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Commercial Entity Agreement

Last updated: 11 April 2018

This Commercial Entity Agreement (this “Agreement”) is provided to all applicable users of the Squareup Europe Ltd., a limited company incorporated in England and Wales under registered number 08957689 (“Square”) service for the acceptance of card payments (the “Square Service”) that are “Commercial Entities” as defined by Visa Europe Services Inc. and MasterCard International, Inc. As such an entity, the seller signing or electronically agreeing to the terms hereof (“Seller” or “you”) is entering into this Agreement with First Data Europe Limited, a limited company incorporated in England and Wales under registered number 02012925 whose registered office is at Janus House, Endeavour Drive, Basildon, Essex, England SS14 3WF (“First Data”), to govern the authorisation, conveyance and settlement of Transactions utilizing the Square Service. By entering into this Agreement, Seller is fulfilling the Network Rules requiring a direct contractual relationship between First Data and Seller, and Seller is agreeing to comply with Network Rules as they pertain to payments Seller receives through the Square Service.

1. Network Rules and Acceptance Requirements.

Seller agrees to comply with all Network Rules as may be applicable to Seller and in effect from time to time, and such other procedures as Square and/or First Data may from time to time prescribe relating to Seller’s acceptance of Cards. Without limiting the generality of the foregoing, Seller agrees to each of the following requirements and restrictions:

1.1 Bona Fide Transactions.

Seller shall not submit any Transaction that is not a bona fide Transaction. A “bona fide” Transaction means a Transaction that is (i) between the Seller and its Customer, (ii) for the sale of goods and/or services (or a refund for such a sale) that are Seller’s property or that Seller has the legal right to sell, (iii) submitted on behalf of Seller (and not on behalf of any third party), and (iv) legal, authorised by the Customer, non-fraudulent or otherwise damaging to the Network(s), and is, to the Seller’s knowledge, enforceable, collectible, and in full compliance with this Agreement, applicable law, and Network Rules.

1.2 Minimum/Maximum Thresholds For Card Acceptance; Surcharges.

Except as expressly permitted by law, Seller shall not (a) set a GBP amount above or below which Seller refuses to honour Cards or (b) impose or require the Customer to pay any fee or charge (including, without limitation, any surcharge or finance charge or any of the fees payable by Seller under this Agreement) in connection with or as a condition of the use or acceptance of a Card.

1.3 Split Transactions.

Seller agrees to submit a single Transaction for the full amount of each sale. Seller shall not split a single Transaction into two or more Transactions, except to allow for partial payment by prepaid or gift Card.

1.4 Taxes.

Seller shall not add any tax or surcharge to Transactions, unless applicable law expressly allows or requires the Seller to impose such tax or surcharge. If any tax or surcharge amount is allowed, such amount shall be included in the Transaction amount and shall not be collected separately.

1.5 Use of Card Account Numbers.

Seller shall not request or use Card Information for any purpose except as payment for its goods or services or to provide a refund for goods or services previously sold, unless required by the Network Rules. Seller agrees that (i) it will not use the Card Information for any purpose that it knows or should know to be fraudulent or in violation of any Network Rules; (ii) it will not sell, purchase, provide or exchange in any manner or disclose Card Information to anyone other than a Square Company (as defined in the Seller Agreement), any Network, or in response to the request of a government agency or appropriate regulator; and (iii) it will be compliant with the Security Standards, including the Payment Card Industry Data Security Standards, and will cooperate in a forensic investigation if so required.

1.6 Existing Debt.

Seller shall not submit a Transaction for any purpose other than a current Transaction. Transactions shall not represent the collection of a dishonored check or the collection, transfer or refinancing of any existing or prior debt or obligation. Seller shall not attempt to recharge a Customer for an item that has been the subject of a Chargeback by the Customer, even with the Customer’s consent. Seller shall not submit any Transaction that it knows or should know to be unenforceable or uncollectable.

1.7 Time of Payment.

At the time Seller accepts a Card for any goods or services, the goods shall have been provided or shipped or the services actually rendered to the Customer, except as specifically stated otherwise in Seller’s Application (or otherwise approved in writing by First Data in advance).

1.8 Cash Advances.

Seller shall not disburse or advance any cash to a Customer (except as authorised by the Network Rules) or to itself or any of its representatives, agents, or employees in connection with a Transaction, nor shall Seller accept payment for effecting credits or issuing refunds to a Customer.

1.9 Discrimination.

The following paragraph is subject to all applicable laws and in particular to Regulation (EU) 2015/751 of the European Parliament and of the European Council of 29th April 2015 on interchange fees for card-based payment transactions.

Unless permitted by the Network Rules, Seller shall not engage in any practice that unfavorably discriminates against or provides unequal treatment of any Network relative to any other Network.

1.10 Refunds/Credits.

Any Transaction submitted to First Data to credit a Customer’s Card account represents a refund for a prior Transaction submitted to First Data using the same Card.

1.11 Instalment Plans.

Unless specifically stated in its Application or otherwise approved in writing by First Data in advance, Seller shall not accept Cards in connection with instalment plans. If the Customer pays in instalments or on a deferred payment plan, as previously approved by First Data, a Transaction Data record shall be prepared separately for each instalment transaction or deferred payment on the dates the Customer agreed to be charged. All instalments and deferred payments, whether or not they have been submitted to First Data for processing, shall be deemed to be a part of the original Transaction.

1.12 Recurring Transactions.

For recurring Transactions, if any, permitted by the Seller Agreement, Seller must (i) obtain the Customer’s consent to periodically charge the Customer on a recurring basis for the goods or services purchased; (ii) retain this permission for the duration of the recurring services and provide it upon request to First Data or the issuing bank of the Customer’s Card; and (iii) retain written documentation specifying the frequency of the recurring charge, and the duration of time during which such charges may be made, and the amount or range of amounts that may be charged. Seller shall not submit any recurring transaction after receiving: (i) a cancellation notice from the Customer (so long as such notice was provided three (3) or more days prior to the transaction date); or (ii) notice from First Data or any Network (via authorisation code or otherwise) that the Card is not to be honored. Seller shall include in its Transaction Data the electronic indicator that the Transaction is a recurring Transaction.

1.13 Seller Identification.

Seller agrees to prominently and unequivocally inform the Customer of the identity of the Seller at all points of interaction.

1.14 Visa and MasterCard Marks.

Seller acknowledges that it will comply with Network Rules including those regarding its use of Network marks. Seller is authorised to use the Visa and MasterCard logos or marks only on Seller’s promotional materials and website to indicate that Visa and MasterCard cards are accepted as funding sources for Square Transactions.

1.15 Chargebacks.

Seller shall use all reasonable methods to resolve disputes with the Customer. Should a Chargeback dispute occur, Seller shall promptly comply with all requests for information from Square. Seller shall not attempt to recharge a Customer for an item that has been charged back to the Customer, even with the Customer’s consent. You shall have full liability for the amount of any and all successful Chargebacks (and may have conditional liability for such Chargebacks prior to their final adjudication pursuant to the Network Rules).

2. Authorisations Required For All Transactions.

Seller is required to obtain an authorisation through the Square Service, in accordance with this Agreement, for each Transaction. First Data reserves the right to refuse to process any Transaction Data presented by Seller unless it includes a proper authorisation. Seller acknowledges that receipt of authorisation is not a guarantee of payment.

3. Refunds.

Seller is required to maintain a refund policy. If Seller limits refund/exchange terms or other specific conditions for Card Transactions, Seller’s policy must be clearly provided to the Customer prior to the sale and as part of the sale confirmation process. Proper disclosure would include wording that is prominently displayed and states “NO REFUND, EXCHANGE ONLY” or something substantially similar and includes any special terms. Qualifying Seller’s refund or exchange terms does not completely eliminate Seller’s liability for a refund because consumer protection laws and Network Rules frequently allow the Customer to still dispute these items. If, under Seller’s refund policy, Seller allows a refund, Seller shall implement such refund within three (3) days of approving the Customer’s request for such refund. The amount of a refund cannot exceed the amount shown as the total on the original Transaction Data except by the exact amount required to reimburse the Customer for shipping charges that the Customer paid to return merchandise. Seller shall not accept any payment from a Customer as consideration for issuing a refund.

4. Term and Termination.

This Agreement is effective upon the date Seller agrees to it (by electronically indicating acceptance hereof or otherwise) and continues so long as Seller uses the Square Service or until terminated by Seller or First Data. This Agreement will terminate automatically and on the same date as any termination or expiration of your Seller Agreement. This Agreement may be terminated by First Data at any time based on a breach of any of Seller’s obligations under this Agreement or the Seller Agreement, or based on the termination of the payment processing relationship between Square and First Data. In addition and without limiting the generality of the foregoing, First Data may terminate this Agreement at any time upon written notice to Seller as a result of any of the following events: (a) irregular Transactions by Seller, excessive Chargebacks, or any other circumstances that, in First Data’s discretion, may increase First Data’s exposure for Seller’s Chargebacks or otherwise present an unreasonable anticipated financial, reputational, or legal risk to First Data; (b) Seller fails in any material respect in performance or observance of any term, covenant, condition, or agreement contained in this Agreement or the Seller Agreement, including, without limitation, the funding or establishing of any reserve account that Square may require; (c) an Insolvency Event occurs in respect of the Seller; (d) any Network notifies First Data that it is no longer willing to accept Seller’s Transaction Data or requires First Data to terminate or limit this Agreement; (e) Seller or any person owning or controlling Seller’s business is listed in one or more databases of terminated or high risk Sellers maintained by the Networks; or (f) Seller engages in conduct that creates or could tend to create harm or loss to the goodwill of any Network, First Data, or Square, or that otherwise may impose undue risk of harm to any Network, First Data or Square. First Data will give you notice of the termination of this Agreement in writing.

Termination does not affect either party’s respective rights and obligations under this Agreement as to Transaction Data submitted before termination.

5. Indemnity.

Seller agrees to indemnify and hold First Data harmless from and against all losses, liabilities, damages and expense: (i) resulting from any breach of any warranty, covenant or agreement or any misrepresentation by Seller under this Agreement; (ii) arising out of Seller’s or its employees’ negligence or willful misconduct in connection with Transactions or otherwise arising from Seller’s provision of goods and services to Customers; (iii) arising out of Seller’s use of the Square Service; (iv) arising out of any acts or omissions of a sub-contractor or agent appointed by Seller in connection with the performance of any part of this Agreement, or (v) arising out of any third party indemnifications First Data is obligated to make, or liabilities or other obligations First Data may incur, as a result of Seller’s actions (including indemnifications of or liabilities to, any Network or Card-issuing bank).

6. Information About Seller’s Business.

6.1 Additional Financial Information.

Upon three (3) days’ written notice at any time, Seller agrees to furnish to Square and/or First Data such financial statements and financial information as Square and/or First Data may request relating to Seller, Seller’s creditworthiness and/or Seller’s ability to fulfill its financial and other obligations under this Agreement.

6.2 Audit Rights.

With prior notice and during Seller’s normal business hours, First Data’s duly authorised representatives may visit Seller’s business premises and may examine Seller’s books and records that pertain to Seller’s Transactions or Seller’s compliance with this Agreement.

6.3 Other Information.

Seller agrees to provide First Data at least 30 days’ prior written notice of its intent to change current product lines or services, Seller’s trade name, or the manner in which Seller accepts Cards. If First Data determines such a change is material to its relationship with Seller, First Data may refuse to process Transaction Data made subsequent to the change or terminate this Agreement. Seller agrees to provide First Data with prompt written notice if Seller is the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. Seller’s signature on this Agreement authorises First Data to perform any credit check deemed necessary with respect to Seller. Seller will also provide First Data with prompt written notice of (i) any adverse change in Seller’s financial condition, (ii) any planned or anticipated liquidation or substantial change the basic nature of Seller’s business, (iii) any transfer or sale of any substantial part (25% or more in value) of Seller’s total assets, or (iv) if Seller or Seller’s parent is not a company whose shares are listed on a national securities exchange or on the over-the-counter market, any change in the control or ownership of Seller or Seller’s parent. Seller will also notify First Data of any judgment, writ, warrant of attachment, execution or levy against any substantial part (25% or more in value) of Seller’s total assets not later than three (3) days after Seller obtains knowledge of any such judgment, writ, warrant of attachment, execution or levy.

7. Disclaimer; Limitation of Damages.

First Data will, at its own expense, correct any Transaction Data to the extent that such errors have been caused by it or by malfunctions of its processing systems. Under no circumstances will First Data’s financial responsibility for its failure of performance under this Agreement exceed the total fees paid to us under this Agreement (net of Network fees, third party fees, interchange, assessments, penalties and fines) for the six (6) months prior to the time the liability arose.

NEITHER FIRST DATA NOR SELLER’S LIABILITY: (A) FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; (B) FOR FRAUDULENT MISREPRESENTATION OR FOR ANY OTHER FRAUDULENT ACT OR OMISSION; (C) FOR BREACH OF ANY STATUTORILY-IMPLIED TERM AS TO TITLE TO GOODS SUPPLIED; OR (D) FOR ANY OTHER LIABILITY WHICH MAY NOT LAWFULLY BE EXCLUDED OR LIMITED, IS EXCLUDED BY THIS AGREEMENT, EVEN IF ANY OTHER TERM OF THIS AGREEMENT WOULD OTHERWISE SUGGEST THAT THIS MIGHT BE THE CASE.

EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, AND EXCEPT WITH RESPECT TO SELLER’S FAILURE TO COMPLY WITH THE SECURITY STANDARDS, IN NO EVENT WILL ANY PARTY, ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES, BE LIABLE FOR INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM ANY LOSS, THEFT, DISAPPEARANCE, OR DAMAGE TO DATA TRANSMITTED ELECTRONICALLY IN CONNECTION WITH THIS AGREEMENT.

FIRST DATA WILL NOT BE LIABLE (WHETHER FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE) FOR ANY: (A) LOSS OF PROFIT; (B) LOSS OF SALES, TURNOVER, REVENUE OR BUSINESS; (C) LOSS OF CUSTOMERS OR CONTRACTS; (D) LOSS OF OR DAMAGE TO REPUTATION OR GOODWILL; (E) LOSS OF OPPORTUNITY; (F) LOSS OF ANTICIPATED SAVINGS; (G) LOSS OF ANY SOFTWARE OR DATA; (H) LOSS OF USE OF HARDWARE, SOFTWARE OR DATA; (I) LOSS OR WASTE OF MANAGEMENT OR OTHER STAFF TIME; OR (J) INDIRECT, CONSEQUENTIAL OR SPECIAL LOSS, ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR IF THE PARTY WHICH WOULD OTHERWISE BE LIABLE FOR SUCH LOSS WAS ADVISED OF ITS POSSIBILITY (AND, FOR THE PURPOSES OF THIS SECTION, THE TERM “LOSS” INCLUDES A PARTIAL LOSS OR REDUCTION IN VALUE AS WELL AS A COMPLETE OR TOTAL LOSS).

8. Miscellaneous.

8.1 Application and Credit Check.

Seller represents and warrants that statements made on its Application for this Agreement are true as of the date of its execution of this Agreement. Seller’s signature on this Agreement authorises First Data to perform any credit check deemed necessary with respect to Seller.

8.2 Section Headings.

The section headings of this Agreement are for convenience only and do not define, limit, or describe the scope or intent of this Agreement.

8.3 Assignment.

First Data may assign this Agreement to an entity qualified under Network Rules to perform its obligations under this Agreement. Seller cannot assign or transfer your rights or delegate its responsibilities under this Agreement without First Data’s prior written consent. Failure to obtain such consent may result in a termination of this Agreement. Any permitted assignee or successor entity must provide such additional information and execute such additional documentation or take any further actions as First Data may request in order to ensure continued processing of Transactions under this Agreement.

8.4 Parties.

This Agreement binds Seller and its respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or any permitted assigns.

8.5 Severability and Survivorship.

Should any provision of this Agreement be determined to be invalid or unenforceable under any law, rule, or regulation, including any Network Rule, such determination will not affect the validity or enforceability of any other provision of this Agreement. Notwithstanding any termination of this Agreement, those terms that by their nature are intended to survive termination (including, without limitation, indemnification obligations and limitations of liability) shall survive.

8.6 Waivers.

No term or condition of this Agreement may be waived except pursuant to a written waiver executed by the party against whom such waiver is sought to be enforced.

8.7 Entire Agreement.

This Agreement represents the entire understanding between Seller and First Data with respect to the matters contained herein and supersedes and extinguishes any prior agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter, between the parties. For purposes of clarity, this Agreement does not supersede the Seller Agreement between Seller and Square or Seller and Square International Ltd. (a company incorporated in Ireland with company number 583287). The parties acknowledge and agree (a) that this Agreement applies only to Transaction Data generated within the United Kingdom; and (b) that this is a contract for commercial services. Seller agrees that in entering into this Agreement it has not relied on any statement of First Data or its representatives. Seller further agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

8.8 Notices.

Except as otherwise provided in this Agreement, all notices must be given in writing and either hand delivered, faxed, mailed first class, postage prepaid, sent via electronic mail transmission, or sent via overnight courier (and will be deemed to be given when so delivered or mailed), to the addresses set forth below or to such other address as either party may from time to time specify to the other party in writing.

8.9 Governing Law; Waiver of Jury Trial; Arbitration.

This Agreement will be governed by and construed according to English law and the Courts of England shall have non-exclusive jurisdiction unless your registered office or (in the case of partnerships, sole traders or other unincorporated associations) your principal place of business or if none your principal address for correspondence is in Scotland, in which case, your Merchant Agreement will be governed and construed according to Scots law and the Scottish Courts shall have non-exclusive jurisdiction.

8.10 Force Majeure.

Neither party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this Section 8.10 will affect or excuse your liabilities and obligations for Chargebacks, refunds, or unfulfilled products and services.

8.11 Amendment.

This Agreement may be amended at any time by First Data upon 30 days notice to you. Notwithstanding the foregoing, in the event the terms of this Agreement must be amended pursuant to a change required by the Network Rules or any third party with jurisdiction over the matters described herein, such amendment will be effective immediately and First Data shall notify you without undue delay of such an amendment. Your electronic signature or continued submission of Transactions to us following such notice will be deemed to be your acceptance of such amendment.

8.12 Tax Matters.

First Data and Square may be obligated to collect and report certain taxpayer information to Her Majesty’s Revenue and Customs (“HMRC”). Therefore, upon request, Seller shall provide Square and/or First Data with the appropriate taxpayer information. First Data or Square may, in accordance with applicable Law and from time to time during the term of this Agreement, request Seller to recertify its taxpayer information provided. Furthermore, Seller shall be responsible for any HMRC interest or penalties (or both) accruing based on the actions or inactions of Seller despite reasonable requests and/or notices from First Data.

9. Definitions.

“Application” is a statement of your financial condition, a description of the characteristics of your business or organization, and related information you have previously or concurrently submitted to us, including credit and financial information, to induce us to enter into this Agreement with you and that has induced us to process your Transactions under the terms and conditions of this Agreement.

“Card” is an account, or evidence of an account, authorised and established between a Customer and a Network, or representatives or members of a Network that you accept from Customers as payment for a good or service. Cards include, but are not limited to, credit and debit cards, stored value cards, loyalty cards, electronic gift cards, authorised account or access numbers, paper certificates and credit accounts.

“Card Information” is information related to a Customer or the Customer’s Card, that is obtained by Seller from the Customer’s Card, or from the Customer in connection with his or her use of a Card (for example a security code, a PIN number, or the customer’s post code when provided as part of an address verification system). Without limiting the foregoing, such information may include a the Card account number and expiration date, the Customer’s name or date of birth, PIN data, security code data (such as CVV2 and CVC2) and any data read, scanned, imprinted, or otherwise obtained from the Card, whether printed thereon, or magnetically, electronically or otherwise stored thereon.

“Chargeback” is a reversal of a Transaction you previously presented to First Data pursuant to Network Rules.

“Customer” is the person or entity to whom a Card is issued or who is otherwise authorised to use a Card.

“Insolvency Event” means (a) a meeting of creditors of that person being held or an arrangement or composition with or for the benefit of its creditors (including a voluntary arrangement as defined in the Insolvency Act 1986) being proposed by or in relation to that person; (b) a chargeholder, receiver, administrative receiver or other similar person taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of that person; (c) the Seller ceasing to carry on business or being deemed to be unable to pay its debts within the meaning of section 123 Insolvency Act 1986; (d) the Seller or the holder of a qualifying floating charge or any of its creditors giving notice of their intention to appoint, appointing or making an application to the court for the appointment of, an administrator; (e) a petition being advertised or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of that person; or (f) the happening in relation to that person of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.

“Network” is any payment method provider whose payment method is accepted by First Data for processing, including, but not limited to, Visa Europe Inc., MasterCard International, Inc., and other credit and debit card providers, debit network providers, gift card and other stored value and loyalty program providers. Network also includes the Payment Card Industry Security Standards Council.

“Network Rules” are the bylaws, rules, and regulations, as they exist from time to time, of the Networks.

“Security Standards” are all rules, regulations, standards or guidelines adopted or required by the Networks or the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Card Information, including but not limited to the Payment Card Industry Data Security Standards, Visa’s Cardholder Information Security Program, MasterCard’s Site Data Protection Program, Visa’s Payment Application Best Practices, the Payment Card Industry’s Payment Application Data Security Standard, MasterCard’s POS Terminal Security program and the Payment Card Industry PIN Entry Device Standard, in each case as they may be amended from time to time.

“Seller Agreement” is Square’s General Terms of Service together with the Additional Terms (as defined therein), including Square’s Payment Terms.

“Transaction” is a transaction conducted between a Customer and Seller utilizing a Card in which consideration is exchanged between the Customer and Seller.

“Transaction Data” is the written or electronic record of a Transaction, including but not limited to an authorisation code or settlement record.