Last Update: 12th of December 2019
These General Terms and Conditions (“GTC”) are the Legal Agreement, concluded between iCard AD, www.premiocard.com, with seat and registered office at: Bulgaria, Varna 9023, Business Park Varna B1, PO 9000, PO 1407, UIN: 175325806, info@premiocard.com, authorized and regulated by the Bulgarian National Bank as an Electronic Money Institution under the Electronic Money Directive 2009/110/EC (the “EMD”) with license No. 4703-5081/25.07.2011, entitled to provide payment services on the territory of Italy pursuant to Art. 28 of Directive (EU) 2015/2366 (the “PSD2”) as implemented in Italy by art 114 – decries of Legislative Decree n. 395 dated 1 September 1993, Principal Member of MasterCard, VISA and JCB, (hereinafter referred to as “iCard”) and Merchant who has requested acquiring of transactions with payment cards with the logo of Card Organizations and who has been approved by iCard.
1. DEFINITIONS
1.1. Unless otherwise provided, the following terms used in the Agreement and the General Terms have the following meaning:
1.1.1. "Authorisation": Approval of a Card Transaction by the issuer or by the relevant Card Scheme, transmitted through the payment gateway which is utilized by iCard for acquiring of Card Transactions.
1.1.2. "Business Day": the official working days of banks in Sofia, excluding non-working days of Card Schemes. When a Merchant finalizes its accounts, any Transactions after that time will appear on the next business day.
1.1.3. "Cardholder": a person to whom a Card Issuer has issued a Payment Card.
1.1.4. "Card Issuer": a Bank or a member of a Card Scheme which issues Payment Cards which will be accepted by the Merchant pursuant to the Agreement as designated by iCard to the Merchant from time to time during the life of the Agreement.
1.1.5. "Card Schemes": MasterCard International, VISA, JCB, CUP or any other domestic or international organization franchising the issuing and acceptance of Payment Cards and the settlement of Card Transactions, that may be designated by iCard and with whom iCard may have an agreement.
1.1.6. "Card Transaction(s)": A Transaction between the Merchant and a Cardholder for the sale, rental, licensing or other supply of or use and/or access to, or, as the case may require, settlement of any Provided Item evidenced by Merchants authorized card transactions as submitted to iCard, which is presented by the Merchant for processing by iCard or its representative.
1.1.7. "Chargeback": A Card Transaction to which clause 6 applies.
1.1.8. "Clearing": The process of exchanging financial Transaction details related to Card Transactions, Chargebacks, refunds and other amounts applied by Card Scheme between iCard and the Merchant for reconciliation of Merchants settlement position with iCard.
1.1.9. "Merchant Account": A payment account or account for electronic money held by the Merchant, specified in the Agreement to which all payments to be made between the Parties pursuant hereto and adjustments thereto shall be credited or debited by iCard. The Merchant hereby irrevocably grants iCard with right to directly debit its account for any amounts due for fees, chargeback or other compensation.
1.1.10. "Compliance" means(a) adherence to the relevant rules, regulations and policies of iCard; and (b) adherence to iCard access security, data privacy and information security and confidentiality requirements; and (c) adherence to the relevant rules and regulations as may be required by the Bulgarian National Bank, Bank of Italy, Italian or Bulgarian legislation or any other laws, regulations and directives whatsoever applicable; and (d) adherence to the relevant rules and regulations as may be required from time to time by MasterCard and/or any other relevant rules or regulations of any other domestic or international organization franchising the issuing and acceptance of payment cards and the settlement of Card Transactions.
1.1.11. "Credit Card": See Payment Card.
1.1.12. "Debit Card": See Payment Card.
1.1.13. "Employees": Agents, contractors and anyone acting on the Merchant’s behalf.
1.1.14. "Expiry Date": The date on which a Payment Card ceases to be active. Any Transactions submitted after this date will be rejected and if authorized will be subject to a chargeback.
1.1.15. "Fallback": Fallback processing is used when the Merchant is unable to obtain Authorisation by electronic means and following telephonic Authorisation requires the generation of an imprinted and properly completed Card Transaction slip providing Authorisation details.
1.1.16. "Payment": the funds subject to the Merchant Transaction that will be forwarded to the Merchant from iCard, excluding the amounts withheld by iCard in accordance to the present Agreement, chargebacks, refunds, returns and any other relevant amounts as mentioned in the Schedules and present Agreement.
1.1.17. "Payment Card" or "Card": Credit, debit, charge or pre-paid card in either physical or virtual form, each having an identifying number and an expiry date, issued by Card Issuer to Cardholder.
1.1.18. "Payment Record": Paper or electronic record of a Transaction between the Merchant and a Cardholder which shall be presented by the Merchant to iCard upon iCard request. The Payment Record should be kept by the Merchant for a period of eighteen months from when the goods are delivered or shipped or the services are rendered to the Cardholder.
1.1.19. "PCI - DSS": Payment Card Industry – Data Security Standard outlines security requirements for merchant websites, cardholder details, merchants and their employees.
1.1.20. "Provided Item" Any of the following goods and chattels of all descriptions, or real or personal property including charges in action or obligations of all kinds including but without limitation, charges and penalties of a public or private nature, subscriptions and other periodic charges, or recorded performances, literary and artistic works and any other material which may be the subject of copyright or performing right protection, whether or not such protection be still in force or data virtual and other electronic material.
1.1.21. "Refund or Return": If goods are returned to the Merchant the Merchant must refund the payment to the cardholder using a refund Transaction. A supervisor must authorize the refund before the Transaction is sent out and inform the Cardholder of any loss due to Forex.
1.1.22. "iCard Representative": An individual or entity appointed in writing by iCard to fulfill certain functions allocated to or assumed by iCard under this Agreement.
1.1.23. "Request for Copy": A reproduction of a Transaction information document provided by the Merchant in response to iCard’s request.
1.1.24. "Sales Guide": All reference materials containing the iCard rules and procedures, provided to the Merchant by iCard and as may be amended from time to time which describe in detail the policy and the Transactional requirements to be followed by the Merchant for the processing and collection of all Card Transactions and which are subject to Compliance and Card Schemes.
1.1.25. "SPD": MasterCard Site Data Protection Specification for secure storage of Cardholder data at a merchant’s site (includes PCI - DSS).
1.1.26. "Split Sale": Preparation of two or more Payment Records for a Single Transaction on one account in order to avoid authorization.
1.1.27. "Stop List or Warning Bulletin": List of card numbers that should not be authorized or accepted by Merchants. The Merchant should under no circumstances accept a Transaction attempted to be effected by a Payment Card that is on the Stop List.
1.1.28. "Surcharge": A surcharge is any fee charged in connection with a Card Transaction that is not charged if another payment method is used.
1.1.29. "Third Parties": Any other entity except iCard and the Merchant.
1.1.30. "TID": Terminal Identifier, a terminal number that will be assigned to the Merchant by iCard for each device or web payment server.
1.1.31. "Transaction" – A sale, rent, licence or a supply of goods and or services entered by and between a seller, lessor, licensor or a supplier from one side and a buyer, lessee, licensee and .a client from the other side.
1.1.32. "MID": Merchant ID, a special number that will be assigned to the Merchant by iCard for each device or web payment server.
1.1.33. “Top-Up User”: is an end user that wishes to load money into vouchers or prepaid mobile number via POS terminal of the Merchant;
1.2. All reference herein to the "Agreement" shall include the present General Terms, all Schedules and any other documents that maybe replaced and/or amended from time to time.
2. iCard's Acquiring Services
2.1. This Agreement shall enter into force after signing by both Parties.
iCard shall provide the Acquiring Service after activation of the TID account. The Merchant is obliged to sign Delivery Protocol for receipt of POS and other documents requested by iCard and provide them to iCard.
2.2. After entry into force of the Agreement iCard shall:
2.2.1. subject to compliance by the Merchant with its obligations under this Agreement, acquire the Merchant’s Authorized Card Transactions as submitted to iCard at a price equal to the face value thereof where necessary converted into the currency of the Merchant’s Account less such amounts as may be payable to iCard under clause 5 hereof or otherwise hereby and payable in accordance with clause 8 hereof. In case the Transaction is executed with a currency different from the currency of the Merchant’s Account, the conversion under the previous sentence is made on the basis of the applicable exchange rate for the Card, as determined by the respective Card Scheme.
2.2.2. pay into the Merchant Account the value of Card Transactions for each day on which card Transactions are effected by each Merchant less fees as described in Clause 5 and all other offsets, withheld amounts or deductions as may be permitted by this Agreement.
2.3. iCard shall, in cooperation with its affiliated enterprises, be responsible for the contractual customer care.
2.4. iCard shall endeavour to inform the Merchant regularly and in timely about the following topics:
2.4.1. Further developments in and extensions to the Acquiring Services;
2.4.2. Changes in the pricing structure;
2.4.3. Material changes in iCard's field of activity provided that said changes have an effect on the contractual collaboration with the Merchant.
2.5. iCard has the right to amend the scope and manner of the provided Acquiring Services without the consent of the Merchant, in particular, without limitation, in the event that the regulations of the credit card companies or statutory provisions regulating the payment services applicable to the activity of iCard are amended. The Merchant shall be notified of any such forthcoming amendments according to the terms and conditions set forth Under clause 9 hereof in writing and to the earliest opportunity before the amendment.
2.6. iCard is entitled to refuse to accept or pay for, in all or in part, any amount of successful Transaction in case it had been accepted to charge the same back to the Cardholder together with any expenses due to currency fluctuations as well as the statutory value or other losses that may apply. iCard reserves the right to withhold funds representing proceeds of transactions carried out pursuant to the Agreement if fraudulent activity is identified. These funds are to be used to offset future chargeback liability or fraud loss and will be released in the eventuality that no chargebacks arise.
3. RIGHTS AND OBLIGATIONS OF iCard
3.1. In addition to any other rights given to iCard by the Agreement, during the term of the Agreement and subsequently during such period as any Card Transaction or Chargeback or other issue arising from the operation of the Agreement shall remain unresolved iCard may: (i) re-investigate any information provided by the Merchant at any time, and in so doing iCard may require additional information to be provided by the Merchant; (ii) request credit reports and/or otherwise verify the Merchant’s current credit standing and funding adequacy; (iii) inspect all or any of the premises used by the Merchant in connection with its business (whether or not declared to iCard as premises within which the Merchant conducts Card Transactions), including Transaction financial and accounting records therein at any time during the Merchant ’s business hours and the Merchant hereby agrees to cooperate with any such inspection.
3.2. iCard may at any time verify that the Merchant is selling goods or services as stipulated in the Merchant Agreement. Where appropriate and required by iCard the Merchant shall procure that iCard and/or its advisers or agents may similarly inspect the premises of the Merchant’s contractors. The Merchant hereby agrees not to block iCard from visiting or obtaining details about its premises.
3.3. iCard is entitled to supply and maintain the POS terminal to the Merchant directly or via sub-contractor of iCard. The POS terminal shall be covered by 1 (one) year guarantee, as of the date of sending the POS to the Merchant. If during the guarantee term the POS has defected for reasons for which producer of POS is responsible (production defects, hidden defects or similar, referred to as “iCard Liability for POS”), the Merchant shall be entitled to request from iCard repair or replacement of the defected POS on account of iCard. The Merchant has to contact iCard and to try to identify the reasons for defects in the POS, after which the Merchant has to follow iCard instructions for sending the defected POS. iCard will perform repair or replacement within reasonable time after receiving the defected POS.
3.4. In case the POS has defected for reasons for which iCard or producer of POS are not responsible, or after expiry of the guarantee term, or because of reasons for which Merchant is responsible or due to force major events (referred to as “Merchant liability for POS”), the Merchant shall be entitled to request from iCard repair or replacement of the POS on account of Merchant. The Merchant has to contact iCard and to try to identify the reasons for defects/damage in the POS, after which if instructed by iCard to do so, the Merchant has to send to iCard the defected/damaged POS. After diagnostics of the defected/damaged POS iCard will send offer to the Merchant for repair or replacement of the POS and in case the Merchant does not accept the offer, iCard is entitled to charge the Merchant with 15 EUR fee for diagnostics and handling per defected/damaged POS terminal. In case the Merchant accepts the offer, iCard will perform repair or replacement after payment of the due amount by Merchant and within reasonable time after receiving the defected POS.
3.5. In each case the costs for sending to iCard and receiving the POS for repair or replacement are on account of the Merchant.
4. THE MERCHANT’S OBLIGATIONS and PAYMENT REQUIREMENTS
4.1. The Merchants shall comply at all times with the terms and conditions in the Agreement.
4.2. The Merchants shall permit iCard to inspect its premises to ensure that the Merchant Agreement has not been breached which includes in particular, but without limitation, as regards:
5. FEES AND CHARGES - CALCULATION AND COLLECTION
5.1. In consideration of the provision of the services described herein the Merchant shall pay to iCard a commission on the amount of each successful and/or valid transaction presented to iCard at a rate specified in the Agreement. The parties may also establish in the Agreement a minimum monthly commission amount to be paid by the Merchant regardless of Card Transactions and any other charges. The commission rate(s), minimum commission amount(s) and any other charges may be changed by iCard from time to time and such changes shall have effect from the time that they are communicated by iCard to the Merchant, unless the latter objects in writing and terminates the Agreement.
5.2. In addition, iCard may charge and the Merchant shall pay, upon demand, any charges arising as follows:
5.2.1. For all processing costs: Processing Costs resulting from Chargebacks that may arise during the Agreement or even after termination of the Agreement and any other charges incurred by iCard in respect of any query arising from a Card Transaction effected by the Merchant.
5.2.2. Card Schemes Fines and Penalties: The Card Schemes may impose various fines or penalties upon iCard for violation of their rules and regulations. To the extent that the Merchant is responsible for the violation, iCard shall recover the same from the Merchant. This provision is valid even after the Agreement is terminated.
5.2.3. Legal Fees and Costs: iCard shall pass through to the Merchant its legal fees and costs incurred in seeking legal advice in contract negotiations, work-outs, insolvency or other similar event, not in the ordinary course of the Merchant - iCard relationship described in the Agreement or costs incurred in the recovery of monies due to iCard hereunder. This provision is valid even after the Agreement is terminated.
5.2.4. Bank transfers fees: All bank transfers’ fees resulting from settlement and any other payments to the Merchant account will be born by the Merchant.
5.2.5. Collection of Fees and Charges: iCard shall collect any of and all the various charges and fees described above by: (i) initiating a direct debit from the Merchant’s Account or (ii) by direct payment by the Merchant to iCard or (iii) by deducting them from future payments to the Merchant consisting of the funds subject to Merchant transactions that will be forwarded to the Merchant through the Merchant from iCard (iv) by any other way that iCard may pursue.
6. CHARGEBACKS
6.1. iCard is entitled to refuse to accept or pay for, in all or in part, any amount of successful Transaction in case it had been accepted to charge the same back to the Cardholder together with any expenses due to currency fluctuations as well as the statutory value or other losses that may apply:
6.1.1. reasonably determines that the Transaction is in violation of any provision of the Agreement, the terms and conditions for Rolling Reserve amounts or any other securities included in the Agreement, or the rules and regulations of any applicable Card Scheme.
6.1.2. receives from the Card Issuer or a Card Scheme organization a Cardholder query of a Card Transaction charged to his account in respect of which the Transaction was conducted, provided that such chargeback shall be provisional pending investigation by iCard, the Card Issuer and/or the relevant Card Scheme of and ultimate determination of the query. The chargeback will be final to the extent that the determination by iCard is that the Cardholder’s objection to the Transaction in question should in all or in part be sustained.
6.2. The fact that Authorisation has been granted does not affect the rights of iCard to revoke payment or otherwise require repayment of the Transaction under this Agreement other than the issuer. In no event shall the fact that Authorisation was obtained by the Merchant be deemed to be representation by iCard that the particular Card Transaction is in fact a valid, authorized or undisputed Transaction entered into by the cardholder or an authorized user of the Card.
6.3. iCard is absolutely entitled in those cases that it considers appropriate not to accept a Transaction or in case that same has been accepted and paid to chargeback to the Cardholder the amount together with any expenses and without prejudice to the generality of this clause in the following cases:
7. MERCHANT’S WARRANTIES AND PRESENTATIONS
7.1. The Merchant shall:
7.1.1. at the end of each day on which Card Transactions are effected, report at the agreed cut of time all Card Transactions undertaken in the Merchant’s premises for that specific day.
7.1.2. provide to iCard all such assistance as iCard shall reasonably require in connection with any chargeback claim and in particular shall provide copies of all applicable invoices, web payment reference, delivery notes and receipts, internal stock control documents and relevant correspondence, and the like.
7.1.3. present to iCard the Transaction for processing within a time limit of three (3) working days of the cardholder confirming payment for the goods or services.
7.2. The Merchant warrants that each record of a payment is a true and correct record of a Transaction between the Merchant and the cardholder and in presenting payment, the Merchant warrants to iCard that all goods were delivered and/or all services were duly performed.
7.3. The Merchant warrants that each Card Transaction submitted to iCard for processing shall be presented to iCard within the time limit referred to in clause 7.1 above and that Card Transactions presented to iCard under the Agreement shall not also be presented for payment to another financial institution.
7.4. The Merchant warrants that all Provided Items being the subject of an acquired Card Transaction shall be delivered or otherwise made available to the Cardholder within such times and in compliance with all the terms and conditions, as shall be designated in the relevant Merchant Agreement with the Cardholder.
7.5. Merchant hereby represents and warrants to iCard that it:
7.5.1. does not use the acquiring services provided by iCard described in the Agreement (i) in connection with any illegal or fraudulent business activities which may damage the goodwill of iCard and/or (ii) in connection with any activities which are against Compliance and/or (iii) in connection with activities against compliance with the US food and Drug Administration Regulations and the Unlawful Internet Gambling Enforcement Act of 2006 which criminalizes the acceptance of US initiated financial instrument by operators of online casinos, cardrooms and sportsbook;
7.5.2. as of the date of execution of the Agreement and the Merchant Agreement it is duly organized validly existing and good standing under the laws of jurisdiction of incorporation, registered with all relevant registration bodies in jurisdiction of incorporation or the jurisdiction where its service takes place or the jurisdiction from which the consumer/buyer/ user of the Merchant site is present at the relevant time;
7.5.3. has the power to execute the Agreement and to exercise its rights and perform its obligations thereunder, and all corporate and other action required to authorize the execution of this Agreement and its performance of its obligations thereunder have been duly taken;
7.5.4. the execution of the Agreement and the exercise of its rights and performance of obligations thereunder will not result: (i) in any violation of any law to which it is subject; or (ii) any breach of any of the Memorandum and Articles of Association or other constitutional documents of the Merchant; or (iii) any breach of any deed, agreement of the Merchant made with any other person;
7.5.5. to the best of its knowledge, there is no action, suit or proceeding at law or in equity now pending or threatened by or against or affecting the Merchant which would substantially impair its right to carry on its business as now conducted or adversely affect its financial condition or operations;
7.5.6. has all consents, acts, conditions and things required to be obtained, done, fulfilled and performed as at the date of this Agreement in order: (i) to enable it to lawfully enter into and exercise its rights and perform the obligations assumed by it under the Agreement; and (ii) to ensure that its obligations hereunder are legal, valid and enforceable; and (iii) to make the Agreement admissible in evidence; have been obtained, done, fulfilled and performed;
7.5.7. all factual information relating to it and provided to iCard was, at the date it was provided and remains, true and accurate in all material respects and is not misleading and there are no other facts the omission of which would make any fact or statement therein misleading and there has been no Material Adverse Change;
7.5.8. knows and understands the business activities of iCard and any restrictions on those activities that may be imposed by any regulatory authority to which iCard may be subject to at any given time, or by the applicable laws, rules and regulations of any of these jurisdictions.
7.6. The Merchant shall provids iCard with prompt notice of its intent to (a) assign transfer or sell in any form or manner any substantial part of its total assets, or liquidate; (b) change the basic nature of its business, including selling any products or services not related to its current business; (c) change ownership or transfer control of its business; or (d) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a party to the Agreement assumes any interest in Merchant's business. Such notice shall include all relevant details regarding such change and/or transfer, including but not limited to, a complete update of all documents, related to the Agreement (hereinafter in this Section, the “Documents”). iCard shall have a period of 20 Business Days from the date it received the Documents from Merchant, to examine the Documents and determine whether such changes affect iCard's decision to provide services to the Merchant, and to notify Merchant either: (1) iCard approves such change and/or transfer; or (2) iCard terminates the Agreement, effective immediately upon mailing (by fax and e-mail) such notice.
8. THE MERCHANT’S ACCOUNT – PAYMENTS
8.1. Subject to iCard’s rights under the Agreement, iCard shall make payment to the Merchant in respect of each Card Transaction affected by the Merchants and authorized by iCard, by transferring it to the Merchant’s Account, specified in the Agreement. In respect of any particular completed Card Transaction, payment to the Merchant shall be made within seven (7) Business Days of the receipt of the Merchants end of day report reporting the authorized Transaction.
8.2. The Merchant agrees that the amount of any Card Transaction presented by the Merchant and paid for by iCard may be immediately debited by iCard from the Merchant‘s Account or deducted from future transfers, without notice or demand of any kind if the Transaction is deemed by iCard to be fraudulent.
8.3. iCard may charge all fees, payments and charges, including Chargebacks or refund attributable to fraud, due to iCard hereunder by deductions from future payments.
8.4. No acquisition of any Card Transaction shall be final, so long as the Transaction is subject to Chargeback, investigation of fraud or repayment. The Merchant agrees that iCard may revoke any prior provisional settlement of a Transaction by debiting it, without notice or demand of any kind, from the Merchant’s Account for the amount of the chargeback.
8.5. In the case of refunds, iCard will either deduct the full amount of the refund less the commission and/or Transaction fee from subsequent payments due by the Merchant or bill the Merchant for that refund.
9. CHANGE IN TERMS, POLICY, PROCEDURES OR FORMS
9.1. The Merchant agrees that iCard may make changes to the Agreement, iCard Policies, Instructions and procedures and forms from time to time. When these changes are not related to the preliminary information, which iCard is obliged by law to present to Merchant prior to entry into Agreement, iCard may introduce the changes with shorter notice. When these changes are related to the preliminary information, which iCard is obliged to present to Merchant prior to entry into Agreement, such as for example changes in Tariff, changes in the Payment Services provided by iCard, changes in the applicable languages, or other preliminary information required by law, iCard shall give Merchant two (2) months' notice of such changes by email sent to Merchant email address and/or by notifying Merchant in Merchant Personalized Page for the Service or on the website for the Service before their proposed date of entry into force.
9.2. The Merchant understands and agrees that the Merchant will be deemed to have accepted the changes unless Merchant notifies iCard to the contrary by written notice, as provided in this Agreement, prior to the date on which the changes are to come into effect, in which case the Agreement will terminate without charge for termination immediately before the effective date of the changes.
10. TERMINATION
10.1. This Agreement is concluded for indefinite term and may be terminated as agreed on between the Parties.
10.2. The Agreement may be terminated by iCard with immediate effect and without need of prior notice to the Merchant in case of default of the Merchant, such as, but not limited to:
10.2.1. the Merchant misrepresents any data or information required by or provided to iCard;
10.2.2. the Merchant ceases to carry on the business or businesses disclosed to iCard, commences a new business which involves activities which are unacceptable to iCard, or all or substantially all of the assets of the Merchant’s business are sold, transferred or pledged;
10.2.3. a bankruptcy petition is filed by or against the Merchant or is insolvent or has applied for any other insolvency procedure.
10.2.4. there is a substantial change in the Merchant’s current credit standing or for any other reason based upon iCard’s policy or business decision;
10.2.5. more than 1% of Transactions of the Merchant in any one week are subject to chargeback requests;
10.2.6. If the Merchant violates the terms and conditions of this Agreement or other Agreements with the Merchant, including but not limited Merchant is in delay of payment of due amounts to iCard for 7 (seven) days.
10.2.7. If the Merchant is in any way or is found to be participating in fraudulent activity.
10.2.8. Merchant ’s representatives or officers or ultimate beneficiaries or successors in title or assignees commit or are accused of committing or having committed an act of grave misconduct and/or illegal act and or unacceptable behaviour and or fraudulent act in the course of business;
10.2.9. Merchant’ representatives and/or officers and/or ultimate beneficiaries and/or successors in title and/or assignees are prosecuted for or convicted of a criminal offence or professional misconduct.
10.2.10. Any competent supervisory authority or Card Scheme organization demands or instructs iCard to cease providing the services under the Agreement.
10.3. The Agreement may be terminated at any time by either of the Parties without cause and without incurring in extra costs and expenses for the termination by sending a 2 (two) month notice in writing to the other party.
10.4. Upon termination of the Agreement the Merchant shall return to iCard all advertising or promotional materials and all materials of iCard.
10.5. Termination by iCard shall not affect iCard’s rights under the Agreement as to Transactions presented to iCard prior to termination. If iCard exercises its right to terminate the Agreement, it shall have no duty to pay any Transactions from the time termination is effective. iCard shall also have the right to return without payment any and all Transactions previously presented by the Merchant but not yet irrevocably entered into iCard’s processing system.
10.6. The Merchant shall pay to iCard any outstanding commissions, charges and fees and all post-termination charges incurred after termination.
10.7. Upon termination of the Agreement, all provisions regarding indemnification, warranty, liability and limits thereon, and confidentiality and/or protection of proprietary rights and trade secrets, and any provisions which expressly or by their nature are required to survive such termination in order to achieve their purpose, shall so survive until it shall no longer be necessary for them to survive in order to achieve their purpose. Termination of the Agreement shall not relieve Merchant or iCard of their respective obligations to pay amounts accrued or owing, nor affect any legal rights or obligations which may have arisen under the Agreement prior to or at the date of termination.
11. INDEMNIFICATION AND LIMITATION OF LIABILITY
11.1. The Merchant shall indemnify and hold iCard, its directors, officers, employees, agents, independent contractors or Sources harmless from any liability, loss, damage, claim, penalty, demand, costs, expenses, obligations, recoveries, complaint, including reasonable attorneys’ fees, arising out of:
11.1.1. the Merchant’s negligence;
11.1.2. the Merchant’s failure to comply with or to enforce any provision of the Agreement;
11.1.3. the Merchant’s failure to take adequate fraud precautions and measures;
11.1.4. any loss caused by the Merchant’s violation of Card Schemes’ rules or regulations or the applicable laws in the jurisdiction where the Merchant operates or to which items may be delivered or made available; and
11.1.5. any claim or loss arising from a Cardholder because iCard has rejected a fraudulent transaction.
11.2. In the event that due to a breach of a material contractual obligation by the Merchant, iCard will be imposed Penalties by one of the Card Schemes, the Merchant shall indemnify iCard and hold iCard harmless from bearing these Penalties. Upon request a table of the current Penalties shall be made available to the Merchant at any time.
11.3. The Merchant agrees that it shall be solely responsible for its actions in retaining Cards’ and Cardholders’ details and that the Merchant will indemnify, defend and hold iCard and their members harmless from any claim, loss or liability, arising from any injury or persons, property or reputation, or any breach of the peace which occurs as a result of retaining a designated card.
11.4. The Merchant acknowledges the electronic nature of the Services to be supplied hereunder and the inherent risk that communications by electronic means may not reach their intended destination or may do so much later than intended for reasons outside iCard’s control. iCard will endeavor to give a complete service at all times, however it shall not be liable to any person if it is unable to perform its obligations under the Agreement due to the failure of any terminal, machine, computer, telephone line or software, whether belonging to or licensed to iCard or not, any industrial dispute or any thing which is outside the control of iCard.
11.5. iCard is entitled to withhold amounts amounts from procecessed transactions or other amounts in case of risks of claims, Card Organizations penalties, fines or other damages for which Merchant is or shall be liable to iCard under this Agreement or other Agreements, for a period of time, which is reasonably necessary to assess the damages for iCard. The Merchant agrees that iCard is authorized to satisfy immediately as they become due any obligations of the Merchant to iCard under this Agreement or other Agreements from amounts or any outstanding sums owed by iCard to Merchant, or current and future receivables of Merchant from iCard, including by deduction from the amounts due under this Agreement or other Agreements. iCard shall inform the Merchant on the ground, amount and value date of such withdrawals within reasonable period of time.
12. GENERAL
12.1. The Agreement may not be assigned by the Merchant without the express written consent of iCard. iCard may assign part or whole of its rights and obligations under this Agreement to a third party without prior notice to Merchant, for which Merchant agrees unconditionally and irrevocably upon entry into this Agreement. iCard shall notify the Merchant on assignment of this Agreement to a third party within reasonable period of time via e-mail or other reasonable means.
12.2. Any notice sent by the Merchant to iCard under this Agreement should be sent by registered post to iCard’s address of registered office, stated above in the Agreement, except that:
(i) Notification of loss, theft, unauthorized use or security breach of Merchant Identifying Credentials or POS must be made immediately to the Contact Center of iCard, on numbers notified to Merchant by iCard or has to be sent, as soon as possible via email to iCard;
(ii) Notification by the Merchant that the Merchant does not agree to the amendment of the Agreement and wishes to terminate the Agreement prior to entry into force of the amendments should be sent via email to iCard by the Legal Representative of the Merchant.
12.3. “iCard”, “iCard.com”, “iCard.it” and all related URLs, logos, marks or designs, software, interfaces or other related to the Services, including logos and marks of iCard and Card Organizations such as MasterCard Secure Code or Verified by VISA or J/Secure are protected by copyright, trademark registration or Patent or other intellectual property right of iCard or third party Licensor. The Merchant may not use them without agreeing with this Agreement, in breach of this Agreement or after its termination for whatever reason. Merchant may not copy, imitate, modify, alter or amend, sell, distribute or them in any case.
12.4. Should any provision of the Agreement be determined to be invalid or unenforceable under any law, rule or regulation, that determination shall not affect the validity or enforceability of any other provision of the Agreement.
12.5. The Agreement and those matters expressly incorporated herein by reference, including but not limited to any and all General Terms and materials, are the entire Agreement between iCard and the Merchant and supersede all oral negotiations or prior writings.
12.6. Any claim or dispute arising under the Agreement or as a result of the provision of the Service by Issuer should, in the first instance, be referred to Issuer to the following email: info@premiocard.com. Client has to submit Complaints in writing and clearly stating the reasons for complaint. Issuer shall review the complaint within 15 days from its receipt under the condition that the complaint is presented in a clear and understandable manner and is submitted correctly. In case there is no reply to the complaint due to circumstances that are beyond the control of the Issuer the latter shall be obliged to write back to the Client with the reasons for the delay and the reasonable time in which the issue subject of the complaint will be resolved. In any case the rectification of the issue will be provided within 35 days from the receipt of the complaint from the Client. Client may refer any complaints not resolved to Client satisfaction to the for examination by the Conciliation Commission for Payment Disputes on the following address: Bulgaria, Sofia, 4A Slaveykov Square, fl. 3, which is entitled to offer out-of-court solution, which have to be accepted by both parties.
12.7. The Agreement shall be governed by and construed in accordance with the laws of Bulgaria. All disputes, arising from this contract or related to it, including those arising from or concerning its interpretation, invalidity, performance or termination, as well as the disputes for filling gaps in this contract or its adaptation to newly established facts, shall be finally settled by the courts of Bulgaria in Sofia, which shall be exclusively competent to resolve the dispute.
12.8. The language of the Agreement and all documents, connected to it, is English. The provision of the Agreement and other documents in any other language is only for the sake of the convenience of the Merchants and third contractual parties and in the event of contradiction the English version shall prevail in any case. The Merchant is entitled to receive at any time the effective English wording of any document, connected to the Agreement.
12.9. The information contained herein and related to the activities of the Merchant can be exchanged by iCard with any related company within the group of companies of iCard, sub-contractor or Agent of iCard, any person providing a payment gateway and with any other member or controlling body of the relative Payment System.
12.10. Subject to the foregoing clause, iCard and the Merchant agree to keep confidential and not disclose to any Third Party any information received from the other that is not publicly available and the terms of the Agreement including, without limitation, the commission and/or Transaction fee. The Merchant shall take all steps necessary to prevent the transfer or disclosure of Cardholder information to any Third Party and will not use or disclose the names, addresses or account numbers of the Cardholders, except as otherwise provided in the Agreement. For the avoidance of doubt the obligations in this clause shall survive the termination or expiry of the Agreement.
