights under this Clause 5.4 shall be without prejudice and in addition to any other rights or remedies available to it under the Agreement or otherwise.

5.5 The Merchant is not entitled to set-off any of Paynetics’ liabilities to the Merchant under the Agreement or any other agreement (whether such liabilities are present, future, actual, contingent or potential) against any amounts due to Paynetics from the Merchant.

5.6 Any Fees or other sums payable under the Agreement (with the exception of Fees payable under the Terminal Agreement (where applicable)) are exclusive of any applicable Value Added Tax, which must, in all cases be paid by the Merchant. VAT is not currently chargeable on financial transactions. Should the rules on VAT change in the future in this regard, the Parties shall meet in good faith to agree revenue share conditions under a contract amendment within 30 days.

5.7 Each Chargeback and each Assessment represents a debt immediately due and payable by the Merchant to Paynetics. The Merchant acknowledges and agrees that it may be required to reimburse Paynetics for Chargebacks in circumstances where it has accepted Payment in respect of the relevant sale or supply, even if it is under no legal liability in respect of the supply of the goods or services concerned. To the extent permitted by Applicable Law, Paynetics shall notify the Merchant as soon as reasonably practicable of any applicable Chargebacks and Chargeback Costs which have occurred or have been incurred. Any Chargebacks shall correspond to the whole or part of the value in the currency of the original Payment. In the event that the Merchant wishes to dispute a Chargeback, it is the Merchant’s responsibility to prove to Paynetics’, the Card Issuer’s or Card Scheme’s reasonable satisfaction that the debit of the Cardholder’s account was authorised by that Cardholder. The Merchant acknowledges and agrees that any decision or determination of the relevant Card Scheme as to the validity and extent of any Chargeback and/or Assessment shall be final and binding.

5.8 As Chargebacks may arise a considerable period of time after the date of the relevant Payment, the Merchant acknowledges and agrees that, notwithstanding any termination of the Agreement for any reason, Paynetics shall remain entitled to recover Chargebacks and Chargeback Costs from the Merchant under the Agreement (and, where relevant, from any person who has provided a guarantee or security under the Agreement) in respect of all Chargebacks that occur in relation to Payments processed by Paynetics during the Term.

5.9 The Merchant shall be liable for all Chargebacks, Chargeback Costs or Assessments.

5.10 For the avoidance of doubt, all scheme fines (for violations, non-compliance, etc.) will be passed through to the Merchant. Should Paynetics receive a fine from one Scheme it will be assumed the other Scheme will also charge the same fine in due course and both fines will apply. Paynetics reserves the right to deduct these scheme fines from the Merchant’s Settlement Amount.

5.11 Without prejudice to all other rights and remedies available in law or in equity, Paynetics or where applicable the Merchant (“the Invoicing Party”) may assess a late charge at a rate of four percent (4%) per annum above base rate of European Central Bank’s reference on all undisputed amounts not paid within three (3) days after such payment becomes due and payable. Paynetics may also suspend the Services, for as long as any such amount is not reasonably disputed and remains unpaid after the three (3) day period.

5.12 The monthly Fees will be automatically taken from the Settlements. The deduction will take place on the 10th of the following month or next Business Day after the 10th of the month.

6. Obligations of Merchant

6.1 During the Term, the Merchant shall:

• 6.1.1 require Cardholders to complete Verifications which comply with the Card Scheme Rules and Applicable Law.
• 6.1.2 comply with its obligations under the Card Scheme Rules, to the extent that Paynetics, the Partner and/or the relevant Card Scheme informs the Merchant of those obligations.
• 6.1.3 comply with all Applicable Law, including such that applies to any sale of goods and/or services by the Merchant in connection with the Transactions and the execution and performance by the Merchant of its obligations under the Agreement.
• 6.1.4 comply with its contractual obligations relating to any sale and/or supply of goods and/or services by it to Cardholders.
• 6.1.5 only undertake Transactions with Cardholders in connection with goods and/or services which the Merchant has sold and supplied to them.
• 6.1.6 only undertake Transactions with Cardholders in respect of goods and services the sale and supply of which commonly fall within the Merchant’s business or as identified to Paynetics.
• 6.1.7 only undertake Payments which a Cardholder has authorised in accordance with Applicable Law, the Agreement, the Card Scheme Rules and any other information or instructions provided by Paynetics to the Merchant from time to time.
• 6.1.8 refrain from doing anything which Paynetics reasonably believes to be disreputable or capable of damaging the reputation or goodwill of Paynetics or any Card Schemes.
• 6.1.9 take reasonable steps to ensure that its Representatives cannot procure, connive or be party to any fraud related to the Cards or Merchant Payment Account.
• 6.1.10 notify Paynetics immediately if it becomes aware of or suspects any security breach relating to Transaction Data or any Cardholder’s personal data (whether or not the Merchant has complied with the PCI DSS) and as soon as reasonably practicable, (without prejudice to any other remedy Paynetics has in respect thereof) immediately identify and resolve the cause of such security breach and take any steps that Paynetics may require, including but not limited to the procurement (at the Merchant’s cost) of forensic expertise from third parties recommended by Paynetics.

6.2 The Merchant is responsible for resolving all disputes and queries arising in respect of goods or services sold or supplied in relation to the Transactions, which occur with the Cardholders, subject to the Merchant’s liability for Chargebacks.

6.3 The Merchant must inform Paynetics within 30 days in the event of any relevant change in control, change of contact details, address or legal form.

6.4 The Merchant shall perform its obligations in a timely manner and shall provide Paynetics with all reasonable cooperation reasonably required by Paynetics to perform its obligations under the Agreement.

6.5 Unless otherwise agreed by Paynetics in writing, the Merchant acknowledges and agrees that the Merchant shall (at its own cost) be solely responsible throughout the Term for the provision of all equipment, software, systems and telecommunications facilities which are required to enable the Merchant to receive the Services under the Agreement except where POS Services are being supplied, the Equipment (as defined in the Terminal Agreement) shall be supplied by the Partner.

6.6 Unless otherwise agreed by Paynetics in writing in advance, where Paynetics provides the Merchant Services in the Europe region (as defined by the relevant Card Scheme), the Merchant agrees to maintain its registered office within a member state of the European Union for the duration of the Agreement and provide Paynetics with prior written notice of any change to the details of either.

6.7 Paynetics may at any time review the Merchant’s use of the Services supplied to it under the Agreement to determine whether it is compliant in all respects with the provisions of the Agreement. If, whether on undertaking such review or otherwise, Paynetics considers or decides the Merchant’s activities are non-compliant, Paynetics will inform the Merchant accordingly (if that is not prohibited under Applicable Law), giving reasons why it so considers or decides and will (save in so far as this may be inconsistent with Applicable Law or the Card Scheme Rules or otherwise may be impracticable) give the Merchant 30 days to remedy any such non-compliance.

7. Publicity

Neither Party nor any Representative will give, make or cause to be given or made any Publicity relating to any other Party whether in relation to the performance and existence of the Agreement or any arrangement between the Parties, without the prior written consent of the other, except where this is required by Applicable Law. If Applicable Law requires Publicity, the publisher must, so far as practicable, consult the other Party prior to the Publicity and provide the other with a copy or record of the Publicity as soon as possible.

8. Accounting, Management Information and Reconciliation

8.1 The Merchant agrees:

• 8.1.1 to supply Paynetics with such information as may reasonably be necessary to enable Paynetics to monitor or review the operation of the Agreement and the processing of Transactions; and
• 8.1.2 to keep and maintain such records as may be necessary to enable Paynetics, its auditors and any Regulator to assess and satisfy themselves that there has been compliance with the matters referred to in the Agreement.

8.2 The information referred to in Clause 8.1 shall be provided when practicable at a frequency and form to be agreed between Paynetics and the Merchant, but in any event on 48 hours’ notice from Paynetics that such information is required (except where a different time period is stipulated in the Agreement, or in any case where the information is required even sooner due to need to comply with Applicable Regulations or request or direction from Regulator or Card Scheme, in which case information must be provided upon request, without undue delay).

9. Rights of Assistance & Audit

9.1 The Merchant shall co-operate with any duly authorised employee, agent or another representative of Paynetics or the Bulgarian National Bank or any other Regulator in such matters as Paynetics reasonably requires, including in connection with the discharge of any duty under the Applicable Law. Such co-operation may include reasonable access upon prior written notice to relevant personnel, documentation, information, data, systems, premises and communications networks in the possession, custody or control of the Merchant.

9.2 The Merchant shall keep all records of Transactions for 8 years from completion of such Transactions. The Merchant will (and it shall procure that its Processor will) produce a reasonable number of specific records on demand within 8 office hours of the request from Paynetics, or Regulator. Where there is an ongoing investigation by a Regulator which involves or may involve a specific Card, a Cardholder or Card Transaction, the records in relation to such Cardholder or Card Transaction must be kept beyond the limits set out above, until such time as the relevant investigation has been completed.

9.3 Paynetics shall be entitled from time to time on 7 days’ written notice to require the Merchant to permit or procure permission for any of Paynetics’ duly authorised employees, agents or representatives or any Regulator to audit the Merchant’s relevant records, systems and procedures and, those of the Merchant’s clients – for any of the following purposes:

• 9.3.1 to assess the Merchant’s and the Merchant’s clients’ compliance with the Applicable Law or the Agreement: or
• 9.3.2 to enable Paynetics or its relevant employee, agent or representative to carry out any right or duty conferred or imposed by the Applicable Law or a Regulator, or to carry out any request made by a Regulator.
• 9.3.3 to assess any sums payable or receivable by Paynetics or in respect of which the Merchant is otherwise accountable to Paynetics.

9.4 The Merchant shall for the purpose of an audit under Clause 9.3 at all reasonable times during office hours provide reasonable access to its premises, relevant records, procedures and staff as may be reasonably necessary or desirable in connection with the audit upon prior written consent and shall permit any employee, agent or representative to take copies of relevant documents or computer files.

10. Provision and Disclosure of Transaction Data & Information

10.1 Paynetics may, from time to time, reasonably request the Merchant to provide copies of Transactional Data, in which event the Merchant shall provide such copies to Paynetics within fourteen (14) days of such request being received. At all times the merchant must establish and follow security procedures to prevent unfair use of cards, copying cards, illegal revelation of cardholder’s data.

10.2 Upon Paynetics’ request, the Merchant shall at all times throughout the Term (and for a period of 12 months thereafter):

• 10.2.1 disclose to Paynetics such information as Paynetics reasonably requires relating to the performance of the obligations under the Agreement, the Rules or Applicable Law.
• 10.2.2 take all reasonable steps to assist Paynetics in handling any claim or query raised by a Cardholder, a Card Issuer, a Card Scheme or any other third party in relation to any Transaction.
• 10.2.3 co-operate in providing all information requested by Paynetics in order for Transactions to be accepted or otherwise to enable Paynetics to provide the Merchant with any of the services (or any part thereof) under the Agreement; and
• 10.2.4 to enable Paynetics to assess the Merchant’s financial position throughout the Term, provide Paynetics with the Merchant’s latest audited accounts (if any) and any other information Paynetics may reasonably require (including but not limited to management accounts).

10.3 The Merchant hereby authorises Paynetics to use, share and release Transaction Data and any other information relating to the Merchant to any person, including Group Companies of Paynetics and/or Card Issuers, Card Schemes, the Bulgarian National Bank or any other Regulator, law enforcement agencies and credit reference agencies (or, if instructed by Paynetics, the Merchant shall provide such Transaction Data or information or procure that such Transaction Data or information is provided to such persons):

• 10.3.1 for the purpose of fulfilling Paynetics’ obligations under the Agreement or the Card Scheme Rules or otherwise as required by Applicable Law;
• 10.3.2 to assess financial and insurance risks;
• 10.3.3 in relation to any breach of, or to enforce, the Agreement;
• 10.3.4 to recover debt or in relation to the Merchant’s insolvency;
• 10.3.5 to develop customer relationships, services and systems;
• 10.3.6 to prevent and detect money laundering, fraud or crime; in the course of any investigation by Paynetics or any third party into any suspected criminal activity;
• 10.3.7 regarding information security, the risk of fraud, sector risk and credit risk; or
• 10.3.8 to enable the Card Schemes to assign a Reason Code to any undesirable act or omission.

10.4 The Merchant shall advise Paynetics in writing as soon as the Merchant becomes aware of any:

• 10.4.1 other agreement that the Merchant enters into concerning its acceptance of Transactions; act, omission or error which does or may:
  • (a) cause material loss or damage to Paynetics; or
  • (b) adversely affect the Merchant’s ability to perform its obligations under the Agreement.
• 10.4.2 actual or suspected violation or compromise of the security or integrity of any Transaction Data; or
• 10.4.3 any material change in the nature of the Merchant’s business or in the goods and/or services supplied to its customers or of any additional business commenced by the Merchant or of the cessation of the Merchant’s business.

10.5 If the Merchant contacts Paynetics electronically, Paynetics may collect its electronic identifier (for example, Internet Protocol (IP) address or telephone number) supplied by the Merchant’s service provider.

10.6 Paynetics may make periodic searches of and provide information about the Merchant to credit reference agencies, fraud prevention agencies, Card Issuers, Card Schemes and Group Companies to manage and take decisions about their relationship or prospective relationship with the Merchant. Such information may be used by other credit providers to take decisions about the Merchant and the Merchant’s financial associates. Paynetics may also review the Merchant and its business activities (including without limitation by electronic means) to monitor the Merchant’s compliance with the Agreement.

10.7 Paynetics may disclose information concerning the Merchant to third parties where Paynetics aggregates data to facilitate cross-industry analysis and comparisons.

10.8 The information which Paynetics collects from the Merchant may be transferred to, processed and stored at, a destination outside the European Economic Area (“EEA”) subject to the afforded level of protection essentially equivalent to that guaranteed within the EEA by the GDPR.

10.9 In the event that Paynetics considers that any act or omission of the Merchant falls within a Reason Code, details of any such act or omission shall be advised to the Merchant and shall also be available on request. In addition, the fact of termination (if any) under Clause 14 and the Reason Code forming the grounds for termination shall be notified to (and may be recorded by) the Card Schemes and thereafter be maintained by them in accordance with their normal practice. The aforementioned database records are available for enquiry by any merchant acquirer and Card Issuer. In certain circumstances, they are also made available to crime enforcement authorities.

10.10 Paynetics shall have no liability to the Merchant for any inaccuracy in the information Paynetics provides to any third parties pursuant to this Clause 10.

10.11 Paynetics will provide or make available to the Merchant a written record of Account (statement), setting out the following details in respect of all account transactions; (a) A reference enabling the Customer to identify each transaction; (b) The amount of the transaction; (c) The amount of any charges applied to the transaction; (d) Where applicable, the exchange rate applied to the transaction; (e) The debit or credit value date of the transaction.

11. Intellectual Property

All Intellectual Property Rights belonging to either Party at the Commencement Date, shall remain at all times that Party’s property and neither Party will acquire any right, title and/or interest in the other Party’s Intellectual Property Rights as a result of the Agreement.

12. Confidential Information

12.1 All Confidential Information relating to either Party is passed to and shall be received and kept by the other Party and any Representative in the strictest confidence and shall be used only for purposes connected with the subject of the Agreement and for no other purpose.

12.2 The Merchant shall not and shall not permit any Representative to disclose, divulge or grant access to such information to anyone.

12.3 All Confidential Information relating to the Merchant and its Representatives that is passed to shall be received and kept by Paynetics in the strictest confidence and Paynetics shall not disclose, divulge or grant access to the Confidential Information to any person unless otherwise provided for herein.

12.4 Neither Party may make any use of Confidential Information, including for the avoidance of doubt information regarding Cardholders for any purposes other than purposes connected with the operation of the Agreement and compliance with Applicable Law and Card Scheme Rules.

12.5 Notwithstanding the foregoing provisions either Party may disclose Confidential Information if required to do so by a court of law or Regulator, or under any Applicable Law.

12.6 Subject only to any Applicable Law which requires otherwise, each Party will at the request of any other Party (the “Requesting Party”) at any time after the termination of the Agreement immediately destroy, irrevocably erase or return to the Requesting Party any Confidential Information provided by the Requesting Party to the other Party within 5 Business Days of being so requested and provide the Requesting Party with a written statement clearly stating that this Clause has been fulfilled.

12.7 If and to the extent that any Applicable Law requires information to be preserved, so that a Party or any Representative cannot and does not destroy Confidential Information pursuant to a request under Clause 12.6, the Party retaining the Confidential Information must notify the Requesting Party in writing giving details of the Confidential Information which has not been destroyed.

13. Data Protection

13.1 The Parties agree that for the purposes of the Data Protection Law, as between the Parties, the Merchant, Paynetics and the Partner are joint controllers in respect of Cardholder Data. Each Party warrants to the other that:

• 13.1.1 it is registered to deal in personal data as contemplated in the Agreement under Data Protection Law and has complied with and will for the duration of the Agreement continue to adhere to the provisions of the Data Protection Law;
• 13.1.2 it will maintain any license or registration needed to comply with Data Protection Law or other Applicable Law;
• 13.1.4 It shall comply and shall procure the compliance of its personnel with Data Protection Law;
• 13.1.4 It shall use appropriate technical and organisational security measures (which includes pseudonymising and encrypting personal data as appropriate) against unauthorised or unlawful processing of the Cardholder Data and against accidental loss or destruction of, or damage to, such Cardholder Data;
• 13.1.5 Not make any changes to its information security measures that would materially increase the risk of unauthorized access to any Cardholder Data unless required by Data Protection Law;
• 13.1.6 Notify the other Party without undue delay should it become aware of a security breach in respect of Cardholder Data held by it;
• 13.1.7 Only use a sub-processor with the consent of the other Party (specific or general, although where general consent is obtained each Party must notify changes to the other, giving the other an opportunity to object).

13.2 In relation to personal data disclosed and/or processed in connection with the Agreement the Merchant warrants it will:

• with the Agreement the Merchant warrants it will: 13.2.1 process Cardholder Data in accordance with Data Protection Laws;
• 13.2.2 not transfer Cardholder Data outside the European Economic Area without the written approval of Paynetics unless the Merchant is able to demonstrate to the reasonable satisfaction of Paynetics that the country or territory of destination provides adequate security in accordance with Data Protection Law;
• 13.2.3 The Merchant shall obtain consent when required from each Cardholder to the use by Paynetics of their personal data for all of the purposes set out or contemplated by the Agreement including but not limited to the transfer of the Cardholder Data to and processing by the Processor (including as applicable the transfer of data outside the EEA to the Processor’s country of establishment);
• 13.2.4 Prior to processing the Cardholder Data, implement appropriate technical and organisational measures to enable it to process Cardholder Data in compliance with obligations equivalent to those imposed on Paynetics by Data Protection Law;
• 13.2.5 Assist Paynetics in responding to requests from individuals (data subjects) exercising their rights;
• 13.2.6 Assist Paynetics in complying with obligations relating to security, breach notification, DPIAs and consulting with supervisory authorities as per Articles 32-36 of the GDPR;
• 13.2.7 Except as required by Applicable Law or a Regulator, not disclose personal data obtained under the Agreement or allow access to it other than to employees and to ensure that such employees are subject to written contractual obligations concerning the confidentiality and processing of personal data which are no less onerous than those imposed by the Agreement;
• 13.2.8 Use appropriate technical and organisational security measures against unauthorised or unlawful processing of the personal data and against accidental loss or destruction of, or damage to, such personal data;
• 13.2.9 Ensure that consent is obtained from each Cardholder to any use by the other Party of their personal data for all of the purposes set out or contemplated by the Agreement;
• 13.2.10 Not keep, use, share or distribute Cardholder information unless it meets the requirements of PCI DSS; and
• 13.2.11 Make available to Paynetics all information necessary to demonstrate compliance; allow/contribute to audits (including inspections) and inform Paynetics if its instructions infringe Data Protection Law.

14. Term and Termination

14.1 The Agreement shall commence on the date it has been signed by all Parties. The Agreement shall, unless terminated earlier pursuant to this Clause 14, operate for the Term.

14.2 Unless stated otherwise in the Agreement, in the event that new legislation, regulation or industry codes of practice are implemented which imposes additional material and reasonably unavoidable costs on either Party then the Parties will negotiate in good faith to modify the Agreement to the closest possible valid provisions giving effect to the Parties’ intentions upon signing the Agreement. In the event that the Parties are not able to reach agreement then either Party may terminate the Agreement on giving reasonable notice to the other without incurring further liability.

14.3 The Agreement may also be terminated by either Party forthwith by written notice if:

• 14.3.1 in respect of the other Party a petition (other than a petition which is frivolous or vexatious or which is withdrawn or stayed within 20 Business Days) is presented or a notice of resolution is given for the winding up of the other Party (except for the purpose of a solvent amalgamation or reconstruction) or that other Party has suffered the appointment of a receiver, an administrator or administrative receiver to manage its business affairs and property or if that Party has ceased to be able to pay its debts as they fall due (or if any similar event occurs in any jurisdiction); or
• 14.3.2 the other Party has committed a material breach of the Agreement and (where such breach can be remedied) has failed to remedy it within the indicated term after service upon it of a written notice specifying the breach in question and requiring it to be remedied; or
• 14.3.3 any license, approval or consent required by any Applicable Law for a Party to conduct any business which is essential to the operation of the Agreement is withdrawn, suspended or stopped; or
• 14.3.4 fees, fines, Damages or other liability incurred by Paynetics or the Merchant from the Card Scheme and or Regulator, in relation to the Transactions shall render the Agreement not economically viable for Paynetics or the Merchant as determined by the affected Party in the affected Party’s sole and absolute discretion.

14.4 If a Force Majeure Event continues to interrupt a Party’s material performance of its obligations for a period exceeding 20 days either Party shall be entitled to terminate the Agreement without further liability.

14.5 Any termination of the Agreement shall be without prejudice to any antecedent breach or liability or any continuing obligations or accrued rights.

14.6 In addition to the right of suspension under Clause 5.11, without prejudice to the other rights of termination in this Clause 14, Paynetics may, in its sole and absolute discretion, suspend or terminate the Agreement in whole or in part or suspend the processing of any Transaction immediately by giving written notice to the Merchant (or without notice if prohibited from giving notice under Applicable Law) if:

• 14.6.1 it is required to do so by a Regulator or Card Scheme;
• 14.6.2 the Merchant is in breach of any provision of Clauses 3, 4 or 6;
• 14.6.3 the Merchant fails to pay any amount which is properly due and payable to Paynetics (and is not reasonably disputed by the Merchant) within 30 days of such amount becoming due and payable.
• 14.6.4 it discovers that the Merchant or any Group Company of the Merchant is subject to financial sanctions in accordance with a designation by the European Union оr the Republic of Bulgaria.
• 14.6.5 the Merchant is subject to a security breach, threat, virus and or adverse event which in the reasonable opinion of Paynetics is likely to compromise and or impact the processing of the Transactions;
• 14.6.6 the Merchant fails to comply with any instruction, notice and or request from Paynetics in relation to the use and/or display of any Intellectual Property, including but not limited to any trademark and or logo of Paynetics or Card Scheme;
• 14.6.7 any event occurs in relation to the Merchant which in Paynetics’ reasonable opinion could damage Paynetics’ reputation or may give rise to fraud, suspicion of fraud or any other criminal activity, until the satisfactory completion of our investigation or that of any bank, another financial institution or any third party;
• 14.6.8 whether by reason of changes in Applicable Law or otherwise, the operation of the Agreement is or may be being or become conducted in breach of any provisions of the Card Scheme Rules or any Applicable Law;
• 14.6.9 a Card Scheme or financial institution ceases to provide Paynetics with any services necessary for Paynetics to provide the Services to the Merchant;
• 14.6.10 Cardholders are being treated unfairly by the Merchant;
• 14.6.11 the Merchant ID is not being operated in accordance with the provisions of the Agreement;
• 14.6.12 any security granted to Paynetics under Clause 4 ceases to be enforceable, is terminated or is withdrawn;
• 14.6.13 a third party enforces a guarantee or security against the Merchant or any other person who has granted security to Paynetics under Clause 4;
• 14.6.14 in the event of any failure by the Merchant to cure any non- compliance of which notice has been given to it under Clause 6.7 of the Agreement.
• 14.6.15 Paynetics provides the Merchant with 1 month written notice.

14.7 At any time and from time-to-time Paynetics may temporarily suspend or delay payments to the Merchant and/or designate an amount of funds that Paynetics will maintain in order to protect itself against the risk of existing, potential or anticipated Chargebacks and to satisfy the Merchant’s other obligations under the Agreement.

14.8 In the event that Paynetics exercises its rights of deferral, suspension or delay (as the case may be) under Clauses 5.3, 5.10, 5.11,14.6 or 14.7, Paynetics shall notify the Merchant of any such action, the reasons for it and the procedure for rectifying any factual errors that led to the exercise, unless Paynetics is prohibited from doing so under the Applicable Law. Paynetics may charge the Merchant the reasonable costs of any such notification.

14.9 The Agreement shall automatically terminate without additional liability incurred by either Party if a Regulator or Card Scheme withdraws any of the permissions granted to Paynetics, or imposes relevant restrictions, with the effect that Paynetics is or will be unable to perform its obligations under the Agreement.

14.10 For the avoidance of doubt, the obligations in Clauses 1, 2.4, 5, 6.2, 7, 8, 9, 10, 11, 12, 14.5, 14.7, 14.11, 15, 18, 19, 20, 21, 22, 23, 24, 25 and 26 shall continue after and notwithstanding termination of the Agreement.

14.11 Upon termination of the Agreement, the Merchant shall immediately pay to Paynetics all amounts owed by the Merchant to Paynetics under the Agreement and Paynetics shall immediately pay the Merchant all amounts owed to the Merchant by Paynetics under the Agreement, subject to the provisions of the MSA (with particular reference to the Settlement Process) and the Terminal Agreement (where applicable).

15. Liability and Indemnities

15.1 Nothing in the Agreement shall operate to limit either Party’s liability to the other for:

• 15.1.1 fraud committed by the other Party, its employees, agents or subcontractors; or
• 15.1.2 for death or personal injury resulting from negligence of the other Party or that of its employees, agents or sub-contractors.

15.2 Except as expressly provided herein:

• 15.2.1 the services provided by Paynetics and the Partner under the Agreement are provided during the Term “as is” and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement;
• 15.2.2 Paynetics gives no other representations, terms, conditions or warranties of any kind, either express or implied, statutory or otherwise, regarding the services, and
• 15.2.3 Paynetics specifically disclaims any implied warranties and/or terms of satisfactory quality or fitness for a particular purpose or non- infringement of Intellectual Property Rights;
• 15.2.4 Paynetics does not warrant that the services will meet the Merchant’s data processing requirements or that the operation of the services will be uninterrupted or error free;
• 15.2.5 Paynetics does not warrant or guarantee that Merchant will achieve any level of sales, revenue or profit;
• 15.2.6 Paynetics makes no representations regarding Transaction Data in terms of their correctness, accuracy, reliability or otherwise.

15.3 Subject to the provisions of Clauses 15.4 to 15.10 inclusive, each Party shall only be liable for loss or damage directly arising out of or in connection with its own breach of the Agreement, negligence or willful misconduct.

15.4 The Merchant agrees to indemnify and hold harmless Paynetics in respect of any Damages, costs or expenses of the other howsoever arising, including any legal costs and expenses reasonably incurred by Paynetics whether incurred in seeking to mitigate, remedy or defend itself from the adverse consequences to it arising directly out of or in connection with:

• 15.4.1 the Merchant’s breach of any provision of the Agreement, Applicable Law, the Card Scheme Rules, its own negligence or its own willful misconduct; or
• 15.4.2 Infringement of any Intellectual Property Rights of Paynetics, any Card Scheme or any third party.

15.5 The Merchant agrees to indemnify and hold harmless Paynetics in respect of any Damages, costs or expenses of the other howsoever arising, including any legal costs and expenses reasonably incurred by Paynetics whether incurred in seeking to mitigate, remedy or defend itself from the adverse consequences to it arising directly out of or in connection with:

• 15.5.1 any misrepresentation, breach of contract, misstatement or other wrongdoing on the part of the Merchant or any of its Representatives in relation to any Cardholder or any contract for the sale of any goods and/or services to the Cardholder;
• 15.5.2 any security breach in relation to the Merchant’s information technology systems, compromise or theft of Transaction Data held by the Merchant or on the Merchant’s behalf, including any breach by the Merchant of PCI DSS;
• 15.5.3 any allegation of fraud made in relation to the Merchant or the Merchant’s business, except, if and to the extent such claim is caused by Paynetics’ negligence, breach of contract or wilful misconduct.

15.6 In case of an unauthorised Refund or a Refund that was incorrectly executed due to an error by Paynetics, Paynetics shall at the Merchant’s request immediately refund the amount including all directly related Fees.

15.7 Where the unauthorised Refund/Transaction arises:

• 15.7.1 from the Merchant’s failure to keep the personalised security features of the Merchant’s Merchant Payment Account safe in accordance with Clause 3 in which case the Merchant shall remain liable for the first 50 EUR (or equivalent in the currency of the Merchant Payment Account), unless the unauthorised Refund/Transaction arises from:
  • (a) the Merchant’s failure to keep the personalised security features of the Merchant’s Merchant Payment Account safe in accordance with Clause 3; or
  • (b) any breach of the Agreement by the Merchant, or the Merchant’s negligence or willful misconduct;
    In which two cases the Merchant shall remain liable for the entire amount of the unauthorised Refund/Transaction.
• 15.7.2 and the Merchant fails to notify Paynetics without undue delay of any loss of the Merchant’s Access Codes or other event that could reasonably be expected to have compromised the security of the Merchant Payment Account after the Merchant has gained knowledge of such event, the Merchant shall remain liable for losses incurred up to the Merchant’s notification to Paynetics;
• 15.7.3 and the transaction was unauthorised but the Merchant has compromised the security of the Merchant Payment Account with intent or gross negligence, the Merchant shall be solely liable for all losses;
• 15.7.4 and the Merchant fails to dispute and bring the unauthorised or incorrectly executed Transaction to Paynetics’ attention within 30 days from the date of the Transaction, the Merchant shall be solely liable for all losses, provided that Clause 15.7.1 shall not apply to Transactions made after the Merchant has notified Paynetics in accordance with Clause 3.5 in which case Paynetics shall remain liable and refund any unauthorised Transaction immediately to the Merchant.

15.8 Nothing in the Agreement shall limit or exclude the liability of either Party for death or personal injury resulting from negligence; fraud or fraudulent misrepresentation; the indemnification obligations set out in Clause 15.4 and 15.5; or any other liability that cannot be excluded by Applicable Law.

15.9 Without prejudice to the foregoing, unless otherwise provided for by applicable law:

• 15.9.1 Paynetics’ total liability arising under or in connection with the Agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to an amount equal the aggregate Fees paid by the Merchant in the six (6) months immediately prior to the date on which the cause of action for such liability arose; and
• 15.9.2 neither Party shall be liable to the other, whether in contract, tort (including for negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise for any: losses that are not reasonably foreseeable; or loss of profit; or loss of goodwill or reputation; or loss of business; or loss of business opportunity; or loss of anticipated saving; or loss or corruption of data or information; or special, indirect or consequential damage or loss of any kind whatsoever, in each case that arises under or in connection with the Agreement.

15.10 The Merchant acknowledges and agrees that, given the nature of the Services, the availability of suitable alternative payment methods and its ability to choose other providers of services similar to the Services before entering into the Agreement, the limitations on liability contained in this Clause 15 are reasonable in all the circumstances and that the Fees have been calculated taking into account such limitations (which would be higher but for such limitations) and accordingly the Merchant has accepted the risk of any losses it may suffer because of the limitation on Paynetics’ liability under this Clause 15.

16. Force Majeure

Neither Party shall be responsible or liable for any losses arising out of any delay in or interruption of the performance of its obligations under the Agreement (except for its payment obligations) due to any act of God, act of governmental authority of the public enemy or due to war or terrorism, the outbreak or escalation of hostilities, riot, civil commotion, insurrection, labour difficulty in relation to a third party (including, without limitation, any strike, or other work stoppage or slow down), severe or adverse weather conditions, communications line failure, or other similar cause beyond the reasonable control of the Party so affected at the time such causes arise (“Force Majeure Event”). The Party so affected shall be excused from its performance of its obligations for the duration of such Force Majeure Event provided that it shall at all times use all reasonable endeavours to mitigate the effects of such Force Majeure Event.

17. Anti-Corruption

17.1 The Merchant hereby represents, warrants and covenants that it will not, under any circumstances, and at all relevant times, make, or cause or authorise any third party acting on their behalf to make, directly or indirectly, any prohibited bribes, offers, promises or payments of money, or anything of value, to any foreign official (including but not limited to government officials, government employees, any political party or political party official, any candidate for political office, or any person otherwise acting in an official capacity) pursuant to all Applicable Law (including but not limited to any local anti-bribery laws), or any other third party, for the purpose of influencing such Party’s acts or decisions or in order to obtain or retain business or secure an unfair business advantage for either Party in performing their duties and obligations pursuant to the Agreement.

17.2 Each Party expressly agrees that the Agreement is the result of arms- length negotiations, and that neither Party has entered into the Agreement with a corrupt motive to obtain or retain business or to secure an unfair business advantage.

17.3 The Merchant hereby warrants and undertakes that it shall maintain and, for a period of at least six years, keep accurate and up to date accounting records to ensure that all transactions relating to the Agreement are sufficiently documented.

18. Entire Agreement

18.1 The Agreement contains the entire agreement between the Parties with regard to its subject matter to the exclusion of all other terms and conditions and prior or collateral agreements, negotiations, notices of intention and representations.

18.2 The Agreement may only be varied in writing signed by a duly authorised representative of each Party.

19. Assignment

19.1 The Merchant shall not without the written consent of Paynetics, assign, transfer, charge or deal in any other manner with the Agreement or any of its rights under it, nor purport to do any of the same, nor sub- contract the whole or any part of its rights or obligations under the Agreement, such consent not to be unreasonably withheld.

19.2 Subject to Clause 19.3, Paynetics shall not without the written consent of the Merchant, or continuation of the Merchant to use the services provided by Paynetics following notification, assign, transfer, charge or deal in any other manner with the Agreement or any of its rights under it, nor purport to do any of the same, nor sub-contract the whole or any part of its rights or obligations under the Agreement without the Merchant’s prior written authority which shall not be unreasonably withheld.

19.3 Paynetics shall be entitled to assign the Agreement where such assignment is made in connection with the sale or other transfer of substantially all of Paynetics’ equity or business assets, provided the assignee is a member of Card Scheme subject to Clause 19.5 below.

19.4 The Merchant will notify the other Party in writing of any proposed Change of control at least 1 month in advance, thereby permitting termination of the Agreement.

19.5 Paynetics shall be entitled to assign the agreement to a Group Company on giving reasonable notice to the Merchant.

20. No joint venture, partnership or agency

20.1 Neither the Merchant nor any Representative must at any time hold itself out as being, the agent of Paynetics for any purpose whatsoever and the Agreement shall not be construed as or treated as creating any partnership or joint venture between the Parties or between Paynetics and any Representative.

20.2 The Merchant acknowledges that it has no authority or power to bind Paynetics nor create any liability on behalf of Paynetics.

21. Severability

If any provision of the Agreement shall be found by any Court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of the Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to negotiate in good faith to substitute for any invalid or unenforceable provision a valid or enforceable provision that achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

22. Waiver

22.1 The Agreement shall not be waived in whole or in part except where agreed by both Parties in writing.

22.2 The delay of enforcement or the non-enforcement of any of the terms of the Agreement by either Party shall not be construed as a waiver of any of the other rights of that Party arising out of the breach or any subsequent breach of any of the terms of the Agreement and no right, power or remedy conferred upon or reserved for either Party in the Agreement is exclusive of any other right, power or remedy available to that Party and each such right, power or remedy shall be cumulative. Any waiver shall not be deemed to be a continuing waiver.

23. Notices

23.1 All notices, requests, demands, approvals, consents and other communications under the Agreement (“Notices”) shall be given in writing and shall be duly and validly given or made if given or served by hand or pre-paid registered or recorded delivery post to the relevant Party as stated herein or to any address subsequently notified by the relevant Party to the other Party in writing for such purpose as specified in the MSA.

23.2 Without prejudice to the foregoing, Paynetics and the Partner may serve any Notices to the Merchant by email to the Merchant’s email address as specified in the MSA.

24. Complaints and Dispute Resolutions

24.1 If the Merchant wishes to make a complaint related to the Services, it can refer it to an institution of preliminary out-of-court dispute settlement, that is, the Payment Disputes Conciliation Committee with the Commission for Consumer Protection (1000, Sofia, 1 Vrabcha Str, fl. 4, Bulgaria). Details of the service offered by the Payment Disputes Conciliation Committee are available at www.kzp.bg and https://abanksb.bg/pkps/pkps-contacts-En.html.

24.2 The existence of, and the content of all disputes under the Agreement shall be treated as Confidential Information.

25. Third Party Rights

Nothing in the Agreement is intended to confer a benefit on any third person except to the extent expressly provided herein, and no other person who is not a Party to the Agreement shall have any right to enforce any term of the Agreement.

26. Choice of Law

6.1 The Agreement shall be governed by and construed in accordance with the law of Republic of Bulgaria and the Parties hereto agree to submit to the non-exclusive jurisdiction of the Bulgarian Courts.

26.2 Pursuant to Article 46, Paragraph 5 of the Law on Payment Services and Payment Systems, the Parties agree that Articles 47-66 thereof shall not apply to their relation.

26.3 Pursuant to Article 67, Paragraph 4 of the Law on Payment Services and Payment Systems, the Parties agree that Article 68, Paragraph 1, Article 70, Paragraphs 4 and 5, the term under Article 77, Paragraph 1, Article 78, Article 80, Article 82, Paragraphs 2 and 3, Article 85, Article 91, Article 92 and Article 93, Paragraph 1 of the Law on Payment Services and Payment Systems shall not apply to their relations but only the relevant provisions of these Terms and Conditions and the Agreement in which they are incorporated by reference.

27. Final Provisions

27. These Terms and Conditions were accepted with а decision of the Board of Directors of Paynetics AD dated 09.04.2024.