APPENDIX No. 5 TO THE TERMS AND CONDITIONS - RULES FOR MAKING PAYMENTS THROUGH THE PAYMENT SERVICE PROVIDER - ADYEN
I. GENERAL PROVISIONS
1. This section contains additional definitions related to the use of the Provider's payment services:
a. Bank Transfer - the Bank Transfer within the meaning of Appendix no. 6 – Rules for making payments using merXu Protected Payment.
b. Chargeback - a complaint relating to a Transaction in which the payment card issuer, Payment Organisation or other financial institution requires a refund to the Buyer.
c. merXu Protected Payment - an optional functionality provided by the Service Provider , when the Transaction is settled by the payment method accepted by the Provider, under Section IV of this Appendix, or when the Transaction is settled by the Bank Transfer, under the Appendix no. 6 – Rules for making payments using merXu Protected Payment. The merXu Protected Payment is not a payment service, banking service, insurance service or any other regulated service.
d. Instructions - settlement instructions made by the Seller toward the Provider or the Service Provider.
e. Provider - within the meaning of Appendix No. 5, the company Adyen N.V., Simon Carmiggelstraat 6-50, 1011 DJ Amsterdam, The Netherlands, holding licence of a credit institution and subject to supervision of the National Bank of Netherlands.
f. Provider’s Platform - The Provider’s payment processing and acquiring platform used by Provider to provide the Payment services.
g. Payment Organisation - in particular Visa or Mastercard (including all their local organisations) and banks, as well as other organisations that manage the issuance and use of credit and debit cards or other payment methods, including bank transfers.
h. Proof of Delivery - a proof of delivery of all Products subject to the Offer (including quantity) to the Buyer that uses the merXu Protected Payment. The Proof of Delivery shall include: (i) in case of delivery by carriers or postal operators - an extract from the tracking system or confirmation of delivery from a particular carrier or postal operator; and (ii) in case of other means of delivery - other clear evidence of receipt by the Buyer.
i. Seller’s Onboarding Process - the activities conducted by the Seller to qualify for the use of the Payment services, which includes the submission of the personal details of the Seller or provide required documents for a know-your-customer (KYC) check, acceptance by the Seller of the Terms and Conditions of Adyen and provision of a bank account details for settlement of funds for successfully processed Payments.
j. Terms and Conditions of the Payment Organisations - the applicable operating rules and guidelines issued by the Payment Organisations, as amended by the Payment Organisations.
k. Terms and Conditions of Adyen – the terms and conditions of provision of services by the Provider to the Users, i.e. Sellers or Buyers respectively, available at: https://www.adyen.com/legal/terms-and-conditions.
l. Payment services - payment services within the meaning of the Polish Payment Services Act of 19 August 2011, provided by the Provider to the Users.
2. The Service Provider allows Users to settle Transactions made on the Platform through the Provider, under the terms and conditions set out in this Appendix.
3. The Service Provider allows Users to use the merXu Protected Payment for Payments made using the payment methods accepted by the Provider, under Section IV of this Appendix. The use of merXu Protected Payment for payments made using Bank Transfer shall be in accordance with the rules provided for in Appendix no. 6 - Rules for making payments using merXu Protected Payment. When providing merXu Protected Payment the Service Provider acts solely on behalf of the Seller.
II. GENERAL RULES OF USING THE PROVIDER'S SERVICES
1. The use of the Provider's Payment services requires the conclusion of a Payment services agreement between the Provider and the Seller. The Service Provider provides functionality on the Platform that allows the Seller to be redirected to the Provider's website in order to conclude this agreement.
2. For all Sellers who register on the Service Provider’s Platform after 3 July 2023, the conclusion of a Payment services agreement between the Provider and the Seller is mandatory in order to submit Offers on the Platform.
3. Sellers who registered and completed Verification on the Service Provider's Platform and submitted Offers before 3 July 2023 are required to conclude a Payment services agreement between the Provider and the Seller by 30 September 2023. Failure to conclude an agreement in question will result in the suspension of the Seller's Account.
4. The obligation to conclude a Payment services agreement referred to in clause II.3 above shall also apply to Sellers who have already concluded a payment services agreement with PayU.
5. In order to conclude an agreement with the Provider, each Seller must contract directly with the Provider and undergo a Seller’s Onboarding Process. The Provider may directly contact the Seller for the purposes of the Seller’s Onboarding Process.
6. The Service Provider facilitates the Seller’s Onboarding Process through performing the following activities:
a. gathers and pre-screens Seller's KYC documents before submitting to the Provider,
b. completes minimal KYC preparation activities for the Seller and submits the KYC data as specified to the Provider ensuring all information provided with respect to the Seller in the Seller’s Onboarding Process is complete,
c. communicates with Sellers about issues, errors or omissions in the submitted information and documentation as part of the sign-up process,
d. enables Sellers to apply for the Provider’s services via the Seller’s Onboarding Process on its website,
e. contacts the Provider for the purposes of Seller's Onboarding Process.
7. The execution of the Payment requires the acceptance of the Terms and Conditions of Adyen by the Seller, and, as the case may be, the Buyer.
8. The Provider decides on its own whether it will enter into an agreement for the provision of Payment services with the Seller and, as the case may be, the Buyer.
9. Subject to clause II.10 below, in order to process Payments, the Provider may make various payment methods available, depending on the country of service provision, including:
a. BLIK,
b. payment cards (including Visa Checkout digital wallets, MasterPass, ApplePay, GooglePay),
c. Trustly payments,
d. credit cards,
e. pay by link,
f. Open Banking International,
g. iDEAL,
h. SOFORT,
i. EPS
j. "Buy Now, Pay Later with Billie" (applicable for the buyers from the following countries: Germany, Austria and the Netherlands).
10. The Provider decides on:
a. not making a particular payment method available or to make it available in countries selected by the Provider,
b. limiting the availability of a given payment method to selected Products or categories offered on the Platform.
11. Flows of funds made within the Payment services are carried out outside the Platform. The Service Provider to no extent and at no stage intermediates in the implementation of settlements between Users (Sellers and Buyers), including at no stage comes into possession of funds due to the Seller under the Transaction.
12. The settlement of the Seller’s funds shall be made pursuant to the binding Instructions exclusively. The Seller will receive the amount of the Payments (payouts) to the Seller's bank account number provided to the Provider by the Seller, less the amount of the receivables (claims) that the Service Provider may deduct from the Seller's receivables, within the time limit set out in clause II.16 below.
13. The Service Provider may request the Seller or the Buyer who makes a Payment through the Provider to provide information about the Transaction that is necessary for the correct execution of the Payment by the Provider, and the Seller or the Buyer shall promptly, and not later than 3 business days after receiving the request from the Service Provider, provide such data to the Service Provider. This does not apply if the provision of such information would contravene generally applicable laws.
14. The Seller gives its unconditional and irrevocable consent for the Service Provider to transmit, at the request of the Provider or the Payment Organisations, information about the Seller's activities on the Platform, including the Transactions concluded and executed. If such consent could not be granted as irrevocable, its withdrawal by the Seller will constitute a breach of the Terms and Conditions.
15. It is not permitted to make Payments in respect of Transactions involving the Products and services listed on the list of prohibited and restricted products & services, available at: https://www.adyen.com/legal/list-restricted-prohibited.
16. The Provider allows Payments to be executed in all currencies of the European Union Member States. Payouts are available within a maximum of two business days following the day of the Payment initiated through the Provider, unless longer payout periods are agreed on behalf of the Seller by the Service Provider.
17. Clauses 12 and 16 shall apply subject to the provisions of Section IV, which shall prevail when the merXu Protected Payment is applied.
III. OBLIGATIONS OF THE SELLER
1. In case of withdrawal from the Transaction, the Seller is obliged to return the amount of the Payment to the Buyer. In order to make a return, the Seller is obliged to use the same method of payment that was used to make the Payment.
2. If a refund via the Provider is not available or possible at the time of such refund, the Seller who has received the Payment via the Provider shall refund the amount of the Payment to the Buyer by transfer to the Buyer's bank account. The Buyer irrevocably and unconditionally consents to this method of return.
3. The Seller may not charge the Buyer any costs or fees in connection with the refund referred to above.
4. The Seller hereby unconditionally and irrevocably authorises the Service Provider to act in the name of and on behalf of the Seller in relation to the Provider with regard to the submission of Instructions to the Provider for amounts (payouts) on account of completed Payments or returns. If such consent could not be granted as irrevocable, its withdrawal by the Seller will constitute a breach of the Terms and Conditions. This clause shall apply subject to the provisions of Section IV, which shall prevail when the merXu Protected Payment is applied.
5. The Seller hereby unconditionally and irrevocably authorises the Service Provider to act in the name of and on behalf of the Seller in relation to the Provider with regard to the setup, review and to operate profile and settings within the Provider’s Platform and to access or process data related to Payments services and Provider’s Platform, including activities related to the Seller’s Onboarding Process described in clause II.6 above and with regard to the proper execution of the Payment services agreement between the Provider and the Seller. If such consent could not be granted as irrevocable, its withdrawal by the Seller will constitute a breach of the Terms and Conditions.
6. The Seller hereby unconditionally and irrevocably consents to the deduction from its receivables arising from agreements for the sale of Products concluded with the Buyers of the amounts referred to in clause VI.4-VI.5 below. If such consent could not be granted as irrevocable, its withdrawal by the Seller will constitute a breach of the Terms and Conditions.
IV. MERXU PROTECTED PAYMENT
1. The Buyer each time decides whether a particular Payment following a Transaction should be executed with the use of the merXu Protected Payment. The Buyer’s exercise of the merXu Protected Payment does not require the Seller’s consent.
2. The merXu Protected Payment entails that the final execution of a Payment acquired by the Provider for the Seller, after the completion of a Transaction, is delayed up to a maximum of 30 days with respect to the payouts of funds resulting from the Payment to the Seller’s bank account, unless the grounds for issuing a payout instruction by the Service Provider have not been fulfilled. Payouts shall be delayed until the Service Provider submits, for and on behalf of the Seller, appropriate payout instructions to the Provider pursuant to clauses 3-7 below. At the request of the Buyer or the Seller, the Service Provider may extend the period referred to in the preceding sentence, provided that the other party to the Transaction agrees to the extension.
3. Where a Transaction takes place and the Buyer opted for the merXu Protected Payment to be applied for the relevant Payment, the Buyer shall inform the Service Provider of receiving a particular Product within 3 business days after its receipt. In cases where the Service Provider has obtained information from the Seller that a particular Product has been shipped or otherwise delivered and should already have reached the Buyer, the Service Provider shall set a time period of 2 business days for the Buyer to confirm the receipt of a Product or to notify non-receipt of the Product.
4. In case of failure of the Buyer to fulfill the obligations referred to in clause 3 above, the Service Provider shall instruct the Provider to payout the funds corresponding to the amount of the Transaction to the Seller’s bank account. If the Buyer confirms the receipt of a Product, the Service Provider shall instruct the Provider to payout the funds corresponding to the amount of the Transaction to the Seller’s bank account.
5. If the Buyer informs the Service Provider that the Product has not been received within the timeframes referred to in clause 3 above, the Service Provider shall withhold its payout instruction until the Seller has demonstrated a Proof of Delivery pursuant to clause 6 below. The Service Provider shall inform the Seller of the Buyer’s non-receipt statement immediately, but in any case no later than within 1 business day of its receipt.
6. The Seller shall demonstrate a Proof of Delivery to the Service Provider within 5 business days after the Service Provider has informed the Seller of the Buyer’s non-receipt statement referred to in clause 5 above.
7. In case of failure of the Seller to demonstrate a Proof of Delivery referred to in clause 6 above within the timeframes specified therein, the Service Provider shall instruct the Provider to return the amount of the Payment to the Buyer.
8. The Seller unconditionally and irrevocably:
a. consents that the Buyer may use the merXu Protected Payment in respect of every Transaction, for which Payment is made;
b. authorises the Service Provider to instruct the Provider on payouts in accordance with the clauses of Section IV;
c. waives the right to instruct the Provider to payout the amount of Payment where the Buyer uses the merXu Protected Payment.
If such consent, authorization and/or waiver could not be granted as irrevocable, its withdrawal by the Seller will constitute a breach of the Terms and Conditions. The giving or attempting to give the instruction referred to in letter c. above will constitute a breach of the Terms and Conditions.
9. The communication between the Buyer or the Seller and the Service Provider in accordance with clauses 3 and 5-6, including transmission of Proof of Delivery, shall be executed via the associated Account functionality. The Service Provider may also contact the Users via e-mail or telephone.
10. Where in case of a particular Transaction the Transport Organization Assistance is provided by the Service Provider, only clause 3 sentence 1 above shall apply. Where the Buyer denies having received the Product or fails to fulfil the obligation referred to in clause 3 sentence 1 above, of which the Service Provider may become aware from information obtained e.g. from the Seller, the Service Provider shall instruct the Provider to:
a. payout the funds to the Seller’s bank account; or
b. further withhold of the payout of the funds to the Seller’s bank account; or
c. return the amount of the Payment to the Buyer;
on the basis of information at the Service Provider’s disposal, within 5 business days from receiving relevant information from the Users. In such case, the Service Provider may act without receiving further notifications referred to in clauses 5-6 above.
11. With respect to the Transactions executed using the merXu Protected Payment, other provisions of this Appendix for refunds of amounts of Payments in the event of withdrawal from the Transaction shall apply accordingly.
12. The Seller may not differentiate the prices of Offer depending on whether or not the Buyer has used merXu Protected Payment for a given Transaction. The Seller may not charge the Buyer any costs or fees, directly or indirectly, in connection with the Buyer using the merXu Protected Payment. The Seller may not discourage the Buyer from using the merXu Protected Payment. Such conduct constitutes a breach of the Terms and Conditions.
13. Conduct in which the Buyer falsely claims not to have received the Product constitutes a breach of the Terms and Conditions.
V. COMPLAINTS
1. The Service Provider shall receive and process Users’ complaints regarding the Payment services rendered by the Provider. If such a complaint is addressed to the Provider, the Provider will forward such complaint to the Service Provider.
2. The User other than sole trader files a complaint electronically through the contact form on the Service Provider’s website or to the Service Provider’s e-mail address: pomoc@merxu.com.
3. The User being a sole trader has the right to file a complaint in accordance with the following procedure:
a. electronically: through the contact form on the Service Provider’s website or to the Service Provider’s e-mail address: pomoc@merxu.com or sent to an electronic delivery address, which will be provided as of the date on which the obligation to have an electronic delivery address entered in the electronic address database by the Service Provider occurs;
b. by telephone, at the number: +48 732 052 000;
c. in writing by registered letter sent to the Service Provider’s address: ul. Kraszewskiego 4/8, 60-518 Poznań, Poland.
4. The complaint shall contain: (i) description of the subject of the complaint; (ii) the User’s data; (iii) documents which, in the opinion of the User, are relevant to the resolution of the compliant.
5. The Service Provider shall resolve complaints within 15 business days from the date of its receipt. If, due to the complexity of the subject matter of the case, there is a need for additional investigation, the deadline referred to above may be extended to 35 business days. The Service Provider shall inform the User of: (i) the reason for the delay in the response to the complaint (”Response”); (ii) the additional circumstances that must be established; (iii) the new deadline for the Response.
6. The User hereby agrees that the Provider, or Service Provider as the case may be, will send a Response via e-mail.
7. In the case of a complaint by a User being a sole trader, a Response shall include:
a. factual and legal reasons, unless the complaint has been resolved in accordance with the User’s will;
b. comprehensive information on the Provider’s or Service Provider's position on the objections raised, including the indication of the relevant sections of the terms and conditions;
c. the name of the person responding with an indication of his/her official position;
d. determination of the time limit within which the claim raised in the complaint considered in accordance with the User’s will be fulfilled, which shall not exceed 30 days from the date on which the Response is made.
8. The Provider and the Service Provider do not provide an appeal procedure for complaints.
9. The User being a sole trader has the right to out-of-court settlement of any disputes. The entity competent to settle disputes is the Polish Financial Ombudsman (https://rf.gov.pl/).
10. The Seller may not induce the Buyer to waive their right to complain about a completed Transaction.
11. Complaints about the merXu Protected Payment do not constitute complaints about payment services provided by the Provider, and the provisions of this Section V do not apply. Such complaints shall be dealt with by the Service Provider under the general terms and conditions provided for in the Terms and Conditions.
VI. LIABILITY
1. The Service Provider shall not be liable for the non-performance or improper performance of its obligations by the Provider.
2. The Service Provider shall not be liable for malfunctions or inaccessibility of the Payment services or the Provider’s Platform for reasons beyond the Service Provider's control, in particular if they were a consequence of the Seller's or Buyer's use of the Payment services in a manner contrary to this Appendix, the agreement concluded between the Seller and the Provider, the Terms and Conditions of Adyen or if they were attributable to the Provider.
3. The Seller undertakes to indemnify the Service Provider against any liability that the Service Provider incurs or may incur to the extent that such liability results from the Seller's breach of the prohibitions referred to in clause II.13-II.15 above, and to pay the resulting damages.
4. The Seller agrees to reimburse the Service Provider for any costs, fees or penalties incurred by the Service Provider towards the Provider, the Payment Organisation or any other entity involved in the payment process, which the Service Provider has been charged with due to circumstances attributable to the Seller or belonging thereto, including:
a. the costs necessary to cover claims relating to the handling of Chargeback complaint, in the event that Chargeback complaint is found to be justified,
b. the costs necessary to cover claims for fraudulent transactions (fraud) where fraud or abuse has occurred on the part of the Seller,
c. the amount of penalties imposed on the Service Provider by the Provider or the Payment Organisation or any other entity involved in the execution of Payments for breaches of the Terms and Conditions of the Payment Organisations or the Terms and Conditions of Adyen by the Seller,
d. amounts necessary to cover the settlement of the corrected transaction if the Trustly or SOFORT payment method is used.
5. In the event that the return of the amount of the Payment to the Buyer in connection with the withdrawal or partial withdrawal from the Transaction is made against the Service Provider's funds, the Seller undertakes to refund to the Service Provider the amount of the refund made.
6. The return referred to in clause VI.4 and VI.5 above, will take place no later than 5 business days after the Service Provider has delivered the Service Provider's request in this regard to the Seller by email.
7. If the Seller fails to make the return referred to in clause VI.4 and VI.5 above, or if the Seller exceeds the deadline referred to in clause VI.6 above, the Service Provider may suspend the Seller's Account. The provisions of clause II.13 of the Terms and Conditions (Suspension of Account) shall apply accordingly.
8. The Service Provider shall not be liable for any damages that may result from the exercise of the merXu Protected Payment, other than the Service Provider’s improper performance or non-performance of its explicit obligations under this Appendix.
9. Within the merXu Protected Payment, the Service Provider does not verify the defects of the Product that has been delivered or its conformity with the order. The Service Provider shall not be liable for any defect in the Product, its non-conformity with the order and its delivery in a manner inconsistent with the order, including in the wrong quantity, and for any damage resulting therefrom. Buyers may use the general complaint route with the Seller.
10. The use of the Trustly or SOFORT payment method is voluntary and at the Buyer's discretion, insofar as this method is made available by the Provider. The Seller and the Buyer acknowledge and accept that if the Trustly or SOFORT payment method is used, although the billing account is credited with the amount of the Payment, the respective amount of the Payment may not actually be transferred to the Provider (e.g. due to a lack of funds in the Buyer's account or due to technical problems in the posting of operations on the part of the Payment Organisation). This risk is related to the established rules of Trustly or SOFORT payment method. In the event that the Provider does not receive the amount of the Payment in question, the Provider will automatically debit the Seller's balance (autocorrect billing) by the amount of the Payment for which funds have not been received. The Seller and the Buyer undertake not to raise any claims against the Provider on this account.
VII. CHANGES
1. The Service Provider may amend this Appendix for any reason. The change shall take effect on the date indicated by the Service Provider. This period shall not be shorter than 14 days from the moment the amended Appendix is made available on the Platform. The deadline may be shorter if we are required to amend the Terms and Conditions within a shorter period of time, including by the Provider, or exceptionally amend the Terms and Conditions to address an unforeseen and imminent threat.
2. To the extent not regulated herein, the provisions of clause III (Final provisions) of the Terms and Conditions shall apply mutatis mutandis to the amendment of the Appendix.
VIII. FINAL PROVISIONS
1. In matters relating to Payment services, Payment Organisations have the right to contact the Seller directly and the Seller is obliged to provide the Payment Organisations with the information requested by them.
2. Suspension or deletion of your Account prevents you from using the Provider's services for Transactions carried out on the Platform. Suspension or deletion of the Account may result in the termination of the Payment services agreement between the Provider and the Seller, as provided for in the Payment services agreement between the Provider and the Seller and the Adyen’s Terms and Conditions.
3. With regard to Payments made using a payment card, the Service Provider complies with the standards set out in the Payment Card Industry Data Security Standard (PCI DSS) - an organisation of the PCI Data Security Council set up by payment organisations to standardise issues concerning the protection of payment cardholder data and in accordance with the guidelines of this organisation.
4. The Service Provider has the exclusive right to select and change the Provider at any time.