GENERAL TERMS AND CONDITIONS arvato Finance B.V. trading under the name AfterPay
Version 3, March 2015
Clause 1 Definitions
The terms given below in these general terms and conditions are understood to mean as follows:
AfterPay®: the private company with limited liability governed by the law of the Netherlands arvato Finance B.V., having its statutory office in Heerenveen, residing at K.R Poststraat 90, Heerenveen, the Netherlands that provides a post-purchase payment service whereby the Client’s customers are able to pay for their order subsequent to its receipt (such as, i.e., by digital open invoice or by direct debit mandate) and whereby the payment risk is taken over by arvato Finance B.V.;
Agreement: the agreement concluded between the Client and arvato Finance B.V.;
Client: contracting party of arvato Finance B.V. concluding and agreement in order to be able to use the AfterPay® post-purchase payment service;
Debtor: another party or customer of the Client, being a consumer;
Receivable: the amount owed by the Debtor to the Client, which is transferred by the Client to AfterPay by means of the Agreement and which consists of the principal amount that Debtor has to pay for a purchase of Client plus any VAT and an amount (increase) due for the use of the AfterPay® payment service.
Clause 2 Applicability
The General Terms and Conditions apply to every offer (and agreements arising from them) or agreement to which AfterPay has declared these conditions to be applicable, unless the parties have agreed otherwise in writing. AfterPay expressly rejects the applicability of the Clients’ general terms and conditions to the Agreement. The voiding or invalidation of one or more (sections of) the provisions of these General Terms and Conditions, does not void or invalidate any of the other (sections of) or provisions of the Agreement.
Clause 3 Offers
- AfterPay is entitled to withdraw an offer within five days of receipt of its written acceptance.
- Unless otherwise agreed, AfterPay’s offers will expire if they have not been accepted in writing within 30 days.
- All data mentioned in catalogs, price lists and documentation, as well as e-mails and
websites may change without prior notice and shall not constitute as an offer and cannot bind AfterPay without its express consent.
Clause 4 Requirements for the Receivables
- Client guarantees that the Receivables meet the following requirements at the moment of transfer before they can be accepted by AfterPay:
- Consumer resides in the Netherlands on or prior to the date of transfer of the Receivable;
- The Receivable will not be disputed. If the Receivable is still disputed by the Debtor after the transfer and the Debtor defers its obligation of payment based on (a dispute relating to) the Agreement with the Client, then AfterPay has the right to consider the transfer of the Receivable to be terminated and AfterPay will invoice the Client the purchase price that already has been paid out to the Client;
- A Receivable can be specified with relevant ordering and (signed) delivery records upon first request of AfterPay;
- The Receivable is not less than the minimum order value and not more than the maximum order value as agreed on in the Agreement;
- Debtor will be held, on the basis of the agreement with the Client, to pay arrears and a penalty clause in case of failure of (timely) payment of the Receivable in accordance with the general payment terms and conditions of AfterPay;
- Client has - where applicable - paid the VAT components of the Receivables to the tax authorities and Client has not claimed or settled these VAT components and Client will not claim or settle the VAT components.
- The Receivable will not consist of administrative costs, shipping costs, and or (remainder)
ordering costs only.
- If a Receivable fails to meet the requirements specified in 4.1, AfterPay will not accept such Receivable and will not bear the risk of non-payment.
- AfterPay has - in order to prevent fraud - the right to perform a manual check (the offline assessment) within maximum 24 hours after the online acceptance in order to reject dubious orders and subsequent Receivables afterwards. This possible refusal will immediately be passed on by email to a contact person, which is specified by Client. Client has an effort obligation to cancel the Receivable, if the Receivable is not yet being processed in the logistical process of the Client.
- The average of the, during the period of the Agreement, to AfterPay transferred Receivables is an amount yet to be determined in the Agreement. AfterPay reserves the right, if this average amount differs significantly, to adjust this Agreement.
- AfterPay is entitled to refuse Receivables if the Debtor still has an outstanding balance on an overdue digital invoice. In that case, the Debtor may contact AfterPay to get an explanation why the refused Receivable has not been accepted by AfterPay.
Clause 5 Services and fee
- AfterPay will provide the agreed payment service throughout the course of the Agreement concluded with the Client, this being in accordance with these General Terms and Conditions and the provisions contained in the Agreement
- All service times referred to by AfterPay will be established according to the best of its knowledge based on the information that it receives from the Client. The exceeding of a stipulated service time shall never be considered as a breach of contract by AfterPay.
- The Client will always furnish AfterPay promptly with all data and/or information that is useful and necessary for the proper execution of the Agreement and the Client will give its full cooperation.
- The Client will be charged for the AfterPay’s services with a fee as stipulated in the Agreement. AfterPay is entitled to adjust its fees periodically. AfterPay will notify the Client about any adjustment of its fees within no less than 30 days before the new fees take effect. If the Client disagrees with the increased fees, the Client is allowed to terminate the Agreement subject to a one month’s notice.
- The manner of payment is laid down in the Agreement.
- AfterPay is entitled to exclude Debts offered by the Client but not yet taken over from being transferred if, according to AfterPay, the chance of recovering the offered debt has possibly deteriorated.
- AfterPay is entitled to dissolve the assignment of a debt if the Client has failed to act in accordance with the Agreement.
- In the event of late payment by the Debtor, AfterPay is entitled at all times to charge additional fees (increases) in connection with the sending out of reminders, the compilation of a dunning letter and in order to acquire information.
- AfterPay is entitled to engage third parties for the execution of the Agreement as it deems fit. Costs for third parties will not come at extra charge of the Client.
- All complaints and disputes regarding the invoice are subject to forfeiture of any claim and must be sent by registered letter to the attention of AfterPay within ten days after the billing date.
Clause 6 Mentioning AfterPay on website/notification of Debtor
In consultation with AfterPay, the Client shall indicate on its website that the Debtor can pay his purchase to Client by making use of the services of AfterPay by mentioning the AfterPay® payment service.
Client will place a hyperlink to the AfterPay terms and conditions (the conditions refer to the payment terms for Consumers) as a part of the payment process as indicated by AfterPay in the manner set out in Clause 8 of these General Terms and Conditions and will ensure that these are accepted by the Debtor in order to allow the payment to take place via AfterPay.
Clause 7 Obligations of the Client/provision of data
- The Client will furnish AfterPay digitally, according to AfterPay’s wishes, with the following data once an order has been performed and the Debtor has opted for payment through AfterPay:
- A current and accurate substantiation of the Receivable, including the separate items: the principal amount, taxes and fees charged by the Client (including postage);
- A file that the order has been delivered;
- Notwithstanding b., the Client can also offer the possibility to the Debtor to pick up the item which was ordered on the Internet in the shop. In that case, the Client shall notify AfterPay at which stores the possibility exists and will only provide the ordered item to the Debtor after submission of a valid ID by the Debtor. Client shall make a copy of this identity and promptly notify AfterPay the moment Debtor has picked up the order. At the request of AfterPay, the Client will be able to provide a copy of the ID to AfterPay;
- Notwithstanding b. and c., Client can also provide the opportunity for Debtor to use the AfterPay payment service in his store by placing an order which then will be delivered at home of the Debtor. In that case, the Client is to record all relevant data in the store and submit this data to AfterPay which AfterPay is then able to conduct a real-time online data check of Debtor and based on the result determines whether or not to accept the Receivable on the Debtor. The Client will inform AfterPay when the order has been delivered.
- The Client will ensure that it furnishes all of the data to AfterPay promptly.
- The Client is obliged to furnish supplementary data immediately when requested by AfterPay, such as, but not restricted to, data deemed necessary by AfterPay for the collection of Debts.
- The Client is aware that the prompt provision of data is essential for AfterPay and that failure to furnish data promptly will mean that the Client is in immediate default regarding fulfilment of the Agreement with AfterPay. If circumstances should arise or are anticipated whereby the Client will be unable to fulfil the obligation to provide data promptly, the Client will notify AfterPay about this in writing without delay, stating the circumstances, the measures taken or to be taken by the Client and the duration of the presumptive delay.
- If AfterPay determines that the provision of data has not occurred promptly, and AfterPay has notified the Client about this in writing, AfterPay can terminate the Agreement with the Client if the Client fails to respond within 3 working days of such notification. If it so wishes, AfterPay can also claim compensation amounting to at least 10% of the Receivable without prejudice to the right of AfterPay to compensation in full.
- The Client guarantees that the Debtor cannot lawfully offset or has not lawfully offset the Receivable and that the Debtor cannot suspend or has not lawfully suspended the payment. The Client guarantees that the Debts or receivables to be transferred or assigned to AfterPay will be free of any encumbrances.
- If the Debtor subsequently dissolves the agreement – including the return of ordered items under this – or lawfully nullifies the agreement or has it lawfully nullified, the Client will notify AfterPay about this immediately.
- The Client should ensure that the items ordered by the Debtor are delivered with care. The Client is responsible and liable for any incorrect deliveries to the Debtor. Only receivables/debts for delivered items can be transferred or purchased by AfterPay.
- The Client guarantees that it has obtained and processed the personal data furnished to AfterPay in accordance with the criteria stipulated in the Data Protection Act. The Client is responsible for the data processing in respect of orders on its site and is responsible for compliance with the Data Protection Act.
- AfterPay and the Client will refrain from actions, comments or working practices that might be considered inconsistent with social or statutory standards.
Clause 8 Client is obligated to provide information to Debtor
- Client informs Debtor, by inclusion in its general terms and conditions, about the transfer of the resulting Receivable to AfterPay. Client also informs Debtor about the applicable payment terms of AfterPay. Client is obligated to clearly state that the payment terms of AfterPay apply to payments by AfterPay® in its General Terms and Conditions on its website, in its catalog and all other sales channels. The Debtor needs to agree to the payment terms of AfterPay on the website(s). Client is also obligated to clearly and legibly place the name of AfterPay® and its corresponding logo on its website under the payment methods list(s) and under the online checkout at the payment methods overview.
- Client will use the by AfterPay supplied texts to inform the Debtor. Client is not allowed to change these texts if no written permission is given by AfterPay. Any by AfterPay proposed changes need, after mutual consultation and mutual agreement by the parties, to be changed by Client immediately after receipt of such changes.
3. If Client accepts a returned article from the Debtor after expiry of the approval period, it shall immediately inform AfterPay about this acceptance. AfterPay will cancel the corresponding purchase agreement relating to that Receivable and will collect the already paid purchase price back from Client The other rates specified in the Purchase Agreement remain due. Client will inform AfterPay within 48 hours after receiving a return of an order by a Consumer by adjusting the order in the order management system of AfterPay.
4. Basis for Parties is the composition of the current range of articles of Client. If significant changes occur in this assortment with a potentially deviating risk profile, Client will notify AfterPay prior to this. Any changes in the assortment, which may reasonably be expected to be able to influence the risk for AfterPay, will be agreed between Client and AfterPay in advance. AfterPay has the right to exclude a specific part of the assortment from its services AfterPay® or to change the agreement in whole or in part if changes in the assortment lead to a change in the risk profile of AfterPay. AfterPay reserves the right to terminate the existing cooperation between the parties in any situation at any time and in doing so avoids any obligation resulting in payment of any compensation to the Client.
Clause 9 Obligations of AfterPay
- For the purposes of executing the Agreement with the Client, AfterPay will perform an online creditworthiness check on the Debtor and, on that basis, will immediately inform the Debtor at the time of ordering whether AfterPay accepts the Debtor’s use of its payment service.
- The Debtor will furnish his/her personal data to AfterPay via the Client’s website within the context of using the payment service. The Client will allow the processing of its customers’ personal data within the context of the assignment of the Receivable. AfterPay will process the data in its database. AfterPay is solely responsible for data processing. AfterPay respects the privacy of Debtors and will ensure that personal information about Debtors is handled with confidentiality with due regard for the Data Protection Act and will act in full compliance with its privacy statement.
- For the purposes of executing the Agreement, AfterPay will attempt to combat fraud to the best of its ability by means of a fraud check.
- AfterPay will ensure that AfterPay’s payment solution is implemented in a secure environment.
- AfterPay will take over the risk of non-payment from the Client. The manner in which this is performed has been laid down in the Agreement concluded between the parties.
Clause 10 Customer Service Center
- The texts on the invoices, reminders and summation notices which will be written on behalf of Client's Customer Service will be written by AfterPay. All correspondence of the Customer Service shall be carried out on behalf and on writing paper of AfterPay.
- Questions relating to products delivered to the Consumer (including questions about products, warranty and complaints) will only be answered by Client or by third parties engaged.
- Questions of Debtors about invoices, as well as questions about the acceptance and rejection by AfterPay® are handled by AfterPay or by third parties engaged.
- If a Receivable is not or only partially fulfilled after the summons and notices of default, AfterPay can transfer the Receivable to the debt collection process. AfterPay collaborates with a debt collection agency and can transfer the Receivable in the context of a debt collection process to this agency. AfterPay charges the Debtor embankments if Debtor does not pay the amount to AfterPay within the payment period.
Clause 11 Debt Collection and Cession
In the event that a Receivable gets into the phase of the debt collection process, AfterPay will notify Debtor that it reserves the right to assign the Receivable to a third party mentioned in the final demand letter. Both AfterPay and the third party are entitled to deploy all possible legal remedies in order to get the Receivable paid and are entitled to increase the Receivable with the interest owed and with a compensation for extrajudicial costs, calculating until full payment is received.
Clause 12 Purchase Price and Payment
- The purchase price payable by AfterPay to Client for the accepted Receivables is the principal amount minus the fixed costs referred to in Agreement and minus the risk premium referred to in the Agreement.
- The by AfterPay payable amount is determined based on the Digital Invoice Specification. The Digital invoice specification will be sent weekly and includes all - in the previous week - to the Debtor of Client billed Receivables by AfterPay.
- Invoicing by AfterPay will take place after the Receivable has been captured by Client. A Receivable will be captured by Client after both the ordered product or products are sent and any return period and statutory mandatory return period has expired.
- The purchase price will be paid out as is determined in the Agreement.
Clause 13 Evaluation
- The cooperation between the parties can be evaluated after an initial period of 6 months and will be evaluated continually after the expiration of the agreed contract period by AfterPay based on the following criteria: Assortment of Client; Average order value; Delivered transaction volume; Sales performance and risk of non-payment.
- The effective date of the Agreement regarding the above mentioned evaluation is considered the date on which the operational processes actually takes effect. This date will be confirmed in writing between the parties.
Clause 14 Limitation of liability
- AfterPay is not liable for:
- loss or damage of whatever nature as a consequence of the non-availability of the AfterPay services, as well as a consequence of incorrect, outdated or incomplete information and/or calculations, unless the loss is attributable to the intent or gross negligence of AfterPay;
- loss or damage of whatever nature suffered by the Client as a result of faults in the Client’s (telecommunications) equipment and software, such as in the example of, but not restricted to, an order that cannot be executed as a consequence of this;
- loss or damage of whatever nature as a result of the deficient or non-operation of the website or of clicking on to the available methods of payment;
- loss or damage of whatever nature as a result of the failure or partial failure of the digital infrastructure, both in respect of the Client and in respect of the Debtor;
- loss or damage as a result of fraud (which cannot be detected by AfterPay), improper use, cancellation, the failure or partial failure of security measures and loss or damage as a result of the failure to follow AfterPay’s instructions.
- Insofar as AfterPay can be held liable for any loss, AfterPay is never liable for indirect or consequential loss or damage, including under this but not restricted to loss of turnover, loss of profits, missed orders, loss or damage due to delays to operations and the costs of recovery of data that has been wholly or partially lost.
- If a case of loss or damage should arise, the Client should notify AfterPay about it within 14 working days. The right to compensation will be nullified in the absence of this.
Clause 15 Force majeure
- If AfterPay or the Client is prevented from fulfilling an obligation in the Agreement as a result of force majeure, the party concerned will not then be obliged to fulfil the obligation as long as the situation of force majeure continues, unless it relates to a payment obligation. AfterPay understands the term force majeure to include a non-attributable failure on the part of AfterPay’s suppliers and faults to internet connections, telecommunications and electricity networks.
- If the force majeure situation has persisted for longer than one week, both AfterPay and the Client have the right to dissolve the Agreement by sending a written notification to the other party. Work that has already been performed will be settled pro rata without either the Client or AfterPay being held liable to pay for the remainder.
Clause 16 Intellectual property
1. All intellectual property rights pertaining to (the results of) AfterPay’s services, including but not restricted to the use of the name AfterPay® and the accompanying trademark, are exclusively owned by AfterPay. Granting a right to use the name, the trademark and/or (the results of) AfterPay’s services, does not imply any transfer of copyright or of any other intellectual property rights.
2. In providing its services, AfterPay certifies that it is not in breach of any third-party rights and that it will indemnify the Client against all third-party claims on the condition that the Client informs AfterPay without delay of the existence and content of any such claim and that the Client will allow AfterPay a discretionary right to conduct negotiations on the matter or to make a settlement or to conduct legal proceedings. Insofar as it may be necessary, the Client will fully cooperate with AfterPay and will furnish AfterPay with all the information necessary to contest third-party claims or to protect its intellectual property.
- All of the documentation, advice, software and other matters furnished by AfterPay to the Client with the intention of facilitating AfterPay’s services will remain the property of AfterPay and may not be reproduced, published or brought to the attention of third parties without AfterPay’s prior consent. Furthermore, it is not permitted to delete or circumvent the security measures or technical (user) restrictions of any software supplied by AfterPay.
Clause 17 Confidentiality
The parties are obliged to not to disclose to third parties and to keep confidential all confidential information that they have acquired from each other or from other sources within the context of the Agreement. Information is considered to be confidential if a party has notified the other party that it concerns confidential information or if the nature of the information is such that the other party should understand that the information should be treated as confidential. Only information which is already publically known, is not treated as confidentially.
Clause 18 Term of the agreement
Unless agreed otherwise in writing, the parties have entered an agreement for a fixed period as is determined in the Agreement. The Agreement can be extended automatically by one year. Both parties can give written notice to terminate the agreement at the end of the contracted period subject to a three months’ notice. If the cancellation is deemed unlawful, the party who unlawfully terminates the Agreement will be subject to pay a lump sum to the other party in the amount of 20% of the average annual profit that AfterPay earns on the contract.
Clause 19 Dissolution
Each of the parties is entitled to terminate their cooperation with immediate effect without prejudice to the right to compensation if:
a. there is an attributable failure on the part of the other party to fulfil its obligations;
b. circumstances come to the attention of the first party that give it good grounds to fear that the other party will not fulfil its obligations;
c. the other party is declared bankrupt or is granted a suspension of payments;
- a sizeable amount of the other party’s assets are attached;
- a situation arises or threatens to arise as a result of which the reputation of (one of the) parties might be damaged in their (its) personal opinion;
- unforeseen circumstances arise of such a nature that, according to criteria of reasonableness and fairness, the parties cannot expect each other to uphold the agreement unamended.
Clause 20 Suspension
AfterPay is entitled to suspend execution of the Agreement either wholly or in part if the Client fails to fulfil its obligations pursuant to this Agreement or if AfterPay is able to deduce from the Client’s actions and/or behaviour that the Client may be unable to fulfil its obligations or able to fulfil them insufficiently. All resulting damages for this must be paid in full by the Client to AfterPay.
Clause 15 Amendments to the General Terms and Conditions
1. AfterPay is authorized to adjust the General Terms and Conditions. AfterPay will send the adjusted General Terms and Conditions to the Client. The adjusted General Terms and Conditions take effect 30 days after receipt of it by the Client (“the Effective Date”). If the Client disagrees with the adjustments, it has the right to give notice to terminate the Agreement.
2. The Client is entitled to notify AfterPay in writing concerning whether it rejects the adjusted general terms and conditions until the Effective Date. If rejection has not taken place within the stipulated period, the Client will be deemed to have agreed to the adjusted general terms and conditions, which will apply to the Agreement as of the Effective Date.
Clause 16 Choice of law and forum
This Agreement between the Client and AfterPay, these General Terms and Conditions, any additional agreement and notice of transfer of a receivable will be governed by the laws of the Netherlands. Disputes between the parties will be settled before the competent court Noord-Nederland, location Leeuwarden.