GENERAL TERMS AND CONDITIONS

1. Subject of the General Terms and Conditions

1.1 KeyCollect agrees to set up a payment account for the Merchant according to the Merchant Agreement (“the Agreement”).
1.2 KeyCollect agrees, with effect of the Commencement Date, to provide the Services to the Merchant. The Services will consist of processing Transactions, which will be transmitted by the Merchant to the processing platform. The exact scope of the Service, payment details and fees are detailed in the Service Description that is part of the Agreement.
1.3 In the event of a conflict between any provision of these Terms and Conditions and the Agreement, the provisions of the Agreement shall prevail.

2. Installation of Services

2.1 As of the Commencement Date, KeyCollect will have set up account(s) for Merchant by inserting data provided by Merchant as specified in the Agreement between KeyCollect and Merchant.
2.2 After the initial setup procedure described in Article 2.1 Merchant has to establish a connection to the processing system using the documentation provided by KeyCollect. When the necessary steps for testing purposes have been completed Merchant has to notify KeyCollect to initialize testing procedures. After such notification Merchant will be able to test the Services within 5 working days.
2.3 Merchant shall be deemed to have accepted the Services by the end of the testing period as mentioned in article 2.2, or as much earlier as Merchant informs KeyCollect of such acceptance. After the testing period, or after receipt of the notification of acceptance, KeyCollect shall start providing the Services.
2.4 All costs for the installation of Services shall be borne by Merchant.

3. Services

3.1 KeyCollect will send an Authorisation Confirmation to Merchant if it receives Authorisation for a particular Transaction.
3.2 Neither the granting of an Authorisation, nor the Capture following such Authorisation, nor the Transfer can be regarded as an assurance of that Transaction's validity. Any Transaction may be subject to a Chargeback or a refund at a later date.
3.3 Merchant is solely responsible for the accuracy of any Transaction data sent to the KeyCollect Platform. KeyCollect merely acts on Merchant's behalf in obtaining Authorisation from the Acquirer.

4. KeyCollect's responsibilities

4.1 KeyCollect will provide the Services with due care, in a professional manner. KeyCollect does not warrant that the Services will be available uninterrupted and/or at all times. In particular, KeyCollect can have no responsibility nor will it provide any warranty for or have any liability whatsoever for the non-availability of the Services due to the malfunction of telecommunication services, telecommunications infrastructures and/or the internet.
4.2 In case the Services are not available due to a failure of the processing platform, KeyCollect will use its best efforts to solve the problems within a reasonable period of time. It will, however, provide no warranty as to the period within which the problems will be resolved.

5. Merchant's responsibilities

5.1 Merchant authorises and grants an irrevocable power of attorney to KeyCollect, with full power of substitution, to act on behalf of Merchant during the term of this Agreement to the extent necessary to render the Services and to carry out this Agreement, including but not limited to seeking Authorisation, receiving proceeds of Transactions. Merchant covenants and agrees to indemnify and to hold harmless KeyCollect from and against any liability KeyCollect might incur for any steps taken by it in connection with this power of attorney.
5.2 Merchant shall always provide KeyCollect, in good time, with any data or information necessary to provide the Services. In the event that the data necessary to provide the Services are not at KeyCollect's disposal, KeyCollect shall in any event be entitled to suspend the Services and to charge the expenses thereby incurred to Merchant.
5.3 Merchant shall be responsible for the (use of) hardware and software which is necessary to obtain access to the processing platform.
5.4 Merchant warrants that it is legally authorised and has obtained all necessary regulatory approval to offer goods and services and that it complies with all applicable laws and regulations.
5.5 Merchant will be solely responsible for performing and delivering, in a manner consistent with good industry practice, all its services and products to Customer.
5.6 Merchant will indemnify and hold KeyCollect harmless from any claim or demand by any third party in respect of liability, loss, damage or costs resulting arising out of or in connection with the goods or services offered by Merchant.
5.7 Merchant will use its best efforts to avoid or minimize chargebacks. Merchant shall have the obligation to daily monitor its chargeback performance and will immediately report to KeyCollect in case it wishes to dispute a chargeback.
5.8 Merchant shall refrain from making unauthorised use of the Services and shall act and behave in a manner which KeyCollect is reasonably entitled to expect from a professional Merchant. In particular, Merchant shall:
- inform KeyCollect and keep KeyCollect informed of all information that may be relevant for the provision of Services, including a change in the goods or services offered to Customers (as well as for changes in Merchant's terms and conditions);
- display logos of available payment methods on every website operated by Merchant in accordance with the requirements specified by KeyCollect;
- inform Customers of the security measures that have been implemented to protect the Credit
Card against any unauthorised use;
- refrain from offering goods or services that are prohibited by KeyCollect, such as gambling, gaming, and any form of sexual content.
- refrain from offering goods or services that infringe any third party’s intellectual property rights;
- refrain from offering any goods or services that KeyCollect, at its sole discretion, considers otherwise unlawful, harmful or contrary to good faith and morals;
- implement security measures to protect the Credit Card against any unauthorised use;
- obey all instructions, rules and regulations given by the Acquirer, the Card Issuer and/or KeyCollect regarding the use of the Services.

6. Suspension of Services

6.1 Without prejudice to its other rights, KeyCollect reserves the right to restrict or suspend the Services or to terminate the Agreement, without being obliged to pay any costs or damages if Merchant acts in contravention of article 5.8.
6.2 KeyCollect reserves the right to restrict or suspend the Services or to terminate the Agreement, without being obliged to pay any costs or damages, if the number of chargebacks and refunds exceed a limit that KeyCollect at its sole discretion considers unreasonable.
6.3 KeyCollect reserves the right to restrict or suspend the processing of (a particular) Transaction(s), or to terminate the agreement without being obliged to pay any costs or damages if KeyCollect:
- has any reasonable suspicion of fraudulent activity or malpractice by Customer or its Credit Card involved;
- cannot provide the Services any longer due to an amendment of laws or regulations;
- cannot provide the Services any longer due suspension of services by the Acquirer, other service providers, partners or vendors of KeyCollect;
- determines that the relationship is no longer beneficial;
- cannot provide the Services due to technical problems of its equipment or network.

7. Merchant Customer support

7.1 Merchant will be responsible for any support to Customers, including responding to inquiries and complaint handling.
7.2 KeyCollect shall give all reasonable efforts to handle Customer support questions directed to KeyCollect. KeyCollect may at its sole discretion forward Customer support questions to Merchant if such questions cannot be settled by KeyCollect.
7.3 Merchant shall pay any and all fees imposed by KeyCollect for providing Customer support.

8. Fees

8.1 The fees due by Merchant are equal to a percentage of Merchant's total Transaction volume plus a fee per processed transaction. The amounts and percentages, as well as Chargeback and refund fees are detailed in the Merchant Agreement.
8.2 All fees shall be exclusive of VAT and other levies imposed by the authorities.
8.3 Merchant agrees that KeyCollect is authorised to set-off KeyCollect's fees against the proceeds of a Transaction. If the Acquirer charges any Chargebacks or refunds, KeyCollect shall charge the Merchant accordingly.
8.4 If at any time the proceeds of a Transaction are not sufficient to compensate the fees due, KeyCollect will notify Merchant in which case Merchant shall be obliged to remit payment of the full amount indicated in the statement.

9. Terms of Payment

9.1 Merchant must provide KeyCollect with sufficient bank details and wire transfer information for proper payment execution.

10. Connection

10.1 Merchant shall be responsible for the installation, management, internal control, and implementation of the connection to the processing platform.
10.3 KeyCollect does not warrant that the connection to the processing platform will work without interruption or errors.
10.4 Merchant agrees that it will not, and will not authorise others to, reverse compile, reverse assemble, reverse engineer or otherwise attempt to create or to use the source code of the connection for any other purpose other than intended for under this Agreement.

11. Intellectual property rights

11.1 All intellectual or industrial property rights to the Services and other materials developed or provided under this Agreement such as analyses, designs, documentation, reports, offers and any preparatory materials belonging thereto, shall solely be held by KeyCollect or its licensors.
11.2 In the event that a collection of works, data or any other independent elements of information provided by Merchant under this Agreement are systematically or methodically structured due to KeyCollect's substantial investment, as a result of which a (changed) database comes into existence, the copyrights, database rights and comparable rights therein shall solely be held by KeyCollect.
11.3 To the extent necessary, the Merchant herewith transfers these rights to KeyCollect and KeyCollect herewith hereby accepts such transfer promptly upon these rights coming into existence.
11.4 Insofar as a further deed should be required for the transfer of such rights, Merchant irrevocably authorises KeyCollect now for then to have such a deed drawn up and sign it on behalf of Merchant, without prejudice to the obligation of Merchant to lend its co-operation to the transfer of such rights at the first request of KeyCollect, without being able to set conditions. Merchant hereby irrevocably authorises KeyCollect to have the intellectual property rights registered in the appropriate registers.

12. Liability

12.1 KeyCollect's aggregate cumulative liability, whether in contract or otherwise, for direct damages arising out of the Agreement during each contract period (as specified in the Merchant Agreement) starting on the Effective Date, will not exceed the total amount of fees paid to KeyCollect by Merchant in that period.
12.2 KeyCollect shall under no circumstance be liable to Merchant for any indirect or consequential loss or damages, and without limitation, loss of business or profits arising from negligence, performance or default in the performance of the Agreement.
12.3 Merchant will indemnify and hold KeyCollect harmless from any claim or demand by third parties, including Customers, in respect of liability, loss, damage and costs resulting from any breach of the Agreement and/or use of the Services.
12.4 KeyCollect shall under no circumstances be liable to the Merchant for any damages, arising from negligence, performance or default by the Acquiring Bank in the execution of the agreement between the Acquiring Bank and Merchant including the payments of Acquiring Bank to the Merchant.
12.5 KeyCollect reserves the right to charge the Merchant for all penalties and costs issued by Visa and/or Mastercard as a result of exceeding maximum chargeback limits or other non-compliances with Visa and/or Mastercard rules.

13. Force majeure

13.1 KeyCollect shall not be bound to meet any obligation if prevented from doing so as a consequence of force majeure, including but not limited to any failure in the performance of an obligation of any supplier of KeyCollect, fire, measures taken or imposed by any government or any other event beyond the control of KeyCollect. KeyCollect will use reasonable efforts, under the circumstances, to immediately notify Merchant of the circumstances causing the delay and to resume performance as soon as possible.
13.2 If a situation of force majeure has lasted for more than 2 months, both KeyCollect and Merchant shall have the right to terminate the Agreement in writing.

14. Privacy

14.1 Merchant shall indemnify KeyCollect, except in case of intent or gross negligence on the part of KeyCollect, from and against all claims that may be filed against KeyCollect due to a violation of statutory terms, contractual arrangements, codes of conduct or similar instruments for keeping personal data or of the provisions prescribed by or pursuant to the law and regulations on personal data protection.

15. Confidentiality

15.1 Each of the Parties shall keep the Confidential Information confidential unless:
- the Confidential Information was already made public, or became lawfully known to that party independently;
- the Confidential Information is in, or comes into, the public domain other than due to wrongful use or disclosure by that party;
- disclosure is required by law to any government, government department, agency, regulatory or fiscal body or authority and their authorised agents and professional advisers.
15.2 Each party shall procure that its employees, agents and sub-contractors comply with this article.

16 Independent contractor

16.1 The Agreement is not intended to and shall not be interpreted to create a joint venture or partnership or formal business entity of any kind between or among KeyCollect and Merchant. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose and neither Party shall have any authority to bind the other Party.
16.2 KeyCollect shall not become a party to the contractual relationship between Merchant and Customer and will have no direct or implied relationship with a Customer.

17. Miscellaneous

17.1 The applicability of general or specific conditions of Merchant or any third party is expressly rejected by KeyCollect. Stipulations which differ from this Agreement shall apply only as far as they have been agreed upon by the parties in writing.
17.2 Merchant shall not have the right to transfer or assign its rights and obligations, in part or in whole, as laid down in this Agreement made between KeyCollect and Merchant, unless Merchant has obtained prior written approval from KeyCollect.
17.3 If any provision of the Agreement shall be held to be void, illegal, unenforceable, or in conflict with any applicable law, the validity of the remaining portions or provisions shall not be affected thereby. Notwithstanding the provisions of the foregoing sentence, the rights or obligations of either party hereunder shall be subject to good faith re negotiation between the parties within the limits set by law.
17.4 Each party will be entitled to use the other party's name and trademarks subject to the prior written approval of that material by the other party which approval shall not be unreasonably be withheld.
17.5 The laws of Switzerland shall exclusively apply to the Agreement and any other relation between KeyCollect and Merchant. Any dispute arising out of the Agreement shall be exclusively submitted to the competent court in Zürich.
17.6 Any claim, for whatever reason, Merchant may have against KeyCollect shall lapse two months after Merchant was aware or should in fairness have been aware of this claim.
17.7 Termination of the Agreement explicitly does not release KeyCollect and Merchant from those obligations which, by their nature, are intended to remain in effect, including the provisions with respect to intellectual property, confidentiality, liability, applicable law and dispute resolution.
17.8 This Agreement constitutes the entire understanding between Parties with respect to the subject matter of the Agreement and replaces and supersedes any prior verbal understandings, written communications or representations.

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