MERCHANT TERMS AND CONDITIONS
Version 6.1 – 20th January 2009
1. Definitions and Interpretation 1.2. Headings are for convenience only and shall not affect the
construction or interpretation of this Agreement.
1.1. The following terms when used in this Agreement or any
document referred to herein shall have the following meaning: 1.3. Unless the contrary intention appears, words in the singular include
the plural and vice versa; words importing the masculine gender
Agreement means this Agreement between Moneybookers include the feminine and neuter and vice versa; references to
and the Merchant as amended from time to time including the persons include bodies corporate, unincorporated associations,
cover pages and any Schedules; partnerships or an authority.
Business Day means any day other than a Saturday or a 1.4. Any phrase introduced by the term "included", "including", "in
Sunday or a public or bank holiday in England; particular" or any similar expression will be construed as illustrative
Confidential Information means any information which is only and will not limit the sense of the words preceding that term.
marked as “Confidential” or “Proprietary” or should be 2. Scope
reasonably expected to be confidential having regard to the
context of disclosure or the nature of the information; without 2.1. This Agreement contains the terms for the provision of services as
prejudice to the generality of the foregoing, the terms of this currently described in clause 4 and such other services as agreed
Agreement as well as business plans, data, strategies, between the parties from time to time.
methods, customer and client lists, technical specifications,
confidential; Use”), available on the Moneybookers Website, as amended from
E-Wallet Payment Service means Moneybookers’ e-wallet shall form a binding part of this Agreement. If (but only to the
based payment service through which a Moneybookers extent that) any provision of these Standard Merchant Terms and
is facilitated through the use of the Moneybookers Website or
a payments gateway integrated into the Merchant Website or 3. Term
otherwise); 3.1. The Agreement commences on the date of signature of this
Gateway Service means any Moneybookers service using a Agreement (if signed by the parties on different dates, the later
payment gateway integrated into (but not necessarily hosted date) or such other date as specified in this Agreement.
on) the Merchant Website for receiving payment instructions 3.2. Subject to earlier termination under clause 16 or under the Terms
from a customer; of Use, this Agreement will continue in full force and effect unless
Manual means any of the technical manuals applicable to the and until either party terminates by giving the other party at least 3
Moneybookers Services, including but not limited to the week’s written notice.
Moneybookers Gateway Manual and the Automated 4. Description of Services
Payments Interface Manual, each as amended from time to
time and published on the Moneybookers Website; 4.1. Moneybookers’ E-Wallet Payment Service and Gateway Service
facilitate the execution of payments from a customer to the
Merchant Account means the Merchant’s registered Merchant. Any payment monies collected from customers and
electronic money account (or several such accounts) held with received by Moneybookers shall be transferred into the Merchant
Moneybookers in accordance with Moneybookers’ general Account immediately after deduction of any fees due to
Merchant Website means the website operated by the 4.2. The Merchant is aware that the receipt of a payment into the
Merchant (as amended from time to time); Merchant Account does not amount to the receipt of cleared funds.
Moneybookers Services means any services provided by The Merchant remains liable to Moneybookers for the full amount
Moneybookers under this Agreement, including the E-Wallet of the payment and any fees deducted therefrom (the “Reversal
Payment Service, the Gateway Service and any other service Amount”) if the payment is later reversed for any reason. In case
as agreed between the parties from time to time; of such a payment reversal, Moneybookers will first debit the
Merchant Account with the Reversal Amount and any applicable
Moneybookers Website means the website operated by third party chargeback or reversal fee. If Moneybookers is unable
Moneybookers (as amended from time to time) for the to fully recover the Reversal Amount and the applicable third party
provision of its services, currently accessible at chargeback or reversal fee from the Merchant Account (including
http://www.moneybookers.com, excluding any external any monies transferred into it after the payment reversal), it
websites to which the website points by way of hyperlink or reserves the right to invoice the Merchant for the unrecovered
Regulatory Requirements means any law, statute, 4.3. Moneybookers reserves the right to suspend, at any time and at its
regulation, order, judgement, decision, recommendation, rule, sole discretion, the Merchant Account (or certain functionalities
policy or guideline passed or issued by parliament, thereof such as uploading, receiving, sending and/or withdrawing
government or any competent court or authority or any funds) if transactions are made which Moneybookers in its sole
payment system (including but not limited to bank payment discretion deems to be (i) made in breach of this Agreement or (ii)
systems, card payment systems such as Visa, MasterCard, are suspicious with regards to money laundering, terrorism
American Express etc, or any other payment, clearing or financing, fraud or other illegal activities. Moneybookers will make
settlement system or similar arrangement that is being used reasonable efforts to inform the Merchant of any measure unless
for providing the services hereunder); Moneybookers is prohibited from doing so by law or under an order
from a competent court or authority.
Reserve means such amount or percentage of the balance of
the Merchant Account as determined by Moneybookers in 4.4. The Merchant acknowledges and agrees that the Moneybookers
accordance with clause 6 for the purpose of securing claims service operates solely as a payment intermediary and that
by Moneybookers against the Merchant. Moneybookers (i) under no circumstances functions as a seller,
buyer, dealer, middleman, retailer, auctioneer, supplier, 5.8. Upon commencement of the Agreement and at any time thereafter
distributor, manufacturer, broker, agent or merchant of any for purposes of complying with Regulatory Requirements, the
product or service being ordered, obtained or procured by any Merchant shall provide Moneybookers with such information about
funds processed through its services; and (ii) makes no its business, corporate structure and constitution, shareholders,
representations or warranties and does not ensure the quality, partners, members, directors, key employees or, in the case of a
safety or legality of any product or service purchased with trust, its beneficiaries. In particular, the Merchant shall inform
funds received through the Moneybookers Services. Moneybookers in writing of any changes to its business model or
the goods or services it sells or distributes if such change is or can
4.5. The Merchant acknowledges and agrees that any dispute reasonably expected to be relevant with regards to compliance
regarding any product or service purchased or procured by with Regulatory Requirements. Without applying the liability limits
any funds requested or received through the Moneybookers contained in clauses 13.1 and 13.2, the Merchant shall indemnify
Services or any transaction involving the Moneybookers Moneybookers against all losses arising out of the Merchant’s
Services is between the sender and receiver of the funds failure to notify Moneybookers of any such changes that are
and/or the supplier and receiver of the goods or services. Any relevant for compliance with Regulatory Requirements applicable
transaction connected with the products and services offered to Moneybookers or the Merchant.
by the Merchant shall only obligate the Merchant.
Moneybookers shall not be a party to any resulting dispute 5.9. The Merchant shall clearly disclose on the Merchant Website its
including but not limited to disputes over performance and refund policies regarding the goods and services it offers to
liability issues relating to the delivery, quality, quantity or use customers.
of the products and services offered by the Merchant. Without
applying the liability restrictions contained in clauses 13.1 and 5.10. The Merchant shall not charge its customers a processing fee,
13.2 of the main body of the Agreement, the Merchant shall markup or other surcharge for making payments through the
fully indemnify Moneybookers against any claim by third Moneybookers Services.
parties relating to the use of the products and services offered 5.11. The Merchant shall provide its customers with a clear and fair
and shall reimburse Moneybookers in full for the costs of any return and refund policy. Upon request, the Merchant shall provide
legal defence. to Moneybookers a copy of its return and refund policy and shall
5. Obligations notify Moneybookers of any subsequent change to such policy.
5.1. Moneybookers shall make available to the Merchant and its 6. Reserve
current and prospective customers the Moneybookers 6.1. For the purposes of establishing a Reserve, Moneybookers
Services as specified in this Agreement and as further reserves the right to prevent a certain amount of funds from being
described on the Moneybookers Website. withdrawn from the Merchant Account or used for payments to
5.2. The Merchant shall open and maintain a Merchant Account by third parties. The amount of the Reserve (either expressed as an
registering as a merchant on the Moneybookers Website. As absolute amount or as a percentage of past payments into the
part of the registration process, the Merchant will have to Merchant Account), shall be determined by Moneybookers at any
Moneybookers account. These Terms and conditions shall of the imposition of a Reserve and its amount as well as any
form part of the Agreement as set out in clause 2.2. increase or reduction of the Reserve without undue delay.
5.3. The Merchant shall integrate the Moneybookers Services into 6.2. Without restricting Moneybookers’ discretion under clause 6.1,
the Merchant Website and operate the same in accordance Moneybookers may take into account, amongst others, the
with the relevant Manuals, as notified to the Merchant from following factors when determining the amount of any Reserve:
time to time. 6.2.1. The Merchant ceases its business or a substantial part
5.4. The Merchant grants Moneybookers the right to access the thereof;
Merchant Website for the purpose of conducting manual 6.2.2. The Merchant materially alters the nature of its business;
checks or automated searches in order to investigate the
accuracy of information contained on the Merchant Website in 6.2.3. The Merchant’s business activities carry a higher than
relation to the Moneybookers Services, provided that (i) normal risk of chargebacks or other reversals of costumer
Moneybookers shall be under no obligation to conduct such payments;
searches or checks and (ii) any such searches shall under no
circumstances be deemed an approval of any contents of the 6.2.4. The Merchant’s overall financial standing;
Merchant Website. 6.2.5. The Merchant becomes insolvent or is otherwise unable to
5.5. The Merchant shall enable the login restriction tools offered in pay debts as they fall due;
the “Merchant Tools” section of the Moneybookers Website 6.2.6. Moneybookers receive a disproportionate number of
for both the Automated Payment Interface and the Merchant customer complaints, chargebacks or other payment
Account login through the Moneybookers Website. The reversals, fines, penalties or other liability related to the
Merchant shall further restrict any login to its Merchant Merchant Account; or
Account to only one or a range of IP addresses. If the
Merchant has registered more than one Merchant Account, 6.2.7. Moneybookers reasonably believes that the Merchant will
the foregoing shall apply to all Merchant Accounts. not be able to perform its obligations under this Agreement.
5.6. Without prejudice to payments prohibited under the Terms of 6.3. The Merchant agrees to provide Moneybookers, upon reasonable
Use, the Merchant shall not receive payments as request and at the Merchant’s expense, with information about its
consideration for the delivery of tobacco products, prescription financial and operational status, including the most recent financial
or non-prescription drugs, pornographic content or services, statements. The Merchant shall also undertake, at its own
illegal downloads or goods or services infringing intellectual expense, any further action (including executing any necessary
property rights of a third party, or for any other goods or documents and registering any form of document reasonably
services the offering or provision of which is illegal under required to establish such form of security as reasonably required
applicable law. by Moneybookers).
5.7. The Merchant shall co-operate with Moneybookers to 6.4. If required by Moneybookers, the Merchant shall pay such
investigate any suspected illegal, fraudulent or improper amounts into its Merchant Account as reasonably determined by
activity. Moneybookers to fund an initial Reserve or to react to unforeseen
increased risks of payment reversals that is not covered by the
Merchant Account’s then current balance.
6.5. Notwithstanding any of the foregoing, where a Merchant Agreement with immediate effect by giving written notice to the
incurs a negative balance on his Merchant Account or Merchant.
becomes otherwise liable for the repayment of monies, the
Merchant shall be obliged to make good such negative 10. Change of Terms and Conditions
balance and make a corresponding payment to This Agreement is subject to change from time to time. Changes
Moneybookers within 7 days of Moneybookers written request may be made by mutual agreement between the parties, or by
or demand for such payment. In respect of overdue payments, notice from Moneybookers to the Merchant under the following
Moneybookers has the right to charge interest in the amount procedure:
of 4% above the base lending rate of Lloyds TSB Bank per
year (accruing daily). 10.1. Moneybookers shall give the Merchant notice of any proposed
change to this Agreement (a “Change Notice”).
10.2. A Change notice may be given by letter to the current or last
Each party warrants and represents to the other party that: known trading address of the Merchant or the Merchant’s
7.1. it has and will maintain all required rights, powers and registered office or by email to any of the emails registered with the
authorisations (in the case of Moneybookers the FSA Merchant Account.
authorisation) to enter into this Agreement and to fulfil its 10.3. The proposed change shall come into effect on the 60th day after
obligations hereunder; the date of the Change Notice, unless the Merchant gives written
7.2. it will perform its obligations hereunder with reasonable skill notice to Moneybookers that it objects to the proposed changes,
and care; and provided that such notice is given within 15 days of the date of the
Change Notice (an “Objection Notice”).
7.3. it has in place and will maintain adequate facilities (including
staff training, internal controls and technical equipment) to 10.4. Unless the parties agree otherwise, a Merchant’s Objection Notice
comply with its data protection and confidentiality obligations shall be deemed to constitute a notice to terminate this Agreement
hereunder. effective on the date immediately before date on which the
proposed change would otherwise come into effect under clause
8. Additional Merchant Warranties 10.3.
The Merchant warrants and represents that: 11. Taxes
8.1. the goods and/or services that are made available to It is the Merchant’s responsibility to determine which, if any, taxes
customers comply with applicable law in any jurisdiction in or apply to the payments received, and to report and remit the correct
to which Merchant is making its goods and/or services tax to the appropriate tax authority. Moneybookers is not obligated
available and that the Merchant has at all times all requisite to determine whether taxes apply, and is not responsible to collect,
licences and permits in place to engage in the advertising and report, or remit any taxes arising from any transaction.
provision of its goods and/or services.
12. Intellectual Property
8.2. it is not receiving funds in connection with any illegal,
fraudulent, deceptive or manipulative act or practice and that 12.1. For the duration and the purpose of this Agreement, the parties
the Merchant is not sending or receiving funds to or from an grant each other a non-exclusive, worldwide, royalty-free, non-
illegal source. transferable licence to copy, use and display any logo, trademark,
trade name or other intellectual property owned by or licensed to
9. Fees the other party.
9.1. The fees for the Moneybookers Services are as set out in the 12.2. Any use, adaptation or amendment of intellectual property (except
cover pages or the Fee Schedule. Unless otherwise indicated, for non-material adaptation or amendments necessitated by the
fees are quoted in Euro. use for a particular purpose as contemplated by the parties) shall
be subject to prior approval by party licensing the intellectual
9.2. Unless otherwise stated, a chargeback fee of €25 per property in question.
chargeback of credit or debit card transactions applies,
regardless of whether the chargeback is subsequently 12.3. Except as expressly stated, nothing in this Agreement shall grant
challenged or reversed. Unless otherwise stated, a or be deemed to grant to any party any right, title or interest in any
chargeback fee of €7 per chargeback of direct debits applies, logos, trademarks, trade names or other intellectual property
regardless of whether the chargeback is subsequently licensed to that party by the other party.
challenged or reversed.
12.4. In using the other party’s intellectual property (or intellectual
9.3. Fees are quoted exclusive of Value Added Tax. In case Value property licensed to that other party by a third party), each party
Added Tax or any other sales tax is or become chargeable, shall follow the other party’s reasonable instructions having regard
Moneybookers will add such tax to the amount payable but to the purpose of such use under this Agreement and the
shall, where required, provide information on the net amount, jurisdiction in which the other party’s intellectual property is used.
the amount of tax and the tax rate applied.
12.5. Each party warrants and represents that it owns or has the right to
9.4. Any fee is payable by the Merchant shall be deducted from use and sub-licence any intellectual property which it uses or
the Merchant Account balance. If the Merchant Account licenses for use to the other party.
balance is insufficient, or the Merchant Account balance
becomes negative, Moneybookers reserves the right to 12.6. Moneybookers reserves the right at any time and in its sole
invoice the Merchant for any shortfall. discretion to require the Merchant by notice in writing to stop
displaying, distributing or otherwise making use of the intellectual
9.5. The fees are subject to change pursuant to clause 10. property licensed to Moneybookers by a third party within two
Business Days from the date of such notice.
9.6. Where Moneybookers is unable to deduct any fees or other
monies payable by the Merchant from the balance of the 12.7. Without applying the liability restrictions contained in clauses 13.1
Merchant Account Moneybookers shall issue an invoice for and 13.2, each party (the “Indemnifying Party”) shall indemnify
the amount owed. Invoices are payable within 15 days of the and hold harmless the other party and its employees and directors
date of the invoice. In case of overdue payments, (the “Indemnified Party”) for and against any and all claims,
Moneybookers reserves the right to (i) charge interest in the losses, liabilities, costs expenses or damages (including
amount of 4% above the base lending rate of Lloyds TSB reasonable legal fees) incurred by reason of any claim, demand,
Bank per year (accruing daily); and/or (ii) terminate this lawsuit or action by a third party (other than an employee or
director of the Indemnified Party) resulting from an actual or
alleged infringement of any third party intellectual property 13.6.1. Merchant’s hardware, software or internet connection is not
right in connection with material provided by the Indemnifying functioning properly;
13.6.2. any suspension or refusal to accept payments which
12.8. The indemnity under clause 12.7 shall only be available if the Moneybookers has reason to believe to be made
Indemnified Party: fraudulently or without proper authorisation;
12.8.1. uses reasonable efforts to notify the Indemnifying Party 13.6.3. the payment instructions received contain incorrect or
of such claim as early as possible and in writing; improperly formatted information; or
12.8.2. uses reasonable efforts to mitigate the loss or amount 13.6.4. unforeseen circumstances preventing the proper
of the claim; performance despite any reasonable precautions taken by
Moneybookers. Such circumstances may include, but are
12.8.3. refrains from admitting any liability or settling any claim not limited to acts of god, power outages, fire, flood, theft,
without the prior written consent of the Indemnifying equipment breakdowns, hacking attacks, internal
Party; and mechanical or systems failures as well as downtimes of the
12.8.4. provides, at its own cost, reasonable co-operation in the Moneybookers website.
defence or settlement of such claim. 14. Confidentiality
13. Liability 14.1. During the term of this Agreement and thereafter, each party shall
13.1. Neither party shall be liable in contract, tort (including use and reproduce the other party’s Confidential Information only
negligence or breach of statutory duty) or otherwise for any for purposes of this Agreement and only to the extent necessary
indirect or consequential loss or damage of any kind including for such purpose and will restrict disclosure of the other party’s
punitive or exemplary damages or for any loss of profit or loss Confidential Information to its employees, consultants or
of contract, loss of goodwill or reputation, loss of opportunity, independent contractors with a need to know and will not disclose
loss of revenue or third party loss whether foreseeable or the other party’s Confidential Information to any third party without
otherwise. the prior written approval of the other party.
13.2. Subject to clauses 13.3, 13.4 and 13.5 and any other clause 14.2. Notwithstanding the foregoing, it will not be a breach of this
explicitly excluding the effect of this clause, the aggregate Agreement for either party to disclose Confidential Information of
liability of each party in contract, tort, negligence or otherwise the other party if required to do so under law or in a judicial or
arising out of or in connection with this Agreement in any governmental investigation or proceeding.
period of 12 months from the commencement date (each a 14.3. The confidentiality obligations shall not apply to information that (i)
“Contract Year”) or any anniversary thereof shall be limited to is or becomes public knowledge through no action or fault of the
the lower of (i) EUR 10,000 or (ii) the total amount of fees other party; (ii) is known to either party without restriction, prior to
received by Moneybookers from the Merchant in the previous receipt from the other party under this Agreement, from its own
Contract Year (or, in the first Contract Year, the fees received independent sources as evidenced by such party’s written records,
to date). and which was not acquired, directly or indirectly, from the other
13.3. Nothing in this Agreement shall operate to exclude or restrict party; (iii) either party receives from any third party reasonably
a party’s liability known by such receiving party to have a legal right to transmit such
information, and not under any obligation to keep such information
13.3.1. for fraud and fraudulent misrepresentation; confidential; and (iv) information independently developed by either
party’s employees or agents provided that either party can show
13.3.2. for death or personal injury due to negligence; that those same employees or agents had no access to the
13.3.3. for payments pursuant to clauses 4.2, 6.5 and 9; Confidential Information received hereunder.
13.3.4. for remittance payments due to the Merchant subject to 15. Data Protection
the provisions of this Agreement; Each party shall process personal data (as defined in the UK Data
13.3.5. for wilful and malicious misconduct; Protection Act 1998) in accordance with Regulatory Requirements.
13.3.6. for damage to real or tangible personal property; 16. Termination
clause 13.6); and Moneybookers may terminate this Agreement immediately:
13.3.8. to the extent that such exclusion or restriction is 16.1.1. if the Merchant files a petition for bankruptcy, becomes
prohibited under applicable law. insolvent, or makes any arrangement or composition with or
assignment for the benefit of its creditors, or a receiver is
13.4. Unless expressly stated otherwise, no indemnity obligation appointed for the Merchant or its business, or the Merchant
under this Agreement shall be subject to the limitations of goes into liquidation either voluntarily (otherwise than for
liability contained in this clause 13. reconstruction or amalgamation) or compulsorily;
13.5. In case of a breach by the Merchant of any of the clauses 5.3 16.1.2. upon the occurrence of a material breach of this Agreement
to 5.9 (inclusive) or 8: by the Merchant if such breach is not remedied within five
(5) business days after written notice is received by the
13.5.1. the liability restrictions of clauses 13.1 and 13.2 shall Merchant identifying the matter or circumstances constituting
not apply; the material breach; or
13.5.2. the Merchant shall indemnify Moneybookers against all
16.1.3. if the Merchant violates or fails to comply with any applicable
third party claims, losses, damages, fines, penalties, law, regulation or any order by a competent court or
arising out of or in connection with such breach; government authority.
provided always that any contributory negligence on
Moneybookers’ part shall be taken into account so as to termination of this Agreement.
reasonably and proportionately reduce the Merchant’s
liability under this clause. 17. Assignment, Third Party Rights
13.6. Moneybookers shall not be liable for any of the following:
17.1. The Merchant may not assign any of its rights under this to the Merchant by sending an email to any of the email addresses
Agreement to a third party without the prior written consent of registered with the Merchant Account.
Moneybookers in its sole discretion.
21. Choice of law and forum
17.2. The Merchant may not out-source the performance of any of
its obligations under this Agreement without the prior written This Agreement and any legal relationship between the parties
consent of Moneybookers, such consent not to be arising in connection with it shall be governed by and construed in
unreasonably withheld. accordance with the laws of England regardless of the venue or
jurisdiction in which a dispute is being determined. Each party
17.3. No person who is not a party to this Agreement shall have hereby irrevocably submits to the non-exclusive jurisdiction of the
rights under the Contracts (Rights of Third Parties) Act 1999 English Courts.
or otherwise to enforce any term of this Agreement.
18. Relationship of the parties
Any waiver of a right under this Agreement shall only be effective if
The Merchant and Moneybookers are independent agreed or declared in writing. A delay in exercising a right or the
contractors under this Agreement, and nothing herein will be non-exercise of a right shall not be deemed a waiver and shall not
construed to create a partnership, joint venture or agency prevent a party from exercising that right in the future (subject to
relationship between them. Neither party has authority to the provisions of the Limitations Act 1980).
enter into agreements of any kind on behalf of the other.
19. Non-solicitation of employees
If any part of this Agreement is found by a court of competent
The Merchant undertakes that it will not for the term of this jurisdiction to be invalid, unlawful or unenforceable then such part
Agreement and a period of six months thereafter on its own shall be severed from the remainder of the Agreement, which shall
behalf or on behalf of any person directly or indirectly continue to be valid and enforceable to the fullest extent permitted
canvass, solicit or endeavour to entice away from by law.
Moneybookers or an Associated Company any person who
has at any time during the term of this Agreement been 24. Entire Agreement
employed or engaged by Moneybookers or an Associated This Agreement including all Schedules and other documents
Company’ means any entity that is controlled by, controls or is to therein, represents the entire agreement of the parties in relation
under common control, directly or indirectly, with to its subject matter. Each party acknowledges that it has entered
Moneybookers; and ‘control’ of any entity or party means into this Agreement in reliance only on the representations,
ownership of a majority of the issued shares or voting power warranties, promises and terms contained in this Agreement and,
of an entity or party or the power to direct or cause the save as expressly set out in this Agreement, neither party shall
direction of the management and policies of an entity or party, have any liability in respect of any other representation, warranty or
whether through ownership of voting securities, by contract or promise made prior to the date of this Agreement unless it was
otherwise. made fraudulently.
20. Notices 25. Variation
writing and delivered either by hand, first class prepaid post or no variation or amendment to this Agreement shall be effective
other recognised delivery service, or by facsimile. unless recorded in writing and signed by the duly authorised
Notwithstanding the foregoing, Moneybookers may give notice representatives of both parties.