China UnionPay Acquiring Services Merchant Terms and Conditions

China UnionPay Acquiring Services Merchant Terms and Conditions (March 2012) For enquiries please contact the Card Centre at: Telephone: +44 (0)20 7282 8994 Facsimile: +44 (0)20 7282 8959 Address: Email: Website: 1 Lothbury, London EC2R 7DB acquiring.uk@mail.notes.bank-of-china.com www.bankofchina.com/uk

1. Definitions and Interpretations Merchant Terms and Conditions We, Us, Our You, Your Agreement Business Day Card Cardholder Card Issuer Card Not Present Payment Card Payment CUP Face To Face Transaction Operating Instructions and Procedure Guides Payment Details Means Bank of China (UK) Limited including any business or other person We may transfer Our rights to under this Agreement. Means the person, people or organisation shown as the Merchant on the China UnionPay Acquiring Services Application Form or any agent or subcontractor We have approved. If two or more people are shown as the Merchant each of You is liable to Us individually as well as jointly. Means these Merchant Terms and Conditions, any Operating Instructions and Procedure Guides We provide from time to time and any additional service conditions You agree to. Means a day (excluding Saturdays, Sundays and public holidays) on which banks are open for general business in London and the People s Republic of China. Means any valid payment card which We approve. Means the person entitled to use the Card. Means a member of CUP or any other card scheme which We approve who has issued the Card to the Cardholder. Means a telephone order, mail order, electronic commerce transaction or any other Card Payment where neither the Card nor the Cardholder is present at the Merchant outlet. Means a payment for goods or services provided by You or supply of cash by You which the Cardholder has authorised You to charge to his or her Card account. The Cardholder may authorise You by using a Card or Card number or in some other way. Means China UnionPay Co. Limited, a company incorporated in the People s Republic of China with its registered office at 498 Guoshoujing Road, Pudong, Shanghai. Means any Card transaction made between a Cardholder and You where You have the Card present. Means the Operating Instructions and Procedure Guides which We give You including updates and replacements. For the avoidance of doubt, they include the rules and operating instructions issued by CUP and/or any other card scheme from time to time. Means details of a Card Payment. Page 1

Point of Sale Equipment Refund VAT Means the hardware, equipment, software and other electronic computer and telecommunications devices and equipment used by You to process any Face To Face Transaction. Means a refund given by You to Your customer on a Card Payment for credit to the customer s Card account. Means Value Added Tax and any other similar tax or duty. In the event of any conflict, the documents shall take effect in the following order of priority: these Merchant Terms and Conditions, the Operating Instructions and Procedure Guides and any additional service conditions. In this Agreement, references to any enactment shall be deemed to include references to such enactment as reenacted, amended or extended and any subordinate legislation made from time to time under it. 2. Card Types 2.1 We will only process Cards issued by a Card Issuer. 2.2 When You undertake a Card transaction You must follow the procedures described in the Agreement. 2.3 You undertake at all times strictly to observe and perform all Operating Instructions and Procedure Guides. 3. Acceptance of Cards 3.1 Subject to Clause 3.5, if offered by a Cardholder, You will accept payment by Card which You are authorised to accept for all goods and services that You supply. 3.2 You will not impose any financial limit in respect of Card transactions. Except for differences in price, You must treat purchases by Card in exactly the same way as cash purchases. 3.3 You will not accept Card Payments or process Card refunds other than for the genuine purchase of goods and/or services that You have supplied or the genuine cancellation of such transactions. 3.4 You may only accept Card Payments in respect of those goods and services which commonly fall within Your business as identified in the China UnionPay Acquiring Services Application Form. 3.5 You will not accept Card Payments in circumstances where We have notified You that the aggregate of payments due to be made by Us to You shall have exceeded such sum as We may from time to time notify You in writing shall apply as a limit. If You do so then, without prejudice to Our other rights arising from Your breach, the provisions of Clause 10.2 shall apply in respect of any amounts due over and above such limit (the Excess"). Any restriction upon the acceptance of Card Payments imposed pursuant to this Clause 3.5 shall continue to apply until such time as We shall notify You of its ending. 4. Authorisation 4.1 You must get authorisation from the relevant Card Issuer for all Card Payments. 4.2 You must cancel any authorisation for a Card Payment if You or the Cardholder decide not to go ahead straight away with the Card Payment. Page 2

4.3 Authorisation is not a guarantee of payment and it does not prevent Us from charging the Card Payment back to You if any of the reasons set out in Clause 15 apply. 4.4 In particular, You should be aware that accepting Card Not Present Payments is done at Your own risk and the Card Issuer will not offer any guarantee of payment. 5. Card Identification and Materials 5.1 You will only use such equipment and materials identified in the services detailed in the Agreement, or any other document, as have previously been approved by Us. Damage to or malfunction of equipment or materials resulting from the use of non-approved equipment and materials will be Your responsibility. 5.2 You will display prominently on each of Your premises, other trading venue or website the card and scheme identification, and any promotional literature supplied or approved by Us from time to time. 6. Data 6.1 If requested, You will give Us reasonable assistance to facilitate the successful collection and delivery of data relating to transactions between You and Cardholders (the Data ). We will assist You where We are able to gain access to the Data but reserve the right to make additional charges. 6.2 We accept responsibility for the Data You deliver to Us relating to transactions between You and Cardholders on receipt of it by Us. 6.3 In circumstances where Data is to be delivered to Us via Your nominated agent You accept responsibility for the collection, security, integrity and delivery of Data to Us in a medium and format agreed with Us. 6.4 In circumstances where You deliver Data to Us by way of a magnetic tape (or other similar medium) or by way of a direct communications link established between You and Us: 6.4.1 You accept responsibility for the collection, security, integrity, storage, security and delivery of the Data to Us in a medium and format agreed with Us; 6.4.2 We reserve the right to refuse to accept Data where the requirements specified in any instructions issued by Us from time to time are not satisfied in full and Our processing the Data shall not preclude Us from subsequently requiring its replacement, deletion or correction; 6.4.3 Our responsibility for Data applies only to Data successfully validated in accordance with any instructions issued by Us from time to time. 6.5 At all times while Data is in Your possession or control or that of persons acting for You, You will ensure that the Data is kept secure and is used only for the purposes of the Agreement and that all requisite provisions of the Data Protection Act 1998 are observed and performed with regard to it. 7. Terminals 7.1 You will operate and keep in good working order terminals (together with any software installed thereto) approved by Us for processing Card transactions (the Terminals ) and will facilitate upgrades to the Terminals as agreed between You and Us from time to time. You undertake that you will not make or permit any third party to make any changes to the Terminals including moving their location without Our prior written consent. Page 3

7.2 You hereby acknowledge and agree that We are not liable for any losses or damages which You or any third party may suffer or incur which in any way, directly or indirectly, relate to the quality or condition of the Terminals or Your use of the Terminals or any breakdown, delay, interruption, suspension or malfunctioning of the computer system, server or network used to process Card transactions. 8. Bank Account and Payments You will open and maintain a bank account with Us for the purposes of receiving payments from Us and making payments to Us. We shall be entitled to debit from the bank account without notice all sums due to Us by You (including any of the liability referred to in Clause 11). You will ensure that the bank account shall at all times have a credit balance at least equal to any amount We may notify You from time to time is required. 9. Fees and Charges 9.1 In return for Us providing You with the services detailed in the Agreement You will pay to Us on demand the fees and charges set out in the Merchant Service Charges which We shall be entitled to debit from Your bank account. Such fees and charges are agreed on the basis that We are the sole processor of all card transactions by You for the Card. 9.2 Unless stated otherwise, all fees, charges and other payments to be made by You under the Agreement are exclusive of VAT and any other relevant taxes and in addition to paying the fees, You will also pay any such taxes. 9.3 You agree to pay Us and We shall be entitled to debit Your bank account with the following items: 9.3.1 the agreed service charges for all Card transactions undertaken by You; 9.3.2 the amount of all Refunds made by You to Cardholders; 9.3.3 all overpayments made by Us; 9.3.4 all payments, charges and fees made by Us relating to invalid Card transactions as detailed in the Agreement; 9.3.5 all other sums payable by You under the Agreement; and 9.3.6 all sums charged back to You under the Agreement. 9.4 We may from time to time vary the fees set out in the Merchant Service Charges by giving You 60 days notice in writing. 10. Our payments to You 10.1 Our payments to You in respect of Card transactions shall not fall due until the occurrence of the later of the following: (a) the expiry of the number of days after the date of the relevant transaction which has most recently been agreed between Us and been confirmed to You by Us in writing; and (b) the expiry of any period of deferment which We may have stipulated pursuant to Clause 10.2 below. 10.2 At any time when: Page 4

10.2.1 the Agreement has terminated (for whatever reason); or 10.2.2 the following appear to Us to have occurred or arisen: (a) evidence of particular activities or trading practices to which We have not consented or to which We in Our absolute discretion consider disreputable; or (b) a change in circumstances relating to You or Your business; or (c) the withdrawal or loss of any security; or (d) a deterioration in or change to Your financial position; or (e) any grounds on which We may reasonably conclude any claim or action has been or may be threatened or commenced in connection with the Agreement; or (f) Your having exceeded the limit( if any) last notified to You; or (g) any of the circumstances set out in Clause 18.2; or (h) We in Our absolute discretion determine that Our relationship with Your business represents increased risk of loss or liability to Us, We shall be entitled to defer for such period as We shall in Our absolute discretion consider appropriate the date upon which Our payments to You in respect of Card transactions shall become due. This power is in addition to and separate from Our rights under Clause 11. 10.3 We shall be entitled at any time when: (a) We in Our absolute discretion determine that any of the circumstances set out in Clause 10.2 apply either generally or as regards a part of Your business or as to transactions of a particular description; or (b) We in Our absolute discretion consider that there are doubts as to the authenticity or validity of any transaction or group of transactions to defer for such period as We shall consider appropriate the date upon which Our payments to You in respect of any such Card transactions shall become due. This power is in addition to and separate from Our rights under Clause 10.2 above and under Clause11. 10.4 Whenever We offer to You or to Merchants or a particular category of Merchant generally any form of reward or incentive, such reward or incentive shall be deemed to have been offered on the basis that its payment is entirely at Our absolute discretion and that no person to whom it may be offered shall have any right or claim to it until it has been paid by Us. Furthermore, without prejudice to the generality of this provision, We shall in particular be entitled to withhold any such payment until We are satisfied that the claim for it is valid and made honestly and in good faith. 10.5 You shall not be entitled to any interest upon deferred payments or other compensation in respect of any period for which their payment may be deferred under this Clause 10. 10.6 Without prejudice to other provisions of the Agreement, Our payments to You in respect of any Card transactions shall only be made on a Business Day. Page 5

11. Set-Off In addition to any lien or right to which We may be entitled by law You hereby irrevocably authorise Us from time to time without notice and both before and after demand: 12. Security (a) to set-off the whole or any part of Your liabilities to Us under the Agreement or any other agreement (whether present, future, actual or contingent) against any of Your credit balances on any of Your accounts with Us or which are in Your name; and (b) if We are aware of any chargebacks, claims or any action in connection with the Agreement or We conclude that any such chargeback, claim or action may arise, to delay making any payment which would otherwise be due to You until either the liability is incurred when We will pay to You the balance of such sums after deducting the amount of the liability or until We are satisfied that no such liability will be incurred, or if such liability is in fact incurred You will promptly reimburse Us; and (c) to debit Your bank account with the amount of any liability which has or is likely to be incurred as identified in this Clause and exercising Our right to do so shall not prejudice any other rights or remedies We may have. 12.1 We may at any time by not less than twenty one days' prior written notice require You to procure that a person or persons stipulated by Us provides Us with a guarantee and/or indemnity in respect of Your obligations (including contingent obligations) from time to time under the Agreement. 12.2 We may at any time by not less than twenty one days' prior written notice require You to grant to Us, or procure the granting to Us of, security other than guarantees or indemnities and in such form and over such assets and free of or subject only to such other security interests and other rights as We shall require to secure to Our satisfaction the performance of Your obligations (including contingent obligations) from time to time under the Agreement. 12.3 We may exercise Our powers under Clauses 12.1 and 12.2 either to require additional security or to require the replacement of a previous security which has been withdrawn or which We for any reason require to be replaced. 12.4 Your failure to comply with any requirement made under this Clause 12 strictly in accordance with the relevant time limits shall constitute a breach of the Agreement. 13. Information from Us We will periodically send You a statement showing the amount due from You to Us which shall be conclusive unless it is inaccurate on the face of that statement. This statement will be compiled from Our records of all credits and liabilities between You and Us which We may then debit from Your nominated bank account. You agree that You do not require advance notice of the debit being made. 14. Information from You 14.1 If requested, You will provide Us, in the timescales We stipulate and at Your own expense, with such information as We may request from time to time (which shall include, but not be limited to, information from a Cardholder or in respect of any Card transaction). You agree to supply that information accurately in the form and manner requested by Us from time to time. It is Your responsibility to ensure timely delivery of such information to Us and We shall under no circumstances have any liability, nor be under any obligation to Page 6

allow extra time or any other indulgence to You, by reason (in whole or in part) of any delayed or failed delivery of such information to Us. 14.2 You will take all reasonable steps to assist Us in handling any claim or query raised by a Cardholder or a Card Issuer. 14.3 If requested, You will give Us reasonable assistance for the prevention and detection of fraud or other criminal activity in respect of the Card. Where We have a reasonable suspicion that a transaction is fraudulent or involves other criminal activity, We have the right to suspend the processing of that transaction or withhold payment to You of the amount of that transaction until the satisfactory completion of Our investigation. 14.4 To assess Your financial position throughout the term of the Agreement You will, on request: (a) provide Us with Your latest audited accounts and any other information We may require; and (b) provide Us with a status enquiry consent form in the form We require; and (c) permit or procure Us or Our duly authorised representatives to have access to any premises where Your business trades or where any of its records are for the time being situated, to examine all or any of such records and those of any other business which We consider is or may be connected to it, and to take and retain copies of all or any such records AND FURTHER shall provide to Us or procure that We are provided with honest and comprehensive answers to any enquiries We may make. 14.5 You will advise Us of any other agreement that You enter into concerning Your acceptance of Card transactions. 14.6 You will promptly advise Us in writing of any act, omission or error which: (a) does or may cause loss or damage to Us; or (b) does or may adversely affect Your ability to perform Your obligations under the Agreement; or (c) does or may adversely affect the security of the Data. 14.7 You will notify Us in writing, not later than 5 working days after the change, of any material change in the nature of Your business or in the goods and/or services supplied to Your customers and of any additional business commenced by You. 14.8 You will inform Us in writing and with all available detail, within one working day of becoming aware, of any actual or suspected violation or compromising of the security or integrity of any data at any time obtained or held by You. 15. Chargeback Rights 15.1 In certain circumstances Card Issuers are entitled to refuse to settle a Card transaction undertaken by You and presented to them by Us or to require repayment of sums already paid to Us in respect of a Card transaction. If the Card Issuer exercises its right to refuse settlement or to require repayment then, notwithstanding that an authorisation code may have been obtained from the Card Issuer, We will immediately be entitled to debit Your account or to otherwise recover from You by any means the amount paid by Us to You in respect of that transaction ("chargeback"). You acknowledge that You may be required to reimburse Us for chargebacks in all circumstances where You have accepted payment in respect of the relevant transaction and even if You are under no legal liability for the supply or performance of the goods or services concerned. Page 7

15.2 In addition, upon prior notification from Us, We may debit Your account to recover any other costs and expenses We may incur as a result of or in connection with any chargeback. 15.3 Chargeback may arise for a considerable period after the date of the relevant transaction. You, and any guarantor or security provider, should be aware that We remain entitled to recover chargebacks from a person who has provided Us with a guarantee or security in respect of all transactions which have occurred prior to the expiry of any notice from such guarantee or security provider to determine the respective guarantee or security in Our favour. 16. Transactions 16.1 Where We have agreed that You may enter into transactions where the Cardholder and/or Card are not present You agree to comply with all procedures in the Agreement relating to such transactions. 16.2 We can give You no assurance that any transaction, whether or not the Cardholder and/or Card are present will be honoured or that We will not exercise Our chargeback or other rights of reduction or set-off under the Agreement even where such transaction has been authorised. 17. Purchase with Cashback Where We have agreed that You may enter into Card transactions with a cashback facility, You agree to comply with all procedures in the Agreement relating to such transactions. 18. Term and Termination 18.1 The Agreement shall commence upon the date Your application is accepted by Us in writing and subject to the provisions of the Agreement, shall continue in force until terminated by one party giving to the other not less than 30 days notice to that effect. 18.2 We will be entitled to terminate the Agreement, any Card type which You may accept under the Agreement, the Cardholder not present service and/or the purchase with cashback service: 18.2.1 at any time with immediate effect by notice to You if You are in default by: 18.2.1.1 breaching the Agreement; or 18.2.1.2 failing to pay any amount under the Agreement on the due payment date; or 18.2.1.3 becoming insolvent or any step being taken for Your liquidation, bankruptcy, receivership, administration, dissolution or other similar action; or 18.2.1.4 making any arrangements with Your creditors generally; or 18.2.1.5 failing to notify Us in writing of any material change as required by the Agreement; or 18.2.1.6 anything happening to You or a matter being brought or coming to Our attention which We in Our absolute discretion consider may affect Your ability or willingness to comply with all or any of Your obligations or liabilities under the Agreement, or the occurrence of any other change in Your circumstances which We in Our absolute discretion consider material to the continuance of any of the facilities or services made available by Us to You; or Page 8

18.2.1.7 anything happening in relation to You or arising from Your business or its conduct which We in Our absolute discretion consider could damage Our reputation or that of our Merchants or any card scheme, could prove detrimental to Our business, or that may or does give rise to fraud or suspicion of fraud or other criminal activity; or 18.2.1.8 engaging in any activity which We have not approved in writing or in respect of which We have informed You (whether personally or by notice or within publications issued to Merchants generally, of which You shall be conclusively deemed to have knowledge) that We consider will or may put Us or Card Issuers at greater than normal risk of claim, loss or liability, which shall include, but not be limited to, Your conducting transactions on behalf of a third party provider of goods and/or services or other person without Our prior written consent. Our giving or withholding of approval and Our determinations under this Clause shall be given, withheld or made at Our absolute discretion; 18.2.2 if We are required to do so by a Card Issuer or card scheme; or 18.2.3 if We, become entitled by reason of default, insolvency or some other event to terminate any agreement or enforce any security with or from any member of any group of companies of which You form part. 19. Consequences of Termination 19.1 Termination of the Agreement will not affect the delivery of Data collected prior to termination. 19.2 If the termination is due to any events referred to in Clause 18.2 above all sales vouchers issued or presented after termination will be invalid. 19.3 You will immediately pay Us all amounts owed by You under the Agreement. 19.4 Notwithstanding any termination of the Agreement, the Agreement shall remain in full force and effect to the extent necessary to enable either party to enforce rights that had accrued, or relate to transactions conducted before, such termination or arising by reason of such termination. 20. Indemnity 20.1 You will indemnify Us against (a) all losses, costs, expenses, damages and liabilities incurred by Us directly or indirectly as a result of any claim brought against Us by a Cardholder, Card Issuer or other third party as a result of: (i) your breach of the Agreement; or (ii) your actions or omissions including but not limited to any misrepresentation by You or breach of any obligation or duty that You owe to a Cardholder; and (b) all fines and other charges or levies of any kind imposed on Us directly or indirectly in connection with the Agreement and which are wholly or partly attributable to Your use of the relevant Card and/or card scheme; and (c) on an indemnity basis, all legal and other costs, fees and expenses We may incur in or about the enforcement or attempted enforcement of the Agreement (which includes the recovery or attempted recovery of any sum owing to Us under the Agreement) or the protection of Our interests under the Agreement. Page 9

20.2 You agree that as between You and Us it is Your responsibility to prove to Our satisfaction that the debit of a Cardholder s account was authorised by the genuine Cardholder. 20.3 If a claim is brought against Us by a Cardholder, a Card Issuer or other third party We will be entitled to settle or otherwise deal with it at Our sole discretion. 20.4 If You are a partnership, each partner will be jointly and severally liable under the Agreement. 21. Liability 21.1 Except in respect of death or injury resulting from Our negligence, Our cumulative liability for any loss or damage, direct or indirect, arising from any cause shall be limited to the cost to Us of reprocessing any transactions which have been processed by Us other than in accordance with the provisions of the Agreement. 21.2 Except in respect of death or injury resulting from Our negligence, We shall not be liable, in contract, tort or otherwise: 21.2.1 for any increased costs or expenses; or 21.2.2 for any loss of profit, business, contracts, goodwill, data, revenues, or anticipated savings; or 21.2.3 for any special, indirect or consequential damage of any nature whatsoever; resulting from any act or omission whatsoever on Our part or on the part of Our agents, sub-contractors or any other person authorised by Us. 22. Variation On notification to You, We may from time to time vary the terms of the Agreement. Any such variation shall become effective upon Us giving You at least thirty days written notice. In circumstances where the variation is in respect of fees or charges (other than a variation occasioned by an increase in the rate of VAT) or constitutes a material variation to the Agreement then You shall be entitled to terminate the Agreement upon thirty days written notice provided that such notice is served upon Us within thirty days of You receiving the notice of variation. 23. Confidential Information 23.1 You will ensure that no confidential information that You may acquire by virtue of the Agreement is disclosed to any third party except as permitted under the Agreement. 23.2 You will not without the prior written consent of a Cardholder or as required by the Agreement provide or otherwise disclose any information relating to the Cardholder or his/her use of a Card to any third party unless the disclosure is required by law. 23.3 You will not without Our prior written consent compile or use any list of Cardholders or Card numbers or other information relating to the Card or the relevant card scheme except where permitted or required by the Agreement. 23.4 You will not, without Our prior written consent, use or disclose information relating to Our business, howsoever obtained and in whatsoever form the information shall take, to any third party (other than Your agents for the sole purpose of assisting You to complete or enforce transactions and Your insurers and professional advisers) unless such disclosure is required by law. Page 10

24. Assignment, Agents and Sub-Contractors 24.1 The Agreement is personal to You and You may not assign it or transfer it or any of Your rights under it. If You are an individual, the Agreement will be binding upon Your personal representatives. 24.2 You may only use an agent or sub-contractor with Our prior written consent and We may withdraw that consent at any time. If You do use an agent or sub-contractor, You will remain responsible for complying with the terms of the Agreement as though You were not using such agent or sub-contractor. 24.3 You will be liable to Us for the acts or omissions of: 25. Waiver (a) any agent or subcontractor, whether or not used with Our consent; and (b) any subsidiary companies; and (c) any employee or agent of any such person, in or about the performance of the Agreement or in connection with any transaction thereunder or any matter associated with any such transaction. No failure or delay by Us in exercising Our rights under the Agreement shall be construed as a waiver or release of that right unless otherwise agreed in writing by Us. 26. Force Majeure We shall not be liable for any delay or failure to carry out any of Our obligations under the Agreement if such failure is due to circumstances beyond Our direct control. 27. Disclosure We may disclose information concerning You to third parties for use in fraud prevention programmes for the purpose of assisting any third parties in identifying merchants involved in, amongst other things, fraud or suspected fraud, insolvency, and any other such matter which would assist Us and other third parties in their efforts to prevent fraud. We may also disclose information concerning You to law enforcement bodies where We suspect that fraud or other criminal activity may have occurred. You agree that providing We have acted in good faith We shall have no liability to You for any inaccuracy in the information We provide to others pursuant to this Clause 27. 28. Governing Law and Jurisdiction The Agreement shall be governed and construed in accordance with English law. We both agree to submit to the exclusive jurisdiction of the courts of England. 29. Notices 29.1 Any written notice may be delivered in person or sent by first class post to: - (a) You at the address stated in the China UnionPay Acquiring Services Application Form or as shown updated in Our records following notification from You from time to time; Page 11

(b) Us at 1 Lothbury, London EC2R 7DB. 29.2 Notices and any other correspondence shall be deemed duly given or received 48 hours after posting or immediately if delivered in person. 30. Entire Agreement The Agreement supersedes and invalidates all other prior representations, arrangements, understandings and agreements (whether made orally or in writing) relating to the subject matter of the Agreement. 31. Severability If any provision of the Agreement is, or becomes, invalid or illegal that provision shall be treated as deleted from the Agreement and the remaining terms will continue in force. 32. Exclusion of third party rights Neither We nor You intend that by virtue of the Contracts (Rights of Third Parties) Act 1999 any of the terms of the Agreement should be enforceable by another person. Page 12