GENERAL TERMS of MONRI Payments d.o.o., Ulica grada Vukovara 269F, 10000 Zagreb, OIB 82551932122 (hereinafter referred to as: MONRI)
For the provision of payment card transaction processing services
INTRODUCTORY PROVISIONS
These General Terms (hereinafter referred to as “The Terms”) represent contractual provisions that shall apply to goods and services based on agreements concluded between MONRI and the other contracting party (hereinafter referred to as Contractual partner, together with MONRI referred to as Parties), offers, orders or other legal grounds (hereinafter referred to as “Agreement”) in which the application of these Terms has been defined.
In the event of any discrepancy between the provisions of the Terms and the Agreement, the provisions of the Agreement shall prevail.
TERMINOLOGY
Certain basic terms have the following meanings:
Authorization: card Issuer’s approval for the Transaction in the form of an alphanumeric string. The authorization is carried out in online mode.
EFTPOS device or terminal: A fixed or mobile electronic device for electronic approval and acceptance of Transactions.
Global Payment Systems: VISA, Mastercard, American Express, Diners, JCB, Discover, and all other electronic cashless payment methods that are accepted by the Contractual Partner’s Points of Sale.
InfoSwitch: A central software component connected to the Acquirers, which is used for Transaction processing and routing towards Acquirers for authorization.
Issuer: Every bank and/or another financial/credit institution that issues the Card as a means of payment.
Card: A cashless means of payment at the Contractual Partner’s Points of Sale, issued by the card Issuer on the basis of the aforementioned Global Payment Systems.
Card User: Every natural or legal person whose name is printed or otherwise indicated on the Card, and who uses the Card as a means of payment for goods and/or services at the Contractual Partner’s Points of sale, according to the conditions of the card Issuer.
MONRI switching (switching): A service provided by MONRI through the InfoSwitch software (ISO switch), which enables safe Card payments for goods and services by transmitting data on card transactions from the Point of Sale terminal to the Acquirer and returning Authorization data from the bank to the Point of Sale, in accordance with the requirements of the Global Payment Systems and the Acquirer’s specifications. This service includes the harmonization of the aligned traffic with the Acquirer’s host and preparation of a reporting base for the financial harmonization of the Contractual Partner and Acquirer.
Contractual Partner: A legal person who sells goods and/or services to Card users and who has a contractual relationship for Card Acceptance with the Acquirers.
Card Acceptance: Use of Cards as a means of payment at the Point of Sale and transferring the means of every transaction to the Contractual Partner’s account.
Acquirer: All financial and payment institutions with whom the Contractual Partner has agreed Card Acceptance at the time this Agreement was concluded and those with whom the Contractual Partner agrees Card Acceptance within the duration of the Agreement.
Point of sale: Every Contractual Partner’s point of sale where goods or services are sold, i.e. where Transactions are carried out (every single register in every single branch office for which the service was activated under the Agreement).
System: A set of hardware and software solutions for payment Cards acceptance and processing, which is connected to the Acquirer and/or Global Payment Systems by protected electronic communication.
Transaction: Card payment of a good or service at the EFTPOS terminal at the Point of Sale. Purchase and cancellation are included
TMS (terminal management system) – a system for EFTPOS terminal parametrization and monitoring. The system assigns operating licenses to each EFT POS terminal
SLA (Service Level Agreement) – Agreement on the level of service and provision of support, agreed between MONRI and the Contractual Partner.
VPN (Virtual Private Network) – means the computer network that connects remote networks using public communication networks such as the Internet. VPN provides security to network managers and end users by applying technology solutions such as tunneling protocols and encryption.
SWITCHING SERVICES
For the purposes of Authorization and Card Acceptance, MONRI EFTPOS terminals connected to cash register at Point of Sale on one side and to the InfoSwitch switching software on the other, shall be used at all the activated Points of Sale specified in the Agreement.
The EFTPOS device enables the Card User to choose between single payment and installments, whereby the number of installments may be chosen (depending on the conditions defined in the Agreement).
The switching service shall be carried out for all Cards for which the Contractual Partner has agreed Card Acceptance services with Acquirers according to the Agreement.
MONRI shall maintain and update its InfoSwitch software and the System according to the (software and hardware) requirements of the Card Issuer and Acquirer, as well as enable single payments and installments.
Should the Card Issuer’s conditions change, agreements on additional Cards and changes to specific installment conditions, the Contractual partner shall immediately notify MONRI (before the application of the new conditions) thereof, and MONRI shall adapt the InfoSwitch software no later than 3 (three) working days from the receipt of such notice.
EFTPOS terminals may support the DCC service, i.e. payment currency conversions from EUR to the currency of the foreign Card User’s Card. This service is automatically provided during Transaction completion at the EFTPOS terminal of the Point of Sale, whereby the foreign Card User has the right to choose whether their Card shall be charged in EUR or another currency connected to their Card.
The completion of payment Transactions at the Point of sale is carried out by acquiring a positive Authorization in real time for every individual Transaction.
MONRI, at the time when the Agreement is concluded, has a System connected to all card Acquirers listed in Annex 3 of the Agreement. Should the cooperation with Acquirers, which is necessary for the provision of the switching service according to this Agreement, be cancelled or terminated (on any basis), MONRI shall immediately notify Contractual partner. Any changes pertaining to the Acquirer list shall not constitute a basis for the termination of the Agreement and it shall not be considered a breach of the Agreement, and the Parties shall agree on continuing cooperation with some of the other Acquirers.
All Transactions are carried out in the PCI DSS Level 1 environment, according to the rules of the Global Payment Systems and the policies of Acquirers, with whom an SLA cooperation was established.
The Contractual Partner may request a change of Acquirers for specific Transaction by a unilateral statement and choose between Acquirers listed in the Agreement, whereby MONRI shall carry out such changes from the date of notice or within 5 days form receipt of the Contractual Partner’s notice.
EFTPOS DEVICES
The switching service is carried out at Points of Sale for which the purchase of EFTPOS devices and services under the Agreement were agreed by the Contractual partner.
Specifications of the type and number of the EFTPOS devices, detailed list of all Points of Sale and the required number of EFTPOS devices per each Point of Sale are defined in the Agreement.
The technical specifications of Yomani and Yoximo EFTPOS devices are given on the manufacturer’s website via these links:
https://worldline.com/content/dam/worldline/documents/publications/factsheets/yomani-en.pdf
https://terminals.worldline.com/content/dam/worldline-terminals/documents/yoximo-2p-en.pdf
The Contractual partner may order additional EFTPOS devices by an order form after signing the Agreement. MONRI shall deliver the EFT POS devices within 60 days of order receipt. Should an unannounced order be accepted, MONRI shall agree with the manufacturer on a delivery date and notify the Contractual Partner thereof. Orders are placed in writing.
MONRI shall confirm the receipt of the written order in writing no later than 3 working days.
The delivery shall be carried out directly to the Contractual partner’s Points of Sale listed in the Agreement or to the Contractual partner’s corporate seat address.
SERVICE ACTIVATION AND DEACTIVATION
The Contractual partner shall give notice about the Points of Sale where it would like to activate the switching service, and MONRI shall assign a TID (Terminal ID) received from the Acquirer to every single EFTPOS device, carry out all the preparatory activities for connecting every single EFT POS device to the Acquirers’ systems, as well as connect each EFT POS device to individual registers. MONRI shall also test the System’s functioning at every single Point of Sale. All the aforementioned shall be carried out within 4 (four) working days from the delivery of the EFTPOS to the Point of Sale.
The service shall be regarded as activated when the first payment Transaction is carried out at the Point of Sale by means of the EFTPOS device.
Should a Contractual partner require service deactivation at a specific Point of Sale, it must notify MONRI thereof at least 14 days in advance. MONRI shall deinstall the EFTPOS device. Service deactivation is possible solely in case of closure and/or relocation of a specific Point of Sale. A deactivated EFTPOS device may be reactivated for the same or a different Point of Sale upon the Contractual partner’s request. MONRI’s obligations begin with service activation, pursuant to section “Reporting and storage of data on Transactions” and “Maintenance and support for EFTPOS devices”.
REPORTING AND STORAGE OF DATA ON TRANSACTIONS
Reports on Transactions and the Transaction overview are available to the Contractual partner via the InfoSwitch service and system in real time. The InfoSwitch service can be accessed via the online interface. In addition to the Transaction overview, the Contractual partner can generate and download reports on completed Transactions according to its needs. The Parties shall mutually agree on the types and forms of reports, as well as define the required items and parameters. MONRI shall create new forms/types of reports according to the Contractual partner’s needs. The development of new types of reports may be subject to additional costs incurred by the Contractual partner.
In addition to downloading, reports may also be delivered to the Contractual partner via SFTP transfer.
MONRI shall store data, which constitute the basis of business operations according to the Agreement, in a way that enables them to be printed on paper and meet the following requirements:
- They are available and suitable for future use, including the period of at least 18 months after termination of this Agreement;
- It is possible to establish the origin of the Transaction, its recipient, the place and time of its transmittal and receipt, as well as the Transaction’s status based on the stored Transaction data;
- The technology and procedures used prevent the alteration or deletion of transaction data to the necessary extent, i.e. a reliable guarantee pertaining to the Transaction’s inalterability exists.
The aforementioned data shall be available to the Contractual partner on the access portal of the InfoSwitch software for a minimum of 18 months from the day of the Transaction’s completion.
MAINTENANCE AND SUPPORT FOR EFTPOS DEVICES
MONRI shall regularly maintain EFTPOS devices in terms of software solutions, updates, and the necessary certificates, as well as supervise the proper functioning of individual EFTPOS devices within the scope and times defined in these Terms.
MONRI undertakes to prepare and install EFT POS devices at the Contractual partner Points of Sale within 60 days from the date when MONRI receives the copies of the Agreement signed by the Contractual partner, according to agreed time limits for the installation. The EFT POS device installation is carried out by employees of MONRI or the subcontractor, the company Payten d.o.o., Ulica grada Vukovara 269d, Zagreb, OIB (identification number): 78739316911 (hereinafter: Payten).
At the time of EFT POS device installation, MONRI undertakes to carry out the training of Contractual partner’s employees regarding the operation of the EFT POS device.
Employees of the Contractual partner shall report any issues pertaining to the functioning of the EFTPOS device immediately upon the discovery of the issue to one of the following contacts:
Telephone +385 1 3535 301
E-mail [email protected]
MONRI undertakes to remedy the fault of the device or replace it within
- 4 hours in the areas of Payten service centers (from the moment of reporting the issue)
- 8 hours outside the areas of Payten service centers (from the moment of reporting the issue)
- Next working day for islands (from the moment of reporting the issue).
In order to ensure the optimum service level, all issues must be reported to MONRI’s support system via the aforementioned contacts. MONRI shall ensure the resolving of issues through the support system by the following steps:
- Recording of issues
- Inspection of issues
- Resolving of issues
- Reporting on the cause of the issue and remedial actions
HELP DESK support shall be available within the Contractual partner’s working hours between 08:00 and 20:00 Monday to Saturday and 08:00 to 14:00 on Sundays.
MONRI’s employees shall answer calls based on availability; callers shall have the option to leave a voice message, in case the line is busy, and MONRI shall return the call as soon as the call agent is available.
Handling priority and response time:
Level of issue | Definition | Response time |
1. System failure | None of the devices are functioning due to issues with the MONRI System or the telecommunications operator, card payments not functioning | Promptly |
2. Emergency | One, isolated device not operating due to malfunction | 4 hours from reporting |
MONRI shall provide help desk support for the Contractual partner starting on the day of the first EFTPOS device installation, as available within the time limits and response times provided in these Terms.
The delivery of additional EFTPOS devices is defined by the time limits and within response times given in this section of the Terms – SLA.
CONTRACTUAL PARTNER’S OBLIGATIONS
In addition to the obligations given in the Agreement, the Contractual partner shall accept Card payments solely for the purpose of selling goods and services of its registered business activity. The Contractual partner is neither allowed to collect any claims that are not the subject matter of the business operation, nor is it allowed to pay out cash.
The Contractual partner shall prepare the Point of Sale by providing a network connection (IP connection) and USB port on the computer/register at the Point of Sale for charging the EFTPOS device and to maintain them according to MONRI’s specification. MONRI is not liable for delays or improper fulfillment of its obligations under this Agreement, if the Contractual partner does not provide the necessary preconditions.
At all the Points of Sale where the Contractual partner uses MONRI System, the Contractual partner shall:
- Offer Card payments for the sales of goods and services in a way that fully complies to MONRI’s instructions, the rules of the Global Payment Systems, and of the laws of the Republic of Croatia, all the while respecting the Card User’s rights,
- Manage Transaction data in accordance with the rules of the Global Payment Systems and other applicable regulations, as well as establish and maintain stored data protection according to the aforementioned,
- It shall keep, as well as store bookkeeping and accounting documents pertaining to sold goods and/or services, documents on the delivery of such goods/services to the Card User within the statutory time frame and provide such documents to MONRI immediately upon written request.
The Contractual partner understands and accepts that the Global Payment Systems are the sole owners of the rights to use brands of Cards that are the subject matter of the Agreement and that they may, at any time, for whichever reason, and without previous notice, prohibit or limit the use and display of these brands by the Contractual partner. The Contractual partner waives its right to contest the aforementioned right of ownership and other rights of the Global Payment Systems for whichever reason.
The Contractual partner is liable for all the damage, which may result from infringement of obligations defined in this Section.
The Contractual partner undertakes to immediately notify MONRI about any status, organizational and/or other changes relevant for the fulfillment of the Agreement (changes of the responsible person, point of sale, commercial bank, telephone number, transaction account number; notification on the inability to settle obligations; notification on blocked account and the onset of conditions for instigation of insolvency or liquidation proceedings; etc.)
The Contractual partner shall not sell, transfer, disclose, or in any other way use, i.e. make any materials that contain Card user`s numbers, personal data, or Transaction data available to third parties.
MONRI’S OBLIGATIONS
In addition to other obligations in this Agreement, MONRI undertakes to conduct the following activities and procedures, in accordance with the rules of the Global Payment Systems:
- MONRI expressly states that, prior to the conclusion of the Agreement, has inspected the technical standards and telecommunications connections of individual Points of Sale and that they are suitable for the connection to the System and use of InfoSwitch. The Contractual partner agrees to the fact that at the time when the Agreement is concluded, the only technical condition MONRI has to additionally fulfill is the purchase and installation of EFTPOS devices at the Point of Sale,
- Establish and maintain a safe system for carrying out Transaction Authorization on the Contractual partner’s EFT POS devices in a way that ensures the protection of data on Transactions and Card Users, as it is prescribed and recommended by the security standards of the Global Payment Systems,
- Regularly maintain, test, certify, supervise, and upgrade the System required for the unhindered, continued, and secure completion of Transactions, in accordance with the rules of the Global Payment Systems,
- Manage data on Transactions and Card Users in accordance with the rules of the Global Payment Systems and other applicable regulations, as well as ensure the protection of stored data,
- Enable insight into data on all Transactions carried out at one Point of sale to the Contractual Partner.
In the event that MONRI, at the Acquirer’s request, temporarily discontinues Card Acceptance, up to the moment when, according to the Acquirer’s assessment and notice, the reasons for the discontinuation have been resolved, MONRI shall do so with no liability for damages or any other fees and/or liabilities towards the Contractual partner. The discontinuation in this paragraph shall not be regarded as grounds for Agreement termination by the Contractual partner.
PAYMENT
MONRI shall issue invoices to the Contractual partner for goods and services provided no later than the 10th day of the current month and they shall include the invoicing period of the previous month. The calculation of fees shall be done on the last day of the invoicing period, pursuant to the Agreement and the Contractual partner shall pay the invoiced amount within 20 (twenty) days from the date of invoice, or else reasonably dispute the invoiced amount partly or in full within the same deadline. In case the Contractual partner fails to dispute an invoice within the deadline, such an invoice shall be deemed approved. In case the Parties fail to reach an agreement about the disputed invoice within 25 (twenty-five) days from the date of issue, MONRI shall be entitled to suspend its performance under the Agreement until final resolution of this issue.
If the prices are stated in foreign currency, the payment shall be made in EUR equivalent at the selling exchange rate of Croatian National Bank on the date of invoicing.
The prices are stated without VAT which shall be covered by the Contractual partner in the amount which shall be stated in the invoice.
In the event that the Contractual partner’s payment is more than 15 days overdue, MONRI is entitled to suspend the further execution of its obligations.
The processing fee is charged for carrying out all the approved Card Transactions in MONRI’s EFTPOS device network and it includes all System updates, the adjustment of settings in case of changes to the information defined by Annex 1 and Annex 2 of the Agreement, the harmonization with the laws and subordinate legislation of the Republic of Croatia, as well as the rules of the Global Payment Systems.
Maintenance fees and the TMS license are charged on a monthly basis for every activated EFTPOS device until the device’s deactivation, i.e. the service’s deactivation at an individual Point of Sale and it includes the maintenance of EFTPOS devices according to part “MAINTENANCE AND SUPPORT FOR EFTPOS DEVICES” of these Terms, as well as the help desk’s maintenance costs. Fees are charged in case of device purchase.
MONRI declares and Contractual partner accepts that MONRI`s fees for the performance of the Agreement shall be adjusted by blend of consumer and producers inflation understood as the annual average of CPI and PPI as determined and reported by the European Central Bank in case MONRI’s fees are set in EUR or National Central Bank in case MONRI’s fees are set in local currency, at the start of each 12 months period of the Agreement and following each 12 months thereafter.
In case annual average of CPI and PPI exceeds 20% annually indexation specified in previous sentence, shall happen twice per year. In case it exceeds 50% annually indexation shall be performed once per quarter.
DELIVERY AND ACCEPTANCE
MONRI shall not be obligated to perform any services which are not explicitly specified in the Agreement.
MONRI shall not be responsible for the correct and timely delivery of the goods/services in accordance with the Agreement if the Contractual partner fails to meet any of its obligations under the Agreement.
Should the Contractual partner fail to timely and adequately provide/ensure prerequisites/conditions necessary for installation and activation of the goods/services of which it was informed by MONRI, including attendance of personnel, MONRI shall be entitled to charge the Contractual partner as if the service has been performed, including sustained damage.
Deadlines for MONRI’s delivery of goods/services shall be automatically extended for each period in which delivery of goods/services was not possible due to the reasons which do not originate from MONRI. In the event that delay is longer than 10 days, apart from cases of force majeure, the Parties shall agree upon new time frames.
Delivery and acceptance of services shall be confirmed by bilateral signing of the delivery note.
In the event that any of the Parties unreasonably denies signing the above-specified delivery and acceptance documents, it shall be considered that the delivery and acceptance were performed without their signing on actual delivery date.
INTELLECTUAL PROPERTY
The switching service (i.e. MONRI switching) is carried out through the InfoSwitch software which is, just like other software and hardware solutions that constitute the System, in absolute and exclusive ownership of MONRI, the sole and exclusive holder of intellectual property rights.
Subject to the payment of all fees under the Agreement, MONRI provides the Contractual partner with a non-exclusive, non-transferable license, which shall not be sublicensed, for the use of InfoSwitch and TMS software at every single Point of Sale where the service has been activated according to the Agreement, in the necessary scope with respect to the services under the Agreement and for the duration of the Agreement. The license is limited to the territory of the Republic of Croatia.
The Contractual partner will not directly or indirectly, nor shall it allow it to any third party, carry out any activities relating to the software and the System without the written consent of MONRI (under the pain of nullity), including, but not limited to:
- a) modify, translate, or create derivative works of the items of MONRI intellectual property rights;
- b) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, or algorithms of the items of MONRI intellectual property rights by any means;
- c) sell, lease, license, sublicense, copy, market or distribute the items of MONRI intellectual property rights, or use the items of MONRI intellectual property rights for timesharing, hosting, except as expressly permitted in the Agreement;
- d) remove any proprietary notices, labels, or marks from any MONRI products;
- e) provide insight into items of MONRI intellectual property rights, and logic of executing transactions, and appropriate know-how;
- f) provide to third person insight into the items of MONRI intellectual property rights database structures.
THIRD PARTY SOFTWARE
MONRI shall not be held responsible for the time taken to solve problems in case of incidents related to third party software. If such an incident is related to a third party software implemented by MONRI, MONRI shall notify the third party’s software manufacturer and implement the solution provided by the third party’s software manufacturer into the software system as soon as possible.
WARRANTY AND DAMAGE COMPENSATION
The warranty for a purchased EFT POS device shall be valid for 1 year from the date when the Contractual partner receives the device (receipt shall be confirmed by signing the corresponding record), except in cases of physical damage to the device caused by improper handling and the cases specified below. During the warranty period, the Contractual partner is entitled to request MONRI to repair the device within a reasonable time limit, however, not shorter than 60 (sixty) days, or, failing to do so, replace it with a functioning device. The Parties agree that MONRI’s failure to repair the device within the specified time limit shall not be deemed a valid ground for Agreement termination.
The warranty does not include remedying malfunctions and/or defects arising as a consequence of unauthorized use; improper, unsuitable and/or incorrect use and/or handling of the device; accident or negligence by the Contractual partner (including its employees and third parties); repair, configuration or modification to any element of the device or software made by the Contractual partner or a third party without the knowledge and written consent of MONRI; unsuitable environment where the device is located; and force majeure. In the above cases, save in the case of force majeure, the Contractual partner shall indemnify MONRI for all the damages MONRI has incurred due to such conduct by the Contractual partner.
If the EFT POS device is used, the monthly usage fee for the EFTPOS device includes both usage fees and the TMS license. MONRI will, at its own cost, remedy all malfunctions on the device throughout the use of the device, as part of the maintenance services, except in cases of physical damage to the device caused by improper handling, and malfunctions or defects arising as a consequence of unauthorized use; improper, unsuitable and/or incorrect use and/or handling of the device; accident or negligence by the Contractual Partner (including its employees and third parties); repair, configuration or modification to any element of the device or software made by the Contractual Partner or a third party without the knowledge and written consent of MONRI; unsuitable environment where the device is located; and force majeure. In the stated cases, MONRI is entitled to, at its own discretion, offer and bill to the Contractual Partner the repair of the device or a new device. In the above cases, save in the case of force majeure, the Contractual Partner shall indemnify MONRI for all the damages MONRI has incurred due to such conduct by the Contractual Partner.
The warranty stipulated in paragraph 1 and 3 of this part of this Terms is the whole and only warranty given by MONRI.
To the fullest possible extent under the applicable provisions of law, MONRI hereby disclaims all warranties whether express, implied, statutory or other, and MONRI specifically disclaims all:
- a) implied warranties of merchantability,
- b) fitness for a particular purpose,
- c) all warranties arising from a course of dealing, usage, or trade practice.
To the fullest possible extent under the applicable provisions of law, MONRI makes no warranty of any kind that the services will:
- a) meet Contractual partner’s, or any other person’s, requirements,
- b) achieve any intended result,
- c) be compatible or work with any other software, system, or other services
- d) be secure, accurate, complete, free of harmful code or error.
In case that as a result of non-compliance with contractual obligations, including without limitation unprofessional provision of services and/or delay in service delivery, one of the Parties suffers damages, the defaulting party shall compensate solely the actual, direct, ordinarily predictable and proved damages.
None of the Parties shall be held liable for indirect, consequential damages, damages due to loss of data or non-material damages, damages which could not have been predicted at the time of contract conclusion, or loss of profit. The liability of MONRI due to the scrambling, destruction, or loss of data or documents shall also be excluded.
MONRI shall not be held liable for direct or indirect losses of the Contractual partner that arise from the services which are the subject matter of the Agreement and/or these Terms for the following:
- Losses of the Contractual partner that arise from the misuse of EFT POS devices by the Contractual partner’s staff and third parties;
- Data protection and storage on EFT POS devices;
- The improper functioning of the EFT POS devices, if the conditions of their normal functioning defined by the EFTPOS device manufacturer’s product declaration and/or MONRI’s instructions (environment temperature, power supply, permissible levels of dust in the environment, etc.) are not present;
- Fraudulent transactions of any kind;
- Use of stolen or lost cards;
- Payments of amounts that exceed the account balances or the pertaining limits.
MONRI does not have the obligation to:
- Carry out fraud monitoring or fraud prevention;
- Carry out data protection and storage on EFT POS devices;
- Track misuses that arise from the use of payment cards.
The party referring to a breach of Agreement shall undertake all necessary measures towards mitigation of damages caused by such a breach, otherwise, the other party may request a reduction of the reimbursement amount.
MONRI shall not be held liable for damages resulting from the use of the goods and/or services.
The reimbursement of the damage caused due to a failure to fulfil the obligations under the Agreement and/or these Terms shall be limited to a total amount which, on all grounds, may not exceed 20% of the annual value of the Agreement in the year the damage occurred. This limitation is cumulative, i.e., the sum of multiple claims may not exceed the limit set forth herein for one year. The annual value of this Agreement implies the total value of the net fees which the Contractual partner paid to MONRI in the year in which the damage occurred. In case of damages inflicted prior to the expiry of the first 12 months of the Agreement period, the value in the context of this clause shall be calculated by determining the average monthly invoiced amount in the Agreement period and then multiplying that value by the coefficient of 12.
In case of damages resulting from wilful misconduct, gross negligence or damages suffered by MONRI due to Contractual partner`s breaches of MONRI`s intellectual property rights, the damages shall be compensated in full.
DURATION, CANCELLATION AND TERMINATION OF THE AGREEMENT
Duration of the Agreement shall be determined in the Agreement.
The Agreement may at any time be mutually terminated in the form of a written agreement on the termination of the Agreement.
The Contractual partner may terminate the Agreement without providing any reasons, at any time, but not before the period of 3 (three) years from the effective date of the Agreement has elapsed, in writing and with a 6-month notice period.
If the Contractual partner terminates this Agreement, MONRI shall be entitled to issue an invoice for the collection of a fee amounting to 6 average monthly invoices, and the Contractual partner shall pay the aforementioned invoice within 14 days from the date the invoice was issued.
MONRI may terminate this Agreement without providing any reasons, at any time, in writing and with a 6-month notice period.
In case of gross breach of obligations, the diligent party shall provide to the other party a written warning with explanation, stating evidence and gravity of the breach committed, thereby designating a reasonable period for fulfilment of obligations which cannot be shorter than 30 days, starting from the date of receiving such a warning. In case that the party in breach fails to meet the undertaken obligations within the designated period, the diligent party may terminate this Agreement by a written declaration of will with the notice period of 30 days starting from the date of receipt of such declaration of will.
The Agreement may not be terminated due to a party’s failure to meet a negligible part of an obligation under this Agreement.
“The failure to meet a negligible part of an obligation under this Agreement”, in terms of the previous paragraph, shall be understood to mean the failure to meet the remaining, a minor part of a party’s obligation under the Agreement, on condition that the other party, even without the discharge of the said part of an obligation, is able to exercise the benefit from the Agreement which it is normally entitled to in such a situation and provided that the purpose of the Agreement, i.e. execution of the subject of the Agreement, is not impeded due to the non-fulfilment of that obligation part.
Each Party is entitled to terminate the Agreement unilaterally, without a notice period, by providing a declaration of will in writing, if:
- Bankruptcy, liquidation, forced settlement or administrative or enforced control procedure has been initiated against the other party, or
- A party is forbidden to perform its business activities under a legally-effective final judgment, or
- The other party ceases its business operations permanently.
MONRI shall have the right to terminate the Agreement unilaterally without a notice period and with no obligation of prior notice and providing an additional period for the fulfilment, in any of the following cases:
- In case the Contractual partner fails to pay any of the liabilities owed to MONRI pursuant to the Agreement within a maximum of 60 (sixty) days from the invoice due date
- In case the Contractual partner fails to pay at least two monthly instalments on time
- In case of a suspicion or evidence that the Contractual partner or its employee are involved in acts of misuse, or that goods or services of illicit or inappropriate content are sold by the Contractual partner
- In case the Contractual partner breaches any of the MONRI intellectual property rights.
In any case of the Agreement’s termination, all amounts due for the services already performed in full or in part and/or delivered goods, will fall due immediately and MONRI will be entitled to invoice the Contractual partner accordingly. Termination of the Agreement shall have a future effect and shall not affect rights and obligations related to the already delivered services.
Termination of the Agreement shall have no impact on the Parties’ rights and obligations related to confidentiality of information and protection of intellectual property rights.
Upon termination of the Agreement for any reason by any Party or expiration of the Agreement due to lapse of the time specified in the Agreement:
- a) all of Contractual partner’s rights to use the services will immediately terminate;
- b) Contractual partner will return to MONRI or purge of all documentation or information delivered by MONRI;
- c) Contractual partner will return to MONRI any equipment that was outsourced for providing contracted service.
For the avoidance of any doubt, MONRI is not obliged to deliver and/or return any data/information to the Contractual partner if the Contractual partner has failed to pay all the fees pursuant to the Agreement and these terms.
FORCE MAJEURE
Either Party will be held harmless against the non-fulfilment or the delayed or inadequate fulfilment of its obligations undertaken in the Agreement, in case of occurrence of a force majeure event.
Force majeure will be understood as an inevitable event, which could not be foreseen upon the conclusion of the Agreement, or any other causes or events of this nature, beyond the reasonable control of the Parties, including, but not limited to:
- provisions of governmental bodies, war, coup, sabotages, embargo, natural (fires, floods, earthquakes, etc.) and social events (industrial actions), unavailability or interruption of telecommunications services, technical issues or issues with power supply, third party equipment malfunctions that affect the business operations of a Party, excluding the equipment supplied by MONRI for the Contractual Partner’s purposes, and all other events that do not depend on the will of the Parties, and the occurrence of which can lead to failure of the Parties to fulfill their obligations under this Agreement.
A party whose performance of the Agreement is impeded by force majeure event will notify the other party as soon as possible of any such event, but within 15 (fifteen) working days at most, to the extent possible. The notification will be accompanied by all the necessary information.
During the force majeure event, all rights and obligations set forth in the Agreement shall be suspended.
If completion of obligations under the Agreement is delayed for more than 3 months as a result of force majeure, the Parties shall set new conditions for the fulfillment of the Agreement or the termination of the Agreement.
DATA CONFIDENTIALITY
Data and information with regard to the contractual relationship and to the object of the Agreement, which is known to the Parties at the moment of concluding the Agreement or in the future, is strictly confidential. Neither party will disclose the Confidential information to any third party without the prior written consent of the other party, unless the disclosure of such information is explicitly provided by the law, the Agreement or these Terms. This obligation to preserve confidentiality will remain valid throughout the contractual period and after the termination thereof, for a period of 3 (three) years.
“Confidential Information” is understood as any piece of information supplied in writing, verbally or by any other means, by one party to the other, including, but without limitation to, any information regarding the products, operations, procedures, plans or intentions, systems and processes, know-how, design rights, appraisal process, market opportunities, as well as businesses, financial results, legal status, judicial litigations, controls performed by the competent authorities, etc.
Either party may disclose Confidential Information if:
- the disclosure of such information is required under mandatory provisions of law or under a court order or a decision by a public administration authority, only to the extent of such a requirement and provided that the recipient of such information has been made aware of the confidential nature of the information and the other party is notified of disclosure;
- the information was known to the Parties before entering into the Agreement and/or is known to the general public;
- that party obtains or has obtained such information from a third party authorized to reveal it;
- the disclosure is necessary for that party to be able to use the services of an auditor/legal advisor;
- a party was authorized to do so by the other party in writing.
MONRI is authorized to disclose Confidential Information to other entities within the Asseco/Payten Group, without consent of the Contractual partner.
Each Confidential Information submitted shall remain the property of disclosing party. Upon disclosing party`s request, subject to the termination or expiry of the Agreement, the information shall be immediately returned or destroyed, including all copies, photographs, computer discs or other forms of data storing, as well as all duplicates existing at receiving party.
Each party is entitled to make public statements, press releases or other public announcements regarding the mere existence of the Agreement and its general object.
Each party is entitled to use the other party’s trademark (name and logo) on its website as well as on its marketing and sales materials with appropriate reference to business relations between the Parties.
MONRI is entitled to prepare and use the business case study of the project. The use of the case study includes the publishing of the case study in any form, upon the prior written approval of the other party to its content, which approval cannot be unreasonably withheld.
Each party shall have the right to require, at its discretion, the correction or deletion of any errors or inaccuracies in using the other party’s trademark or business case study as defined herein.
ASSIGNEMENT OF RIGHTS
Any right, benefit or obligation arising from the Agreement or the Agreement in general may not be assigned or transferred by a party, in whole or in part, without the prior written consent of the other party, except for cases when such transfer is to another entity within the Asseco/Payten Group.
MONRI is entitled to engage subcontractors for performance of the Agreement.
PERSONAL DATA PROTECTION
If necessary, Parties shall conclude a separate agreement on the processing of personal data in accordance with the requirements of the applicable law and shall fulfil any other regulatory requirements in relation to the processing of personal data.
MONRI is not liable for maintaining equipment or systems which are property of the Contractual partner or protection of data related thereto in any way.
MARKET RESEARCH
MONRI reserves the right to process the information originated due to Contractual partner`s use of service for the needs of statistical analysis related to market research and share and/or deliver such information to third parties in anonymized form. Personal data is not processed as part of such analysis. Also, it is ensured that there will be no disclosure of any information connected to any individual user of the System and that no individual user shall be directly or indirectly identified in the reports and analysis related to market research.
DISPUTE RESOLUTION
The Agreement and any disputes or claims arising out of or in connection with it, its subject matter or its formation (including non-contractual disputes or claims) are governed by the law of the Republic of Croatia, excluding conflict of law rules. The Convention on the International Sale of Goods (Vienna 1980) shall not apply.
MONRI and Contractual partner commit to settling issues jointly and amicably; in case amicable resolution is not possible, the issue shall be resolved by the competent court in Zagreb.
In the event that any provision or part-provision of these Terms or the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed amended to the minimum extent necessary to make it valid, legal and enforceable. If such amendment is not possible, the relevant provision or part-provision shall be regarded as deleted. No amendment to or deletion of a provision or part-provision under this clause shall affect the validity and enforceability of the remaining part of these Terms or the Agreement.
INDEPENDENCY OF THE PARTIES
The relationship between the Parties shall represent the relationship of two independent entities at all times, and the Agreement shall not be construed as creating any partnership, agency relations or other form of legal association that would impose liability upon one party for the other party’s actions or failure to act. No party, its agents, nor its employees shall be considered to be agents or representatives of the other party, and no party shall have the authority, express or implied, to assume or cause any responsibility or liability on behalf of the other party, or to bind the other party whatsoever.
Each party shall be responsible for the management, direction, and control of its employees and other agents, and such employees and other agents will not be employees of the other party.
FINAL PROVISIONS
The Parties shall notify each other immediately in writing by registered mail with a return receipt to the address provided in the Agreement in the following cases:
- If a competent regulatory body adopts a decision whereby a Party entirely or partially loses its capability to fulfill its obligations under this Agreement to the full extent, especially if MONRI loses its PCI DSS certificate and the Global Payment Systems revoke its Type I TPP and/or TPSV status, or if the contractual relationship between MONRI and any Acquirer, which is relevant for the fulfillment of this Agreement, terminates on any basis;
- If one of the Acquirers loses its Global Payment Systems license for Card Acceptance;
- If the Contractual partner terminates an agreement with a Card Acquirer.
Amendments to the Agreement shall be done solely in written form and they shall be signed by both Parties. There are no oral side agreements to the Agreement.
By way of derogation from the preceding paragraph, the Parties agree that certain annexes to the Agreement may be amended without creating a separate annex to the Agreement and without signatures from both Parties, in the following cases:
- A) Annex 1 of the Agreement may be amended solely with respect to the provision relating to the number of devices by sending a notice on the new number of devices to MONRI by the Contractual partner via email, using the contact email addresses specified in the Agreement. In the event of reducing the number of devices, provision of paragraph 3 of this Terms in part “SERVICE ACTIVATION AND DEACTIVATION” shall apply. Annex 1 of the Agreement shall be deemed amended in line with the provisions of this paragraph with respect to the number of devices after MONRI delivers to the Contractual partner a confirmation of the change via email, and the new status of the number of devices shall apply in accordance with the provisions herein.
To avoid any doubt, the Parties agree that any other modifications to Annex 1 shall require a separate annex to the Agreement, signed by both Parties.
- B) Annex 2 of the Agreement may be amended by submitting an amendment notice by the Contractual partner via email, using the contact email addresses specified in the Agreement. Annex 2 shall be deemed amended in line with the provisions of this paragraph after MONRI delivers a confirmation of the amendment to the Contractual partner via e-mail, and the amended Annex 2 shall apply in accordance with the provisions of the Terms in part “SERVICE ACTIVATION AND DEACTIVATION”.
- C) Annex 3 of the Agreement relating to the Acquirers, and in accordance with the provision of paragraph 8 of this Terms in part “SWITCHING SERVICES”, may be amended at the Contractual partner’s request by sending a notice on the amendment by the Contractual partner via the email contacts specified in the Agreement, under the terms of paragraph 8 of this Terms in part “SWITCHING SERVICES”.
To avoid any doubt, amendments to part “MAINTENANCE AND SUPPORT FOR EFTPOS DEVICES” of this Terms, and to all other parts of this Terms, not expressly provided otherwise, are possible only by creating an annex the Agreement, signed by both Parties.
These Terms shall come into effect on the date of their rendering.
MONRI reserves the right to amend these Terms. Any amendments to the Terms shall be made in writing. MONRI shall inform the Contractual partner of its intent to amend these Terms at least 14 days prior to their entry into effect by e-mail or via web page of MONRI or in any other suitable manner. Contractual partner is entitled to cancel the Agreement with a 14 days` notice period, by sending a written notice, in case it does not accept the amendments. Failure to cancel the Agreement within 14 days from the notification of amendments shall be deemed as Contractual partner`s acceptance of amended Terms.
The warning, written declaration of will, as well as termination and/or cancellation notices described in these Terms or the Agreement must be delivered by registered mail with a return receipt to the address of the party specified in the Agreement, or to a different known address provided in written form by the party receiving the warning, declaration, or notice, to the party sending it. Should an additional period for fulfilment or a notice period apply, the aforementioned periods shall begin on the date of receipt of the written declaration of intent, i.e. the notice in an aforementioned way. If the registered mail, sent according to the provisions of this paragraph returns from the recipient’s address indicated in the Agreement as not delivered for any reason, the date of receipt is considered to be the date on which the mail was consigned to the post office, according to the provisions of this paragraph.