NOIRE Standard Business Terms

This following sets out the Terms of Business for the Merchant’s use of NOIRE’s services. These terms are in addition to any Acquiring Bank agreements between the Merchant and the Acquirer, or the Merchant, NOIRE and the Acquirer. The Merchants Special Conditions (provided separately to the below terms) will contain a schedule of fees and other terms but together with the below form the agreement between NOIRE and the Merchant.

General Terms
1. Definitions
1.1. In these Terms of Business, the words and expressions listed below shall have the following meanings:

Acquirer: a financial institution with which the Merchant has entered into a Merchant Contract and NOIRE has entered into an agreement with or is accredited to forward Transaction Data for Authorisation, clearing and settlement. For the avoidance of doubt NOIRE is not the Acquirer;
Additional Services: means the additional services provided by NOIRE to the Merchant as set out in the Schedule (if any);
Agreement: these General Terms together with any Supplemental Agreement;
Application Management Fee: the non-refundable amount payable by the Merchant to NOIRE as specified and in accordance with the Schedule of fees;
Authorisation: a request for and subsequent confirmation from the Acquirer or the E-Money Issuer that a payment will be credited to the Merchant in respect of any Transaction subject to the terms of the agreement entered into by the Merchant with the Acquirer or the E-Money Issuer (whatever the case may be);
Card: any charge, credit, debit or payment card approved by NOIRE and the Acquirer from time to time;
Cardholder: a holder of any Card;
Card Issuer: the financial institution that issued the Card to the Cardholder;
Chargeback: means an invalid or disputed Transaction that is or may be charged to the Merchant by an Acquirer;
Charges: the fees and charges applicable to the services provided by NOIRE under this Agreement as set out in the Schedules.
Control: means:
a) in relation to a body corporate, the power of a person to secure:
b) by means of the holding of shares or the possession of voting power in or in relation to that or any other body corporate; or
c) by virtue of any powers conferred by the articles of association or other document regulating that or any other body corporate;
d) that the affairs of the first mentioned body corporate are conducted in accordance with the wishes of that person; and
e) in relation to a partnership, means the right to a share of more than one half of the assets, or of more than one half of the income, of the partnership;
Customer: means both a Cardholder
Disputed Transaction: means a Transaction which has been disputed by a Customer, whether any such notification is made to NOIRE, the Acquirer or the Merchant;
Effective Date: The Effective Date shall be the date the Merchant accepts services provided by using the services.
Failure Notice: a notice from the Acquirer or the E-Money Issuer that a request for payment has been declined in respect of any Transaction;
Hosted Site: the payment page provided by NOIRE for the purpose of capturing and processing Transactions.
Initial Term: shall be from the Effective Date for the period specified in the Special Conditions or as specified in the Schedule whichever is the longer;
Intellectual Property: copyrights (including rights in computer software), patents, trade marks, trade names, service marks, business names (including internet domain names), design rights, database rights, rights in undisclosed or confidential information (such as know-how, trade secrets and inventions (whether patentable or not)), company employee names and all other intellectual property or similar proprietary rights of whatever nature
Merchant: the trading entity with whom NOIRE enters into the Agreement as identified in the Schedule;
Merchant Account: means the account or accounts provided by Merchant’s Acquirer for the purposes of collecting, holding, remitting, deducting or otherwise dealing in funds pursuant to this Agreement in accordance with the terms of the Merchant Contract. Merchant Accounts can include MOTO (Mail Order Telephone Order) and or Internet Merchant Accounts (IMA) or such other accounts as the Acquirer may determine from time to time.
Merchant Contract: the agreement between the Merchant and the Acquirer, or the Merchant NOIRE and the Acquirer for acquiring services;
Merchant Product: means the goods and or services that the Merchant makes available for sale, or use through the Merchant Site;
Merchant Site: means Merchant web site(s) as notified to NOIRE by Merchant from time to time;
Monthly Service Charge: the amount payable by the Merchant to NOIRE each month during the Term as specified and in accordance with the Schedule;
Minimum Processing Commitment: means the volume of Transactions referred to in the Schedule.
PCI-DSS: Payment Card Industry Data Security Standard;
Refund: means a Transaction where a Payment Transaction is reversed with the intention of crediting a Customer’s account;
Relevant Tax: means value added tax, sales taxes, or any other similar liability to tax or duty;
Reporting: the provision of information in relation to Transactions and the Services provided to the Merchant via the platform, e-mail and or any other communication method that NOIRE may reasonably use from time to time.
Scheme: means any organisation or payment system which manages and controls the issue and use of Cards and the clearing of Card transactions and which shall include (without limitation) Visa International and MasterCard Inc together with any other payment scheme and or E-Money Issuer as are notified to the Merchant by NOIRE from time to time;
Scheme Charges: means such fees, payments and or charges as may from time to time be levied by the Schemes in respect of a merchant and or a merchant’s activities including but not limited to BRAM Fees, Excessive Chargeback Program (ECP), Interchange Fees (IF) and or Global Merchant Audit Program (GMAP).
Scheme Rules: means the operating rules and procedures issued by the Scheme and or E- Money Issues and as notified to the Merchant by the Scheme, E-Money Issuer NOIRE and or the Acquirer;
Schedule: the document setting out the services ordered by the Merchant from NOIRE and other information, which incorporates or refers to these Terms of Business;
Security Data: any codes or other security measures relating to a Card or an E-Money Account and used to verify the identity of the Cardholder or E-Money Account Holder and/or the authenticity of a Transaction (including verification numbers, also known as CVV, CSV or CVC codes);
Service: the system provided by NOIRE to the Merchant for the receipt of Transaction Data, the electronic transmission of Transaction Data to an Acquirer, fraud risk management systems.
Set-Up Fee: the non-refundable amount payable by the Merchant to NOIRE as specified and in accordance with the Schedule;
Supplemental Agreement: any agreement between the parties dated either the same date as the Schedule or later amending these Terms of Business;
Term: the term of the Agreement as outlined in schedule
Terms of Business: this Agreement being the General Terms, Special Conditions applicable to the Service, Schedule and or any Supplemental Agreement.
Transaction: means: (1) a request made via the Service for collection of payment from or to a Cardholder via the relevant Card Issuer on behalf of the Merchant; and or (2) a request made via the Service for collection of payment from or to an E-Money Account Holder via the relevant E-money Issuer on behalf of the Merchant; and or (3) a data request (including but not limited to authorisations) made via the Service;
Transaction Data: all information provided by a Customer or obtained from any other source in particular the Acquirer or E-Money Issuer that is required for an Authorisation and or processing of a Transaction;
Transaction Fee: the amount payable by the Merchant to NOIRE for each Transaction as specified and in accordance with the Schedule.

2. Payment Services
2.1. NOIRE will accept Transactions from the Merchant and submit Transaction Data to the relevant Acquirer and the E-Money Issuer for the Term. On receipt of an Authorisation or Failure Notice, NOIRE shall provide details of the same to the Merchant via the platform.
2.2. NOIRE can only provide the Service if the Merchant has a Merchant Contract with an Acquirer and they process the transactions that are sent by NOIRE to them. NOIRE does not accept any liability or provide warranty for the service.
3. NOIRE obligations
3.1. NOIRE will provide the Service in accordance with the terms of the Agreement and as set out in the Schedule(s).
3.2. In providing the Service, NOIRE will comply with all applicable laws and regulations and shall, so far as is reasonably practicable, comply with such requirements as are notified to it by each E-Money Issuer or Acquirer and or Scheme.
3.3. NOIRE will provide the Service with reasonable skill and care and in accordance with standard industry practice.
3.4. NOIRE will use reasonable endeavours to make the Service available to the Merchant at all times.
3.5. NOIRE will use reasonable endeavours to co-operate with each Acquirer and shall report to the Merchant promptly any relevant dispute between NOIRE and an Acquirer and or Scheme.
4. Settlement and remittance
4.1. The Merchant acknowledges that the Acquirer and the E-Money Issuer shall be solely responsible for paying the remittance to the Merchant and for the Authorisation and settlement of Transactions in accordance with the terms of the Merchant’s agreement with the Acquirer and E-Money Issuer.
4.2. The Merchant is responsible for reconciling the settlement monies received from the Acquirer with the Transactions submitted to NOIRE for processing and to immediately notify NOIRE if there is any material discrepancy.
4.3. NOIRE accepts no liability to the Merchant for any losses, damages, costs or expense arising out of any failure to pay a remittance to the Merchant on the relevant due date. The Merchant acknowledges that NOIRE will not enter into possession of and or have control over any settlement funds at any time.
5. Payment
5.1. In consideration for providing the Service, the Merchant will pay the Charges to NOIRE in accordance with the payment terms set out in the Schedule. Unless varied in the Schedule, invoices shall be paid (in cleared funds) within 7 (seven) days of the date of invoice.
5.2. NOIRE will issue its invoices (including value added tax invoices where applicable) directly to the Merchant via e-mail.
5.3. All Charges shall be paid by the Merchant to NOIRE without deduction, set-off or counterclaim via the Payment Method.
5.4. if the Merchant fails to make any payment in cleared funds within 7 (seven) days of the due date of the invoice, NOIRE may (without prejudice to NOIRE’s other rights or remedies) suspend the Service until all amounts payable to it have been paid and/or NOIRE may terminate the Agreement with immediate effect on written notice to the Merchant; and
5.5. NOIRE may increase the Charges (or any of them) by giving not less than one month’s notice to the Merchant. Notice of increases in the Charges may be given by e-mail or post. The 30 day notice provisions of this clause shall not apply to increases arising as a consequence of changes in legislation, regulation, Scheme Rules, taxes and or other circumstances beyond the reasonable control of NOIRE.
5.6. Except where specified in the Agreement, the Merchant is committed to the Term, during which it will be liable for all Charges.
6. Merchant obligations
6.1. the Merchant is contracting in its capacity as a business (not a consumer) and has full capacity to enter into this Agreement;
6.2. the Merchant has obtained all permissions, approvals, consents and releases necessary in connection with the Merchant Product provided in relation to the Transactions (including the Intellectual Property Rights of any third party) and that the Transaction and the Merchant Product relating to the Transaction is not in any way unlawful;
6.3. all information provided to NOIRE in connection with its application for Services and any other information it provides under this Agreement is correct and that no information has been withheld which could reasonably be expected to have adversely affected NOIRE’s decision to enter into the Agreement;
6.4. The Merchant is responsible for resolving all disputes with Customers or other parties to a Transaction and undertakes to act in a reasonable manner to resolve them and shall ensure that NOIRE is not cited, contacted or requested for information in relation to such disputes. The Merchant acknowledges that NOIRE does not provide support to Customers and agrees to take sole responsibility for dealing with any questions, complaints or enquiries raised by any Customer in relation to a Transaction.
7. Compliance
7.5. The Merchant shall keep NOIRE fully and effectively indemnified against all actions, claims, costs (including reasonably incurred legal fees on a solicitor and own client basis), damages, demands, expenses, losses and liabilities incurred by, or made against NOIRE as a result of the Merchant’s acts.
8.1. NOIRE warrants it will comply with all or any of PCI-DSS obligations and or requirements in accordance with required accreditation.
8.2. NOIRE is responsible for securing Transaction Data. NOIRE complies with its accreditation as PCI- DSS service provider. PCI-DSS sets out the industry standards for maintaining a secure environment.
8.3. The Merchant warrants it will comply with all or any PCI-DSS obligations and or requirements including but not limited to the Merchant’s reporting, scanning and card data obligations and or such other fraud protection policies as may be approved or required by the Schemes from time to time and shall provide NOIRE with immediately notification of any breach or failure to comply;
8.6. The Merchant is responsible for securing Transaction Data in the Merchant’s possession and for compliance with the Merchant’s PCI-DSS obligations.
10. Security and Merchant systems
10.1. NOIRE is responsible for the security of NOIRE’s own systems in accordance with its obligations to the Schemes and or PCI-DSS accreditation.
10.2. NOIRE is responsible for maintaining NOIRE’s interfaces to an Acquirer with which NOIRE has an agreement to submit Transactions.
10.3. The Merchant is responsible for any integration to NOIRE and for maintaining its interface with NOIRE and updating its interfaces and connections arising from any changes implemented by NOIRE.
10.4. The Merchant is responsible for testing and the regular monitoring all integration links, interfaces and processing between NOIRE and the Merchant. The Merchant will notify NOIRE immediately the Merchant becomes aware of any problems with;
10.4.1. the processing of Transactions,
10.4.2. the integration with NOIRE;
10.4.3. the interfaces to NOIRE;
10.4.4. any other problems with systems and or processes.
11. Testing and integration
11.1. The Merchant acknowledges the integration process is determined by the Merchant and the Merchant’s own website and the Merchant is solely responsible for integration. NOIRE may at its sole discretion and as a gesture of good will provide assistance to the Merchant with the integration process.
11.2. If the Merchant is unable to complete the integration, NOIRE will not be required to refund any amounts the Merchant have paid to that date and is not liable for any costs, losses and or expenses arising from or in connection with the integration process and or the Merchant’s website.
11.3. NOIRE shall not be liable for any errors, omission, losses or expenses arising directly or indirectly as a consequence of the integration process and or the Merchant’s testing, the Merchant’s website, integration and or the integration guides.
12. Term and termination
12.1. The Agreement shall commence on Effective Date and except as otherwise provided in the Agreement, continue in force for the Term.
12.2. NOIRE may, at its option, suspend the Service and/or terminate the Agreement with immediate effect on written notice to the Merchant if:
12.3. the Merchant has failed to pay any sum when due; or
12.4. the Merchant goes into liquidation or a petition is presented for the Merchant’s administration liquidation; or
14. Liabilities
14.1. NOIRE shall not be liable to the Merchant whether in contract (including under any indemnity or warranty), in tort (including negligence), under statute or otherwise for any:
14.1.1. loss of profit;
14.1.2. loss of revenue;
14.1.3. loss of anticipated savings;
14.1.4. loss or corruption of data;
14.1.5. loss of contract or opportunity;
14.1.6. loss of goodwill; or
14.1.7. processing charges; or
14.1.8. borrowing costs; or
14.1.9. integration to NOIRE and or other systems or operational costs associated with the Merchant’s use of the Services;
14.1.10. expenses incurred by the Merchant in relation to or in connection with the Merchant’s website and or the content thereon;
14.1.11. Cardholder compensation payments (including but not limited to not ex gratia payments);or
14.1.12. costs associated with Cardholder disputes; or
14.1.13. indirect or consequential loss of whatever nature including any loss of a type described in sub-clauses 14.1.1 to 14.1.12 above which could be regarded as indirect or consequential and whether or not reasonably foreseeable, reasonably contemplatable, or actually contemplated by the parties at the time of execution of the Agreement.
14.2. NOIRE does not accept any responsibility for the accuracy of Transaction Data or any liabilities to the Merchant or other third party for any inaccuracies or misrepresentations contained in the Transaction Data.
14.3. Except as expressly provided in these Terms of Business, all warranties, conditions, representations or other terms implied by statute or common law are excluded to the fullest extent possible by law.
14.4. Any typographical, clerical or other error or omission in any promotional material or other information issued by NOIRE (including information on NOIRE’s website) shall be subject to correction without any liability on the part of NOIRE.
15. Confidentiality
15.1. The parties to the Agreement will at all times keep confidential information acquired in consequence of the Agreement and relating to the other party, except for information which they may be entitled or bound by law to disclose or where requested by regulatory agencies, investigatory authorities or to their professional advisers where reasonably necessary.
15.2. No press release or other communication whatsoever to be published by or in the media concerning the subject matter of this Agreement shall be published without the prior written consent of each of the parties to this Agreement.
15.3. Confidential information includes but is not limited to pricing, systems, software and or Services provided by NOIRE and or any part of the NOIRE Group to the Merchant
15.4. The obligations of confidentiality in this Agreement shall survive the termination of this Agreement and continue unless and until any of the relevant confidential information enters the public domain through no fault of the relevant Party, its officers, employees, agents or other representatives.
16. Data Protection
16.1. NOIRE agrees to comply with the terms of the data protection legislation in England and to process the Merchant’s personal data in accordance with the terms of NOIRE’s Privacy Policy.
17. Brand Management
17.1. The Merchant can (subject to the NOIRE Brand Management Policy) display NOIRE trademarks for the purpose of informing the Merchant’s Customers that the Merchant process the Customer’s payments using NOIRE.
20. Notices and variation
20.1. From time to time NOIRE may modify this Agreement by giving not less than 30 days notice in writing to the Merchant by email. If the Merchant does not agree with those modifications, the Merchant should contact NOIRE as soon as possible and no later than 15 working days from the date of the notification. By continuing to use the Service after such notifications take effect, the Merchant has indicated the Merchant’s acceptance of those modifications.
20.2. NOIRE may give less than 30 days notice if the modification is as a consequence of legal, regulatory, tax or Scheme changes and or other circumstances reasonably beyond NOIRE’s control.
20.3. Any written notice may be delivered by email.
20.5. The Merchant agree that NOIRE may act on email notices or instructions which reasonably appear to emanate from the Merchant authorised individuals.
23. Governing law and jurisdiction
23.1. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with English law.
24. Waiver & Severability
24.1. Failure by either party to exercise or enforce any right conferred by the Agreement shall not be deemed to be a waiver of any such rights, nor operate so as to bar the exercise or enforcement thereof or of any other right on any later occasion.
25. General
25.1 Nothing in the Agreement shall be deemed to constitute a partnership between the parties nor constitute any party as the agent of the other party.
27. Intellectual Property
27.1. All Intellectual Property in the Service and any Intellectual Property provided by NOIRE during the provision of the Service is and shall be owned by NOIRE. Intellectual Property supplied to the Merchant by NOIRE may not be distributed to and or copied to any third party without the express written consent of NOIRE.

Merchant using NOIRE services agrees to The NOIRE Standard Terms of Business and Additional Merchant Special Conditions as they are at any given time and as such constitute an inseparable part of the Agreement. NOIRE has the power to amend the NOIRE Standard Terms of Business from time to time and will provide and or notify amendments electronically to the MERCHANT e-mail address the MERCHANT has provided.

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