Merchant Agreement
General Terms
Version 5 | August 2022
Suite 135, 16/F, Tower 5, The Gateway
Harbour City, Tsim Sha Tsui
Kowloon, Hong Kong SAR
China
Merchant Agreement | General Terms
2 | Fiserv Confidential
This document sets out the standard terms and conditions for First Data Merchant Solutions (Hong Kong)
Pte Ltd (Registration No: 1042361) (Fiserv) to provide acquiring services to the Company.
This Merchant Agreement is comprised of
1. The Collection Statement;
2. These General Terms;
3. The Merchant Application Form (the Application) signed by the Company; and
4. The RAM Terms of Use.
(Together, the Agreement or Merchant Agreement).
If there are any inconsistencies, the document higher in the list will prevail to the extent of
such inconsistency.
1. Acquiring Services
Fiserv will acquire the Company’s electronic transactions for payment organisations and networks identified
below (Acquiring Services).
1.1 Networks
Fiserv will provide the Company with Acquiring Services for the following Networks: Visa, MasterCard,
UnionPay International, Japan Credit Bureau, Diners and Discover, as selected in the Application, or agreed
by the Parties in writing (collectively, the Networks).
1.2 Additional Card Acquiring Services
a. Additional Cards. Fiserv will provide the Acquiring Services to the Company also for its transactions
that are initiated with Cards issued by additional networks (other than those falling under clause 1.1) that
are identified in this Agreement (Additional Card Networks). A Card is a card, code, device, or other
means allowing access to a credit, debit, prepaid, stored value, or similar account. An Additional Card
is a Card issued by American Express Company (or its affiliates), a Card listed as an “Additional Card”
in the Application and others as agreed.
b. Additional Card Network Agreements. Payment transactions for Additional Cards are subject to
separate agreements (Additional Card Network Agreements) between the Company and (i) the
Additional Card Networks, or (ii) third-parties duly authorised to provide acquiring services for Additional
Cards (Third-Party Additional Card Acquirer). The Company will comply with the terms of its
Additional Card Network Agreements and obtain any consents required by these Additional Card
Networks to submit Additional Card transactions to Fiserv for processing. The Company will promptly
notify Fiserv if any of its Additional Card Network Agreements expire or terminate. Fiserv will not be
obligated to process the Company’s Additional Card transactions if the Company does not have an
effective Additional Card Network Agreement with the applicable Additional Card Network. Fiserv has
no responsibility to the Company for an Additional Card Network’s (or Third-Party Additional
Card Acquirer’s) performance obligations, responsibilities, or liabilities to the Company under or
in connection with their Additional Card Network Agreements.
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c. Processing. Fiserv will only provide the Company with data capture and authorisation processing
services for transactions initiated with Additional Cards; Fiserv will not provide settlement services for
the Additional Card Networks. Fiserv will submit settlement files or data for Additional Card transactions
to the appropriate Additional Card Networks or Third-Party Additional Card Acquirer on behalf of the
Company. Additional Card transactions will be settled directly between the Company and the
corresponding Additional Card Network or Third-Party Additional Card Acquirer according to their
Additional Card Network Agreements.
d. Additional Card Network Rules. The Company will comply with all applicable rules, requirements and
standards of each of the Additional Card Networks and Third-Party Additional Card Acquirer (together,
the Additional Card Network Rules).
1.3 Network Rules and Industry Regulations
The Company will comply with all rules, requirements and standards of each of the Networks (together,
Network Rules) and any regulations, requirements and standards issued by a governmental authority or
industry body (together, Industry Regulations). The Company acknowledges that it has access to Fiserv’s
payment acceptance guide (Payment Acceptance Guide), which may be updated from time to time, can be
found on the Fiserv website and will assist the Company with properly accepting and submitting its
transactions for processing, but is not part of this Agreement. Under Network Rules, the Company does not
own the Card account, Cardholder, personal, or other payment transaction information generated when a
Card transaction is processed using the Acquiring Services. The Company will not use, retain, disclose, sell,
or disseminate any Card or Cardholder information (including, names, addresses and Card account
numbers) obtained in connection with payment transactions except for (1) authorising, processing and
settling transactions; or (2) resolving chargebacks, retrieval requests, or similar issues related to its
transactions. The Company will not reproduce electronically captured Cardholder signatures except as
requested by Fiserv or the Networks. A Cardholder is the individual who was issued a Card.
1.4 Locations
The Company must be domiciled in Hong Kong as required by applicable Laws and Network Rules to submit
transactions to Fiserv. Fiserv will perform the Acquiring Services for payment transactions submitted from all
the Company’s locations in Hong Kong.
1.5 Submitting Transactions
The Company is responsible for:
a. Properly transmitting the transaction data (including all transaction detail required by the Networks) to
Fiserv’s systems using the format and specifications provided by Fiserv (the Company will maintain and
update the systems that it uses to accommodate changing Network requirements and industry
requirements as specified by Fiserv);
b. All payment transactions submitted for processing under its merchant identification numbers (MIDs),
including, without limitation, all returns, refunds, or chargebacks, whether charged back by Cardholders
or Card issuers;
c. Preventing its employees and others from submitting returns or refunds that do not reflect valid returns
or refunds corresponding to prior transactions; and
d. Retaining transaction records according to the timelines required by the Network Rules, Industry
Regulations or applicable Laws.
1.6 Transaction Acceptance
The Company will only accept and submit transactions where:
a. The transaction represents a genuine sale of the Company’s goods or services to the Cardholder
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b. The transaction is not materially different than the transactions the Company has described to Fiserv
with regard to the products or services sold, the procedures for payments acceptance, or the fulfilment
of obligations to the Cardholder;
c. The transaction complies with all requirements of the applicable Network Rules and Industry
Regulations, the laws of all relevant jurisdictions and all other requirements of this Agreement;
d. The transaction is not a duplicate of any other transaction;
e. The transaction is authorised by the rightful Cardholder for the amount of the transaction in satisfaction
of the Cardholder’s obligation to the Company;
f. The transaction is in payment of goods or services provided simultaneously with the payment
transaction (except for delayed delivery, advance deposit, or other partial transactions specifically
allowed under the Network Rules and Industry Regulations and explicitly authorised by Fiserv in writing);
g. The transaction is not a refinancing of an existing obligation;
h. The transaction is valid, collectible and is not subject to any dispute, setoff, or counterclaim; and
i. In the case of a refund, the transaction is submitted to reimburse the Cardholder for a sale transaction
that was previously submitted.
1.7 Transaction Representation and Warranty
The Company represents and warrants that each transaction that it submits will comply with this clause.
1.8 Transaction Receipts
The Company will provide Fiserv a copy of any transaction receipts upon request.
1.9 Settlement
a. The Company will identify a bank account held in the Company’s name (the Settlement Account),
unless otherwise expressly agreed by Fiserv, that Fiserv will use in connection with the Services (being
all services provided by Fiserv under this Agreement). The Company authorises Fiserv to initiate: (1)
credits to the Settlement Account for proceeds of transactions submitted and (2) debits to the Settlement
Account for any amounts that may be owed or required to be paid under this Agreement.
b. The Company may identify more than one bank account as the Settlement Account. If the Company
designates more than one Settlement Account, credits to any of these Settlement Accounts will satisfy
Fiserv’s obligations and successful debits to any of the Settlement Accounts will satisfy the Company’s
obligations under this Agreement.
c. Fiserv will initiate a transfer to the Settlement Account of the value of all valid sales and cash out
transactions for the Company’s Card payment transactions, less any amounts due from Company for
refunds, chargebacks, other debits or monies withheld to fund a Reserve in accordance with clause 6.1.
Fiserv will initiate the transfer no earlier than two (2) banking days after the transaction (for transactions
submitted before merchant cut-off on the prior banking day) if reasonably practicable but is not
responsible for any delays, failures or errors caused by the Networks, Hong Kong’s payment systems,
the Company’s financial institution, or telecommunications networks. It will depend on the Company’s
financial institution when funds will be available in the Company’s bank account.
d. The Company does not have a property or ownership interest in any proceeds of transactions or funds
received by Fiserv in connection with the Company’s transactions (including any funds held in a Reserve
in accordance with clause 6.1) until those funds are transferred to the Settlement Account.
e. After funds have been deposited into the Settlement Account, Cardholders, Card issuers and the
Networks still have the right to require reimbursement of transactions, to impose obligations relating to
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violations of the Network Rules, to assess additional interchange or other assessments and to impose
fees, fines, or charges relating to the qualification of transactions and the Settlement Account may be
debited for these amounts at a later date.
f. The Company must promptly notify Fiserv if it fails to receive any settlement funding or if there are any
changes to the Settlement Account. Transfer of settlement funds may be delayed or misdirected if the
Company provides inaccurate information about, or fails to notify Fiserv of changes to, the Settlement
Account. Fiserv is not responsible for settlement errors that arise if the Company provides inaccurate
information about, or fails to notify Fiserv of changes to, the Settlement Account.
1.10 MATCH Reporting
Under some circumstances, Fiserv may be required to report the Company to the Member Alert to Control
High Risk (Match) listing or similar listings maintained by the Networks. The Company agrees that Fiserv will
not be liable for any losses, damages, or liabilities that may result from that reporting.
1.11 Mark License; Network Decals
a. For the duration of this Agreement, Fiserv grants the Company a revocable, royalty free, non-exclusive,
limited license that cannot be assigned, transferred, or further sublicensed, to use the Networks’
trademarks and service marks (together, Protected Marks) in Hong Kong, according to the applicable
Network Rules. This license does not grant the Company any other intellectual property right, title,
interest, or claim (express or implied, by estoppel, or otherwise) to the Protected Marks. The Company
will not take any action that impairs an owner’s intellectual property rights in its Protected Marks.
b. The Company will discontinue use of the Networks’ decals, promotional, or other materials after
termination of this Agreement. The Company will not indicate that its products or services are endorsed
by any of the Networks.
c. Save for the limited license granted under clause 1.11, nothing in this Agreement shall be interpreted as
granting to the Company a license to use Fiserv's intellectual property. The Company shall promptly
notify Fiserv of any infringement or threatened infringement or of any challenges to the validity or
ownership of any of Fiserv's intellectual property and the Company will provide reasonable assistance to
Fiserv, at Fiserv's reasonable expense, in connection with Fiserv's defence to such challenges.
d. Fiserv may include the Company's name, description and hyperlinks to the Company's website, on
Fiserv's website and other marketing material.
1.12 Equipment
Where the Company uses any Equipment (that is any terminals or related hardware used by the Company
for the purpose of creating, transmitting, reading, or processing, transaction data for the purposes of
facilitating transactions under this Agreement but not power outlets and telecommunication lines), it shall
comply with the terms of Schedule A to this General Terms.
1.13 Gateway Services
To facilitate the processing of transactions online, Fiserv may provide the Company its online processing
system that provides an interface for the transmission of transaction data between Fiserv and the Company
in connection with the Acquiring Services or Third-Party Services (the Gateway Services). Where the
Company uses the Gateway Services, it shall comply with the terms of Schedule B to this General Terms.
1.14 Instalment Payment Program
Schedule C shall apply to all Instalment Purchases (as defined in Schedule C to this General Terms).
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1.15 Third-Party Services
Third-Party Services are services provided by a party other than Fiserv to the Company that use, are
connected to, or are ancillary to, the Acquiring Services. Fiserv does not recommend, endorse, or approve,
any Third-Party Service. The Company’s use of a Third-Party Service is governed by the Company’s
agreement with the Third-Party Service Provider and not this Agreement. Fiserv bears no responsibility
or liability arising out of or in connection with the Third-Party Service.
2. Financial Information; Audit
The Company will promptly provide any financial or other information reasonably requested by Fiserv to
perform credit risk, security, qualification, regulatory (including anti-money-laundering and sanctions
monitoring) and Network compliance tasks and other reviews related to the provision of the Services,
transactions submitted, fulfilment of obligations to Fiserv or Cardholders, or the financial condition of the
Company. The Company authorises Fiserv to obtain information from third parties when performing credit
risk, security, qualification and other reviews. Fiserv may perform a reasonable audit of the Company’s
records related to its performance under this Agreement with 30 days’ advance written notice to the
Company, during the Company’s normal business hours and at Fiserv expense.
3. Notice of Material Changes; Third Parties
The Company will provide Fiserv with reasonable advance notice of any material change in the nature of the
Company’s business (including any change in control or merger, any liquidation, any transfer or sale of
substantially all of its assets, or any change to the Company’s operations that would materially affect the
products or services sold, the procedures for payments acceptance, or the fulfilment of obligations to a
Cardholder). The Company will provide Fiserv with written disclosure identifying the third parties, systems
and services the Company uses to receive, transmit, process, or otherwise manage information or its
information technology systems (for example, without limitation, gateways, encryption or firewall providers)
related to the transaction information or payment data processed in connection with this Agreement (these
third parties must be registered providers with the Networks).
4. The Company’s Payment Obligations
4.1 Payment Obligations
The Company will pay Fiserv for:
a. All fees and charges for the Services as set out in the Application;
b. All transactions that are charged back by Cardholders, Card issuers, or the Networks;
c. All refunds submitted in connection with the Company’s transactions; and
d. All costs, liabilities, or other obligations imposed on Fiserv by the Networks or other third parties as a
result of transactions submitted by the Company or the actions taken (or not taken) by the Company or
its third party service providers.
4.2 Fees Account
The Company will keep a bank account (Fees Account) and authorises Fiserv to debit the Fees Account in
respect of any of the Company’s payment obligations. The Fees Account can be the same as the Settlement
Account. The Company will execute a direct debit authority and will reimburse Fiserv for the amount of
charges incurred as a result of any direct debit being rejected.
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4.3 Adjustment
Fiserv may adjust the fees and charges for the Services upon 30 days’ advance written notice.
5. Taxes
5.1 General
Unless otherwise expressly stated, all consideration to be provided under this Agreement is expressed
exclusive of taxes (Taxes), including goods and services tax. If Taxes are payable by Fiserv on any supply
made under this Agreement, the Company will pay Fiserv an amount equal to the Taxes payable on the
supply, in addition to the amount payable in respect of that supply.
5.2 Tax Invoice
Where required by law, Fiserv will invoice the Company in arrears and will issue a valid tax invoice. Payment
will be due within 30 days from the date of the invoice.
5.3 Withholding Tax
All payments to be made by the Company shall be made free and clear of and without deduction of any
taxes unless the Company is required to make such a payment subject to the deduction or withholding of
tax, in which case the sum payable by the Company (in respect of which such deduction or withholding is
required to be made) shall be increased to the extent necessary to ensure that Fiserv receives a sum net of
any withholding or deduction equal to the sum which it would have received had no such deduction or
withholding been made or required to be made.
6. Reserve, Security and Set-off
6.1 Reserve
Fiserv may require the Company to fund a cash reserve (Reserve) in an amount that reflects Fiserv’s
assessment of risk, as it may determine in its discretion from time-to-time. The Reserve is a payment
obligation of Fiserv, established by holding back transaction proceeds or debiting the Settlement Account in
order to potentially offset any obligations that the Company may have to Fiserv. The Reserve is not a
segregated fund that the Company may claim to own and is not held by Fiserv on trust for the Company.
Fiserv is obligated to pay to the Company any amounts remaining from the Reserve after all other then-
current and contingent liabilities or obligations related to the Company’s payment transactions have expired
(as provided for under the Network Rules, Industry Regulations or this Agreement).
a. The obligations due to the Company from the Reserve will not accrue interest.
b. Fiserv will notify the Company if a Reserve is established (including its amount) or if the amount of the
Reserve is modified.
c. Fiserv may set off any obligations that the Company owes to Fiserv (or its affiliates) from the Reserve.
d. Although the Company acknowledges that the Reserve is a general obligation of Fiserv and not a
specifically identifiable fund, if any person claims that the Reserve is an asset of the Company that is
held by Fiserv, the Company grants and acknowledges that Fiserv has a security interest in the Reserve
and, at Fiserv’s request, will provide documentation to reflect this security interest and cooperate with
Fiserv to perfect the security interest.
6.2 Setoff and Priority
All funds that Fiserv owes to the Company under this Agreement are subject to the Company’s payment
obligations under this Agreement. Fiserv may set off amounts (i) the Company owes to Fiserv under this or
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any other agreement; or (ii) any amount the Company owes to Fiserv’s affiliates under this Agreement or
any other agreement; against any funds that Fiserv owes to the Company.
6.3 Security and Security Interest
Fiserv may from time to time request security from the Company or a guarantor to secure performance of
the Company’s obligations under this Agreement. The Company shall do all things necessary to put in place
enforceable security as requested by Fiserv.
7. Statements, Reporting
Fiserv will provide the Company with statements or electronic reporting (Statements) reflecting the fees,
settlement amounts and other information related to the Services. The Company must review the
Statements and inform Fiserv of any errors within 60 days following the date (i) it first has access to the
Statement, or portion of the Statement, containg the error; or (ii) the date of the Statement containing the
error; whichever is earlier. The reporting of any errors will enable Fiserv to recover amounts or prevent the
errors from continuing. Fiserv will have no obligation to provide refunds for, or otherwise make good, errors
that the Company reports more than 60 days following the date (i) it first has access to the Statement, or
portion of the Statement, containing the error; or (ii) the date of the Statement containing the error;
whichever is earlier. The Company and Fiserv will work together to resolve issues or disputes that arise in
connection with the Statements, or the funds credited or debited to the Settlement Account.
8. Privacy and Confidential Information
8.1 Privacy
Each party will comply with the Personal Data (Privacy) Ordinance and will treat personal information
collected from individuals in accordance with any applicable Laws, rules, regulations, or guidelines, relating
to such personal information.
8.2 Confidentiality
Neither party will disclose non-public information about the other party’s business (technical specifications,
customer lists, or information relating to a party’s operational, strategic, or financial matters) (together,
Confidential Information). Confidential Information does not include information that: (1) is or subsequently
becomes publicly available (through no fault of the recipient); (2) the recipient lawfully possesses before its
disclosure; (3) is independently developed without reliance on the discloser’s Confidential Information; or (4)
is received from a third party that is not obligated to keep it confidential. Each party will implement and
maintain reasonable safeguards to protect the other party’s Confidential Information.
8.3 Disclosure
The recipient may disclose the other party’s Confidential Information: (1) to its directors, officers, personnel
and representatives (including those of its affiliates, subcontractors or vendors) that need to know it in
connection with the recipient’s performance under this Agreement as well as the purposes set out in the
Collection Statement and are bound by confidentiality obligations materially similar to those required under
this Agreement; and (2) in response to a subpoena, court order, request from a regulator, or as required
under applicable Laws, Network Rules or Industry Regulations.
8.4 Publicity
Fiserv and the Company may publicly indicate they have entered into a contract with each other.
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9. Data Security
9.1 Unauthorised Access
a. The Company is responsible for any unauthorised access to any transaction data from the Company or
from third parties retained by or on behalf of the Company.
b. Fiserv is responsible for any unauthorised access to the Company’s transaction data on
Fiserv systems.
9.2 Compliance with Standards
a. The Company must comply with Payment Card Industry Data Security Standards (PCI DSS) and obtain
timely certification of its systems and processes (which must be maintained during the Term) as required
under the Network Rules and Industry Regulations. The Company must also comply with all additional
standards that the Networks and Industry Regulations may require. The Company will allow the
Networks or Fiserv to audit its data security compliance, including PCI DSS and information technology
systems related to the Services provided under this Agreement. The Company is responsible for its
service providers’ compliance with the same requirements.
b. Fiserv must comply with all PCI DSS requirements and the Network Rules and Industry Regulations that
apply to its performance under this Agreement.
9.3 Security Incident
a. If the Company becomes aware that there has been unauthorised access to transaction data (a
Security Incident), it will promptly notify Fiserv. If requested by Fiserv, the Company will retain a
reputable firm that is certified and approved by the Networks that provides forensic information security
services and risk assessments in order to: (1) assess the nature and scope of the Security Incident; and
(2) identify the access controls or transaction data involved in the Security Incident. The Company will
take appropriate steps to contain, control, stop and remediate any Security Incident.
b. The Company will provide reasonable details regarding the Security Incident to and cooperate with,
Fiserv, any Networks, governmental authorities or industry bodies and the forensics firms that are
involved in the investigation and remediation of a Security Incident. The Company will take all actions
that the Networks, governmental authorities, industry bodies or Fiserv require in connection with the
investigation and remediation of a Security Incident.
c. The Company will reimburse Fiserv for all fines, fees, penalties, assessments, or other obligations of
any kind imposed by a Network on Fiserv due to a Security Incident caused by the Company or its third
party service providers (together, Network Security Fees).
9.4 Data Use
Fiserv may use transaction data obtained from providing the Services to the Company to fulfil performance
obligations under this Agreement and investigate fraud, or suspected fraud, related to the Company’s
transactions. Fiserv may also use transaction data obtained from providing the Services under this
Agreement in aggregated and anonymised form (as required by applicable Laws) for research and
development, or to provide services generally.
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10. Term, Termination, and Suspension
10.1 Term
This Agreement commences at the earliest of (1) Fiserv assigning a MID to the Company; (2) the Company
commencing the submission of transactions to Fiserv for processing; or (3) the Company taking delivery of
Equipment supplied by Fiserv; (that date, the Effective Date) and will continue until the third anniversary of
the date Fiserv first assigns a MID to the Company (such period, the Initial Term) unless terminated as
allowed under this Agreement. This Agreement will renew for successive 3 months periods (each a Renewal
Term), unless either party gives the other 60 days’ advance written notice of non-renewal before the end of
the Initial Term. Either party may terminate this Agreement for any reason (without cause) during a Renewal
Term by giving the other 30 days’ advance written notice of termination. Together, the Initial Term and any
Renewal Term(s) are the Term of this Agreement.
10.2 General Termination
Either the Company or Fiserv may terminate this Agreement by giving 30 days’ advance written notice if the
other materially breaches this Agreement and fails to remedy the breach within 30 days of receiving notice of
it. A party may only exercise this right within 60 days of becoming aware of a material breach. At any time
during the Term, Fiserv may terminate this Agreement by prior written notice stipulating the date upon which
termination is to take effect, without having to assign any reason for such termination.
10.3 Risk Termination
Fiserv may immediately suspend or terminate this Agreement, in its discretion, upon notice if the Company:
a. Engages in fraud, misrepresentation, or intentional misconduct related to its performance under this
Agreement;
b. Experiences excessive chargebacks, irregular, or fraudulent payment transactions (based on Network
thresholds), or engages in business practices creating excessive risk for Cardholders or Fiserv;
c. Experiences a material adverse change in its financial condition (including the failure to pay any of its
debts or if the Company’s accountants fail to deliver an unqualified audit opinion with respect to the
Company’s and its consolidated subsidiaries’ annual financial statements when requested by Fiserv);
d. Fails to provide notice of a material change in the nature of its business;
e. Fails to disclose the third parties or systems it uses in connection with the transaction information or
payment data processed under this Agreement;
f. Fails to fund a Reserve when required under this Agreement;
g. Experiences a Security Incident or fails to comply with PCI DSS or a material Network requirement;
h. Materially changes its operations, products, services, or procedures for payments acceptance;
i. Fails to satisfy a review or audit conducted under this Agreement;
j. Sells substantially all of its assets, undergoes a change in ownership or control, merges, or effects an
assignment without obtaining the prior consent of Fiserv; or
k. A Network or a governmental authority, instructs Fiserv to limit, suspend its performance under or
terminate this Agreement (in which case the Early Termination Fee will not apply).
Together, the events described in this clause are Default Events.
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10.4 Early Termination Fee
Fiserv will suffer substantial injury and it would be difficult to determine the damages, if this Agreement is
terminated before the end of the Initial Term due to any Default Event. Fiserv and the Company agree an
accurate reflection of the damages payable to Fiserv caused by such early termination of this Agreement is
an amount equal to 80% of the average monthly fees paid to Fiserv during the 12-month period preceding
the termination (or, if less than 12 months have elapsed, the average monthly fees during the period
expired) multiplied by the number of months (including partial months) remaining in the Term (the Early
Termination Fee).
10.5 Change Termination
The Company may terminate this Agreement by giving 30 days’ written notice if Fiserv increases (in
aggregate) the fees and charges payable by the Company, or if Fiserv gives notice of or publishes an
amendment of the terms of this Agreement, that materially diminishes the Company’s rights or increases the
Company’s obligations under this Agreement. This termination right will not arise where a change is due to a
change in Laws and has to be exercised within 30 days from a notice or publication.
10.6 Termination for Inactivity
Fiserv will have the right to terminate this Agreement immediately upon notice to the Company if no
transaction has been submitted for a period of 90 days or more.
10.7 Effect of Termination
The following clauses shall survive termination of this Agreement for any reason whatsoever:
a. Clause 1.5(d);
b. Clauses 1.11 to 1.13;
c. Clause 2;
d. Clause 4;
e. Clause 5;
f. Clause 6;
g. Clause 8;
h. Clause 9;
i. Clause 10.4;
j. Clause 10.7;
k. Clause 11; and
l. Clause 12.
11. Indemnity and Liability
11.1 Indemnity
The Company will indemnify Fiserv (including their respective affiliates, directors, officers, managers and
employees) for losses, damages, costs, or expenses (together, Losses) due to third party claims that result
from the Company’s negligence, wilful misconduct, infringement of any third party's intellectual property
rights, or breach of this Agreement.
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11.2 Process
Fiserv will promptly notify the Company of any third party claim that is subject to indemnification under this
Agreement. The Company will have the opportunity to defend these claims using counsel it selects and will
have the authority to enter into a settlement for monetary damages provided that it pays such amounts. The
parties will cooperate with regard to any other conditions of settlement as well as in providing records,
access to personnel or other information reasonably necessary to defend any indemnified claims. Fiserv
shall take reasonable steps to mitigate the liability, loss or damage giving rise to the claim and shall not
make any admission or other statement to the third party which may be directly or indirectly prejudicial to the
defence of the claim (including the issue of liability) unless agreed with the company.
11.3 Exclusion of Damages
Fiserv will not be liable to the Company for lost profits, revenues, or business opportunities, expected
savings, opportunity costs, loss of goodwill, image or reputation, nor any exemplary, punitive, special,
indirect, incidental, or consequential damages under this Agreement; regardless of whether these damages
were foreseeable or the Company was advised they were possible.
11.4 Limitation of Liability
Fiserv’s aggregate liability to the Company for losses arising from any cause (regardless of the form of
action or legal theory) in connection with this Agreement will be limited to HKD 400,000.00 (Liability Cap).
The Liability Cap will not apply to Fiserv’s obligation to remit the proceeds of the Company’s Card
transactions that are processed under this Agreement (after accounting for all offsetting obligations). Fiserv
shall not liable for any loss, expenses or damage whatsoever caused by: (i) the failure for whatever reason
of a Card, any Equipment, or either party's systems, to function properly or at all; or (ii) the acquisition by
any person of information through any unauthorised electronic or other interception of communication in
relation to a transaction.
12. General
12.1 Notices
Written notices (other than normal operations) required under this Agreement may be delivered by hand,
sent by regular mail, registered mail, or courier (all pre-paid). Additionally, Fiserv may provide written notice
to the Company by email.
a. If delivered by hand or sent by registered mail or courier, notices will be effective on written
acknowledgement of receipt by an authorised employee, agent or representative or the receiving party.
If sent by regular mail, 3 Business Days after the date of mailing.
b. Copies of all notices may be sent through email to the email address notified by a party.
c. Notices to the Company will be valid when sent to the Company details set out in the Application or to
the Company’s registered address. Notices to Fiserv will be sent to:
Fiserv Merchant Solutions (Hong Kong) Pte Ltd
Attn: Legal Counsel
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Suite 135, 16/F, Tower 5, The Gateway
Harbour City, Tsim Sha Tsui
Kowloon, Hong Kong SAR
12.2 Providers
Each party is responsible for the performance of any third parties it uses in connection with the Services and
their compliance with the terms of this Agreement.
12.3 Waivers
A party’s waiver of a breach of this Agreement will not be considered a waiver of a subsequent breach. A
party’s delay or failure to exercise any of its rights under this Agreement will not be a waiver of those rights
unless otherwise expressly provided for under this Agreement.
12.4 Compliance with Law, Choice of Law
The parties will comply with all laws, rules (including Network Rules) and regulations (including Industry
Regulations), (together Laws), that are applicable to their respective obligations under this Agreement. This
Agreement will be governed by the laws of Hong Kong. The courts of Hong Kong will be the proper venue
for legal proceedings brought in connection with this Agreement.
12.5 Introducers, Additional Card Networks and/or Third-Party Service Providers
The Company acknowledges that Fiserv may pay amounts to other parties for referring the Company to
Fiserv. Fiserv may share information, including Confidential Information, with the introducer as well as
Additional Card Networks and/or Third-Party Service Providers and the Company authorises Fiserv to share
the such information with such parties.
12.6 Entire Agreement, Counterparts
The defined term Agreement includes its schedules, addenda and any amendments (capitalised terms used
in the schedules, addenda, or amendments without definition will have the meanings given to them in this
Agreement). This Agreement is the entire agreement between the parties and replaces any prior
agreements or understandings (written or oral) with respect to its subject matter.
12.7 Amendments
Fiserv may, by written notice to the Company and/or by posting the amended terms on its website, amend
this Agreement.
12.8 Assignment, Novation
The Company may not assign rights under this Agreement or novate this Agreement without Fiserv’s written
consent. Fiserv may assign, novate or transfer its rights or obligations under this Agreement to its affiliate, or
another financial or other institution that is a member of the Networks. The Company agrees (1) to a
novation by written notice to the Company where the new contract is on the same terms and conditions as
the existing agreement, the new party assumes the rights and obligations of the outgoing party and the
outgoing party is released from those rights and obligations and (2) to enter into such documents as Fiserv
may reasonably require in order to effect such assignment, novation or transfer. This Agreement will be
enforceable against a party’s permitted successors or assigns.
12.9 Force Majeure
No party shall be liable to the other for any delay in the performance or inability to perform any of its
obligations under this Agreement to the extent that such delay or inability is caused by an event beyond
its control.
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14 | Fiserv Confidential
Schedule A: Equipment
This Schedule A sets out additional terms and conditions that apply if the Company uses Equipment to
process transactions under this Agreement.
1. Equipment may consist of equipment supplied by Fiserv (Supplied Equipment) or, the Company's own
Equipment (Company Equipment). In processing transactions using Equipment, the Company shall
only use Equipment that has been approved by Fiserv.
2. The Company shall ensure that the Company Equipment complies with all applicable Laws, policies and
certification procedures that may be specified by Fiserv from time to time. The Company is,
notwithstanding any approval from Fiserv, solely responsible for maintaining, repairing and replacing,
the Company Equipment.
3. The Company is responsible for ensuring that any devices, hardware, or software, which it uses in
conjunction with the Equipment has been adequately tested and is compatible with the Equipment.
4. The Company shall indemnify Fiserv against any losses, liabilities, damages and expenses, arising out
of the use of (i) the Company Equipment, or (ii) any other devices, hardware, or software, that the
Company uses in conjunction with the Equipment.
5. The Company must operate and keep all Equipment in accordance with this Agreement and specifically,
the Payments Acceptance Guide and any other instructions Fiserv may provide the Company. The
Company is responsible for keeping all Equipment in good working order. The Company must safeguard
the Supplied Equipment from loss, damage, unauthorised use, misuse, or theft. The Company must
notify Fiserv immediately regarding any damage to or loss of the Supplied Equipment.
6. The Company shall not alter, modify, the Supplied Equipment, or the installation site of the Supplied
Equipment, without Fiserv's consent.
7. Fiserv may replace any Supplied Equipment with other equipment of the same or similar type. The
substitute Equipment shall then be subject to this Agreement. If the Company requests changes to the
Supplied Equipment, Fiserv shall be entitled to charge the Company fees determined in its discretion to
effect the requested changes.
8. All Supplied Equipment remains the property of Fiserv. If this Agreement is terminated, or if Fiserv
requests, the Company shall, in the manner prescribed by Fiserv, return the Supplied Equipment (a) in
good working order (fair and tear excepted); (b) cleaned and with markings removed; AND (c) free from
cracks, dents, scratches and stains; failing which Fiserv may impose fees, determined in its discretion,
on the Company.
9. Additional Cards may only be used with Equipment upon Fiserv's written consent.
10. The Company must not give, rent, lease, sub-license, sell to any third party, or grant any form of security
or encumbrance over, or cease to be in possession of any part of, the Supplied Equipment. The
Company shall not permit any third party, other than its authorised employees, to use the Equipment.
11. The Company shall allow Fiserv, during business hours and with reasonable notice, to have access to
the Equipment for inspection and maintenance purposes.
12. To the extent permitted by law, all warranties and representations, by Fiserv of any kind with respect to
the Supplied Equipment, including without limitation any implied warranties of satisfactory quality and
fitness for a particular purpose, are excluded. Additionally, Fiserv does not warrant or represent that the
Supplied Equipment will perform uninterrupted, error-free, with impenetrable security, or with flawless
verification of the Cardholder or any other aspect of the transaction.
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15 | Fiserv Confidential
Schedule B: Gateway Services
This Schedule B sets out additional terms and conditions that apply if the Company uses the Gateway
Services.
1. The Gateway Services include protocols, software components and other interfaces and software
related to the Gateway Services (the Gateway Software). Fiserv may also provide Gateway
Documents in connection with the Gateway Services. The Gateway Documents comprise of any and all
manuals, operating policies, procedures and other written materials or instructions that are provided in
connection with the Gateway Services.
2. The Company shall not use the Gateway Services in any way, other than in accordance with this
Agreement and any other instructions Fiserv may provide in writing.
3. The Company shall not attempt to circumvent any applicable security measures of the Gateway
Services, including by disassembling, decompiling, decrypting, extracting, reverse engineering, or
modifying the Gateway Software. The Company shall not apply procedures or processes to the Gateway
Software in order to ascertain, derive and/or appropriate for any reason or purpose, the source code or
source listings for any Gateway Software, or any algorithm, process, procedure, or other information,
contained in the Gateway Software.
4. The Company shall not allow any third party to access the Gateway Services except its authorised
employees or contractors, both of which must be subject to a confidentiality agreement no less
restrictive in every aspect than the confidentiality provisions in this Agreement.
5. The Company shall not remove or alter in any way whatsoever any copyright notice or
acknowledgements appearing on any element of the Gateway Services save to extent approved by
Fiserv in writing.
6. The Company shall ensure that all user credentials (including passwords) for the Gateway Services are
kept confidential. It shall not allow any other party to use such user credentials unless permitted by
Fiserv. The Company shall be liable for all acts and omissions done under user credentials that are
assigned to the Company. The Company shall notify Fiserv immediately if the Gateway Services have
been compromised.
7. The Company shall be responsible for updating its systems, at its own cost, to ensure that its systems
are compatible with the Gateway Services and any updates thereto. The Company is responsible for the
correct functioning of its systems and shall be responsible for the technical support and integration of its
systems into the Gateway Services. The Company shall be responsible for the costs of development of
its systems and the integration of its system into the Gateway Services.
8. Fiserv may in its absolute discretion, without prior notice, suspend the Gateway Services for a
reasonable period of time for any reason including system maintenance or upgrades.
9. For the duration of this Agreement, Fiserv grants the Company a personal, non-exclusive and non-
transferable right to use the Gateway Services, the Gateway Software and the Gateway Documents,
strictly for the purpose of Fiserv's provision of Acquiring Services. All intellectual property rights
associated with the Gateway Services are reserved for Fiserv and its licensor (as the case may be).
10. Save for the limited license granted under clause 9 of this Schedule B, nothing in, or arising out of, this
Agreement grants the Company any other intellectual property rights relating to the Gateway Services,
the Gateway Documents, or the Gateway Software.
11. To the extent permitted by law, all warranties and representations, by Fiserv of any kind with respect to
(a) the Gateway Services; (b) the Gateway Software; and (c) the Gateway Documents; including without
limitation any implied warranties of satisfactory quality or fitness for a particular purpose, are excluded.
Additionally, Fiserv does not warrant or represent that the Gateway Services or the Gateway Software
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16 | Fiserv Confidential
will perform uninterrupted, error-free, with impenetrable security, or with flawless verification of the
Cardholder or any other aspect of the transaction.
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17 | Fiserv Confidential
Schedule C: Instalment Payment Program Transactions
This Schedule C sets out additional terms and conditions that apply if the Company processes Program
transactions under the Agreement. If there are inconsistencies between other parts of the Merchant
Agreement and this Schedule C, the terms of this Schedule C will prevail in relation to the Program.
1. Fiserv offers an Instalment Payment Program (the Program) whereby (during the Program Period)
holders of any one or more Qualifying Card(s) who purchase any selected goods and/or services with
their Qualifying Card(s) and who are Qualifying Cardmember’s, may apply for the interest free payment
by instalment arrangement for the applicable Instalment Payment Period(s).
2. By submitting Program transactions to Fiserv, the Company agrees to comply with the terms and
conditions provided in this Schedule C.
3. Program
a. Under the Program, the Instalment Purchase Price, less applicable deductions, is settled to the
Company in accordance with the Agreement, whist the Cardmember pays the Bank the Instalment
Purchase Price in equal monthly instalments.
b. A Cardmember may apply for Instalment Purchase if the Instalment Purchase Price is within the
Cardmember's available instalment credit limit.
c. All Instalment Purchases are subject to the approval of Fiserv. The Company shall not accept any
Instalment Purchase without first obtaining an authorization code from Fiserv. Fiserv shall have
absolute discretion to approve or reject any Instalment Purchase, without disclosing reasons to the
Company. All payments to be made under the Program shall be in Hong Kong Dollars.
d. Cardmembers who make Instalment Purchases may make early repayment, subject to payment of a
handling charge stipulated by the Bank from time to time.
e. No cancellation of the Instalment Purchase by the Company is permitted after Fiserv has authorised
the Instalment Purchase. In exceptional cases, subject to the Cardmember's agreement, Fiserv
may, in its discretion and subject to the Company paying any applicable fees, upon the Company
request, refund an Instalment Purchase to the Cardmember.
4. Obligations of the Company
a. For the duration of the Program Period and subject to any required approvals, the Company shall
ensure that all Cardmembers are offered the option to pay for their purchases from the Company
through the Program.
b. In respect of each Instalment Purchase made at a physical store operated by the Company, the
Company shall ensure that:
i. The Qualifying Card used for the Instalment Purchase is presented to the Company and the
Company shall check that the Qualifying Card has not expired.
ii. The Qualifying Card for the Instalment Purchase is not altered, mutilated or otherwise
tampered with in an unauthorised manner.
iii. The Qualifying Card used for the Instalment Purchase bears a genuine distinctive hologram
device; and
iv. The first four digits of the account number embossed on the face of the Qualifying Card
used for the Instalment Purchase are identical to the four digits printed on the face of the
Qualifying Card immediately below or above them.
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18 | Fiserv Confidential
c. During the Program Period, the Company shall display prominently the marketing materials in
relation to the Program as provided by Fiserv. The Company shall not use any marketing materials
in connection with the Program not supplied or authorized, by Fiserv.
d. The Company shall not charge the Cardmember’s any additional amount (other than set out in the
Agreement) for making a purchase through the Program as opposed to the other means of
payments.
e. For each Instalment Purchase, the Company shall obtain the Cardmember's consent to enter into an
Instalment Purchase by obtaining either (a) for point of sale transactions, the Cardmember's
signatures on the charge slip or such other location Fiserv may prescribe; or (b) for online
transactions, a digitally recorded consent.
f. Fiserv shall be entitled to redirect to the Company any complaints or queries received by it in
connection with the products and/or services supplied by the Company in connection with
the Program.
g. The Company shall deal with such complaints and/or queries in an efficient and expeditious manner.
Fiserv shall have no liability whatsoever in connection with the products and/or services supplied by
the Company in connection with the Program and/or any such complaints and/or queries in relation
thereto (whether or not Fiserv has redirected such complaints and/or queries to the Company).
h. The Company provide shall its brand name, logo, related products, services information and other
related material, to Fiserv for production of marketing materials in relation to the Program and the
Company authorizes Fiserv to use such brand name, logo such other related information and/or
materials for this purpose during the Program Period. The Company undertakes and warrants that
the use of such brand name, logo and such other related information and/or material, does not
infringe any third party rights.
i. The Company shall, in a timely manner, report to Fiserv any difficulty that the Company may have in
relation to the Program.
5. Obligations of Fiserv
a. Fiserv will pay the Company the Instalment Purchase Price (less the applicable MDR) (the
Settlement Funds) for each Instalment Purchase in around three business days following the date
of the Instalment Purchase. In addition to any rights Fiserv has elsewhere in the Agreement, Fiserv
reserves the right not to settle payment of Settlement Funds in relation of a purchasing
Cardmember when:
i. The Company fails to perform its obligations or follow the procedures with regard to such
Cardmember set out herein relating to the Program;
ii. A dispute arises between the Company and such Cardmember in relation to the products
and/or services supplied by the Company in connection with the Program; or
iii. The Company is otherwise in breach of the Agreement.
b. For the avoidance of doubt, Fiserv shall be entitled to deduct and/or set-off from any monies due or
becoming due to the Company, any other sums owed to Fiserv by the Company under
the Agreement.
c. Fiserv will be responsible for the production and distribution of marketing materials relating to the
Program, if any.
6. General
a. The following definitions apply for the purposes of this Amendment:
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19 | Fiserv Confidential
i. “Bank” means Standard Chartered Bank (Hong Kong) Limited;
ii. “Cardmember” means a holder of any one or more Qualifying Card(s);
iii. “Instalment Payment Period” means the relevant period for payment by instalments of the
Instalment Purchase Price;
iv. “Instalment Purchase” means any purchase of goods or services from the Company
under the Program;
v. “Instalment Purchase Price” means the whole or that part of the amount of an Instalment
Purchase that is payable by Instalments;
vi. “IPP Application Form” means an appliable form pursuant to which a Cardmember may
apply for the Program;
vii. “Program Period” the Term of the Merchant Agreement;
viii. “Qualifying Card” means the payment cards issued by the Bank, subject always to certain
payment cards being excluded from the Program as determined by the Bank in its absolute
discretion from time to time;
ix. “Qualifying Cardmember’s” are Cardmember’s with good credit records as determined by
the Bank in accordance with its selection criteria from time to time, subject always to the
Bank’s exclusion of certain Cardmember’s from the Program in its absolute discretion from
time to time
b. This Amendment may be terminated or amended by Fiserv immediately upon written notice to
the Company.
c. The Company will promptly notify Fiserv of any breach of this Amendment.
d. Unless the context otherwise requires, all words and expressions as defined in elsewhere the
Merchant Agreement shall have the same meanings when used or referred to in this Schedule.
Fiserv, Inc.
255 Fiserv Drive
Brookfield, WI 53045
fiserv.com
© 2022 Fiserv, Inc. or its affiliates. Fiserv is a trademark of Fiserv, Inc., registered or
used in the United States and foreign countries, and may or may not be registered
in your country. All trademarks, service marks, and trade names referenced in this material
are the property of their respective owners. 07/22
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