YP-ACQ-TNC-REV1-2

Terms & Conditions for Using Yedpay (this “Agreement”)

The Payment Cards Group Limited (“Yedpay”) is a third-party payment processor providing payment processing service(s) (the “Service”).

GENERAL
1. This “Agreement” consists of these Merchant Payment Processing Services Terms & Conditions and the Merchant Application and Signature Page attached hereto (the “Merchant Application”) and is made by and between Merchant and The Payment Cards Group Limited (“Yedpay”), in each case as named in the Merchant Application.
2. Yedpay is an acquirer of Alipay Payment Services (HK) Ltd. (“Alipay”), WeChat Pay Hong Kong Ltd. (“WeChat”), Visa International, Inc. (“Visa”), MasterCard International, Inc. (“MasterCard”), UnionPay International Co., Ltd. (“UPI”) and any other card associations as may be specified by Yedpay and/or its affiliate from time to time (including their respective successors and assigns, collectively, the “Associations”).
3. Under the terms of this Agreement, Merchant will be furnished with the services and products described herein and selected by Merchant herein (collectively and individually, as applicable, the “Services”) with respect to transactions for sale of goods and/or services involving cards issued under the Associations and/or card issuers accepted by Yedpay for the time being (“Payment Transactions”), and such other services as Yedpay and Merchant may agree upon from time to time. Merchant agrees to be bound by this Agreement, as may be modified or amended from time to time.
4. If signed by a firm, the expression “Merchant” shall include the person or persons from time to time carrying on the business of such firm and, if Merchant comprises of two or more persons, the expression “Merchant” shall include all and each of them and their liabilities under this Agreement shall be joint and several.
5. Any reference in this Agreement to “Merchant”, “Yedpay”, or “Depository” shall, if the context permits or requires, be construed so as to include its and any subsequent successors, legal representatives and permitted transferees and assigns in accordance with their respective interests.
6. If the context permits or requires, words importing the masculine gender shall include the feminine and neuter genders, and words in the singular number shall include the plural number and vice versa. Any reference to a “Clause” shall mean a clause hereof.
7. For the convenience of wording in this Agreement, customer and consumer are collectively referred to as “Cardholders”, and individually as “Cardholder”.
SERVICE DESCRIPTIONS
1. Yedpay’ payment processing services, which are provided under this Agreement, consist of:
  - a)
    authorization of Payment Transactions;
  - b)
    electronic draft capture (or collection of sales slips) of Payment Transactions;
  - c)
    outclearing of Payment Transactions to the appropriate Associations and/or card issuers;
  - d)
    settlement of Payment Transactions;
  - e)
    dispute resolution with Cardholders’ banks; and
  - f)
    transaction-related reporting, statements and products.
2. Merchant has elected to accept cards of the card types as specified in the Merchant Application.
3. From time to time under this Agreement, Yedpay may provide certain other types of payment processing services including without limitation payment processing services for transactions effected using mobile wallets, QR codes or cards issued under card associations not expressly set forth herein, subject to the mutual agreement between Yedpay and Merchant and the applicable addendum or supplementary agreements to be entered into between the parties. The Merchant reserves the right to opt-out and not be provided with the certain other types of payment processing services set forth above by sending written notice of the Merchant's decision to opt-out by telefax, by courier, by regular or registered mail, or by e-mail to Yedpay. The written notice must be sent to Yedpay within 30 days after Yedpay's notice, otherwise the Merchant will be provided with the certain other types of payment processing services set forth above and bounded by the mutual agreement between Yedpay and Merchant and the applicable addendum or supplementary agreements to be entered into between the parties.
4. Notwithstanding the foregoing, Yedpay may suspend the payment processing services at any time with immediate effect until further notice upon written notice to Merchant:
  - a)
    upon Merchant’s default in performing under any provision of this Agreement;
  - b)
    upon an unauthorized conversion of all or any part of Merchant’s activity to mail order sales, telephone order sales, Internet-based sales, or to any sales activity where the card is not physically present and processed through Merchant’s terminal;
  - c)
    upon any failure to follow the POS Terminal User Manual or any operating regulation or rule of a Association;
  - d)
    if there has been any misrepresentation by Merchant;
  - e)
    upon commencement of bankruptcy or insolvency proceedings by or against Merchant; or
  - f)
    in the event Yedpay reasonably deems itself insecure in continuing this Agreement.
PROCEDURES
1. Merchant will permit holders of valid cards bearing the symbols of the cards authorized to be accepted by Merchant hereunder to charge purchases or leases of goods and services, provided that such Payment Transaction complies with the terms of this Agreement. Each such transaction will be evidenced by a valid transaction record in an approved form such as a Cardholder-signed POS receipt, invoice, Cardholder-signed proof of receipt and proof of delivery. Merchant will not present any sales slip that does not arise out of a Payment Transaction between a Cardholder and Merchant.
2. Merchant agrees:
  - a)
    to follow the POS Terminal User Manual issued by Yedpay and for the time being in force, which is incorporated into and made part of this Agreement; and
  - b)
    to be bound by the operating regulations and rules of the Associations, including without limitation any rules and regulations related to Cardholder and transaction information security, such as Payment Card Industry (PCI) Data Security Standard, Visa’s Cardholder Information Security Program and MasterCard’s Site Data Protection Program.
  - c)
    to provide a fit and proper, secure, and stable connection of Wi-Fi signal, SIM card signal and other means of data transmission signal which may fit for the best connection of the terminal.
  - d)
    to use its best endeavors to comply with all the relevant regulations issued by relevant regulatory authorities, including but not limited to: the Hong Kong Monetary Authority, the Customs and Excise Department, the Hong Kong Police Force and other regulatory authorities or agencies.
  - e)
    to use the terminal in its registered office or principal place of business only.
3. Merchant shall not provide a cash refund to the Cardholder in all cases. If the refund is ordered, the refund shall be made by the same method as the Payment Transaction by following the instruction given in the POS Terminal User Manual.
4. Merchant shall not divide the Payment Transaction into two or more Payment Transactions.
5. Yedpay may, from time to time, request the evidence of a valid transaction record in an approved form from the Merchant, for the purpose of, including without limitation random check, dispute management, and/or fraud investigation. Merchant shall provide true copy of all evidence indicating that such transaction complies with the terms of this Agreement.
6. Yedpay may, from time to time, issue written directions (via mail, e-mail or Internet) regarding procedures to follow and forms to use to carry out this Agreement. These directions and the terms of the forms are binding as from the effective date specified in such directions and shall form part of this Agreement.
7. Yedpay is responsible for the security of account data that Yedpay possess or otherwise store, process, or transmit on behalf of the Merchant, or to the extent that they could impact the security of the Merchant’s Cardholder data environment.
MARKETING
1. Merchant shall adequately display the Associations and card issuer service marks and promotional materials supplied by Yedpay. Merchant shall cease to use or display such service marks in any way (including, without limitation, in promotional materials and transaction related papers or forms of Merchant) immediately upon notice from Yedpay or upon termination of this Agreement. Merchant shall not issue or dispatch any promotional materials which include any reference to Yedpay or its name, tradename, logo, service mark and/or trademark without its prior written consent.
2. Merchant irrevocably authorizes Yedpay to include its name, tradename, logo, service mark and/or trademark in any directory or promotional materials produced by Yedpay in connection with the acceptance of the payments.
PAYMRNT AND FEES
1. Merchant agrees to pay the fees, charges and expenses described in the Merchant Application, together with any other liabilities or expenses described in this Agreement.
2. Notwithstanding the Merchant Application, Yedpay has full and absolute discretion to modify the fees, charges and expenses while there is change of Yedpay’s internal policy.
3. Notwithstanding the Merchant Application, Yedpay has full and absolute discretion to modify the fees, charges and expenses while there is change of policy in relation to the Association.
4. Yedpay will pay Merchant for Payment Transactions submitted under this Agreement by credit to the account(s) designated by Merchant (the “Merchant’s Account(s)”) or by delivery of a cheque or other negotiable instrument made payable to Merchant or by any other means acceptable to Yedpay. Unless otherwise agreed by Yedpay, Merchant will be paid within the timeframe set out in the Merchant Application for the gross amount of the Payment Transactions submitted less the amount of any discount, fees (including chargeback fees and administrative fees) and other charges (including full amount of the chargebacks and adjustments) set forth in this Agreement and credit vouchers deposited (together with any taxes payable in respect thereof); provided, however, that Yedpay does not warrant payment within this timeframe and the timeframe will be subject to the public holidays (if any), or actual processing time of any correspondent bank and/or recipient bank involved in this payment. If the amount payable to Merchant hereunder is insufficient to pay the outstanding charges described in the preceding sentence on any day and/or any other amount due or payable by Merchant to Yedpay under this Agreement, Yedpay shall be entitled to:
  - a)
    set off and deduct the outstanding amount in whole or in part from any payment due from it to Merchant; and/or
  - b)
    deduct the outstanding amount in whole or in part from subsequent credits to Merchant’s Account(s); and/or
  - c)
    claim from Merchant the outstanding amount in whole or in part.
5. In respect of the above, typically Hong Kong dollar will be used in the calculation of currency amounts of the payment. If the currency in which Cardholders are charged for the Payment Transaction is different from the currency in which the Merchant Account is credited, Yedpay will determine the applicable exchange rate when the currency amount is credited to the Merchant account. Yedpay may offer a higher or lower exchange rate compared to the market exchange rate.
6. Merchant agrees to pay for all fees, arbitration fees, chargeback fees, administrative fees, fines, penalties etc. charged by the Associations. In the event there is any overpayment by Yedpay, Merchant agrees to return the overpayment to Yedpay within 30 days of receipt of invoice from Yedpay.
7. Merchant represents and warrants that no one other than Merchant has any claim in respect of any Payment Transaction submitted hereunder except as authorized in writing by Yedpay. Merchant agrees that Yedpay has the sole right to receive payment from the Associations on any Payment Transactions submitted hereunder.
8. Merchant further represents and warrants that payment by Yedpay shall be without prejudice to any claims or rights which Yedpay may have against Merchant and shall not constitute any admission by Yedpay as to the performance by Merchant of its obligations under this Agreement and the amount payable to Merchant.
9. If Yedpay suspects, on reasonable grounds, that Merchant has committed or is about to commit a breach of this Agreement, any illegal activity (including, without limitation, money laundering) or dishonesty or fraud against Yedpay or any Cardholder, Yedpay shall be entitled to suspend all payments under this Agreement to Merchant pending enquiries by Yedpay, retain all payments due to Merchant under this Agreement or refund all payments by the same method as the Payment Transaction unless (i) Merchant has provided sufficient evidence to prove that Merchant did not participate in any illegal activity, dishonesty or fraud, (ii) Yedpay is reasonably satisfied that Merchant did not participate in any illegal or fraudulent activities and (iii) Merchant has satisfied all of its obligations under this Agreement.
EQUIPMENT AND SUPPLIES
1. Any advertising material, leased or rented equipment (including imprinters, authorization terminals, data capture terminals or printers), software, credit card authenticators, unused forms and Merchant deposit plastic cards provided by Yedpay are for the Merchant’s exclusive use and will not become Merchant’s property, and shall be returned to Yedpay on demand, upon termination of this Agreement or upon Merchant ceasing to do business, whichever is the earliest. Merchant will protect them from loss, theft, damage or any legal encumbrance and will allow Yedpay and its designated representatives reasonable access to Merchant’s premises for their repair, servicing, replacement, removal, modification, installation and relocation.
2. Merchant acknowledges that some equipment provided under this Agreement is embedded with proprietary technology (“Software”). Merchant shall not obtain title, copyrights or any other proprietary right to any Software. At all times, Yedpay or its suppliers retain all rights to such Software, including but not limited to updates, enhancements and additions. Merchant shall not disclose such Software to any party, convey, copy, license, sublicense, modify, translate, reverse engineer, decompile, disassemble, tamper with, or create any derivative work based on such Software. Merchant’s use of such Software shall be limited to that expressly authorized by Yedpay. Yedpay’s suppliers are intended third party beneficiaries of this Agreement to the extent of any terms herein pertaining to such suppliers’ ownership rights; such suppliers have the right to rely on and directly enforce such terms against Merchant.
3. The operating instructions will instruct Merchant in the proper use of the terminals, and Merchant shall use and operate the terminals only in such manner and at the location where they are initially installed (unless otherwise agreed by Yedpay). Merchant will promptly notify Yedpay of any equipment malfunction, failure or other incident resulting in the loss of use of the equipment or need for repair or maintenance, whereupon Yedpay will make the necessary arrangements to obtain required maintenance subject to payment of agreed costs (if any) by Merchant. Merchant shall cooperate with Yedpay in its attempt to diagnose any problem with the terminal.
4. With respect to any item of equipment leased or rented to Merchant by Yedpay, Merchant will not be liable for normal wear and tear, provided, however, that Merchant will be liable to Yedpay in the event that any leased or rented item of equipment is lost, destroyed, stolen or rendered inoperative. Merchant will indemnify Yedpay against any loss arising out of damage to or destruction of any item of equipment provided hereunder for any cause whatsoever. Merchant also agrees to hold harmless and indemnify Yedpay for any liabilities, losses, damages, disputes offsets, counterclaims, claims, demands, actions, costs, expenses and judgments Yedpay may suffer or incur, including reasonable attorney’s fees, as a result of Merchant’s use or misuse of the equipment provided hereunder.
5. All persons using any leased or rented instrument provided by Yedpay to Merchant shall be deemed to be agents of Merchant, and Merchant shall be fully responsible for their acts and omissions.
FINANCIAL INFORMATION
1. Merchant agrees to furnish Yedpay such financial statements, business plans, audited accounts, management accounts, sales and purchase invoices, and other information concerning Merchant, its owners, principals, shareholders, partners, proprietors, directors, officers or its affiliates (collectively, “Representatives”) as Yedpay may from time to time request in order to assess Merchant’s financial position. From time to time, Yedpay may contact Merchant to undertake a review of Merchant’s card processing facility and the risks associated with that facility, including without limitation Merchant’s compliance with the terms of this Agreement, applicable law and Association rules. Merchant must cooperate with Yedpay, its employees, agents or contractors in the review. Yedpay, or its duly authorized representatives, may examine the books and records of Merchant, including records of all transactions previously submitted hereunder and proof that Merchant is in compliance with the Agreement, the POS Terminal User Manual, and the Association rules.
2. Merchant agrees to retain copies of all paper and electronic transaction records and credit slips submitted to Yedpay for a period of 12 months from submission, or such longer period of time as may be required by the operating rules or regulations of the Associations, by law or by Yedpay as specifically requested in writing in individual cases.
CHANGE IN BUSINESS
1. Merchant agrees to provide Yedpay 30 days’ prior written notice of its intent to:
  - a)
    transfer or sell all or any substantial part (25% or more) of its total stock or assets; or
  - b)
    liquidate or file for bankruptcy; or
  - c)
    cease business or change the basic nature of its business; or
  - d)
    convert all or part of its business to mail order sales, telephone order sales, Internet-based sales or other sales where the card is not physically present and processed through Merchant’s terminal; or
  - e)
    remove or relocate any shop or office; or
  - f)
    make any material change in the management of Merchant; or
  - g)
    make any change in Merchant’s legal status (such as from sole proprietorship to partnership or limited company or vice versa); or
  - h)
    make any change in any other material particulars relating to Merchant which have been supplied to Yedpay in connection with this Agreement.
  Upon the occurrence of any such event, the terms of this Agreement may be modified to address issues arising therefrom, including but not limited to requirements of applicable Associations.
TRANSFERABILITY
1. This Agreement is not transferable by Merchant without the written consent of Yedpay. Any attempt by Merchant to assign its rights or to delegate its obligations in violation of this Clause shall be void.
2. Merchant agrees that the rights and obligations of Yedpay hereunder may be transferred by Yedpay to any other person without notice to Merchant. Yedpay may subcontract or appoint any agent to carry out any of its obligations under this Agreement.
WARRANTIES AND REPRESENTATIONS
1. Merchant warrants and represents to Yedpay:
  - a)
    that each Payment Transaction submitted hereunder will represent a bona fide sale to a Cardholder by Merchant for the amount shown on the related transaction record as the total sale and constitutes the binding obligation of the Cardholder, free from any claim, demand, defense, setoff or other adverse claim whatsoever;
  - b)
    that each transaction record or other evidence of a transaction will accurately describe the goods and services which have been sold and delivered to the Cardholder or in accordance with the Cardholder’s instructions;
  - c)
    that Merchant will comply fully with all laws, rules and regulations applicable to it and its business;
  - d)
    that Merchant will fulfill completely all of its obligations to the Cardholder and will resolve any Cardholder dispute or complaint directly with the Cardholder;
  - e)
    that the signature on the sales slip will be genuine and authorized by Cardholder and not forged or unauthorized;
  - f)
    that each Payment Transaction submitted hereunder shall have been consummated and the related transaction record prepared in full compliance with the provisions of the POS Terminal User Manual and the operating regulations and rules of the applicable Association;
  - g)
    that, without limiting the generality of the foregoing, each Payment Transaction submitted hereunder and the handling, retention, and storage of information related thereto, will comply with the rules and regulations of the Associations related to Cardholder and transaction information security, including without limitation those referred to in Clause 3.2;
  - h)
    that all of the information contained in or provided pursuant to this Agreement is true and correct;
  - i)
    that Merchant shall keep strictly confidential the provisions of this Agreement, and all information and materials received from Yedpay in connection with Yedpay’s businesses and instrument provided by Yedpay, and will disclose the same only to such of its employees who require such information for the purposes of performing Merchant’s obligations under this Agreement; Merchant shall not and shall procure that its officers, employees and agents shall not without the prior written consent of Yedpay use or disclose any such information to any other person (except to Merchant’s agents for the sole purpose of assisting Merchant to complete or enforce Payment Transactions or to Merchant’s insurers and professional advisers) unless such disclosure is compelled by law or rules and regulations of the Association;
  - j)
    that Merchant shall not submit any Payment Transaction which is for the supply of crypto-assets, cryptocurrencies, gambling or pornographic goods or services, or any act in relation to a pyramid scheme and to provide for cash advance without the prior written consent of Yedpay;
  - k)
    that Merchant shall not receive any cash payment from a Cardholder with respect to charges for goods and/or services included in a Payment Transaction;
  - l)
    that Merchant shall not engage in acceptance practices or procedures that discriminate against or discourage the use of a card of a card type selected to be accepted by it hereunder in favour of any other competing card brand, and shall not promote any other means of payment more actively than promoting payment with a card of such card type (except for any privilege card issued by Merchant solely for the purpose of making purchases at Merchant or under any temporary promotion programme);
  - m)
    that after due inquiry of its Representatives, neither Merchant nor any of its Representatives is a Government Official, other than as disclosed in writing to Yedpay (for purposes of this Agreement, the term “Government Official” means (i) any officer, employee or representative (including anyone elected, nominated or appointed to be an officer, employee or representative) of any Government Entity or anyone otherwise acting in an official capacity on behalf of a Government Entity (whether paid or unpaid); (ii) any political party, political party official or political party employee; (iii) any candidate for public office; (iv) any royal or ruling family member or (v) any agent or representative of any of those persons listed in subcategories (i) through (v), and the term “Government Entity” means (i) any national, state, regional or local government, and any government agency, department, or instrumentality or political party; (ii) any entity or business that is owned or controlled by any of those bodies listed in subcategory (i); or (iii) any public international organization such as the United Nations or the World Bank); and
  - n)
    that Merchant shall comply with all applicable anti-bribery and anticorruption laws, including without limitation the U.S. Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010 and all applicable local anti-bribery laws (collectively, the “Anti-Bribery Laws”). Merchant shall promptly inform Yedpay of any allegations, investigations, indictments, or convictions against the Merchant or any of its Representatives under any Anti-Bribery Laws. Any violation of applicable Anti-Bribery Laws is a material breach of this Agreement, and notwithstanding any other provision to the contrary and without prejudice of any other rights and remedies, may result in the immediate termination of this Agreement by Yedpay.
2. In the event that any of the warranties or representations in Clause 10.1 are breached, the affected Payment Transactions or transaction records may be refused, or prior acceptance revoked and charged back to Merchant.
3. NEITHER YEDPAY, NOR ANY OF ITS RESPECTIVE SUPPLIERS MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY EQUIPMENT (INCLUDING IMPRINTERS, AUTHORIZATION TERMINALS, DATA CAPTURE TERMINALS OR PRINTERS) OR ANY OF THE SERVICES FURNISHED HEREUNDER.
INDEMNITY
Merchant agrees to satisfy directly with the Cardholder any claim or complaint arising in connection with the Payment Transaction between Merchant and such Cardholder, regardless of whether such claim or complaint is brought by the Cardholder, Yedpay or another party. Merchant agrees to indemnify and hold Yedpay harmless from and against any and all liabilities (including without limitation fines imposed under the operating regulations and rules of the applicable Associations), losses, claims, damages, demands, actions, disputes, offsets, counterclaims, costs, expenses and judgements arising out of or relating to any Payment Transaction (including without limitation claims and complaints made by a Cardholder or any other person or entity with regard to any Payment Transaction submitted by Merchant hereunder) or any other Service provided hereunder.
LIMITATION OF LIABILITY
1. Yedpay shall not be liable for failure to provide the Services if such failure is due to any cause or condition beyond Yedpay’s reasonable control. Such causes or conditions shall include, but shall not be limited to, acts of God or of any public enemy, acts of any Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, shortages of labor or materials, freight embargoes, unusually severe weather, breakdowns, operational failures, electrical power failures, communication failures, unavoidable delays, the errors or failures of third party systems or other similar causes beyond such party’s reasonable control.
2. Under no circumstances shall Yedpay be liable for:
  - a)
    any lost profits, lost interest, or for special, consequential, punitive or exemplary damages arising out of or relating in any way to this Agreement, including but not limited to, damages arising out of placement of Merchant’s name on any terminated merchant list for any reason, even if Yedpay has been advised of the possibility of such damages;
  - b)
    any claim, loss, billing error, damage or expense arising out of or relating in any way to this Agreement which is not reported in writing to Yedpay by Merchant within 30 days of such failure to perform or, in the event of a billing error, within 60 days of the date of the invoice or applicable statement and Merchant expressly waives any such claim that is not brought within the time periods stated herein.
3. Yedpay will not bear any potential business risk, financial risk, transaction risk, chargeback risk and other unpredictable potential risks that may direct or indirect occurred by an unstable network signal connection, an unstable of data transmission, or as a result of other external environment which may affect the connection between the card terminal and the network signal service provider.
TERM AND TERMINATION
1. Subject to the provisions hereof, this Agreement shall remain in full force and effect for the term as specified in the Merchant Application (the “Initial Term”), unless Merchant gives written notice of termination as to this Agreement at least 60 days prior to the expiration of the Initial Term or any extension or renewals thereof. If no term is specified in the Merchant Application, subject to the provisions hereof, this Agreement shall continue in full force and effect until Merchant gives not less than 60 days’ prior written notice to Yedpay to terminate it.
2. Notwithstanding anything to the contrary set forth herein, in the event that a term is specified in the Merchant Application and Merchant terminates this Agreement in breach of this Clause 13, all fees assessed to Merchant under this Agreement and due to Yedpay for the remainder of the then existing term of this Agreement, including all minimum monthly fee commitments, shall be immediately due and payable to Yedpay, and Merchant hereby authorizes Yedpay to accelerate the payment of all such monthly fees and to withhold the total amount from amounts due to Merchant from Yedpay, immediately on or after the effective date of termination. If the amount cannot be withheld by Yedpay from amounts due to Merchant, Merchant shall pay Yedpay the amount due within 10 days of the date of Yedpay’s invoice for same. The payment of accelerated monthly fees as described herein is not a penalty, but rather is hereby agreed by the parties to be a reasonable amount of liquidated damages to compensate Yedpay for its termination expenses and all other damages under the circumstances in which such amounts would be payable. Such amounts shall not be in lieu of but shall be in addition to any payment obligations for Services already provided hereunder (or that Yedpay may continue to provide), which shall be an additional cost, and any and all other damages to which Yedpay may be entitled hereunder.
3. Notwithstanding the foregoing, Yedpay may terminate this Agreement or any portion thereof at any time with immediate effect upon written notice to Merchant. Furthermore, Yedpay may terminate this Agreement at any time without notice:
  - a)
    upon Merchant’s default in performing under any provision of this Agreement;
  - b)
    upon an unauthorized conversion of all or any part of Merchant’s activity to mail order sales, telephone order sales, Internet-based sales, or to any sales activity where the card is not physically present and processed through Merchant’s terminal;
  - c)
    upon any failure to follow the POS Terminal User Manual or any operating regulation or rule of a Association;
  - d)
    if there has been any misrepresentation by Merchant;
  - e)
    if the Merchant remains dormant for more than 180 days;
  - f)
    upon commencement of bankruptcy or insolvency proceedings by or against Merchant; or
  - g)
    in the event Yedpay reasonably deems itself insecure in continuing this Agreement.
4. Termination of this Agreement shall not affect Merchant’s obligations which have accrued prior to termination or which relate to any Payment Transactions submitted hereunder prior to termination, including but not limited to chargebacks even if such chargebacks come in after termination.
5. In the event of termination, all equipment leased or rented from Yedpay (but not from any other leasing agent), including but not limited to imprinters, terminals, data capture terminals and printers; all supplies; POS Terminal User Manual and operating instructions must be returned immediately to Yedpay at Merchant’s expense.
6. Any termination shall not affect any liabilities incurred prior to the termination nor any provision of this Agreement expressed or intended to survive, or to be effective from, termination. In particular, but without prejudice to the foregoing, Clauses 4, 6.1, 6.4, 7, 10.1, 10.2, 11, 12, 13.4, 13.5, 13.6, 14, 15, and 16 shall remain in full force and effect notwithstanding termination.
RETURNED ITEMS/CHARGEBACKS’
1. If:
  - a)
    a Cardholder disputes any Payment Transaction or payment for any Payment Transaction (irrespective of the nature or manner of such disputes); or
  - b)
    a Payment Transaction is charged back for any reason by the card issuing institution according to the operating rules and regulations of the related Association; or
  - c)
    there has been a breach by Merchant of any term of this Agreement;
  - d)
    Yedpay has any reason to believe a transaction previously submitted hereunder is unlawful, unenforceable, irregular, questionable, not genuine, or is otherwise unacceptable;
    and/or
  - e)
    any other event or circumstance, which Yedpay shall have previously notified to Merchant in writing for the purpose of this Clause 14, has occurred in relation to a Payment Transaction,
  the amount of such Payment Transaction may be charged back and deducted from any payment due to Merchant. If any such amount is uncollectible through withholding from any payments due hereunder, Merchant shall, upon demand by Yedpay, pay Yedpay the full amount of the chargeback, all chargeback fees arising out of the chargeback dispute processes, and/or any administrative fees.
2. Merchant understands that obtaining an authorization for any transaction shall not constitute a guarantee of payment and the related sales slips can be returned or charged back to Merchant like any other item hereunder.
SECURITY AND GUARANTEES
1. Yedpay may, at any time, require Merchant to provide guarantees for Merchant’s obligations to Yedpay under the Agreement or to apply special terms or conditions in relation to Merchant’s acceptance of Transactions. Yedpay may, at any time, require Merchant to provide security in such form as Yedpay may, at its discretion, determine (including without limitation the creation of a trust account, a reserve account, a charged account or any other security arrangement, such as security deposit or rolling reserve) and this may include providing for the replacement of existing security. Yedpay may rely on any general guarantees or other security provided to Yedpay now or in the future. The security will not be released until Yedpay deems that Merchant’s obligations have been fulfilled and Yedpay’s exposure with regard to chargebacks, fines or other sums that may be due to Yedpay under the Agreement, has expired.
2. If Yedpay (i) receives any notification of fraud from issuing banks, Associations or otherwise from any law enforcement or governmental agencies with respect to Transactions submitted by the Merchant, or (ii) Yedpay reasonably suspects that Merchant has participated in any manner in any illegal activity (including, without limitation, money laundering) or dishonesty or fraud against Yedpay or any Cardholder, Yedpay shall be entitled to retain all payments due to Merchant under this Agreement (the “Retained Funds”) or refund all payments by the same method as the Payment Transaction unless (i) such notifications of fraud have been revoked by the issuing banks, Associations or law enforcement or other governmental entities, (ii) Merchant has provided sufficient evidence to prove that Merchant did not participate in any illegal activity, dishonesty or fraud, (iii) Yedpay is reasonably satisfied that Merchant did not participate in any illegal or fraudulent activities and (iv) Merchant has satisfied all of its obligations under this Agreement (collectively, the “Release Conditions”). Merchant acknowledges that Yedpay may be obligated to pay all or any portion of the Retained Funds to the issuing banks upon the request of the issuing banks and Yedpay shall have no liability whatsoever to Merchant if it pays the Retained Funds to the issuing banks as requested. Yedpay shall have the sole discretion to dispose the Retained Funds if the Release Conditions are not satisfied.
DEFAULT/SECURITY INTEREST
1. Upon failure by Merchant to meet any of its obligations under this Agreement, any of the amounts due to Merchant from Yedpay may be debited without notice to Merchant, and Merchant irrevocably authorize Yedpay to debit any such amounts for these purposes.
2. Merchant also agrees that, in the event of a default by Merchant, Yedpay has a right of setoff and may apply any of Merchant’s balances or any other monies due to Merchant from Yedpay, including Merchant’s balances or funds due Merchant under any other related merchant agreement, any security arrangement, or any other outlet or business of Merchant, towards the payment of amounts due from Merchant under the terms of this Agreement. The rights stated herein are in addition to any other rights Yedpay may have under applicable law.
CHOICE OF LAW/COLLECTION FEES/JURISDICTION
1. Should it be necessary for Yedpay to defend or enforce any of its rights under this Agreement in any collection or legal action, Merchant agrees to reimburse Yedpay for all costs and expenses, including reasonable collection agency and attorney’s fees, as a result of such collection or legal action.
2. Yedpay shall be entitled to employ outside debt collection agency and/or institution to collect any or all sum due but unpaid by the Merchant and for so doing, the Merchant shall be obliged to fully indemnify Yedpay for all amount of costs and expenses reasonably incurred by Yedpay in employing such outside debt collection agency or institution or its nominated agent and all legal fees and disbursements reasonably incurred by Yedpay in recovery thereof, if any.
3. Yedpay and Merchant agree that this Agreement and all disputes arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”) and Merchant hereby submits to the non-exclusive jurisdiction of the Hong Kong Courts.
AMENDMENTS
This Agreement may be amended only in writing signed by Yedpay and Merchant, except that Yedpay may give Merchant a notice either describing amendments to this Agreement or enclosing an entirely new agreement, which amendments or new agreement will be binding upon Merchant if it deposits sales or credit slips after the effective date of such amendment or new agreement set forth in Yedpay’s notice.
WAIVER
No provision of this Agreement shall be deemed waived by any party unless such waiver is in writing and signed by the party against whom enforcement is sought. No failure to exercise, and no delay in exercising on the part of any party hereto, any right, power or privilege under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.
EXCHANGE OF INFORMATION
1. Merchant authorizes Yedpay to obtain from time to time from any person, including without limitation any credit reference agency, financial information on Merchant or any owner, principal, director, officer, shareholder, partner, proprietor, managing agent or guarantor of Merchant. Merchant hereby authorizes (on its own behalf and on behalf of each person mentioned in the preceding sentence) any depository institution to release any financial information concerning Merchant or its accounts to Yedpay.
2. Yedpay may exchange information about Merchant, Merchant’s owners, principals, partners, proprietors, directors, officers, shareholders, managing agents and guarantors with other financial institutions, Associations and any other party as Yedpay may deem necessary in connection with the Services and this Agreement. Merchant hereby authorizes (on its own behalf and on behalf of each person mentioned in the preceding sentence) Yedpay to disclose information as mentioned above and information concerning Merchant’s activity to any Associations, or any of their member financial institutions, or any other party without any liability whatsoever to Merchant.
3. Yedpay may transfer Merchant's information to third party service providers, such as Yedpay's information technology systems providers, hosting providers, credit reference agency, consultants (such as legal advisers) and other goods and services providers. Such Merchant's information will be stored in a third-party database, which may be within or outside Hong Kong.
USE OF MERCHANT’S NAME
Upon execution of this Agreement, Yedpay shall have the right to include the Merchant’s name in any directory or promotional material produced in connection with the acceptance of Payment Transactions.
GENERAL
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. Paragraph headings are included for convenience only and are not to be used in interpreting this Agreement.
NOTICES
- a)
  All notices required by this Agreement shall be in writing and shall be sent by telefax, by courier, by regular or registered mail, or by e-mail. Any notices sent:
- b)
  to Yedpay shall be effective upon actual receipt by The Payment Cards Group Limited, Unit 2301 - 2302, 23rd Floor, Port 33, 33 Tseuk Luk Street, San Po Kong, Kowloon, Hong Kong;
- c)
  to Merchant (including notices contained in Merchant statements) shall be effective upon the earlier of actual receipt or on the day following the date of posting such notice to the latest address provided by Merchant to Yedpay or upon sending such notice to any e-mail address or facsimile number provided by the Merchant hereunder.
The parties hereto may change the name and address of the person or the facsimile number to whom/which notices or other documents required under this Agreement must be sent at any time by giving written notice to the other party.
EFFECTIVE DATE
This Agreement shall become effective only upon acceptance by Yedpay, or upon the acceptance by Yedpay of the submission of transactions by Merchant at such locations or websites as designated by Yedpay, whichever event shall first occur.
DESIGNATION OF DEPOSITORY
1. The financial institution set forth in the Merchant Application is designated by Merchant as a depository institution (“Depository”) for payments due to Merchant hereunder. Merchant authorizes Yedpay to make payment hereunder to Depository with instructions to credit the Depository. To credit the Depository, the payments due to Merchant shall be greater than or equal to HK$300. Yedpay must approve in writing any proposed changes to Depository.
2. Yedpay may delay in crediting the Depository for an undefined period of time, or refuse crediting the Depository:
  - a)
    upon Merchant’s default in performing under any provision of this Agreement;
  - b)
    upon an unauthorized conversion of all or any part of Merchant’s activity to mail order sales, telephone order sales, Internet-based sales, or to any sales activity where the card is not physically present and processed through Merchant’s terminal;
  - c)
    upon any failure to follow the POS Terminal User Manual or any operating regulation or rule of a Association;
  - d)
    if there has been any misrepresentation by Merchant;
  - e)
    upon commencement of bankruptcy or insolvency proceedings by or against Merchant; or
  - f)
    in the event Yedpay reasonably deems itself insecure in crediting the Depository.
3. Yedpay shall not be liable for any lost profits, lost interest, or for special, consequential, punitive or exemplary damages arising out of or relating in any way to Clause 25.2.
TRANSACTION CURRENCY
All transactions submitted hereunder shall be denominated in Hong Kong dollars unless otherwise agreed in writing between Yedpay and Merchant.
CARD NOT PRESENT TRANSACTIONS
Where Yedpay has agreed that Merchant may submit card not present transactions (including without limitation mail order sales, telephone order sales and Internet-based sales) to Yedpay for processing under this Agreement:
- a)
  any reference in this Agreement to “Payment Transaction” shall include any card not present transaction;
- b)
  any reference to use of a card or effecting a Payment Transaction shall include use of, or effecting a Payment Transaction with, the details of or relating to the card;
- c)
  this Agreement shall apply to all card not present transactions except to the extent that any provisions of this Agreement are not applicable where a card is not physically presented to Merchant; and
- d)
  Merchant shall comply with all provisions of this Agreement, in particular, such requirements specified in the POS Terminal User Manual and written directions of Yedpay in connection with processing card not present transactions (including without limitation any software, system, security and website requirements).
ELECTRONIC SIGNATURES AND TRANSMISSION
1. If Merchant elects to execute this Agreement by electronic means, Merchant acknowledges that this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when (1) Merchant’s electronic signature is associated with this Agreement and related documents, (2) Merchant consents and intends to be bound by the Agreement and related documents, and (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record).
2. By executing this Agreement by electronic means, Merchant agrees (i) that this Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, (iii) that Merchant has the ability to print or otherwise store the Agreement and related documents, and (iv) to authorize Yedpay to conduct an investigation of Merchant’s credit history with various credit reporting and credit bureau agencies for the sole purpose of determining the approval of the applicant for merchant status or equipment leasing. This information is kept strictly confidential and will not be released.
3. The Merchant shall enroll for the Services and shall provide to Yedpay the Merchant’s e-mail address(es) and any message, statement, advice, confirmation, notice, communication or document to be given by Yedpay to the Merchant will be deemed to be validly given by Yedpay to the Merchant if dispatched to the Merchant’s e-mail address(es) provided to Yedpay upon enrollment aforesaid.
4. Delivery of an executed counterpart of this Agreement or a signature page to this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed original counterpart of this Agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by fax or electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.
5. Any notice or communication delivered under the terms and conditions of this Agreement personally, sent by post, facsimile transmission, telex, email or placed in the Merchant’s profile shall be deemed to have been received by the Merchant (where delivered personally) at the time of personal delivery or on leaving it at the address last notified by the Merchant to Yedpay via such means and in such format and manner as shall be acceptable to Yedpay, (where sent by post) 3 days after posting if such address is in Hong Kong and 7 days after posting if such address is outside Hong Kong or (where sent by facsimile transmission, telex, email or placed in the Merchant’s profile) immediately after transmitting to the facsimile or telex number or email address last notified by the Merchant to Yedpay via such means and in such format and manner as shall be acceptable to Yedpay or placed in the Merchant’s profile. Notice or communication sent by the Merchant to Yedpay shall be treated as delivered to Yedpay on the day of actual receipt.
OFFER OF ADVANTAGE
Yedpay has not offered or accepted and shall not (and shall procure its employees and agents not to) offer or accept any advantage, benefit or other inducement with a view to influence the placing of this Agreement (which may constitute an offence under the Prevention of Bribery Ordinance Cap.201) and notwithstanding anything herein contained, the Merchant shall be entitled to forthwith terminate this Agreement without prior notice in the event any such act has occurred.
ENTIRE AGREEMENT
1. This Agreement comprises the entire Agreement between the parties in relation to the subject matter of this Agreement to the exclusion of all other terms and conditions and prior or collateral Agreements, notices of intention and representations and the parties agree that they have not been induced to enter into this Agreement on the basis of any other representation verbal or otherwise.
2. Should any dispute arise, the decision of Yedpay shall be final.