I. GENERAL PROVISIONS
1. These General Terms and Conditions shall govern the relationship and shall constitute the agreement (hereinafter the “Terms”) between Paynetics AD, a joint-stock company, organized and existing under the laws of the Republic of Bulgaria, registered with the Commercial Register at the Bulgarian Registry Agency with UIC 131574695, VAT number: 131574695, having its seat and management address at Ground Floor, 76A James Bourchier, Lozenets District, Sofia Municipality, Sofia, Bulgaria, email address: [email protected], and You, being a local or EU legal entity (hereinafter the “Referrer” or “You” ), with regards to the referring by You of Customers for the Paynetics Services.
2. The Referrer is a legal entity established within the acceptable jurisdictions for Paynetics AD which has been approved by Paynetics AD and as of the date of entering into these Terms has been already provided access to and uses Paynetics` Services through the Platform by virtue of General Terms and Conditions for Paynetics Business Accounts and Paynetics Business Debit Cards (herein after referred to the “Framework Agreement for Provision of Payment Services”). For the avoidance of doubt the termination of the Framework Agreement for Provision of Payment Services, for whatever reason, will have as a consequence the termination of this Agreement as well.
3. The Referrer, acting through their legal representative or authorised person, confirms and accepts these Terms by ticking the “I agree” box upon accessing the “Invite” subpage on the Platform. Ticking the “I agree” box shall have the meaning of an electronic signature as provided in the Bulgarian Electronic Document and Electronic Trust Services Act, and by accepting these Terms, the Referrer agrees that the legal force of the said electronic signature placed by their representative/authorised person shall be equivalent to a handwritten signature.
4. The provisions of these Terms shall come into effect and bind Paynetics and the Referrer as of the date of their signing by the Referrer, in accordance with the preceding paragraph.
II. DEFINITIONS
“Customer” shall mean a legal entity established within the acceptable jurisdictions for Paynetics AD that: (i) is introduced to Paynetics by the Referrer on or subsequent to signing of these Terms in accordance with Section I, para. 3; and (ii) enters into an agreement with Paynetics on terms, which are deemed acceptable to Paynetics in the latter’s sole and absolute discretion, for the provision of Paynetics’ Services through the Platform.
“Paynetics” shall mean Paynetics AD, a joint-stock company, organized and existing under the laws of the Republic of Bulgaria, registered with the Commercial Register at the Bulgarian Registry Agency with UIC 131574695, having its seat and management address at Ground Floor, 76A James Bourchier, Lozenets District, Sofia Municipality, Sofia, Bulgaria. Paynetics is an electronic money institution licensed by the Bulgarian National Bank to issue, distribute and redeem electronic money and provide payment services in the EU and EEA in accordance with the Payment Services Directive 2015/2366 (“PSD2”), the electronic money directive (Directive 2009/110/EC) and the Bulgarian Payment Services and Payment Systems Act (the “PSPSA”). Paynetics is entered into the register of licensed e-money institutions kept by the BNB in accordance with the provisions of the PSPSA.
“Paynetics Services” shall mean the payment and/or e-money services, as applicable, provided by Paynetics through the Platform, as may be amended from time to time.
“Platform” shall mean a cloud-based, web-based or for mobile device front-end software for digital payments, whether accessed via the Internet, mobile device or other electronic devices and shall include any error corrections, patches, fixes, updates, upgrades, new releases or new versions subsequently received (if any), which is provided by Paynetics and through which Paynetics’ payment services are accessible. “Platform” shall include the web-based version and the mobile application of the software (when such is available) and, where a reference to “Platform” is made in these Terms, it shall be considered to include both versions of the Platform – the web-based one and the mobile application, as applicable. The two versions of the Platform are one and the same software with different interfaces – for web-based and for mobile use. The web-based version is accessible at https://paynetics.online/. The mobile app version can be downloaded from the relevant mobile app stores when available. Our aim is for the Platform to be available 24 hours a day, seven days a week. However, we cannot guarantee this.
III. APPOINTMENT OF REFERRER AND ELIGIBILITY
1. By signing these Terms in accordance with Section I, para. 3 above, the Referrer hereby accepts to be appointed, as of the date of signing these Terms, as a non-exclusive independent Referrer with limited authority to solicit Customers (as defined herein) for Paynetics’ Services.
2. The Referrer hereby agrees and acknowledges that it meets the criteria laid down in Section I., para 2. above and that it must, at all times, meet the requirements of Paynetics, as the latter may be changed from time to time.
IV. REFERRAL PROCEDURE
1. The Referrer may refer a prospective Customer to Paynetics by filling in the referral form, accessible in the “Invite” section of the Platform, and submitting it to Paynetics by tapping the “Send invitation” button. By tapping the “Send invitation” button, the Referrer declares and warrants to Paynetics that the Referrer has obtained the prospective Customer’s consent for sharing the relevant information about the prospective Customer (including name and e-mail address) with Paynetics.
2. The Referrer may refer multiple prospective Customers simultaneously by filling in the referral form batch file, accessible for download in the “Invite” section of the Platform, uploading it through the “Upload” function and submitting it to Paynetics by tapping the “Send invitations” button. By tapping the “Send invitations” button, the Referrer declares and warrants to Paynetics that the Referrer has obtained consent from each of the prospective Customers for sharing the relevant information about the prospective Customer (including name and e-mail address) with Paynetics.
3. Once the referral form (or referral form batch file) is successfully submitted, each referred prospective Customer will receive an automatic referral e-mail from Paynetics, informing the prospective Customer that they have been invited to the Platform by the Referrer. The referral e-mail will contain a unique referral link, which would lead the prospective Customer to a landing page on the Platform, through which the prospective Customer can apply to enter into an agreement with Paynetics to receive the Paynetics’ Services through the Platform.
4. All prospective Customers, referred to Paynetics by the Referrer, shall be subject to screening and approval by Paynetics. Without prejudice to the generality of the foregoing, Paynetics shall perform all necessary KYC and KYB procedures on each prospective Customer, referred by the Referrer.
5. Paynetics retains the sole discretion to reject for any reason any prospective Customer, referred by the Referrer. Paynetics shall not accept any Customers, who do not meet the due diligence criteria.
6. Where a prospective Customer, referred by the Referrer, is accepted by Paynetics, Paynetics shall enter into an agreement for the provision of Paynetics’s Services on terms which are deemed acceptable by the latter (the „Paynetics’ Agreement”) with such a Customer. Such a Customer shall have access to Paynetics` Services through the Platform until such time as the Paynetics` Agreement between Payentics and the Customer is terminated for whatever reason or there is other valid reason under the Paynetics` Agreement for limitation or suspension of Paynetics` Services available to the Customer.
7. The Referrer represents, warrants and covenants that it will not, directly or indirectly, call on, solicit or attempt to call on, solicit any Customer to terminate, withdraw or discontinue using Paynetics` Services.
V. COMMISSION
1. Subject to compliance with these Terms, the Referrer is entitled to a monthly commission for each referred Customer with whom Paynetics has entered into a Paynetics` Agreement on terms which are deemed acceptable by Paynetics, in the amount of 25% of the transaction fees paid by the respective Customer for the respective month for the Paynetics` Services provided to the Customer.
For the avoidance of doubt, the Referrer shall not be entitled to a monthly commission with respect to a Customer if: (i) Paynetics has rejected the Customer and did not enter into a Paynetics` Agreement with the respective Customer; or (ii) the Paynetics` Agreement with the respective Customer has been terminated. Subject to the fulfillment of the conditions set forth herein, the commission will be due until and as long as the Paynetics` Agreement with the respective Customer is in effect.
2. Each month, the Referrer shall provide Paynetics with a monthly report (cost-effective document), the latter compiled as per the requirements of Paynetics, for the Customers for which Referrer is eligible to receive commission, the commission due for each Customer and the total amount of the commissions due to the Referrer for the respective month. Such a monthly report shall be generated by Paynetics to Referrer no later than the 10th day of the month, following the month for which the report has been issued. For the avoidance of doubt, no commissions shall be due and payable to the Referrer unless Paynetics has approved the monthly report provided by the Referrer in accordance with the present paragraph.
3. Paynetics will use reasonable efforts to pay accumulated monthly commission due to Referrer for eligible Customers on a monthly basis and not later than the 30th day of the month, following the month for which the commission is due. Paynetics shall transfer the monthly commission due to the Referrer’s payment account opened with Paynetics and accessible through the Platform
4. All commissions are exclusive of VAT. Paynetics shall charge VAT or any other sales taxes, only where such tax is required under applicable law.
5. Unless otherwise agreed in writing by Paynetics, the only compensation due to the Referrer are the commissions payable pursuant to these Terms. As a result, a commission is due if the Customer has paid all transaction fees for Paynetics` Services in full on their due date to Paynetics.
6. The commission for a respective Customer shall be due as long as the Framework Agreement for the Provision of Payment Services between the referred Customer and Paynetics is valid
7. For the avoidance of doubt, Paynetics shall not owe commission for any Customer, referred by the Referrer but rejected by Paynetics, as well as for a terminated Customer or for a Customer with respect to whom Paynetics has suspended the provision of Paynetics` Services, for the duration of such suspension.
8. Paynetics reserves the right to set off from the amount due as a commission to Referrer any monetary obligation of the Referrer to Paynetics.
VI. TERM
These Terms shall come into force and become binding on the date of the first Customer introduced by the Referrer and accepted by Paynetics with which Paynetics has concluded an agreement for the provision of Paynetics` Services on terms, which are deemed acceptable by the latter, and continues for a period of one (1) year. These Terms shall automatically renew for an additional twelve (12) months thereafter (each, a “Renewal Period”) unless either party gives the other written notice of cancellation in accordance with Section IX., paragraph 1 letter a) or these Terms are terminated for whatever other reason prior to expiration of the Renewal Period.
VII. LIABILITY. INDEMNITY
1. Paynetics’ liability to the Referrer is limited to its obligations to pay commissions in accordance with Section V of these Terms. Neither party hereto will in any event be liable for any indirect, special, incidental, or consequential loss or damage of any kind, including but not limited to lost profits or lost revenue (whether or not such party was advised of the possibility of such loss or damage) or punitive damages, by reason of any act or omission in its performance under these Terms. The foregoing limitation does not apply to Referrer's indemnification obligations with respect to liability to third parties and any violation of the non-competition and non-circumvention obligations set forth herein.
2. Paynetics has no liability to Referrer for lost revenue, lost profit or commissions that might have been earned under these Terms but for the inability or failure of Paynetics to provide the Paynetics Services to any Customer, or in the event of discontinuation or modification of Paynetics Services, or for delay in acceptance or rejection of any order for Paynetics Services. Paynetics makes no representation or warranty, express or implied, as to the merchantability, fitness for any particular purpose or otherwise with respect to Paynetics Services.
3. The Referrer shall indemnify and hold harmless Paynetics, its affiliates, employees, officers and directors from and against any and all claims, actions, suits, proceedings, judgments, damages, liabilities, costs and expenses, including reasonable attorney's fees, arising directly or indirectly from: (i) breach by the Referrer of these Terms, negligent acts or omissions, or willful misconduct of the Referrer and/or (ii) any representations by Referrer to a Customer relating to Paynetics Services. Paynetics shall give the Referrer prompt notice of any matter for which it has an indemnification obligation. Paynetics will control the defense of such action and settlement negotiations.
4. Paynetics reserves the right to amend, alter or change the present General Terms and Conditions at any time, without notice (a copy of the amended General Terms and Conditions will always be available in Paynetics.online). For the avoidance of doubt, Paynetics shall not be liable for any damages or costs, which the Referrer may suffer as a result of Paynetics exercising its rights under this para. 4.
5. A Customer will not receive Paynetics Services unless and until Customer accepts Paynetics’ Terms and Conditions. . Paynetics reserves the right to terminate Paynetics’ Service provided to any Customer, in case of breach of Paynetics’ General Terms and Conditions with the Customer, without further liability for new commissions or otherwise.
VIII. AMENDMENTS
1. Paynetics reserves the right to unilaterally amend these Terms from time to time. Any such amendments shall be published in the Platform and shall enter into force as of the date indicated therein. Any such amendments shall bind the Referrer from the date of their entry into force unless the Referrer notifies Paynetics prior to that date that they object to such amendments in which case the relationship between the parties with regard to the referring of Customers will be terminated effective from the lapse of 30 days following the date of Referrer`s notification to Paynetics.
IX. TERMINATION
1. These Terms may be terminated:
a. by You or Paynetics with 30 days prior written notice;
b. by You in the case of clause VII. above;
c. by Paynetics with a notice to Referrer having an immediate effect in the following cases:
i. Referrer has breached materially these Terms whether or not such breach, as per Paynetics reasonable assessment, is capable of being remedied;
ii. Paynetics reasonably believes that Referrer is engaged in any illegal or fraudulent activities or promotes Paynetics Services to persons who might be involved in any illegal or fraudulent activities or promotes Paynetics Services for any illegal or fraudulent activities;
iii. in case of any activity, reported by a competent authority or established by Paynetics as illegal, fraudulent or breaching Visa or MasterCard’s rules;
iv. You have provided misleading information to third parties or performed some other action(s), which harm or might harm Paynetics’ reputation;
v. Paynetics reasonably believes that continuation of the relationship with Your business represents increased risk of loss or liability to us or is no longer of economic valuable to Paynetics;
vi. in the event of any proceedings and/or investigations launched against You;
vii. if Paynetics becomes aware of any offence under the applicable legislation, or have reason to believe that Referrer or any person associated with Referrer has received a request or demand for any undue financial or other advantage in connection with the performance of these Terms;
viii. if a foreign public official becomes an officer or employee of Referrer or acquires a direct or indirect interest in Referrer.
2. The Referrer waives any and all claims for any expected commission under these Terms, and Paynetics shall not owe the Referrer any commission, where:
a. Paynetics terminates these Terms in accordance with Section IX., paragraph 1, letter c) above; or
b. These Terms are terminated pursuant to Section I, para. 2 above; or
c. These Terms are terminated unilaterally for any reason whatsoever by the Referrer.
3. If Paynetics terminates these Terms in whole or in part with 30-days written notice as per Section IX., paragraph 1, letter a) above, then the commissions shall still be due for Customers for the period specified in Section V, paragraph 1 above and as long as Customer remains in good standing with Paynetics
4. Referrer will not continue to receive any payments if Referrer violates Section IV, paragraph 5 herein or approaches any of the Customers for which Referrer was paid or is due a commission, for any purpose that may lead to their discontinuance of Paynetics’ Services.
5. Upon termination of these Terms, Referrer shall immediately discontinue solicitation of Customers for Paynetics’ Service.
X. RELATIONSHIP BETWEEN PAYNETICS AND REFERRER
1. Paynetics and the Referrer acknowledge and agree that the relationship arising from these Terms does not constitute or create a general agency, joint venture, partnership, employee relationship or franchise between them, and that Referrer is an independent contractor with respect to the service provided by it under these Terms.
2. The Referrer shall make no express or implied agreements, guarantees or representations, or incur any debt, in the name of or on behalf of Paynetics. Referrer shall make no warranties relating to Paynetics service except as expressly permitted by Paynetics in writing.
3. Referrer's employees are not and may not be deemed to be Paynetics’ employees or joint employees. Referrer assumes full responsibility for the acts of its employees and for their supervision, daily direction and control. Paynetics is not responsible for worker's compensation disability benefits, unemployment insurance, withholding taxes, social security or any other taxes or benefits for Referrer's employees. Referrer shall make no warranties relating to Paynetics service except as expressly permitted by Paynetics in writing.
4. Neither the Referrer, nor its employees, shall not have the right to renegotiate, amend, set-off, accept or by any other means unilaterally conclude and undertake arrangements and obligations on behalf of Paynetics with third parties, including Customers, without Paynetics’ explicit consent.
5. The Referrer may not in its participation in the Paynetics Referral Program use any material, commercial brand or trademark of Paynetics.
6. Referrer is not authorized for other activities except for the expressly appointed in these Terms. Referrer shall not in any way be deemed authorized to perform any payment services or undertake any obligations for performance of payment services on behalf of Paynetics. These Terms are not intended to and do not create any third-party beneficiaries to the rights and obligations set forth herein, nor may any third-party beneficiaries be inferred by operation of law or otherwise. The Referrer undertakes not to disseminate false or misleading information about Paynetics or Paynetics` Services, nor information that could harm the good name and reputation of Paynetics.
7. The Referrer may not use any material, commercial brand or trademark, promoting Paynetics` Services without the prior written approval of Paynetics, which approval will not be unreasonably withheld.
8. Referrer will, at its own expense, operate in full compliance with all laws, rules and regulations applicable to, and maintain in force all licenses and permits required for, its performance under these Terms.
XI. CONFIDENTIALITY
1. For purposes of these Terms, "Confidential Information" means information disclosed by Paynetics to the Referrer which relates to the subject matter of these Terms, including, but not limited to Customer, business and/or technical information and data, or which, although not related to such subject matter, is nevertheless disclosed as a result of the parties' discussions, which in any case, is disclosed by Paynetics to Referrer in a document or other tangible form or electronic form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure (or if disclosed visually by electronic means, the identification as confidential may be delayed a reasonable time) and a written summary thereof, also marked with such a legend, is provided to Referrer within ten (10) days of the initial, disclosure. The following information is automatically deemed confidential and proprietary with need of any further legend or notice: (i) all customer account information, (ii) all commission related information, and (iii) all Paynetics information to which Referrer obtains access through a nonpublic Internet or other electronic information source. Confidential Information disclosed under these Terms is and will remain the property of Paynetics.
2. Referrer may use the Confidential Information only for the purpose of these Terms, and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Paynetics has the right to injunctive relief in the event of any breach or threatened breach of this Section. Notwithstanding any terms to the contrary herein, Referrer may comply with any government order, court order or other decree to produce or disclose the information after Paynetics has been notified of the order or decree and had an opportunity to prevent or restrict its production or disclosure. Referrer will provide such notice promptly.
3. The Referrer shall, in relation to the provision or use of services under these Terms and at any time for the duration of these Terms, comply with all applicable regulations and other rules having the same effect, regulating the protection of personal data. The Referrer shall not collect, process or disclose any personal data, obtained by the latter in the process of execution of these Terms, outside the purpose and scope of these Terms and the provisions of the General Data Protection Regulation and these Terms. The Referrer shall keep any personal data confidential for the entire duration of these Terms applying appropriate technical and organizational measures against accidental, unauthorized, or unlawful processing, destruction, loss, damage or disclosure of personal data as well as shall develop and comply to adequate security programs and procedures to prevent unauthorized access to the equipment used for processing or storage of such data.
XII. NOTICES
1. Notices under these Terms shall be exchanged through the Platform or sent by certified mail or email to the email provided herein above for Paynetics and to the email address provided by Referrer in their application for the use of Paynetics` Services and registered in the Platform.
2. Any communication, furnished by Paynetics to the Referrer in accordance with the preceding paragraph, shall be deemed to be duly received by the Referrer as at the date of its sending by Paynetics.
XIII. MISCALLEANOUS
1. If Paynetics fails to enforce any of its rights under these terms or applicable laws, it shall not be deemed to constitute a waiver of such right or any other rights under these Terms or applicable laws.
2. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain in force.
3. Referrer may not assign or otherwise transfer these Terms or any of its interest herein without the prior, express written consent thereto by Paynetics. Any attempted assignment without Paynetics' prior written consent will be deemed null and void. Neither the whole nor any part of the interest of the Referrer in this appointment will be transferred or assigned by operation of law. Paynetics may assign these Terms to its parent company, or any subsidiary or affiliate company.
4. These Terms shall be governed by and construed in accordance with the laws of the Republic of Bulgaria.
5. Any dispute arising out of or related to these Terms, which cannot be resolved by negotiation (including, without limitation, any dispute over the arbitrability of an issue), shall be brought solely and exclusively before the competent courts in Bulgaria. The costs for court proceedings, including the fees and expenses of the court and any legal fees, will be borne by the party initiating the action unless the court award provides otherwise. Each party will bear the cost of preparing and presenting its case. The prevailing party in the court case shall be entitled to recover from the other party the costs and expenses of its legal representatives and the full amount of actual attorney’s fees and costs.