The terms contained in the Agreement and these General Terms and Conditions that start with a capital letter have been defined and have the meaning as set forth in this Article:
Affiliate: Any legal entity or company belonging to the same Group of which CM Payments is part. Agreement: the agreement entered into between CM Payments and Merchant, including all corresponding appendices regarding the Payment Services.
Bank List: list of banks that act as Issuing Bank for iDEAL and that appears when a Client performs an iDEAL payment at a web store. This list is maintained and published by Currence iDEAL B.V.
Book Balance: Balance on the Escrow Account in Merchant’s name.
Chargeback: the option for a Client to reverse a Payment, as a result of which the Financial Institution settles the amounts already transferred with the balance from Merchant’s account or reverses the entry through the Payment Services.
Client: Merchant’s (potential) client who uses a Merchant service and uses the payment options offered by CM Payments to pay Merchant.
Client Service: Service offered by Merchant and charged to Clients via a Payment Method.
CM Payments: the private limited liability company CM Payments B.V. (Chamber of Commerce number: 62095757).
Collateral: Minimum amount that Merchant must hold with CM Payments to cover financial risks that CM Payments bears due to the Services.
Currence iDEAL B.V.: owner and proprietor of the iDEAL payment formula.
Data Protection Legislation: the Data Protection Legislation of the country in which Data Controller is situated and any other Data Protection Legislation that is applicable to the execution of the Agreement.
Direct Debit: collection of money by CM Payments from the Client’s account.
Direct Debit Authorisation: Client authorisation for CM Payments to automatically debit a claim on Client from the Client’s account.
Escrow account: The bank account administered by the Foundation that states the Book Balance.
Exemption: a written legal act under public law of De Nederlandsche Bank or other governmental body that gives CM Payments rights and by which CM Payments is explicitly exempted from a Licence.
Fees: The fees owed by Merchant to CM Payments.
Financial Institution: A bank, credit card company or associated company or institution that offers Payment Methods and has entered into agreements for that purpose with CM Payments, Merchant or Clients.
Foundation: i) Stichting Derdengelden CM Payments, with its registered office in Breda, registered in the trade register under 62098101, acting as the independent custodian of third-party funds on the Escrow Account; and ii) CM.com foundation, with its registered office in Breda, registered in the trade register under 30168982, acting as the independent custodian of third-party funds on the Escrow Account.
Group: the economic entity in which legal entities and companies are organised.
Issuing Banks: iDEAL issuers that are included in the iDEAL Bank List and licensed by Currence iDEAL B.V.
License: a written legal act under public law of De Nederlandsche Bank or other governmental body that confers rights on CM Payments.
Merchant: any natural person or legal entity with whom CM Payments enters into an Agreement for the use of Payment Services.
Merchant Number: Merchant’s identification at the Financial Institution or CM Payments, which supports the Payment Method that Merchant uses via the Payment Services. A Merchant Number can be issued by CM Payments, can be based on an agreement that Merchant has entered into directly with the Financial Institution or on an agreement that CM Payments entered into with the Financial Institution.
Order Amount: the amount charged by Merchant to the Client for the Client Service.
Payment Method Owners: Entity or entities that own(s) a Payment Method (such as Currence IDEAL B.V., which owns IDEAL).
Parties: CM Payments and Merchant.
Payment(s): The process whereby funds are transferred to Merchant in the context of the service performed and/or products supplied by Merchant. These funds are collected by Merchant through the Services provided by CM Payments or the process by which funds are returned to Client by and/or on behalf of Merchant.
Payment Instrument: personalised instrument or personalised instruments or the entirety of procedures agreed upon between Merchant and CM Payments, of which Merchant uses to initiate a payment order.
Payment Method(s): the method(s) offered by CM Payments to Merchant to facilitate (online) payments to its Clients.
Payment Services: the Services provided to Merchant by CM Payments, including iDEAL, Microincasso and credit card.
PEP: Politically Exposed Person; politically prominent person.
Personal Data: all information about an identified or identifiable natural person (the “Data Subject”) that is processed by CM Payments as part of providing the Service under the Agreement.
Personal Data Breach: a breach of security that accidentally or wrongfully leads to the destruction, loss, alteration, unauthorised disclosure of or unauthorised access to Personal Data that was transmitted, stored or otherwise processed.
Platform: The software platforms developed by CM Payments that CM Payments uses when performing the Services.
Process/Processing: any operation or set of operations that is performed on Personal Data or any set of Personal Data, whether or not through automated processes, such as collecting, recording, organising, structuring, storing, updating or modifying, retrieving, consulting, using, disclosing, transmitting, distributing or otherwise making available, aligning or combining, blocking, deleting or destroying data.
Refund: reimbursement of Client for (part of) the Transaction Amount upon request from Merchant.
Risk Countries: country which has a high level of terrorism and/or other criminal activity.
Service: the service(s) to be provided under the Agreement to Merchants by CM Payments.
Technical and Organisational Security Measures: the measures regarding Personal Data that protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access and against all other unlawful forms of processing.
Third-Party Services: All third-party products and services delivered or forwarded by CM Payments.
Transaction: Payment Order from Client that is processed using the Platform.
Transaction Amount: The amount of the Payment.
Transaction Date: Date on which the Client’s Payment Order is processed.
UBO: Ultimate Beneficial Owner or the natural person(s) who ultimately own or control the legal entity/company in question.
Working Day: Monday through Friday from 8:30 a.m. to 5:00 p.m., with the exception of public holidays generally recognised in the Netherlands.
Wwft: Anti-Money Laundering and Anti-Terrorist Financing Act
2.1 The General Terms and Conditions apply to all requests, quotations and Agreements between CM Payments and Merchant, whereby CM Payments provides Payment Services to Merchant.
2.2 These General Terms and Conditions are applicable to the exclusion of Merchant or third-party terms and conditions.
2.3 CM Payments is authorised to modify these General Terms and Conditions at any time. The modified General Terms and Conditions will be announced to Merchants and take effect one (1) month after notification. If Merchant disagrees with the changes, Merchant will notify CM Payments of this fact within fourteen (14) days after notification, after which both Parties have the option to terminate the Agreement within seven (7) days after notification by Merchant before the date on which the modified General Terms and Conditions take effect. CM Payments can omit prior notice if the change must be instituted within the aforementioned period of one month based on a legal amendment or an appointment or order of an authorised regulator.
2.4 If one or more provisions of these General Terms and Conditions conflict with the provisions in the Agreement, the provisions of the Agreement shall prevail.
2.5 Where reference is made to “in writing” in these General Terms and Conditions, this shall also include communication by email, unless mandated otherwise.
3.1 All offers made by CM Payments are non-binding, unless explicitly stated otherwise in writing in the offer. Unless stipulated otherwise, an agreement with CM Payments will only be established after CM Payments has explicitly accepted an order for that purpose in writing or has confirmed in writing whether CM Payments and Merchant have signed an Agreement. With regard to price lists, brochures, information on websites and other data provided in the context of offers, price changes are explicitly reserved.
3.2 Offers are not applicable for future agreements.
3.3 Offers and obligations to perform Services, for which CM Payments needs an Exemption or an (additional) License, occur under the suspensive condition that CM Payments obtains this Exemption or License or has it and does not lose it.
4.1 The Agreement is only established and the Services will be provided after: a. the Agreement has been signed by CM Payments and Merchant; and b. there is a positive result from the Client screening procedure (“KYC”) as detailed in Articles 25.3 and 25.4.
4.2 Unless laws and regulations mandate otherwise or a different term is agreed upon, the Agreement has a term of one year.
4.3 The term of the Agreement will be tacitly extended each time for the duration of the initial term, unless CM Payments or Merchant terminate the Agreement in writing with due observance of a notice period of three (3) months prior to the end of the relevant period. If Merchant is a natural person, the Agreement is extended permanently at the end of the initial term and Merchant is entitled to terminate the Agreement in writing after the end of the initial term with due observance of a notice period of one (1) month.
4.4 Each Party can terminate the Agreement entirely or partially through registered letter if the other Party fails imputably in the fulfilment of its obligations under the Agreement and, insofar as fulfilment does not remain impossible, continues to fail in the fulfilment even after a notice of default written in as much detail as possible, with a period of ten (10) Working Days set for remedying the failure.
4.5 CM Payments can immediately terminate the Agreement entirely or partially without notice of default through registered letter: a. if Merchant is granted a suspension of payments, whether or not provisionally, if Merchant applies for or is granted bankruptcy, if a substantial part of Merchant’s property is seized, if Merchant’s business is liquidated or terminated other than for the purpose of reconstruction or merger of businesses, or if Merchant transfers to a third party its business activities relevant for the performance of the Agreement; b. when a situation of force majeure as specified in Article 24 has lasted for more than ninety (90) days; c. in the event that such termination is required by the government or due to amendments to the terms and conditions of Financial Institution(s); d. Merchant is a natural person and is in receivership, administration or has died; e. if there are reasonable grounds for CM Payments, in any case if Services are or will be used for criminal or illegal activities, if fulfilment is impossible or cannot reasonably be required of it, or if other circumstances arise through which it cannot be reasonably required that CM Payments maintain the Agreement without changes.
4.6 If, at the time of termination as specified in Articles 4.4 and 4.5, Merchant has already received performance in execution of the Agreement, such performance and the corresponding payment obligations will not be subject to cancellation, unless Merchant proves that CM Payments is in default with regard to such performance. Amounts that CM Payments invoiced prior to termination in connection with what it already performed or delivered in execution of the Agreement will remain payable with due observance of the provisions of the previous sentence and become immediately due and payable at the time of termination.
4.7 Provisions that by their nature are intended to continue after termination of the Agreement, remain after termination of the Agreement.
5.1 All prices are in Euros and exclude value added tax (VAT) and other charges imposed by government.
5.2 Merchant owes CM Payments the rates as agreed upon in the Agreement, as well as any penalties and costs that Financial Institutions may impose on Merchant or CM Payments.
5.3 The Fees for the Payment Services consist of monthly subscription fees, other periodic charges and other Fees.
5.4 By signing the Agreement, Merchant authorises CM Payments, as well as the Foundation, to receive Payments on accounts held in the name of the Foundation, to settle these Payments and to offset Chargebacks, Refunds or other claims of CM Payments with Merchant’s credits held by the Foundation.
5.5 CM Payments always charges the monthly subscription costs and other recurring costs owed by the Merchant one (1) month in advance.
5.6 When paying Transaction Amounts to Merchant, CM Payments will withhold from the Transaction Amounts that are periodically paid to the Merchant, the rates as agreed upon in the Agreement, as well as any penalties and costs that Financial Institutions may impose on the Merchant or CM Payments. CM Payments will invoice one-off and monthly fees, as agreed upon in the Agreement, as of the effective date. By signing the Agreement, Merchant authorises CM Payments and, to the extent necessary, the Foundation, to debit the outstanding amounts (claims from CM Payments on Merchant) from the bank account specified by the Merchant by means of a standing order.
5.7 Insofar as it proves impossible to collect the Fees from Merchant, the Merchant will receive an overview of the Fees still due. If direct debit is not possible, the invoice received by the Merchant will have to be paid 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. If the Merchant does not pay the invoice within the payment term on the invoice, Article 5.12 shall apply.
5.8 Rates are based on, among other things, the monthly volume and/or average transaction value and/or highest transaction value and/or risk factors. If there are changes to the terms and conditions included in the Agreement between the Merchant and CM Payments with regard to volume, transaction value, credit card mix (such as, for example, the share of corporate cards, the origin of credit card), etc., the Merchant is obliged to immediately inform CM Payments of these changes. CM Payments reserves the right, in the event of changes to the agreed upon transaction value and/or volume and/or expected credit card mix, to adjust the rates - whether or not retroactively at the time the changes commenced.
5.9 CM Payments is entitled to periodically adjust the agreed upon prices and rates by means of written notice to the Merchant. Adjustments will be applicable with due observance of a period of at least one (1) month after the written notice.
5.10 CM Payments reserves the right to adjust its prices on an annual basis at the beginning of the calendar year to reflect annual changes in the National Consumer Price Index (CBS).
5.11 CM Payments is in any case entitled to charge to Merchant price increases resulting from an obligation under laws and regulations. CM Payments will, to the extent possible, notify the Merchant in advance of such price increases.
5.12 If the Merchant fails to pay the amounts owed to CM Payments within the agreed upon term, the Merchant will owe statutory commercial interest on the outstanding amount without requiring any reminder or notice of default.
5.13 CM Payments and the Foundation are entitled to offset (payable) Fees against Merchant’s (payable) counterclaims on CM Payments and the Foundation, respectively. This is without regard to the currency in which the Fees and counterclaims are denominated.
5.14 All costs, taxes and/or levies relating to obligations entered into by CM Payments at Financial Institutions for Merchant will be borne by the Merchant, unless agreed upon otherwise in writing or mandated otherwise.
5.15 If CM Payments is involved in a seizure, dispute or procedure between the Merchant and a third party, then Merchant will reimburse CM Payments in full for any resulting costs (e.g. legal assistance costs).
5.16 CM Payments reserves the right to charge the Merchant, for Support activities that take place outside of Working Days and for which second-line support has been requested by the Merchant, an amount of € 125 per incident in the event the Merchant caused the incident.
5.17 The administration of CM Payments and/or the Foundation will serve as full evidence against the Merchant. When there is uncertainty about the content of an email message, the content of the email sent and/or received by CM Payments and/or the Foundation is determinant.
5.18 Merchant ensures that the contractual relationship between itself and Client enables CM Payments - via the Foundation - to receive Payments intended for Merchant. Merchant is obligated to adequately inform Clients or prospective Clients about the manner in which Clients can make valid Payments to Merchant through the Services. Merchant indemnifies CM Payments for claims that its Clients may make on Payments that Clients have made to CM Payments.
6.1 The Foundation is, pursuant to Article 5.13, entitled to settle Chargebacks, reversals and Refunds with the Book Balance. If Merchant’s credits are not sufficient to settle the Chargebacks, reversals and Refunds, the Foundation will collect the remaining amount from Merchant. By signing the Agreement, Merchant authorises the Foundation to debit the outstanding amounts that cannot be settled from the Merchant’s bank account by means of a standing order. Merchant indemnifies the Foundation for all direct and indirect costs and liabilities arising from Chargebacks, reversals and Refunds, regardless of their accuracy.
6.2 If Merchant has many Chargebacks and/or reversals, a Financial Institution may impose a fine on the Merchant. CM Payments and/or the Foundation can always charge these penalties and additional costs to Merchant, if and insofar as these have been settled by the Financial Institution with payments intended for the relevant Merchant. If the Financial Institution or CM Payments discontinues the Merchant Number, the Merchant cannot hold CM Payments and/or the Foundation liable for this act.
7.1 CM Payments offers the Merchant the option to use its Platform for the processing of Transactions and the resulting Payments. Merchant may use the Platform only for the website(s) listed in the Agreement. Merchant declares that it is entitled to use the website(s) listed in the Agreement and that these website(s) comply with applicable laws and regulations.
7.2 Merchant is prohibited from having websites other than those stated in the Agreement use the Platform without consent from CM Payments. Should CM Payments grant this permission, then the Agreement will be modified by stating the website(s) in the Agreement.
7.3 When entering into the Agreement, CM Payments assesses the products/services offered by the Merchant through the website(s). Merchant declares that the information provided to CM Payments in this regard is accurate and complete. As soon as Merchant makes changes to the products/services it offers through the website(s) included in the Agreement, it must notify CM Payments immediately. Merchant, with due observance of applicable privacy laws, will provide CM Payments upon first request with information about its activities and objectives. Upon request, Merchant will inform CM Payments of the origin of any funds deposited or to be deposited with CM Payments.
7.4 CM Payments has been licensed as a payment institution as specified in the Dutch Financial Supervision Act for the provision of payment services and is registered with and supervised by De Nederlandsche Bank. CM Payments must therefore satisfy the requirements relating to, among other things, managed business operations with integrity, the minimum shareholders’ equity, the safeguarding of the Merchants’ funds and the corresponding exchange rate rules and information obligations towards Merchants.
7.5 CM Payments and Merchant ensure compliance with all relevant legislation and regulations at all times, in particular pursuant to the Financial Supervision Act, Book 7 of the Dutch Civil Code and the Anti-Money Laundering and Anti-Terrorist Financing Act as well as the Sanctions Act 1977.
7.6 Merchant, its ultimate beneficial owner (UBO) and its representatives, are obliged to grant all cooperation and provide information to CM Payments in order to establish and verify, among other things, their identity, date of birth, marital status, legal capacity and authority, marriage or partnership property regime, legal form, place of residence and/or (statutory) place of business, insofar as applicable, their registration number in the trade register and/or other registers and their VAT number. Any changes to this information must be sent to CM Payments in writing as soon as possible. CM Payments may make copies of documents showing this data and record and retain the data. If Merchant is a legal entity or partnership, Merchant and its representatives are also obliged to provide information about the ownership and control structure of the legal entity or partnership upon CM Payments’ first request.
7.7 Based on a license, CM Payments is entitled to use the Platform, owned by a 100% subsidiary B.V. of the parent company CM Payments, CM Group B.V. In that capacity, CM Payments is entitled to grant sublicenses to Merchants.
7.8 CM Payments will never be responsible and liable, legally as well as financially, for the non-payment by a Client of the products and/or services purchased by that Client or the costs that a Merchant must incur in order to demand the funds from a Client.
7.9 CM Payments is authorised to immediately suspend or terminate the Merchant’s use of the Services without further notice if (i) there are facts and/or circumstances from which CM Payments can reasonably conclude that Merchant is not using the Services for the website(s) and/or goods/services stated in the Agreement, or that Merchant is providing goods and/or services in violation of the rules of a Financial Institution or CM Payments concerned and/or in violation of a applicable code of conduct and/or in violation of applicable laws and regulations in the country where the Merchant provides the goods/services; (ii) the percentage of reversals is reasonably unacceptably high.
7.10 The additional security 3D Secure is activated by default for all credit card transactions. If Merchant does not wish to use 3D Secure, it will notify CM Payments of this fact in writing. Only after explicit written approval from CM Payments will 3D Secure be deactivated. Merchant will indemnify CM Payments in that case for all third-party claims against CM Payments and for all possible damage that CM Payments incurs due to deactivation of 3D Secure.
8.1 Merchant is required to maintain Collateral. Determining the amount of the Collateral is at the discretion of CM Payments. The Collateral shall be held in a Foundation bank account. The Collateral will be paid to Merchant once the Merchant has met all obligations to CM Payments.
8.2 By applying these General Terms and Conditions, Merchant has: a. committed to pledge the Collateral to CM Payments as security for everything CM Payments owes or obtains from it at any time, for whatever reason; b. insofar as legally possible, the Collateral specified under point a) has been pledged to CM Payments; c. given CM Payments irrevocable power of attorney, with the right of substitution, to pledge the Collateral to itself on behalf of Merchant, possibly repeatedly, and to do everything useful for the pledge.
8.3 Merchant guarantees that it is authorised to make the pledge and that the Collateral is or will be free of rights and claims from parties other than CM Payments.
8.4 CM Payments may only proceed to evict the pledged property if it has a claim on the Merchant that is due and payable and the Merchant is in default. CM Payments will not recover more of the pledged amount than is necessary for the payment of the Merchant’s debt.
9.1 The Foundation acts as a custodian designated by CM Payments of the third-party funds and custodian of the Escrow Account. Terms and conditions regarding the management and custody of funds have been established between CM Payments and the Foundation. CM Payments and the Foundation do not pay any interest on the credit balance held for the Merchant in the payment account(s).
9.2 The Foundation exercises due care in the performance of its duties and takes into account, to the best of its ability, the legitimate interests of the Merchant and the Client.
9.3 CM Payments and the Foundation are jointly and severally creditor (Article 6:16 of the Dutch Civil Code) regarding the Fees and are explicitly entitled to withhold the Fees on the Merchant’s Book Balance. Insofar as necessary, Merchant hereby authorises the Foundation to collect any Fees on behalf of CM Payments.
10.1 CM Payments will only pay out the Transaction Amounts to Merchant after the funds from the Financial Institution have been received in a Foundation bank account.
10.2 CM Payments is entitled to suspend the payment of the Transaction Amounts if there is, or a suspicion of, improper use or fraud by Client(s) or Merchant.
10.3 In principle, CM Payments will have payments made to the account number included in the Agreement under the same name as Merchant with whom the Agreement has been signed.
10.4 CM Payments will pay the Transaction Amounts in the payment currency as agreed upon in the Agreement. If the payment currency has not been explicitly agreed upon, payment shall be made in Euros. If Merchant accepts Payments in a currency other than the currency in which the Merchant will be paid by CM Payments, CM Payments will charge a fixed percentage to cover the variable (bank) costs, the difference between the bid and ask rate (the spread) and the currency risk. Merchant cannot hold CM Payments liable for the conversion rate used.
10.5 If the costs of the Financial Institutions change, CM Payments is entitled to charge these to Merchant as of the date of change in the rates. Adjustment will occur after prior notification by CM Payments to Merchant.
10.6 If Merchant and CM Payments have agreed upon a Collateral, payment of funds from Payments processed through the Services will only occur for balances owed by CM Payments to Merchant in excess of the amount of the agreed upon Collateral.
10.7 Merchant guarantees that it will check payments made by CM Payments within 30 days and that it will immediately repay wrongful/incorrect payments made by CM Payments and/or the Foundation. After this period, any payment by and reporting of CM Payments will be considered correct.
11.1 CM Payments provides the Payment Services only to Merchants and Clients. A Merchant may not allow third parties to use CM Payments’ Payment Services unless explicitly permitted under the Agreement. If a third party wishes to use the Payment Services, a Merchant refers this third party to CM Payments.
11.2 Services are provided by CM Payments based on the data provided by the Merchant to CM Payments. Merchant will always provide all data or information useful and necessary for the proper performance of the Agreement promptly and grant all cooperation. Moreover, Merchant guarantees that the information provided and/or to be provided by it has been obtained or processed correctly, completely and lawfully.
11.3 Merchant will ensure that the Transactions are or will be concluded in accordance with applicable laws and regulations.
11.4 Merchant is obliged to provide all information about Clients that CM Payments requests from time to time in connection with the processing of the Transaction. Merchant is obliged to include in its agreements with Clients and/or general terms and conditions that Client is obliged to provide this information to Merchant and that Merchant is entitled to provide this Client information to CM Payments. CM Payments is entitled to provide this information to third parties in the context of Transaction processing.
11.5 Merchant is obligated to inform CM Payments immediately of any relevant changes to its business details. Company data includes: changes in registration with the Chamber of Commerce, changes in ownership and/or control relationships, contact details, relocation details, etc.
11.6 Merchant shall establish and maintain an adequate working connection between the Merchant’s platform and CM Payments’ platform.
11.7 To ensure availability and security for all Merchants of CM Payments, Merchant is deemed to provide its systems and related hardware and software necessary to establish a secure connection to CM Payments’ payment systems with the latest software updates on a regular basis. Should there be a need to change protocols, software or connections, CM Payments will inform Merchant in a timely manner, where possible. Merchant is expected to follow up this request within a reasonable time frame. Only in the event of an external, urgent situation for both parties can CM Payments request Merchant to make an immediate change.
11.8 Merchant is responsible for the secure storage of the data that grants access to the CM Payments system.
11.9 Merchant will immediately notify CM Payments of the loss, theft or unlawful use of one or more payment instruments used by Merchant or of their unauthorised use.
11.10 Merchant will use the Service only for purposes as agreed upon and described in the Agreement. Merchant can only implement changes after prior written approval from CM Payments. CM Payments reserves the right to set additional terms and conditions to the desired change.
11.11 Merchant will maintain a corporate payment account at a Financial Institution in the countries where it offers its products and/or services. In addition, it shall in any event maintain a payment account at a Financial Institution in an EU Member State. Merchant is obligated to maintain these payment accounts at least six (6) months after the termination of the Agreement.
11.12 Merchant shall cooperate fully with a complete and adequate KYC investigation by CM Payments.
11.13 Merchant will not have a debit balance on its Book Balance. If this situation arises, Merchant must immediately clear the debit balance and the Foundation will receive an immediately due and payable claim on Merchant equal to this debit balance plus statutory commercial interest. If Merchant does not immediately clear the debit balance, CM Payments is entitled to direct debit.
11.14 Merchant must comply with all relevant laws and regulations.
11.15 Merchant will not use the Services for the sale of goods and/or services that violate any law and, in particular, local and international fraud, money laundering and terrorist financing laws as well as sanction laws. If it is apparent that Merchant uses the Services for sales that are in violation of applicable local or international laws or regulations, CM Payments reserves the right to terminate the use of the Services immediately and without prior notice to Merchant and to also proceed to immediate termination of this Agreement.
11.16 The Services are prohibited for certain categories of services, products and businesses based on the terms and conditions of the Financial Institutions or CM Payments involved in a particular Payment Method. In the event that Merchant accepts credit card(s), it is itself responsible for verifying whether its services and/or products are permitted by the credit card issuer and the acquirers or other Financial Institutions in the chain that permits credit card Payments on behalf of the Merchant. Merchant can never hold CM Payments liable for third-party claims or fines as a result of providing unauthorised services and/or products.
11.17 In the event of repeated complaints from Financial Institutions about Merchant, CM Payments is entitled to terminate this Agreement with Merchant. In principle, this will only be possible after CM Payments has notified Merchant in writing of the complaints and has given Merchant a reasonable period of at least 14 days to adjust its working method. During that period of at least 14 days, CM Payments will not make any payments to Merchant. If the complaints nevertheless continue after this period or if the initial complaint is so serious that CM Payments cannot be expected to continue its service to Merchant, CM Payments is entitled to terminate this Agreement immediately.
11.18 When using Payment Method(s) whereby Financial Institutions (including so-called card schemes) are engaged by CM Payments, Merchant is obliged to comply with the institutions’ rules, conditions and procedures that apply to the relevant Payment Method. If and insofar as Merchant does not have the relevant conditions, rules and procedures itself, Merchant is obliged to request these from CM Payments. CM Payments provides the applicable rules, conditions and procedures used by the Financial Institution engaged by CM Payments for a Payment Method (and that changes from time to time) upon request to Merchant.
11.19 Merchant is not allowed to charge any additional excess costs for Payment Method(s) costs to Client(s).
11.20 Merchant is required, when using a Payment Method where the Merchant accepts payment cards (credit cards and international debit cards) that apply the international security standard Payment Card Industry Data Security Standard (“PCI DSS”), to satisfy this PCI DSS. CM Payments can set additional terms and procedures relating to PCI DSS as a condition for using a specific Payment Method.
11.21 Merchant is obliged to treat all means of access (such as username, password and digital certificate) to the Platform as confidential and to only make them available to employees or third parties engaged by Merchant who need to have access to the Platform in the context of their daily work.
11.22 Merchant may not make the functionality of the Services available to third parties or use it for the benefit of third parties.
11.23 Merchant provides a proper complaint and escalation procedure, where Merchant is always properly available via email and via another contact option.
11.24 Merchant must make the information about the complaint procedure available to the Clients in a clear manner and in an easily accessible place.
11.25 If Merchant uses text messaging services in the Payment Methods facilitated by CM Payments, Merchant accepts that CM Payments may be required by operators and/or competent authorities to provide the following information:
a. about other parties affiliated through Merchant. Merchant will perform the request from CM Payments within two (2) Working Days;
b. to be added in an electronic database that is administered by or on behalf of an operator and/or competent authority.
12.1 CM Payments uses a B2C Direct Debit for the provision of the Payment Method Direct Debit and related Debit services. A B2C Direct Debit can be reversed within 56 days. If B2C Direct Debit service is used, Merchant remains liable for any reversals during these 56 days.
12.2 Merchant takes appropriate mitigating measures to minimise the percentage of rejects/reversals when using B2C Direct Debit services. If the average reversal percentage for the past month exceeds 5%, CM Payments reserves the right to demand additional measures from Merchant to reduce this percentage. If CM Payments is of the opinion that proposed measures are not sufficiently effective, CM Payments reserves the right to block further use of the B2C Direct Debit or Payment Methods that use B2C Direct Debit.
12.3 CM Payments is entitled to charge Client for reversal costs and other reversals.
12.4 A Wrongful Direct Debit Report (“MOI”) can be requested by Clients up to and including 13 months after the Transaction Date. Merchant will grant all necessary cooperation to CM Payments in an MOI to settle such a report. CM Payments is entitled to charge the costs of an MOI to Merchant. 12.5 CM Payments reserves the right at all times to block further use of the Payment Method Direct Debit or Payment Methods using Direct Debit in the event of an excessive number of rejections, reversals, MOIs or a suspicion of (possible) misuse of Direct Debits. 12.6 Merchant’s liability for reversals, other types of reversals and MOIs will continue to be applicable for Direct Debit Transactions, even after the relationship between Merchant and CM Payments has ended for the periods in Articles 12.1 and 12.4.
12A.1 Microincasso 7 uses B2C Direct Debit. When using Microincasso 7, the provisions in this Article are also applicable to the provisions in Article 12.
12A.2 Microincasso 7 works via digital authorisation. Merchant is aware that such authorisation implies an increased risk of a successful MOI. For Merchant, an MOI can lead to the costs in Article 12.4 and measures described in Article 12.5.
12A.3 A successful Transaction processed through Microincasso 7 will be transferred to Client within a maximum of 14 Working Days after the Transaction Date.
12A.4 The following text messages are provided with the standard service: When using online flow: - Verification message (if applicable). When using text message flow: - Transaction confirmation message; - Request to provide IBAN (if applicable).
12A.5 The monthly fee includes the following to be performed by CM Payments: - set up to three (3) text message keywords for Merchant; and/or - develop one (1) mobile payment page for Merchant. Monthly costs for additional text message keyword/mobile payment page are € 25 per keyword/mobile payment page.
12A.6 Additional text messages sent via Microincasso 7 will be invoiced at € 0.10 per text message.
12A.7 CM Payments will settle or invoice a reversal during the period stated in Article 12.1 using the methods described in these General Terms and Conditions.
12B.1 Flexible Donations uses B2C Direct Debit. When using Flexible Donations, the provisions in this Article also apply to the provisions in Article 12.
12B.2 Flex Donations works through digital authorisation. Merchant is aware that such authorisation implies an increased risk of a successful MOI. For Merchant, an MOI can lead to the costs in Article 12.4 and measures described in Article 12.5.
12B.3 The following text messages are provided with the standard service: When using the online flow:
Verification message (if applicable). When using the text message flow:
New Transaction Notification;
Transaction Confirmation Message;
12B.4 The monthly fee for the use of Flexible Donations includes the following to be performed by CM Payments: -set up to three (3) text keywords for Merchant; and/or- develop one (1) mobile payment page for Merchant. Monthly costs per additional text message keyword/mobile payment page are € 25 per keyword/mobile payment page.
12B.5 Bulk text messages sent via Flexible Donations will be invoiced at € 0.07 per text message.
12B.6 A successful Transaction processed via Flexible Donations will be transferred to the Client seven Working Days after the Transaction Date.
12B.7 CM Payments will settle or invoice a reversal during the period stated in Article 12.1 using the methods described in these General Terms and Conditions.
12C.1 Autocollect uses B2C Direct Debit. When using Autocollect, the provisions in this Article also apply to the provisions in Article 12.
12C.2 For the payment of outstanding balances by Clients, CM Payments provides an iDEAL payment page.
12C.3 The provisions in Article 12D of these General Terms and Conditions are fully applicable when using Autocollect. CM Payments will arrange for a payment page in accordance with the requirements established by Currence iDEAL BV in the iDEAL Rules & Regulations.
12C.4 For sending payment requests to the Client, Autocollect offers the option to use text message or email. Text message or email is provided on the basis of an agreement between Merchant and CM Telecom B.V.
12C.5 Merchant is responsible for properly providing the IBAN numbers and relevant personal data.
12C.6 Merchant is responsible for obtaining a valid Direct Debit Authorisation from its Clients.
12C.7 The following Direct Debit steps are provided in the standard service:
12C.8 CM Payments will settle or invoice a reversal during the period stated in Article 12.1 using the methods described in these General Terms and Conditions.
12D.1 Merchant must comply with the terms and conditions for iDEAL, including the use of the iDEAL logo as described in the Merchant Integration Guide (“MIG”).
12D.2 Merchant guarantees that all of its online activities comply with the relevant laws and regulations and the MIG, including the legal obligation (Article 3:15 and following of the Dutch Civil Code) for web shops to publish the Chamber of Commerce number and VAT number on their websites and the obligation for web shops that their activities will not damage the iDEAL image.
12D.3 Merchant is obliged to cooperate with requests for information from Currence iDEAL B.V. under the iDEAL Rules & Regulations that are located on www.currence.nl.
12D.4 Merchant must obtain CM Payments’ prior written consent if Merchant wishes to use email link services with an iDEAL payment option. Merchant must comply with the terms and conditions for the use of the email link service with iDEAL payment option.
12D.5 Merchant is obliged to include the iDEAL payment method in the list of payment methods it offers in such a way that the iDEAL payment method receives at least the same attention as the other payment methods offered by Merchant.
12D.6 Merchant is obliged to check the status of the iDEAL transaction at CM Payments, the failure for which the risk of funds not received will be entirely at Merchant’s expense.
12D.7 CM Payments uses a standard expiration period of 30 minutes after order issuance by Merchant.
12D.8 Issuing Banks may not be removed from the iDEAL Bank List without instruction from Currence iDEAL B.V.
12D.9 CM Payments is obliged to forward Merchant data to Currence in the following cases:
12D.10 CM Payments proactively monitors the client’s payment traffic in order to register deviating behaviour and/or fraud. CM Payments may also be notified of fraud by Currence iDEAL B.V. or other participants in the iDEAL scheme. If any deviations or (attempts of) fraud are identified by CM Payments, then CM Payments can:
review the specific cases and the Client’s general file, where Client must answer additional questions regarding identified deviations within five Working Days;
possibly block further payment to Client in the event of (suspected) fraud;
share relevant information with Currence iDEAL B.V.;
inform other parties in the iDEAL scheme when CM Payments deems it necessary;
12D.11 CM Payments is entitled to take emergency measures upon instruction from the bank or Currence iDEAL B.V., such as, among other things:
blocking the Client’s iDEAL payments to Merchant;
12D.12 CM Payments is in no way liable for the availability of the QR server and QR generator and for the operation of the iDEAL app.
12E.1 Microincasso 10 uses B2C Direct Debit. When using Microincasso 10, the provisions in this Article also apply to the provisions in Article 12, except for Articles 12.3 and 12.6.
12E.2 Microincasso 10 works via digital authorisation. Merchant is aware that such authorisation implies an increased risk of a successful MOI. For Merchant, an MOI may lead to the costs described in Article 12.4 and measures described in Article 12.5.
12E.3 A Transaction provided with Microincasso 10 will be transferred to Client within a maximum of 14 Working Days after the Transaction Date.
12E.4 The following text messages are provided in the standard service: When using the online flow: - Verification message (if applicable). When using the text message flow: - Transaction confirmation message; - Request to provide IBAN (if applicable). This implies that the text messages that are minimally necessary for the effective completion of the Microincasso transaction are at the expense of CM Payments.
12E.5 When using Microincasso 10, additional text messages can be sent to Client upon Merchant’s request, in addition to those messages included in 12E.4. These additional text messages will be invoiced at € 0.10 per text message.
12E.6 The monthly fee includes the following to be performed by CM Payments: - set up to three (3) text keywords for Merchant; and/or - develop one (1) mobile payment page for Merchant. Monthly costs per additional text message keyword/mobile payment page are € 25 per keyword/mobile payment page.
12E.7. Merchant’s liability for MOIs continues to apply to Direct Debit Transactions even after the relationship between Merchant and CM Payments has ended for the period in Article 12.4.
12E.8. In the following cases: a) a reversal occurs after the initial successful Transaction; or b) there is a general or selective B2C Direct Debit block on the Client’s payment account; c) there is insufficient balance on the Client’s payment account; Merchant instructs CM Payments in advance to proceed, on behalf of Merchant, to follow up the outstanding payment obligation towards Merchant using the following method: - Subsequent Direct Debit attempts and/or sending a payment link; - To settle outstanding balances by Clients via a payment link, CM Payments uses an iDEAL payment page. If Merchant does not already use iDEAL, CM Payments will configure an iDEAL account in Merchant’s name. If, as part of the follow-up process, CM Payments proceeds to send payment requests by text message, the costs of these text messages will be at the expense of CM Payments.
12E.9 The provisions in Article 12D of these General Terms and Conditions are fully applicable when using Microincasso 10. CM Payments will arrange for a payment page to be set up in accordance with the requirements established by Currence iDEAL BV in the iDEAL Rules & Regulations.
12E.10 The residual risk of outstanding balances, after executing the follow-up process in Article 12E.8 by CM Payments on Merchant’s behalf, is at the expense of CM Payments, provided that Merchant, in the opinion of CM Payments, has provided sufficient cooperation in the context of the follow-up process.
13.1 Merchant also provides Payment Methods, where an agreement is also created between Merchant and the Payment Method Owner.
13.2 In order to provide the Payment Methods in paragraph 1, CM Payments will initiate an acceptance procedure at the relevant Financial Institution. CM Payments cannot guarantee the acceptance of Merchant by the Financial Institutions for allowing to provide specific Payment Methods to Merchant’s Clients. Merchant will provide CM Payments with all documentation and information necessary in order to successfully complete the acceptance process at the Financial Institution. If Merchant is not accepted at the Financial Institution, Merchant cannot hold CM Payments accountable for that fact.
13.3 Merchant collects Payments using the Platform. Merchant uses Payment Method(s) where CM Payments can engage other Financial Institutions. In that case, CM Payments has a contract with the Financial Institution and/or Merchant itself has a contract with the Financial Institution.
13.4 The General Terms and Conditions of the Payment Method Owner are applicable to the relationship between Merchant and Payment Method Owner.
13.5 There is (also) a contractual relationship between Client and Merchant as well as between Client and Financial Institutions. CM Payments is not involved in these contractual relationships and is only a contracting party for the Financial Institutions engaged by CM Payments itself on behalf of the Services and for Merchant.
13.6 If Merchant has its own Merchant Number that was provided on the basis of a contract between Merchant and the Financial Institution and this Merchant Number is used to process Transactions for specific Payment Methods via the Services, then CM Payments is not involved in the contractual relationship between Merchant and the Financial Institution.
13.7 Merchant indemnifies CM Payments for all claims, penalties, damages, liabilities, etc. of the Payment Method Owner and/or other third parties that result from the agreement between Merchant and the Payment Method Owner.
13.8 CM Payments makes the Payment Methods available to Merchant on an “as is” basis. CM Payments is not responsible for the proper functioning and availability of the Payment Methods. CM Payments cannot guarantee that the Transactions are processed without error.
13.9 In addition to the terms and conditions contained in the Agreement and in these General Terms and Conditions, the Financial Institutions have general and specific terms and conditions that may be applicable to Merchant. Insofar as Merchant uses (a payment method of) a Financial Institution, it is Merchant’s own responsibility to be aware of the Financial Institution’s terms and conditions that are applicable to its situation. Merchant is fully responsible for complying with these terms and conditions. Should the Financial Institution issue a claim or penalty to Merchant for non-fulfilment of the terms and conditions, Merchant can never hold CM Payments liable for that fact.
13.10 CM Payments, based on a request for that purpose by Financial Institutions, government agencies and Payment Method Owners, can impose additional requirements and terms and conditions on the use of the Payment Methods by Merchants. CM Payments will communicate the further requirements to Merchants as soon as possible. If Merchant does not agree to the announced changes, Merchant can terminate the Agreement with CM Payments in writing as of the effective date of the changes.
14.1 The delivery periods are target periods and will be respected as much as possible. The exceedance of a delivery term by CM Payments is not a shortcoming of CM Payments.
14.2 The Service is at Merchant’s risk from the moment of delivery, even if ownership or the right of use has not yet been transferred. Merchant is obliged to pay the rates due, irrespective of the destruction or deterioration of the Service due to a cause that cannot be attributed to CM Payments and also if Merchant is in default of performing an action required for delivery.
15.1 If Merchant is in breach of any obligation under the Agreement, these General Terms and Conditions and/or the applicable law and regulation, then CM Payments is entitled to suspend the provision of the Service.
15.2 Merchant remains liable for payment during the period that the provision of the Service is suspended in accordance with the provisions of this Article.
15.3 CM Payments is entitled to immediately terminate the provision of the Service, at its own discretion, if it has been established or suspected that the Services violate the Wwft, among other things through serving (but not limited to) fraudulent, money laundering or terrorist objectives, or conducting trade in the broadest sense of the word with Risk Countries or PEPs, or violating the rights of third parties. CM Payments is not liable for any damages suffered. CM Payments will report violations of the Wwft to the relevant authorities.
15.4 As soon as the reason for suspension has been removed by Merchant in accordance with the provisions in this Article, CM Payments can resume the provision of the Service. If applicable, the activation costs incurred by CM Payments for this purpose will be charged to Merchant.
16.1 If Merchant disputes the accuracy of an invoice sent by CM Payments, then Merchant will notify CM Payments of this fact via registered mail within ten (10) Working Days after the date of the relevant invoice.
16.2 If the dispute is not resolved within twenty (20) Working Days after the final payment date of the relevant invoice, then Parties can present the dispute before an external party with expertise. This external party shall be appointed in proper mutual agreement. Parties will also agree upon the costs involved in employing of the external party.
17.1 Parties are obligated to mutually maintain the confidentiality of all information relating to each other’s organisation during and after the execution of the Services as well as for a period of twelve months after termination of this Agreement and shall not, without the express prior written consent from the other Party, disclose to third parties in any manner whatsoever the content of the Agreement and all information of which it knows or should know to be confidential and that originates from the other Party or direct relations of the other Party. The provisions in this Article do not apply if disclosure is required by the government or the relevant Financial Institution(s).
17.2 Merchant fully guarantees that its employees, advisors and directors will comply strictly with the confidentiality provisions.
17.3 In the event of violation of the provisions in paragraphs 1 and 2 of this Article, CM Payments is entitled to immediately terminate the Agreement and, where appropriate, Merchant will pay CM Payments a penalty immediately due and payable of € 12,500 for each violation and an additional penalty of € 2,500 for each day that the violation continues, without requiring further summons or notice of default. This is without prejudice to Merchant’s obligation to indemnify CM Payments and without prejudice to any other rights of CM Payments.
17.4 Article 17.1 does not apply: - if the confidential information was already in the public domain at the time of its disclosure to the other Party in a manner other than a violation of the Agreement; - if the disclosure was explicitly approved by the other Party; - if the use or disclosure is necessary to fulfil obligations under the Agreement; - if the use or disclosure of confidential information is necessary for the execution of a legal obligation incumbent on either Party or its Affiliate under its own national law, any other regulation or in order to comply with an order from a court, authorised government or regulatory authority at home or abroad.
17.5 CM Payments is entitled to place the Merchant’s name and logo on CM Payments’ website and/or reference list and to disclose it to third parties.
18.1 With regard to Personal Data that is Processed in the context of the execution of the Payment Services, Parties are both independently responsible for processing within the sense of the Data Protection Legislation. In this context, Parties shall at all times comply with their obligations under Data Protection Legislation.
18.2 CM Payments will process Personal Data for the provision of the Payment Services, in connection with legal requirements, as well as in the context of the security and integrity of the Platform and/or the financial sector. The legal basis on which CM Payments bases the Processing of Personal Data is the need for Processing in the context of the execution of the Agreement with the Merchant, complying with legal obligations that rest on CM Payments and/or the justified interest of CM Payments as data controller.
18.3 For processing Transactions and Payments, CM Payments works with various Financial Institutions and shares Personal Data with Financial Institutions. CM Payments may also provide authorities authorised for that purpose with access to Transaction(s) as a result of a corresponding request.
18.4 Parties treat all Personal Data exchanged and Processed between Parties as confidential. Article 17 is fully applicable in this context.
18.5 Merchant will state in its agreement or general terms and conditions that it has been agreed upon with a Client that it has appointed CM Payments as payment service provider for the processing of Transactions and the resulting Payments.
18.6 Parties shall take appropriate Technical and Organisational Security Measures to safeguard Personal Data from loss and unlawful Processing. Parties acknowledge that regular adjustment of these security measures is necessary in order to comply with the Data Protection Legislation. Parties shall inform each other upon first request about the security measures taken.
18.7 If an Incident occurs in connection with Personal Data, Parties will inform each other of that fact and assist each other insofar as reasonably possible. A Party shall, in the event of such Incident, report it immediately to the other Party, but in any event within 24 hours after discovery.
18.8 Parties shall assist each other where possible in performing obligations under Data Protection Legislation insofar as the other Party makes a reasonable, timely and well-founded request regarding obligations under this Agreement, including but not limited to: (a) a complaint, query or request from a Data Subject regarding the Processing of Personal Data by CM Payments; (b) an investigation into or seizure of Personal Data by government officials or other persons, or any indication that such will occur; (c) Privacy Impact Assessments (PIAs) or other risk assessments required by law.
18.9 Each Party is responsible for taking appropriate measures to protect and respect the rights of the Data Subject in Processing operations for which that Party is responsible. If a Party receives a request from a Data Subject regarding Processing for which it is not responsible, this Party immediately, but no later than within ten working days, forwards the request to the responsible Party. The Party forwarding the request shall justify why it considers that the receiving Party is responsible for processing the request. The Party that forwards the request, if possible, will substantiate why it is of the opinion that the receiving party is responsible for the settlement of the request. Parties acknowledge that a Data Subject can exercise his or her rights under the Data Protection Legislation with respect to and against each of the Parties.
18.10 Parties indemnify each other for third-party claims against the other Party that result directly or indirectly from their own attributable failure to fulfil obligations regarding Processing of Personal Data under this Agreement and/or the applicable privacy legislation. If a Party has paid damage compensation to a Data Subject for damages for which joint liability applies on the basis of privacy legislation, that Party shall be entitled to recover from the other Party that part of the compensation for which the other Party is responsible on the basis of the Data Protection Legislation or the Agreement. A Party is not liable if this party proves that it was in no way responsible for the event that caused the damage.
18.11 With due observance of Data Protection Legislation and applicable marketing laws and regulations, CM Payments may approach Merchant with offers targeted to Merchant by CM Payments or CM Payments’ group companies. Merchant may opt out of such offers at any time.
18.12 If additional services have been agreed upon between CM Payments and Merchant that do not directly relate to the Payment Services and where CM Payments processes personal data on behalf of Merchant, CM Payments can be regarded as a processor for Merchant in accordance with privacy laws and regulations. The Data Processing Addendum is applicable to this processing of personal data.
19.1 CM Payments and its Affiliates are subject to legal obligations under national and international sanction regulations (including European and US sanctions regulations) in the country of establishment. Each entity of the Group to which CM Payments belongs will be involved in complying with the requirements under the sanctions regulations applicable to the other group entities. In this context, CM Payments can transfer data within the Group. This information may also be provided by the relevant group entity to the competent authorities.
19.2 Based on the obligations specified in Article 19.1, CM Payments can check whether the transactions that were performed in the context of executing the Agreement are in accordance with the sanction regulations applicable to the Group entities. If a transaction appears to be in violation of these regulations, CM Payments is free to not execute this transaction. In that case, CM Payments will inform Merchant of that fact.
19.3 Based on its obligations or those of its Affiliates as specified in Article 19.1, CM Payments is permitted to further process the data it obtains in connection with the performance of the Agreement, such as performing a screening of the transactions for possible conflict with the relevant European or US sanctions regulations. In the context of this processing, CM Payments can involve processors within Europe.
19.4 If CM Payments or an Affiliate provides information obtained in the performance of the Agreement to a competent authority within or outside Europe, CM Payments will inform Merchant of this fact, unless this is prohibited by laws or regulations or an order from a competent authority.
20.1 During the term of the Agreement, as well as for a period of one (1) year after its termination, Merchant is prohibited in any manner from starting up a service such as the Services or participating in an entity that wants to or already develops activities similar to those of CM Payments.
21.1 Each Party retains all intellectual property rights to the works that it contributes and that are used and/or made available under the Agreement. Each Party indemnifies the other Party for all third-party claims based on alleged infringement of the intellectual property rights it contributed. Unless explicitly agreed upon otherwise in writing between Parties, no transfer of intellectual property will occur under the Agreement.
21.2 All intellectual property rights, including, but not limited to all existing and future rights and claims on or relating to the use of copyrights and related rights, chip rights, trade name rights, trademark rights, domain names, patent rights, design rights and database rights relating to the Platform or related matters, belong exclusively to CM Payments.
21.3 All intellectual property rights to the materials developed by CM Payments for Client under the Agreement, such as hardware, software, analyses, designs, documentation, reports and/or quotations, as well as corresponding preparatory materials, remain exclusively with CM Payments and/or its licensors.
21.4 Merchant has a right of use with respect to a Service for the duration of the Agreement, insofar as this is necessary for the execution of the Agreement. None of the provisions in the Agreement or in these General Terms and Conditions will otherwise allocate any right to Merchant regarding the Platform and/or the Payment Methods or any related matters.
21.5 Merchant will never be entitled to make any adjustment to the Platform and/or the Payment Methods, nor will Merchant be entitled to make any copy thereof, decompile the Platform and/or the Payment Methods and/or otherwise edit or attempt to edit them.
21.6 Merchant is explicitly prohibited from reproducing, forwarding, disclosing and/or exploiting, directly or indirectly, CM Payments’ products, working methods, system documentation, manuals, recommendations and other intellectual products in the broadest sense of the word, unless these products are explicitly (and recorded in writing) intended for reproduction, disclosure and/or exploitation. Disclosure can therefore only occur after obtaining written approval from CM Payments.
21.7 Parties indemnify each other for third-party claims due to damage caused by one of the Parties providing incorrect or incomplete information, unless the providing Party demonstrates that the damage is not related to culpable acts on its part or was caused intentionally or was gross negligence on the part of the other Party.
21.8 Merchant will indemnify CM Payments if CM Payments is sued, in any legal form whatsoever, by a Client or Financial Institution due to the content or non-fulfilment or improper fulfilment of the agreement, or any other irregular transaction relating to the agreement as entered into between Merchant and the Client or the Financial Institution.
21.9 All costs to be incurred by CM Payments for, among other things, the disputes specified in the previous Article numbers between Merchant and, on the other hand, Client, Financial Institutions or third parties such as the Foundation, will be recovered from Merchant. These include, among other things, the costs to be incurred in court, for example, the costs associated with the earliest possible lifting of any seizure imposed by a Client, a Financial Institution or a third party on accounts held by CM Payments as a result of a dispute between Merchant and, on the other hand, Client, Financial Institutions or third parties.
21.10 CM Payments indemnifies Merchant for third-party claims based on any applicable (intellectual) property right of third parties, unless these claims relate to culpable acts of Merchant or were caused intentionally or due to gross negligence on the part of Merchant.
22.1 All complaints regarding the service provided and/or rates withheld must be made in writing to CM Payments by Merchant within 30 days after the transaction between Merchant and Customer, or within 45 days after discovery of the defect, if Merchant demonstrates that it could not reasonably have discovered the defect earlier. After expiration of the aforementioned terms, Merchant shall be deemed to have accepted the service provided. Complaints do not suspend Merchant’s payment obligation - for the part that does not regard a complaint.
23.1 CM Payments is solely liable for immediate damage that can be attributed to CM Payments. Immediate damage only includes: a. the reasonable costs to determine the cause and extent of the damage; b. any reasonable costs incurred to ensure that CM Payments’ deficient performance complies with the Agreement, insofar as these can be attributed to CM Payments; c. reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs led to limitation of immediate damage as specified in the Agreement. CM Payments is liable up to a maximum amount of the price per month stipulated for the Agreement (excluding VAT). In no event shall the total compensation for all claims resulting from this Agreement exceed € 50,000.00 (fifty thousand Euros).
23.2 CM Payments is not liable for indirect damage, including consequential damage, loss of profit, missed savings, damage due to loss of data or databases, destruction or loss of files and/or data, damage due to delay, loss suffered, provision of information and/or cooperation by Merchant, damage due to business interruption or third-party claims on Merchant. In particular, CM Payments is not liable for loss of revenue by Merchant as a result of the Merchant’s incorrect setting of the order amount (Payment amount).
23.3 Merchant indemnifies CM Payments for liability towards third parties.
23.4 If CM Payments suffers damage as a result of Merchant acting in violation of an obligation under the Agreement, these General Terms and Conditions and/or the applicable legislation and regulations, then Merchant is obliged to compensate CM Payments for the damage suffered as a result.
23.5 The limitations of liability included in Articles 23.1 and 23.2 will lapse if and insofar as the damage is the result of intent or conscious recklessness on the part of CM Payments’ management.
23.6 Unless stipulated otherwise, CM Payments will only be liable for attributable failure in the fulfilment of an Agreement if Merchant provides CM Payments immediate and proper written notice of default, setting a reasonable period for remedying the failure and CM Payments continues to fail imputably in the performance of its obligations even after that period. The notice of default must contain a description of the failure that is as complete and detailed as possible, so that CM Payments is able to respond adequately.
23.7 CM Payments is not liable for damage resulting from the untimely provision of Third-Party Services and for damage resulting from the fact that CM Payments has to comply with specific, changing and new legislation and other regulations.
23.8 CM Payments, whether or not in consultation with Merchant, can deploy resources to combat fraud. In the event of alleged fraud, CM Payments is free to stop the transaction (temporarily or permanently). Regardless of possible compensation for such resources, CM Payments will never be liable for any (alleged) failure of the resources or the occurrence of fraud or any other direct or indirect consequence of the use of the resources to combat fraud.
23.9 CM Payments is not liable for returns, Chargebacks and complaints from Clients or any refusal by Financial Institutions to execute a payment order from a Client.
23.10 The limitation of liability specified in this Article is also stipulated for the benefit of the third parties engaged by CM Payments for the execution of CM Payments, who therefore directly invoke this limitation of liability.
23.11 A condition for the existence of any right to damage compensation is always that Merchant notifies CM Payments in writing of the damage suffered within ten (10) Working Days after its creation.
24.1 CM Payments is not obliged to fulfil any obligation under the Agreement if it is prevented from doing so as a result of force majeure (“non-attributable shortcoming”).
24.2 If a situation of force majeure has lasted longer than 14 days, Parties are entitled to terminate the Agreement immediately through written notice. That which has already been performed pursuant to the Agreement will then be settled proportionally, without Parties owing each other anything else.
24.3 Force majeure on the part of CM Payments in the context of the Services shall in any case, without excluding other possible cases of force majeure, include:
24.4 If CM Payments is prevented from fulfilling its obligations due to force majeure, it will inform Merchant within ten (10) Working Days after the day on which the force majeure situation arose.
25.1 Merchant is not entitled to transfer its rights and obligations resulting from the Agreement to a third party, in whole or in part, without CM Payments’ prior consent, where this consent will not be refused without reasonable grounds. CM Payments is entitled to attach conditions to such permission. Merchant is and shall remain liable at all times for the third party or parties it hires.
25.2 CM Payments is entitled to transfer its rights and obligations resulting from the Agreement, in whole or in part, to a group company.
25.3 CM Payments is entitled to engage third parties for the performance of the Agreement.
26.1 CM Payments is a company that acts in accordance with laws and regulations and is supervised by DNB. Merchant can consult the status in the “Register of supervised institutions” at www.dnb.nl.
26.2 Merchant is aware that CM Payments and the Foundation have legal obligations and will indemnify CM Payments and the Foundation for damage they incur in connection with the application of relevant laws and regulations by CM Payments and the Foundation in the context of performing the Services.
26.3 In the context of the KYC, CM Payments will conduct a full investigation into the method of registration of client data, records relating to Merchant’s profile and products and services sold through Merchant’s shop. Merchant will also be identified and it will be investigated who (under corporate law) will ultimately be Merchant’s UBO. It will be investigated how Transactions are executed and processed, how Transactions are monitored and how irregularities concerning Transactions are reported.
26.4 Merchant guarantees that all information it provides in the context of Article 26.3 is correct and up to date. Merchant will notify CM Payments in writing of any change at least ten (10) Working Days prior to the effective date of the change. Merchant will, upon CM Payments’ first request, provide additional information and supporting documentation relating to its activities and its identity and that of its shareholders insofar as CM Payments may reasonably request such in the context of its obligations regarding the applicable laws and regulations, the Payment Method Owners and the KYC.
26.5 The acceptance of Merchant as user of the Services and the relevant Payment Methods by CM Payments is strictly personal and limited to the use of the Services by Merchant for payments for Merchant’s products and services. Merchant is not permitted to use the Services for payments for products and services of third parties, nor is Merchant permitted to resell the Services to third parties.
27.1 All offers from and Agreements with CM Payments and their execution are governed exclusively by Dutch law.
27.2 All disputes, including those that are only considered by one Party as such, resulting from or relating to the Agreement to which these General Terms and Conditions apply or these General Terms and Conditions themselves, will be presented before the competent court in Amsterdam, without prejudice to the possibility of higher appeal.
27.3 The applicability of the Vienna Convention is excluded.
27.4 These General Terms and Conditions have been created in Dutch and in English. In the event of any difference or inconsistency between the Dutch text and the English text of these General Terms and Conditions or any difference in their interpretation, the General Terms and Conditions created in Dutch shall prevail.
28.1 Announcements, including promises or (further) agreements, made by one party to the other Party, which are relevant to the execution of the Agreement, shall only be binding for the Parties if they have been made or confirmed in writing by a person authorised to do so.
28.2 Failure by one of the Parties to require fulfilment of any obligation by the other Party shall not affect the right to still require fulfilment, unless the relevant Party has explicitly agreed to the non-fulfilment in writing.
28.3 If one or more provisions of the Agreement and/or these General Terms and Conditions prove to be null and void or are annulled by the court, the other provisions remain in full force as much as possible. Parties shall consult on the void provisions in order to reach, as much as possible, a comparable and legally permissible alternative arrangement.
28.4 During the term of the Agreement, Merchant is entitled to request from CM Payments the contractual terms and conditions of the Agreement as well as the information for the Merchant stated in the Order in Council.
This Addendum describes the obligations of the Parties regarding the Processing of Personal Data by CM Payments on behalf of Merchant within the scope of and in relation to the Agreement. This Addendum only applies to additional services (‘Services’), explicitly not to the execution of Payment Services.
29.1 References in this Addendum to Data Protection Legislation shall be replaced by references to new applicable legislation that replaces and/or amends this existing Data Protection Legislation.
29.2 Regardless of the provisions of this Data Processing Addendum, CM Payments has the option to collect, compile and analyse non-personal, unidentified data or information resulting from the use or operation of the Services. The aforementioned data collected by CM is the sole property of CM and may be used by CM for legal and business purposes without notification to Merchant, provided that such data is used only in aggregate (non-identifiable) form. The terms and conditions of this Data Processing Addendum do not apply to the aforementioned data.
29.3 In the event of conflicts, the provisions of this Data Processing Addendum shall prevail over the provisions of the Agreement regarding the subject of Personal Data. Where individual provisions of this Data Processing Addendum are invalid or unenforceable, the remaining provisions of this Data Processing Addendum shall remain in full force.
30.1.1 Merchant shall act in accordance with all applicable laws when using the Services and all instructions from Merchant for the Processing of Personal Data must also be in accordance with Data Protection Legislation. Merchant is solely responsible for the accuracy, quality and legality of this Personal Data and the means with which Merchant has obtained this Personal Data.
30.1.2 Merchant shall maintain a complete, accurate and up-to-date record of the use of the Services as required under the Data Protection Legislation during the term of the Agreement. Upon reasonable written notice, Merchant shall provide information as requested and/or required by a regulator or other competent authority. Merchant must obtain (verifiable) consent from the End Users prior to use of the Services or be able to confirm the legal basis, including a record of each such consent and/or legal basis.
31.1.1 CM Payments will Process the Personal Data at all times in accordance with this Data Processing Addendum and the Agreement and only in accordance with the Processing purposes and further instructions from Merchant within the scope of the Agreement.
31.1.2 In the event that CM Payments is required to Process Personal Data based on the laws and regulations as specified in this Data Processing Addendum or the Agreement, CM Payments must be considered an independent Data Controller for those purposes. In this case, CM Payments shall notify Merchant in writing of this fact prior to Processing, unless the law prohibits such notice.
31.2.1 Taking into account the nature, scope, context and purposes of the Processing, as well as the likelihood and seriousness of the various risks to the rights and freedoms of natural persons, CM Payments will implement appropriate Technical and Organisational Security measures to ensure a level of security appropriate to the risk (including measures against unauthorised or unlawful Processing, loss and corruption of data, unauthorised disclosure of or access to Personal Data). Current information can be found at cm.com/about-cm/security-compliance/.
31.2.2 CM Payments shall continuously test, assess, evaluate and, where necessary, improve the effectiveness of the Technical and Organisational Security Measures for the purpose of safeguarding the Processing.
CM Payments guarantees that the persons authorised to process Personal Data are obligated to maintain confidentiality.
CM Payments shall treat Personal Data confidentially. In particular, CM Payments will not provide any Personal Data provided to CM Payments by, for or on behalf of Merchant to any third party without Merchant’s prior consent, except as provided and required for the execution of the Services under the Agreement.
31.5.1 If Data Subject wishes to exercise any of its rights under the Data Protection Legislation (such as, for example, right of access, right to rectification and addition, right to restriction of processing, right to be forgotten, right to data portability, right to object to the processing or right relating to automated decision making and profiling) and Merchant receives such a request from the Data Subject, then CM Payments may - if Merchant instructs CM Payments to do so - correct, delete or block Personal Data.
31.5.2 If CM Payments receives such a request from a Data Subject, it will first inform Merchant. Taking into account the nature of the Processing, CM Payments will, insofar as permitted by law, assist the Merchant in satisfying these requests. Reasonable costs incurred by CM Payments in assisting in the handling of such requests will be borne by Merchant.
CM Payments will provide the Merchant with further assistance as is reasonably necessary to satisfy Merchant’s obligations under the Data Protection Legislation, including:
(a) a “Data Protection Impact Assessment”, by providing information and cooperation that Merchant needs in order to perform such an assessment or requires for periodic review in order to assess whether the Processing of Personal Data is performed in accordance with this assessment;
(b) prior consultation with a supervisory authority in the event Processing would pose a high risk.
31.7.1 The certifications from CM Payments, issued by authorised institutions, are listed on CM Payments’ website in the Security & Compliance section, which provides information about privacy and data security, among other things.
31.7.2 Merchant is entitled to appoint an accredited external expert a maximum of once per year in order to verify the procedures related to data processing for Merchant. CM Payments will cooperate with such an audit upon reasonable prior written notice of no less than ten working days. Merchant will reimburse the time that CM Payments spends on such an audit, in accordance with the then applicable CM Payments rates for professional services, which may be made available upon request to Merchant. Before such audit commences, the Parties shall determine in mutual consultation, the scope, time and duration of the audit.
31.7.3 CM Payments is entitled to require the external expert to sign a non-disclosure agreement for CM Payments. Each report and each statement from the external expert will be made available to CM Payments. Merchant is responsible for ensuring that the audit interferes as little as possible with the CM Payments’ operations.
CM Payments will maintain a complete, accurate and up-to-date record of Processing Activities that are performed on behalf of all Merchants.
31.9.1 CM Payments has the option to transfer its obligations under this Data Processing Addendum to Affiliates in whole or in part. In this context, “Affiliate” is a legal entity that directly or indirectly exercises control over, is controlled by or is under joint control of CM Payments. There is “control” if more than 50% of the share capital or more than 50% of the issued share capital (which entitles the holders to vote for the election of directors or persons with similar functions) is directly or indirectly owned by a legal entity. CM Payments and Affiliates have entered into intercompany contracts, on the basis of which Affiliates that process Personal Data maintain safeguards that are in accordance with those of CM Payments. CM Payments is responsible for the compliance with this requirement by CM Payments and Affiliates.
31.9.2 Merchant acknowledges and agrees that (a) CM Payments’ Affiliates may be appointed as Subprocessors; and (b) CM Payments and CM Payments’ Affiliates may engage external (third party) Subprocessors in the provision of the Services, provided that CM Payments or CM Payments’ Affiliates have entered into a written agreement with each Subprocessor that includes safeguards that provide at least the same level of security regarding the protection of Merchant’s Personal Data.
31.9.3 CM Payments is responsible for its Subprocessors to the same degree that CM Payments would be responsible if it performed the services of each Subprocessor directly under the terms and conditions of the Agreement.
In the event of a Personal Data breach, CM Payments will: (a) notify the Merchant of the infringement without undue delay (but in no event later than forty-eight hours after the infringement becomes known). (b) provide reasonable cooperation and assistance to Merchant regarding actions that must be taken in response to a Personal Data Breach under applicable law, such as Articles 33 (3) and 34 (3) GDPR, including each communication of the breach to the Data Subject(s) and competent authorities. CM Payments will immediately investigate any Personal Data Breach and take reasonable measures to find the cause(s) and prevent a recurrence. If information is collected or otherwise becomes available, CM Payments, unless prohibited by law, will provide Merchant with a description of the infringement, the type of data that was the subject of the infringement and other information that the Merchant may reasonably request. The Parties agree in good faith to coordinate the contents of any public statements or required notices for the relevant Data Subject(s) and/or the relevant authorities.
CM Payments processes and stores data, including Personal Data, in accordance with the applicable laws and regulations, including but not limited to national telecom laws and other Data Protection Legislation. The data, including Personal Data, that is submitted to the CM Payments platform, will be processed and stored in accordance with CM Payments’ data retention policy. The Personal Data shall not be retained longer than necessary for the provision of the Services under the Agreement and insofar as required under applicable law. CM Payments removes identifiers or depersonalises data into anonymised and aggregated data. This results in data that does not contain any personal data or unique IDs so it cannot be used later to refer to Personal Data to which the data was once linked.
33.1 Nature and Purpose of the Processing CM Payments processes Personal Data insofar as necessary to perform and deliver the Services described in the Agreement and as further instructed by the Merchant in the use of the Services.
33.2 Categories of Data Subjects The Personal Data that is Processed relates to the following categories of Data Subjects: ● (potential) clients (who are natural persons) of the Merchant or its clients; ● Employees, contractors, suppliers or persons hired by Merchant’s clients; ● Contact persons of Merchant’s clients and business partners; ● Agents, consultants, freelancers of Merchant (natural persons); ● Users of Merchant who are authorised to use the Services.
33.3 Types of Personal Data Merchant may provide Personal Data within the Services, the scope of which is determined and controlled through Merchant’s sole discretion and which may include the following categories of Personal Data: first and last name, contact information (company, address, email address, telephone, address of physical location), title/position, IP address, employer, ID data, personal data, connection data.
The Personal Data is processed for the following purposes: Provision of the Services as described in the Agreement, handling complaints and disputes, providing information to emergency services and authorities, preventing fraud and criminal activity on the CM Payments platform.