1.1 The words and expressions used and not defined in the body of these CMP Merchant Terms and the Agreement shall have the meaning set out in Appendix 1.
2.1 These CMP Merchant Terms apply to and govern the relationship between Merchant and CMP from the moment of Merchant’s Application for use of the CMP Services as a Merchant and, if so agreed, the purchase and use of Terminals as set forth in the Merchant Agreement (the “Agreement”). Deviations from these CMP Merchant Terms only apply if they are agreed upon in writing.
2.2 The CMP Services are provided by CM Payments, a Dutch private limited liability company, located at B.V. Konijnenberg 30, 4825 BD Breda which is registered in the commerce register in the Netherlands under number 62095757 (“CMP”). CMP is a payment institution licensed by the Dutch Central Bank (“DCB”) as can be verified here: . Contact details of DCB can be found on www.dnb.nl (also available in English). In order to comply with the legal requirement to safeguard the funds entrusted by Merchant to CMP, CMP uses Customer Account Foundations (each a "Foundation") or any other legally permitted safeguarding accounts. DCB's supervision includes the supervision of the Foundations.
2.3 Merchant is the party identified in the Agreement. A Merchant shall only use the CMP Services in the performance of its profession or business and in particular not as a Consumer. Merchant expressly agrees that the articles, 7:522(3) 7:527, 7:529 of the Dutch Civil Code (‘DCC’) shall not apply to this CMP Merchant Terms, and Merchant agrees to this corporate opt-out
2.4 The applicability of any general, purchasing or other terms and conditions used by Merchant, or any other terms and conditions not set forth in or referred to in the Agreement are hereby expressly excluded, provided that Parties each shall abide with the Rules as referred to in clause 2.6.
2.5 CMP is entitled to change these CMP Merchant Terms at any time, upon prior notice. Unless a change results from legal, regulatory or tax requirements, Merchant has the right to terminate the Agreement by notifying CMP thereof before the changes become effective as set forth in the change notification. To each Transaction submitted the version of the CMP Merchant Terms applicable at the time of such submission shall apply and shall be deemed accepted by Merchant. The applicable version of these CMP Merchant Terms is made available on and can be downloaded from CMP's website.
2.6 Specific Rules apply to specific payment methods. A Merchant requesting CMP to enable the acceptance of Payments with certain payment methods shall be aware, and CMP may deem Merchant to be aware of the characteristics of and the risks related to those payment methods, in particular in regards of eCommerce activities.
3.1 The CMP Services comprise of various service components Merchant can use in connection with the acceptance of Payments by Merchant, including:
Payment Services that CMP is authorised to provide as a licensed payment institution and which CMP can make available for use by Merchant i.e. the acquiring of payment transactions - enabling Merchant to accept Payments - and the execution of payment transactions - making the Transfer and processing Refunds;
technical services supporting the use of Payment Services ("Routing Services");
Payment-Related Services; and
any other services as Parties may agree in the Agreement ("Other Services").
3.2 The various components of the CMP Services may be provided as a stand-alone services, and further interact with services provided to Merchant by third parties which may be considered as Integrated Third Party Services.
3.3 Using the CMP Services, Merchant can accept Payments by presenting Transaction Information and Payment Methods to its Customers. If the Customer proceeds through and finalises the Payment Process of the Payment Method of the Customer’s choice, the Transaction is submitted to the relevant party in the Payment Network and in response, a Status Report is provided, informing Merchant whether the Transaction is authorised, declined (or cancelled). Once a Transaction is authorised, Merchant has accepted the Payment and the Payment Funds will be Settled as described in clause 4.
3.4 CMP will not initiate nor execute any Payment on behalf of or upon instruction of the Customer. Merchant recognizes that CMP is not a party to the sales/purchase transaction concluded between Merchant and the Customer. CMP is not responsible for and cannot be held liable towards Merchants in respect of Payments which are or were not initiated or executed nor towards Customers or in respect of the goods or services for which the Payment is owed or (should be) made. CMP will refer complaints from Customers about the goods or services delivered or their Payment to Merchant for Merchant to resolve. Merchant may choose to take insurance from a third party to cover the risk of Customers not paying for delivered goods or services.
3.5 Upon authorisation of the Transaction, the Payment to Merchant may be accepted through CMP as: (a) Merchant’s Principal Acquirer, or (b) as Merchant’s Transferring Acquirer.
3.6 In certain circumstances the Payment is accepted through a third party Acquirer with direct contractual settlement and transfer obligations towards Merchant under a Direct Acquiring Agreement (the “Direct Third Party Acquirer”). For Payments which are accepted and processed through Merchant’s Direct Third Party Acquirer, the CMP Services are limited to the Routing Services. CMP will not Settle nor Transfer any funds in respect of Payments accepted through the Direct Third Party Acquirer. In case of discrepancies between the amount of funds of Transactions Authorised and the amount of funds settled or transferred by the Direct Third Party Acquirer, Merchant shall first contact the Direct Third Party Acquirer.
3.7 Whether a Payment is accepted and processed through CMP or a Direct Third Party Acquirer is either set forth in the Agreement or depends on the circumstances at the moment Merchant presents the Transaction information to its Customer and the moment the Payment is initiated, such as, but not limited to the availability of the Payment Network and certain Payment specific factors, such as, but not limited to, the place where Merchant or the Customer is located or where the Payment instrument is issued, the URL of the webshop or the currency of the Payment.
3.8 In respect of (i) Transactions for which the Payment Process has not been proceeded or finalised or for (ii) Payments which are accepted and processed through a Direct Third Party Acquirer, Merchant is only using CMP’s Routing Services. In the latter case, the Routing Services are supporting Merchant’s use of the Payment Services provided by the Direct Third Party Acquirer by:
3.8.1 transmitting, exchanging and recording Transaction Data and Status Reports of Payments to and from the relevant Payment Networks; and
3.8.2 where technically possible and to the extent agreed and authorised, reporting for the administration and reconciliation of Payments, if and as applicable.
3.9 Merchant can cancel a Transaction as long as Merchant did not receive a Status Report. The Transaction fee for a Transaction presented that is afterwards cancelled, will remain due.
3.10 Merchant may use products, services or applications provided by third parties through or in interaction with the CMP Services (“Integrated Third Party Services”). CMP is not responsible for any Integrated Third Party Services and Merchant’s use of such Integrated Third Party Services is subject to additional terms, conditions, and policies provided to Merchant by the relevant third party. CMP does not warrant ongoing compatibility of the CMP Services with Integrated Third Party Services.
3.11 The Agreement or an order may include the sale, purchase and use of Terminals as agreed between Parties, in which case the Terminal Section of these Merchant Terms applies.
3.12 Upon written notice to the Merchant, CMP may limit or cease to provide a portion or all of its CMP Services to the Merchant in case such CMP Services are no longer supported by relevant Payment Method suppliers or in case CM is no longer authorised (for whatever reason) to offer the CMP Payment Service(s) in question.
4.1 Merchant can, using the CMP Services accept Payments, the funds of which (“Payment Funds”) CMP shall Transfer to Merchant. At the same time, Merchant assumes certain payment obligations towards CMP. For the Settlement of these reciprocal payment obligations between Parties, a virtual balance is maintained for Merchant which operates as a current account position (‘rekening courant verhouding’) between Merchant and CMP (“CMP Virtual Balance”). Transfers and Refunds will be executed from the Settlement Balance available to Merchant.
4.2 The payment obligations of CMP towards Merchant comprise of:
the total aggregate Payment Funds; and
any amount due by CMP to Merchant in regards of Corrections.
4.3 The payment obligations of Merchant towards CMP comprise of:
the CMP Fees;
any Refund Amount;
any amount due by Merchant to CMP in regards of Corrections;
any Indemnified Amount; and
and any other amounts agreed to be due by Merchant to CMP under the Agreement.
4.4 Merchant authorizes CMP to Settle the amounts due by CMP to Merchant under the Agreement by deducting and setting-off the amounts due by Merchant to CMP under the Agreement, reserving, if applicable, any Secured Amount through the CMP Virtual Balance. The result is the Settlement Balance which is, if the amount is positive, due for Transfer in accordance with the Transfer frequency as set forth in the Agreement.
4.5 At no point in time Merchant's Settlement Balance may be negative. If the Settlement Balance is negative:
4.5.1 CMP may demand Merchant to replenish the amount required to bring the Settlement Balance to zero without undue delay;
4.5.2 CMP may, upon giving prior notice, based on Merchant's SEPA direct debit mandate collect from Merchant's bank account any amount required to bring the Settlement Balance to zero;
4.5.3 CMP may offset such negative Settlement Balance against the Secured Amount; and
4.5.4 CMP will not execute any Refunds for as long as the Settlement Balance is negative.
4.6 Unless otherwise agreed, the CMP Virtual Balance is maintained in EURO. Any payment obligation a Party incurs towards the other Party in another currency than EURO is converted and payable against the exchange rate current at the agreed date or the date on which the event in respect of which the payment obligation is incurred took place.
4.7 No interest is due on any Settlement Balance due to Merchant.
5.1 During the duration of the Agreement, CMP will, with due care and skill and in accordance with Applicable Laws, the Rules, in accordance with, and as further specified in the Agreement:
provide access to the CMP Platform to establish and maintain the Integration;
provide information, documentation and support for the establishment of the Integration, testing and use of the CMP Services;
make the CMP Services available for use by Merchant as set forth in the Agreement;
Process Personal Data as set forth in clause 6.
5.2 Merchant acknowledges that the CMP Services are continuously being developed. If at any time, CMP wishes to make changes to the CMP Services, the components and their functionalities, CMP can make them, where feasible upon notice to Merchant, provided that the changes do not cause the CMP Services to deviate substantially from the originally contracted CMP Services or if the changes are made to enhance security or to avert security threats, to comply with new (interpretations of) Applicable Law or on demand of a supervisor with jurisdiction over CMP.
6.1 In this clause 6, the following capitalized words are used with the meaning given to them in the GDPR: Controller, Processor, Processing, Data Subject, Data Breach, Special Categories.
6.2 Parties hereby agree to comply with their obligations under GDPR and any related legislation and at all times, Personal Data shall be considered Confidential Information.
6.3 Unless Merchant’s use of the CMP Services is or remains limited to the Routing Services in which case clauses 6.4 - 6.6 apply, CMP is Processing Personal Data of data subjects related to Merchant and Merchant's Customers as the Controller of that data as described in CMP's Privacy Statement. Merchant undertakes to inform the Authorized Personnel of CMP’s Processing of their Personal Data as set forth therein.
6.4 If Merchant’s use of the CMP Services in respect of a Transaction is or remains limited to the Routing Services, CMP shall in that specific case act as the Processor of the Personal Data included in the Customer Data and processes such data on behalf and upon instruction of Merchant, and the remainder of this clause 6 shall be deemed the Data Processing Agreement between Parties.
6.5 Subject to the above clause 6.4, as the Processor of Customer Data, CMP shall comply with the following general principles:
6.5.1 CMP will process the Customer Data only on Merchant's documented and lawful instructions as set forth in the Agreement;
6.5.2 CMP will not Process more Customer Data than is reasonably necessary for merchant’s use of the Routing Services;
6.5.3 CMP will not use Customer Data for any other purposes than those required to perform its obligations in respect of the Routing Services under this Agreement;
6.5.4 CMP ensures that all personnel authorized by CMP to Process Customer Data have committed themselves to confidentiality undertakings or are under an appropriate statutory obligation of confidentiality;
6.5.5 CMP will not Process any Special Categories of Personal Data;
6.5.6 CMP will delete Personal Data of Transactions once the data is no longer needed to provide the Routing Services or to support the provision of the Payment Services by the Direct Third Party Acquirer, which, in the latter case equals the period during which Chargebacks may have to be processed;
6.5.7 CMP will report without undue delay any Personal Data Breach to Merchant (at all times, within such timeframes as to allow Merchant to meet the applicable reporting obligations under GDPR) and provide reasonable assistance requested by Merchant in investigating and, if applicable, reporting such Personal Data Breach; and
6.5.8 assist Merchant in its capacity as Controller to respond to any request from a Customer to exercise any of the Customer’s rights as a Data Subject as set forth in the GDPR.
6.6 For the purpose of the Data Processing Agreement, Customer Data is the Personal Data included in the Transaction Data which varies per payment method as prescribed in the API/AKD Documentation.
7.1 CMP is a regulated payment institution and therefore is obliged, both before CMP can permit Merchant to use the CMP Services and on an ongoing basis during the term of the Agreement, to perform Customer Due Diligence ('CDD').
7.2 Merchant may not use and CMP shall not make the CMP Services available for use by Merchant unless CMP has approved Merchant for use of the CMP Services based on CDD, as will be notified to Merchant. In the process of Merchant’s Application or upon formal execution of the Agreement, CMP may permit Merchant to use the CMP Services subject to the Preliminary and Restricted Use Terms.
7.3 The Agreement becomes effective upon Merchant’s Application, or on the date CMP has executed the Agreement. Unless otherwise agreed, and if not terminated earlier, subject to clause 17, the Agreement will be effective for an indefinite term and Merchant shall be entitled to terminate the Agreement at any time by giving a three (3) months written notice to CMP. In case an Initial Term has been agreed upon in the Agreement, the Agreement shall automatically renew for successive one (1) year terms, unless the Merchant provides CMP with a written notice of termination at least three (3) months prior to the expiry of the Initial Term or any extension term thereafter.
7.4 To accept Payments with certain payment methods, it is required that Merchant is registered or contracted with another Principal Acquirer in the relevant Payment Network (“Registration”). The relevant payment methods shall only be made available once the Registration has been successfully completed and only for as long as the Registration is valid. CMP will support, and Merchant shall reasonably cooperate so that CMP can support Merchant, to complete the Registration. Any costs charged by CMP to Merchant or to be reimbursed by Merchant to CMP in regards of the Registration will be agreed as CMP Fees in the Agreement. CMP will not be responsible for any decision of another Principal Acquirer to approve or reject Merchant or to terminate a Registration.
8.1 As agreed by Merchant in the process of Merchant’s Application or if so agreed in the Agreement, the use by Merchant of the CMP Services is subject to the following additional conditions and restrictions:
8.1.1 Merchant shall promptly submit all information requested by CMP for the performance of CDD as requested in the process of Merchant’s Application;
8.1.2 Merchant warrants it has taken note of appendix 2 to these CMP Merchant Terms, which lists the Prohibited Activity and Merchant warrants it is not engaged in any Prohibited Activities;
8.1.3 Merchant acknowledges that a maximum preliminary use period of thirty (30) days applies (“Preliminary Use Period”).
8.1.4 Merchant acknowledges that Merchant’s use of the CMP Services is restricted to the acceptance and processing of Payments resulting in not more than EUR 5,000 worth of Payment Funds ("Payment Funds Threshold"). This shall mean that CMP will disable Merchant's use of the CMP Services by blocking the ability to create and submit Transactions once the amount of Payment Funds exceeds the Payment Funds Threshold, in order to mitigate the financial risk of loss of Payments to Merchant.
8.2 Merchant hereby acknowledges that CMP will not make any Transfer to Merchant:
8.2.1 until Merchant’s Application is completed and it is confirmed that Merchant is approved for the use of the CMP Services;
8.2.2 if, CMP concludes in its reasonable discretion at any time during the Preliminary Use Period, that there is no prospect that Merchant will be approved for use of the CMP Services; or
8.2.3 after expiry of the Preliminary Use Period.
8.3 In case Merchant is not approved for use of the CMP Services either before or upon expiry of the Preliminary Use Period, Merchant hereby acknowledges and agrees that CMP shallhave the right to dissolve the Agreement by sending a an email message (“Reject Message”) to Merchant, reserving all other rights CMP may have, and without CMP incurring liability for Merchant’s lost Payments or otherwise. In such case, any Settlement Balance resulting from accepting and processing Payments until the date of the Reject Message will be Corrected and CMP will return, to the extent possible, the Payment to the Customer.
8.4 Merchant acknowledges that its use of the CMP Services during the Preliminary Use Period is connected to the risk, controlled and borne by Merchant, to lose Payments up to an amount of EUR 5,000, while having delivered the goods or services which were the subject of the sale/purchase transaction (worth the EUR 5,000 of the Payments). Merchant hereby acknowledges and agrees that CMP's liability for any such damages is excluded.
9.2 Representations and warranties.
Merchant represents and warrants that:
9.2.1 it is duly authorised to enter into the Agreement and to lawfully fulfil its obligations hereunder;
9.2.2 it uses the CMP Services for the purposes of its profession or business (and not as a Consumer);
9.2.3 the individual acting on Merchant's behalf when accepting the CMP Merchant Terms or executing the Agreement is duly authorised to represent Merchant;
9.2.4 the individual acting on Merchant's behalf when registering a Merchant Profile or using the CMP Services (for instance by submitting Refund instructions), is duly authorised to act on Merchant's behalf;
9.2.5 has and will maintain all the permits and/or authorisation required to conduct its business;
9.2.6 it will not use the CMP Services for fraudulent, unlawful or abusive purposes or for any goods or services listed on the Prohibited Activity list;
9.2.7 none of its ultimate beneficial owners or legal representatives is identified on sanction lists or is a Politically Exposed Person ('PEP');
9.2.8 it is not aware of any circumstances that prevent its performance hereunder or that would constitute a breach of obligations to any third party;
9.2.9 all CDD information provided by the Merchant to CMP is true, correct and complete at the date it was provided; and
9.2.10 it is authorised to make the pledge as set forth in respect of the Secured Amount in clause 12 and that any such Secured Amount is or will be free of rights and claims from third parties.
9.3.1 comply with all Applicable Laws; in particular those in respect of eCommerce those relating to distant selling, consumer protection, geo-blocking and privacy;
9.3.2 comply with the Rules;
9.3.3 perform all Merchant's obligations under the Agreement;
9.3.4 perform all contractual, legal and regulatory obligations it has towards its Customers;
9.3.5 comply with any reasonable instructions and directions of CMP to shape and enhance Merchant’s sales and delivery process;
9.3.6 provide, without undue delay, all requested information and documents for CMP's performance of (ongoing) CDD;
9.3.7 notify CMP without undue delay as soon as a UBO or legal representative of Merchant gets identified on a sanction list or is recognised or shall be treated as a PEP;
9.3.8 use the CMP Services and ensure CMP is provided with Transaction Data in accordance with the API & SDK Documentation and any replacement or supplementary guides, addenda, notices or approvals that CMP may make available or direct to Merchant from time to time;
9.3.9 remain responsible (even after termination of the Agreement) for all Chargebacks and Refunds concerning all Payment methods;
9.3.10 only make Refunds using the Payment method and the Payment instrument by and with which the original Payment was executed;
9.3.11 notify CMP of any changes in ownership, financial conditions, business, the goods or services Merchant provides, the sales channels, locations and all other circumstances which can reasonably be considered to adversely affect CMP or Merchant's use of the CMP Services;
9.3.12 pay all relevant taxes in relation to its business and in particular to the sale of its goods or services in respect of which Merchant has accepted Payment using the CMP Services;
9.3.13 respect the intellectual property rights of third parties with regards to the goods and/or services Merchant provides to its Customers;
9.3.14 keep any access credentials (such as Username, password and digital certificate) to the Platform, for use of the CMP Services confidential and shall notify CMP without undue delay in case Merchant determines or believes unauthorised use is made of the access credentials issued to or used by Merchant, while taking all reasonable measures to prevent further misuse;
9.3.15 for eCommerce Transaction, present its web site and apply sales processes in such a way that it is clear who Merchant is, where Merchant is located, how Merchant can be contacted, for complaints and questions and what Merchant's policies for returns and privacy are;
9.3.16 for direct debit Transactions, obtain its Customer’s consent and authorization to debit the relevant amount from their account, as well as to provide CMP with all required data and documentation to process the transaction, including but not limited to the mandate; and
9.3.17 in case it is engaged in any of the following activities – gambling industry, travel industry and/or foreign exchange broker – it shall comply with all additional requirements stated in Applicable Laws, Rules, as well as with any (other) requirements provided by CMP.
9.4 Prohibitions and restrictions.
Merchant shall not:
9.4.1 use the CMP Services to accept payments for goods or services for or on behalf of a third party;
9.4.2 without CMP's prior permission change the goods or services in respect of which Merchant uses the CMP Services;
9.4.3 without CMP's prior permission change the region or countries where Merchant offers the goods or services in respect of which Merchant uses the CMP Services;
9.4.4 indicate a preference for a certain Payment method, apply charges to the Customer or prescribe financial, discriminatory or other thresholds in respect of the way Customers wish to pay;
9.4.5 do anything, which could adversely affect the services of CMP, CMP's reputation or goodwill of CMP or would cause CMP to be in breach of Applicable Laws or the Rules; 9.4.6 engage in any behaviour or activities that could in any way harm, impose a disproportionately or unreasonably large load on the technical infrastructure of or systems used for the provision of the CMP Services, disrupt or cause malfunctions to the CMP Services or otherwise bring the CMP Services into disrepute;
9.4.7 transmit or allow or have a third party transmit any worms, viruses, Trojan horses, self-destruct functions or similar disabling code or mechanism, or any other malware, disruptive or harmful software or data through Merchant's use of the CMP Services; and 9.4.8 try to obtain any unauthorized access to the CMP Platform, CMP Services, associated servers, networking systems, services, or data of CMP, or any of the other parties using or connecting to the CMP Platform.
9.5 Characteristics of Card Payments.
Merchant herein is made aware that:
9.5.1 A Payment made by Credit Card (a "Card Payment") is based on a credit card Acquirer's assumption of the payment obligation of the cardholder on the basis of credit;
9.5.2 even though a Card Payment may be authorised through the CMP Services, it can be made subject to Chargeback which will cause a reversal of the Payment after it was settled through the CMP Virtual Balance and even after Transfer was made. As such, the authorisation of a Card Payment is not a warranty for Transfer of the Payment Funds of that Card Payment to Merchant whereas Merchant is obliged to deliver the goods or services which were the subject of the Transaction upon or without undue delay after the moment of authorisation (unless Parties agreed otherwise in writing). Merchant may not require a Customer to dispose of its Chargeback rights. Merchant is responsible and indemnifies CMP for Chargebacks under clause 11. The risk of losing both the goods or services sold and delivered and Payments as a result of Chargebacks is for Merchant's account, provided that CMP properly performed its obligations under the Agreement and without prejudice to any shift of liability as a result of Merchant's part-taking in a card scheme program to that effect (e.g. 3DS, which is applied by default) or use of Other Services or any third party Services to that effect.
9.5.3 Special rules apply for the protection of Card Data under the Payment Card Industry Data Security Standards ('PCI DSS') to which CMP and Merchant shall adhere as set forth in clause 10.
9.5.4 Card schemes operate control programs to monitor Merchant behaviour and activity; Fines may be levied for Merchant's violation of the Rules and, if a violation of the Rules is the reason for termination of the Agreement, such will be noted in the programs for review by other providers of Payment Services affecting Merchant's reputation;
9.5.5 Merchant's performance towards the Customer and any interaction Merchant undertakes with other third parties (e.g. another third part providing services to Merchant, (e.g. a courier) may affect the course of a Card Payment, meaning that, Merchant can substantially control a Customer's satisfaction and prevent Payments being made subject to Chargeback; and
9.5.6 the CMP Services CMP can provide as a Principal Acquirer of Card Payments are based on CMP's acquiring licence covering Europe, and in respect of Payments where the Customer’s payment service provider is located outside the European Union, cross-border fees may apply, them being the sole responsibility of the Merchant.
9.6 Other Reversable Payment Methods. What is described in clause 9.5.2 about Chargeback and Card Payments, similarly applies under the Rules of certain other Payment Methods (“Reversible Payment Methods"). Whether or not a Payment Method is a Reversible Payment Method, will appear from the agreed Chargeback fees.
9.7 In these CMP Merchant Terms references are made to the Rules. The Rules are substantial and may vary per Payment method. The Agreement, these CMP Merchant Terms and the API/SDK Documentation are, to the best of CMP’s ability, aligned with the Rules, but they’re not reflecting all of them. It is Merchant's own responsibility to inform itself about the Rules and to comply with them as relevant. CMP will make information about the Rules available on its website or through other communication.
9.8 Compliance with the Agreement and notably the CMP Merchant Terms set forth in this clause 9 is pivotal in Merchant's use of the CMP Services. Merchant’s violation of the CMP Merchant Terms and its further performance under the Agreement is directly associated with claims CMP will have under the indemnity provided by Merchant under clause 11 and CMP’s right to terminate the Agreement or to suspend the performance of CMP’s obligations, as set forth in clause 16.
10.1 Card data stored or processed by or on behalf of Merchant shall be stored and processed securely and in accordance with PCI DSS. Any Card Data Merchant may obtain from a Customer in connection with a Card Payment shall solely be used for the purpose of the acceptance and processing of that Card Payment or in connection with a Card Payment previously accepted and processed.
10.2 Depending on the type of Integration, Merchant shall achieve and maintain the appropriate level of PCI DSS compliance and renew its PCI DSS compliance on an annual basis. Merchant shall provide proof of such compliance upon CMP’s reasonable notice. Furthermore, Merchant shall cooperate in or provide answers to questionnaires as CMP may require.
11.1 Merchant’s violation of the CMP Merchant Terms or other failure to perform its obligations under the Agreement may cause Chargebacks, Chargeback Costs, Fines and other claims regulators, the Payment Networks, Customers, tax authorities or any other third party may direct to CMP. Merchant herein indemnifies CMP and shall hold CMP harmless for and against:
11.1.1 any Chargebacks, Chargeback Costs, Fines (CMP may pass on Fines at 110% to cover its administrative costs); and
11.1.3 any costs incurred by CMP made in connection with the collection of any amount due and payable to CMP.
11.2 The amounts due and payable by Merchant under the indemnity obligation of clause 11.1 shall be referred to as the "Indemnified Amount".
12.1 As security for the performance of Merchant’s payment obligations and to cover for any (future) risks relating to Merchant’s use of the CMP Services and any Indemnified Amounts which cannot be Settled as described in clause 4 without resulting in a negative Settlement Balance, CMP may apply a Secured Amount by:
12.1.1 instructing Merchant to deposit a certain amount into a bank account designated by CMP
12.1.2 withholding an amount or percentage of the Payment Funds; or
12.1.3 delaying the Transfer of the Settlement Balance Due to Merchant by a certain period (“Transfer Delay”).
12.2 Merchant may expect that a Transfer Delay will apply in respect of any Payment Funds resulting from Payments accepted through the CMP Services for goods or services in respect of which an Extended Delivery Period is agreed. The Transfer Delay in such case will, as a minimum equal the Extended Delivery Period.
12.3 Merchant agrees to comply with CMP’s request for a Secured Amount. The Secured Amount is reserved and CMP may use the Secured Amount to set-off the CMP Fees, any Refund Amount, any Indemnified Amount and any other amounts agreed to be due by Merchant to CMP under the Agreement, in cases wherein Settlement through the CMP Virtual Balance as described in clause 4 results in a negative Settlement Amount Due to Merchant.
12.4 CMP may determine and adjust the Secured Amount or Transfer Delay and the period during which any Secured Amount shall be reserved in its sole discretion. Generally this time equals the period during which the Payments can be made subject to Chargeback in accordance with the Rules, after the expiry of which period the Secured Amount the remaining balance will be Transferred to Merchant.
12.5 In order for CMP to exercise its rights under this clause 12, Merchant grants CMP a disclosed first priority lien in and security interest on and pledges any: 12.5.1 present or future Payment Funds to establish a Secured Amount as set forth in clause 12.1.1 or clause 12.1.2 ; and 12.5.2 present or future Secured Amounts to use as agreed in clause 12.3.
12.6 Merchant herein irrevocably authorizes CMP to, with the right of substitution, pledge such funds to CMP in the name of Merchant, if necessary repetitively, and to do everything that serves the pledge. CMP hereby accepts such rights.
12.7 No interest is due on any Secured Amount.
12.8 This clause 12 shall survive termination of the Agreement and shall terminate solely upon all (future) obligations by Merchant under this Agreement have been fully discharged.
13.1 In return for Merchant's use of the CMP Services and the provision of Terminals by CMP (if any), Merchant shall pay to CMP the CMP Fees as set forth in the Agreement. Unless otherwise agreed, CMP Fees are stated in Euros excluding VAT and excluding any other relevant taxes.
13.2 One-off fees are due and payable once the Agreement has become effective, or, for Terminals, upon Merchant's order. Recurring fees are charged in advance of the recurring period they apply to. Fees charged in respect of Transactions and Payments are due and payable the moment the Transaction was created and submitted and, in respect of the CMP Payment Services once the Payment is accepted and processed. Unless otherwise agreed, the CMP Fees per Transaction for Card Payments are blended fees; if no differences are shown with regards to interchange fees which may vary depending on the categories of the Cards (credit, debit, commercial). At any time, Merchant may request CMP to provide a statement of expected interchange fees, merchant service charge and other cost splits, which CMP will provide without undue delay.
13.3 Without prejudice to CMP's rights under clauses 13.4 and 13.5, CMP is entitled to adjust the CMP Fees once a year by giving at least one month’ written notice to Merchant.
13.4 The CMP Fees are determined based on one or more of the following factors: monthly volume, average value, value and risk factors as estimated in the pre-contractual phase or the Agreement. Changes in these factors, whether or not reported by Merchant, entitle CMP to adjust the CMP Fees, if relevant with retro-active effect from the moment the changes became apparent.
13.5 CMP is entitled to adjust the CMP Fees by giving at least one month’ written notice to Merchant in case the cost of the CMP Fees increased due to circumstances beyond the reasonable control of CMP and/or due to the fee changes applied by any player in the Payment Network.
13.6 Unless otherwise agreed, Merchant will pay the CMP Fees through the CMP Virtual Balance as described in clause 4.
13.7 Any invoice Merchant may receive from CMP shall be due within fourteen (14) days of the invoice date. If another payment condition is explicitly stated on the invoice, the payment term stated on the invoice shall apply.
13.8 Any payments due by Merchant which remain unpaid for longer than the payment term agreed herein, is subject to statutory commercial interest on the outstanding amount without requiring any reminder or notice of default.
13.9 In case CMP is requested to provide CMP Services that are not specified in the Agreement, CMP shall apply the rate which is standardly applicable to such CMP Service.
14.1 Parties shall maintain the confidentiality of all Confidential Information both during the term of the Agreement and thereafter, and shall not, without the other Party's prior written consent disclose any Confidential Information to any third party in any manner.
14.2 A Party receiving the Confidential Information (the “Receiving Party") shall not use the Confidential Information for purposes other than in direct relation with the Agreement. The Party that discloses the Confidential Information is herein referred to as the “Disclosing Party”. The Receiving Party shall treat the Disclosing Party's Confidential Information with at least the same degree of care as it would use in respect of its own confidential information of similar importance, but in any event a reasonable level of care.
14.3 In particular, the Receiving Party may disclose Confidential Information to its Affiliates, directors, officers, employees or other representatives only on a need-to-know basis. Prior to the disclosure of the Disclosing Party's Confidential Information to such persons, the Receiving Party shall inform each such person of the confidential nature of the Confidential Information and shall require that the person expressly agrees to treat the Confidential Information as provided in the Agreement. The Receiving Party shall be liable for any breach of this Agreement by such person.
14.4 The restrictions and obligations in this clause 14 shall not apply to the Disclosing Party’s Confidential Information, which:
14.4.1 is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party;
14.4.2 was received by the Receiving Party from a third party not bound to any confidentiality obligation; or
14.4.3 was in the possession of the Receiving Party prior to disclosure or is developed independent from such Confidential Information, as is shown by competent evidence.
14.5 In case the Receiving Party must disclose Confidential Information of the Disclosing Party by virtue of a court order or statutory duty, the Receiving Party shall be allowed to do so, provided that:
14.6 it shall without delay inform the Disclosing Party in writing of receipt of such order or duty and enable the Disclosing Party reasonably to seek protection against such order or duty.
14.7 Upon termination of the Agreement each Party shall without delay return all their copies, samples and extracts of, and all other physical media containing, the other Party’s Confidential Information and delete or destroy (and have deleted or destroyed) all automated data containing the other Party’s Confidential Information.
15.1 No rights are granted to Merchant other than as expressly set forth in the Agreement. CMP reserves all right, title, and interest in and to the CMP Platform and CMP Services, the underlying technology and code, and all enhancements, adaptations, improvements, or modifications to the foregoing whether developed during or independent of the Agreement and all Intellectual Property Rights associated therewith.
15.2 Where not used as part of the CMP Services, Merchant shall use and display any of the logos or trademarks of CMP, the Payment methods or the Payment Networks only on Merchant’s promotional materials and website, strictly in conformity with CMP's instructions to indicate that it can accept Payments with the related Payment method.
15.3 Any use of logos of the Payment methods or Payment Networks shall comply with the standards and other requirements as may be in effect from time to time. 15.4 Merchant grants CMP the right to place Merchant’s name and logo on CMP’ website and/or reference list solely to indicate that Merchant has contracted with CMP for its use of the CMP Services. 15.5 Parties shall discontinue the display of logos and trademarks hereunder upon the termination of the Agreement.
16.1 Merchant shall permit CMP or third parties commissioned by CMP or a relevant party in the Payment Network to inspect Merchant’ business premises to audit Merchant’s performance under the Agreement, in particular Merchant’s PCI DSS compliance and Merchant’s compliance with GDPR.
16.2 Merchant shall assist in and facilitate such audits without limitation and at its own expense. 16.3 Merchant shall procure that any such audits can also be conducted directly in relation to (and at the business premises of) any technical service providers or other sub-contractors which Merchant has engaged for the performance of Merchant’s obligations under the Agreement.
17.1 CMP has the right to, where feasible and legally permitted upon prior notice, terminate the Agreement with immediate effect, without incurring any liability and without the obligation for either party to annihilate any performance already delivered, if:
17.1.1 Merchant’s bankruptcy or suspension of payment is applied for or if its dissolution or liquidation or any other similar procedure is commenced;
17.1.2 making the CMP Services available for use by Merchant causes CMP to act in violation of Applicable Laws;
17.1.3 an authoritative party in the Payment Network or a governmental or supervisory authority instructs or advises CMP to terminate the Agreement;
17.1.4 the Settlement Amount Due to Merchant is negative and the deficit is not replenished without undue delay;
17.1.5 it is determined during an audit as meant in clause 16 that Merchant is not performing its obligations under the Agreement;
17.1.6 the number of Chargebacks or Refunds deviates substantially from the average CMP may reasonably expect in Merchant's area of business or CMP otherwise receives a remarkable number of complaints about Merchant;
17.1.8 Merchant stops or has not started using the CMP Services and has not been submitting Transactions for six (6) months or longer; and/or
17.1.9 Merchant uses or has used the CMP Services in violation of the obligations of Merchant listed in clause 9.3 of the CMP Merchant Terms and Merchant, after notification by CMP giving an opportunity to remedy the violation, failed to remedy or repeated or continued the violation, provided that CMP may suspend the performance of its obligations during the remedy period provided.
17.2 Furthermore, CMP may suspend the performance of all or a part of CMP’s obligations under the Agreement if:
17.2.1 CMP needs to further investigate the circumstances potentially giving rise to termination;
17.2.2 CMP reasonably believes the interests of CMP or a third party requires or advises CMP to do so;
17.2.3 CMP reasonably believes that a Transaction or Payment is subject of money laundering or terrorism financing;
17.2.4 CMP reasonably believes that a Payment is executed without the Customer’s consent or otherwise fraudulently;
17.2.5 an authoritative party in the Payment Network or a governmental or supervisory authority instructs or advises CMP to suspend the Merchant;
17.2.6 the Merchant has failed to provide CMP with requested information, including but not limited to CDD documentation;
17.2.7 CMP reasonably believes that Merchant is being dishonest;
17.2.8 CMP has reason to believe that a negative Settlement Balance will result from the use of the CMP Services; and/or
17.2.9 CMP’s integrity and/or reputation is affected or threatened in any way.
17.3 Without limiting CMP’s rights stipulated under clause 17.1, in case the Merchant fails to remedy the grounds for suspension mentioned in clause 17.2 within a reasonable time frame (as determined by CMP), CMP shall have the right to terminate the Agreement with immediate effect.
17.4 CMP's suspension of the performance of its obligations under the Agreement may include that CMP block Merchant's access to the CMP Platform, CMP disconnect from the Integration, CMP disable Merchant's ability to create and submit new Transactions, CMP cancel Transactions, reject or return Payments and to withhold and delay the Transfer of the Settlement Balance Due to Merchant, without incurring any liability towards Merchant in connection with the suspension. CMP shall, where feasible and legally permitted notify Merchant of any suspension without undue delay.
18.1 Under no circumstances shall CMP be liable to Merchant for any loss of profits or lost revenues, business interruption or loss of business information, production failure, impairment of other goods or otherwise, indirect, incidental, special, consequential or exemplary damages arising from this Agreement, even if it has been advised of the possibility of such damages.
18.2 Subject to clause 18.1, the total liability of CMP due to attributable failure to perform its obligations under the Agreement, in tort or based on any other legal theory is limited to compensation of the damages up to an amount equalling the total aggregate amount of CMP Fees paid or payable by Merchant during the twelve (12) months that are immediately preceding the event, act or omission upon which CMP’s liability is predominantly vested. A series of damage events counts as one (1). Under no circumstances will the total compensation for damages exceed fifty thousand Euro (€50,000.00 Euro).
18.3 Nothing in the Agreement intents to exclude or limit the liability of CMP for damages incurred by Merchant due to wilful intent or gross negligence of CMP.
18.4 Each Party shall be liable to the other Party for the acts or omissions of any agent or subcontractor, whether or not used with the consent of the other Party and the Party appointing an agent or subcontractor shall ensure that the relevant provisions of this Agreement are reflected and enforced in its arrangements with each agent and subcontractor.
18.5 The parties in the Payment Network are not agents, sub-contractors or auxiliary persons of CMP and CMP is not liable in respect of damages incurred by Merchant due to the acts or omissions of such parties.
19.1 Neither Party shall be liable for any delay in failure to perform its obligations under the Agreement if that delay or failure arises directly or indirectly through a Force Majeure Event.
19.2 For the purposes of this clause 19, a “Force Majeure Event” means an event, accident, omission or act, the occurrence of which is beyond CMP’s reasonable control, including (without limitation) war, explosions, fires, floods, tempests, earthquake, insurrection, riot, civil disturbance, rebellion, strike, lock-out, labour disputes or strikes, failures in public supply of electrical power or public telecommunications equipment, failure of any machine, data processing system or transmission link beyond the CMP’s sphere of influence and change of Applicable Law and Rules, or revocation of licence of any civil authority.
19.3 If CMP cannot perform its obligations under the Agreement as a result of force majeure for a period of more than four (4) weeks, Merchant shall have the right to terminate the Agreement with immediate effect without CMP incurring any liability towards Merchant in respect of such termination.
20.1 The Agreement is not intended to and shall not be interpreted to create a joint venture or partnership or formal business entity of any kind between or among CMP and Merchant. Each Party shall act as an independent contractor and neither Party shall have any authority to bind the other Party.
20.2 All notices shall be in writing, which, if not otherwise agreed explicitly, may include e-mail. In the event notices are given by e-mail, each notice and other communications shall be deemed duly given on the date sent if sent during normal business hours of the recipient and otherwise on the following business day, provided that each receipt of a notice shall be confirmed by CMP. Merchant shall keep its e-mail address up to date so that CMP and Merchant can depend on electronic communication. Any notices and/or other communication which Merchant may not receive because the e-mail address so filed by CMP no longer is correct or does no longer work will be deemed to have been properly given.
20.3 The Agreement constitutes the entire agreement between the Parties relating to the subject matter of the Agreement and supersedes all such previous agreements.
20.4 Failure of CMP to enforce the provisions of the Agreement at any time, or the failure to require at any time performance by Merchant of any of the provisions of the Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of CMP to enforce each and every such provision.
20.5 Except as otherwise expressly provided, all rights and remedies available to CMP are cumulative and may be exercised concurrently or separately and in the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
20.6 If any provision of the Agreement shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of the Agreement shall not be affected thereby.
20.7 Clauses 11 (Merchant’s Indemnities), 12 (Collateral), 14 (Confidentiality) and 18 (Limitation of Liability) of the CMP Merchant Terms shall survive the termination of the Agreement for whatever reason, and, in addition, the obligations of the Parties under the Agreement that by their nature continue beyond the expiration of the Agreement shall survive termination of the Agreement.
20.8 CMP's records serve as proof of the Transactions, Payments, and the amounts of the rights and obligations between the Parties with regard to the CMP Virtual Balance.
20.9 The CMP Merchant Terms are provided in Dutch and in English. In the event of any difference or inconsistency between the Dutch text and the English text of the CMP Merchant Terms or any difference in their interpretation, the CMP Merchant Terms created in English shall be leading for the interpretation.
20.10 The Agreement is personal to Merchant and Merchant may not assign it or transfer it or any of Merchant’s rights under it without CMP prior written consent. Merchant may only use an agent or sub-contractor in relation to the performance of Merchant’s obligations under the Agreement with CMP’s prior written consent and CMP may withdraw that consent at any time. CMP may transfer or assign any of its rights or obligations under this Agreement to any third party on written notice to Merchant, to which transfer or assignment Merchant herein gives its prior consent. CMP may engage any third party as CMP reasonably requires.
20.11 Any electronic or facsimile signatures shall have the same legal effect as a manually executed signature. The Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and together shall constitute one instrument.
20.12 CMP values all feedback regarding the CMP Services and takes its resolution seriously. Subject to clause 3.4 of the CMP Merchant Terms and to statutory limitations, in case the Merchant has any complaint(s) regarding CMP Services, it shall submit such complaint(s) to complain[email protected] The submission shall include (i) your and the Merchant’s full name; (ii) the Merchant’s address; (iii) Merchant ID; (iv) a detailed description of the complaint; and (v) copies of documentation or proof supporting the complaint.
21.1 All offers from and Agreements with CMP, their execution and any dispute in connection with the Agreement are governed exclusively by Dutch law.
21.2 Any dispute resulting from or relating to the Agreement that cannot be solved amicably shall be settled before the competent court of Amstedam, the Netherlands.
21.3 The applicability of the Vienna Convention is excluded.
22.1 CMP offers Terminals for use with the CMP Service. Terminals can connect to the CMP POS Platform through an integration enabling the routing of Transactions for Cards.
22.2 This POS Sections governs the provision by CMP and the use by Merchant of Terminals. Only if and to the extent, in the Agreement or an order, Parties have agreed that CMP will provide Terminals to Merchant, this POS Section applies in addition to the preceding sections of these CMP Merchant Terms.
22.3 In the event of inconsistencies between the provisions of this POS Section and the clauses in the preceding sections of these CMP Merchant Terms, the terms and conditions set forth in this POS Addendum shall prevail.
22.4 CMP shall have the right to modify the Platform, the Terminals, software elements or any present agreements. CMP shall not be liable for any costs incurred by Merchant as a result of such modifications.
22.5 In case the Merchant does not pay the invoice(s) on time (in accordance with the Agreement or CMP’s instructions), CMP is entitled to revoke the applicable licenses, causing the functionality and operation of the CMP Services and/or if relevant, the Terminal to cease.
23.1 Merchant can connect the Terminals to the CMP POS Platform for the processing of Transactions through the POS Routing Services. The Terminals shall be configured in accordance with CMP’s most recent configuration requirements as presented by CMP.
23.2 Terminals are available at the prices listed in the standard price list as published on the website of CMP. The payment of the Terminal Fees will be due upon CMP’s acceptance of the Order for the Terminals.
23.3 The Terminals will be purchased by Merchant and sold by CMP as detailed in the Agreement or order. The purchase and sale of additional Terminals will be agreed in separate orders.
23.4 In return for the Terminals fees, CMP shall provide the cables and supplies necessary for the initial and basic operation of the Terminal as specified in the Terminal’s product sheet;
24.1 CMP will prepare each Terminal so that is ready to “plug and play” before it is dispatched for delivery to Merchant by:
24.1.1 loading the acquirer keys/ security keys into the Terminal [and making the Terminal suitable for remote key loading and further Key Management Services]
24.1.2 installing Terminal software on the Terminal;
24.1.3 personalising the Terminal so that Merchant can activate the registration of the Terminal in the CMP POS Platform;
24.1.4 testing the Terminal;
24.1.5 packaging the Terminal for dispatch to Merchant’s address, as designated in the Agreement or order;and
24.1.6 dispatching the Terminal to the Merchant via standard shipping.
24.2 Plug & Play herein means that the Terminal will be recognised by the CMP POS Platform as soon as Merchant connects it to the internet so that Transactions can be routed through the POS Routing Services as agreed.
24.3 CMP shall perform all preparations set forth in clause 24.1 of this Terminal section in a secured environment and in compliance with applicable PCI DSS.
24.4 Upon receipt by CMP of an order for a Terminal(s), CMP shall prepare the Terminal(s) with standard batches and will dispatch them within fifteen (15) Working Days. Dispatch will not take place until CMP received the Terminal fees due by Merchant.
24.5 Upon receipt of the Terminal(s), Merchant is responsible for properly installing, connecting and activation of the Terminal that will register on the CMP POS Platform proceeding through the Plug & Play set-up menu.
25.1 Merchant shall comply with the standard processing procedure set forth in the POS operation guide which is provided with each Terminal or as part of the API/AKD Documentation. As a minimum, Merchant shall observe the following obligations and restrictions:
25.1.1 Merchant shall not obtain Card details via email or the internet and manually enter the Transaction into the Terminal;
25.1.2 no sale shall be concluded without Merchant obtaining authorisation through the Terminal;
25.1.3 the authorisation code for each POS Transaction shall be printed on the receipt of the Terminal;
25.1.4 if authorisation for a Transaction is refused, the Transaction may not proceed and Merchant may not seek authorisation for another amount on the same Card;
25.1.5 Merchant shall indicate the fact that it accepts Card Payments clearly visible in its business premises (in particular, in the cash till area or on the Terminal) in accordance with the instructions applicable for the relevant Payment Networks;
25.1.6 Merchant must ensure that its personnel is acquainted with the processing modes valid for the processing of point-of-sale Card Payments; Merchant is responsible for the correct data input in the Terminal and abuse or otherwise unauthorised use of the Terminal by Merchant's staff is at Merchant's risk;
25.1.7 Merchant shall store all codes and/or other sensitive information (including but not limited to key and access codes) at a secure location and shall use its best efforts to prevent any misuse of such information. In case it fails to do so, it shall be fully liable for all related malfunctioning and/or misuse of the Terminal(s).
25.2 Furthermore, Merchant shall not accept point-of-sale Card Payments (or present for processing any such Transaction Data) if:
25.2.1 the Card does not meet the requirements with respect to the validity of the Card laid down in the Rules;
25.2.2 the Card no longer bears the authenticity features referred to in the Operation Guide(which guide may be updated from time to time);
25.2.3 the Card is damaged such that the data are no longer clear or changes have been made to the Card in any way;
25.2.4 the signature on the Card does not correspond with the signature on the sales receipt or the POS Transaction receipt or there is no signature on the back of the Card;
25.3 no pre-existing outstanding receivable or a dishonoured check shall be paid by Card.
25.4 on account of the circumstances of the Card presentation, Merchant reasonably should hae doubts about the authority of the Customer to use the Card. Such doubts must exist in particular:
25.4.1 if at the request of the Customer the total amount of the purchase/sale is to be distributed over a multitude of Cards; or
25.4.2 if the Customer announces on submission of the Card possible problems regarding acceptance of the Card; or
25.4.3 if several Card Payments are to be made with the same Card at different times within two (2) calendar days.
25.5 Merchant shall ensure that CMP is provided in full and in good time with all relevant information (including but not limited to POS configurations, Terminal IDs, Control numbers, Contract numbers, ECR IDs, name and address details, terminal ID, contact persons etc.), in the form and manner that CMP deems necessary for the performance of the Agreement. In case the information required for the execution of the Agreement is not issued to CMP on time or in full, CMP shall not be liable for the delay in the performance of the CMP Services, nor will such delay constitute a breach of the Agreement on the part of CMP. Additionally, Merchant guarantees the correctness, completeness and reliability of the information issued to CMP.
25.6 Merchant shall follow the CMP’s procedures such as (but not limited to) the RMA procedure, notification of malfunctions, etc.
26.1 CMP herein grants Merchant the right to use the Terminal software strictly in combination with the Terminal(s). The price for the right of Merchant to use the CMP Terminal software provided by CMP is included in the Terminal Fee.
26.2 CMP shall install Terminal software on each Terminal and will make updates of the CMP Terminal software remotely available for all Terminals.
26.3 CMP shall make updates of the CMP Terminal software available. These updates shall remotely be loaded to each Terminal through Merchant’s connection to the CMP POS Platform. CMP will notify Merchant of each update that is made available. Updates will ‘auto-install’, which means that after loading an update (while leaving the Terminal switched on) a reboot of the Terminal activates the updated Terminal software.
26.4 Merchant shall enable the updates to be loaded within the timeframe indicated by CMP when notifying Merchant of the availability of that update.
26.5 Merchant acknowledges that its failure to enable updates to be loaded timely causes the risk that due to missing updates, Merchant cannot accept any point-of-sale Payments. Therefore Merchant hereby acknowledges and agrees that in case of Merchant not being able to accept any point-of-sale Payments, Merchant shall be solely responsible and nothing shall impose liability on CMP.
27.1 Merchant hereby acknowledges and agrees that CMP provides the Terminal subject to a hardware warranty of twelve (12) months after delivery.
27.2 The hardware warranty entitles Merchant to free replacement or repair of the Terminal within reasonable time after Merchant’s notification of a defect, if it appears, after initial efforts undertaken by CMP to resolve the issues, that the Terminal cannot be used to process POS Transactions due to a defect in the terminal in respect of which Merchant has determined together with CMP that it cannot be otherwise be solved.
27.3 Merchant is not entitled to claim under the hardware warranty if:
27.3.1 the defect is the result of or connected with incorrect, negligent or incompetent use by Merchant or a third party either authorised or unauthorised by Merchant, or external causes such as fire or water damage or wear and tear whether or not due to chemical influences, electronic influences or weather influences;
27.3.2 the defect is caused by any circumstances or treatment by Merchant or a third party either authorised or unauthorised by Merchant in conflict with the operating instructions;
27.3.3 the Terminal has been used with unauthorised software; or
27.3.4 Merchant or any third party either authorised or not authorised by Merchant to do so, has made changes to the Terminal software or the Terminal without CMP's prior written permission,
27.4 Under the hardware warranty, delivery costs (standard postal delivery) are borne by CMP. If, however, upon CMP’s investigations it appears that there is no defect but Merchant failed to update the Terminal software as provided for in clause 26.4, or if the Merchant attempted to claim the defect for any of the reasons listed in clause 27.3.1, the costs of investigation and shipping will be charged to Merchant.
27.5 If, however, upon CMP’s investigations it appears that there is no defect but Merchant failed to update the Terminal software as provided for in clause 26.4, the costs of investigation and shipping will be charged to Merchant.
27.6 Any repair work not covered by the Agreement will be charged separately to the Merchant.
28.1 Only if so explicitly agreed, cashbacks and refund functionality will be activated.
28.2 Use of the cashbacks and refund functionality is permitted only in strict compliance with the operation guide.
29.1 In no event will CMP’’s total liability in connection with these Merchant Terms, including but not limited to attributable failure to perform its obligations with respect to the Terminals delivered under application of the hardware warranty set forth in clause 27 ( POS Section), exceed the amount of the fees paid by Merchant for the purchase of the relevant Terminal(s). To the maximum extent permitted by applicable law, CMP shall not be liable under or in relation to these Merchant Terms and/orthe Agreement or the provision of the CMP Service, even if advised of the possibility of such damages and whether such liability arises from any claim based negligence, breach of contract, strict liability, or otherwise, for any of the following: (i) loss of profits, revenues or sales; (ii) loss of bargain; (iii) loss of opportunity; (iv) the cost of substitute services or other economic loss, (v) loss of use of any service or any computer equipment; (vi) loss of time on the part of management or other staff; (vii) professional fees or expenses; (viii) business interruption (ix) damage to or loss of data; (x) loss of goodwill or reputation, or (xi) any indirect, special, incidental, exemplary, punitive or consequential damages of any kind howsoever arising, and whether or not a party was advised of the possibility of such loss or damage
29.2 Merchant must inspect the Terminal(s) each time Merchant signs in/out for potential irregularities. The Merchant shall promptly notify CMP of any irregularities, fraud or a suspicion thereof. CMP shall not be liable for interferences taking place through Terminal(s) or for the elimination of interferences.
Acquirer The party that is providing Acquiring Services to Merchant; when used referring to CMP as the Acquirer, such reference is deemed to be CMP as the Principal Acquirer or the Transferring Acquirer. The Acquirer can also be the Direct Third Party Acquirer.
Acquiring Services The acceptance and processing of Payments with the aim to Transfer the relating funds to Merchant; if provided by CMP, the Acquiring Services include the Settlement of Parties’ reciprocal payment obligations.
Affiliate Any legal entity or company belonging to the same group of which a Party is part.
Agreement The (Merchant) agreement entered into between CMP and Merchant, including all corresponding appendices comprised by it and as amended from time to time.
API/AKD Documentation The API documentation describing the technical interface and providing instructions for the Integration as CMP makes available from time to time for Merchant’s developers on CMP’s website.
Applicable Laws The local or other law, rule, regulation, regulatory guidance, order, judgment, decree, or ruling being in force or enforceable in any jurisdiction in which Merchant is incorporated, pursues its business and uses the CMP Services or that applies to a Transaction or a Payment.
Application A request by Merchant to be accepted for use of the CMP Services, either by proceeding through CMP's online application process and Merchant's creation of a Merchant Profile or by requesting an offer for a written Agreement and by providing all information requested by CMP for the performance of CDD.
Card The debit and credit cards of the Payment Networks and marks CMP can enable Merchant to accept Payment with, as agreed in the Agreement.
Card Data The data required to accept and process Card Payments as depends on the Integration and as prescribed in the API/AKD Documentation.
Card Payments A Payment paid, by a Customer, by Card.
CDD, Customer Due Diligence The client screening procedure CMP performs in regards to the business relationship (to be) entered with Merchant to contribute to and safeguard the integrity of the financial markets, the CMP Services and CMP's organisation in accordance with legal and regulatory requirements to which CMP is subject including the prevention of money-laundering, terrorism-financing, fraud and other Prohibited Activity.
Chargeback The reversal of an authorised Transaction in accordance with the Rules applicable to certain payment methods; although this term usually is used in respect of Cards, in these CMP Merchant Terms it includes the reversals or similar activity in respect of Payments executed through other reversible payment methods. Chargeback Fees may vary depending on the payment method.
Chargeback Costs Any third party costs charged in respect of a Chargeback which are not covered in the CMP Fees.
CMP CM Payments, as defined in clause 2.2.
CMP Virtual Balance Is defined in clause 4.1.
CMP Fees The fees owed by Merchant to CMP for Merchant’s use of the CMP Services and, if applicable, the provision by CMP of Terminals to Merchant as agreed in the Agreement, which include, but may extend beyond Transaction fees, Refund fees, Chargeback fees, Terminal fees, certain one-off fees, hourly fees, subscription fees and which may be monthly fees or otherwise recurring fees.
CMP Merchant Terms This set of terms and conditions governing the use of the CMP Services by Merchant, as amended from time to time.
CMP Services The services specified in clause 3.1.
CMP Portal The internet portal through which CMP presents to Merchant a control panel personal to Merchant where Merchant can manage settings and information for its use of the CMP Services, communicate with CMP, create user accounts and assign access rights to authorised users, view reports, look up the status of Transactions and Payments through Merchant's CMP Virtual Balance and look up or request any other information relevant for the use of the CMP Services.
Confidential Information Any information of a non-public, confidential or proprietary nature, whether of commercial, financial or technical nature, Transaction Data, Payment Data, Personal Data, access credentials and any other information relating to merchants, customer, supplier, goods, services or otherwise, disclosed by a Party (the “Disclosing Party” ) to the other Party (the “Receiving Party”) including the commercial details of the Agreement as well as any other information of which the Receiving Party should reasonably assume it shall be kept confidential. Such information may be disclosed between Parties in any form, provided that it is disclosed reasonably in connection with the Agreement.
Consumer A natural person, that is not acting in the performance of a profession or business.
Correction The correction of (a) any amount incorrectly debited or credited between Parties or (b) any amount settled under the Preliminary and Restricted Use Terms that shall be returned to Customer as agreed between Merchant and CMP under the Preliminary and Restricted Use Terms.
Customer The counterparty of Merchant in respect of a sale/purchase transaction between them and having an obligation to pay in that respect.
Customer Account Foundation, Foundation The 'Stichtingen Derdengelden' used by CMP to safeguard the funds as described in clause 2.2; resulting from the acquisition of other payment institutions by CMP, CMP may engage either of the (i) of Stichting Derdengelden CM Payments, with its registered office in Breda, registered in the trade register under 62098101, and (ii) Stichting CM.com Foundation, with its registered office in Breda, registered in the trade register under 30168982. When receiving Transfers, the bank statement of Merchant will show the Foundation relevant for CMP's use of the CMP Services. Also Customers may see the relevant Foundation appear in the Payment Process or on their bank account statement as the beneficiary receiving their Payment or making a Refund on behalf of Merchant.
Customer Data Is defined in clause 6.6.
Customer's PSP The party in the Payment Network which holds the contractual relation with the Customer for the execution of Payments in respect of which CMP is providing its Payment Services under the Agreement.
DCB, Dutch Central Bank is defined in clause 2.2.
Data Processing Agreement The agreement a Processor and a Controller are obliged to conclude pursuant to clause 28 GDPR, as contained in clause 6 of the CMP Merchant Terms.
Direct Acquiring Agreement An agreement concluded between Merchant and a Direct Third Party Acquirer.
Direct Third Party Acquirer Is defined in clause 3.6.
Extended Delivery Period The period that will expire between the moment of Authorisation and the delivery of Merchant's goods or services under the sales/purchase transaction; only applicable where CMP has permitted Merchant in writing to deviate from the standard rule that Merchant shall deliver upon Authorisation.
Fine Any and all fines, levies, costs, expenses, raised fees, charges, assessments or imposition of liabilities of any nature which are levied or charged by the Payment Network for breach of any rules with regard to the Merchant’s processing of Transactions.
GDPR Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (‘General Data Protection Regulation’), as amended from time to time.
Integrated Third Party Services Are defined in clause 3.10.
Integration The integration with the CMP Platform as agreed in the Agreement; For Card Payments, the type of Integration affects the PCI DSS level Merchant has to comply with.
Intellectual Property Rights Any copyrights and related rights, chip rights, trade name rights, trademark rights, domain names, patent rights, design rights and database rights relating to the CMP Platform or the CMP Services owned by or licensed to CMP.
Initial Term The term agreed upon between the Merchant and CMP concerning the duration of the Agreement, as specified in the Agreement.
Merchant The party identified as Merchant in the Agreement.
Merchant Profile The personal log-in, a Merchant can create and use if Merchant wishes to use the CMP Services as a Merchant
Other Services Are defined in clause 3.1.4.
Parties The parties to the Agreement: CMP and Merchant.
Payment The payment transactions initiated and executed through the Payment Process in regards of the amount of money the Customer has agreed to pay to Merchant and which Merchant accepts using the CMP Services.
Payment Data The details needed from the Customer so that the Payment can be routed to the relevant Payment Network for initiation, execution, authorisation, acceptance and processing by the different parties in the Payment Network, which may include CMP.
Payment Funds Is defined in clause 4.1, the aggregate amount of money involved in the Payments accepted since CMP's last Transfer was made to Merchant. Payment Method The payment methods Merchant can present to the Customer for making their Payment to Merchant as agreed between CMP and Merchant.
Payment Network The network or system established by, comprised of, made available or managed by the parties owning or licensing or otherwise fulfilling a role in the Payment Process between a party making a payment (a "Payer" and in the sense of these CMP Merchant Terms referred to as a Customer) and the intended beneficiary of that payment (a "Payee") relevant for the authorisation and execution of that payment using a particular Payment Method, such as the card schemes (and excluding, for the purpose of these CMP Merchant Terms, any party providing Acquiring Services in respect of that Payment).
Payment Process The process that is aimed at execution of the payment transaction by the Customer's PSP so that Merchant can accept the related Payment through the CMP Services.
Payment-Related Services The services of CMP that are related to CMP's Payment Services and which include but which may extend beyond support services, the provision of documentation, administrative services and reconciliation of Payments, the provision of and access to information through the CMP Portal and any other services either or not made accessible or provided through the internet.
Payment Services The services that generally qualify as Payment Services in Annex 1 of PSD2, as amended and/or supplemented from time to time.
PEP, Politically Exposed Person A politically exposed person is someone who has been entrusted with a prominent public function and is generally considered to presents a higher risk for potential involvement in bribery and corruption by virtue of their position and the influence that they may hold.
Platform The software platforms and any related technology developed by CMP made accessible by CMP for Merchant's use of the CMP Services as agreed hereunder.
Preliminary and Restricted Use Terms The terms and conditions for preliminary and restricted use which apply to Merchant's use of the CMP Services in case of Online Onboarding and which are set forth in clause 8.
Preliminary Use Period Is defined in clause 8.1.3.
Payment Funds Threshold Is defined in clause 8.1.4.
Principal Acquirer CMP or another principal member of the Payment Network (or Payment system) for a certain payment method; Where CMP is not the Principal Acquirer, the other Acquirers listed in appendix 1 may be involved as the Principal Acquirer.
Privacy Statement The privacy statement of CMP acting as a Data Controller, published on www.cm.com
Prohibited Activity Are the activities listed in appendix 2.
Refund The execution by CMP of a credit to a Customer in respect of a Payment first accepted by Merchant.
Reject Message Is defined in clause 8.3.
Registration Is defined in clause 7.4.
Reversible Payment Methods Are defined in clause 9.6.
Routing Services Are defined in clause 3.1.2.
Rules All current and future by-laws, rules and guidelines and/or other requirements issued by each player in the Payment Network or bank associations that are applicable, related to or relevant to the CMP Services.
Secured Amount As notified or stipulated by CMP to Merchant, an amount or deposit made or to be made available by Merchant or an amount of reserve withheld from the Payment Funds to secure any payment obligation Merchant has or will have towards CMP under these CMP Merchant Terms, determined and amended in CMP's sole discretion.
Settlement, Settle The administration of the reciprocal payment obligations through the CMP Virtual Balance as described in clause 4.
Settlement Balance The balance of the CMP Virtual Account, if positive, due for Transfer to Merchant.
SEPA Direct Debit Mandate The mandate authorising CMP to debit amounts due by Merchant to CMP under the Agreement from Merchant's Bank Account.
Status Report The report exchanged in response to a Transaction submitted by Merchant notifying the authorisation or the rejection by the Customer's PSP of the request to execute the Payment.
Terminal A device used for the submission of POS Transactions by Merchant via CMP.
Terminal Section The section of these CMP Merchant Terms that applies, by way of addendum, if CMP provides Terminals to Merchant under the Agreement.
Transfer The transfer by CMP of the Settlement Balance accrued during the Transfer Period to Merchant's bank account, subject, at all times, to the terms and conditions of the Agreement.
Transfer Delay Is defined in clause 12.1.3.
Transfer Frequency The frequency wherein CMP will make the Transfers.
Transfer Period The period that passes between the moment the last Transfer was made and the moment the next Transfer is prompted by the Transfer Frequency.
Transaction A request submitted by Merchant - using the Routing Services –, to, depending on the Payment Method of the Customer's choice, initiate, execute or authorise, in accordance with the Rules applicable to the Payment Method of the Customer's choice, (1) the transfer of the Payment by the Customer, (2) the withdrawal of the Payment by Merchant or (3) the crediting of the Payment to Merchant with the aim to accept and process the Payment through CMP or a Direct Third Party Acquirer.
Transaction Data The Transaction Information supplemented with the data provided by a Customer in the Payment Process when a Payment is initiated or executed.
Transaction Information The information Merchant creates and presents to propose a Customer to make the Payment. Transfer The transfer of funds by CMP to Merchant as the payee of the Payment accepted and processed through the CMP Services, subject to the terms and conditions of the Agreement.
Transferring Acquirer Merchant's use of the CMP Services where CMP is aggregating funds from another (Principal) Acquirer for Transfer by CMP to Merchant. For Card Payments, a list of the other Principal Acquirers is provided in appendix 1.
UBO, Ultimate beneficial owner Reference is made to the documents to be completed for CDD and the CMP Website, where information is provided for Merchant to determine who qualifies as UBO.
Working Day A day during which banks generally are open for business in the Netherlands and the country where Merchant’s business operations are located.
List prohibited/restricted industries (products and services) CM Payments
The list bellow depicts CM Payments’ (hereafter: ‘CMP’) prohibited and restricted industries list.
CMP acts in a dynamic though complex playing field, in which regulations set the boundaries. This entails specific rules and regulations that apply to: the Merchant’s activity, where the Merchant is located and where its Consumers are based. Applicable Law and the Rules may impose additional rules the Merchant needs to comply with. The merchant remains responsible to follow all these rules and regulations, CMP as a regulated payment service provider, will ascertain that this is the case.
When it concerns a prohibited industry, CMP will not provide Merchant the Service due to the unacceptable risk this bears for CMP. Restricted industries may be allowed but need to be approved. CMP will conduct thorough analysis and expects from the Merchant a certain level of maturity in coping with the regulatory challenges. CMP will monitor Merchants continuously and holds the right to suspend the Service in case the business of the Merchant is prohibited.
Please note that this list is not limitative as Applicable Law and Rules may change over time and new industries may be added to this list. Next, the final judgement is also based on other factors besides the risks of a certain industry.
Illegal activities, products or services (in any jurisdiction);
Any service providing peripheral support of illegal activities (i.e. drugs) (in any jurisdiction);
Heavily Regulated products and services: Marijuana dispensaries and related businesses, weapons and munitions; gunpowder and other explosives; toxic, flammable, and radioactive materials, virtual coins;
Accepting Donations if company is not registered as 501c3 organization (Being "501(c)(3)" means that a particular nonprofit organization has been approved by the Internal Revenue Service as a tax-exempt (ANBI), charitable organization. "Charitable" is broadly defined as being established for purposes that are religious, educational, charitable, scientific, literary, testing for public safety, fostering of national or international amateur sports, or prevention of cruelty to animals and children);
Funding programs in non-reputable jurisdictions.
New charitable institutions ; Donations for political parties.
All sexually oriented or pornographic merchants including dating sites for the purpose of sex-dating;
Adult Streaming Video/Downloads;
Escort Services/Phone Sex Operators;
Adults: Website access - or membership to access - pornographic content.
Supplier websites may NOT contain any pornographic content and preview images are prohibited unless part of an implemented tangible adult products site
Asset Protection/ Venture Capital;
Credit Card/Personal Credit/ID Theft protection services;
Currency Exchange/FOREX Trading;
Debt Counseling / Restoration / Repair / Reduction / Consolidation;
Stock Market Trading and Individual Stock Consulting;
Financial Aid / Scholarships / Grants;
Wire Transfer Services (MOTO / Internet money orders).
Collection agencies or firms involved in recovering/collecting past due receivable unless regulated;
Debt Collection (regulated).
Pyramid or multi-level marketing distribution (pyramid schemes);
Direct Marketing-Travel Related services;
Discount buying clubs / incentives involving prepayment (medical cards, coupon books, etc);
Non-face to face prescription drug sales;
Electronic cigarettes. Including smoking devices and refill kits/juices;
Tobacco and Cigars;
Drug paraphernalia. Any equipment designed for making or using drugs, such as bongs, vaporizers, and hookahs;
Substances designed to mimic illegal drugs.
Online (virtual) pharmacies without an official license;
Drugs and marijuana dispensaries (and affiliated services);
Pharmaceuticals and transactions involving narcotics, steroids, certain controlled substances or other products that present a risk to consumer safety;
Any illegal substances (including Spanish Fly);
Male enhancements in case prescription is required;
Substances designed to imitate illegal drugs, also known as legal highs (herbal smoking blends; herbal incense; bath salts; etc.).
Merchants who offer subscriptions with automatic renewal, following a free or low-cost purchase for the following industries:
• Nutraceuticals (acai berry or health related drinks or tea);
• Pseudo-pharmaceuticals (weight loss, anti-aging, muscle building, sexual stimulant supplements, colon cleansers, detox products, HCG, HGH-like substances);
• Beauty cosmetics products (teeth whitening, anti-wrinkle, tanning);
• Medical devices and products;
• Dental devices;
• Any industry not mentioned above, where the terms and conditions pertaining to the free trial and/or recurring charges do not contain clear disclosure practices OR contain cancellation obstacles OR do not provide reminders for rebilling.
Pseudo pharma (Pharmaceuticals and other products that make health claims);
Online Diet Programs.
24/7 remote tech support;
Cyber Lockers ;
Grey Market Satellite Dealers / Cable Box De-scramblers;
Online/Moto PC support/Repair;
Social media activity (Sale of social media activity, such as but not limited to Twitter followers, Facebook likes, or YouTube views);
Unauthorised resellers .
Prepaid Phone Cards for Cell Phones
Prohibited: Illegal Gambling, including Internet Gambling
Advanced Event Ticket Sales (not including trade associations or non profits); Ticket-touting merchants, brokers and resellers must have an authorisation from the organiser authorising the merchant to sell tickets for the organiser’s event; Travel Agencies & Tour Operators/related services; Travel/Lodging Services; Sport Forecasting ; Dating.
Fine Jewelry Sales (Precious Stones/Metals Used); Online auctions; Precious Metal Sales (coins, bullion, etc).
Prone to deception
Get Rich Quick / Business Opportunities; Bidding fee auction (AKA penny auctions); Psychic Services.
Anti-Wrinkle Creams; Magazines/Publications subscription packages.
Live animals including insects, animal parts, blood, or fluids; Noxious weeds; Prohibited seeds; Plants or other organisms (including product derivatives) in danger of extinction or whose trade is otherwise regulated by law.
Copyright & trademark
Sales or violations of Intellectual Property Rights (Trademark and Copyright infringements) (Counterfeit Merchandise); Media and software whose distribution is prohibited under copyright laws ; Product, service or activity that is deceptive, misleading, predatory, or prohibited by one or more card schemes (such as Visa, MasterCard, etc.); Any merchant engaged in any form of deceptive marketing practices, including but not limited to: • Hidden disclosure; • Bogus claims and endorsements ; • Pre-checked opt-in boxes ; • Refund / Cancellation avoidance policies.
Activities related to transactions that show the personal information of third parties in violation of applicable law; Items that infringe on or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction; Items that violate any law, statute, ordinance or regulation; Data pass (merchants upselling or cross-selling products or services while sharing cardholder data with third- parties or receiving cardholder data from third parties); Replica furniture.
Card scheme notifications
ANY BRAM/Brand Violation Merchant; Listed on TMF or Match.