Legal & Privacy

This Commercial Entity Agreement (this “Agreement”) is provided to all entities that accept payment through the Circle Internet Financial, LLC (“Circle”) payment platform (the “Circle Payments System”) for the acceptance of card payments that are “Commercial Entities” as defined by Visa, Inc. and Mastercard International, Inc. (collectively, the “Card Brands”). As such an entity, the merchant signing or electronically agreeing to the terms hereof (“Merchant”) is entering into this Agreement with the related entity set forth on Exhibit A hereto based on the Merchant’s jurisdiction (the “Member”) only to govern the authorization, conveyance and settlement of Transactions utilizing the payment card transaction services of  the Member. Capitalized terms used herein have the meanings set forth herein (including in Section 12 hereof); capitalized terms used herein that are not defined herein shall have the respective meanings ascribed to them in the Master Services Agreement (or equivalent agreement) between Merchant and Circle (as amended, the “Circle MSA”). In addition to these terms set out in this Agreement, where the Merchant is located in one of the jurisdictions identified in Exhibit B then the special terms in Exhibit B shall apply and in the event of any inconsistency or conflict, the applicable terms in Exhibit B shall supersede and / or amend the applicable terms in this Agreement in relation to services provided by the Member to a Merchant from the applicable jurisdiction.

By entering into this Agreement, Merchant is fulfilling the applicable Card Brand Rules requiring a direct contractual relationship between the Member and Merchant.

1. Merchant’s Acceptance of Cards; Card Brand Rules and Acceptance Requirements; Settlement Instructions

Merchant agrees to comply with all applicable law, Member legal, credit, compliance or other policies, procedures and practices, the terms of the Circle MSA, and all Card Brand Rules, in each case, as in effect from time to time. Without limiting the generality of the foregoing or anything in the Circle MSA, Merchant agrees to each of the following requirements and restrictions:

1. Bona Fide Transactions; Existing Debt. Merchant shall not submit any Transaction that (i) is not a bona fide Transaction involving a bona fide customer (in each case as contemplated under Card Brand Rules) (ii) is illegal or that the Merchant should have known was illegal; or (iii) otherwise fails to meet the requirements for a Transaction under the Card Brand Rules.  Transactions shall not represent the collection of a dishonored check or the collection, transfer or refinancing of any existing or prior debt or obligation. Merchant must not accept a Card or a Transaction which is of a type that it has been previously advised is not acceptable. Merchant shall not attempt to recharge a Customer for an item that has been the subject of a Chargeback by the Customer, even with the Customer’s consent. Without limiting any of the foregoing, Merchant shall not submit any Transaction which it knows or should know to be unenforceable or uncollectable. The Merchant must notify Us by contacting Circle if it becomes aware of or suspects fraud on the part of a Customer.
2. Card Acceptance; Surcharges. Merchant shall not, subject to applicable law: (i) set a dollar amount above or below which Merchant refuses to honor Cards and must not differentiate between issuers or other Card Brands; (ii) impose or require the Customer to pay any fee or charge (including, without limitation, any surcharge or finance charge or any of the fees payable by Merchant under this Agreement) in connection with or as a condition of the use or acceptance of a Card; (iii) to the fullest extent of applicable law, impose any surcharges on Transactions; or (iv) unfairly distinguish between issuers of a Card when accepting a Transaction.
3. Split Transactions. Merchant agrees to submit a single Transaction for the full amount of each sale unless splitting up such Transaction into multiple Transactions is approved by Us and the Card Brands and communicated to Merchant by Circle.
4. Taxes. Merchant shall not add any tax to Transactions, unless applicable law expressly allows or requires it, and in any case, Merchant shall only add such tax in compliance with such law.
5. Security Standards. Merchant shall not request use or store any Card Information for any purpose except as payment for its goods or services or to provide a Refund for goods or services previously sold, unless required by the Card Brand Rules. Merchant will comply with the Security Standards, including the Payment Card Industry Data Security Standards (PCI DSS) and will cooperate fully in any applicable forensic investigation (at the Merchant’s cost). Breach of this clause 1(e) shall constitute a material breach of this Commercial Entity Agreement.
6. Time of Payment. At the time Merchant accepts a Card for any goods or services, the goods shall have been provided or shipped or the services shall have been actually rendered to the Customer, except as specifically stated otherwise in Merchant’s Application.
7. Cash Advances; Refunds/Credits. Merchant shall not disburse or advance any cash to a Customer (except as authorized by the Card Brand Rules) or to itself or any of its representatives or agents in connection with a Transaction, nor shall Merchant accept payment for effecting credits or issuing Refunds to a Customer.  Any Transaction submitted to Us as a credit to a Customer’s Card account represents a Refund for a prior Transaction submitted to Us using the same Card.
8. Recurring Transactions. For recurring Transactions, if any, Merchant must (i) obtain the Customer’s consent to periodically charge the Customer on a recurring basis for the goods or services purchased, (ii) retain this permission for the duration of the recurring services and provide it upon request, (iii) retain written documentation specifying the frequency of the recurring charge and the duration of time during which such charges may be made; and (iv) provide a simple and accessible online cancellation procedure, if the Cardholder request for the goods or services was initially accepted online. Merchant shall not submit any recurring transaction after receiving: (i) a cancellation notice from the Customer, or (ii) notice from Circle or any Card Brand that the Card is not to be honored. Merchant shall include in its Transaction Data the electronic indicator for a recurring Transaction.
9. Website Requirements.  The Merchant must ensure that its Website clearly displays detailed information about its business in accordance with Card Brand Rules, including, without limitation, name, contact information, a complete description of available goods and services available, delivery information (including any return and refund policy), details of any export restrictions (if applicable), the Merchant’s privacy policy, and a description of Website data security protections.
10. Visa and Mastercard Marks. The Merchant acknowledges and agrees that: (i) the Card Brand marks are owned solely and exclusively by the relevant Card Brand; (ii) it will not contest the ownership of any Card Brand marks for any reason; (iii) the Card Brands may at any time, immediately and without notice, prohibit the Merchant from using any of their marks for any reason. The Merchant is authorized to use the Visa and Mastercard logos or marks only on Merchant’s promotional materials and website to indicate that Visa and Mastercard cards are accepted as funding sources in conjunction with its use of the Circle Payments System. The Merchant must not make any representation in connection with any goods or services which may bind Us or any Card Brand. The Merchant must not indicate or imply that neither We nor any Card Brand endorse any goods or services or refer to a nominated Card in stating eligibility for goods, services or any membership.
11. Chargebacks. Merchant shall use all reasonable methods to resolve disputes with the Customer. Should a Chargeback dispute occur, Merchant shall promptly comply with all requests for information from Circle. Merchant shall not attempt to recharge a Customer for an item that has been charged back to the Customer, unless receiving a new and uncoerced Customer’s consent. You shall have full liability for the amount of any and all successful Chargebacks (and may have conditional liability for such Chargebacks prior to their final adjudication pursuant to the Card Brand Rules). Merchant shall not transfer or attempt to transfer financial liability under this Agreement by asking or requiring a Customer to waive their dispute rights.
12. Settlement. Merchant hereby authorizes and instructs Member (or its designee) to pay all net settlement amounts due to you hereunder to Circle on Merchant’s behalf.  You and Member acknowledge and agree that Circle (i) shall receive all such proceeds of credit and debit card funded processing services from us and (ii) shall be responsible for disbursing such amounts to you in accordance with the terms of your Circle MSA.

2. Merchant obligations

Merchant must comply with the terms of this Agreement, the Circle MSA, the Use Policy, all applicable Card Brand Rules and applicable law, the Security Standards, and all requirements in respect of the Application Form (as defined in the Circle MSA), including any updating obligations related thereto, and in particular must:

1. immediately notify Circle of any change to Your financial position which may affect Your ability to perform Your obligations under this Agreement;
2. promptly notify Circle of any change in Your place of business;
3. subject to Merchant having a bona fide, remote-first, decentralized workforce, have a permanent location where Your employees or agents accountable for the sale or distribution of Your goods or services work.  Whether or not such location is a permanent physical location, such location must be (I) where Your customers interact with You and expect that Your business is conducted, (II) where You pay taxes, and (III) where You meet related legal requirements in respect of Your goods and services sale and distribution activities;
4. not change Your business name or ownership of Your business without giving Circle prior notice and not substantially change the type of goods and services You sell without our prior written consent;
5. only submit a sales transaction where You are the merchant with possession of the goods and/or services or are the Authorized Reseller of the supplier of the goods and/or services;
6. not submit transactions on behalf of a third party. For the avoidance of doubt, this includes submitting transactions for goods and/or services sold on another person’s website;
7. allow Circle employees, contractors or agents or those of any Card Scheme reasonable access to Your premises during normal business hours to check Your compliance with this Agreement, the Security Standards or for the purposes of the relevant Card Brand Rules;
8. provide Us (via Circle) with all information and assistance reasonably required to perform Our obligations and to deal with any queries in relation to this Agreement and / or the services performed hereunder;
9. comply with all applicable Card Brand Rules and applicable laws and contractual requirements in accepting card payments and performing Your obligations under this Agreement;
10. provide notice to any Cardholder with whom You enter into a Transaction that You are responsible for that transaction, including for any goods or services provided, any payment transaction, related service enquiries, dispute resolution, and performance of the terms and conditions of the Transaction;
11. observe and implement the fraud prevention procedures set out in the manuals, guides or directions provided to You, unless otherwise mutually agreed to by the parties; and
12. not use the Services for the payment of the products and services which are listed in Member’s Use Policy. This list may be updated at Member’s discretion, where needed to ensure legal compliance, compliance with the Card Brand Rules, prevent high levels of Chargebacks, reputational risks and/or reduce exposure to potentially fraudulent or illegal transactions.

3. Authorizations Required For All Transactions

Merchant is required to obtain an authorization through the Circle Payments System for each Transaction in accordance with the Card Brand Rules and the Circle MSA.

4. Refunds

The Merchant (i) must establish a fair policy for dealing with refunds and disputes in line with applicable law and the Card Brand Rules about Transactions and include that information on any Transaction receipt and (ii) must post details about such policy on its Website.  If Merchant’s Refund Policy permits a related refund, Merchant shall promptly implement such Refund. The amount of such refund cannot exceed the amount shown as the total on the original Transaction Data, except by the exact amount required to reimburse the Customer for shipping charges that the Customer paid to return merchandise. Merchant shall not accept any payment from a Customer as consideration for issuing a refund.

5. Term and Termination

This Agreement is effective upon the effective date of your Circle MSA or otherwise agreement to this Agreement, and continues so long as you use the Circle Payments System for payment processing services involving Member or this Agreement is terminated, except for those terms which are intended to survive termination. This Agreement will terminate automatically upon any termination or expiration of your Circle MSA. This Agreement may be terminated by Member at any time based on: (i) a breach of any of your obligations under this Agreement or the Circle MSA, or (ii) the termination of the payment processing relationship between Circle and Member. You authorize Member to disclose to any Card Brand information regarding any termination hereof.

6. Indemnity

Merchant agrees to indemnify and hold Member harmless from and against all losses, liabilities, damages and expense: (a) resulting from any breach of any warranty, covenant or agreement or any misrepresentation by Merchant under this Agreement; (b) arising out of Merchant’s or its employees’ negligence or willful misconduct, in connection with Transactions or otherwise arising from Merchant’s provision of goods and services to Customers; (c) arising out of Merchant’s use of the Circle Payments System; of (d) in connection with any Chargeback and / or arising out of any third party indemnifications Member is obligated to make, or liabilities or other obligations Member may incur (including any Card Brand fines and / or any fines incurred by the Member from a regulatory authority), as a result of Merchant’s actions (including indemnifications of or liabilities to, any Card Brand or Card-issuing bank).

7. Confidentiality

Member will not otherwise disclose or use Transaction information or Merchant’s confidential information for any purpose whatsoever other than: (i) as necessary to process Merchant’s Transactions or otherwise provide services and maintain Merchant’s account pursuant to this Agreement; (ii) to detect, prevent, reduce, or otherwise address fraud, security, or technical issues; (iii) as otherwise required or permitted by the Card Brands or applicable law; (iv) to any Card Brand, law enforcement agency and/or regulators in response to a Data Breach.

8.1 Disclaimer

Neither the Member nor Circle make any representations, guarantees or warranties in respect of any of the services to be provided under this Agreement.  To the maximum extent permitted by law, any and all implied representations, warranties and guarantees are excluded.

8.2 Exclusion of liability

To the maximum extent permitted by applicable law, the Member is not liable to You or to any person for any act or omission (including negligence) of the Member that results in any direct or indirect loss (including loss of profits), damage, injury or inconvenience You suffer because of any service failure, including any unavailability of the service, any delays or any errors. Under no circumstances will the Member be liable to You for any lost sales, revenue or profit or loss of customers due to any service failure which results in You being unable to promptly accept payments from Your Customers. Subject to the foregoing:

1. Member will be liable only for its own acts or omissions and not for acts or omissions of third parties. This expressly excludes the Member’s liability for acts or omissions of the Card Brands and Card issuers, or for events or activities originating outside the Member’s system (such as infrastructure failure, internet disturbances or malfunctioning in third party systems), except where such events were caused by the Member’s deliberate default or negligence; and
2. in no event will the Member’s total liability arising out of or in connection with this Agreement in each six (6) month period, whether in contract or in tort or other legal theory, exceed the total amount of the fees paid by You during that six (6) month period.

9. Warranties

The Merchant represents and warrants that: its execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action, and do not contravene its organizational documents or contravene any contractual restriction, law or governmental regulation or court decree or order binding on or affecting it; and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, it will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, and it will only use the Services in a manner consistent with this Agreement and Card Brand Rules.. The representations and warranties set out in this clause will be deemed to be repeated each day that you utilize the Circle Payment System.

10. Set-Off

For the purpose of this clause, “Liability” means any debt or monetary liability, irrespective of whether the debt or monetary liability is future or present, actual or contingent.  

1. Member may at any time without notice to You set off any Liability owed by Member to You, on any account, against any Liability, owed by You to Checkout.com under or in connection with this Agreement.
2. If the Liability to be set off is expressed in different currencies, Member may convert such Liability at a market rate of exchange for the purpose of set-off.
3. In the event such set-off does not fully reimburse Member for the amount owed, You shall immediately pay Us amount remaining outstanding.
4. Any exercise of Member’s rights under this clause 10 is without prejudice and in addition to any rights or remedies available to Member and / or Circle under this Agreement or otherwise.

11.1 Application

Merchant represents and warrants that statements made on its Application for this Agreement are true as of the date of its execution of this Agreement and that the Merchant has all necessary rights, permissions and consents to disclose that information to Us under this Agreement. Merchant authorizes Member (or Circle on Member’s behalf) to: (a) perform any credit check deemed necessary with respect to Merchant; (b) obtain from any Card Brand and / or credit reporting agency or any other personal information about your Merchant history, you and / or your personnel for any purpose relating to the operation of those Card Brands and we can use such information to assess your application; provided, however, that Circle is authorized to collect any such information on Member’s behalf and Merchant authorizes Circle to share such information with Member for such purposes.

11.2 Section Headings

The section headings of this Agreement are for convenience only and shall not impact the scope or intent of this Agreement.

11.3 Assignment

You cannot assign or transfer your rights or delegate its responsibilities under this Agreement without Our prior written consent. Failure to obtain Our consent may result in a termination of this Agreement. Any permitted assignee or successor entity must provide such additional information and execute such additional documentation or take any further actions as Member may request in order to ensure continued processing of Transactions under this Agreement.  This Agreement binds Merchant and its respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or any permitted assigns.

11.4 Severability; Survival

Should any provision of this Agreement be determined to be invalid or unenforceable under any law, rule, or regulation, including any Card Brand Rule, such determination will not affect the validity or enforceability of any other provision of this Agreement.  Notwithstanding any termination of this Agreement, those terms which by their nature are intended to survive termination (including without limitation, indemnification obligations and limitations of liability) shall survive. Termination does not affect either party’s respective rights and obligations under this Agreement as to Transaction Data submitted before termination and the residual processing of such transaction known as trailing activity.

11.5 Amendment; No Waiver.

This Agreement may be amended at any time by Member upon sixty days’ notice to you (which may be made by posting such amendment or an updated version of this Agreement on Circle’s web site). Notwithstanding the foregoing, in any event the terms of this Agreement must be amended pursuant to a change required by the Card Brand Rules or any third party with jurisdiction over the matters described herein, such amendment will be effective immediately. Your electronic signature or continued submission of Transactions to us following such notice will be deemed to be your acceptance of such amendment. No term or condition of this Agreement may be waived except pursuant to a written waiver executed by the party against whom such waiver is sought to be enforced.

11.6 Entire Agreement

This Agreement represents the entire understanding between Merchant and Member with respect to the matters contained herein and supersedes any prior agreements between the parties.

11.7 Notices

Member is responsible for the credit and debit card processing services provided hereunder and may be contacted c/o: [email protected]. Except as otherwise provided in this Agreement, all notices must be given in writing and either hand delivered, faxed, mailed first class, postage prepaid, sent via electronic mail transmission, or sent via overnight courier (and will be deemed to be given when so delivered or mailed), to the addresses set forth below or to such other address as either party may from time to time specify to the other party in writing.

11.8 Governing Law; Waiver of Jury Trial; Arbitration.

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. Each party irrevocable agrees that the courts of England and Wales  shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including any non-contractual disputes or claims), provided always that the Member shall not be limited to the forum of England and Wales for the enforcement of any judgement relating to the Agreement and shall have the right to bring the relevant action in any jurisdiction where the relevant Merchant is incorporated or may have assets.

11.9 Force Majeure

Neither party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this section will affect or excuse your liabilities and obligations for Chargebacks, refunds, or unfulfilled products and services.

11.10 Relationship of the Parties

No agency, partnership, joint venture or employment relationship is created between Merchant and Member by way of this Agreement. In the performance of their respective obligations hereunder, the Parties are, and will be, independent contractors.

Definitions

“Application” is a statement of your financial condition, a description of the characteristics of your business or organization, and related information you have previously or concurrently submitted to us, including credit and financial information, to induce us to enter into this Agreement with you and that has induced us to process your Transactions under the terms and conditions of this Agreement.

“Authorized Reseller” means a merchant that has been given the rights or licenses to market and resell goods or services to the public from the rights holder of the original asset or trademarked goods or services.

“Card” is an account, or evidence of an account, authorized and established between a Customer and a Card Brand, or representatives or members of a Card Brand that you accept from Customers as payment for a good or service. Cards include, but are not limited to, credit and debit cards, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates and credit accounts.

“Card Brand” is any payment method provider whose payment method is accepted by Member for processing, including, but not limited to, Visa, U.S.A., Inc., Mastercard International, Inc., Discover Financial Services, LLC and other credit and debit card providers, debit network providers, gift card and other stored value and loyalty program providers. Card Brand also includes the Payment Card Industry Security Standards Council.

“Card Brand Rules” are the bylaws, rules, and regulations, as they exist from time to time, of the Card Brands, including, without limitation, any network operating rules (including without limitation the Card Network Rules identified in the Circle MSA), as such Card Network Rules or other requirements may be revised from time to time by the Card Brands in their sole discretion.

“Card Information” is information related to a Customer or the Customer’s Card, that is obtained by Circle or Merchant from the Customer’s Card, or from the Customer in connection with his or her use of a Card (for example a security code, a PIN number, or the customer’s zip code when provided as part of an address verification system). Without limiting the foregoing, such information may include the Card account number and expiration date, the Customer’s name or date of birth, PIN data, security code data (such as CVV2 and CVC2) and any data read, scanned, imprinted, or otherwise obtained from the Card, whether printed thereon, or magnetically, electronically or otherwise stored thereon.

“Chargeback” is a reversal of a Transaction you previously presented to Member pursuant to Card Brand Rules.

“Customer” is the person or entity to whom a Card is issued or who is otherwise authorized to use a Card.

“Data Breach” means any occurrence which results in the unauthorised use, modification or access by a person to confidential data relating to Card transactions stored by the Merchant or any person engaged by the Merchant to provide storage or transmission services in respect of that data.

“Member”,” means the applicable party set forth on Exhibit A hereto or other entity providing sponsorship to Member as required by all applicable Card Brand. Member is a principal party to this Agreement and your acceptance of Card Brand products is extended by the Member.

“Merchant”, “you”, and “your” is the Merchant identified in the Application on the cover page of the Agreement.

“Payment Application” is a third party application used by Merchant that is involved in the authorization or settlement of Transaction Data.

“Security Standards” are all rules, regulations, standards or guidelines adopted or required by the Card Brands or the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Card Information, including but not limited to the Payment Card Industry Data Security Standards (“PCI DSS”), Visa’s Cardholder Information Security Program (“CISP”), Discover’s Information Security & Compliance Program, American Express’s Data Security Operating Policy, Mastercard’s Site Data Protection Program (“SDP”), Visa’s Payment Application Best Practices (“PABP”), the Payment Card Industry’s Payment Application Data Security Standard (“PA DSS”), Mastercard’s POS Terminal Security program and the Payment Card Industry PIN Transaction Security (PCI-PTS), in each case as they may be amended from time to time.

“Services” means the services that facilitate the acceptance of card payments for products and services provided to Customers.

“Service Provider” is any party that processes, stores, receives, transmits or has access to Card Information on your behalf or any Merchant’s behalf, including, but not limited to your Merchant’s agents, business partners, contractors and subcontractors.

“Transaction” is a transaction conducted between a Customer and Merchant utilizing a Card in which consideration is exchanged between the Customer and Merchant, and which is submitted to Member by Circle.

“Transaction Data” is the written or electronic record of a Transaction, including but not limited to an authorization code or settlement record.

“Use Policy” means the “Declined Lines of Business Policy” as set out at https:// www.checkout.com/legal/terms-and-policies, as amended from time to time.

“We, our, us” refers to, collectively, Checkout.com and Circle.

Exhibit A

The related entity in the table below is the Member that is party to this Agreement based on which jurisdiction in the table below the Merchant is organized in, operating in and paying taxes in, in each case, with respect to its activities using the Circle Payment System.

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Exhibit B

1. Singapore

1. For services provided under this Commercial Entity Agreement to a Merchant in Singapore, Checkout APAC Pte Ltd is the supplier of these services and is a party to this Commercial Entity Agreement for the provision of such services.
2. Checkout APAC Pte. Ltd. is a company duly registered under the laws of Singapore under company number 201007066Z, having its registered office address at 9 Raffles Place, #26-01, Republic Plaza, Singapore (048619), regulated as a Major Payment Institution by the Monetary Authority of Singapore and an affiliate member of Visa Inc. and Mastercard Worldwide Card Schemes.
3. In the context of Checkout APAC Pte. Ltd. providing the services to a Merchant, the parties agree that the Commercial Agreement is supplemented and/or amended (as applicable) as set out in this clause 1 of this Exhibit B.
4. Should the Merchant be unhappy with the resolution and / or handling of any complaint it has with the Member, the Merchant may submit complaints to the Monetary Authority of Singapore.
5. Any statements provided to the Merchant will issued in accordance with the requirements of the Monetary Authority of Singapore’s Notice No. PSN07 as amended from time to time (where applicable).
6. Funds received by the Member from or on account of the Merchant will, until such time as funds relating to a Transaction are settled in accordance with clause 1(l) of the Commercial Entity Agreement, be safeguarded in accordance with the requirements of applicable law including the Payment Services Act 2019 (No.2 of 2019) and subsidiary legislation promulgated in relation thereto, as amended from time to time (where applicable).

2. Hong Kong

For services provided under this Commercial Entity Agreement to a Merchant in Hong Kong, Checkout Ltd (HK) is the supplier of these services and is a party to this Commercial Entity Agreement for the provision of such services.

3. EEA

For services provided under this Commercial Entity Agreement to a Merchant in the European Economic Area (EEA), Checkout SAS is the supplier of these services and is a party to this Commercial Entity Agreement for the provision of such services.

Checkout SAS, is a simplified joint stock company (société par actions simplifiée) duly registered under the laws of France with the Trade and Companies Register of Paris number 841033970, having its registered office address at 37-39 rue de Surène, 75008 Paris, France and is authorized by the Autorité de Contrôle Prudentiel et de Résolution ("ACPR") as an electronic money institution entitled to provide payment services and a principal member of Visa Europe, MasterCard Worldwide, Diners Club International/Discover and an affiliate member of Cartes Bancaires (CB). The ACPR is located at 4 Place de Budapest, 75436 Paris. Checkout SAS’s CIB code is 17208. Checkout’s ACPR license can be viewed online at www.regafi.fr.

In the context of Checkout SAS providing the Services to the Merchant in France and the EEA, the Parties agree that the relevant Merchant Agreement is supplemented and/or amended (as applicable) as set out in Clause 3 of Exhibit B.

The services are provided to Merchant by Checkout SAS according to one of the following options based on the frequency of settlement:

1. If the Merchant uses the Services on a pass-through model, with a settlement frequency of two (2) business days or less after Checkout SAS’ receipt of funds, the Transactions processed are collected on your Payment Account created by Checkout SAS for the purpose of the Transaction and paid out by Checkout SAS pursuant to this Agreement (the “Payment Services Option”).
2. If you do not fall within clause 3.4.1 above, Checkout SAS offers its Services based on the issuance of Electronic Money remitted on the Merchant’s Wallet (“Electronic Money Option”). The Electronic Money Option facilitates services including settlement at a frequency of three (3) business days or more. If the Merchant uses the Electronic Money Option: the funds received and/or collected are simultaneously converted into Electronic Money at par value and stored on your Wallet.
3. Clause 8.2 shall be deleted and replaced by the following:To the maximum extent permitted by applicable law, the Member is not liable to Merchant or to any person for any act or omission (including negligence) of the Member that results in any direct or indirect loss (including loss of profits), damage (including any liquidated, indirect, consequential, exemplary, incidental damages (including but not limited to damages for loss of business profits, business interruption, loss of business information, loss of revenue, loss of goodwill, loss of opportunity, loss or injury to reputation, or loss of anticipated savings), injury or inconvenience Merchant suffers because of any service failure, including any unavailability of the service, any delays or any errors. Under no circumstances will the Member be liable to Merchant for any lost sales, revenue or profit or loss of customers due to any service failure which results in Merchant being unable to promptly accept payments from Merchant’s customers. Subject to the foregoing:
4. Member will be liable only for its own acts or omissions and not for acts or omissions of third parties. This expressly excludes the Member’s liability for acts or omissions of the Card Brands and Card issuers, or for events or activities originating outside the Member’s system (such as infrastructure failure, internet disturbances or malfunctioning in third party systems), except where such events were caused by the Member’s deliberate default or negligence;
5. Member will not liable for any loss or damage of a type which was not reasonably foreseeable when the Agreement was concluded, whether or not the possibility of that type of loss or damage was subsequently advised to or otherwise became known, or should have become known, to us after the date on which the Agreement was concluded;
6. Member will not be liable for any claim where the circumstances giving rise to a claim:

1. are due to an unusual and unforeseeable event, outside our reasonable control and the consequences of which could not have been avoided even if all due care had been exercised (such as, for example, force majeure, events of war and acts of God, strike, lockout, traffic disruption, acts of domestic or foreign governmental authorities);
2. were caused by us due to compliance with Applicable Laws and regulations;some text
   1. Member will not be liable to the extent that the Merchant contributed to the occurrence of any loss by any negligent or intentional action or omission and the Merchant's liability in that instance shall be determined in accordance with the principles of contributing negligence; and
   2. In no event will the Member’s total liability arising out of or in connection with this Agreement in each six (6) month period, whether in contract or in tort or other legal theory, exceed the total amount of the fees paid by You during that six (6) month period.

1. Clause 11.8 of the Commercial Entity Agreement shall be replaced with the following new clause 11.8:Governing Law & Language; Waiver of Jury Trial; Arbitration. With the exception of applying a national law of public order, this Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. With the exception of applying a national law of public order, each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including any non-contractual disputes or claims), provided always that the Member shall not be limited to the forum of England and Wales for the enforcement of any judgement relating to the Agreement and shall have the right to bring the relevant action in any jurisdiction where the relevant Merchant is incorporated or may have assets. With the exception of applying a national law related to public order, it is expressly stipulated that English is the language chosen and used by the Parties in their pre contractual and contractual relationships, and to the conclusion of this Agreement.
2. Clause 12 is amended to include the following new definitions:some text
   1. “Electronic Money means any monetary value stored on a Wallet, representing a claim on the E-Money Issuer, and issued in exchange for the amounts received by Checkout SAS for Transactions validly processed for Merchant, for the purpose of payment transactions.”
   2. “E-Money Issuer means means Checkout SAS as issuer of Electronic Money.
   3. “Payment Account means any account held by Checkout SAS on Merchant’s behalf when using the Payment Services Option.”
   4. “Wallet means an Electronic Money account on which the units of Electronic Money are stored.”
3. Clause 12 is amended to include the following new definitions:While this Agreement applies to Merchants of all sizes, the Merchant agrees that at the time it entered into this Agreement it:some text
   1. confirms that it is not a natural person acting for non-professional needs in the sense of the French consumer code;
   2. therefore agrees that none of the provisions mentioned in article L.133-2 and in article L.314-5 of the French Monetary and financial code applies to this Agreement;

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