PAYMENT INITIATION SERVICE PROVISION AGREEMENT GENERAL TERMS
Valid from 20-10-2020 till 06-06-2021
1. Agreement Interpretation, Abbreviations and Definitions
1.2. Headings are intended for the convenience of the Parties and should not be used when interpreting the provisions of the Agreement;
1.3. Use of the singular includes the plural and vice versa;
1.4. In the event of any conflict or ambiguity between this agreement and the documents attached or incorporated by reference, the order of priority shall be:
1.4.1. Special Terms;
1.4.2. This Agreement General Terms.
1.4.3. PISP rules.
1.5. In this Agreement:
1.5.1. Certain terms have defined meanings. These terms are capitalized and the definitions can be found in the Annex “Definitions”
18.104.22.168. Contomobile – Contomobile UAB, specified in the Agreement preamble and final part, which trademark is “Contomobile”.
22.214.171.124. Business day is a business day, determined by the legislation of Republic of Lithuania. The duration of the business day may not exceed 8 (eight) business hours of the period from 8 a.m. to 5 p.m. in Lithuanian time.
126.96.36.199. Payee – means the Customer, i.e. legal person, another organisation or its subdivision who are indicated in the payment order as the intended recipients of funds which have been the subject of a payment transaction.
188.8.131.52. Customer is a legal entity specified in the Agreement preamble and final part. In order to eliminate the ambiguities, hereby it is made clear that the Customer’s divisions, subsidiaries, branches, representative offices and other entities related to the Customer are not considered to be the Customer.
184.108.40.206. PIS rules - the rules regulating the provision of the payment initiation service.
220.127.116.11. Payer – a natural person or a legal entity, who is the Customer of the Customer, and who is initiating a Payment Order using Payment Initiation Service provided by Contomobile.
18.104.22.168. Payment Initiation Service (PIS) – a service of initiation of the Payment Order by the Payer’s request via Contomobile from the Payer’s account opened in the Payment Contomobile institution, to the Payee’s account.
22.214.171.124. Payer’s payment service provider (PSP) – herein in these rules it shall be understood as a Payment service provider, in whose institution the Payer or Customer has his/her payment account.
126.96.36.199. Services – the provision of PIS services and other related services described in the Special Terms.
188.8.131.52. System – it is the Contomobile system Conto QuickPay, through which the MIP service is provided.
184.108.40.206. Agreement is the present document, including Special Term, Data Protection Agreements, its amendments and addenda to it signed by the Parties.
220.127.116.11. Other definitions are in line with the terms used in MIP rules, in the Law on Payments of the Republic of Lithuania and other legal acts regulating payments.
2. Agreement subject
2.1. Contomobile shall undertake to provide the PISP services and other related services, described in this Agreement (hereinafter referred to as the Services) subject to the terms of the present Agreement, and the Customer shall undertake to pay the price listed in the Agreement for the provided Services specified in the Agreement and to fulfil other obligations listed in this Agreement.
2.2. Contomobile provides the PIS to the Customer, using the System and in accordance with the requirements of laws and other legal acts regulating payments.
3. Contomobile’s rights and obligations
3.1. Contomobile shall undertake:
3.1.1. to provide the Services to the Customer subject to the Agreement, efficiency possible, including, but not restricted to service provision in accordance with the best universally acknowledged professional standards and practice, with applying all the required skills and knowledge;
3.1.2. immediately in writing to inform the Customer regarding any circumstances, which prevent or may prevent the Contomobile from providing the Services in due terms;
3.1.3. To provide assistance to the Customer during Business days and to make every effort to remove any obstacles to the proper provision of the Services as soon as possible.
3.1.4. to ensure confidentiality or protection of the information obtained from the Customer during and related to the Agreement fulfilment.
3.1.5. to protect the personal data received by natural persons and to fulfill the General Data Protection Regulation 2016/679 (“GDPR”) with effect from 25 May 2018 and EU Member State laws supplementing the GDPR; EU Directive 2002/58/EC, as amended or replaced from time to time.
3.1.6. to inform the Customer no later than within 10 seconds about the submission of the Payment order for execution, i.e. that the Payment order has been submitted or not submitted for the execution or not to the Payer's PSP.
3.2. Contomobile shall has the right:
3.2.1. to suspend provision of a part of the Services or all the Services upon having informed the Customer about the fact at least 5 (five) business days before in the following cases:
18.104.22.168. In case the Customer is late to pay according to the Agreement more than 20 (twenty) calendar days, counting from the first delay day.
22.214.171.124. in case the Customer has violated the Agreement and has not eliminated Agreement breaches specified in the Contomobile’s written request within 5 (five) business days.
126.96.36.199. In the case when the Service provision to the Customer is suspended due to the reasons specified above and then the reasons of suspension are eliminated, Contomobile renews provision of the suspended Services in 2 (two) business days upon receiving of the information about elimination of the mentioned reasons. Contomible is not liable for Service disruption after renewal of Service provision after the Service suspension.
188.8.131.52. The Customer hereby confirms that he understands and agrees that Service suspension will not affect the Service price payment terms and conditions under Agreement, i.e. amounts of payments under Agreement are not reduced, their payment terms and conditions remain unchanged and such Agreement fulfilment term and condition is considered a measure partially compensating Contomobile’s losses due to the Customer’s improper fulfilment of obligations taken by the Agreement.
184.108.40.206. Contomobile has the right to unilaterally change all terms of this Agreement by notifying the Customer in writing 30 (thirty) calendar days in advance. In this case, the Customer has the right to terminate the Agreement before the date on which the amendments take effect. If the Customer does not use the right to terminate the Agreement before the date of entry into force of the amendments, it shall be deemed that the Customer agrees with the amendments to the Agreement.
3.2.2. Contomobile maintains and develops the System in accordance with the requirements of legal acts, recommendations of relevant institutions, the requirements applied by other financial institutions for access to account interfaces and in order to achieve the comfort of the System for Payers and the Customer. Contomobile has the right to make these changes on its own initiative and by notifying the Customer in writing not later than 1 (one) month before the changes are implemented.
3.3. Contomobile shall have other rights and obligations stipulated by the present Agreement and the legal acts valid in the Republic of Lithuania.
4. Customer’s rights and obligations.
4.1. The Customer shall undertake:
4.1.1. Use the Services in good faith, in accordance with the terms of this Agreement and only for its business purposes;
4.1.2. not use the Services for any illegal or other inappropriate purposes;
4.1.3. to pay the Service price for the duly provided Services subject to the terms of the present Contract;
4.1.4. The Customer undertakes to ensure that the following information should be provided during each payment order: payment date; payment amount; payment purpose (Order number); Payer’s account number. The Customer is fully responsible for the accuracy of this data.
4.1.5. To submit to Contomobile necessary information for the provisions of services and immediately in writing to inform “Contomobile” regarding any changes and circumstances, which may affect the provision of Services;
4.1.6. Ensure the security of access, passwords and other data received from Contomobile;
4.1.7. Fulfill all obligations assumed under this Agreement.
4.2. The Customer shall has the right:
4.2.1. to get the information related to the performance of the Agreement;
4.2.2. to submit the grounded claims, if any, regarding the Services within 5 (five) Business days after the end of accounting month. If the Customer misses the specified term it shall be considered that the Services have been duly provided, the Customer has unconditionally accepted them and shall be obliged to pay for the Services the entire amount specified in the invoice;
4.2.3. The Customer shall have other rights and obligations stipulated by the present Agreement and the legal acts valid in the Republic of Lithuania.
5. Price of Services and terms of payment.
5.1. The Parties agree regarding such commission fee, listed in the Special Terms, payment terms
5.1.1. Contomobile deducts the amount of commissions for the reference period of 1 (one) month on the 10 calendar day of each following month. The Customer undertakes to ensure that on the 10 calendar day of each month the Customer's Contomobile account, specified in clause 5.1. of the Special Terms, contains the required amount of money for settlement under this Agreement, otherwise Contomobile has the right to apply the sanctions provided for in the Agreement.
5.1.2. The Customer agrees that Contomobile has the right deduct the fees provided for in Special terms directly from the Customer's Contomobile account, specified in clause 5.1. of the Special Terms. Customer also agrees that “Contomobile shall submit the invoices, if they will be provided, for the provided services by the Customer’s e-mail address specified in the present Agreement.
5.2. Contomobile has the right to recalculate all these prices listed in the Special Terms with 30 (thirty) calendar days' written notice to the Customer of their change.
5.3. All the payments subject to the Agreement shall be made in EUR to the accounts of the Parties specified in the present Agreement, unless other payment details are specified in the invoices submitted to the Party.
5.4. All payments required to be made under this Agreement are stated exclusive of VAT and any other applicable taxes in all relevant jurisdictions which, if applicable, shall be paid by the Customer in addition at the prevailing rates. Changes in VAT and / or other state taxes, fees, prices are automatically recalculated and effective from the date of legalization of such taxes
5.4. All the Customer’s payments, regardless of the Customer’s payment orders under the present Contract, shall be distributed in accordance with the following order: forfeit, main obligation, other payments. The Parties are not allowed to make accruals to the amounts payable under the Agreement without a written consent of the other Party.
6. Intellectual property.
6.1. The Customer agrees and acknowledges that all Intellectual Property Rights related to the System and Services are owned by Contomobile.
6.2. Neither Party shall be permitted to identify the other Party by name as a client or supplier (as applicable) of the other nor to include the other Party's name and logo, in any marketing material which it produces without the prior written consent of the other Party. Such consent not to be unreasonably withheld or delayed.
7. Liability of parties.
7.1. If the Customer fails to duly fulfil the assumed payment obligations arising out of the present Agreement, at the Contomobile's request, the Customer shall be obliged to pay a penalty for each overdue day at the rate of 0.2 percent from the amount that has not been duly paid.
7.2. Hereby the Parties agree that upon violation of the Agreement only the direct losses sustained by the other Party shall be compensated in the cases stipulated by the laws and the present Agreement as well as the scope, if it has not been set otherwise by the Agreement, regardless of the fact whether the other Party knew or might know about a possibility of emerging of indirect losses, unless the Parties have separately explicitly agreed otherwise. In order to eliminate the ambiguities, hereby it is made clear that “the losses sustained by the Party” do not embrace indemnifying of losses sustained by the persons related to the Party (clients, employees, shareholders, heads etc.).
7.3. Contomobile's liability under this Agreement shall in all cases be limited to the total amount of commission fees received from Customer under this Agreement.
7.4. Contomobile shall assume full responsibility for the proper submission of a payment order of the Payer to the PSP selected by the Payer, as well as for security and confidentiality of the Payer’s submitted data.
7.5. The Customer understands and agrees that Contomobile is not responsible for the execution of the Customer's sales process, i.e. including but not limited to the execution of the order, disputes with the Payers, etc.
8. Force majeure
8.1. The Party shall not be liable for non-fulfilment or undue fulfilment of the obligations assumed by the present Agreement due to the circumstances which could not be controlled or reasonably foreseen by the Party at the moment of conclusion of the Agreement and the occurrence of such circumstances or consequences thereof could not be prevented (Force Majeure), including but not limited to war, rebellions, any kind of civil disorders, blockade, boycotts, natural anomalies (precipitations of abnormal scale or quality, unusually high or low temperatures and the like), officially declared extreme situations, epidemics, pandemics, transport service malfunctioning, accidents (fire, pouring, communication network or power failure and the like) in the company of the Party or the third party, providing the Services by the Agreement, the Service provision restrictions or prohibitions, or any other circumstances comparing to the natural or the like.
8.2. The Party, whose fulfilment of obligations is encumbered by the emerged Force Majeure circumstances, has the right to suspend fulfilment of its obligations assumed by the Agreement and shall be obliged to inform the other Party about the fact not later than within 10 (ten) business days from the day of emerging of such circumstances.
8.3. At the Force Majeure circumstances continuing for more than 60 (sixty) days, the present Agreement may be terminated by either of the Parties upon the written application. Upon expiry of the Agreement due to the Force Majeure circumstances neither of the Parties may demand the other Party to indemnify the losses.
9. Final provisions
9.1. The present Agreement shall come into effect on the date of its conclusion, i.e after the date of the signing this Agreement Special Terms and is valid non terminated.
9.2. If any of the present Agreement‘s provisions becomes or is considered to be entirely or partially invalid, it shall not affect the validity of other provisions of the Agreement.
9.3. Upon termination or expiry of the Agreement, the provisions of the present Agreement that are related to the liability or settlements between the Parties subject to the present Agreement shall remain valid, as well as all the other provisions of the present Agreement, which have been clearly defined as remaining valid after the Agreement termination or which must remain valid for entire fulfilment of the present Agreement.
9.4. Either of the Parties has the right to terminate the Agreement with prior notifying of the other Party in writing 30 (thirty) calendar days before. If the Customer terminates the Agreement on the basis specified in the present item, the Customer shall undertake to fully settle for the Services until the end of the Agreement. If the Party fails to comply with the notice period listed above, it undertakes to pay a fine of the commission fee paid in the last month.
9.5. Termination of the Contract due to the fault of the Party:
9.5.1. If the Party violated the Agreement, and failed to remedy the Agreement’s violation within 10 (ten) business days from the day of receiving of the notification, the other Party is entitled to unilaterally terminate the Agreement by giving notice to the guilty Party 10 (ten) business days before and the guilty Party undertakes to to compensate the other Party for the losses incurred.
9.6. All the amendments, addenda and Annexes to the Agreement shall be valid only if drawn up in writing and duly confirmed by the Parties.
9.7. The present Agreement shall be applied and it shall be interpreted subject to the laws of the Republic of Lithuania.
9.8. Any disputes arising between the Parties regarding the present Agreement shall be resolved by means of negotiations between both of the Agreement Parties. If the Parties fail to resolve the disputes by means of negotiations within 30 (thirty) days, any such disputes or claims arising out of or in relation to the present Agreement, its breach, termination or validity shall be subject to be resolved in the courts of the Republic of Lithuania.
9.9. The present Agreement is drawn up in Lithuanian and English languages, in two copies having equal legal effect, one for each of the Parties. In case of inadequacy between the Lithuanian text and the English text hereof, the Lithuanian text shall prevail.
9.10 To this Agreement is valid the Special terms which are integral part of the Agreement.