Merchant Agreement
Definitions
In these Terms:
1. Business Day means any day that is not a Saturday, Sunday or public holiday in Switzerland.
2. Customer means a natural person who enters into a Transaction with the Merchant and uses the PLIM Services.
3. Customer Credit Agreement means the agreement between the Customer and PLIM for the provision of credit using the PLIM Services in order to enable the Customer to pay for Merchant Services.
4. Fees, also referred to as a discount, means the non-refundable amount that a Merchant must pay to PLIM for each Merchant Service where the Customer pays for that Merchant Service, in whole or in part, using the PLIM Services.
5. PLIM Services means the provision of an online platform and an application through which a Customer may apply, under a Customer Credit Agreement, to pay for goods or services from Merchants.
6. Transaction means the transaction concluded (or planned) between a Customer and a Merchant in which the Customer purchases goods and/or services from the Merchant and wishes to pay the amount payable to the Merchant, in whole or in part, on credit under a Customer Credit Agreement.
7. Transaction Value means the amount (including VAT, where applicable) that the Customer must pay to the Merchant in respect of a Transaction (and, where the Customer pays the value of that Transaction in instalments under a Customer Credit Agreement, the amount of that instalment). For the avoidance of doubt, the Transaction Value includes the total amount that the Customer must pay for all purchases and fees that make up a Transaction.
Services
8. PLIMPortal AG operates under the brand name "PLIM" and acts exclusively as an intermediary by providing an online platform and an application (the "Platforms") in order to render PLIM Services in connection with the conclusion of a Transaction by the Customer and the purchase of the services provided by the Merchant (the "Merchant") (the "Services").
9. In consideration of (i) receiving the Fees from the amounts payable by Customers to the Merchant in respect of a Transaction; and (ii) the Merchant's performance of all other obligations contained herein, PLIM makes the relevant PLIM Services available to the Merchant, which (unless otherwise agreed) comprise a non-exclusive, non-transferable and fully revocable licence to use the Platforms.
10. The Merchant uses the application and provides the Merchant Services using the standards, practices, methods and procedures that comply with applicable laws, exercising the degree of skill and care, diligence, prudence and foresight that can reasonably and customarily be expected of a qualified and experienced person engaged in a similar undertaking under the same or similar circumstances.
11. The Merchant's customers must be registered on the Platforms in order to use the PLIM Services, in particular in order to enter into a Customer Credit Agreement.
12. PLIM gives no warranties in respect of the Platforms. The Merchant's use of the Platforms is entirely at its own risk. The Platforms are provided "as seen" and "as available".
13. In order to make the PLIM Services available to a Customer, the Merchant must either:
I. access the Platforms; or
II. with PLIM's prior written consent, make the PLIM Services available to the Customer via the Merchant's own website or physical location and inform the Customer of the price and other details of the Transaction. In doing so, the Merchant agrees that it is making an irrevocable offer to the Customer to complete the Transaction on the basis of the payment details provided by the Merchant, subject to approval of the Customer's credit application.
14. The Customer cannot make the Transaction binding between the Merchant and the Customer until the Customer's credit application is approved. Once the credit application has been approved by PLIM, PLIM notifies the Customer and the Merchant. The Merchant acknowledges and agrees that it will complete the Transaction with the Customer and provide that Customer with the Merchant Services once it receives confirmation from PLIM that the Customer's credit has been approved.
Reporting and Payment Process
15. PLIM pays the Merchant an amount equal to the Transaction Value less the Fees (plus VAT), which are deducted by PLIM at the time the Transaction is settled with the Merchant.
16. The Merchant agrees to accept the amount payable by PLIM under clause (15) as full and final payment of the Customer's payment obligations (or partial payment obligations, where applicable) in respect of the Transaction.
17. If the Merchant receives notice from PLIM that a Customer's credit application has not been approved, the Merchant is free to agree other payment terms with the Customer in respect of the relevant Transaction.
18. PLIM may adjust the Fees and charges payable by the Merchant. Such adjustments will be notified to the Merchant in writing (including by email) on at least 30 days' prior notice and apply only to Transactions activated after the expiry of that period; for Transactions already activated, the Fees in force at the time of activation remain applicable. If a material Fee increase is not economically sustainable for the Merchant, the Merchant may terminate this agreement extraordinarily within 30 days of the notice, with effect from the date on which the change takes effect.
19. The Merchant acknowledges and agrees that, in connection with the Merchant Services paid for via the PLIM Services:
I. it may not charge a Customer any additional fees or other amounts (including, for example, higher prices for the Merchant Services) for using the PLIM Services to pay for the Merchant Services; and
II. PLIM is not entitled to demand any payment from the Customer, regardless of whether PLIM makes any payment to the Merchant in respect of that Transaction.
III. Prohibition of adding PLIM fees - Under no circumstances may Merchants add PLIM-related fees, costs or surcharges to invoices issued to their customers. The BNPL offered by PLIM is strictly 0% interest and free of charge, ensuring fairness and transparency for customers. Any attempt to include PLIM fees or associated costs in Merchant invoices constitutes a breach of this agreement. In addition, PLIM may report such practices to the competent authorities if it establishes breaches of this provision. Merchants who breach these rules risk legal consequences and termination of their agreement with PLIM.
IV. PLIM will pay the amount owed under clause (15) (Transaction Value less Fees) into the Merchant's Stripe account within 10-12 Business Days of the Customer's payment for the requested BNPL.
20. PLIM may refuse or withhold payment of amounts for Merchant Services to the Merchant, to the extent and for as long as it is established, in the exercise of its dutiful discretion on the basis of specific, comprehensible and documented indications, that:
I. the Customer does not exist or denies being aware that the Merchant is providing the Merchant Services;
II. the Customer, in good faith (together with the relevant evidence), asserts a defence, claim, set-off or counterclaim in respect of the Merchant Services;
III. a case of fraud exists;
IV. the Merchant fails to comply with this agreement or another reasonable instruction of PLIM in relation to the PLIM Services and PLIM suffers loss as a result;
V. the Merchant Services were provided in a manner designed to circumvent its obligations (for example, payment of the Fees) under the agreement;
VI. the Merchant Services do not comply with applicable law.
A withholding is limited to the specific amount affected; undisputed amounts remain due for payment. A mere unsubstantiated defence by a Customer, or an unsubstantiated suspicion, is not sufficient. PLIM bears the burden of proof for the existence of the indications, notifies the Merchant in writing of the reason for the withholding without delay, and gives the Merchant an opportunity to comment. PLIM releases the withheld amount without delay, and at the latest within ten (10) Business Days, as soon as the relevant indications have been dispelled or are not substantiated.
21. In respect of all Merchant Services that a Customer obtains via the Platforms, PLIM acts as the Merchant's agent and is hereby appointed as such in order to collect and process payments on the Merchant's behalf. Nothing herein, however, prevents or limits the Merchant's full responsibility and liability for the provision and performance of Merchant Services to Customers.
22. If, after the commencement of a Customer Credit Agreement, the Merchant and the Customer agree an adjustment of the Transaction Value, and if, as a result of that adjustment, PLIM has overpaid the Merchant under an existing Customer Credit Agreement or will overpay, the Merchant is obliged to take the following steps without delay (and in any event within two Business Days of becoming aware of such overpayment):
I. to inform PLIM of the overpayment;
II. to issue PLIM a new invoice for the correct Transaction Value ("revised Transaction Value"); and
III. to refund PLIM the amount of the overpayment.
23. Upon receipt of an invoice for the revised Transaction Value, PLIM sends the Customer a new Customer Credit Agreement in respect of the revised Transaction Value. Upon receipt of the new Customer Credit Agreement signed by the Customer, the existing Customer Credit Agreement is terminated.
24. The Merchant is obliged, during the term of this agreement and for a period of three (3) years thereafter, to keep accurate and complete books and records containing correct and appropriate information on all Transactions carried out by the Merchant or its affiliated companies, all payments received in the course of those Transactions and all amounts received from PLIM in connection with those Transactions.
25. On at least ten (10) days' prior written notice, PLIM and its representatives may, at their own cost and where there are specific ambiguities or irregularities regarding the accounting, audit the Merchant's books and records that must be kept under clause (24) no more than twice per year, and solely for the purpose of verifying that PLIM was notified of, and paid, the correct Transaction Values and that the correct Fees were deducted from those Transaction Values. Should such an audit reveal that PLIM has overpaid the Merchant for the audited period ("payment error"), the Merchant will refund PLIM any overpayment within fourteen (14) days of receiving notice of a confirmed payment error. The right of inspection extends only to the documents relevant to the accounting and only to the extent necessary for the verification. Data protection, patient confidentiality, medical secrecy and the Merchant's other professional obligations are to be observed at all times; patient data is, as far as possible, disclosed to the auditing party only in anonymised or pseudonymised form.
26. Merchant acknowledges and agrees that the refund policy of PLIM takes precedence in the case of a Customer requesting a refund within the 21-day refund policy of PLIM.
Suspension and Termination
27. In the event of a breach or continued breaches or poor performance on the part of the Merchant, PLIM has the unrestricted right, at its own discretion, to suspend the Merchant by excluding the Merchant from the Platforms until the Merchant agrees in writing to correct and/or remedy its breaches and/or performance.
28. Either party may terminate this agreement by written notice to the other party on at least one hundred and twenty (120) days' notice.
29. PLIM may terminate this agreement without notice if the Merchant materially breaches an obligation imposed on it by this agreement, has been warned, and the Merchant fails to remedy that breach to PLIM's satisfaction within three (3) days of receipt of the warning.
30. Upon termination of this agreement, the following applies:
I. all hardware must be returned to PLIM in fully functional condition (normal wear and tear in the form of scratches is accepted);
II. the authorisations granted to the Merchant lose their validity and the Merchant must cease using or making use of PLIM's intellectual property; and
III. PLIM has the immediate right to block the Merchant and remove it from the Platforms, so that no further orders can be placed and/or the Merchant ceases to provide the PLIM Services.
31. All Fees payable to PLIM in connection with a Transaction completed before termination of this agreement remain owed, and PLIM is entitled to deduct these Fees from the payments received from Customers.
32. Neither PLIM nor the Merchant is liable for indirect, incidental or consequential damages (including loss of profit), even if they have been advised of the possibility of such losses or damages.
33. Any liability arising out of or in connection with a breach of the agreement may not exceed the amount equal to the amount the Merchant has paid to PLIM for the period of three (3) months prior to the date of termination, and which is payable by the party in breach to the injured party.
34. The liability of the parties towards the other party is neither excluded nor limited:
I. under the indemnities granted in this agreement;
II. for death or personal injury caused by negligence;
III. for fraud;
IV. for fraudulent misrepresentation; or
V. for any other matter for which an exclusion or limitation of liability would be unlawful.
Indemnification
35. The Merchant indemnifies (i) PLIM and its subsidiaries, affiliated companies and their respective officers, directors and employees; and (ii) PLIM's customers against any actions, proceedings, liabilities, claims, demands, losses, damages, fees, costs and expenses of any kind (including, but not limited to, property damage, personal injury or death) that relate to or arise in connection with the Merchant Services provided (or not provided) or acts (or omissions) of the Merchant or any person acting on its behalf (other than PLIM), including, but not limited to, claims relating to data protection laws, Merchant Services or a Transaction. This clause survives termination or expiry of this agreement.
36. The Merchant acknowledges that PLIM enters into this agreement for its own benefit but also as agent for and on behalf of all of its officers, directors and employees (each an "indemnified third party" and together the "indemnified third parties"), and that the rights set out in respect of the indemnification are rights and benefits of each of those indemnified third parties (as if they were in each case a party to this agreement in their own right). These rights are enforceable under this agreement by PLIM as agent of each of those indemnified third parties. Notwithstanding the foregoing, the Merchant and PLIM may agree in writing to amend any provision of this agreement without the consent of any of the indemnified third parties, even where such amendment affects or will affect the rights to which an indemnified third party is entitled hereunder.
Customer Data
37. For the purposes of this clause, the terms "controller", "processor", "personal data", "process" and "processing" have the meaning assigned to them under the Data Protection Act.
38. PLIM and the Merchant acknowledge that, for the purposes of the Data Protection Act, PLIM is the controller and the Merchant is the processor of all of the Customer's personal data, including special categories of personal data, collected via the Platforms. PLIM processes personal data, including the data of Customers and the Merchant, in accordance with its privacy policy, available at https://plimportal.com/privacy-policy.
39. The Merchant may use the Customer's personal data collected via the Platforms exclusively for performing the Merchant Service requested by the Customer.
40. The Merchant may collect the Customer's personal data separately and directly itself (for example, where Customers have booked Merchant Services other than via the Platforms or PLIM Services and the Merchant has obtained the Customer's permission separately and directly to use their data). In that case, the Merchant is, in respect of that data, the controller of the Customer's personal data within the meaning of the Data Protection Act.
41. Where the Merchant processes the Customer's personal data as processor for PLIM (e.g. personal data on the Platforms), the Merchant is obliged:
I. to process the personal data exclusively in accordance with PLIM's instructions (which may be specific instructions or instructions of a general nature);
II. to comply with all applicable data protection laws in Switzerland, including the Federal Act on Data Protection (FADP);
III. to process the personal data only to the extent and in the manner necessary, or as required by law or by a supervisory authority;
IV. to comply without delay with any requests from PLIM that require the amendment, transfer or deletion of the personal data;
V. to take appropriate technical and organisational measures to protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure;
VI. to take all reasonable steps to ensure the reliability of its employees and agents who may have access to the personal data, and to ensure that those employees and agents (a) are informed of the confidentiality of the personal data; and (b) have been trained in the laws governing the handling of personal data;
VII. not to cause or permit the publication, disclosure or passing on of the personal data, or its transfer to third parties or abroad (in particular to a state without adequate data protection within the meaning of the FADP), without PLIM's prior consent; and
VIII. to inform PLIM within one (1) Business Day of any possible data protection breaches, or where it receives a complaint, notice or communication relating directly or indirectly to the processing of the personal data or to compliance with the Data Protection Act and the data protection principles set out therein by either party, and to cooperate with and support PLIM fully in respect of such complaints, notices or communications.
Complaints
42. PLIM forwards to the Merchant all Customer complaints relating to the Merchant Services that it receives. The Merchant acknowledges all complaints and responds to the relevant Customer within seventy-two (72) hours of the complaint being received by the Merchant (whether the complaint was received directly from the Customer or via the Platforms).
43. The Merchant makes every effort to reach a resolution of all complaints within fifteen (15) days and must inform PLIM of any correspondence between the Merchant and the Customer regarding the complaint and keep PLIM generally informed of the progress and status of the complaint.
44. Customer reviews: The Merchant acknowledges and agrees that the Platforms may contain a review platform on which Customers may publish publicly visible reviews about their experiences with PLIM and the Merchant (in particular in relation to the Merchant Services) ("user-generated content"). The Merchant acknowledges that user-generated content may contain negative reviews and/or feedback from Customers. The Merchant may have the opportunity to respond to reviews about it where it is the subject of user-generated content. The Merchant undertakes that all content it publishes in response to user-generated content is polite and professional and not threatening or confrontational, and may be removed or amended at PLIM's sole discretion where PLIM considers this appropriate. The Merchant has no right to any remedy (including, without limitation, a right to terminate this agreement) on account of user-generated content in which the Merchant is named or referred to.
45. If the Merchant reasonably considers that user-generated content defames it or another person or otherwise infringes a person's legal rights, the Merchant must report that user-generated content to PLIM without delay. In such a case, PLIM reviews it and takes, at its own discretion, any measures it considers necessary or desirable (including, for example, the removal or amendment of the relevant user-generated content). This is in addition to any legal rights the Merchant may have against the person or persons who created the user-generated content.
Merchant Warranties
46. The Merchant acknowledges and agrees that it:
I. may promote the PLIM Services only for as long as it is registered as a Merchant on the Platforms;
II. may permit a Customer to use the PLIM Services to pay for a Transaction in instalments;
III. has the right to refuse a Customer's request to use the PLIM Services to pay for a Transaction;
IV. acknowledges that PLIM may from time to time add other persons as Merchants on the Platforms, including persons whose businesses compete with the Merchant's business.
47. The Merchant provides, at its own cost, all personnel, equipment, tools, devices, materials or items required for the provision of the Merchant Services.
48. The Merchant undertakes to comply with all applicable laws, regulations and rules in performing its obligations and providing the Merchant Services.
49. The Merchant will inform PLIM without delay of any actual or potential problems that impair or may impair its ability to provide the Merchant Services.
50. The Merchant is prohibited from copying, altering, publishing, distributing, reverse-engineering, creating derivative works from, or otherwise infringing, misusing or misappropriating PLIM's intellectual property, including patents, copyrights, trade secrets, trademarks, trade names, service marks, proprietary methods, procedures and processes, and know-how.
51. The Merchant may not permit third parties (including the Merchant's group companies) to use or access the Platforms without first obtaining PLIM's written consent (which may be granted at PLIM's discretion).
52. The Merchant provides PLIM with all marketing information, documents, photos or other materials (including, but not limited to, the Merchant's name, logo and other brand features and intellectual property rights) ("Merchant Content") that PLIM may request from time to time for inclusion on the Platforms for the purpose of providing the PLIM Services, including informing Customers that they may use PLIM Services when purchasing the Merchant Services.
53. The Merchant warrants that all Merchant Content that it supplies to PLIM in connection with this agreement and/or publishes on the PLIM website or in the application (or makes available to PLIM for publication) is accurate in all material respects and does not infringe the rights of other persons (including intellectual property rights) or is not defamatory, unlawful, offensive, threatening or pornographic or otherwise contrary to general standards of taste and decency.
54. The Merchant hereby grants PLIM the right:
I. to use and publish the Merchant Content in connection with the provision of PLIM Services;
II. to remove, edit, shorten or otherwise amend Merchant Content published on any pages, in particular where, in PLIM's opinion, such Merchant Content does not comply with the warranties or otherwise breaches the terms of this agreement; and
III. to use search-engine optimisation services and other mechanisms that embody, incorporate or quote the trade name or the trademarks used (in whole or in part).
IV. The Merchant warrants, represents and undertakes to obtain all licences, consents, approvals and insurance that are either necessary or reasonably advisable for the Merchant in relation to all of its business activities and its personnel (but in particular in connection with the provision of Merchant Services).
Confidentiality
55. The parties undertake to treat all confidential information in connection with this agreement as confidential and to make all reasonable efforts to prevent their employees and representatives from disclosing any matters connected herewith to anyone.
56. Paragraph (54) does not apply to the disclosure of confidential information that is required under applicable law:
I. that is reasonably required by persons engaged by a party to perform that party's obligations under this agreement;
II. where a party can demonstrate that such confidential information is already generally available and publicly accessible, for a reason other than as a result of a breach of this agreement;
III. by either party, of a document to which it is a party and which the parties to this agreement have agreed contains no confidential information;
IV. that was already lawfully in the possession of the receiving party before it was disclosed by the disclosing party; and
V. by either party in connection with this agreement, and in respect of which the other party has previously consented in writing to disclosure.
57. The Merchant will not make any announcements or promotional statements in relation to PLIM, this agreement or its subject matter without PLIM's prior written consent (except where required by law or by a legal or regulatory body).
Assignment
58. The Merchant is not entitled, without PLIM's prior written consent, to assign, transfer, sub-license or encumber some or all of its rights and obligations under this agreement.
59. PLIM is entitled to assign or sub-license its rights and obligations under this agreement, in whole or in part, at any time, without PLIM needing to obtain the Merchant's consent. PLIM will inform the Merchant of any such assignment as soon as possible. An assignment or sub-licensing by PLIM takes place only while safeguarding contractual confidentiality, data protection and the applicable statutory requirements.
Notices
60. All communications under this agreement must be in writing and delivered by personal delivery or by sending by prepaid registered post or recorded delivery to the address and for the attention of the relevant party (or as otherwise notified by that party herein). Such communication is deemed to have been received:
I. in the case of personal delivery, at the time of delivery; and
II. in the case of a registered or recorded-delivery item, forty-eight (48) hours after the day of posting, provided that, where receipt occurs before 9.00 a.m. on a Business Day, the communication is deemed received at 9.00 a.m. on that day, and where receipt occurs after 5.00 p.m. on a Business Day or on a day that is not a Business Day, the communication is deemed received at 9.00 a.m. on the next Business Day.
61. For the purposes of this clause, the addresses of the parties are those specified at the beginning of this agreement, or such other address as is notified in writing from time to time by the relevant party to the other party.
62. General: (i) In the event of conflicts regarding the terms or matters dealt with herein, the parties cooperate and attempt to resolve such conflicts by mutual agreement; (ii) PLIM may amend this agreement by notice to the Merchant; purely administrative, technical or legally or regulatorily required adjustments take effect on reasonable prior notice; for economically or legally material changes to the Merchant's detriment, PLIM informs the Merchant at least 30 days in advance, and the Merchant may reject such changes within that period and terminate the agreement extraordinarily with effect from the date on which the change takes effect; (iii) if a term of this agreement is held to be unlawful, invalid or unenforceable, that term shall be amended to the greatest possible extent in order to make it lawful, valid or enforceable or to give effect to the intention of the parties; and (iv) PLIM and the Merchants are independent contractors.
63. The provisions contained herein shall not be construed as creating any relationship of principal and agent, employer and employee, partners or joint-venture partners between the parties.
64. Without prejudice to the Merchant's obligations and liabilities under this agreement, the Merchant must, during the term of the agreement and for a period of two (2) years thereafter, maintain with a reputable insurance company all statutorily required insurance policies sufficient to cover the losses and risks appropriate to the industry in which the Merchant operates, including those that may arise under or in connection with this agreement, and must, at PLIM's request, provide the insurance certificate with details of the insurance cover. The obligation to take out insurance does not in any way limit, extend or modify the liability or obligation that the Merchant assumes under this agreement.
65. Each party agrees and undertakes not, at any time, to publish or communicate any defamatory or disparaging remarks, comments or statements about the other party or its business or its employees, officers or directors, to natural or legal persons or in public forums.
66. The failure to exercise, or delay in exercising, a right or remedy provided under this agreement or by law does not constitute a waiver of that right or remedy or a waiver of any other rights or remedies. A waiver of the right to assert a breach of any of the provisions of this agreement or a default under this agreement does not constitute a waiver of the right to assert any other breaches or defaults and does not affect the other provisions of this agreement. A waiver of the right to assert a breach of any of the provisions of this agreement or a default under this agreement does not prevent a party from subsequently requiring compliance with the waived obligation. The rights and remedies provided for in this agreement are cumulative and (subject to any provision to the contrary in this agreement) do not exclude any rights and remedies provided by law.
67. This agreement constitutes the entire arrangement and understanding between the parties and supersedes all prior agreements between the parties in relation to the subject matter of this agreement.
68. If a provision of this agreement is held by a competent court or competent administrative authority to be invalid or unenforceable, such invalidity or unenforceability does not affect the remaining provisions of this agreement, which continue in full force and effect.
69. Should a provision of this agreement be held to be invalid or unenforceable, but would be valid or enforceable if part of that provision were deleted, the relevant provision applies with the amendments necessary to make it valid and enforceable.
Governing Law and Jurisdiction
70. This agreement and any disputes or claims (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation are governed by and construed in accordance with the law of Switzerland.
71. Each party irrevocably agrees that the courts of Switzerland have exclusive jurisdiction to settle any disputes or claims (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation. The place of jurisdiction is the registered office of PLIMPortal AG.
