General terms

Parties: is Omniva Checkout Service Provider and Merchant jointly;

1.2.  If the meaning of any of the terms has been expanded, refined or changed in a specific clause of the Agreement, the term shall be interpreted together with the specifications of the relevant clause.

1.3.  Unless the context requires otherwise, words that appear in the singular in the General Terms and Conditions shall also have a plural meaning and vice versa, and words denoting a person shall apply to both legal persons and individuals.

2. AUTHORISATION

2.1.  The precondition and prerequisite for the provision of the Service is the granting of Authorisation by the Merchant to Omniva Checkout Service Provider. The Merchant warrants and represents that it is aware that in order to duly provide the Service, Omniva Checkout Service Provider must hold valid Authorisation at all times.

2.2.  The Parties shall consider Authorisation to be issued by the signing of the Agreement and the Merchant shall not issue separate Authorisation to Omniva Checkout Service Provider, unless Omniva Checkout Service Provider has submitted a demand to the Merchant to that effect, in the case of which the Merchant shall undertake to issue a written letter of authorisation containing Authorisation to Omniva Checkout Service Provider within no more than three (3) Business Days.

2.3. Omniva Checkout Service Provider has the right to cancel the Agreement without advance notice if the Merchant withdraws the Authorisation issued to Omniva Checkout Service Provider.

3. CONTENT OF SERVICE

3.1. Main Service

3.1.1.  Omniva Checkout Service Provider shall provide the following Main Service to the Merchant: on the basis of the Merchant’s Authorisation, collecting Transaction Amounts from Payers and forwarding them to the Merchant.

3.1.2.  The detailed description of the Main Service is as follows:

(1)  the Merchant forwards the Transaction Order to the Payment Environment;

(2)  the Payer pays the Transaction Amount;

(3)  Omniva Checkout Service Provider forwards the Transaction Confirmation to the Website;

(4)  if necessary, the Merchant forwards the Refund Order to the Payment Environment (including several Return Orders for a single Transaction);

(5)  Omniva Checkout Service Provider shall execute the payments to the Merchant’s bank account pursuant to Transaction Orders and refund the Payer’s bank account pursuant to the Refund Orders after executing the offsetting specified in the Agreement.

3.2. Additional Services:

3.2.1.  Omniva Checkout Service Provider shall provide to the Merchant the Additional Service ordered by the Merchant.

3.2.2.  List and conditions of the Additional Services is provided on the Omniva Checkout Website.

3.2.3.  The Merchant shall be entitled to decide the provision of which Additional Service (if any) it shall require by Omniva Checkout Service Provider. For ordering each Additional Service the Merchant must confirm its respective request on the Omniva Checkout Website. Prior to confirmation of its request the Merchant must familiarize itself with the conditions of Additional Service requested by it, including with the conditions of Omniva Checkout Service Provider`s co-operation partner who shall provide the requested Additional Service to the Merchant (if applicable). By confirming an order of Additional Service the Merchant warrants that it has familiarized itself with the conditions of Additional Service, and that it understands and accepts the referred conditions.

3.2.4.  With confirmation of order of Additional Service by the Merchant it shall be deemed that an agreement is entered into between the Parties for provision of the confirmed Additional Service. The referred agreement shall be valid until cancellation thereof. The Party may cancel the referred agreement by informing the other Party at least 30 (thirty) calendar days in advance in accordance to procedure set out in the General Terms and Conditions.

4. REQUIREMENTS FOR PROVISION AND USE OF MAIN SERVICE

4.1.  The Merchant shall create a possibility on the Website for the Payer to enter the Payment Environment. The Merchant warrants and represents that it is aware that the provision of the Main Service by Omniva Checkout Service Provider is only possible on the condition and in the case that the Payer has a possibility of entering the Payment Environment via the Website.

4.2.  The Merchant is obliged to notify the Payer on the Website that Omniva Checkout Service Provider (reference to Maksekeskus AS and its contact details) is a cooperation partner selected by the Merchant for payment of the Transaction Amount.

4.3.  All Messages between the Parties must meet the requirements set forth in the Technical Guidelines. The Parties are obliged to verify the accuracy of the Message pursuant to the specifications of the Technical Guidelines.

4.4.  The Merchant shall receive the Private Key from the Merchant’s Service Channel.

4.5.  The Parties are obliged to keep the Private Key secret from third parties. If the Private Key has been disclosed, may have been disclosed or may be disclosed to a third party, the Party is obliged to notify the other Party immediately thereof and to cease sending and accepting Messages. Technical partners of the Merchant who provide the Merchant with services related to e-commerce and are bound by the requirement of maintaining confidential information shall not be considered to be a Third Party.

4.6.  Omniva Checkout Service Provider shall make information available to the Merchant on all Transaction receipts through API and Merchant’s Service Channel, which includes, among other things, information on the Transaction Amount paid by each Payer, the Commission on each Transaction, the amounts sent to the Merchant, monthly fees etc., and in the case of Credit Card payments, also the partial card number from which the Payer paid the Transaction Amount.

4.7.  It is only permitted for the Merchant to handle any Credit Card data in strict conformity to the Technical Guidelines, i.e. it is prohibited for the Merchant to handle Credit Card data in any other manner, form and extent.

4.8.  Omniva Checkout Service Provider shall notify the Merchant of any and all known current obstacles to the provision of the Service and of the term for eliminating the obstacle. Omniva Checkout Service Provider shall forward the abovementioned notifications to contacts regarding which the Merchant has notified Omniva Checkout Service Provider .

4.9.  Omniva Checkout Service Provider has the right to carry out planned and extraordinary repair and maintenance works necessary for the provision of the Service. Omniva Checkout Service Provider shall carry out the planned repair and maintenance works between the hours of 1 a.m. and 4 a.m. If possible Omniva Checkout Service Provider shall notify the Merchant thereof seven (7) Business Days in advance of works taking place at other times.

5. FEES, RECIPROCAL PAYMENT OBLIGATIONS AND OFFSETTING

5.1.  Omniva Checkout Service Provider has the right under the Agreement to offset the amount payable by Omniva Checkout Service Provider to the Merchant with Fees. As a result of performing the offsetting, Omniva Checkout Service Provider undertakes, at the time specified in clause 1.4. of the Agreement, to transfer the difference in the offset amounts to the Merchant.

5.2.  To refund the Transaction Amount to the Payer, the Merchant shall forward a Refund Order to Omniva Checkout Service Provider and Omniva Checkout Service Provider shall transfer the amount specified on the Refund Order to the Payer as follows:

(1)  in the case of a Transaction Amount paid by Estonian bank link payment – to the Payer’s bank account within two (2) Business Days;

(2)  in the case of a Transaction Amount paid by credit card payment, Omniva Checkout Service Provider shall forward the Transaction Amount refund order to its partner bank by the next Business Day after receiving the Refund Order.

6. USE OF TRADEMARK

6.1.  Omniva shall entitle the Merchant to use the Trademark during the term of validity of the Agreement for the purposes and on the terms and conditions specified in the Agreement (i.e. non-exclusive licence).

6.2.  Omniva shall retain the right to use the Trademark and to allow the Trademark to be used by third parties. The Merchant has no right to restrict or impede use of Trademark by Omniva.

6.3.  The Merchant has the right, during the term of the Agreement, in adherence to all of the responsibilities and restrictions stipulated in the Agreement, to use the Trademark for the purpose and on the conditions specified in the Agreement in order to introduce Omniva as the Merchant’s cooperation partner.

6.4.  The Merchant may not, without the advance written permission of Omniva, change the Trademark in any way (including changing the typeface, adding or removing design elements, text, changing colours etc.).

6.5.  Upon use of the Trademark, the Merchant is obliged to adhere to the rights and interests of Omniva as the Trademark owner, including to follow the form and means of required use of the Trademark and to refrain from any actions that may reduce the value of the Trademark or harm the reputation of the Trademark or Omniva .

6.6.  It is prohibited for the Merchant, in any legal system, directly or indirectly, to apply for registration as a trademark, business name or domain of any symbol which is identical or similar to the Trademark and which is related to the Merchant or a person acting on the Merchant’s behalf, or to assist third parties in performing the above- mentioned registration.

6.7.  It is prohibited for the Merchant to sub-licence the Trademark or to transfer the right to use the Trademark and Trademark documents to a third party in any form and extent.

6.8.  If Omniva changes the Trademark during the term of validity of the Agreement (including design, verbal part) in any way or manner, Omniva shall forward the Merchant the documentation for the new Trademark and the Merchant shall undertake to replace the old Trademark with the new Trademark within ten (10) Business Days.

6.9.  if the Merchant violates any of the obligations set forth in a subclause of clause 6 of the General Terms and Conditions, Omniva shall be entitled to demand that the Merchant immediately cease the violation and redress the violation. if the Merchant violates any of the obligations set forth in clause 6.6 of the General Terms and Conditions, Omniva shall be entitled to demand that the registered trademark and/or domain be transferred to its name free of charge. The Merchant undertakes to redress any violation (including to comply with the obligation specified in the previous sentence) within five (5) Business Days of receiving a demand from Omniva to do so.

6.10.  The Merchant undertakes to notify Omniva promptly of any third party claim brought against the Merchant in connection with use of Trademark by the Merchant, as well as any third party violation of rights arising from the Trademark which the Merchant has learned in any way.

6.11.  The Merchant undertakes to delete Trademark from its websites (including the Website) and any and all reference to Omniva and Omniva Service Provider and to return the entirety of the Trademark documentation to Omniva by the calendar day following the expiry of the Agreement.

6.12.  By signing the Agreement on behalf of Omniva Service Provider, Omniva confirms that this section 6 of General Terms and Conditions is binding towards Omniva.

7. GENERAL RESPONSIBILITIES OF THE PARTIES

7.1. The Parties undertake:

7.1.1.  to make reasonable efforts to cooperate with each other, as necessary for performing obligations arising from the Agreement;

7.1.2.  to notify each other immediately of any material circumstance or problem related to the performance of the Agreement, including impediment or possible impediment preventing a Party from performing contractual obligations;

7.1.3.  to act towards each other in good faith and based on the principle of reasonableness, and to avoid any harm caused or the causing of harm to each other;

7.1.4.  to notify each other at the first opportunity of any circumstance that harms or may harm the Parties’ information systems or performance of Agreement, as well as of circumstances that may be necessary for the secure functioning of, maintenance of or elimination of faults in the Parties’ technical solutions and systems;

7.1.5.  to notify each other immediately via email and, if possible, by telephone as well, of any and all circumstances that impede the execution of Transactions.

8. PROCESSING OF PERSONAL DATA

8.1.  In order to provide the Service and perform the obligations set forth in the Agreement, Omniva and Omniva Service Provider shall process the Payers’ personal data.

8.2.  Considering that each Payer is a customer of the Merchant and Omniva nor Omniva Service Provider does not enter into customer relationships with any Payers, it is the responsibility of the Merchant to ensure the existence of the required consent of every Payer permitting Omniva and Omniva Service Provider to process the Payer’s personal data for the provision of the Service and performance of the obligations set forth in the Agreement. By signing the Agreement, the Merchant warrants and represents that it possesses, before the Payer enters the Payment Environment, the as-required consent of each Payer, enabling the Payer’s personal data to be processed by Omniva and Omniva Service Provider in the required manner, form and extent.

8.3.  The Merchant warrants and represents that it is aware that Omniva Service Provider enters into the Agreement and provides the Service to the Merchant and performs other obligations arising from the Agreement based on the representations given by the Merchant in clause 8.2 of the General Terms and Conditions.

8.4.  The Merchant shall be solely responsible for discharging any possible claims brought against Omniva and/or Omniva Service Provider as a result of the fact that Omniva and/or Omniva Service Provider processes personal data of Payers who have not given consent for the said processing or have withdrawn their consent. The Merchant undertakes to compensate Omniva and Omniva Service Provider for all damage incurred by respectively Omniva and/or Omniva Service Provider in connection with the above requirements.

9. OBLIGATION TO MAINTAIN THE CONFIDENTIALITY OF INFORMATION

9.1.  The Parties are obliged, throughout the term of validity of the Agreement and for an unspecified term after the expiry of the Agreement, to maintain each other’s confidential information. Confidential Information shall be any business-related, commercial and technical information (including financial and economic status, business plans, pricing and other aspects) related to a Party, which the Party has directly or indirectly, orally or in writing, or in another form, before or after signing the Agreement, received from the other Party in connection with the performance of the Agreement and which is not publicly available and which the counterparty can reasonably be presumed to be interested in maintaining the confidentiality of.

9.2.  The Parties undertake to ensure that:

9.2.1.  they shall use Confidential Information solely in connection with the performance of their obligations arising from the Agreement. Use of Confidential Information for any other purposes may only take place with the advance written consent of the other Party;

9.2.2.  they shall keep Confidential Information confidential and not disclose it to third parties or the public in any manner without the prior written consent of the other Party;

9.2.3.  they shall adopt all reasonable precautionary measures to prevent the release, as a consequence of their action or omission, to a third party or public disclosure of Confidential Information;

9.3.  A Party may disclose Confidential Information to state and local government institutions if the duty of disclosure stems from legislation. If a Party is obliged by legislation to disclose Confidential Information, it shall where possible undertake, within a reasonable time of disclosure of such information, to notify the other Party in writing of the relevant obligation of public disclosure and of the extent of the information subject to disclosure, and shall always undertake to disclose the relevant information in the minimum required amount, and if possible in a generalised form, bearing the marking “Confidential”.

9.4.  For the purpose of the Agreement, “Third Party” shall not shall not include, nor shall the prohibition on the disclosure of Confidential Information apply to (a) employees of a Party and other persons related to the performance of the Agreement, on the condition that Confidential Information is only disclosed to them in the extent necessary for them to perform the Agreement and on the condition that the Party ensures that the said persons maintain Confidential Information; and (b) the Parties’ auditors, legal advisors and banks bound by the duty of confidentiality.

9.5.  The Parties undertake to notify each other promptly if Confidential Information is communicated or may be communicated to a person lacking the right thereto. The provisions of this clause shall not in any manner limit the liability for breach of the Agreement.

9.6.  The Agreement and its terms and conditions are confidential and shall be considered Confidential Information in accordance with clause 9 of the General Terms and Conditions.

10. LIABILITY OF THE PARTIES AND LIMITATIONS ON LIABILITY

10.1.  The Parties shall be liable for the failure to comply or comply as required with the obligations assumed by them in accordance with the procedure and in the extent set forth in the agreement and the legal acts of the Republic of Estonia.

10.2.  All returns submitted by Payers shall be fulfilled by the Merchant and the Merchant shall have full and sole liability for any and all potential claims related to payment of the Transaction Amount.

10.3.  Omniva and Omniva Service Provider shall not assume and shall not incur any obligations to Payers, including and not limited to obligations related to defects in goods and improper delivery. If Omniva and/or Omniva Service Provider receives a relevant claim from the Payer, Omniva and/or Omniva Service Provider shall immediately forward it to the Merchant for fulfilment. The Merchant undertakes to compensate Omniva and Omniva Service Provider for all expenses and damage that Omniva and Omniva Service Provider (respectively) incurs in connection to expenditures arising from potential claims from Payers.

10.4.  The Merchant shall bear credit risk liability, i.e. liability for the Payer failing to pay the Transaction Amount as required or if any refunds or disbursements must be made to the Payer in connection with payment of the Transaction Amount or withdrawal from payment of the Transaction Amount.

10.5.  The Merchant undertakes to compensate Omniva Service Provider for all expenses that Omniva Service Provider bears in connection to refund claims from Payers, including any dispute or disagreement between the Merchant and Payer (so-called chargeback).

10.6.  The Merchant’s liability related to credit card fraud is excluded for Transactions in regard to which the Merchant has expressed the desire to Omniva Service Provider to implement 3-D Secure functionality and Omniva Service Provider shall bear full liability for the expenses and claims arising from said Transactions.

10.7.  The Merchant shall have no right to bring any claims against Omniva Service Provider for the compensation of damage or other claims due to a faulty Transaction Order and, consequently, the wrong Transaction Amount being paid by the Payer.

10.8.  The Parties have agreed that Omniva Service Provider shall only be liable for Omniva Service Provider providing the Service as required pursuant to the terms and conditions set forth in the Agreement.

10.9.  Breach of Agreement is excusable and a Party shall be excused from failing to perform the obligations assumed hereunder or failing to perform them as required if the Party was in breach of the Agreement due to force majeure. Force majeure is any circumstance that was beyond the control of the Parties and which, or the consequence of which, the Parties could not have been expected from the point of view of reasonableness, to have considered, avoided or overcome at the time at which they entered into the Agreement. Among other things, force majeure shall include delays on the part of the credit institution in transferring amounts. If the effect of force majeure is temporary, the breach of obligation is only excusable for the duration of time that force majeure impeded performance of the obligation. The Party in breach of obligation due to force majeure is obliged to notify the counterparty of the force majeure circumstance without delay.

10.10.  In the case of a delay in the performance of a monetary obligation arising from the Agreement, the Party entitled to the payment shall have the right to demand late interest from the other Party of zero point zero five percent (0.05%) of the unpaid amount for each calendar day of delay in payment, starting from the moment of violation to the full payment of the amount not timely paid.

11. NOTICES

11.1.  Unless set forth otherwise in the Agreement, correspondence between the Parties shall be sent via the contact details for the contact person specified in the Agreement.

11.2.  Notices shall be sent in a form reproducible in writing or in written form. If the Agreement specifies written form for a notice, the notice must be sent in writing.

11.3.  All notices related to the Agreement shall be sent in English by express mail, regular mail or email. A notice submitted by express mail shall be considered sent when the notice has been delivered to the recipient. A notice sent by mail shall be considered sent when three (3) business days have elapsed since the notice was delivered to a post office. A notice submitted by email shall be considered sent on the next Business Day.

11.4.  The Parties undertake to notify each other without delay of any changes in the contact person or contact details specified in the Agreement.

12. VALIDITY AND AMENDMENT OF THE AGREEMENT

12.1.  The Agreement shall enter into force on the date specified in clause 1.5.1. of the Agreement and remain in force until the date specified in 1.5.2. of the Agreement.

12.2.  The Agreement may be amended upon written agreement of the Parties, unless set forth otherwise in the Agreement. A Party which receives a proposal from the other Party to amend or supplement the Agreement shall undertake to respond in writing within ten (10) Business Days of receiving the proposal. Amendments to the Agreement shall enter into force upon signing of the relevant agreement by the Parties’ representatives who have been authorised as required.

12.3.  Omniva Service Provider has the right to unilaterally amend the Agreement, General Terms and Conditions, Price List and/or Technical Guidelines (“Document subject to Amendment”), notifying the Merchant’s contact person of the changes in a form reproducible in writing at least thirty (30) days before the amendment enters into force. In case the Merchant does not agree to the amendment of the Document subject to Amendment, the Merchant shall be entitled to unilaterally cancel the Agreement by informing Omniva Service Provider thereof in writing during thirty (30) days from the day Omniva Service Provider has notified the Merchant of the amendment of Document subject to Amendment. In case the Merchant has not cancelled the Agreement during the referred term the Mechant shall be deemed to have fully accepted amendment of the Document subject to Amendment.

12.4.  A Party shall have the right to cancel the Agreement under the ordinary procedure by notifying the counterparty of the desire to do so at least two (2) months in advance.

12.5.  The Parties have the right to cancel the Agreement extraordinarily on grounds set forth in the Law of Obligations Act and this section of the General Terms and Conditions. Omniva Service Provider shall have the right to cancel the Agreement extraordinarily without a notification period among other, if (1) the Merchant has submitted to Omniva Service Provider incorrect data and/or information; or (2) the Merchant changes domain address of the Website; or (3) the Merchant assigns the Website to the use of third person regardless of the legal grounds and manner of such assignment.

13. ACTIONS OF THE PARTIES UPON EXPIRY OF AGREEMENT

13.1.  The Parties shall proceed from clause 13 of the General Terms and Conditions in the case of cancellation or expiry of the Agreement on any basis.

13.2.  Upon the expiry of the Agreement, the provisions of the Agreement which intrinsically set forth the rights and obligation of the Parties after the expiry or termination of the Agreement shall survive expiry of the Agreement. Among other things, this pertains to Agreement provisions that govern the Parties’ payment obligations from operations and transactions taking place before the expiry of Agreement, a Party’s duty to maintain Confidential Information, Parties’ liability, the resolution of disputes between Parties and the rights and responsibilities set forth in clause 13 hereunder.

13.3.  The Parties may agree upon the termination of the Agreement in more detail on the cessation of provision of the Service, including on the Parties’ rights and responsibilities and liability following the expiry of the Agreement.

14. FINAL PROVISIONS

14.1.  Omniva Service Provider has explained to the Merchant and by signing the Agreement the Merchant has accepted that based on the fact that Omniva Service Provider is entered on the list of persons holding a valid payment institution licence, the Estonian Financial Supervision Authority has the right to perform oversight regarding the activities of Omniva Service Provider and all Parties to the Agreement related to the provision of the Service and the performance of the Agreement.

14.2.  The Agreement includes all of the Parties’ agreements pertaining to the Agreement and supplants, as of entry into force, all oral and written agreements between the Parties previously agreed on regarding the same Agreement.

14.3.  If any provision of the Agreement proves to be partially or completely invalid, this shall not affect the validity of the other provisions of the Agreement or of the whole Agreement, unless as a result of the invalidity of the specific provision, the Parties lose interest in the performance of the Agreement or if the invalid provision results in such a material change that the continued validity of the other provisions would clearly be unreasonable. In such a case, the Parties undertake to take joint action to replace the invalid Agreement provision with a valid one, which is in conformity with the law applicable to the Agreement and corresponds as much as possible to the original intent of the Parties.

14.4.  The annexes to the Agreement are integral parts of this Agreement. The provisions of the annexes shall be applied in the case of conflict between the Agreement and its annexes.

14.5.  Unless stated otherwise in the Agreement, neither Party may, without the prior written consent of the other Party, cede or re-assign rights and obligations arising from the Agreement to third parties or to perform acts which would result in the transfer of the rights or obligations on the basis of legislation (including during transfer of the company).

14.6.  The Agreement and its terms and conditions are confidential, and the Parties shall not have the right to disclose the content of this Agreement without the written consent of the other Party. The above shall nevertheless not influence the Parties’ right to disclose confidential information, the disclosure of which is required by legal acts, or the right to disclose confidential information to credit and financing institutions, auditors, advocates and other professional consultants bound by the duty of confidentiality.

14.7.  The laws of the Republic of Estonia shall be applied to the Agreement.

14.8.  The Parties shall attempt to resolve all disputes arising from or related to the Agreement by way of negotiations. Harju County Court shall resolve disputes that remain unsolved during negotiations.