APPENDIX NO 7 TO THE TERMS AND CONDITIONS - TERMS OF USE OF MERXU PAY FUNCTIONALITY
I. DEFINITIONS
1. This chapter contains additional definitions related to the use of merXu Pay:
a. Assumption of Receivable - the assumption of the Receivable by the merXu Pay Provider from the Seller.
b. Consent – a one-time consent given by the merXu Pay Provider to the Buyer's use of merXu Pay in relation to a particular Transaction.
c. Databases – registers containing economic or credit information maintained by entities aggregating, sharing, or exchanging economic or credit information and statistical registers and offices, commercial registers, court registers, including insolvency and debt enforcement registers, business registers and tax registers.
d. Invoice - an invoice within the meaning of Article 218 et seq. of Directive 2006/112/EC on the common system of value added tax and the provisions implementing that directive or other analogous provisions on value added tax or on goods and services, issued by the Seller in accordance with the applicable legal provisions, which confirms the existence of the Receivable. If an Invoice is corrected in accordance with the applicable legal provisions, the correcting Invoice shall also be deemed to be an Invoice.
e. merXu Pay - functionality that allows the Buyer to pay the merXu Pay Amount to the merXu Pay Provider within 30 calendar days from the date the merXu Pay option is used for a specific Transaction. merXu Pay is not a payment service within the meaning of Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC.
f. merXu Pay Amount - an amount equivalent to the amount of the Receivable, expressed in the same currency as the amount of the Receivable, which the Buyer is obliged to pay to the merXu Pay Provider as a result of the completed Assumption of Receivable.
g. merXu Pay Provider - Merxu sp. z o. o. with its registered office in Poland, at Poznań (60-518), ul. Kraszewskiego 4/8,, Regon: 385853514, NIP: 7792514527, KRS: 0000835832, with share capital of 1,000.000 PLN, entered in the Register of Entrepreneurs kept by the District Court Poznań - Nowe Miasto and Wilda in Poznań, VIII Economic Department of the National Court Register; when we write about "us" in this Appendix 7 to the Terms and Conditions, we mean the merXu Pay Provider.
h. Receivable - a monetary receivable expressed in the currency specified for the relevant Offer, arising from the Sales Contract, which the Seller originally had against the Buyer, as debtor, which is subject to the Assumption of Receivable; the Receivable consists of: the total gross price for the Transaction, taxes and derived costs for the Transaction, which the Buyer is obliged to pay and any and all rights to performance in respect of the assumed Receivable, including rights securing such performance (i.e., pledges and guarantees, if applicable) and rights related to it (accessories).
i. Sales Contract - an agreement for the sale of a Product or Service concluded between the Seller and the Buyer as part of Transactions made on the Platform.
II. GENERAL TERMS AND CONDITIONS OF USE OF MERXU PAY FOR THE SELLER
1. merXu Pay is available to Sellers who meet the criteria set out in this Appendix 7 to the Terms and Conditions.
2. The activation of merXu Pay for the Seller means that the Buyers can use the merXu Pay functionality for Transactions concluded with such Seller. This applies to Buyers who meet the criteria set out in this Appendix 7 to the Terms and Conditions and who have been granted access to merXu Pay.
3. Once merXu Pay has been activated and stays active for the Seller, the Buyer will be given the option to pay using merXu Pay in relation to all of the Seller's Offers, unless otherwise stated in this Appendix 7 to the Terms and Conditions, to which the Seller irrevocably and unconditionally agrees.
4. The use of merXu Pay may be activated for the Seller, if the Seller meets all of the following conditions:
a. the Seller has an active Account;
b. the Seller has accepted the terms of use of merXu Pay as set out in this Appendix 7 to the Terms and Conditions;
c. the Seller has received a positive assessment of its ability to meet liabilities from the merXu Pay Provider;
d. the Seller does not deal in unauthorised and restricted products as referred to in Appendix 2 to the Terms and Conditions;
e. the Seller’s business activity is active and has not been suspended; and
f. the Seller’s identity has been verified by the Provider as referred to in Appendix 5a to the Terms and Conditions.
5. The assessment of the Seller's ability to meet liabilities under clause II.4.lett. c) is carried out on the basis of:
a. information about the Seller made available in the Account Activation process, in accordance with clause II.2 of the Terms and Conditions (User Account);
b. any previous activity of the Seller on the Platform, including the history of Transactions carried out by the Seller;
c. information from Databases.
6. The Seller will receive confirmation of activation of merXu Pay by e-mail. Information on activation of merXu Pay will also be visible in the User panel on the Account.
7. The Seller has the option to disable the merXu Pay functionality in the User panel on the Account.
8. The merXu Pay functionality is only available to entrepreneurs conducting business activity. The merXu Pay functionality cannot be used by a consumer.
9. The merXu Pay functionality is not offered to the Sellers who have their registered seat in Germany or Romania or have their habitual residence in Germany or Romania.
III. GENERAL TERMS AND CONDITIONS FOR THE USE OF MERXU PAY FOR THE BUYER
1. merXu Pay is available to Buyers who meet the criteria set out in this Appendix 7 to the Terms and Conditions.
2. The activation of merXu Pay for the Buyer means that the Buyer can use the merXu Pay functionality for Transactions concluded with the Sellers who meet the criteria set out in this Appendix 7 to the Terms and Conditions and who have been granted access to merXu Pay.
3. The use of merXu Pay may be activated for the Buyer, if the Buyer meets all of the following conditions:
a. the Buyer has an active Account;
b. the Buyer has accepted the terms of use of merXu Pay as set out in this Appendix 7 to the Terms and Conditions;
c. the Buyer has received from the merXu Pay Provider a positive assessment of its ability to meet liabilities;
d. the Buyer’s business activity is active and has not been suspended; and
e. the Buyer’s identity has been verified by the Provider as referred to in Appendix 5a to the Terms and Conditions, if applicable.
4. The assessment of the Buyer’s ability to meet liabilities under clause III.3.c) is carried out on the basis of:
a. information about the Buyer made available in the Account Activation process, in accordance with clause II.2 of the Terms and Conditions (User Account);
b. any previous activity of the Buyer on the Platform, including the history of Transactions carried out by the Buyer;
c. information from Databases.
5. The Buyer will receive confirmation of activation of merXu Pay by e-mail. Information on activation of merXu Pay will also be visible in the User panel on the Account.
6. The Buyer has the option to disable the merXu Pay functionality in the User panel on the Account.
7. The merXu Pay functionality is only available to entrepreneurs conducting business activity. The merXu Pay functionality cannot be used by a consumer.
IV. FINANCING THE TRANSACTION VIA MERXU PAY
1. In order to pay for a specific Transaction using merXu Pay, the Buyer should select the payment option of merXu Pay before finalizing the Transaction.
2. The ability to pay for a specific Transaction using merXu Pay depends on the Buyer's current ability to meet liabilities, irrespective of the previous general activation of merXu Pay for the Buyer under clause III above. We make this assessment prior to any Transaction that the Buyer intends to settle with merXu Pay.
3. Notwithstanding clause IV.2 above, we may disable the Buyer's ability to pay for a particular Transaction using merXu Pay if:
a. the Buyer has not repaid the merXu Pay Amounts in relation to the previous Transactions carried out by the Buyer with the use of merXu Pay by the prescribed due date in accordance with this Appendix 7 to the Terms and Conditions;
b. the Buyer, despite being instructed otherwise, repaid merXu Pay Amounts to an account other than those indicated by us, including direct payments to the Seller.
4. We will send a confirmation of granting the Consent to the Buyer and the Seller by e-mail. We will notify the Buyer as regards the Assumption of the Receivable to us, stating the identity of the assignee, reasonably identifying the Receivable and requiring the Buyer to pay to us. The notice will also be visible in the User panel of the Account. Seller hereby agrees that the notification to Buyer of the Assumption of the Receivable is made by merXu Pay Provider also on behalf of the Seller.
5. The payment option with merXu Pay may not be available to the Buyers for certain Offers if:
a. the Seller’s access to merXu Pay has not been activated or it has been temporarily suspended;
b. the Seller has exceeded the limit of merXu Pay made available to such Seller;
c. the Receivable to which the Transaction relates does not meet the criteria set out in clause. V.7 below.
6. The Buyer shall not incur any fees for using the merXu Pay functionality if it repays the entire merXu Pay Amount within the prescribed due date.
V. ASSUMPTION OF RECEIVABLES
1. Once the Buyer has selected the option to pay for the Transaction using the merXu Pay functionality in accordance with clause. IV.1 and provided that the Buyer has fulfilled the conditions for using merXu Pay, we declare our readiness to assume the Receivable from the Seller, and the Seller undertakes to declare in the User panel on the Account its full readiness to deliver the complete Product or Service, in accordance with the Offer and the Transaction immediately, but no later than 3 days from the granting of the Consent. At this stage, payment with merXu Pay in relation to a specific Transaction has not yet been confirmed and made. We may refuse to assume any or all Receivables submitted by the Seller.
2. Once the Seller has declared that it is fully ready to deliver the complete Product or Service, in accordance with clause. V.1 above, using the functionality in the User panel on the Account, we will immediately take steps to assume the Receivable from the Seller.
3. If the Seller does not declare itself fully ready to deliver the complete Product or Service within the period referred to in clause V.1 above, the possibility of payment with merXu Pay in relation to the specified Transaction shall be cancelled. We will send this information to the Buyer and the Seller by e-mail.
4. We shall assume the Receivable from the Seller upon we initiate the payment of the amount referred to in clause V.5 below.
5. Due to the Assumption of Receivable, we will pay the Seller an amount equal to the value of the Receivable, as defined.
6. As a result of the Assumption of Receivable, the Buyer shall be obliged to pay the merXu Pay Amount to the merXu Pay Provider and not to the Seller.
7. The subject of the Assumption of Receivable may be a Receivable that meets all of the following conditions, which the Seller hereby expressly confirms as regards each Receivable that will be subject of the Assumption:
a. The Receivable is monetary and vests solely in the Seller;
b. The Receivable arises out of a valid legal transaction that complies with applicable law;
c. The Receivable exists and is undisputed at the date of the Assumption of Receivable, including as to its existence, amount, and due date;
d. The Receivable is not overdue;
e. Neither the Buyer nor a third party has yet made payment on the Receivable;
f. Neither the Buyer nor a third party has set off their receivable against the Seller from such Receivable;
g. Any agreement, including the agreement giving rise to the Receivable, does not prohibit the transfer of the Receivable;
h. The transfer of the Receivable does not require the consent of either the Buyer or a third party;
i. The nature of the Receivable does not cause it to cease to exist upon the debtor’s death;
j. The substance of the Receivable will not change upon its transfer;
k. The Receivable can be subject to enforcement proceedings;
l. The transferability of the Receivable is not restricted by applicable law;
m. The Receivable is not encumbered by third-party rights or seizure by an enforcement authority;
n. The Receivable is not secured;
o. The payment date of the Receivable is no longer than 30 calendar days.
8. In connection with the activation of merXu Pay, the Seller warrants that it will only submit for the Assumption of Receivable such Receivable that meet the conditions set out in this Appendix 7 to the Terms and Conditions. This applies to all Seller’s Offers from the time of activation of merXu Pay functionality for the Seller.
9. The Seller is obliged to provide us with a copy of the Invoice issued by the Seller, which confirms the existence and the amount of the assumed Receivable, within 5 working days from the date of the Assumption of Receivable in accordance with this Appendix 7 to the Terms and Conditions. The Invoice should be issued in accordance with applicable law. The Invoice should clearly specify the due date of the Invoice and the amount of the Invoice. The invoice must not indicate the bank account number of the Seller. The transfer of the Invoice takes place using the functionality made available in the User panel on the Account.
10. The technical requirements for Invoices submitted in accordance with Clause V.9 above, are specified in the User panel on the Account.
11. Upon the Buyer's request to make payment in relation to a specific Transaction using merXu Pay in accordance with clause IV.1., the Buyer agrees to the Assumption of Receivable arising from the Transaction with the Seller by us and to the methods of notification in respect of the Assumption of Receivable.
12. We will pay the amount of the assumed Receivable to the Seller in one of the following ways:
a. by a bank transfer to the Seller's bank account number indicated during Registration;
b. by means of payment services provided by the Provider, as referred to in Appendix 5a to the Terms and Conditions, if the Provider makes such a possibility available.
13. For each Seller we set a limit on the total amount of all the Receivables that may be assumed by us. This limit may be changed without previous notice by us at any time. This limit does not constitute a line of credit or any other type of obligation on our part. Any previously assumed Receivables will not be affected by such change.
14. The Seller shall fully reimburse merXu Pay Provider up to the amount of received consideration with interest if:
a. the merXu Pay Provider did not become the creditor of the Receivable with the agreed content instead of the Seller;
b. the assumed Receivable or a part thereof was extinguished by its setting off against a claim the Buyer or the third party had against the Seller.
VI. REPAYMENT ARRANGEMENTS
1. The Buyer is obliged to repay the entire merXu Pay Amount within 30 calendar days from the date of receipt of the e-mail confirming the payment with merXu Pay referred to in clause IV.4. above. If the Buyer, for any reason, has not received the above-mentioned e-mail, the Buyer is obliged to repay the entire merXu Pay Amount within 30 calendar days after we have displayed a message to the Buyer in the User panel on the Account informing that the payment has been made with merXu Pay. The repayment must be made:
a. by bank transfer to the merXu Pay Provider's bank account number indicated in the User panel on the Account, as well as in the e-mail referred to in clause IV.4. above, and in e-mails reminding the User to repay the merXu Pay Amount;
b. by means of payment services provided by the Provider, as referred to in Appendix 5a to the Terms and Conditions, if the Provider makes such a possibility available.
2. The day of the payment of the merXu Pay Amount by the Buyer is the day on which our bank account is credited or the day on which the payment is made through the Provider.
3. In the event that the Buyer makes a partial or full repayment of the merXu Pay Amount directly to the Seller instead of to us, the Seller shall, within 3 working days of receipt of such repayment, be obliged to transfer the amount so received to us in accordance with the methods set out in clause VI.1 above. The same shall apply in the event that the Buyer or the third party submits a statement of set-off of the Buyer's or such a third party’s receivable against the Seller.
4. The repayment of the merXu Pay Amount by the Buyer will be considered fulfilled in case specified in Section VI.3 above, if the Seller fulfils his obligations set forth therein.
5. The deadline of the obligation of the Buyer for the repayment of the merXu Pay Amount is determined by the email we send to the Buyer in accordance with clause IV.4 above.
6. In the User panel on the Account, the Buyer can check the outstanding merXu Pay Amounts and their due dates.
VII. CONSEQUENCES OF BUYER DELAY
1. In the event of a delay in repayment of the merXu Pay Amount, the Buyer shall pay us late interest calculated from the outstanding amount. Late interest is calculated at the maximum default interest rate pursuant to Article 481 §21 of the Polish Civil Code, unless, for certain types of debt or for debts lasting for a certain period of time, provisions of foreign law override their application, in which case these provisions shall apply. The late interest shall be calculated from the first day following the due date of the merXu Pay Amount in respect of which the delay has arisen.
2. Notwithstanding clause VII.1 above, in the event of Buyer’s delay in payment of the merXu Pay Amount, we may:
a. inform the relevant Databases in accordance with the applicable provisions of law;
b. request the Buyer to repay the merXu Pay Amount by phone, e-mail, or SMS;
c. take, at our discretion, any enforcement measures allowed by the applicable law for the recovery of the merXu Pay Amount, together with the due late interest and the costs incurred, including entrusting third parties to act in this respect; the Seller in this case, acting on its own behalf, is obliged to cooperate with us; or
d. without the Buyer's consent, transfer the receivable we are entitled to against the Buyer in respect of the merXu Pay Amount to a third party(ies).
3. On account of conducting debt recovery activities by the merXu Pay Provider referred to above in clause VII.2.c) above, the Buyer shall pay us costs stipulated in the following table of fees and commissions:
|
Type of activity |
Cost per item |
Max cost for activities performed in particular month |
|
E-mail notification |
EUR 3 |
EUR 15 |
|
SMS notification |
EUR 5 |
EUR 20 |
|
Contact over phone |
EUR 10 |
EUR 60 |
4. When the amount is overdue more than 15 calendar days, the Buyer shall pay us a compensation for recovery costs stipulated in the following table according to the applicable law:
|
Compensation for recovery costs |
One-time fee |
|
When overdue debt is up to EUR 1,000 |
EUR 40 |
|
When overdue debt is between EUR 1,000 – 10,000 |
EUR 70 |
|
When overdue debt is above EUR 10,000 |
EUR 100 |
5. The Buyer shall pay the recovery compensation amounts referred to in clauses VII.3 and VII.4 above in the manner set out in clause VI.1 above within 3 working days from the date of receipt of the request for payment. For the avoidance of doubt, the obligation to pay also applies to the case where the payment request or debit note are issued by an external debt collection company, as indicated therein.
6. Any amounts recovered by us from the Buyer shall be credited to the repayment of the Buyer’s liabilities in the following order:
a. recovery costs;
b. late interest on overdue receivables (interest for delay in payment);
c. amount of overdue receivables.
VIII. REFUSAL OF PAYMENT OR CHANGE IN THE AMOUNT OF A RECEIVABLE DUE TO DEFECTS IN A PRODUCT OR SERVICE
1. The Seller shall immediately notify us of any complaint made by the Buyer as to any physical or legal defect in the Product or Service that is the subject of the Transaction, but no later than the next business day after receipt of such complaint.
2. The Seller may only adjust the amount of the assumed Receivable in the event of a justified acceptance of the Buyer's complaint, but not before reimbursing us for the difference between the original amount of the Receivable and its amount after the adjustment. A change in the amount of the assumed Receivable shall only take place if it is possible to issue a correcting Invoice under the applicable laws. The Seller should make the payment in the manner specified in sec. VI.1 above.
3. The Seller shall provide documents correcting the value of the Products or Services (including, in particular, the correcting Invoice) and documentation relating to the complaint within the time limits and in accordance with the rules set out in clause V.9 above.
IX. WITHDRAWAL FROM THE SALES CONTRACT BY THE BUYER AND NULLITY OF THE SALES CONTRACT
1. Should the Buyer exercise the right to withdraw from the Sales Contract, the Seller shall notify us immediately, but no later than the next business day after the receipt of such withdrawal.
2. Should the Sales Contract prove to be null and void, the Seller and the Buyer shall be jointly and severally liable to us for this outstanding obligation to repay the merXu Pay Amount or the part thereof.
3. The Seller shall reimburse to us all or part of the outstanding merXu Pay Amount paid by us to the Seller for the Assumption of Receivable, referred to in clause V.5 above, corresponding to the price for the Product or Service that is the subject of the Sales Contract, within 3 business days from the Seller’s knowledge of, respectively:
a. withdrawal (in whole or in part) by the Buyer from the Sales Contract; or
b. nullity of the Sales Contract.
4. The reimbursement should be made in the manner set out in clause VI.1 above.
X. BREACH OF DUTY
1. The User (Seller’s or Buyer’s) Account may be suspended if the User breaches the obligations set out in this Appendix 7. Clause II. 13 of the Terms and Conditions (Account Suspension) shall apply accordingly.
2. Should the Seller submit a Receivable for assumption that does not meet the criteria referred to in clause V.7 above, the Seller shall pay us a contractual penalty of 20% of the amount of the Receivable referred to in clause V.5 above. The Seller shall make payment in the manner set out in clause VI.1 above, within 3 working days of receipt of our request for payment.
3. We may deduct our receivable against the Seller from the Seller's receivable for payment of the amount referred to in clause V.5 above, on account of the Assumption of Receivable, even if they are not due.
XI. FINAL PROVISIONS
1. With regard to complaints concerning merXu Pay, the provisions of Section. II.9 (Complaints) of the Terms and Conditions shall apply accordingly.
2. With regard to the amendment of this Appendix 7 to the Terms and Conditions, the provisions of clause III (Final Provisions) of the Terms and Conditions shall apply accordingly.
3. This Appendix 7 to the Terms and Conditions is governed by Polish law. The United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG) and the Convention on the Limitation Period in the International Sale of Goods, drawn up in New York on 14 June 1974, shall not apply.
4. To the extent not explicitly covered by this Appendix 7 to the Terms and Conditions, the provisions of the Terms and Conditions shall apply accordingly.
5. Disputes arising out of or in connection with the performance of this Appendix 7 to the Terms and Conditions shall be resolved by the Polish courts having jurisdiction over the merXu Pay Provider's registered office.
6. The User (Seller’s or Buyer’s) is obliged to immediately inform us of any change in the information necessary for the use of merXu Pay, in particular the data referred to in clause V. 12. lett. a) above.
7. The merXu Pay Provider shall not be liable for any interruption in the availability of merXu Pay functionality, either in whole or in part, resulting from failures, cases of malfunction of systems (including transmission systems and ICT systems) beyond our control or the need to carry out maintenance work on the Platform.