Description of the Services:

1. Payment Processing:

   • The Services deliver real time or near real time Transaction processing capability over the Internet with a high availability service level applying to the Payment Interface. The Services include reconciliation services for Transaction Acquired and Settled via PayBy, to help match processed Transactions with settlements received from the relevant Acquirers and Scheme Owners. All Card Not Present Transactions shall be submitted to PayBy for processing through the Hosted Payment Page as Payment Interface, unless otherwise agreed in the Merchant Onboarding Form. All POS Transactions shall be submitted to PayBy to the API by means of a PayBy approved POS Terminal, which complies with the requirements set out in these terms or as directed by PayBy in writing from time to time.

   • If the relevant Acquirer or Scheme Owner settles related funds directly to Merchant (not via PayBy), reconciliation services will not be available unless specifically agreed otherwise in writing by PayBy.

   • The Merchant is obliged to ensure all data that PayBy requests to be provided for a Transaction, including those needed for fraud checks, are provided with each Transaction submitted for processing by PayBy. If the Merchant fails to provide the requested data with each Transaction, PayBy has the right to immediately suspend Transaction processing. PayBy may revise the required data needed to process Transactions from time to time by giving notice to the Merchant via the Customer Area as needed to be able to process such Transaction and conduct fraud checks.

   • The processes for authentication, Authorisation, third party Acquiring, clearing and Settlement of Transactions, to PayBy, are controlled by and are the responsibility of the third party Acquirers, Scheme Owners and Issuing Banks and are subject to the Scheme Rules set by the Scheme Owner(s). PayBy acts in its own name and does not have primary responsibility for services provided by these third parties and does not control the services provided by third party Acquirers, Issuing Banks and Scheme Owners.

   • Within the context of the overall Services provided to Merchant, PayBy’s Acquiring Service is to be seen as a distinct service from the services performed by Scheme Owners and other connected parties (such as third party Acquirers or Issuing Banks), as determined by the applicable Scheme Rules. The Acquiring Service allows Merchant to use the Scheme Owners’ networks and services for Merchant’s benefit.

   • More specifically, PayBy’s Acquiring Services include the following:

     • accepting Transactions from Merchants and routing the same to the relevant third party Acquirer, Scheme Owner or Issuing Bank;

     • collecting and Settling the resulting funds to Merchant;

     • transmitting pass-through fees, including Scheme Owner costs, to Merchants where interchange plus plus (sometimes referred to as interchange ++ or interchange plus) pricing is agreed; and

     • reconciliation services for Transactions Acquired and Settled via PayBy, reconciling processed Transactions with settlements received from the relevant third party Acquirers, Scheme Owners and Issuing Banks.

     • reconciliation services for Transactions Acquired and Settled via PayBy, reconciling processed Transactions with settlements received from the relevant third party Acquirers, Scheme Owners and Issuing Banks.

2. Merchant Registration, KYC Check and Compliance:

   • In order to enable PayBy to comply with AML laws and regulations, financial services and other applicable laws and regulations and KYC (‘Know Your Customer’) requirements imposed by the Central Bank, Scheme Owners and Acquirers, Merchant must when entering into the Merchant Onboarding Form and thereafter on PayBy’s request, provide information about itself, its activities and its shareholders (including ultimate beneficial owners) (the “Registration Information”). Merchant warrants unconditionally that all Registration Information it provides is correct and up to date.

   • Merchant will provide PayBy with at least thirty Business Days prior written notice of any change of the Registration Information. Merchant will on first request from PayBy provide such additional information and supporting documentation regarding its activities and identity and that of its shareholders as PayBy may reasonably determine to need to ensure compliance with applicable laws and regulations and Scheme Owner and Acquirer KYC requirements. Merchant agrees that PayBy may run further checks on Merchant’s identity, creditworthiness and background by contacting and consulting relevant registries and governmental authorities.

   • PayBy’s acceptance of Merchant as user of the Services and the relevant Payment Methods is strictly personal and limited to the use by Merchant of the Services for payment of Merchant’s own products and services. Merchant may not use the Services to facilitate the payment for products or services sold by third parties and therefore may not resell the Services to third parties.

   • Support for each Payment Method is subject to acceptance by the relevant Scheme Owner or Acquirer used by the Scheme Owner, which such Acquirer or Scheme Owner may withhold or withdraw at its discretion at any time. Some Scheme Owners or Acquirers may require the Merchant to enter into a direct agreement with the Acquirer or Scheme Owner before the Merchant may use the relevant Payment Scheme. Merchant hereby authorizes PayBy to submit Registration Information received from Merchant to the relevant Scheme Owners and Acquirers to obtain permission for providing access to their Payment Methods for Merchant.

   • Comprehensive Due Diligence and Continuing Compliance: Notwithstanding anything to the cont contained in these Terms, the Merchant acknowledge and agrees that;

     • As a regulated financial entity, PayBy is subject to stringent obligations to conduct comprehensive due diligence at the onset of the business relationship and on an ongoing basis.

     • To comply with these obligations, PayBy reserves the right to request from the Merchant any document or information deemed necessary by PayBy for the purpose of due diligence, risk assessment, or any other purpose related to PayBy's legal or regulatory obligations. This right extends to both the initial onboarding process and the entire duration of the business relationship.

     • The Merchant acknowledges its obligation to provide such documents or information promptly upon request by PayBy. This obligation is a condition of the commencement and continuation of the business relationship.

     • If the Merchant fails to provide the requested documents or information in a timely manner, or if the provided documents or information do not meet PayBy's standards for compliance, PayBy reserves the right to not commence, or to discontinue, the business relationship at its sole discretion without a prior written notice.

     • The Merchant agrees to indemnify and hold PayBy harmless from any loss, liability, or expense arising from the Merchant's failure to provide required documents or information, or from the Merchant's provision of inaccurate, incomplete, or misleading documents or information.

     • PayBy reserves the right to revise its requirements for documents or information at any time and will notify the Merchant of any such changes. The Merchant's continued provision of services following such notification will constitute acceptance of the revised requirements.

     • This clause shall survive the termination of the agreement between PayBy and the Merchant for any reason.

   • Anti-Money Laundering (AML) and Counter-Terrorist Financing (CTF) Compliance: Notwithstanding anything else contained in these Terms, the Merchant acknowledge and agrees that;

     • In recognition of the significant role of the financial industry in preventing money laundering and terrorist financing, the Merchant agrees to strictly adhere to all applicable AML and CTF laws and regulations, both within its jurisdiction and those prescribed by international authorities.

     • The Merchant undertakes to maintain robust internal controls and procedures designed to identify, assess, monitor, manage, and mitigate money laundering and terrorist financing risks associated with its business activities. This includes but is not limited to conducting thorough customer due diligence, implementing ongoing transaction monitoring systems, and establishing a risk-based approach to evaluate and manage AML/CTF risks.

     • The Merchant is required to promptly report any suspicious or unusual transactions or activities to PayBy, and, where applicable, to the relevant regulatory authorities in compliance with local and international reporting obligations. The Merchant acknowledges that any failure to report suspicious activities could lead to the termination of the business relationship and potential legal repercussions.

     • PayBy reserves the right to review and assess the Merchant's AML and CTF compliance programs and policies at any time. The Merchant agrees to provide such evidence promptly upon request. Failure to provide satisfactory evidence may result in the suspension or termination of the business relationship.

     • The Merchant further agrees to provide ongoing training to its employees, agents, and representatives to ensure they are equipped with the necessary knowledge and skills to comply with AML and CTF laws, regulations, and internal controls.

     • The Merchant acknowledges that PayBy is entitled to perform audits, either directly or via a third-party, on the Merchant's AML and CTF compliance programs and procedures to ensure their adequacy and effectiveness.

     • In the event of a change in AML/CTF laws or regulations that may impact the Merchant's obligations under this agreement, the Merchant agrees to promptly adapt its procedures and controls to remain in compliance, and to notify PayBy of any such changes.

   • The Merchant hereby expressly consents to grant PayBy access to their AECB (Al Etihad Credit Bureau) report, as well as their D&B (Dun & Bradstreet) ratings, for the purposes of conducting enhanced due diligence on their creditworthiness and assessing their suitability for PayBy's current and future lending services. The Merchant further consents to PayBy obtaining any and all necessary credit and performance-related reports from any other relevant agencies, as required, to facilitate a comprehensive evaluation of the Merchant's financial standing and operational performance. This consent shall remain in effect for the duration of the business relationship between PayBy and the Merchant and shall survive the termination of the agreement for any reason. The Merchant acknowledges and agrees that any failure to provide or maintain the required consent may result in the suspension or termination of PayBy's services and potential legal liability.

3. Payment Method And Currency Support:

   • PayBy will support the Payment Methods and Currencies as specified in the Merchant Onboarding Form, as long as PayBy continues to support these in its general product portfolio. In case of: (i) materially different terms imposed by the relevant Scheme Owner or Acquirer; (ii) material malperformance by the relevant Scheme Owner or Acquirer (or reasonable ground for PayBy to expect such malperformance); (iii) reasonable grounds to doubt the credit worthiness of the Scheme Owner or Acquirer; or (iv) sharply increased costs for PayBy to offer the Payment Method due to new circumstances; then PayBy may decide in its reasonable discretion to stop supporting a particular Payment Method or make future support conditional on the acceptance by Merchant of additional conditions or fees. PayBy will give at least 1 month written notice of any discontinued or changed support of any Payment Method, unless this is not reasonably possible given the cause for this decision. PayBy will use its reasonable endeavours to offer an alternative for any discontinued Payment Method to the Merchant.

   • Merchant understands that Acquirers and/or Scheme Owners might cancel certain Payment Methods, change the characteristics thereof or change the acceptance criteria under which they make them available. As a consequence, PayBy may be forced to block Merchant from further use of a Payment Method or impose additional restrictions or conditions on its continued use as a consequence of such decisions of the relevant Acquirer and/or Scheme Owner. Where possible PayBy will use its reasonable efforts to give Merchant prior notice of any such change or cancellation with respect to the Payment Methods agreed to be offered under the Merchant Onboarding Form. PayBy will on request of Merchant in such case reasonably assist Merchant in finding alternative Payment Methods available to Merchant or manners in which to (re-)gain the approval of the relevant Scheme Owner or Acquirer.

4. Cardholder Authentication Methods:

   • For all Transactions processed through the Hosted Payment Pages, 3D Secure authentication will be offered as option to use by the Merchant where supported by the Acquirer and Payment Method used in combination with the then current Software of PayBy.

5. Account Holder Payment Currency:

   • PayBy will have the right to offer the Account Holder the option to use a different Payment Currency than the Order Currency, in which case the Merchant will still always receive Settlement of the Transaction amount in the Order Currency (except in case another currency is agreed in the Merchant Onboarding Form or if the Merchant does not make a bank account available for Settlement in the Order Currency).

6. Fraud Control:

   • All Transactions processed by the Services will be screened by the PayBy Fraud Control Tool, which performs a number of checks on the Transactions and attaches a resulting total score to each Transaction, which represents the likelihood of the Transaction being fraudulent. PayBy may configure the scoring values for the PayBy Fraud Control Tool via the Customer Area on the PayBy website to determine how the PayBy Fraud Control Tool will judge Transactions.

   • The Fraud Control Tool does not guarantee the prevention of fraudulent Transactions, nor against resulting Chargebacks or Fines. Regardless of the resulting total score or the result of the PayBy Fraud Control Tool, Transactions may be fraudulent or non-fraudulent.

   • PayBy reserves the right to change the scoring values or add additional factors at its sole discretion in the Fraud Control Tool in case PayBy in its reasonable discretion on the basis of clear and objective indications judges these to pose an unacceptable risk for accepting fraudulent Transactions or creating increased Chargeback levels. (PayBy is not under any obligation to check these or any other setting made by Merchant in the Customer Area.) Furthermore, PayBy has the right to add new checks to the Fraud Control Tool or change existing checks without prior notice.

   • For some Payment Methods, Transactions can be cancelled by the Merchant after they have been Authorised. The final responsibility for accepting or rejecting a Transaction will remain with the Merchant. PayBy reserves the right to cancel Transactions that it has reasonable grounds to suspect to be fraudulent or involving other criminal activities, even if the Fraud Control Tool failed to block the Transaction.

   • Suspension of Transactions and Service Delivery:

     • In the event PayBy has reasonable grounds to believe that a Transaction is fraudulent, involves criminal activity, or otherwise violates any applicable laws, regulations, or these Terms, PayBy reserves the right to issue an instruction to the Merchant to immediately suspend acceptance of such Transaction.

     • To comply with these obligations, PayBy reserves the right to request from the Merchant any document or information deemed necessary by PayBy for the purpose of due diligence, risk assessment, or any other purpose related to PayBy's legal or regulatory obligations. This right extends to both the initial onboarding process and the entire duration of the business relationship.

     • The Merchant agrees to comply promptly with any such instruction from PayBy. This includes immediately halting the delivery of goods or services related to the Transaction in question.

     • The Merchant acknowledges that any failure to comply with an instruction from PayBy to suspend a Transaction or halt the delivery of goods or services could lead to immediate termination of this agreement, potential legal liability, and other adverse consequences.

     • The Merchant agrees to cooperate fully with PayBy and any relevant authorities in the investigation of any suspected fraudulent or criminal activities. This cooperation may include, but is not limited to, providing any relevant records or information, facilitating interviews or discussions, and implementing remedial or preventive measures as advised by PayBy or the authorities.

     • This clause shall survive the termination of the agreement between PayBy and the Merchant for any reason.

7. Captures:

   For some Payment Methods it is possible to ask for Authorisation of a payment (to check whether the Account Holder indeed has an account that can be charged for the payment amount) without immediately Capturing the Transaction. The prior Authorisation gives the Merchant some additional assurance that when Merchant Captures the Transaction, it will be Settled to the Merchant (and not blocked or subject to Chargeback). The Merchant is responsible for Capturing Transactions; this can be realised via the Customer Area or the API. Merchant understands that Authorised Transactions have a limited maximum Capture Period in which they can be Captured which is set by the Issuing Bank or the relevant Scheme Owner. Beyond the applicable Capture Period, the additional assurance granted by the prior Authorisation is no longer valid, increasing the chances of the Capture not leading to a successful Settlement of the related payment. It is Merchant’s responsibility to check the applicable Capture Period via the Customer Area to ensure it timely Captures Authorised Transactions. Merchant should generally take into account that the Capture Period can be as short as 5 days after Authorisation.

8. Settlements:

   • Subject to the Deposit being at the applicable Deposit Level, funds from the Account Holders charged for the validly processed Transactions of the Merchant which are Acquired via PayBy are paid by the Acquirer or the Scheme Owner to PayBy, who will subsequently Settle received funds to the Merchant.

   • PayBy is only obliged to provide Settlement of Transactions for which it has received settlement(s) by the Acquirer or the Scheme Owner. It is Merchant’s responsibility to evaluate if the conditions imposed by the Payment Methods for settlement (as communicated from time to time via the Customer Area and/or by the Scheme Owners themselves via their websites and other communication channels to the Merchant) are acceptable to the Merchant. This is specifically relevant for the Merchant to take into account with respect to Payment Methods that are not monitored and regulated by governmental financial services authorities such as but not limited to non-Card Scheme related prepaid cards and SMS and IVR payments. Merchant understands and agrees that PayBy will not compensate Merchant for late or non-performance, insolvency or bankruptcy of the Acquirer or Scheme Owner due to which Merchant receives late Settlement or no Settlement at all for processed Transactions.

   • PayBy reserves the right to withhold Settlement of Transactions if they are Captured, but suspected to be fraudulent, related to illegal activities or likely to become subject to a Chargeback by PayBy and/or the relevant Acquirer and/or Scheme Owner, until satisfactory completion of PayBy’s investigation, that of the relevant Acquirer or Scheme Owner or that of a third party nominated by any of these parties. The Merchant will give its full co-operation to any such investigation.

   • No interest will be due over amounts held by PayBy prior to Settlement of such funds to the Merchant, except in case Settlement is delayed for more than 90 days due to the intent or gross negligence of PayBy. In such case interest will be due by PayBy over the late Settled amount at the rate of 0.01% per month starting after the above stated 90 days period.

   • PayBy may not sell or pledge its receivables on or via the Scheme Owners resulting from Transactions processed for a Merchant.

   • Merchant acknowledges that if a third party Acquirer, Scheme Owner or Issuing Bank does not timely or correctly settle funds to PayBy, PayBy does not have any control over timely settlement or correction of incorrect settlement by such Scheme Owner, Issuing Bank, or third-party Acquirer. PayBy will however on request, on a best efforts basis (without guaranteeing a successful outcome) and on behalf of all of its merchants, request settlement and/or correction of an error by a Scheme Owner or third party Acquirer.

9. Required Data:

   • Merchant shall from time to time on the first request of PayBy provide all required information regarding the then current actual or expected Delivery Dates for processed Transactions and estimates for the average time between Transaction Authorisation and the related Delivery Date. Further Merchant shall provide PayBy on its first request with all requested information on Merchant’s then current ability to provide the Merchant Products and Services, its financial status, solvability and liquidity.

   • Cooperation in Risk Assessment:

     • To facilitate comprehensive risk assessment, the Merchant agrees to cooperate fully with PayBy in providing specific details about the Customer and Transaction as required. This may include, but is not limited to, historical Transactional data, such as the number of successful orders in the past, whether a card is on file, and other relevant Customer information.

     • In addition to Customer-specific information, the Merchant is also required to provide order-specific details, such as the make, model, origin details of the product being sold, or any other information relevant to the Transaction.

     • The Merchant understands and agrees that the provision of such information is crucial for PayBy to perform its risk assessment functions effectively and to ensure compliance with applicable regulatory requirements.

     • The Merchant shall promptly respond to any request for information from PayBy and shall provide accurate, complete, and up-to-date information to the best of its knowledge and belief.

     • The Merchant acknowledges that any failure to provide the required information, or the provision of inaccurate or misleading information, may result in immediate termination of this agreement, potential legal liability, and other adverse consequences.

     • The Merchant agrees to implement and maintain adequate systems and procedures to collect and retain the required Customer and Transaction-specific information for the duration of this agreement and for any additional period as may be required by applicable law or by PayBy.

     • This clause shall survive the termination of the agreement between PayBy and the Merchant for any reason.

   • This information is used by PayBy to estimate the likely Uncompleted Order Amount as used to determine the Deposit Level as per these Terms. In case PayBy has reasonable grounds to question (i) the accuracy or reliability of the information regarding Delivery Dates and/or (ii) Merchant’s financial stability and/or (iii) its ability to provide the Merchant Product and/or the Merchant Services to the Account Holders, PayBy may in its discretion take this into account in estimating the Uncompleted Order Amount for setting the Deposit Level. PayBy will not take such action arbitrarily and will where reasonably possible (considering the grounds and urgency of the adjustment) request and consider Merchant’s input on PayBy’s amended assessment of the Uncompleted Order Amount before using it to amend the Deposit Level.

10. Merchant Obligations And Restrictions:

    • Merchant may only use the Services for payment of those Merchant Products and Services which Merchant registered for when entering into the Merchant Onboarding Form with PayBy as reflected in the Merchant Onboarding Form. The acceptance by PayBy of Merchant as customer is strictly linked to the description of Merchant’s Products and Services Merchant registered for when entering into the Merchant Onboarding Form. Merchant must ask prior written approval for any change or addition to the Merchant’s Products and Services prior to submitting payment requests therefor.

    • The Merchant shall not use the Services for the payment of Merchant Products and/or Merchant Services where it is illegal to offer or provide these to or from the relevant country and/or which are stated in PayBy’s Prohibited and Restricted Products and Services List. Merchant may obtain a written waiver for Products and Services in the ‘restricted’ section of this list, but such waiver may be revoked by PayBy in its discretion. This list may be updated in PayBy’s discretion where needed to ensure legal compliance, compliance to Scheme Rules, prevent high levels of Chargebacks, reputational risks and/or to reduce exposure to potentially fraudulent or illegal transactions. Merchant will be informed of updates of this list by PayBy publishing an updated list in the Customer Area. Where a published change affects a significant portion of the Merchant’s Product or Services, Merchant may terminate the Merchant Onboarding Form by giving written notice to PayBy.

    • PayBy’s acceptance of Merchant as customer should not be interpreted as an advice or opinion of PayBy as to the legality of Merchant’s Products and Services and/or of Merchant’s intended use of the Services therefore. Merchant is and remains solely responsible to ensure the Merchant Products and Services sold are compliant with the Scheme Rules and applicable laws in its country of origin and the countries it Customers are based in. Further some Payment Methods apply additional restrictions as set out in the applicable Scheme Rules which Merchant must at all times ensure compliance with.

    • The Services of PayBy may not be used (and Transactions may not be submitted for processing) for prepaying Merchant Products and Services for which the Delivery Date is in part or in whole more than 6 months after the date the Transaction is submitted for processing.

    • For E-commerce Transactions, Merchant is obliged to provide on its website the following information to an Account Holder for every Transaction: complete description of the goods or services offered, returned merchandise and refund policy, Customer service contact (including email address and/or telephone number), address, delivery policy, Merchant’s consumer data protection policy and all other legally required information to be provided to the Account Holder in the relevant jurisdiction.

    • Merchant acknowledges that if a third party Acquirer, Scheme Owner or Issuing Bank does not timely or correctly settle funds to PayByThe Merchants must maintain a copy of all electronic and other records related to the Transaction and the ordering and delivery of the Merchant Product and Services for the greater of (i) 2 years subsequent to the Transaction being processed or (ii) the applicable warranty period of the delivered Merchant Product and Services. The copy of the records shall include, but not be limited to: shipping details (if relevant), invoices for the delivered Merchant Product and Services and all contacts with the Account Holder. In case of investigations by PayBy, the Acquirers and/or the Scheme Owners with respect to Chargebacks, suspected fraud or other RFI’s from the Scheme Owners, Merchant will fully co-operate in the auditing of such records. Merchant’s obligations to maintain documentation of its business according to applicable laws remain unaffected by this clause., PayBy does not have any control over timely settlement or correction of incorrect settlement by such Scheme Owner, Issuing Bank, or third-party Acquirer. PayBy will however on request, on a best efforts basis (without guaranteeing a successful outcome) and on behalf of all of its merchants, request settlement and/or correction of an error by a Scheme Owner or third party Acquirer.

    • The Merchant is obligated to maintain accurate and verifiable records demonstrating the successful delivery of goods or services to the Customer in connection with each Transaction processed through PayBy. This proof of delivery may encompass various forms of evidence, including but not limited to delivery receipts, signed acknowledgement of receipt by the Customer, tracking numbers, service completion reports, or other documentary evidence reasonably acceptable to PayBy. Upon PayBy's request, the Merchant is required to provide such proof of delivery promptly, ensuring that the requested proof is delivered no later than two (2) days from the date of PayBy's request, unless an alternative timeline has been agreed upon by PayBy in writing. The Merchant acknowledges and accepts that the failure to provide satisfactory proof of delivery within the stipulated timeframe may result in immediate suspension of its relationship with PayBy, potential withholding of settlement amounts, potential legal liability, and other adverse consequences. As part of this agreement, the Merchant shall indemnify and hold PayBy harmless against any losses, damages, costs, or expenses arising out of or in connection with the Merchant's failure to provide satisfactory proof of delivery as required under this agreement. Importantly, this obligation is enduring and shall survive the termination of the agreement between PayBy and the Merchant for any reason.

    • The Merchant is expressly prohibited from altering the delivery address for any transaction subsequent to the request for Authorisation. Any deviation from this protocol may subject the Merchant to full liability for any chargebacks or related losses that arise as a result of such changes. This obligation is binding and non-negotiable. Accordingly, the Merchant acknowledges that any chargeback loss incurred due to a breach of this provision will be borne solely by the Merchant, without any recourse to PayBy. This clause is designed to mitigate potential fraud risks and protect the integrity of PayBy's transaction processing system, and as such, it shall survive the termination of the agreement between PayBy and the Merchant for any reason.

    • Returns and Warranties:

      • The Merchant agrees to establish, maintain, and strictly adhere to clear and fair policies regarding product returns, refunds, and warranties. These policies shall be in compliance with all applicable laws and regulations and shall provide for adequate protection of Customers' rights and interests.

      • These policies must be made readily accessible to Customers at all times through the Merchant's website, physical store, or other appropriate means.

      • The Merchant shall ensure that all Customers are made aware of these policies prior to the completion of any transaction.

      • In the event of a breach of this clause, or if PayBy determines that the Merchant's return, refund, or warranty policies are not available to Customers or are inadequate, PayBy reserves the right to suspend its relationship with the Merchant immediately.

      • Furthermore, PayBy reserves the right to withhold all settlement amounts and deposits due to the Merchant in order to settle any claims by Customers arising out of or in connection with the Merchant's failure to uphold its return, refund, or warranty policies.

      • The Merchant acknowledges and agrees that such suspension and withholding of funds are without prejudice to any other rights or remedies that PayBy may have under this agreement, at law or in equity.

      • The Merchant further agrees to indemnify and hold PayBy harmless against any losses, damages, costs, or expenses arising out of or in connection with any claim by a Customer related to the Merchant's return, refund, or warranty policies.

      • This clause shall survive the termination of the agreement between PayBy and the Merchant for any reason.

11. Merchant Aggregation

    • In this Clause ‎2.k, “Merchant Aggregator” means a Merchant that PayBy, in its sole and absolution discretion, permits in writing to aggregate multiple sub-merchants (each a “Sub-Merchant”) for the purposes of the Sub-Merchants utilizing the Services.

    • Notwithstanding the settlement process in Clause ‎2.h, the Company may, at its sole option and discretion, facilitate direct transfers of funds to Sub-Merchants' bank accounts on behalf of a Merchant Aggregator, prior to the completion of the standard settlement process (each a “Sub-Merchant Settlement”).

    • The Company will only  initiate a Sub-Merchant Settlement upon the Merchant Aggregator’s express authorization by way of written instruction (including by email) or instruction submitted by the Merchant Aggregator through the Customer Area.

    • A Merchant Aggregator is responsible for providing accurate and up-to-date information regarding Sub-Merchants' bank account details and ensuring that all Sub-Merchants are compliant with the terms and conditions of the Company.

    • The Company is not liable for any errors or omissions in the information provided by the Merchant Aggregator, nor for any compliance issues arising from the actions of Sub-Merchants.

    • The Merchant Aggregator shall ensure that all Sub-Merchants comply with relevant legal and regulatory requirements.

    • The Merchant Aggregator must provide the Company with all necessary documentation and information to verify the identity, legality, and operational status of each Sub-Merchant as required by applicable laws and the Company's policies in force from time to time.

    • The Merchant Aggregator shall, at the Company’s request, provide detailed and accurate reports of all transactions processed on behalf of Sub-Merchants, in a format and frequency as specified by the Company.

    • The Merchant Aggregator agrees, and shall cause the Sub-Merchant to agree, to comply with all applicable data protection and privacy laws in the processing and transfer of data, including personal data of Sub-Merchants and their customers.

    • The Merchant Aggregator shall indemnify, defend, and hold harmless the Company, its affiliates, officers, directors, employees, agents, successors and assigns from and against any and all losses, liabilities, damages, claims, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any Sub-Merchant Settlement, unless primarily caused by the Company’s gross negligence or willful misconduct. This indemnity shall survive the termination or expiration of this Agreement.

    • In the event of any inconsistency or conflict between this Clause ‎2.k and the other provisions of this Agreement, the provisions of this Clause ‎2.k will take precedence. Notwithstanding, this precedence applies only to the extent of the conflict or inconsistency. In all other respects, the other provisions of this Agreement remain in full force and effect.

12. Warning – Fines Scheme Owners:

    • For violations of certain key requirements under the Scheme Rules by Merchants, some Scheme Owners (and in particular the Card Schemes) can levy significant Fines, ranging from 100,000 AED to over 4 million AED. The Scheme Owners do this to protect the Account Holders, Merchants and providers of the Payment Methods collectively against misuse, fraud, illegal activities, breach of applicable laws, reputational damage and excessive costs. Key examples of Scheme Rules which are subject to such Fines: (i) using the Payment Method for other Merchant Products and Services than for which the Merchant received express authorisation to use it for; (ii) using the Payment Method for Merchant Products and Services which are violating applicable laws; (iii) using the Payment Method for selling Merchant Products and Services for which the Scheme Owner explicitly prohibited its use (e.g. adult content, drugs, arms, gambling); (iv) using the Payment Method for the benefit of a third party / reselling the use of the Payment Method to a third party (the authorisation for Merchant to use a Payment Method is strictly personal); (v) percentage of Transactions of a Merchant which is subject to a Chargeback is above the applicable acceptable level (see clause 7.1 for more information on this); (vi) breaches of security and confidentiality obligations with respect to Payment Details (see clauses 4.1 and 4.2 for more information on this); (vii) fraudulent, misleading activities of which Account Holders are the victim.

    • Via the Customer Area more detailed information on then current applicable Fines and Scheme Rules is available for Merchant. Merchant is strongly advised to regularly review the then current Scheme Rules and relevant changes to applicable laws as applicable to its Merchant Products and Services and business practices to ensure their compliance to applicable Scheme Rules. PayBy assists Merchant in this by providing access to and summaries of applicable Scheme Rules via the Customer Area. Where Merchant finds the Scheme Rules (including Fine possibility) to be unacceptable, Merchant is free at any point in time to stop using the relevant Payment Method (the Scheme Rules and these terms remain applicable to previously processed Transactions for Merchant).

    • Where PayBy becomes aware of and/or received any notice of a potential exposure to a Fine related to any Merchant behaviour, Merchant will on first request provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation, notwithstanding all other rights and remedies of PayBy in such situation as per these Terms. Where possible PayBy will share relevant feedback received by Merchant with the Acquirer/Scheme Owner handling the potential Fine so it can be taken into consideration by the Acquirer / Scheme Owner. If Fines are applied for Merchant violations, these may be invoiced by the Scheme Owners and/or the relevant Acquirer to PayBy as their contracting party (for the benefit of the Merchant). Merchant shall fully indemnify and hold PayBy harmless from any Fines applied by the Scheme Owners as a result of Merchant’s breach of the terms of the Merchant Onboarding Form and/or the Scheme Rules.

13. Right Of Set-Off:

    • Without prejudice to any right to set-off which PayBy may be entitled to as a matter of law, PayBy may set-off any amounts due to the Merchant against any amounts owed or other liabilities of the Merchant, now or at any time hereafter due, owing or incurred by the Merchant to PayBy under, in connection to, or pursuant to these Terms and/or the Merchant Onboarding Form. This right of set-off includes but is not limited to the situation where proceedings are initiated for the winding up, bankruptcy or dissolution of the Merchant (or similar proceedings). PayBy may also set-off if: (i) PayBy’s debt is conditional or not due; and/or (ii) the Merchant’s debt is not due.

    • The Merchant will be informed of PayBy’s use of its set-off rights. Claims expressed in different currencies will be set-off at the prevailing exchange rate(s) at the date of set-off.

Pricing and Invoicing:

1. Invoicing:

   • PayBy will invoice the Merchant monthly for the Services rendered. Invoices provide an overview of (i) the Transaction Fees and other costs and fees due for the past month, calculated on the basis of last month’s Transaction volume, (ii) an overview of the Transaction Fees and other fees already withheld from the Settlements and (iii) where relevant the remaining amount due or credited to the Merchant. Amounts due or credited are subsequently added to or subtracted from the next Settlement to the Merchant or in absence of a next Settlement are payable or credited as applicable within 15 days of the invoice date. The invoice currency will be AED unless expressly otherwise agreed in writing.

   • PayBy provides electronic invoices as standard. Printed invoices or statements can be requested for subsequent invoices via the Customer Area (additional costs may be charged by PayBy)

2. Pricing:

   • PayBy shall be unilaterally entitled to raise the prices for its Services, with one (1) month prior notice. Such price increases shall only become effective for the Services rendered by PayBy starting at the end of the notice period. The Merchant may, however, during the one month notice period, cancel the Merchant Onboarding Form by providing written notice to PayBy per the end of the one month notice period.

   • For the avoidance of doubt, this clause does not apply to any communicated increase of fees charged by the Acquirers or Scheme Owners for the use of their Payment Methods where such fees are not included in the fees charged by PayBy (e.g. in case the Interchange Fee is increased by the relevant Scheme Owner or Acquirer where an Interchange Plus pricing is agreed to apply) or due to changes in applicable laws.

   • PayBy reserves the right, at its sole discretion, to impose a fee for the non-utilization of the Services (Non-Usage Fees) on the Merchant.

3. Inflation:

   PayBy shall be entitled to change its prices to adjust for inflation with as maximum last year’s published Inflation. Said price change may be applied by PayBy only once annually and will be announced at least one month in advance. For an increase under this clause the termination right referred in the above clause does not apply.

4. Deposit Level Calculation:

   PayBy shall set the Deposit Level to be applied by PayBy to account for and cover for the potential indebtedness of Merchant for fees, Fines and Chargebacks payable from Merchant to PayBy, based on PayBy’s reasonably assessed then current estimate of the Uncompleted Order Amount, potential Fine exposure and other potential liabilities. PayBy has the right to adjust the Deposit Level in its discretion from time-to-time to bring it in line with its then current estimates. Upon Merchant’s first request PayBy will inform Merchant of the information, estimations and assumptions and calculations used by PayBy to establish the then current Deposit Level.

5. Deposit Reservation:

   • The initial Deposit Level will be set by PayBy on the basis of the information provided by Merchant regarding its anticipated initial use of the Services when entering into the Merchant Onboarding Form. PayBy may require Merchant to transfer the Initial Deposit to PayBy before it may start using the Services for commercial (so non-testing) purposes.

   • PayBy shall subsequently keep the Deposit at the Deposit Level by deducting funds from or adding funds to each Settlement. If at any point in time the Deposit drops below the then current Deposit level, PayBy may require Merchant to immediately transfer such funds to PayBy as is necessary to bring the Deposit in line with the then current Deposit Level.

   • After termination of the Merchant Onboarding Form or after processing of Transactions is stopped, the Deposit shall be released by PayBy in monthly steps to the Merchant to account for the decrease in Uncompleted Order Amount, fraud exposure and/or Fine exposure until the full Deposit is released to the Merchant or where applicable, in part or in whole applied by PayBy to pay for Chargebacks, cover Fines or fraud claims or pay for unpaid PayBy fees due by Merchant. The Deposit will as standard be fully released to the Merchant 12 months after processing of Transactions for Merchant has stopped unless specifically identified potential liabilities still exist at that point in time.

6. MSC Calculation:

   • For the ‘Blend Fee’ pricing structure for the MSC, Merchant acknowledges that the underlying Interchange Fee is calculated by PayBy based on Traffic characteristics provided by the Merchant and documented in the Merchant Onboarding Form when agreeing the Blend Fee. If the actual Traffic differs materially from the figures provided by the Merchant, PayBy has the right to proportionally adjust the Blend Fee per direct, based on the actual then current Traffic characteristics. Reason for this is that certain types of Transactions (e.g. Transactions made with Credit Cards issued outside Europe for transactions with European Merchants) are charged at higher rates by the Card Schemes than similar Transactions with European issued Cards.

   • For the ‘Interchange Plus’ pricing structure, Merchant acknowledges that the actual MSC is calculated by PayBy based on the actual then current Interchange Fee per Transaction attracted by that Transaction, according to Card Scheme Interchange pricing which varies from time to time. The then current Card Scheme Interchange pricing level is published by the Card Schemes. In the Customer Area (internet links to) the then current published Interchange Fees are published.

   • The agreed MSC pricing structure is documented in the Merchant Onboarding Form.

   • With respect to the ‘Blend Fee’ pricing structure, any charges and/or fees from the relevant Scheme Owners, Issuers, and/or third party Acquirers are collected on behalf of such third parties by PayBy.

   • With respect to the ‘Interchange Plus’ pricing structure, Merchant acknowledges that the Interchange Fees (including ‘scheme fees’) are borne by Merchant, including any increases or decreases thereof. Interchange Fees are collected by PayBy on behalf of Scheme Owners and payable by Merchant to PayBy. The PayBy Acquiring mark-up is agreed between PayBy and Merchant as compensation for PayBy’s risk and efforts related to the Acquiring of Transactions for Merchant. Merchant acknowledges that the Interchange Fees (including any ‘scheme fees’) are set by the Scheme Owners (and not by PayBy).

7. Payment:

   • Merchant agrees with the withholding of any fees and other sums due to PayBy under the Merchant Onboarding Form including Chargebacks and Fines from the Settlement amounts and including funds required to meet the then current Deposit Level requirements. If the Settlement amounts are not sufficient to cover amounts due to PayBy, the amounts remain due as per the due date as stated on the invoice and shall be paid separately by the Merchant within 15 days of the date of the relevant invoice.

   • PayBy has the right at any time to require immediate payment of sums or to set-off Merchant’s debts to PayBy against Settlements to Merchant in the following cases:

     • Refunds and/or Chargebacks in case the outstanding Refund and/or Chargeback amounts exceed the Settlement amount.

     • Any amount required by PayBy to cover any (potential) liability of the Merchant under this Agreement.

     • Any other charges or amounts due by Merchant under this Agreement including Fines from the Card Schemes.

   • Retrospective Recovery of Fees and Charges:

     • In the event that PayBy, due to its own error, system malfunction, or other inadvertent oversight, fails to levy or recover any applicable fees or charges from the Merchant, PayBy reserves the right to rectify such oversight.

     • PayBy shall be entitled to retrospectively recover such applicable fees or charges from the Merchant. This retrospective recovery may take into account any fees or charges that should have been applied and were not due to the aforementioned circumstances.

     • PayBy will notify the Merchant of any such retrospective recovery of fees or charges, detailing the nature of the oversight and the amount to be recovered.

     • The Merchant agrees to pay such retrospectively recovered fees or charges within seven (7) days from the date of the notice from PayBy.

   • Interest shall accrue on any unpaid amounts owed by the Merchant to PayBy at the rate of 1% per month.

8. Taxes:

   All fees of PayBy are excluding applicable VAT, turnover and other taxes or levies which will be separately payable by Merchant where applicable to invoiced amounts or servic

Integration:

1. Hosted Payment Pages:

   • The Services shall be used by the Merchant for Card Not Present Transactions via the Hosted Payment Pages unless agreed otherwise in the Merchant Onboarding Form. The Merchant redirects the Account Holder to the secured Hosted Payment Page of PayBy. The Hosted Payment Pages can be tailored on some points by the Merchant by using the standard ‘skin’ options embedded therein.

   • Merchant shall not capture, register and/or have the Account Holder fill in, any Payment Details (expressly including Credit Card data) on its own site, but will use the Hosted Payment Pages instead to have the Account Holder submit its Payment Details there. Merchant will not use screen grabbing or other emulation technologies to input Payment Details onto the Hosted Payment Pages.

2. API Interface:

   (The following is only applicable for Merchants with which PayBy expressly agreed to provide a Payment Interface via the API method for Card Not Present Transactions.)

   • Connections to the API interface are made with “SOAP” calls using HTTPS. Authentication is performed via a combination of username/password, IP and/or client certificate checks.

   • If Merchant does not activate 3D-Secure for Transactions offered via the API interface where such option is available, Merchant understands that a higher Interchange Fee may be applied by the Card Schemes / Acquirers and other restrictions may be applied by the Card Schemes / Acquirers.

   • The Merchant using the API interface must at all times fully comply with the then current PCI-DSS rules and on PayBy’s first request demonstrate such compliance and provide its valid certification of its compliance. If the Merchant cannot prove the compliancy to the PCI-DSS rules or its certification/compliancy becomes invalid, Merchant will notify PayBy immediately. PayBy has the right to immediately suspend Transaction processing for Merchant in case PayBy has any indication that Merchant is not compliant with the PCI-DSS standards which Merchant cannot immediately prove to be not founded. Merchant shall fully indemnify and hold PayBy harmless from any losses, claims (including applied Fines by the Scheme Owners), costs or damage PayBy incurs as a result of Merchant’s breach of this obligation.

3. Merchant Equipment And Software / POS Terminals:

   • The Merchant shall be solely responsible for the installation, servicing, maintenance, security and operation of the equipment and software needed to connect to the Payment Interface and submit Transactions for processing by PayBy. PayBy provides standard software modules and installation guides to the Merchant to help enable the connection to the Payment Interface and may provide software tooling to interact with POS Terminals provided or approved by PayBy to connect to the API. PayBy shall ensure its input is provided in a professional manner, but Merchant remains responsible to ensure the correct implementation and use of the Services in its own systems in accordance with the then current installation and usage instructions and software updates provided by PayBy via the Customer Area.

   • Merchant may only submit POS Transactions to PayBy if this is explicitly agreed in the Merchant Onboarding Form. Merchant may only submit POS Transactions for processing using POS Terminals approved by PayBy for such purpose from time to time, adhering strictly to any then current usage instructions as issued by PayBy with respect thereto via the Customer Area, including by updating the software embedded on the POS Terminal with software updates made available by PayBy.

   • The Merchant acknowledges and agrees to maintain the highest level of security by promptly updating its Point-of-Sale (POS) software in a timely manner, in accordance with the timelines and specifications provided by PayBy or the software provider. The Merchant understands that failure to update the POS software could potentially expose PayBy to vulnerabilities and fraudulent activities. Consequently, any losses, damages, liabilities, costs, or expenses incurred by PayBy due to the Merchant's failure to update the POS software within the stipulated time will be borne solely by the Merchant. The Merchant hereby indemnifies and holds PayBy harmless against any such consequences. This clause is binding and shall survive the termination of the agreement between PayBy and the Merchant for any reason.

   • Where a POS Terminal is provided by PayBy or recommended for use by Merchant in combination with a third party device like a tablet, I-pad, cash register etc., a “Third Party Device”, Merchant must install the then current version of the software and related updates issued by PayBy for such Third Party Device on such Third Party Device. PayBy is not responsible or liable with respect to the proper functioning of the Third Party Device and use of such third party device will be subject to license and usage terms imposed by the relevant third party providers of such Third Party Device. Then current supported Third Party Devices are listed in the Customer Area.

   • PayBy may also provide Merchant with software building blocks (such as software libraries) to enable Merchant to create applications to interact with PayBy provided or PayBy approved POS Terminals. Support by PayBy with respect to the use of such tooling and software building blocks and the applications created therewith, is not included in the Services of PayBy and such tools are provided on an “as is” basis without any warranty.

4. Hardware Warranty POS Terminals Provided By PayBy:

   • Each POS Terminal is provided by PayBy with a three months limited hardware warranty, which starts on the day the POS Terminal is made available to Merchant. The hardware warranty solely entitles Merchant to the free reparation or replacement of an PayBy provided POS Terminal which through a defect in the POS Terminal cannot be used to submit Transactions to PayBy. In order to claim the reparation or replacement of a defective POS Terminal under the hardware warranty, Merchant must contact the PayBy Service Desk prior to the expiry of the term of the hardware warranty and obtain a return address to send the defective POS Terminal to, together with a filled out hardware claim form as provided to Merchant by PayBy for such purpose.

   • The hardware warranty does not apply in case: (i) the defect is caused by any undue external influence (e.g. contact with water, extreme temperatures, dropping the device etc.); (ii) the defect is caused by any (attempt to) open, change, repair or add to the POS Terminal by parties other than PayBy or approved by PayBy in writing; (iii) the defect is caused by use contrary to the operating instructions in the then current usage guides and operating instructions issued by PayBy for such POS Terminal via the Customer Area; (iv) the defect is caused by use of the POS Terminal in combination with any third party software or device other than the then current PayBy approved versions of Third Party Devices, using then current approved versions of PayBy released software applications for the relevant Third Party Device.

   • Any discontinued approval by PayBy for connection to the API by means of a type of POS Terminal provided or previously approved by PayBy, will where reasonably possible be announced at least 3 months in advance by PayBy via the Customer Area. PayBy will use commercially reasonable efforts to continue to support a specific model of POS Terminal it previously provided to Merchant for at least 2 years from the date it is made available for use by Merchant. PayBy reserves the right to apply a shorter notice period where reasonably deemed necessary: (i) to comply with new Scheme Owner requirements; (ii) to comply with changes in applicable laws; or (iii) to address an imminent security threat identified by PayBy. If PayBy discontinues support of a previously provided POS Terminal during the applicable hardware warranty period as specified in this clause 4, PayBy will on Merchant’s request replace such POS Terminal at no additional charge.

   • The Merchant is expressly prohibited from engaging in any unauthorized tampering, alteration, modification or interference with the software or hardware modules provided or licensed by PayBy. Such actions are strictly prohibited and may result in immediate termination of the agreement and other legal consequences. The Merchant acknowledges that any such tampering could potentially expose PayBy to significant risks, including but not limited to, security breaches, data losses, operational disruptions, and reputational damage. Consequently, the Merchant agrees to indemnify and hold PayBy harmless from and against any and all losses, damages, liabilities, costs, or expenses incurred by PayBy as a result of any such unauthorized tampering by the Merchant. This clause is binding and shall survive the termination of the agreement between PayBy and the Merchant for any reason.

5. Merchant Integration Responsibility:

   It is the responsibility of the Merchant to comply with the relevant instructions and installation manuals issued by PayBy regarding its integration into the Services and Software, including updates issued from time to time to Merchant via the Customer Interface. PayBy is not obliged to provide notification of changes to the Software and the interfaces thereto which would not impact Merchant’s use of the Services if it had correctly followed the integration instructions and other usage manuals.

6. Defensive Programming:

   PayBy strongly advises to use “defensive programming” when integrating with the Services. This implies for example that automated decisions programmed into the systems of Merchant should be defaulted to non-delivery of products and services. E.g. program your systems only to deliver products or services after receiving an express authorization of the payment requested and not program you system to deliver in case no explicit rejection is received.

7. Meaning Of Payment Status “Authorised”

   If a payment request receives the status “Authorised” (or similarly worded status), this means the payment transaction is likely to be successful. However, this is not 100% certain. Payment may still be blocked or subject to Chargeback by the Account Holder (where Chargeback is possible under the relevant Scheme Rules). The likelihood of a payment marked as “Authorised” being blocked or unsuccessful depends on the Payment Method which is used. For example, for direct debit transactions this risk is significant because in most cases the status “Authorised” only means the Account Holder’s bank account exists and not that there are enough funds on the bank account to actually perform the payment.

8. Changes To Software:

   • PayBy reserves the right to change or amend the Software and the interface to it at any time, to provide the Merchant with a new version thereof, and/or to change the functionalities and characteristics of the Software. No changes will be implemented by PayBy which materially reduce functionality of the Services which was explicitly committed to be provided under the Merchant Onboarding Form, except where this is made necessary by: (i) the need to follow generally accepted changes in industry standards, (ii) changes in applicable laws or Scheme Rules, (iii) the need for increased security due to security risks identified by PayBy (iv) other reasonable grounds which warrant the reduction of functionality. If Merchant is significantly impacted by a material reduction of functionality due to a change in the Software, it may terminate the Merchant Onboarding Form by giving written notice to PayBy within one month after PayBy announced the change.

   • PayBy will announce material changes to the API Interface for the Merchant where reasonably possible at least 12 months in advance to allow Merchant to prepare for any impact. PayBy endeavours to minimise changes to the API Interface. Shorter notice periods may have to be made to comply with applicable laws, changes in requirements from Acquirers or Scheme Owners or the need for increased security due to security risks identified by PayBy.

9. Security Of Payment Details:

   • Merchant guarantees not to copy, capture or intercept Payment Details such as credit card numbers, CVM Codes, ‘PIN’ codes that are entered on the Hosted Payment Page or on the POS Terminal. This rule is imposed by the Scheme Owners to protect Account Holders against misuse of their Payment Details (like credit card numbers) and is strictly enforced by the Scheme Owners, and a violation of this rule can lead to the application of high Fines by the Schemes Owners. If PayBy has reason to believe that Merchant is copying, capturing or intercepting Payment Details, PayBy has the right to suspend processing of Transactions and Settlement. Merchant shall fully indemnify and hold PayBy harmless from any losses, claims (including applied Fines by the Scheme Owners), costs or damage PayBy incurs as a result of Merchant’s breach of this obligation.

Customer Support:

Service level Agreement:

1. Uptime Commitment Payment Interface:

   • PayBy commits to use all commercially reasonable efforts to achieve an average minimum uptime of 99.5% (measured on a quarterly basis) of the Payment Interface, to receive Transaction requests, excluding from the uptime calculation any downtime of the Payment Interface caused by acts or omissions of Merchant, Acquirers or Scheme Owners, changes implemented on specific Merchant request, general internet failures, failures of individual Payment Methods or force majeure. Merchant is obliged to immediately notify PayBy of any downtime of the Payment Interface which it experiences and to provide all reasonably requested co-operation in investigating and resolving any such downtime.

   • PayBy uses all reasonable efforts to avoid having to take the Payment Interface offline for executing planned maintenance. Should under exceptional circumstances such maintenance nevertheless prove necessary, PayBy will provide as much notice as practically possible and plan such maintenance in a manner and on a date and time to minimize the potential number of affected potential Transactions for all its Merchants. Should under emergency situations (e.g. in case of force majeure event or terrorist attack) unplanned maintenance be necessary to the Payment Interface necessitating it to be taken offline, PayBy will use all available resources to keep the required downtime to the absolute minimum.

2. Security And Compliance:

   PayBy takes reasonable measures to provide a secure payment system and shall keep its systems used to provide the Services PCI-DSS certified.

3. Backoffice Maintenance:

   Planned maintenance to the back office of PayBy’s payment processing system (the Customer Area) will happen in the standard weekly maintenance window on Tuesdays 10:00 – 11:00 hours GST or at other times as determined by PayBy and communicated to Merchant. The Customer Area may be temporarily not available during planned maintenance. As specified above back-office maintenance will only in exceptional circumstances affect the availability of the Payment Interface for accepting Transactions.

Chargebacks and refunds:

1. Chargeback Liability:

   • Many Scheme Owners, and in particular including most Scheme Owners issuing Credit Cards allow Account Holders to Chargeback Authorised and Settled Transactions by requesting a Chargeback from the Scheme Owner or the Issuing Bank. Merchant’s receipt of a Settlement and/or Authorisation confirmation regarding a particular Transaction therefore does not unconditionally entitle Merchant to receive Settlement of the Transaction amount or to keep the Settled amount, as in case the Account Holder claims a Chargeback in accordance with the relevant Scheme Rules, Merchant loses entitlement for the relevant amount and must return it via PayBy to the Account Holder. Please check the relevant Scheme Rules to see which Payment Methods allow Chargebacks and what procedures apply. PayBy credits a Merchant with Settlement amounts on the condition that no Chargeback shall occur. If there is a Chargeback, PayBy is authorized to adjust or set-off that credit form any other amount with PayBy, due to PayBy or becomes due to PayBy in future.

   • Scheme Owners and PayBy do not accept Merchant generating excessive levels of Chargebacks as Chargebacks are an indication of Merchant’s inability to provide the Merchant Products and Services in accordance with Account Holder expectations and create additional work and costs for all parties involved (including Scheme Owner, the Issuing Bank and PayBy). If Chargeback levels of the Transactions of the Merchant for a specific Payment Method are above levels acceptable for PayBy and/or the relevant Scheme Owner for that Payment Method or are expected to become above unacceptable levels, PayBy reserves the right to suspend the availability of said Payment Method in its discretion.

   • In general Merchant should take into account that a Chargeback level of more than 0.5% of the total volume of Transactions which is Authorised, is considered unacceptable for PayBy and most Scheme Owners and can lead to suspension of Transaction processing for the relevant Payment Method and/or Fines being applied (for which Merchant will be responsible). For some Payment Methods higher or lower tolerances for Chargeback levels may apply, please check the relevant then current version of the relevant Scheme Rules for this (see Customer Area for more information). Please note that the relevant Scheme Owner, Acquirer and/or PayBy not taking immediate action in case of excessive Chargeback levels occurring cannot be interpreted as consent or a waiver of related rights by PayBy, the relevant Acquirer or Scheme Owner.

   • Merchant may not provide Refunds to an Account Holder for a previously processed Transaction using a different Payment Method than the method used for the original Transaction. The original Transaction can in such case still be subject to Chargeback by the Account Holder or Issuer, causing the Merchant having to refund the received funds twice. This is a well-known method to make fraudulent use of stolen Credit Cards at the expense of Merchants.

   • The Merchant acknowledges that excessive instances of refunds, Customer complaints, or returns are indicative of potential shortcomings in the Merchant's ability to provide its products and services in accordance with Customer expectations. Such excessive occurrences place undue burdens on all involved parties, including but not limited to PayBy, the Scheme Owners, and the Issuing Bank, due to the additional work and associated costs. Therefore, PayBy and the Scheme Owners do not accept an overabundance of these instances. The Merchant agrees to take all necessary steps to minimize such events and to promptly address any related issues that arise. Failure to do so may result in the imposition of penalties, up to and including termination of the agreement. The Merchant further agrees to indemnify and hold PayBy harmless from any losses, damages, liabilities, costs, or expenses incurred as a result of excessive refunds, Customer complaints, or returns. This clause is binding and shall survive the termination of the agreement for any reason.

   • In case PayBy has reasons to suspect that Merchant is not delivering its Merchant Services or Merchant Product on or prior to the Delivery Dates used to calculate the Uncompleted Order Amount and/or if PayBy has reason to suspect that the Merchant Products or Merchant Services for which PayBy processes Transactions are based on fraud, likely to cause high Chargeback volumes and/or illegal, PayBy has the right to suspend Settlement of all related Transactions and/or block Authorisations therefor until PayBy has been given assurances to its satisfaction that the relevant Merchant Products and Services are actually delivered in accordance with applicable laws and orders placed by the Account Holder.

2. Chargeback Fee:

   For every Chargeback, a non-refundable Chargeback Fee will be charged to the Merchant as set out in the Merchant Onboarding Form.

3. Chargeback Payment:

   For every Chargeback where PayBy is obliged to pay the Chargeback amount, Merchant gives PayBy authority to deduct the same amount from the Merchant Settlements or where the Settlement amount is too low, from the Deposit.

4. Chargeback Period:

   As Chargebacks may arise a considerable period after the date of the relevant Transaction, the Merchant acknowledges and agrees that, notwithstanding the termination of the Merchant Onboarding Form for any reason, PayBy shall remain entitled to recover Chargebacks and Chargeback Fees and related Fines from the Merchant in respect of all Chargebacks that occur in relation to Transactions effected during the term of the Merchant Onboarding Form.

5. Refund Charges:

   • Refunds will be charged as a Transaction by PayBy and a Refund fee can be applied by PayBy after giving prior notice to Merchant, if manual intervention is needed or additional costs are incurred by PayBy to process such Refund.

   • PayBy will not execute a Refund (meaning the relevant sum will not be returned by PayBy to the relevant Account Holder, directly or via the relevant Acquirer / Scheme Owner) in case the funds for this cannot be subtracted from the next Settlement. Refunds are not funded by PayBy from the Deposit (as the Deposit is not calculated taking Refunds into account) or funded from its own means. On Merchant’s request an additional deposit specifically for funding Refunds may be created with PayBy to ensure the immediate execution of Refunds, irrespective of then current Settlement amounts.

6. No Refund of Fees:

   Fees charged for executing the original Transaction will not be refunded in part or in whole to the Merchant if the Transaction is Refunded or made subject to a Chargeback.

Property Rights:

Confidentiality, Privacy and Compliance:

1. Confidentiality:

   • All information relating to the Merchant or to PayBy and designated as being confidential, and all information not expressly designated as confidential but which should reasonably be deemed confidential by reason of its nature or content, is considered “Confidential Information”. Each party remains the owner of all data made available to the other party. Merchant acknowledges that the terms of the Merchant Onboarding Form and any information provided by PayBy on its Services (including communications from PayBy’s support functions) are Confidential Information.

   • Each party undertakes to take all necessary steps to protect the confidential nature of all Confidential Information of the other party, agreeing, in particular:

     • to share Confidential Information solely with personnel and representatives of the parties which have a need to have access to such information in order to exercise rights and obligations under the Merchant Onboarding Form; and

     • to refrain from making any Confidential Information available to any third party without the prior written consent of the other party except for PayBy where necessary to perform the Services.

   • The obligation to maintain confidentiality does not apply to information:

     • available to the general public;

     • disclosed to one of the parties by a third party without any obligation of confidentiality;

     • already in the possession of or known to one of the parties at the time of disclosure;

     • developed independently of the Confidential Information by the other party; or

     • if and to the extent to one of the parties and/or their employees are obliged under an act or by decision of a court or administrative authority to disclose such information.

   • The obligation of confidentiality as described in this clause shall remain in effect also following the termination of the Merchant Onboarding Form, regardless of the grounds for termination.

   • The following data is to be considered confidential, without need for special mention:

     • all financial data;

     • any agreed Merchant specific terms and conditions in the Merchant Onboarding Form, if applicable; and

     • all user manuals, guides and any Software relating to PayBy’s products and services.

2. Privacy:

   Where PayBy processes personal data while performing the Services they will act as data processor under the direction and responsibility of the Merchant in accordance with applicable data protection laws and regulations of UAE. Merchant will comply with the personal data protection laws of the Merchant’s country of origin and of those countries in which the Merchant offers its goods and/or services from time to time, in particular when processing and sending personal data to PayBy in the context of using the Services and submitting transactions. Merchant shall implement appropriate technical and organisational measures to protect personal data against misuse.

3. Compliance:

   The Merchant’s use of the Hosted Payment Page is PCI compliant under PayBy’s PCI DSS certification for the Hosted Payment Pages subject to Merchant complying to these Terms.

Duration and Cancellation:

1. Duration:

   Except where explicitly agreed otherwise in the Merchant Onboarding Form, the Merchant Onboarding Form is entered into for an indefinite period until it is terminated by either party by giving at least two (2) months’ written notice to the other party.

2. Termination:
   • Merchant has the right to terminate the Merchant Onboarding Form immediately if:

     • The Service availability in any given calendar month is less than 85%; and/or

     • The SLA commitments in these Terms are not met during two consecutive quarters.

   • PayBy has the right to terminate the Merchant Onboarding Form and/or stop the processing or Settlement of Transactions for Merchant immediately in part or in whole if:

     • The provision of Merchant’s Services/Products is reasonably suspected by PayBy to be in breach with legislation in the country where the Merchant Services/Products are offered from or to;

     • Merchant has materially changed the type of Merchant Services or Merchant Products without obtaining PayBy’s prior written permission to use the Services for the new or changed types of Merchant Services or Merchant Products;

     • Merchant materially breaches any of the terms of the Merchant Onboarding Form, the Scheme Rules and/or applicable laws in the context of using the Services;

     • An Acquirer or Scheme Owner demands PayBy to terminate or suspend providing Services to Merchant with respect to Payment Methods made available by such Acquirer or Scheme Owner to PayBy; or

     • PayBy finds there are clear indications that Merchant is, or is likely to become insolvent and/or unable to provide a material part of the Merchant’s Products and/or Services.

     • PayBy retains the unilateral right to terminate this agreement, inclusive of the Merchant Onboarding Form and associated Terms, without any liability, should the Merchant remain inactive for a period of three (3) months (Non-Usage). The determination of inactivity and the decision to terminate the agreement rest solely at the discretion of PayBy.

Liability:

1. No Liability For Scheme Owners And Third Party Acquirers:

   PayBy shall only be liable for its own acts or omissions and not for acts or omissions of third parties. This exclusion expressly applies to acts or omissions of Scheme Owners and Acquirers or for events or activities originating outside the systems of PayBy (such as internet disturbances or malfunctions in third party systems), except in case such events were caused by the intent or gross negligence of PayBy.

2. Limitation Of Liability:
   • The total liability of PayBy under the Merchant Onboarding Form towards Merchant for breach of contract, tort or under any other legal theory in any calendar year is limited to an amount equal to the total Processing Fees paid by the Merchant to PayBy during the previous three months.
   • PayBy shall not be liable for breach of contract, tort or under any other legal theory for any loss of profit, business, contracts, revenues or anticipated savings, or damage to good name; or for any special, indirect, or consequential damages.
   • Neither PayBy nor any other party to the Merchant Onboarding Form excludes or limits its liability under the Merchant Onboarding Form for intent, gross negligence, death, fraud or personal injury.

Indemnification and Fines:

1. If any claims for damages, costs and expenses are asserted against Merchant by third parties asserting that these third parties are the owner of any rights regarding the Software and/or systems of PayBy, PayBy shall indemnify Merchant without delay from these third-party claims, including Merchants reasonable costs of its legal defence, and offer Merchant the necessary assistance in its legal defence.

2. Merchant shall indemnify and hold PayBy harmless from any claim (including legal fees) brought against PayBy by any third party (expressly including Scheme Owners and Acquirers and their claims for payments of Fines) as a result of Merchant’s breach of the terms of the Merchant Onboarding Form, applicable laws and/or the Scheme Rules applying to the Payment Methods used by Merchant.

General provisions:

1. Transfer:

   PayBy shall be entitled, at any time, to assign, novate or otherwise transfer the Merchant Onboarding Form to another company in the PayBy group or its affiliates without the prior consent of the Merchant by providing written notice to Merchant of such transfer.

2. Null Provisions:

   In the event that any provision in the Merchant Onboarding Form (including these Terms) is declared null and void or inapplicable, said provision shall be deemed non-existent, and all other provisions of the Merchant Onboarding Form (including these Terms) shall remain applicable. The parties undertake to take all steps to eliminate the provision declared null and void and/or inapplicable and to replace the same with a provision approaching, insofar as possible, the economic objective of the provision declared null and/or inapplicable.

3. Entire Agreement:

   The Merchant Onboarding Form and these Terms contains all the commitments between the parties and replaces all other prior contractual commitments between the parties. No representation, warranty or undertaking given by any of the parties to any of the other parties under the Merchant Onboarding Form or these Terms shall be of any force or effect unless expressly reduced to writing and repeated in the Merchant Onboarding Form, and all implied or prior representations, warranties and undertakings are, save to the extent expressly set out in the Merchant Onboarding Form, expressly excluded to the fullest extent permitted by law.

4. Use Of Name of The Parties:
   • The Merchant agrees that its name and standard logo (as published by the Merchant) may be included by PayBy in the PayBy client list on its website and in its sales materials. PayBy shall be entitled to use said list freely in its commercial efforts. Any other use of Merchant’s name, logo or information shall only occur with Merchant’s prior written approval which Merchant may withhold indemnin its discretion.
   • The Merchant may on its website in the section “frequently asked questions”, or in a similar informational section on its website, refer to PayBy as its payment service provider, explaining that this is the reason why the name PayBy may appear on bank statements of the Customer. Merchant may also include an internet link to the website of PayBy in such context. Merchant may not mention PayBy on the home page of its website in any situation. Merchant must in each case also clearly state that Customers of Merchant should not contact PayBy for support or questions regarding payments processed by PayBy for Merchant. Merchant may not use the logo of PayBy anywhere on its website without the prior express written approval of PayBy, which PayBy may refuse or withdraw in its discretion.
5. Changes To These Terms:
   • PayBy may revise the Terms from time to time by giving 7 days written notice to the Merchant via email or a notice in the Customer Area. If the change has a material adverse impact on Merchant and Merchant does not agree to the change, Merchant may give written notice of its objection to PayBy within 7 days after receiving notice of the change. If PayBy receives such notice, PayBy will contact Merchant to discuss the objections of the Merchant. If the Merchant continues to refuse to accept the change and PayBy refuses to withdraw the announced change, Merchant may terminate the Merchant Onboarding Form by giving at least one month written notice to PayBy (such termination notice to be sent at the latest 60 days after Merchant received notice of the change). Merchant is not entitled to object to and shall not have the rights set out in this clause for any change which PayBy implements in order to comply with applicable law or requirements imposed by the relevant Acquirers and/or Scheme Owners. For such imposed changes shorter notice periods may be applied by PayBy as is needed to comply with the relevant requirement.
6. Deviating Terms:

   The applicability of Merchant’s purchasing or other general terms and conditions is expressly rejected. If Merchant accepts a proposal made by PayBy (including a proposed Merchant Onboarding Form) by issuing a separate written statement - for example a purchase order - which refers to the proposal and/or the Merchant Onboarding Form, then additional or deviating terms or conditions contained in or referred to in such separate document shall not apply between the parties unless such deviating terms are explicitly accepted in a written statement issued and signed by an PayBy senior executive who is authorized to sign such written statement as per the policies of PayBy. In any case the terms of the Merchant Onboarding Form as proposed by PayBy, including these Terms shall take precedence over any terms and conditions contained or referred to in any such acceptance document from Merchant.

7. Online Contracting – Written Confirmation:

   In case Merchant has concluded the Merchant Onboarding Form with PayBy via PayBy’s website or via any other online means, PayBy may at any time request that Merchant re-confirms its acceptance of the terms of the Merchant Onboarding Form (including these PayBy Terms) by means of a written document signed by an authorised representative of the Merchant. If Merchant does not comply with such request within 5 days after receiving a request by PayBy to do so (which request may be issued to Merchant via the contact email address submitted by Merchant when concluding the Merchant Onboarding Form), PayBy reserves the right to suspend part, or all of the Services until Merchant has complied with such request.

Settlement of Disputes

1. Dispute Handling:

   The parties undertake to take all steps to reach an amicable agreement to any dispute arising in relation to the validity, interpretation or fulfilment of the Merchant Onboarding Form. This clause is without prejudice to a party’s right to seek interim relief against any other party (such as an injunction) through the competent courts to protect its rights and interests, or to enforce the obligations of any of the other parties.

2. Applicable Law and Jurisdiction:

   The Merchant Onboarding Form and these terms and conditions are solely governed by the England and Wales law to the extent it is not in violation or conflict with any law or regulations of the UAE and excluding the Convention on Contracts for the International Sale of Goods. In the absence of an amicable agreement, any dispute relating to the validity, interpretation or fulfilment of the Merchant Onboarding Form and these Terms shall be submitted to the exclusive jurisdiction of the court of Abu Dhabi Global Market for both contractual and non-contractual claims.