Terms and Conditions
Tib finance Merchant Agreement
Please Note: Section 14.8 of the Tib finance Merchant Terms and Conditions contains a binding arbitration clause and class action waiver. It affects Merchant's rights about how to resolve any dispute with Tib finance.
I. Agreement
This Agreement (the "Agreement"/"Master Agreement") is entered into as of the date of submission of the Merchant Application (the "Effective Date") by and between the relevant Tib finance entity (as set forth below, doing business as Tib finance and hereinafter referred to as "Tib finance" or "Tib finance Party"), and the party agreeing to these terms ("Merchant").
Merchant has the right to sell and distribute certain goods, rights and services described in the merchant application or other materials provided to Tib finance as permitted by Card Association Rules and an Acquirer (the "Products") as further defined in the Tib finance Merchant Terms and Conditions.
Tib finance has rights in certain commerce tools, facilities and services ("Tib finance Services" as defined herein).
This Master Agreement includes and incorporates by reference the Tib finance Merchant Terms and Conditions v.6.4 located at Tib Finance Merchant Terms and Conditions ("Tib finance Merchant Terms and Conditions") and the exhibits included therein. The applicable version of the Tib finance Terms and Conditions can be found in the Tib finance website which Terms and Conditions may be updated and amended from time to time as a subsequent version which shall be applicable to Merchant as incorporated herein upon publishing.
Capitalized terms if not defined in this document are as defined in the Tib finance Terms and Conditions.
A. Contracting Party
The contracting Tib finance Party shall be determined based on the location of the Merchant.
(i) If Merchant is established in the United States of America ("U.S."), Merchant enters into the Agreement for Tib finance Services with Tib finance, Inc. a California corporation having an address at 800 South Street, Suite 640, Waltham, MA 02453, USA.
(ii) If Merchant is established in the United Kingdom, Merchant enters into the Agreement for Tib finance Services with Tib finance Payment Services Limited, a corporation incorporated in England having a registered office address at 2 Sheraton St. Medius House, London, W1F 8BH, UK. Tib finance Payment Services Limited is authorized by the UK's Financial Conduct Authority under the Payments Services Regulations 2017 reference no. 629580, for the provision of payment services.
(iii) If Merchant is established in a member state of the European Economic Area ("EEA"), Merchant enters into the Agreement for Tib finance Services with Tib finance Payment Services Ireland Limited, a corporation incorporated in Ireland having a registered office address at 6th Floor, South Bank House, Barrow Street, Dublin 4 D04 TR29. Tib finance Payment Services Ireland Limited is authorized by the Central Bank of Ireland, for the provision of payment services under reference number C431532. A copy of the Central Bank of Ireland's registers can be found at http://registers.centralbank.ie/.
(iv) If Merchant is established in Canada, Merchant enters into the Agreement for Tib finance Services with Tib finance having a registered office address at 360 Rue Saint-Jacques Suite G101, Montréal, QC H2Y 1P5, Canada.
NOTE FOR CANADIAN MERCHANTS: YOUR RIGHTS AND OBLIGATIONS SPECIFIC TO CANADIAN MERCHANTS ARE SET OUT IN THE INCORPORATED CANADA MERCHANT AGREEMENT COVER PAGE AND CONTROL OVER ANY CONFLICTING TERMS IN THIS AGREEMENT.
(v) If Merchant is established in Australia, Merchant enters into the Agreement for Tib finance Services with Tib finance Australia Pty Limited having a registered office address at Suite 406 Level 4, 20 Bond Street, Sydney, NSW, 2000, Australia.
(vi) If Merchant is established in Israel, Merchant enters into the Agreement for Tib finance Services with Tib finance Payment Services Israel Limited, a company incorporated in Israel having an address at Medinat Hayehudim Street 60, Herzliya 4676652, Israel and authorized by the Israel Capital Market, Insurance and Savings Authority for the provision of financial services (extended) under reference number 62713.
(vii) If Merchant is not established in the U.S. nor the EEA, Canada, Australia or Israel and processes transactions through an Acquirer outside its respective territory of establishment, Merchant enters into the Agreement for Tib finance Services with the Tib finance Party that is in the area of jurisdiction of the Acquirer per and with such Tib finance Party acting as merchant of record in accordance with the provisions of Section B below and Exhibit 3.
If two or more legal entities in the Merchant's same group of companies applies to use the Tib finance Services (the "Additional Merchant") at the same time or at separate times but they have different locations located in different regions established by the credit card associations, then in order to satisfy the credit card association rules each separate legal entity may require the Tib finance Services from a different Tib finance Party as set forth in Section A above. Tib finance shall have sole discretion whether to accept such Additional Merchant(s), and such acceptance may be made conditional on Additional Merchant(s) fulfilling Tib finance's onboarding requirements.
Acceptance shall be confirmed by Tib finance in writing and of the addition of such Additional Merchant(s) to the Merchant Schedule below. Additional Merchant(s) may be subject to a separate Fees and Pricing Schedule.
Merchant warrants that it has the full authority to bind all listed Additional Merchant entities to the terms of this Agreement and that by signing or agreeing to this Agreement such Additional Merchant(s) shall be bound to the terms hereof. Following the completion of this Agreement, should Merchant require to add further Additional Merchants, Merchant and all existing Additional Merchants shall be required to be contracted to the then prevailing version of the Tib finance Merchant Agreement and Tib finance Merchant Terms and Conditions, in a manner acceptable to Tib finance.
MERCHANT SCHEDULE
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MERCHANT (full company name) |
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ADDITIONAL MERCHANT ENTITIES (full company name) |
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B. The terms and conditions referred to in this document and the Tib finance Merchant Terms and Conditions relate to Tib finance providing services to Merchant as payment facilitator. In the event that certain transactions, Acquirers or transaction routing procedures may require Tib finance to act only as the merchant of record with respect to transactions or specific transactions, then Tib finance's relevant terms and conditions in acting as merchant of record ("MOR Terms"), for the appropriate territory, said MOR Terms being set forth herein as Exhibit 3, shall be automatically applied and control as to each such transaction in addition to the terms herein. For Tib finance acting as merchant of record for transactions being processed through an Acquirer in the United States, the contractual party in that circumstance shall be Tib finance, Inc; For Tib finance acting as merchant of record for transactions being processed through an Acquirer in the United Kingdom, the contractual party in that circumstance shall be Tib finance Payment Services Ltd. In those circumstances, where there is a conflict between the MOR Terms and the terms herein, the MOR Terms shall supersede and control; all other terms shall remain in full force and effect.
II. Merchant Information
On an ongoing basis Merchant shall provide Tib finance with the current details of each of its business addresses, the business being conducted thereat, all trading names and 'doing business as' (DBA) names, as well as a complete and accurate description of its bank accounts and all Products being provided via Tib finance Services and URLs of its web sites. Merchant agrees to provide all "know your customer" information as requested by Tib finance from time to time including, but not limited to, corporate and financial information. Updates will also be required if there are any changes relating to the Merchant's 'know your customer' information provided to Tib finance during the initial onboarding and risk evaluation process. Merchant agrees that Tib finance may disclose such information to relevant third parties and may need to run additional checks relating to the Merchant during the term of this Agreement as it requires including as may be required by any Acquirer and/or Card Association and anti-money laundering and anti-transaction laundering measures. Merchant shall provide such information and assistance as and when required.
Merchant shall only offer permitted Products and Services as set forth in the Tib finance Merchant Terms and Conditions, as permitted by the Card Association Rules and as permitted by Tib finance's Acquirers.
III. Services
'Services or Tib finance Services' mean current and future payment services, including credit and debit card payments, alternative payments such as bank transfers, electronic check/electronic transfer/ACH payments, electronic wallets, payment gateway services, reporting, fraud checks, and e-commerce services and/or other services of Tib finance and Tib finance APIs and Customizations provided to the Merchant.
Subject to Merchant being notified in writing that it has successfully satisfied the relevant Tib finance Party's Merchant due diligence, onboarding and risk evaluation process and subject to the terms and conditions of this Master Agreement, Merchant retains and Tib finance hereby agrees to act as Merchant's Services Provider in respect of the payment processing in the Territory during the Term by means of the Tib finance Merchant ID and/or Merchant ID, as appropriate. As a Services Provider, Tib finance will process transactions for payment from End-User Customers.
Tib finance will provide Merchant with access to Services in accordance with the terms of this Master Agreement.
IV. Acquirers
Tib finance is entering into this Agreement on behalf of the Acquirer identified in the Tib finance Merchant Terms and Conditions. Transactions may be processed through either a specified or a number of different Acquirers and processing options. Access to certain Acquirers and processing options may be subject to specific requirements and procedures with which the Merchant shall comply in order to make use thereof whether such requirements are set by Tib finance, a Card Association or an Acquirer. Specific provisions required by an applicable Acquirer may be an exhibit to Tib finance Merchant Terms and Conditions and Merchant shall comply with same. Authorization in respect of a transaction is not a guarantee of payment.
The use of certain Acquirers and aggregate transaction amounts may be subject to Merchant entering into direct agreements with the respective Acquirers and upon terms that are beyond the control of Tib finance, including where appropriate the documents set out in Exhibit 1 of the aforesaid Tib finance Merchant Terms and Conditions or attached to the Tib finance Merchant Terms and Conditions as an exhibit. Certain practices undertaken by the Merchant (such as receiving and storing Credit Card data) may require the Merchant to obtain and retain a certain PCI Level status at its own cost and/or providing proof of its financial standing. Merchant agrees that, if and when required by an Acquirer or under Card Association Rules or such other applicable industry requirement, and/or upon presentation by Tib finance, Merchant shall enter into an applicable merchant agreement, sub-merchant agreement and/or Acquirer Agreement or as the case may be with the appropriate Acquirer(s) on the terms set forth therein by the applicable Acquirer and subsequent transactions shall be governed by such agreements in addition to this Agreement. Merchant understands and acknowledges that Tib finance does not have authority to negotiate, facilitate or allow changes to such Acquirer Agreements or similar required terms attached as an exhibit with Tib finance Merchant Terms and Conditions. Merchant further acknowledges and accepts that applicable Acquirer terms are set forth and contained in exhibits to the Tib finance Merchant Terms and Conditions and Merchant acknowledges and agrees to be fully bound by such terms. Should the Merchant fail to promptly execute such agreements then Tib finance may terminate this Agreement immediately upon written notice. Merchant agrees and accepts that certain Acquirers may limit transactions to specific geographic areas and set minimum and maximum permitted transaction sums, and impose certain requirements relating to transaction volumes. Merchant acknowledges and consents to an Acquirer settling directly to Merchant when required by law, Card Association Rules or the Acquirer.
New Acquirers and processing options may be introduced by Tib finance throughout the duration of this Agreement, and existing Acquirers and payment options may be withdrawn at any time. In the event that no suitable processing option can be offered by Tib finance, Tib finance shall not be liable for any loss of business so arising and may terminate this Agreement without further liability.
V. Law, Rules and Regulations
Each party acknowledges that it shall comply with all applicable federal, international and/or local law, and regulations, Card Association Rules and PCI standards and requirements in force and as amended from time to time, including the relevant terms, limitations and usage conditions and restrictions imposed by the relevant Card Associations and Acquirers ( if required) with respect to the use of their payment methods, which may be changed from time to time by such Card Associations in their discretion. Tib finance has no influence on or control over the Card Association Rules or Acquirer requirements or the acceptance policies of the Acquirers and Card Associations.
VI. Pricing and Fees
Pricing, fees and payout cycle shall be as set forth at Schedule 1, Pricing and Fees Schedule, to this Agreement executed as a separate document by the parties but incorporated by reference into this Agreement. Unless otherwise agreed to in writing by the parties, Merchant hereby expressly consents to blended rates as set forth in Schedule 1.
Payments for Services. Tib finance will pay Merchant the total of (a) amounts received in the previous period settlement period by Tib finance from Acquirers for Merchant transactions processed through Tib finance Services to End-User Customers ("End-User Receipts") less (b) (i) the Tib finance Service Fee set forth in this Agreement for the transactions ("Tib finance Service Fee"); (ii) all amounts paid or incurred by Tib finance in the previous period in connection with Refunds; (iii) all amounts paid or incurred by Tib finance in the previous period for Chargebacks; (iv) any "Reserve" (a percentage or fixed sum regularly held back and/or rolled over from payout to support refunds, cancellations, and avoid negative balances); (v) any Holdbacks; (vi) applicable charges, fees and deductions to Merchant as referred to in the pricing and fees together with any taxes that may be charged and directly remitted by Tib finance to relevant tax authorities as Tib finance deems required but in the absence of which is Merchant's sole responsibility and (vii) any other payments or charges to third parties, including licensing, distribution or payment processing fees, foreign exchange and management fees including commercial markups, a proportionate sum of any processor and/or Acquirer network fees Tib finance incurs in connection with this Agreement or any transaction relating to this Agreement (the result of the calculation in (a), and (b), "Merchant Balance"). All sums owed by Tib finance to Merchant shall be held in a non-interest bearing account managed by Tib finance, pending release to Merchant in accordance with the payment terms of this Agreement. Merchant agrees to the payment of settlement funds being made from the Acquirer to Tib finance. Tib finance will collect payments from End-User Customers on behalf of Merchant as its limited agent. Pursuant to the terms hereof, Tib finance will remit to Merchant all payments received from End-User Customers less any amounts owing to Tib finance hereunder or as otherwise due or provided in this Agreement or Tib finance Merchant Terms and Conditions. Notwithstanding anything to the contrary, Merchant hereby appoints Tib finance as its payment collection agent solely for the limited purpose of accepting funds from End-User Customers on its behalf in connection with Products that Merchant provides or sells to End-User Customers. Payment from an End-User Customer shall be considered the same as payment made directly to Merchant by the End-User Customer. Upon End-User Customer's payment of the funds to Tib finance, End-User Customer's payment obligation to Merchant for an amount equal to the funds remitted to Tib finance is terminated, and Tib finance is instead responsible for remitting the funds to Merchant in the manner described in this Agreement. Merchant's recourse is only against Tib finance if Tib finance fails to remit funds received from an End-User Customer pursuant to the terms hereof.
"Chargebacks" may occur when an End-User Customer disputes a payment resulting in a full refund of a transaction together with associated fees being charged to Merchant, and mean the sum of (i) amounts assessed, withheld from or charged Tib finance by an Acquirer to cancel, change, reverse, or otherwise in connection with previously settled payments and (ii) any related fees, fines, or penalties assessed, withheld, or charged to Tib finance by an Acquirer. Merchant is liable in respect of all Chargebacks, Chargeback Fees, refunds, and all related fees relating to transactions processed on its behalf through Tib finance. Chargebacks include direct debit reversals also commonly referred to as 'indemnity claims'. If the Chargeback ratio for a payment cycle exceeds the percentages and/or numbers set forth in Tib finance's Excessive Chargeback Management Program or in Tib finance's reasonable discretion such Chargeback ratio presents an increased risk, then in addition to bearing Chargeback processing and handling fees, Tib finance reserves the right to enter Merchant into Tib finance's Excessive Chargeback Management Program, which will incur additional fees and restrictions with respect to Merchant's account with Tib finance. If Merchant is in such program for more than 6 months, then when subsequently leaving the program Merchant will be required to undergo a 3month monitoring period that shall be subject to a fee. Merchant agrees to remain liable at all times for the Chargebacks of itself and/or other related entities permitted by this Agreement and that Chargebacks, Chargeback Fees, related fines, penalties and refunds including any Chargeback dispute fees shall be charged against Merchant's account or reserves. Furthermore, there shall be no obligation upon Tib finance to process Chargebacks or refunds that would lead to a negative balance on Merchant's account. Tib finance may withhold the amount of any Chargebacks that it reasonably believes may be made against Merchant so as to ensure that there are sufficient funds available to meet such liabilities.
VII. Miscellaneous
Relationship of the Parties. The parties are independent contractors. This Master Agreement does not create a partnership, franchise, joint venture, agency, fiduciary and/or employment relationship between the parties.
Assignment. Merchant may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Tib finance. Any permitted assignee of Merchant shall only take effect if and as such Merchant satisfies all due diligence requirements of Tib finance and assumes the requirements and obligations of this Agreement. Any attempt for Merchant to do so shall be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Tib finance shall be entitled to assign this Agreement without consent, including by operation of law, in connection with or following a merger, reorganization, sale of all or a majority of the stock, equity or similar ownership interests of Tib finance, or sale of all or substantially all of the assets to which this agreement pertains, as well as assignment to a related corporation.
Claims. No dispute may be brought by Merchant against Tib finance after more than one year after which the date of cause of action arose or ought reasonably to have come to the knowledge and attention of the Merchant.
Errors. Merchant shall notify Tib finance with respect to any issues, mistakes, errors or omissions concerning any report, notice, invoice, deduction, debit, credit or settlement provided to Merchant by Tib finance within sixty (60) days of receipt of the report, notice, invoice, deduction, debit, credit or settlement which contains the issues, mistakes, errors or omissions. In the event Merchant does not so notify Tib finance, Merchant waives any claim or dispute therefor and thereafter any correction, reassessment, reimbursement in favor of Merchant shall be in Tib finance's sole discretion.
Complaints. If Merchant is not satisfied with any aspect of the Tib finance Services, please contact Tib finance via the "Contact Us" page on the Tib finance website or email Tib finance at Sales@Tib finance.com
For customers of Tib finance Payment Services Ireland Limited, if Tib finance cannot resolve the matter to
Merchant's satisfaction informally, Tib finance will send Merchant a written acknowledgement within 5 business days of having received Merchant's complaint. Tib finance aims is to resolve Merchant's complaints as soon as possible and no later than 15 business days of first receiving Merchant's complaint. If, for reasons beyond Tib finance's control, Tib finance is unable to issue a final response to Merchant within 15 business days, Tib finance will write to Merchant to keep Merchant updated, clearly outlining the reason for Tib finance's delay and Tib finance will set out the timeline by which Merchant will receive a full response. This deadline will be no longer than 35 business days from the receipt of Merchant's initial complaint. If Tib finance is unable to provide a response, Tib finance will let Merchant know the reason for the delay and, for Merchants with a turnover of €3 million or less, will inform Merchant of its right to refer the complaint to the Financial Services and Pensions Ombudsman (FSPO). Merchants with a turnover of €3 million or less may also refer the complaint to the FOS in the event Merchant is not satisfied with Tib finance's response. Please note that the FSPO will only become involved after Tib finance has had the opportunity to research and address the complaint. The FSPO can be contacted at: Financial Services and Pensions Ombudsman (FSPO) https://www.fspo.ie, Lincoln House, Lincoln Place, Dublin 2, D02 VH29, Telephone: +353 1 567 7000 Email: [email protected]. [In the event that Merchant is not eligible to refer its complaint to the FSPO, Tib finance does not subscribe to an alternative dispute resolution service.]
Entire Agreement. This Merchant Agreement, including the Tib finance Merchant Terms and Conditions and all exhibits and addenda hereto constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. This Merchant Agreement shall update any existing agreement between Merchant and Tib finance including any related to a separate Merchant account. Except as expressly provided otherwise by this Agreement, any amendment or modification shall be in writing and signed by the parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto, the terms of such exhibit or addendum will prevail. In the absence of execution by any named Additional Merchant, the Merchant shall execute on behalf of itself and all entities listed in the Merchant Schedule.