Swish Payments Limited (“Swish”), a Company Registered in Malta with Company Registration Number C62721, having its registered address and principal place of business at MWH Building, 1st Floor, Oratory Street, Naxxar NXR2504, Malta, and is authorised and regulated by the Malta Financial Services Authority as a Financial Institution licensed to undertake payment services under the 2nd Schedule to the Financial Institutions Act (Payment Institutions). Swish Payments Limited is also a principal member of Visa International and MasterCard International.
You (the “Merchant”), whose details will be provided in due course.
WHEREAS the Merchant and Swish have agreed that the Merchant shall participate through Swish upon the terms of the Agreement in the following card scheme programmes:
Information on Swish Payments Limited (“Swish”)
Swish is a company registered in Malta with Company Registration Number C62721, having its registered address and principal place of business at MWH Building, 1st Floor, Oratory Street, Naxxar NXR2504, Malta. Swish is authorised and regulated by the Malta Financial Services Authority (“MFSA”) of Notabile Road, BKR 3000, Attard, Malta, as a Financial Institution carrying out payment services under the Second Schedule to the Financial Institutions Act (Cap. 376 of the Laws of Malta). The MFSA maintains a register of license holders on its website: www.mfsa.com.mt.
The MFSA’s address and contact details are:
Malta Financial Services Authority
Telephone: +356 2144 1155
Fax: +356 2144 1188
To contact Swish, please use the following contact details (unless otherwise stated):
1st Floor, Oratory Street
The Agreement shall only take effect from and including the date upon which the Agreement is signed both by Swish and by the Merchant and shall remain in force until such time as it is terminated in accordance with its terms. By signing the Agreement, the Merchant confirms that it has not been refused or had terminated any card processing facility by another credit or financial institution and that the Merchant has no lawsuits or Court judgments outstanding against it or its business. The Merchant understands that the Agreement is entered into by Swish on condition that all information submitted by the Merchant is true and complete and that the Merchant will forthwith notify Swish of any change in its circumstances which may affect the Merchant’s condition or status or ability to perform its obligations under the Agreement.
“Affiliate” means any natural or legal person participating in the MasterCard Card Scheme or the Visa Card Scheme as an issuer of Cards.
“Bank Account” means the bank account the details of which have been provided by the Merchant to Swish for settlement of funds as a result of operating the Merchant Account.
“Business Day” means Monday to Friday excluding public holidays in the Republic of Malta.
“Card” means either MasterCard or Visa Card.
“Cardholder” means a person to whom a Card has been issued.
“Card Reader” means the Swish hardware device which accepts Cards via the Chip or Magnetic Stripe and communicates with the Application.
“Card Scheme” means Visa Card Scheme or MasterCard Card Scheme.
“Chargeback” means an unpaid transaction which is returned to Swish by a Card issuer.
“Directive” means the Central Bank of Malta Directive No 1 on the Provision and Use of Payment Services.
“MasterCard Card” means any card bearing distinctive marking of the MasterCard Card Scheme.
“MasterCard Card Scheme” means the card scheme administered by MasterCard International.
“Merchant Account” shall mean the account on the Systems which details transactions and subsequent available balances as a result of the acceptance of Transactions by the Merchant via the Application.
“Micro-enterprise” means an enterprise, which at the time of conclusion of this Agreement, is an enterprise as defined in paragraph 3 of the Business Promotion Regulations (as subsequently amended).
“Service” means the service made available by Swish to the Merchant comprising both the Application and the Card Reader and the use thereof.
“Systems” means all components forming part of the Swish technological server infrastructure.
“Transaction(s)” means the purchase of goods or services effected by the use of the Card.
“Visa Card” means any card bearing distinctive markings of the Visa Card Scheme.
“Visa Card Scheme” means the card scheme administered by Visa International.
- The Service is being provided by Swish to the Merchant whereby Swish shall act as an acquiring and authorising processor, shall provide the Merchant with technical services, the Card Reader and a licence to use the Application and shall perform all necessary ancillary services in order for the Merchant to accept Card Present Transactions (i.e. where the Cardholder and the Card are present at the time of the Transaction) by means of Visa and MasterCard Cards in its normal line of business and as specified in the Agreement.
- Card not present transactions, including mail orders, telephone orders, fax orders, internet transactions and recurring transactions are not allowed unless approved in writing by Swish and, in such case, a separate set of conditions will apply.
PROMOTION OF THE CARD
- The Merchant shall adequately display the VISA and MasterCard marks in such manner as to inform the public that the Card will be accepted at the Merchant’s place of business. Any such display shall be removed by the Merchant immediately upon termination of the Agreement for any reason whatsoever.
- For Cards issued within the European Economic Area, merchants may limit their acceptance to one or more of the following categories: Debit, Credit, Prepaid and Commercial. Merchants who opt to limit Card acceptance to one or more of these categories are obliged to inform Swish in writing at least 30 days in advance.
UNDERTAKINGS BY THE MERCHANT
- The Merchant agrees to accept the Card as payment by the Cardholder for Transactions, and such use shall release the Cardholder from any obligation to pay the price to the Merchant for goods or services.
- In respect of each Transaction processed by means of the Service, the Merchant will ensure that the following conditions are observed:
- the Card does not appear upon reasonable examination to have been altered or mutilated;
- the Card bears a genuine distinctive hologram device;
- the Card has not been cancelled as shown in any notification issued by or on behalf of Swish;
- if applicable, the presenter of the Card is the Cardholder, being the person whose name is embossed on the face of the Card;
- if applicable, the signature on the Transaction receipt matches the name embossed on the face of the Card, the signature on the Card and the signature on the identification document presented, if any;
- the Card has not expired;
- the four digits printed below the embossed or printed card number on the Card do not match the first four digits of the embossed or printed card number on the Card;
- the Transaction is not illegal and does not damage the goodwill of Swish or the Card Schemes. Swish considers the following activities to be in violation of this clause: the sale of a product or service, including an image, which is patently offensive and lacks serious artistic value (such as, by way of example and not limitation, images of nonconsensual sexual behavior, sexual exploitation of a minor, nonconsensual mutilation of a person or body part, and bestiality), or any other material that Swish deems unacceptable to sell in connection with its affiliation to the Card Schemes;
- the price charged for the Transaction is not higher than the Merchant’s normal price;
- the Merchant has not deviated in any way from the terms of the Agreement or Swish’s current operating instructions;
- A Merchant must not submit to Swish a Transaction that the Merchant knows or should know to be fraudulent or not authorized by the Cardholder, or that it knows or should know to be authorized by a Cardholder colluding with the Merchant for a fraudulent purpose. The Merchant is deemed to be responsible for the conduct of its employees, agents, and representatives.
- In the event that the Merchant is required to effect a full or partial refund to a Cardholder in respect of a Transaction then any such refund should be effected to the Card that was used in the Transaction. In no circumstances may the Merchant effect a refund directly to a Cardholder via an alternative mechanism such as cash.
- The Merchant acknowledges and understands the importance of compliance with Visa and MasterCard security requirements, such as those relating to Transaction information, storage, and disclosure. The Merchant will endeavor to protect Transaction information and will maintain and demonstrate compliance with the Payment Card Industry Data Security Standards (PCI-DSS) and all subsequent requirement updates. PCI-DSS resources for merchants may be found at https://www.pcisecuritystandards.org/merchants/. The Merchant undertakes to avoid the storage of the Card number at any time.
- The Merchant undertakes to comply with Swish’s directions for the detention and forfeiture of void, cancelled or forged Cards and the return of such Cards to Swish or any party nominated by Swish. Where a Merchant has recovered a lost Card, it must notify Swish that it has recovered the Card and ask for further instructions.
- The Merchant shall ensure that all of its staff using the Service are properly trained in its use and that it has available technical and other data necessary to provide proper instructions in the use of such Service.
- The Merchant will retain for a period of at least twenty four (24) months or such longer period as may be required by Swish from the date of the relevant Transaction the Merchant’s copies of documents evidencing the Transactions and will permit Swish or its agent, at any reasonable time and upon giving reasonable notice, to examine and make copies of any such documents.
- The Merchant undertakes not to split Transactions into two or more smaller ones.
- If the Card Reader or any security details are lost or stolen, or if the Merchant suspects that someone other than the Merchant has used or tried to use them, the Merchant must notify Swish promptly and without undue delay.
- A surcharge amount, if any, must be included in the Transaction Amount and not collected separately.
- Swish shall be entitled to assume that a Transaction has been duly authorised by a Cardholder where either:
- the magnetic strip on the Card was swiped by the Merchant or the Card was inserted into a Card Reader; or
- the Card PIN was entered by the Cardholder or a sales slip was signed.
- The Merchant hereby undertakes to hold Swish harmless and fully indemnified against all actions, proceedings, claims, costs, demands and expenses which Swish may incur or sustain by acting upon or otherwise complying with any communications or instructions (including any authorisation for a Transaction) which Swish shall reasonably believe to have been made or given on the Cardholder’s behalf, and this irrespective of whether or not such communications or instructions are made or transmitted without the Cardholder’s authority.
- Swish shall be entitled to assume that a Transaction has been duly authorised by a Cardholder where either:
Swish agrees to pay to the Merchant an amount equal to the Transaction amount less the Commission in respect of each Transaction processed by the Merchant by means of the Service. The Commission Rate is specified in the Agreement.
- On every Business Day Swish will process all pending authorised Transactions automatically and after deducting the Commission owed to Swish and other amounts as may be required, including but not limited to reserve amounts and hold periods if applicable, and provided that the terms and conditions of the Agreement have been observed, will credit the Merchant Account.
- Funds in the Merchant Account will be transferred by Swish to the Merchant’s designated Bank Account as per Settlement Option provided in the Agreement.
- Swish will receive notification of authorisation (as stated in Clause 5 (a) above) by way of an electronic message in line with the rules and procedures of the Card Schemes. Pursuant to the foregoing, the point of time of receipt of the authorised Transaction data shall be the time when the said electronic message is received by Swish. Once Swish has received notification of such authorised Transaction data, the Transaction cannot be stopped or revoked.
- After the point in time of receipt of an authorised Transaction data in accordance with paragraph (b) above, Swish will ensure that the amount of the authorised Transaction will be credited to the Merchant Account at the latest by the end of the next Business Day.
- Swish is not obliged to process any invalid Transaction but may, at its sole discretion, elect to treat any such Transaction as valid.
- Where Swish has made payment on any Transaction, Swish shall nonetheless be entitled to debit any amount credited to the Merchant Account or, if such amount is not available in the Merchant Account, seek reimbursement of any amount paid to the Merchant where:
- the Merchant is in breach of any of the terms of the Agreement in respect of any Transaction;
- the Transaction is proved to have been created or generated improperly or without authority of the relevant Cardholder;
- Swish suspects that the Merchant is in breach of any terms and conditions of the contract giving rise to the Transaction or the Merchant has made misrepresentation whether intentionally or negligently in the course of the Transaction;
- the sale of goods or services to which the Transaction relates involves a violation of law or the rules or regulations of the Card Schemes or any governmental agencies, local or otherwise.
- If any amount is the subject of a pending chargeback by Visa, MasterCard or any Affiliate, Swish may withhold payment of that amount pending the final determination of the dispute. In addition, where Swish has made payment of any such amount, Swish shall nonetheless be entitled to debit such amount credited to the Merchant Account or, if such amount is not available in the Merchant Account, seek reimbursement of such amount paid to the Merchant.
- Swish may delay payments to the Merchant and require additional information from the Merchant from time to time.
- Prior to any settlement to the Merchant’s designated Bank Account, the Merchant may be required to complete certain authentication procedures including, without limitation, confirming its email address, bank account number (IBAN) and identity/social security/registration number.
- The currency of the Bank Account will be euro. All payments by Swish shall be in euro.
- Swish may withhold payment of any amount payable to the Merchant (in part or in whole) where fraudulent or suspect activity is identified. Any such amount withheld may be used to offset future Chargeback liability or fraud loss and will only be released in the eventuality that no Chargebacks arise.
- Swish may withhold payment of any amount payable to the Merchant (in part or in whole) where there are any sums due or owing by the Merchant to Swish, and the Merchant agrees that Swish may exercise set-off and deduct such amounts due or owing by the Merchant to Swish from any amount payable to the Merchant by Swish.
- Swish may issue invoices to the Merchant from time to time for any amount due and any such invoice shall be payable upon receipt. Invoices shall be deemed received if sent pursuant to the ‘Suspension & Termination’ clause of the Agreement.
- If required by Swish, the Merchant shall give Swish a direct debit mandate over the Bank Account for debiting amounts payable by the Merchant to Swish.
- Swish will provide the Merchant with the following information in writing or on another durable medium at least once a month:- (i) a reference enabling the Merchant to identify payment of Transactions made during the relevant month and, where appropriate, the Cardholder and information transferred with the Transaction data; (ii) the amount of the payments of Transactions made during the relevant month in euro; (iii) the amount and breakdown of the charges in respect of the payment of Transactions made during the relevant month; and (iv) the credit value date.
- Where Swish will be obliged to provide to the Merchant information indicating separately the merchant service charge and the interchange fee, the Merchant explicitly consents that such information can be aggregated by Swish by region, product group or category.
DISPUTES AND COMPLAINTS
- The Merchant will endeavour to settle any claims or complaints made by Cardholders concerning any Transaction within two weeks of notification by Swish or the claimant/complainant of such claims or complaints.
- The Merchant shall supply Swish without delay but, in any case, within a maximum of two weeks of demand by Swish, with all original documentation relating to the relevant Transaction. Notwithstanding the foregoing, immediately on receipt of any claim or complaint, Swish shall be entitled to debit the Merchant Account with the amount initially credited to the Merchant Account in relation to the Transaction in question or, if such amount is not available in the Merchant Account, the Merchant shall reimburse the amount of the payment made by Swish in relation to the Transaction.
- If the Merchant has any complaint about the Service, the Merchant should contact our Customer Service on +356 2247 4000 or alternatively via email on email@example.com. If the Merchant is still not satisfied with Swish’s reply or no agreement has been reached with Swish, any complaint may be referred to the Consumer Complaints Manager established under article 20 of the Malta Financial Services Authority Act (Cap. 330 of the Laws of Malta).
- The Application is being licensed to the Merchant by Swish for use in connection with the Service. The Merchant shall not attempt to alter, amend or reverse-engineer all or any part of the Application. The latest update of the Application provided by Swish must be used and use of the old version must be discontinued.
- The Application runs on mobile phone devices or tablets running factory versions of the iOS or Android operating systems. The Application will not run on modified operating systems to which the root access to the underlying operating system is allowed. The mobile device’s location services must be enabled.
- The Merchant must provide and maintain, at the Merchant’s expense, the mobile device required to use the Card Reader and the Application, together with the necessary telecommunication contracts allowing the transmission of the Transaction data.
- The receipt electronically submitted by the Application to the Cardholder does not replace any fiscal receipts which are to be given by the Merchant to the Cardholder as required by Iaw. Nonetheless, the amount of the Transaction on such receipt should be inclusive of all applicable taxes.
- The Merchant shall ensure that the Card Reader is at all times operated properly in accordance with the applicable instruction manual and will indemnify Swish for any loss or damage as a result of the Merchant’s failure to operate any Card Reader in a proper manner.
- The Merchant shall ensure that the Card Reader is kept in good condition and shall promptly report any malfunction or breakdown to Swish.
- Each Card Reader shall at all times be operated so as to comply with all applicable laws and the Visa/MasterCard rules and regulations. The Merchant will not permit any Card Reader to be programmed other than as authorized by Swish.
- Swish shall not be liable for any financial or other loss as a result of the inaccuracy of any information provided by a Card Reader. Swish makes no representation or warranty of any kind, express or implied, with respect to the Card Readers provided by it or its use or fitness for a particular purpose.
- The Card Reader will be provided to the Merchant against an initial deposit. Upon termination of the Agreement, the Card Readers will be returned to Swish with all connecting equipment on demand and in good order. If such equipment is returned to Swish in good order, any initial deposit will be refunded to the Merchant.
- At all times the Card Reader remains the property of Swish but the Merchant is responsible for any maintenance costs and liable for any damages to the Card Reader. The Merchant shall pay to Swish the amount certified by Swish as the cost to Swish of effecting such maintenance or repair of a Card Reader.
The Merchant may not assign the whole or any part of the benefit of the Agreement without the prior written consent of Swish. Swish may assign the whole or any part of the benefit of the Agreement to any person as it deems fit.
The terms and conditions of the Agreement including without limitation any operating instructions or the Commission may be amended and new terms and conditions may be introduced at any time and from time to time by notice in writing or on another durable medium of at least two months (or such shorter notice period as may be allowed by law) from Swish to the Merchant. Provided that immediate or no notice may be given where the amendment is necessitated by circumstances which give rise or are likely to give rise to a breach of the Agreement and/or of any applicable laws and/or regulations and/or to the Merchant’s inability to comply with the Merchant’s obligations under the Agreement and/or at law and/or in the event of changes imposed on Swish by any of the Card Schemes or in the event of any changes in the way the Merchant accepts to process transactions and/or in the event of any other serious or valid reason. The Merchant is to be deemed to have accepted these changes if the Merchant does not notify Swish that he does not accept them before the proposed date of their entry into force. The Merchant shall have the right to terminate the Agreement immediately and without charge before the date of the proposed application of the changes.
COMMUNICATIONS AND NOTICES
- Swish shall contact the Merchant by post, telephone, fax, or electronic mail using the details the Merchant has provided.
- Certain forms of communication are not completely secure and the Merchant shall take adequate precautions to ensure that others do not access, read or use any information contained in any communication between Swish and the Merchant. Swish shall not be liable if due to circumstances beyond its reasonable control, communications are intercepted, delayed, corrupted, not received or received by persons other than the Merchant.
- Swish will send information to the Merchant using the most recent contact details that the Merchant has provided to Swish and the Merchant shall notify Swish promptly about any change in the Merchant’s contact details.
- The Merchant may contact Swish by post, telephone, fax or electronic mail using the details Swish provides, unless otherwise specifically stated in the Agreement, and Swish shall inform the Merchant should such details change.
- The Agreement is in English and any communications between Swish and the Merchant shall be in English.
- The Merchant shall ensure that all information provided to Swish under the Agreement is at all times accurate, complete and up-to-date including, without limitation, the Merchant’s address and any other contact details.
- Any notice delivered by prepaid post will be deemed to have been received five (5) days after dispatch and evidence that the notice was properly addressed, stamped and sent by post will constitute conclusive evidence of posting. Any notice sent by electronic mail, or by fax, or delivered by hand will be deemed to have been received on the date on which it is sent or delivered, and failure to receive any confirmation shall not invalidate such notice.
- Swish will provide the Merchant, upon request and without charge, with a copy of the Agreement in paper or in electronic form.
SUSPENSION AND TERMINATION
- The Agreement may be terminated at any time by Swish and/or the Merchant by prior written notice stipulating the date upon which termination is to take effect. Provided that in the case of a Merchant which is a Micro-enterprise, Swish shall give notice in writing or on another durable medium of at least two months.
- To the extent allowed by law, Swish also reserves the right to suspend or terminate the Agreement immediately without giving prior notice if:
- the Merchant commits or is suspected to have committed any fraudulent or criminal activity or any other act that creates harm or loss of goodwill to Swish, Visa, MasterCard or any of their Affiliates, partners, distributors or agents;
- in Swish’s sole view, the Merchant experiences an escalation of Chargebacks in a given period of time;
- it transpires that the Merchant has given Swish false, inaccurate, incomplete or misleading information;
- the Merchant discontinues its operation or changes the trading name, the nature of its business, or ownership;
- the Merchant fails to cooperate with Swish in providing the required information for the ongoing due diligence process;
- the Merchant is insolvent or bankrupt or goes into or commences proceedings for liquidation or bankruptcy or makes an arrangement with its creditors generally;
- the Merchant has committed any material breach of the Agreement or in the case of a breach capable of remedy, did not remedy the same within 30 days or such other period stipulated by Swish;
- the Merchant’s Account remains dormant for more than 6 consecutive months;
- if any event or a series of events occur, which in the Swish’s opinion may affect the Merchant’s ability or willingness to comply with any of his obligations under the Agreement;
- for any reason valid at law.
- In the event of any suspension or termination for any reason whatsoever, Swish reserves the right to suspend payment of any amounts payable to the Merchant or withhold any future amounts payable to the Merchant as may be applicable in order to safeguard its interests.
- Any such suspension or termination shall not affect any rights and obligations accrued to either party prior to suspension or termination.
- All items including, without limitation, the Application, the Card Reader and any other equipment provided by Swish to the Merchant under the Agreement shall remain at all times the property of Swish and, on termination for any reason whatsoever, must be returned to Swish or deleted from the Merchant’s systems without delay.
- If the Agreement is terminated by Swish for any reason whatsoever, the Merchant may be listed on terminated merchant databases or files, hosted and supported by the Card Schemes. The Merchant has the right to request access to, and rectification of, the personal data concerning the Merchant, which is held in such databases or files.
INDEMNITY AND LIABILITY
- The Merchant is liable for and shall indemnify, and hold harmless Swish, its subsidiaries and any Card Scheme from any losses, costs, claims, actions, proceedings and demands (including reasonable legal costs, any penalties or fines imposed by Card Schemes on Swish and/or any increase in the card issuer interchange fee payable by Swish to card issuers which is attributable to the Merchant’s breach of the Agreement as well as Chargebacks including Chargebacks arising during a ‘Chargeback window’ as imposed by any Card Scheme as part of a monitoring programme for merchants identified and listed on global bulletins as having an excessive fraud or Chargeback activity) that arise out of or in connection with the Agreement, any transaction or the goods or services relative to the transaction, any promotion or marketing of any goods or services sold by the Merchant, improper activity of the Merchant, any misrepresentation by the Merchant to the Cardholder or any breach of any obligation or duty that the Merchant owes to the Cardholder, any investigations into transactions which are shown to involve fraudulent or criminal activity on the Merchant’s part, any breach of, or failure by the Merchant or his employees, agents or contractors to comply with, the Agreement, any act or omission done willfully or negligently by the Merchant, his employees, agents or contractors as well as any violation by the Merchant, his employees, agents or contractors of any applicable laws or regulations.
- In addition, the Merchant undertakes to indemnify and hold Swish harmless from and against all claims, liabilities, losses, damages, costs and expenses incurred or suffered by Swish arising as a direct or indirect result of any potential account data compromise resulting from the Merchant’s negligence or as a result of malicious software present on the Merchant’s host device comprising of a mobile phone, tablet or any other computer peripheral provided by the Merchant on which the Application is installed.
- Swish will endeavour 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 machine, computer, telephone line or software, whether belonging to or licensed to Swish or not, any industrial dispute or anything which is outside the control of Swish.
- Notwithstanding paragraphs (a) and (b), when the Merchant is a Micro-enterprise and payment for a Transaction is initiated by or through the Merchant: (i) Swish is responsible for the correct transmission of Transactions to the Cardholder’s payment service provider; (ii) where Swish fails to transmit a Transaction data correctly Swish shall immediately re-transmit that Transaction data, subject to applicable Card Scheme rules. If the Merchant requests information relating to a Transaction, Swish will endeavour to trace the Transaction data and notify the Merchant of the outcome. Where Swish is liable under this paragraph, Swish shall ensure that the amount of the Transaction is at the Merchant’s disposal immediately after that amount is credited to the Bank Account. Swish shall be liable to the Merchant for any charges for which Swish is responsible, and for any interest to which the Merchant is subject as a consequence of non-execution or defective execution of the Transaction data. Swish is not liable under this paragraph if its failure to correctly transmit a Transaction data was due to unavoidable, abnormal or unforeseeable circumstances beyond its control, or due to any requirement of applicable law or regulation.
- Notwithstanding paragraphs (a) and (b), when the Merchants is a Micro-enterprise and is the payer of funds: (i) if someone else uses the Card Reader to make unauthorized payments (for example, by making unauthorized refunds to a Cardholders), then the Merchant will be liable for a maximum of €150 for any losses prior to the Merchant notifying Swish in accordance with the terms of the Agreement. However where the Merchant has acted fraudulently, or as a result of intent or gross negligence failed to comply with its obligations under the Agreement, the Merchant will be liable for all losses incurred in respect of unauthorized payments up to the point at which the Merchant notifies Swish. The Merchant must notify Swish without delay, and in any event no later than 13 months after the debit date, of becoming aware of any unauthorized or incorrectly executed refund payments; (ii) where the Merchant has initiated a payment order (for example, where the Merchant has made a payment order for a refund to be paid) Swish shall be liable to the Merchant for the correct execution of the payment transaction up to the point at which the recipients’ payment service provider (for example, the Card issuer) receives the funds. However, if Swish cannot prove that the recipient’s payment service provider has received the funds, Swish remains liable to the Merchant. In circumstances where Swish is liable Swish will, without undue delay, refund to the Merchant the amount of the non-executed or defective payment. In all other cases Swish will, at the Merchant’s request, make immediate efforts to trace the payment and notify the Merchant of the outcome.
- Subject to paragraph (g): (i) Swish shall under no circumstances be liable to the Merchant, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of data or any indirect or consequential loss arising under or in connection with the Agreement; and (ii) Swish’s total liability to the Merchant in respect of losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the total amount of Commission earned by Swish for the Merchant’s use of the Service during the two (2) months period immediately preceding the event giving rise to the claim for liability.
- Nothing in the Agreement shall limit or exclude Swish’s liability for death or personal injury caused by negligence, or the negligence of Swish’s employees, agents or subcontractors; or fraud or fraudulent misrepresentation. No limitation of liability shall apply to any of the Merchant’s statutory rights under the Directive or Swish’s liability to the Merchant as described in paragraphs (d) and (e).
Swish shall be entitled to take such action as it thinks fit to enforce the Agreement and the Merchant shall indemnify Swish for all cost and expenses incurred by Swish in respect of any such enforcement action, including all legal fees, collection fee and disbursements on a full indemnity basis.
- The Merchant shall not (unless under legal compulsion to do so) or in accordance with the Agreement disclose any information obtained from a Cardholder by reason of the Merchant’s participation in the Visa Card Scheme and/or the MasterCard Card Scheme in any way to any person other than Swish without the Cardholder’s written consent.
- The Merchant shall not (unless under legal compulsion to do so) or in accordance with the Agreement disclose any information obtained from Swish by reason of the Merchant’s participation in the MasterCard Card Scheme and/or the Visa Card Scheme (as appropriate) to any person without Swish’s written consent.
- This clause shall continue in force despite the termination of the Agreement in respect of information obtained before termination.
- The Merchant and (in the case of a corporate Merchant) each of the partners/directors of the Merchant acknowledge that it is obligatory for them to supply their personal data requested in the Agreement or otherwise by Swish for the purpose of performance of the obligations undertaken and in order for Swish to continue the Agreement. The failure in providing any of the personal data to Swish may result in Swish’s inability to continue the Agreement. The Merchant and (in the case of a corporate Merchant) each of its partners/directors may always contact Swish to gain access to and request correction or amendment to the personal data.
- To the extent that any of the details provided by the Merchant to Swish, together with such information as may be subsequently supplied by the Merchant in any manner, whether orally in writing constitutes personal data within the meaning of the Data Protection Act (Cap. 440 of the Laws of Malta), the Merchant consents to the processing of such data for the following purposes; namely, for Swish to correspond with the Merchant when providing its products and services; for assessment and analysis (including credit and behaviour scoring and/or market or product analysis); for the detection and prevention of fraud and other criminal activity which Swish is bound to report; to develop and improve Swish’s products and services; and for Swish to comply with the principles, ethics and guidelines of the Malta Association of Credit Management of 86/2 Triq ta’ Mellu, Mosta (MACM), of which Swish is a member. Furthermore, the Merchant consents to the disclosure of information to, and to the exchange thereof with all Swish employees and its subsidiaries, associates, agents, Visa and MasterCard as well as any third party entitled to receive such information, and in case of any default by the Merchant in the fulfilment of any terms of this Agreement, to MACM.
- The Merchant also grants its consent for the following Merchant details to be made available to the Cardholder of the relevant Transaction for the purpose of providing a receipt and facilitating the direct communication between the Cardholder and the Merchant: Merchant Name, Merchant Place of Business, Customer Care Telephone Number, Customer Care Email Address. Swish may also include these details in any directories, guides or other promotional material used in connection with the Visa Card Scheme and/or the MasterCard Card Scheme.
- The Merchant consents to the use and processing of the Merchant’s personal data for purposes concerning direct marketing such as to inform the Merchant by mail or otherwise, about other products and services supplied by Swish, its subsidiaries, associates, agents, Visa, MasterCard or by other carefully selected third parties, and for research purposes. The Merchant is requested to inform Swish in writing if the processing of personal data for purposes concerning direct marketing is opposed.
- The Merchant and (in the case of a corporate Merchant) each of the partners/directors of the Merchant agree that Swish and any person to whom Swish has disclosed any information related to the Merchant (“Merchant Data”) or any of their personal data (the “Recipient”) may keep and transfer all or any of the Merchant Data and/or personal data to any country as Swish or the Recipient may consider appropriate. The transfer of personal data to a third country that does not ensure an adequate level of protection shall only be effected for the following purposes: (i) it is necessary for the performance of Swish’s Rights and Obligations arising under the Agreement; (ii) it is necessary or legally required on public interest grounds, or for the establishment, exercise or defence of legal claims; and (iii) it is necessary in order to protect the vital interests of the Merchant, or any person in respect of which personal data is processed by Swish in relation thereto.
- The Merchant may obtain information on Swish, including Swish’s current operating instructions from Swish’s website and may obtain information on the MasterCard and Visa rules and regulations from the relevant Card Schemes’ websites: www.mastercard.com and www.visaeurope.com.
- The Merchant agrees to: (i) if requested, provide Swish with the latest financial statements and any other information which Swish may require in order to assess the Merchant’s financial position; (ii) notify Swish in writing of any change in circumstances which may affect the Merchant’s condition or status or ability to perform its obligations under the Agreement including, but not limited to, any change of address, bank account and nature of business; (iii) provide such reasonable assistance as Swish may require for the prevention and detection of money laundering or any other fraudulent or criminal activity and for compliance with the Agreement generally. Swish will not be held liable for any fees or charges incurred as a result of the Merchant not notifying Swish of such changes. In the event that such fees or charges are incurred by Swish they shall be levied to the Merchant.
- If any provision of the Agreement is or becomes illegal or invalid, that provision will be deemed deleted from the Agreement and the remaining provisions shall continue in force.
- To the full extent permitted by law, the Merchant, not being a Micro-enterprise, hereby expressly opts-out of the following provisions of the Directive, namely, Articles 10 to 28, 30(1), the second sub-paragraph of Article 32 and Articles 37, 39, 44 and 52 contained therein.
- To the full extent permitted by law, the Merchant, being a Micro-enterprise, hereby expressly opts-out of the following provisions of the Directive, namely, Articles 40 and 41 contained therein.
- The Agreement shall be governed by and construed in accordance with Maltese Laws and, save as provided hereunder, the parties hereto submit to the exclusive jurisdiction of the Maltese Courts. This clause is for the benefit of Swish only. As a result, Swish shall not be prevented from instituting proceedings in any other courts with jurisdiction. To the extent allowed by law, Swish may take concurrent proceedings in any number of jurisdictions.(b) Nothing in the Agreement shall operate so as to exclude or restrict any liability, the exclusion or restriction of which is prohibited by the Laws of Malta.
- Where the Merchant consists of two persons or more, all or any of the aforesaid provisions are and shall be deemed to have been made by such persons jointly and severally.
- Swish shall endeavour to settle amicably and out-of-court any dispute or claim related to the Agreement (including the interpretation, validity, performance, breach or termination thereof) (the “dispute”). Any dispute not settled amicably and out-of-court within thirty (30) calendar days from receipt by the Merchant or Swish of a request for amicable settlement will be referred to and finally resolved by arbitration in accordance with the provisions of Part IV (“Domestic Arbitration”) of the Arbitration Act (Cap. 387 of the Laws of Malta) and the Arbitration Rules made thereunder, as in force on the date of commencement of the relevant dispute (such commencement to be established in accordance with such Arbitration Rules). There will be one arbitrator, to be appointed by agreement between Swish and the Merchant or, failing such agreement within fifteen (15) calendar days from the receipt by either party from the other of a notice proposing the names of one or more persons who may serve as the sole arbitrator, by the Chairman of the Malta Arbitration Centre at the request of either party. The seat of the arbitration will be in Malta, at such place as may be agreed or, failing such agreement, at the premises of the Malta Arbitration Centre.