Merchant Terms & Conditions iDEAL in3
1. Definitions and interpretation
The Merchant Agreement in which these Merchant Terms & Conditions are declared applicable is hereafter referred to as the ‘Agreement’.
Unless stated otherwise and save where the contrary intention appears:
capitalized terms used in these Merchant Terms & Conditions will have the meaning as set out in Annex 1 (Definitions and interpretation) to the Agreement; and
the rules of interpretation as set out in Annex 1 (Definitions and interpretation) to the Agreement are applicable to these Merchant Terms & Conditions, provided that any reference to ‘the Agreement’ is deemed a reference to the ‘Merchant Terms & Conditions’.
2. Intellectual property rights
The Merchant will proactively present the iDEAL in3 payment method to its Customers by displaying iDEAL in3 brands and/or logos on its website and, if applicable, in its physical store. The Merchant shall comply with iDEAL in3’s reasonable instructions and requirements regarding the use of iDEAL in3’s intellectual property.
All intellectual property rights arising during, or arising from, the performance of the Agreement shall remain vested in and/or accrue to iDEAL in3.
The Merchant shall not use, duplicate, exploit, reverse engineer, or provide iDEAL in3’s intellectual property rights to third parties for any other purpose other than as specified in the Agreement or as otherwise authorized in writing, taking into account any conditions that iDEAL in3 may subject such authorization to.
3. Obligations of Merchant
The Merchant represents and warrants that:
- the required information to ensure compliance with the Dutch Anti-Money Laundering and Anti-Terrorist Financing Act and the (sanction) regulations are provided to the PSP, which shall at least contain the information stated in Annex 1 (Merchant information) to these Merchant Terms & Conditions; and
- all information provided to iDEAL in3 pursuant to the Agreement is complete, accurate and not misleading.
On request of iDEAL in3 (or the PSP) additional information to Annex 1 (Merchant information) shall be promptly provided by the Merchant. The Merchant shall inform iDEAL in3 of any changes to the prior provided information pursuant to Clause 3.1. (a) of these Merchant Terms & Conditions.
The Merchant shall ensure that the Customer will not be able to change the delivery location of the Product (via (the website of) the Merchant, the courier service, track & trace or otherwise) after the Customer Purchase has been finalized.
After the Customer Purchase, the Merchant shall retain on behalf of iDEAL in3 and will on request provide promptly to iDEAL in3 the following:
- in relation to a Customer Purchase:
- in Merchant’s web shop, the relevant proof of shipment; or
- in Merchant’s physical shop, the corresponding receipt signed by the Customer, together with, if applicable, the relevant serial number and/proof proof that the Customer has waived his right of withdrawal if the Product is custom-made.
- all documents which iDEAL in3 considers necessary for the proper performance of the Agreement, in the format and way as requested by iDEAL in3; and
- the relevant credit invoice in relation to any Product returns which are wholly or in part accepted by the Merchant or a Customer Purchase which the Merchant has otherwise credited whole or in part (if any).
TheMerchant shall use its best efforts to prevent fraud in relation to the Customer, the Customer Application, the Customer Purchase, the Product and the Customer Receivable. The Merchant shall inform iDEAL in3 immediately as soon as it discovers or suspects fraud (including but not limited to the discovery or suspicion of an invalid or non-existent email address or telephone number of the Customer).
Upon first request the Merchant will cooperate with collection activities of iDEAL in3 or third parties with respect to the Customer and the Transferred Receivable (including but not limited to providing information and documentation).
Upon request, the Merchant shall enable iDEAL in3 and/or its financiers to comply with the applicable law, regulations, and/or requests from competent regulatory authorities. If iDEAL in3 and/or its financiers are dependent on the Merchant for the required information, the Merchant shall provide this information upon first request. When Merchant receives an information request or an order from a competent authority regarding the Agreement and/or services of iDEAL in3, the Merchant shall promptly notify iDEAL in3 hereof.
4. Term and termination
This Agreement is entered into for an indefinite term and each Party may terminate the Agreement with immediate effect by registered letter without any explanation being required.
Upon and after termination, the terms of the Agreement and these Merchant Terms & Conditions remain in full force and effect in relation to all Customer Applications and Customer Purchases made prior to the termination of the Agreement.
5. (Limitation) of liability
iDEAL in3 shall under no circumstance be liable for:
- any indirect damages, such as consequential damages; and
- any direct damage other than suffered losses (as referred to in article 6:96 of the Dutch Civil Code, expressly excluding any other damages and lost profit as referred to in articles 6:95 and 6:96 of the Dutch Civil Code).
iDEAL in3 shall only be liable for any damage and/or losses suffered by the Merchant to the extent such damages and losses are a direct consequence of intent, willful recklessness, or negligence by iDEAL in3 under the Agreement, provided that any liability of iDEAL in3 is always limited to the amount paid out under the professional liability insurance of iDEAL in3. If the insurance of iDEAL in3 does not pay out, then the liability of iDEAL in3 is limited to the amount that the Merchant has paid to iDEAL in3 in the 12 months prior to the damage causing event.
The Merchant is required to take any and all reasonable loss mitigating measures. iDEAL in3 is entitled to remedy or reduce the loss by repairing or improving the work carried out by iDEAL in3.
The Merchant indemnifies and holds iDEAL in3 harmless from and against any damage suffered pursuant to or in connection with:
- any incorrect or incomplete information provided by the Merchant to any party whatsoever;
- any act or omission by the Merchant against any party whatsoever;
- unsafe situations in the Merchant’s company or organization; and
- any default by the Merchant in the performance of any obligation towards iDEAL in3, including non-compliance with iDEAL in3’s instructions with respect to the handling of returned Products.
6. Payments by a Customer
If a Transferred Receivable ceases to exist in whole or in part by set-off or compensation (for example because of any debt owed by the Merchant to the relevant Customer), the Merchant is required to pay the amount setoff or compensated to iDEAL in3 without delay.
The Merchant will ensure that the Customer pays the Transferred Receivable to the iDEAL in3 Payment Address (via the digital payment link sent by iDEAL in3 to the Customer or by any other way communicated by iDEAL in3). If the Merchant receives a payment from a Customer in respect of a Transferred Receivable, the Merchant will immediately inform iDEAL in3 thereof and pay the full amount received to the iDEAL in3 Payment Address.
7. Payments by the Parties
The Merchant agrees and accepts that any payment made by iDEAL in3 to the PSP for the benefit of the Merchant will irrevocably and unconditionally release iDEAL in3 from the corresponding payment obligation towards the Merchant. If the PSP subsequently fails to pay the amounts received or pays such amounts with any delay to the Merchant, then iDEAL in3 cannot be held accountable for this and such risk will solely be for the Merchant’s risk and account.
iDEAL in3 is authorised to set off any of its debts to the Merchant against its claims against the Merchant, whether or not payment is to be made through the PSP or another party. The Merchant is not authorised to carry out any set-off whatsoever against iDEAL in3.
On request, the Merchant is required to provide an advance payment and/or (additional) payment guarantees to iDEAL in3.
The Merchant is and remains responsible at all times for any VAT payments related to the Transferred Receivables. This responsibility shall never be taken over by iDEAL in3.
The Merchant and iDEAL in3 agree that the transfer of Customer Receivables by the Merchant to iDEAL in3 is not subject to any VAT. To the extent that VAT may be due with respect to the transfer of Customer Receivables by the Merchant to iDEAL in3, such VAT payment obligations shall be for the risk and account of the Merchant.
All amounts due by the Merchant to iDEAL in3 are exclusive of any VAT. If required by law, VAT will be charged by iDEAL in3 to the Merchant by way of an invoice.
Unless otherwise agreed, payment by the Merchant of the amounts due to iDEAL in3 shall be made within 14 days of any invoice date chosen by iDEAL in3, without the Merchant being entitled to any deduction, discount or set-off. The payment date shall be the day on which the amount due is credited to the bank account designated for this purpose by iDEAL in3. If the Merchant has not paid within the above payment term, the Merchant:
- will be in default by operation of law and iDEAL in3 will be entitled to charge the statutory (commercial) interest rates following such default; and
- will be required to reimburse all judicial and extrajudicial (collection) costs incurred by iDEAL in3, which are set at an amount equal to 15% of the total outstanding principal amount due with a minimum amount of €100 excluding VAT. The reimbursement of any incurred costs is not limited to any court judgement regarding legal costs.
8. Privacy
Each Party is an independent data controller, and therefore independently responsible for the processing of Customer Data.
In respect of the exchange of Customer Data between the Parties, the following shall apply in addition to Clause 4.1(e) of the Agreement:
- the Merchant will inform Customers in accordance with the GDPR by way of its privacy statement about the exchange of Customer Data with iDEAL in3 as a result of the use of iDEAL in3 payment method and the Agreement;
- Each Party is, for the processing of Customer Data by it, approachable by the data subjects for the exercise of their rights or the filing of complaints as referred to in the GDPR and applicable local privacy legislation (if any);
- if a data subject approaches the wrong Party, that Party shall refer the data subject to the appropriate data controller; and
- in the event of a data breach concerning any exchanged personal data, each Party shall have an independent obligation to investigate such data breach and the handling thereof in accordance with the GDPR. The Merchant will consult with iDEAL in3 before making any communications to a competent regulatory authority, a data subject or the media.
iDEAL in3 may process personal data of UBO’s, directors, representatives and employees of the Merchant in accordance with the Merchant Privacy Statement. The Merchant shall ensure that the relevant data subjects are notified of the Merchant Privacy Statement in accordance with the GDPR.
The Merchant is responsible for its performance under the Agreement, these Merchant Terms & Conditions, the GDPR and other legislation with respect to the processing of personal data and indemnifies and holds harmless iDEAL in3 and its financiers from and against any claims of third parties in connection therewith, unless the Merchant proves that the facts underlying the claim must be attributed exclusively to iDEAL in3 and/or its financiers.
iDEAL in3 shall cooperate as far as technically possible with to the obligations the Merchant is subjected to. Costs associated with such cooperation are not included in the agreed costs and fees of the iDEAL in3 payment method and are for the account of the Merchant in full.
If iDEAL in3 is required to take any information security measures under the Agreement, such security measures will meet the security specifications agreed in writing between the Parties. iDEAL in3 cannot guarantee that the security measures are effective under all circumstances. In the absence of an explicit description of security measures, the security will comply with the relevant legal provisions applicable to in3.
If computer, data or telecommunication facilities are used in the performance of the Agreement or otherwise, in3 shall be entitled to assign access or identification credentials to the Merchant. in3 shall be entitled to change assigned access or identification credentials. The Merchant will treat the access and identification credentials as confidential and with care and will only share them with necessary and authorized personnel. in3 shall not be liable for, and at its first request will be indemnified by the Merchant against, any loss resulting from the use or misuse of access or identification credentials, unless the misuse is a direct result of an act or omission of in3.
9. Confidentiality
The Parties will treat the nature and content of the Agreement, as well as any non-public information they share with each other, as confidential. Parties are allowed to disclose the Agreement and other confidential information with their advisors, as well as their financiers, investors, regulators and group companies and their advisors, as well as when required by law and regulation or by a judgment entered into force of a final judgment.
Parties shall use the received non-public information pursuant to the Agreement solely to perform their rights and obligations under the Agreement.
10. Miscellaneous
If any provision in the Agreement and/or these Merchant Terms & Conditions is or becomes invalid or unenforceable in whole or in part, the Parties will use all reasonable endeavours to replace such a provision with a valid and enforceable substitute provision, with an effect as close as possible to the intended effect of the invalid or unenforceable provision.
No Party is deemed to have waived any of its rights pursuant to the Agreement and/or these Merchant Terms & Conditions, unless upon written notice to the other Party.
in3 is entitled to engage third parties and to outsource activities in the performance of the Agreement at its sole discretion. However, this does not alter that in3 remains the Merchant’s main point of contact and contracting party.
If the Merchant is composed of several persons and/or legal entities, then these persons and/or legal entities shall be jointly and severally liable for all the debts of the Merchant under the Agreement.
Unless proven otherwise by the Merchant, the records of in3 shall form prima facie evidence of the amounts due pursuant to the Agreement.
11. Amendments and additions
Subject to Clause 11.2 of these Merchant Terms & Conditions, no amendment to or additions of the Agreement shall be effective unless in writing and agreed upon by both Parties.
The Agreement and these Merchant Terms & Conditions may be amended, or additions might be added by in3 in respect of all Merchants that have accepted the same agreement and/or terms and conditions. in3 will inform the Merchant at least four weeks in advance prior to any amendment or addition taking effect. If the Merchant expressly disagrees with any amendment or addition announced by in3 prior to the effective date, each Party shall be entitled to terminate the Agreement in accordance with Clause 4 of these Merchant Terms & Conditions.
12. Governing law; jurisdiction
The Agreement and all non-contractual obligations in connection with the Agreement shall be governed by the laws of the Netherlands.
The Dutch court of Oost-Brabant shall in first instance have sole jurisdiction in any legal action or proceeding out of or in connection with the Agreement or any non-contractual obligation between the Parties.
Annex 1
Merchantinformation:
- A statement on the purpose of the business relation of the Merchant with in3.
- A trade register extract from the Chamber of Commerce with respect to the Merchant obtained less than 3 months ago.
- Information on the structure of and control over the Merchant.
- Information on the UBO(s) of the Merchant, including a copy of the UBO register (insofar possible).
- Information to verify the UBO(s) of the Merchant, including a copy of identification of the UBO(s) where the social security number has been redacted.
- Information on the representatives/directors of the Merchant, including a copy of identification of the representatives/directors where the social security number has been redacted.
- Information showing that the representative of the Merchant is authorized to represent the Merchant (such as a trade register extract from the Chamber of Commerce or a written power of attorney).
- Evidence that the Merchant’s IBAN is registered in the Merchant’s name, such as a copy of a corporate debit card or a bank statement.