1. Opening Provisions
ComGate Payments, a.s., a company with registered seat: Prague 7 - Holešovice, Jankovcova 1596/14a, ZIP: 170 00, Id. No.: 279 24 505, VAT No.: CZ27924505, registered on: 16 July 2007, file no. B 17614 maintained by the Municipal Court in Prague, providing payment services based upon a license issued by the Czech National Bank – Payment Institution, hereby issues these Business Terms specifying the terms and conditions of business relations between the Provider and its Clients.
These Business Terms are an integral part of the Agreement between the Provider and the Client. In case of discrepancies between the Agreement and these Business Terms, the Agreement shall prevail.
Acquirer is a card transaction provider, acting as an intermediary in relation to the Provider and Card Companies. We secure online card payments in collaboration with BS PAYONE GmbH, Lyoner Straße 9, DE-60528 Frankfurt am Main, Germany, +49 (0) 69 6630-50, email@example.com and ČSOB, a.s., Radlická 333/150, 150 57 Prague 5, +420 224 111 111, firstname.lastname@example.org.
AML (Anti-Money Laundering) is a law preventing the legalization of proceeds of criminal activities (money laundering) and financing of terrorism;
D+1 is an optional service offered by the Provider, which guarantees that funds will be credited to the bank account of the Client on the business day immediately following the Transaction day.
Card holder is an entity, to whom a card was issued;
Chargeback is a refund of money deducted in a card transaction back to the Payer. It is done whenever a Payer refuses to have ordered a Payment Card payment or brings a complaint about a delivery of goods or services;
Issuer is an entity issuing cards, usually a bank, issuing cards to Payers.
Card Companies are companies, such as Visa International, Visa Europe and Mastercard Inc., which operate payment systems and grant licenses to issue and accept Cards;
Card is a credit or debit card issued based upon the rules of a Card Company or a card issued as a part of the luncheon voucher system;
Card Information includes card number, card security code, Card validity date (“expires end”) and information about the Card Holder specified on the Card;
Client is a Merchant, to whom the Provider provides its services, especially Payment Gateway services, Payment Terminals or other payment, money or credit services;
MOTO Transaction is any Transaction without a card carried out without the physical presence of a Card, during which the Card Information is provided to the Merchant by mail, fax, telephone, e-mail, booking portal or the Internet in order to effect a payment;
Point of Sale may be an electronic shop or brick and mortar shop of the Client, i.e. the place, where the Client operates its business and receives payments for goods or services;
Repeated Payments (card-on-file) is a function available for card Online Payments, allowing regular payments from a Payment Card. In case of these payments, the Client inputs payment orders in the system in the required periods, allowing the Client to deduct from the Payment Card holder variable sums in periods determined by the Client;
Card Online Payment is a transaction carried out by a Customer in favor of the Client to pay for the purchased goods or services using a payment card on the Internet;
BT are these Business Terms;
PCI DSS (Payment Card Industry Data Security Standard) is an international standard setting norms of security of collection and processing of card information. The description of the standard is available on www.pcistandard.cz. Original versions of the documents in English are available on https://www.pcisecuritystandards.org/;
100 % Sum Payment is an optional service offered by the Provider, whereby Transactions are billed to the Client’s bank account in full, not lowered by Fees. Consequently, Fees are billed once per month during the month following the month, in which the payments took place;
Payer is a purchaser, recipient of goods and services of a Client;
Payment Gateway is a service of Payment acceptance on the Internet. It is secured by a sum of information systems, securing safe transfer of payment information on the Internet to effect payments for goods and services of a Client;
Payment Buttons of banks are tools to effect bank to bank transfer with immediate payment confirmation;
Fees are fees paid by a Client to the Provider for the Provider’s services;
Transfer means transferring money from the Provider’s bank account to the Client’s bank account as a part of Transaction settlement;
Terminal is a device allowing to read the Cards to effect Transactions and, thereby, payment for goods or services in the point of sale. A Terminal is also designated as POS.
Provider means ComGate Payments, a.s.;
Preauthorization is a function available for card Online Payments or payments through POS Terminals, which allows reserving a sum on the Payer’s Payment Card without actual deduction of funds. The hold period differs according to the Acquirer;
Refund is returning of money back to the Payer at the Client’s request;
Recurring Payments are a function of Card Online Payments allowing regular payments from the Card. In case of those payments, the Client orders only the first payment. Consequently, the same amount is being repeatedly deducted from the Card in predetermined time intervals;
SAQ Form is a self-assessment form regarding the Client’s compliance with PCI DSS rules;
Tariff is an annex of the Agreement including information about the Provider’s Fees, i.e. the Provider’s remuneration for the Services;
Beneficial Owner means the real owner as defined in Section 4 of Act no. 253/2008 Coll., on certain measures to combat money laundering and financing of terrorism;
Agreement is an agreement between the Provider and the Client, whereby the Provider undertakes to provide the services under Act no. 370/2017 Coll., on payments, Section 2, especially Payment Gateway services on the Internet, payments via Payment Terminals and selected other payment, money or credit services.
Transaction is the Payer’s payment for goods and services of the Client effected through the Provider. Transactions include especially, however not exclusively, any payments effected by a Card, using the card’s number or any other way by a Card Holder or approved by a Card Holder for the purpose of deducting the corresponding sum from the Card Holder’s account or using Payment Buttons or other service;
Merchant’s Website means any website owned or operated by a Merchant or its representative including or linked to a Payment Gateway of the Payment Service Provider or is otherwise used by the Merchant or its representative for processing of Transactions.
Merchant’s Obligations are all existing and future, actual or conditional obligations of a Merchant towards the Payment Service Provider, which are or may become due, deriving from this Agreement, including the right to be paid for any Chargebacks, Refunds, claims from cancelled Transactions or fines imposed by Card Companies and any other actual or conditional obligations of the Merchant towards the Payment Service Provider;
3. Set-Up and Operation of the Service
The service is conditional upon conclusion of an agreement between the Provider and the Client. The agreement may be concluded electronically.
The Client hereby represents to possess all licenses and permits required by law to render the performance according to the agreement. If the Client runs a business that requires special permit or license under applicable law, including for example, but not exclusively, lotteries, bets, pharmacies etc., the Client shall present the Provider with a valid permit to operate such business.
If the Client, the Client’s business activity or an Internet presentation of the Client fail to comply with the requirements specified in the Agreement, BT and other appendices of the agreement, valid law or principles of the Operator, the service shall not be started. The Operator shall be entitled to not start the service at its own discretion and shall not be obliged to defend the decisions or prove its grounds.
If changes occur on the part of the Client, its business activity or Internet presentation, which result in violation of the requirements specified in the Agreement, BT or other appendices of the agreement, valid law or principles of the Operator after the starting of the service, or if it is discovered that such circumstances existed already at the moment of starting the service, the service shall be suspended by the Operator. The Operator shall be entitled to suspend the service at its own discretion and shall not be obliged to defend the decisions or prove its grounds. The Operator shall notify the Client about any such decision without undue delay.
In a sufficient advance, in any case not less than 30 days, the Client shall notify the Provider of any change of identification information and any other changes of facts, which might affect the provision of the services and the Client’s ability to fulfill its obligations towards the Provider, as well as about any change of the Authorized Person. Without undue delay, the Client shall notify the Provider of all facts material to its legal standing (especially entering into liquidation, initiation of insolvency proceedings, bankruptcy order, forced administration etc.), especially: sale or lease of its business or any other change of ownership, change of address or bank account, change of legal form or name of the firm, change of products or URL addresses, change of beneficial owner.
The Client shall not be entitled offer goods or services for increased prices or worse terms for Payers paying by Card when compared to Payers paying by cash or other means, unless allowed by law or Card Association rules.
Without a previous consent of the Provider, the Client shall not be authorized to accept transactions unrelated to goods or services covered by the description of the point of sale included in the annex of the Agreement.
The Client shall not be entitled to process transactions on behalf of or on the account of a third party, neither legal entity, nor natural person.
The Client shall not be authorized to accept transactions to pay for any debts of the Client owed to the Client by a Card holder, unless such transaction is a payment for goods or services of the Client according to the description of the point of sale specified in the annex of the Agreement.
The Client shall not be authorized to pay cash, travel checks against Card payments, unless agreed upon separately as an approved service.
Tax included in the price of goods must be a part of the Transaction and cannot be paid independently.
The Client shall not be entitled to accept transactions, about which the Client is aware or should be aware that they are, by their nature, illegal or constitute a part of any illegal activity. Such transactions include especially, however not exclusively:
- payments not approved by the owner of the Payment Card;
- fraudulent payments;
- payments done based upon card information sent by email, written in a printed form or otherwise recorded;
The Client shall not be authorized to demand handing over of card information from a Payment Card owner, especially – however not exclusively – any sending of card information to the Client by email or provision thereof in written form or by oral dictation during a personal meeting or by phone or in any other form.
The Client shall not be authorized to record or process data regarding the payment cards of Payers or to secure the services of a third party for that purpose. If the Client considers or implements such function, the Client shall notify the Partner thereof immediately.
The Client acknowledges that the operation of the service may be limited or blocked by the Provider for any absolutely necessary period. The reasons of such limitation may include especially, however not exclusively, a request from the Bank, Acquirer or Card Companies or state agencies, especially in case of violation of statutory duties, moral or security rules by the Client or in case of other material reasons. The Provider may be obliged not to disclose such reasons to the Client by contract or by law. The provider shall not be liable for any planned or random failures or blackouts of the system on the part of banks, the Acquirer or other third parties participating in the operation of the service.
In case of suspected violation of valid laws, Card Company rules or the Agreement, the Provider shall conduct a forensic audit of the Client and the Client shall, in such case, provide all cooperation.
The Client hereby approves the use of its business name and logo by the Provider for the purposes of marketing presentation of the Provider, especially – however, not exclusively – the presentation of the Client’s logo as a part of the Provider’s Internet presentation.
4. Payment Gateway
If the Client accepts payments on the Internet, the Client shall state, clearly and unambiguously, the following information on its website:
- full name of the Client, registered seat and Identification Number, as stated in the commercial register, name of the commercial register;
- supply and warranty terms and conditions and rules of repeated or recurring payments, if applicable;
- all fees for the Client’s services including transport, packing and taxes;
- if the Client delivers goods abroad, all available target destinations and special delivery terms and fees;
- currency, in which the services are to be invoiced, not later than by order confirmation;
- customer services contact and complete address;
- Client’s customer data use policy.
The Client acknowledges that it shall be obliged to notify the Provider of any change of nature of the website specified in the Agreement including offered products and services, as well as other mandatory information, in sufficient advance, in any case not less than 30 days.
When accepting payments on the Internet, the Client shall further:
- list prices only in currencies reported to the Provider;
- in case of Recurring Payments, allow the Customers unsubscribe from the service simply online, thereby terminating subsequent payments;
- in case of test operation, the Client shall notify the Provider about the planned end of such test period;
- offer for sale goods and services not included in the prohibited areas list. The prohibited areas list may be found on the Provider’s website.
In case of violation of any of the above-specified duties, the Provider shall be entitled to halt the operation of the service and to terminate the agreement with the Client immediately.
The Client undertakes to permanently display as a part of its Internet presentation the logos of accepted payment cards. The logos must always be presented in the form provided by the Provider. In case of termination of contractual relationship, the Client shall immediately remove all the above-specified information from its Internet presentation. The Client acknowledges that Card Companies are the exclusive owners of their brands and graphic presentations of the logo and as such are authorized to forbid all or chosen ways of presentation of such logos with immediate effect.
The Client shall make accessible to the Provider all sections of the website, where the possibility of payment by Card is displayed.
Not later than on the effective day of the Agreement, the Client shall familiarize itself with the PCI DSS rules and undertakes to comply therewith. At the Provider’s request, the Client shall prove compliance with PCI DSS rules. The Client shall complete the SAQ form and present it to the Provider before final launch of the service.
In case of suspected fraudulent payment, the Client shall – at the Payer’s request – provide necessary documents for the payment, especially – however not exclusively – invoicing and delivery address of the end payer and proof of delivery of the goods by the forwarder.
5. Terminal Transactions
If a transaction is processed on a Terminal, any refund of the Transaction shall be processed by the Client on the same Terminal. The Client shall make refunds exclusively to the Payer’s card, which was used to carry out the transaction complained about.
If the Client has any suspicions regarding a Transaction, the Client shall ask the Payer for additional information in a scope sufficient to neutralize such suspicion. If such information is insufficient, the Client shall not carry on with the transaction.
The Client shall be liable for any loss or damage to the Terminal. In case of loss, destruction, theft or malfunction of a Terminal, the Client shall notify the Provider thereof immediately.
The Provider shall not be liable to the Client for any loss resulting from malfunction or defect of a Terminal or service and shall not be liable in any way in relation to any declaration, warranty, condition or representation regarding any Terminal. All warranties, conditions and liability deriving from law or otherwise related to Terminal defects, especially warranty for quality and fitness for a specific purpose or damage or loss resulting from such defects or related works, are hereby excluded.
The Provider shall be in no way liable for any loss, costs or expenditures on the part of the Client or a third party in relation to the use of the Terminal, especially regarding Terminal maintenance or software updates.
The Client shall be obliged to display promotional materials supplied by the Provided in its establishment, including especially logos of all payment card types, which the Client is authorized to accept. All such promotional materials must be removed by the Client after the expiration of the Agreement.
6. Fees and Bills
After money from a Transaction is credited to the Provider’s bank account, the Provider shall secure the Transfer, i.e. transferring of such money to the Client’s bank account decreased by the Fees.
Fees agreed between the Provider and the Client are listed in the Provider’s Tariff as attached to the Agreement.
During the month, the Provider shall apply the basic rate of transaction Percentage Fee. After the end of the month, if the Client is entitled to do so according to the Tariff, the Provider shall calculate the bonus and include it in the next bill for the service.
If the Client declares transaction volume significantly exceeding the highest tier specified in the Tariff, the Provider and the Client may agree upon extraordinary Fees different from the Tariff. Such agreement shall be specified in the Agreement and shall prevail over the Fees according to the Tariff.
In line with EU Regulation 2015/751, the Provider offers the Clients billing of fees in the Interchange++ regime (Interchange fee, scheme fee and processing fee) or in the cumulated fee regime.
The Client acknowledges that the Provider may change the billing method from the cumulated rate to Interchange++ at any time starting from the beginning of the calendar month following the Provider’s notification.
The Provider may change the service Fee with immediate effect in case of change of input fees on the part of Card Companies, banks or other entities, whose payment methods the Provider intermediates in its service.
Billings shall be carried out not later than on the 15th day of the month following the month, for which billing is prepared. Provider’s fees shall not include value-added tax.
In case of complaint about a Transaction on the part of a Payer, the Client shall always address the complaint through the Provider. The Provider shall credit the sum to the Payer’s card if the transaction was processed online.
The Provider is entitled to withhold Payments for Transactions for a necessary period, in case of suspected fraud or any action, which may result in money being refunded to Payers or may result in the Provider being fined by the Banks, the Acquirer, the Card Companies or other third party. The provider shall notify the Client of any payment being withheld.
If the Client’s payment is confirmed as unauthorized, the Provider shall lower the sum of payment of the Client’s money by the sum of the unauthorized Transaction, the so-called Chargeback. The Client acknowledges that in case of contesting a transaction or in case of a Chargeback, fees may be charged.
The Client shall notify the Provider of any inconsistencies and errors of the bill and invoice without undue delay. The Client shall present all complaints related to the transactions within 20 calendar days from receiving payment status notification from the Provider.
If the Provider is fined or if the Provider suffers any damage in relation to the Client’s business activity, the Client shall pay such fine or damage within 5 calendar days from receiving a written request to do so.
If the Client fails to pay its debts owed to the Provider duly and timely, the Provider shall be entitled to set-off any of its monetary claims against the Client against any monetary debts owed by the Provider to the Client, regardless of whether such debts or claims are mature or not and regardless of their currency and legal relationship they are based upon. Such set-off may be done also against a claim that is not yet mature.
If the Client defaults on the payment of its debts owed to the Provider under the Agreement, the Provider shall be entitled to claim a late payment interest of 0.05 % of the sum due for each day of delay.
The Provider shall not be liable for any damage resulting from faulty processing of data by the Client, the Acquirer, the Card Companies or other third parties participating in the operation of the service. The Provider shall not be liable for any errors in the implementation of the service by the Client whatsoever.
The Provider shall not be liable for any damage caused especially as a result of circumstances and events independent of the Provider’s will and outside the sphere of influence of the Provider, such as e.g. force majeure events and consequences of actions of third parties (e.g. hacker attack, fraud etc., which shall be considered force majeure). The Provider shall not be responsible for any service interruptions resulting from events specified in this paragraph. The scope of the Provider’s liability is further limited by Act no. 127/2005 Coll., on electronic communications.
The Provider’s liability for loss resulting from this Agreement or suffered in relation to this Agreement, especially any damage caused by device malfunction or equipment failure, unavailability or insufficient provision of services, or any damage to property, shall be limited as a sum of actual and direct damage by the maximum sum not exceeding three (3) times the average monthly fees paid by the Client hereunder lowered by the corresponding input fees paid by banks, the Acquirer, the Card Companies or other third parties, in the last 6 months of operation of the service. This shall be the scope of liability of the Provider deriving from this agreement or related to this Agreement, including especially alleged negligence, breach of the Agreement or other provision, regardless of its form, and the above-specified compensation shall be the sole remedy available to the Client. Under no circumstances shall the Provider be liable for any special, consequent or indirect losses, loss of business, harm to reputation or direct or indirect decreased profits, loss of interest or disciplinary or exemplary damages deriving from this agreement or in any way related to this Agreement.
8. Personal Data protection
The parties undertake to process personal data in relation to performances rendered under this agreement in compliance with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation; hereinafter “GDPR”) and/or any other data protection regulations (jointly with the GDPR hereinafter as “Data Protection Regulations”).
When performing under this agreement, the Client and the Provider shall act as User data controllers as defined in the Data Protection Regulations. As the parties, to a certain extent, jointly determine the purpose of the processing, the parties have agreed to define their liability for compliance with duties under GDPR as follows:
- information duty owed to the Users under Articles 12 to 14 of GDPR shall be performed by each party independently;
- each party shall independently allow the exercise of data subject rights under Articles 15 to 23 of GDPR;
- notification duty owed to the Supervisory Authority under Article 33 of GDPR and the notification duty owed to data subjects under Article 34 of GDPR shall be complied with by each contractual party independently. Each party shall, however, notify the other party immediately.
The parties declare to have adopted technical and organizational measures warranting the protection of all personal data processed in line with this agreement sufficient to prevent unauthorized or random access to the personal data, their modification, destruction or loss, unauthorized transfers, their other unauthorized processing or any misuse. Such measures include especially defining precise rules of working with the information systems used. Transfer of data between the Client and the Provider shall be carried out in a secured format.
Each party shall be responsible for its employees accessing personal data as a part of rendering performances hereunder.
The parties undertake to inform each other immediately of all facts known to them, which might negatively affect compliance with the duties in the field of personal data protection.
9. Final Provisions
In line with Section 1752 subsection 2 of the New Civil Code, the Provider shall be entitled to modify these BT, the Agreement, the fee Tariff and other contractual documents. In such case, the Provider shall propose to the Client a change of the BT, fee Tariff or other contractual documents not later than two (2) months before the day, on which the proposed change of the BT, Fee Tariff or other contractual documents is to become effective. The Client and the Provider hereby agree on an irrefutable assumption that the Client shall be deemed to have accepted the proposed change of the BT or other contractual documents if the Provider proposed the change to the Client in the above-specified period and the Client failed to refuse the proposed change of the BT or other contractual documents in writing before the day of effect of the change. If the Client refuses the proposed change of the BT or other contractual documents, the Client shall be entitled to terminate the applicable Agreement free of charge and with immediate effect until the day of effect of the change. If the Provider presents the Client with a proposal to change contractual documents coming into force in the future together with the conclusion of the Agreement, such change shall be deemed to constitute a part of the relevant Agreement as of the day of effect of such change. The Provider shall be entitled to unilaterally change the business name of a product or service, whereof the Provider shall notify the Client in an appropriate way and without undue delay. No change of business name of a product or a service shall affect the rights and duties of the parties deriving from the Agreement. Therefore, the parties shall not consider such change to constitute a change of the Agreement regarding the given product or service.
The Provider shall be entitled to change the Agreement and its annexes with immediate effect as a reaction to changes of legislation, Card Company regulations, bank regulations or other regulations related to the provision of the service, such as PCI DSS.
The parties have agreed that the Agreement and its content, except for publicly available information, as well as any information obtained by either party in relation to the conclusion or performance of this agreement, any information related to any of the parties, its activities, including (not exclusively) information regarding know-how, business strategy, clients, or business partners of a party, shall be strictly confidential and the parties shall keep such information confidential and it cannot be published or disclosed to a third party or used for any purpose other than performance of this agreement by either of the parties or for the purpose of compliance with statutory duties of either of the parties in the necessary scope by either of the parties, without the consent of both parties. The duty of confidentiality shall extend over a period of 10 years after the expiration of this agreement. The parties agree that all provisions of this Agreement related to the subject-matter of the performance, price of the performance, terms of performance, as well as other contractual provisions, may be disclosed or made available by the Provider to entities economically interconnected with the Provider, their agents or legal, tax or other advisors.
The Provider shall be entitled to transfer the rights and duties from this agreement or any part hereof to a third party. The Client hereby explicitly approves such transfer. An assignment of this agreement shall be effective towards the Client on the day of delivery of assignment notice by the Provider to the Client or as of the moment, when a third party proves to the Client the assignment of this agreement. The Client and the Provider have agreed that Section 1899 of the Civil Code stating that in case of failure to perform the assigned duty, the Client may demand performance from the Provider instead, shall not apply.
The Client shall not be entitled to assign its rights and duties deriving from this agreement or rights and duties related to this agreement without a previous written approval of the Provider.
The agreement may be terminated by agreement of the parties or by termination notice by either of the parties, with a notice period of two months starting on the first day of the calendar month following the month, in which the termination notice is delivered.
The provider shall be entitled to terminate the Agreement with immediate effect as a result of any activity, which might harm the reputation of the Provider, the Bank, the Acquirer or Card Companies, or if the Client partakes in activities aiming to harm the systems of the Provider, the Bank, the Acquirer or the Card Companies, or aim to bring harm to the mentioned parties.
The agreement shall expire immediately if the Card Company or the Bank cancels the permit to operate the service for the Client or cancels the license of the Acquirer, the Partner or third parties participating in the operation of the service.
In case of discrepancies between the terms of the Provider and the rules of the Card Associations, the rules of the Card Associations shall prevail.
Legal relations between the Provider and the Client shall be governed by the laws of the Czech Republic, especially Act no. 89/2012 Coll., Civil Code. The parties explicitly exclude the application of international conventions, especially the Vienna Convention on Contracts. If contractual documents are drafted in multiple languages, the Czech version shall prevail. The parties agree that any disputes shall be decided by the court of general jurisdiction of the Provider.
The Client declares not to be a consumer as per Section 419 of the New Civil Code and acknowledges that the concluded agreement is not governed by consumer-protection laws as per Section 1810 et seq. of the New Civil Code.
These Business Terms shall be effective from 1 July 2019.