FRAMEWORK CONTRACT FOR THE ISSUANCE, MANAGEMENT AND PROVISION OF MANGOPAY ELECTRONIC MONEY
General Terms and Conditions of Use of Electronic Money
Version of May 18, 2018
Concluded between :
The Site's customer, legal entity or natural person registered in the RCS (or in the national trade directory or any equivalent professional body) in a Member State of the European Union or in a State party to the European Economic Area or in a third country imposing equivalent obligations in terms of combating money laundering and terrorist financing, acting on its behalf exclusively for professional purposes (commercial, industrial, craft or liberal),
hereinafter referred to as "the User", or "Professional User",
The Site's customer, a natural person residing in a Member State of the European Union or in a State party to the European Economic Area or in a third country imposing equivalent obligations in terms of combating money laundering and terrorist financing, acting on its own behalf exclusively for non-professional purposes,
hereinafter referred to as the "User" or "Consumer User", on the one hand,
MANGOPAY SA, a public limited company governed by Luxembourg law, with a capital of 2,000,000 euros, whose registered office is located at 10 Boulevard Royal, L-2449 Luxembourg and registered in the Luxembourg Trade and Companies Register under number B173459, authorised to carry on business in France under its own name, as an electronic money institution approved by the Commission de Surveillance du Secteur Financier, 283 route d'Arlon L-1150 Luxembourg, www.cssf.lu
hereinafter referred to as the "Issuer", on the other hand
hereinafter referred to separately as a "Party" or together as the "Parties".
The User is invited to carefully read this Master Agreement, which has been communicated to him by the Distributor, before accepting it. He is invited to download it on Sustainable Support, according to the process proposed by the Distributor. By default, communications with the Issuer are always made through the Distributor, in accordance with the terms and conditions set out in the Site's General Terms and Conditions, except where a separate method of communication is provided for in the Agreement.
1. Definitions of the terms
For the purposes hereof, the following terms are defined as follows :
"Authentication": refers to the procedures defined by the Distributor to verify the identity of the User or the validity of a Payment Order. These procedures include the use of Personalized Security Data and Identification Data.
"Strong Authentication": refers to the Authentication procedures defined by the Distributor and meeting the requirements of the European Directive 2015/2366 of 25 November 2015. This strong authentication includes elements to establish a dynamic link between the Operation, the amount and the Beneficiary.
"Banks": refers to the credit institutions that hold the funds collected by the Issuer corresponding to the Electronic Money in circulation. The institutions selected to date are Crédit Mutuel Arkéa and ING Luxembourg. The Issuer reserves the right to select any other credit institution authorised in a Member State of the European Union or a party to the European Economic Area Agreement.
"Beneficiary": refers to a natural or legal person acting on its behalf, designated by the User from among the Site's customer persons, to whom the Electronic Money is transferred as part of a Payment Transaction. Any Beneficiary may become a User within the meaning of this Agreement as from its acceptance of the Master Agreement subject to acceptance by the Issuer. In certain cases, the Beneficiary may be the Distributor in accordance with the Special Conditions.
"Card": refers to the bank, payment or credit card used by the User to remit funds to the Issuer in exchange for the issuance of Electronic Money. This map is linked to one of the following networks: Visa, MasterCard, CB, Amex.
"Account": refers to an internal reference allowing the Issuer to identify in its books the various transactions of acquisition, use and redemption of Electronic Money carried out on behalf of the same User and to determine, at any time, the amount in euros of available Electronic Money held by the latter. The Account can under no circumstances be considered as a deposit account, a current account or a payment account.
"Site General Conditions": refers to the general conditions of use of the Site concluded between the User acting as a customer of the Site and the Distributor, governing in particular access to the Site.
"Master Agreement": means these General Terms and Conditions of Use of the Electronic Money, together with the Subscription Form and the Tariff Conditions, governing the use of the Services and the management of the Account by the Issuer.
"Tariff Conditions": refers to the financial terms agreed between the User and the Distributor, including the fees due under this Master Agreement. This document includes all fees paid for the acquisition, use and management of the e-Money as provided for in the Site's General Terms and Conditions.
"Distributor": refers to the entity, duly mandated by the Issuer, which operates the Site, whose contact details are indicated in the General Terms and Conditions of the Site. The Distributor prepares, facilitates and advises its customers with a view to concluding the Framework Agreement through its Site. It supports its clients throughout their relationship with the Issuer in the execution of their Payment and Repayment Transactions. To this end, the Distributor shall make available to any customer a customer service dedicated to Payment Transactions executed pursuant to this Agreement. The Distributor does not collect funds except for the fees agreed in the Tariff Conditions.
"Personalized Security Data": refers to the personalized data provided by the Distributor to the User for Authentication purposes. They include Identification Data, as well as any other data related to the Authentication or Strong Authentication procedure.
"Identification data": refers to the User's unique identifier and password, allowing him/her to access his/her Personal Space.
"Personal data": refers to any information relating to the User as a natural person, or to a natural person in connection with the User as a legal person (in particular a corporate officer, a beneficial owner, an authorised person), within the meaning of European Regulation 2016/679 on the protection of personal data.
"Issuer": refers to MANGOPAY. SA, issuer of the Electronic Money approved as such in Luxembourg by the Commission de Surveillance du Secteur Financier under reference no. 3812 and authorised to operate in all countries of the European Union. The Issuer is included in the list of electronic money institutions available at http://supervisedentities.cssf.lu/ index.html?language=en#Home
"Personal Space": refers to the User's dedicated environment, accessible on the Distributor's Site, allowing him/her to use the Services.
"Subscription Form": refers to the form to be completed by any prospect wishing to subscribe to the Services, accessible on the Site at the time of registration or made available by the Distributor.
"Identifier": refers to the data necessary for the identification of a User by the Issuer for the execution of a Payment Transaction consisting of a User (valid email address)
"Business Day": means a calendar day with the exception of Saturdays, Sundays and public holidays in metropolitan France and Luxembourg and any other day designated as such by the Issuer.
"Electronic Money": refers to the available monetary value representing a claim of the User on the Issuer. The Electronic Money is issued by the Issuer against the delivery of the corresponding euro (€) funds by the User and is a means of payment accepted exclusively by the Beneficiaries. The Issuer shall keep it in electronic form on its server by registering it in an Account opened for this purpose.
"Means of Payment": refers to the means of payment other than the Card, listed on the Site, offered on option by the Issuer in order to enable the User to remit funds to it in return for the issuance of Electronic Money.
"Payment Transaction": refers to the transfer of Electronic Money to a Beneficiary designated on the Site by a User.
"Order": refers to the instruction given by the User to the Issuer in accordance with the procedure provided for in the Master Agreement to execute a Payment Transaction and/or a Reimbursement.
"Payment page": refers to the page secured by Payline, the Issuer's electronic payment service provider. Only this address must be considered valid by the User. The User is invited to systematically check the address at the top of his page.
"Person concerned": refers to the User as a natural person or any natural person related to the User (in particular a corporate officer, a beneficial owner), whose Personal Data are processed in the context of the execution of this Framework Agreement.
"Refund": refers to the transfer by the Issuer, on the User's instructions, of non-cash funds corresponding to all or part of the available Electronic Money held by it, less any fees due.
"Services": Refers to the services of issuing, managing and making available the Electronic Money, provided by the Issuer to the User as described in Article 5 hereof.
"Distributor's Customer Service": refers to the service whose contact details are mentioned on the Site, from which the User may obtain information relating to this Master Agreement.
"Site": refers to the website operated by the Distributor whose purpose is to sell goods or services to Users or to collect funds from them, or to put Beneficiaries in contact with Users. The Site has integrated the API in the Brand's colours to allow the User to have a means of payment issued and managed by the Issuer to transfer funds to the designated Beneficiary.
"Durable medium": refers to any instrument allowing the User to store information addressed personally to him/her in order to be able to refer to it later for a period of time adapted to the purposes for which the information is intended and which allows the identical reproduction of the stored information. It is usually in the form of a PDF file.
"User": refers to any natural or legal person acting on its behalf holding Electronic Money registered on an Account opened in its name, in order to carry out one or more Payment Transactions.
The purpose of the Master Agreement is to define the conditions under which the Issuer provides the User with a means of payment exclusively accepted by the Beneficiaries as part of their relations established through the Site, in consideration of the fees described in Article 9 hereof.
The proposed means of payment must be systematically prepaid by the User and will not be subject to any advance, credit or discount. It is based on the Electronic Money issued and managed by the Issuer.
The Issuer has mandated the Distributor to offer this means of payment to the Site's customers, to facilitate the conclusion of this Agreement and to support Users throughout their relations with the Issuer.
Only the Framework Agreement shall be binding between the Parties in the event of a dispute.
3. Subscription to the Services
3.1 Subscription terms
The Master Agreement is concluded at a distance, according to the terms and conditions provided by the Distributor in the Site's General Terms and Conditions. In order to be able to conclude the Framework Agreement online, the customer must have equipment (hardware and software), for which he/she is solely responsible, that is compatible with this method of conclusion.
By default, the acceptance of the Framework Agreement is carried out remotely via the Site and is evidenced by an electronic signature. The customer has the option of requesting to sign the Master Agreement by hand. To this end, he must print this Master Agreement, sign it, and return it electronically or by post to the Distributor's Customer Service Department, whose contact details are indicated in the Site's General Terms and Conditions.
In the event of a handwritten signature, the date of conclusion of the Master Agreement shall be deemed to be the date indicated on it and, in the absence of a date, it shall be deemed to be the date of receipt of the Master Agreement by the Distributor.
The electronic signature of the Framework Agreement is made through the Site. The date of conclusion of the Master Agreement corresponds to the date on which the customer finalizes the electronic signature process indicated on the Site.
The Framework Agreement concluded between the Parties by electronic means has the same probative value as a paper-based Framework Agreement.
3.2. Contractual documents
The Master Agreement is composed of:
- these General Terms and Conditions for the Use of Electronic Money;
- the Subscription Form available on the Site;
- the Price Conditions communicated by the Distributor.
These General Terms and Conditions of Use for the Electronic Money, as well as the Price Conditions, are made available to the User on the Site and are downloadable on a durable medium in accordance with the terms and conditions indicated on the Site. At any time during the contractual relationship, the User may, if he so requests, receive these documents in paper form.
The Issuer shall maintain access to the contractual documents for a period of five (5) years from the end of the contractual relationship. The Issuer will cease to provide this service at the end of the aforementioned five (5) year period.
4. Opening the Account
4.1. Necessary conditions and prerequisites for the User's registration
Any natural person aged at least 18 (eighteen) years, legally capable and any legal person, resident and/or registered in a Member State of the European Union or in a State party to the Agreement on the European Economic Area or in a third country imposing equivalent obligations in terms of combating money laundering and terrorist financing, may submit an application to open an Account provided that the natural person is registered on the Site as a consumer or in a professional capacity. The legal person can only be referred to as a professional.
The User declares at the time of transmission of his application for registration to the Distributor and throughout the duration of the Master Agreement:
- that he is at least 18 (eighteen) years of age and legally capable;
- that he is acting on his own account;
- that all the information provided at the time of registration is sincere, accurate and up to date.
4.2. Procedure for registering and opening an Account
4.2.1. Information and supporting documents
Any prospect must send the Distributor the information and documents listed below, using the Subscription Form, if these information and documents are not already in the Distributor's possession.
The prospect undertakes to transmit information and documents corresponding to his or her status as a professional or consumer.
For the User, a natural person who is a consumer:
o surname, first name, e-mail address, date and place of birth, nationality and country of residence;
o a copy of an official identity document valid for the User (e.g. identity card, driving licence, and for nationals of countries outside the European Union a passport);
For the Professional User:
- for natural persons:
o surname, first name, e-mail address, date of birth and nationality and country of residence;
o an original or a copy of an extract from the official register dating less than three months from the date of registration as a trader or in the national trades directory or in any other professional body to which the User belongs;
o a copy of an official identity document valid for the User (e.g. identity card, driving licence, and for nationals of countries outside the European Union a passport).
- for legal entities:
o the name, company name, corporate form, capital, address of its registered office, description of its activity, identity of shareholders and corporate officers, as well as the list of beneficial owners as defined by the regulations;
o a Kbis extract or an equivalent document of less than three months' duration proving that it is registered in the SCR of a Member State of the European Union or of a State party to the Agreement on the European Economic Area or of a third country imposing equivalent obligations in terms of combating money laundering and terrorist financing and its statutes. This document must record the name, legal form, address of the registered office and identity of the shareholders and corporate officers mentioned in 1° and 2° of Article R. 123-54 of the French Commercial Code or their equivalents under foreign law;
o a copy of the articles of association and any decisions appointing the certified legal representative;
o a copy of the identity card or passport of the legal representative and, where applicable, of the beneficial owner(s);
o The declaration of the beneficial owners of the legal person holding more than 25%, in the event that the prospect has not declared his beneficial owners in the national register, or if he is not subject to this obligation.
The User may also be asked to provide a bank statement of an account opened in his name with a person mentioned in 1° to 6° bis of Article L. 561-2 of the Monetary and Financial Code established in a Member State of the European Union or in a State party to the Agreement on the European Economic Area or in a third country imposing equivalent obligations in terms of combating money laundering and terrorist financing.
It is expressly provided that the Issuer may request additional documents concerning the User, the beneficial owner or a specific payment transaction before any registration and at any time during the term of the Master Agreement.
4.2.2. Account Limitation
At the Issuer's free discretion, the use of an Account may be limited without the Issuer justifying its decision to the User concerned. In particular, the operation of the Account will be limited if the User has not transmitted all the information and documents required by the Issuer, as listed above. These limits are indicated to the User by the Distributor.
4.2.3. Finalization of the registration
After entering into the Master Agreement, the User must provide all the information and supporting documents requested by the Distributor. By agreeing to the terms of the Master Agreement, the User agrees that the Distributor may forward to the Issuer its application for registration as a User and all supporting documents received by it.
The Issuer is the only one who can accept the registration of a prospect as a User of an Account in its name. This agreement will be notified to the User by the Distributor by any means in accordance with the terms and conditions provided on the Site.
The Issuer may, without stating reasons or claiming compensation in favour of the User, refuse an application to open an Account. This refusal will be notified to the User by the Distributor by any means in accordance with the terms and conditions provided on the Site.
5. Account Operation
5.1. Electronic Money Purchasing
The acquisition of Electronic Money may be carried out, by Card (or any other means of payment accepted by the Issuer), on one or more occasions.
When he wishes to perform such an operation, the User identifies himself on the Site by indicating his User (valid email address) and password or by logging in via his Facebook account.
The funds transfer order is transmitted on a dedicated payment page. For any payment, the Issuer may require the entry of a single-use code notified on the User's mobile phone by the institution issuing the Card. Where applicable, it is the Issuer's responsibility to refuse any payment at its own discretion and without this decision giving rise to any compensation. The money transfer operation is carried out by the card issuer. Any dispute concerning such a transfer must be notified to the said establishment. The Issuer is not entitled to cancel such a transfer. Notwithstanding the foregoing, the User may obtain a Refund from the Electronic Mint in accordance with Article 5.4.
The registration of the e-Money in the name of the User may be subject to the actual receipt of the funds collected less the fees agreed in the Tariff Conditions.
In the event that the transfer of funds is cancelled by the Card issuer following a dispute, for whatever reason, the Issuer may, upon receipt of the information, suspend or cancel any Payment Transaction, close the Account concerned, debit the Account at any time with the amount of the Electronic Money corresponding to the funds whose transfer is cancelled and proceed to recover the sums due by the User by any means.
5.2. Account operation
The Electronic Money is stored for an indefinite period of time on the User's Account by the Issuer under the agreed Tariff Conditions.
The Account is credited by the acquisition of Electronic Money against the delivery of funds ordered by the User directly to the Issuer by Card (or any other means of payment accepted by the Issuer) less the corresponding charges as provided for in the Tariff Conditions. This Account is debited by Order of the Electronic Money User for the amount of the Payment or Reimbursement Transaction performed and the related fees as provided for in the Tariff Conditions. The Issuer is entitled to debit this Account at any time with the amount of Electronic Money corresponding to the fees due and payable under the Tariff Conditions.
The amount of Electronic Money available on the Account is immediately adjusted according to:
- fees due and payable by the Account User, which are paid in Electronic Money;
- Orders transmitted (or in the process of being transmitted) to the Issuer relating to the Electronic Money stored on the Account;
- funds received by the Issuer in consideration of the acquisition of Electronic Money on the Account;
- and any cancellation relating to any of the aforementioned transactions pursuant hereto.
Before transmitting an Order, the User must ensure that he has sufficient available Electronic Money to cover the amount of the Payment Transaction and the related costs as agreed in the Tariff Conditions.
If applicable, it shall acquire sufficient Electronic Money in accordance with Article 5.1 before the Order can be validly transmitted to the Issuer for execution. The e-Money may only be held by the User subject to the actual delivery of the corresponding funds. The e-Money may not be issued on credit. Thus, when the amount of Electronic Money available on the date of execution of the Order by the Issuer is less than the amount of the Payment Transaction (including fees), the Order is automatically rejected by the Issuer. Information relating to this refusal is made available to the User on the Site. This refusal may give rise to additional costs in accordance with the Tariff Conditions.
The methods of transmission of an Order by the User are as follows:
When he wishes to carry out a Payment Transaction, the User identifies himself on his Personal Space by indicating his Identification Data, and, if applicable, by following the Strong Authentication procedure indicated to him. He completes the appropriate form on the Payment Page and, if necessary, provides the supporting documents requested by the Issuer. The form must indicate the following elements: the amount expressed in euro (€) of the Payment Transaction, the elements allowing the Beneficiary to be identified, the date of execution of the Order and any other required information.
The User gives his irrevocable consent to the Payment Order by clicking on the "Validation" tab ("Date of receipt"). The receipt of the Payment Order is confirmed on the User's Personal Space or by the receipt of an email. No Order may be withdrawn by the User after the date on which it is deemed irrevocable, i.e. from the Date of receipt.
In certain cases, the User may complete a single form containing a transfer order for funds as provided for in Article 5.1 and an Order allowing a Payment Transaction to be carried out in accordance with the previous paragraph.
Execution of the Order:
The amount of the Payment Transactions shall be deducted from the available Electronic Money recorded in the Account to be credited to the Beneficiary in accordance with the User's instructions. Thus, the Beneficiary may open an Account in accordance with Article 4.2 to receive the Electronic Money if it is not already a User. The funds corresponding to the Electronic Money used may, where applicable, be transferred directly to a bank or payment account opened in the name of the Beneficiary upon receipt of the details of such account by the Issuer. To this end, the Beneficiary must provide the IBAN and SWIFT code of the bank or payment account held by him/her and his/her address. This account must be opened by a banking or payment institution established in a Member State of the European Union, a State party to the Agreement on the European Economic Area or a third country imposing equivalent obligations in terms of combating money laundering and terrorist financing.
It is expressly agreed that the Orders will be executed no later than the end of the Business Day following the Date of receipt of the Order by the Issuer (and on the execution date agreed for Term or Standing Orders), if the Beneficiary has an Account. If applicable, the Date of receipt must be postponed to the opening of the Account or to the day on which the Issuer collects the details of the Beneficiary's bank account or payment account to which the funds are to be transferred.
Any Order received after 4pm by the Supplier is deemed to have been received on the following Business Day. If the Receipt Date is not a Business Day, the Order is deemed to have been received on the next Business Day.
5.4. Transmission and execution of a Refund Order
When he wishes to transmit a Refund Order, the User identifies himself on the Site by indicating his Identification Data or by connecting through his Facebook account. He completes the appropriate form on the Payment Page and, if necessary, provides the supporting documents requested by the Issuer. The User must indicate on the form the following elements: the amount of the Refund, the date of execution of the Order and any other required information.
The User gives his irrevocable consent to the Payment Order by clicking on the "Validation" tab ("Date of receipt"). The receipt of the Payment Order is confirmed on the User's Personal Space or by the receipt of an email. No Order may be withdrawn by the User after the date on which it is deemed irrevocable, i.e. from the Date of receipt.
The Refund will be made by crediting the Card (or Means of Payment) used by the User to acquire e-Money. If applicable, it will be carried out by transferring funds to the Beneficiary's bank or payment account, the details of which will have been notified to the Issuer ("Notification Date"). It is agreed between the Parties that the Refund will be executed at the latest at the end of the Business Day following the Date of receipt or notification, as the case may be.
Any Refund Order received after 4pm by the Supplier shall be deemed to have been received on the next Business Day. If the Receipt Date is not a Business Day, the Order is deemed to have been received on the next Business Day.
5.5. Withdrawal of an Order
No Order may be withdrawn by the User after the date on which it is deemed irrevocable as indicated above.
The User has a statement of transactions on the Account in his Personal Space. He is invited to read carefully the list of these operations. The User acknowledges that only the statement of Payment Transactions validated by the Issuer is equivalent to the Issuer's acknowledgement of the amount of Electronic Money available on the Account closed on the date indicated on the statement. The User may access at any time on his personal page accessible on the Site the indicative amount of Electronic Money available on his Account.
It is specified that for each Transaction carried out on his Account, the User will have the following information: the reference of the Transaction, the identification of the Beneficiary, the amount of the Transaction, the date of receipt of the Order, and, if applicable, the costs relating to the execution of this Transaction.
The Issuer shall make available to the User upon request the monthly statements of the Account covering the previous thirteen (13) months.
7. Opposition to Personalized Security Data
The User must inform the Distributor of the loss or theft of his Personalized Security Data, the misappropriation or any unauthorized use of his Personal Space or data as soon as he becomes aware of it in order to request its blocking. This declaration must be made:
- by telephone call to the Distributor's customer service at the number indicated in the Site's General Terms and Conditions, or ;
- directly by e-mail via the contact form available on the Site.
The Issuer, through the Distributor, will immediately execute the request to oppose the relevant Identifier. The event will be recorded and time-stamped. An opposition number with time stamp will be communicated to the User. A written confirmation of this opposition will be sent by the Distributor to the User concerned by electronic message. The Issuer takes charge of the file administratively and keeps all traces for 18 (eighteen) months. Upon written request by the User and before the expiry of this period, the Issuer shall provide a copy of this opposition.
Any request for opposition must be confirmed without delay by the User concerned, by letter signed by the latter, delivered or sent by registered mail, or by email, to the Issuer at the postal address at the top of this document.
The Issuer and the Distributor shall not be held liable for the consequences of an opposition by fax or e-mail, which does not originate from the User.
An opposition request is deemed to be made on the date and time the Distributor actually receives the request. In the event of theft or fraudulent use of the Identifier, the Issuer is entitled to request, through the Distributor, a receipt or a copy of the complaint submission from the User, who undertakes to respond as soon as possible.
8. Contesting an Operation
8.1. Provisions common to all Users
For any complaint relating to Payment or Repayment Transactions made by the Issuer hereunder, the User is invited to contact the Distributor's customer service department or the address indicated for this purpose in the Site's General Terms and Conditions.
If an Order is executed by the Issuer with errors due to the latter's fault, the dispute must be transmitted as soon as possible to the Service Provider, the Order is cancelled and the Account is restored to the situation it was in before the payment order was received. Thereafter, the Order is properly represented.
Fees indicated in the Tariff Conditions may be charged in the event of an unjustified objection to a Transaction.
8.2. Provisions applicable to the Professional User
The Professional User who wishes to dispute a transfer transaction not authorized by him or improperly executed must contact the Distributor's Customer Service by telephone as soon as possible after becoming aware of the anomaly and no later than eight (8) weeks following the registration of the transaction in the account, provided that he forwards the dispute to the Issuer as soon as possible. Unless the Issuer has reasonable grounds to suspect fraud by the User, the Issuer shall refund the amount of the Transaction to the User immediately after receiving the request for dispute, and in any event no later than the end of the first following Business Day. The Issuer restores the Account to the state in which it would have been if the unauthorised payment transaction had not taken place.
In the event of loss or theft of Personalized Security Data, unauthorized Transactions performed prior to notification of the objection are the responsibility of the User. Operations carried out after the opposition are borne by the Issuer except in the event of fraud by the User.
8.3. Provisions applicable to the Consumer User
The Consumer User who wishes to dispute a transfer transaction not authorized by him or improperly executed must contact the Distributor's Customer Service by telephone as soon as possible after becoming aware of the anomaly and no later than thirteen (13) months following the debit date, on the condition that he forwards the dispute to the Issuer as soon as possible. Unless the Issuer has reasonable grounds to suspect fraud by the User, the Issuer shall refund the amount of the Transaction to the User immediately after receiving the request for dispute, and in any event no later than the end of the first following Business Day. The Issuer restores the Account to the state in which it would have been if the unauthorised payment transaction had not taken place.
In the event of a dispute, the burden of proof that the Transaction has been authenticated, duly recorded and accounted for, and that it has not been affected by a technical or other deficiency rests with the Issuer.
In the event of an unauthorized payment transaction resulting from the loss or theft of Personalized Security Data, the User shall, prior to notification of the opposition, bear the losses related to the use of Personalized Security Data, up to a maximum of fifty (50) euros. Operations carried out after the opposition are borne by the Issuer except in the event of fraud by the User. However, the User is not liable in the event of:
- Unauthorized payment transaction made without the use of Personalized Security Data;
- Loss or theft of Personalized Security Data that cannot be detected by the User prior to payment;
- Loss due to the actions or failure of an employee, agent or branch of a PSP or an entity to which its activities have been outsourced.
Nor is the User liable:
- if the unauthorized payment transaction was carried out by misappropriating, without the User's knowledge, the Personalized Security Data;
- in the event of counterfeiting of Personalized Security Data, if, at the time of the unauthorized payment transaction, the User is in possession of such Data.
The User shall bear all losses caused by unauthorized Transactions if such losses result from fraudulent conduct on his part or if he has not intentionally and grossly negligently failed to comply with the obligations to maintain the security of his Personalized Security Data and to notify the opposition in the event of loss, theft or misuse of such Data.
Unless it acts fraudulently, the User shall not bear any financial consequences if the unauthorised Transaction has been carried out without the Issuer requiring a strong Authentication from the User, in cases where the regulations provide that the latter is mandatory.
9. Financial conditions
The services provided hereunder are billed by the Distributor in its own name and on behalf of the Issuer in accordance with the Tariff Conditions.
All fees due by the User are automatically deducted from the Electronic Money Account by the Issuer. The User authorises the Issuer to offset at any time, including after the Account has been closed, any certain, liquid and payable debt that remains due, for any reason whatsoever. It may offset the provision of the Electronic Money Account with any amount due, payable and unpaid by the User to the Issuer.
10. Duration and termination
The Framework Agreement is concluded for an indefinite period. It shall enter into force as from its acceptance by the User.
The User may terminate the Framework Agreement at any time and subject to thirty (30) calendar days' notice. The Issuer may terminate the Master Agreement at any time, subject to two (2) months' notice provided on Sustainable Support. In this case, the fees regularly charged for the Services will be due by the User in proportion to the period expiring on the date of termination.
Beyond six (6) months, the Master Agreement may be terminated without charge. In other cases, termination fees may apply in accordance with the Tariff Conditions.
To do so, each Party must send its notice of termination of this Agreement to the other Party by registered letter with acknowledgement of receipt to the postal address or e-mail address indicated in the Site's General Conditions.
The User must indicate in the termination letter the details of his bank account or payment account allowing the Issuer to reimburse him for the available Electronic Money. In the absence of any indication, it is the Issuer's responsibility to follow the Repayment instructions involving the credit repayment of the Card used to acquire the Electronic Money. The Issuer is released from any obligation once it has confirmed to the User the transfer to the account indicated or the credit to his Card of the amount of the Electronic Money.
In the event of a serious breach, fraud, or unpaid invoices by the User, the Issuer reserves the right to suspend or terminate this Agreement by sending an email accompanied by a registered letter with acknowledgement of receipt.
In the event of the appointment of a successor of the Issuer to issue the Electronic Money distributed on the Site, it is the Distributor's responsibility to obtain the express written consent of the User to this change, on the amount of Electronic Money available and to inform the Issuer of the terms and conditions for transferring the corresponding funds to the Available Electronic Money.
11. Amendment of the Master Agreement
The Issuer reserves the right, at any time, to amend the Master Agreement. Any proposed amendment to the Master Agreement shall be provided to the User by the Distributor on a durable medium no later than two (2) months before the proposed effective date of the Master Agreement. Any new service proposed by the Issuer will be subject to an amendment to the Master Agreement.
Any User may refuse the proposed modifications and must notify the Distributor's Customer Service by registered letter with acknowledgement of receipt 2 months before the date of entry into force of the proposed modifications (as evidenced by the postmark) to the address indicated in the General Conditions of the Site.
If the User has not notified his refusal before the indicated date of entry into force, he is deemed to accept the proposed modifications.
The relationship between the Parties after the effective date will then be governed by the new version of the Master Agreement.
In the event of refusal by the User, such refusal shall give rise, free of charge, to the termination of the Master Agreement, as well as to the Reimbursement of the Electronic Money units belonging to it within a period of thirteen (13) months following the effective date of the termination in order to cover any future disputes.
Any legislative or regulatory provisions that would require the modification of all or part of the Master Agreement will be applicable from their date of entry into force, without notice. However, the User will be informed of this.
12. Safety and security
The Issuer undertakes to provide its services in compliance with applicable laws and regulations and good engineering practice. In particular, the Issuer will make every effort to ensure the security and confidentiality of Users' data, in accordance with the regulations in force.
The Issuer reserves the right to temporarily suspend access to the Online Account for technical, security or maintenance reasons without any compensation. It undertakes to limit this type of interruption to what is strictly necessary.
However, the Issuer may not be held liable to the User for any errors, omissions, interruptions or delays in transactions carried out via the Site resulting from unauthorised access to the Site. The Issuer shall not be held liable for any unauthorized theft, destruction or communication of data resulting from unauthorized access to the Site. In addition, the Issuer remains outside the legal relationship between the User and the Beneficiary of the Payment Transaction or between the User and the Site. The Issuer shall not be liable for any fault, failure or negligence of the User or Beneficiary towards each other, or of the Site and the User towards each other.
If the unique identifier or any other information necessary to execute a Payment Transaction provided by the User is inaccurate, the Issuer shall not be liable for the improper performance of such Service.
The Distributor is solely responsible for the security and confidentiality of the data exchanged in connection with the use of the Site in accordance with the Site's General Terms and Conditions, the Issuer being responsible for the security and confidentiality of the data it exchanges with the User hereunder in connection with the creation and management of its Account, as well as the Payment Transactions associated with the Account.
13. Limitation of the Issuer's liability
The Issuer does not intervene in any way in legal and commercial relations and any disputes arising between the Beneficiary and the User or between the User and the Distributor. The Issuer has no control over the compliance, security, legality, characteristics and suitability of the products covered by a Payment Transaction. In this respect, it is the User's responsibility to take all relevant information before purchasing a product or service, raising funds or carrying out any operation in full knowledge of the facts. Each operation carried out by the User gives rise to a contract directly formed between him and the Beneficiary or Beneficiaries to which the Issuer is a foreigner. The latter may not therefore be held liable for the non-performance or improper performance of the obligations resulting therefrom, nor for any damage caused to the User in this respect.
Notwithstanding anything to the contrary in this Agreement, the Issuer's liability to a User is limited to the compensation of direct damage as provided for by regulation.
14. Commitments of the User
The User guarantees that no element of his Personal Space on the Site infringes the rights of third parties or is contrary to law, public order and morality. The User certifies the conformity, lawfulness and appropriateness of the Gift made to the Beneficiary, the purchase of the property from the Beneficiary.
It undertakes not to perform the Master Agreement in an illegal manner or under conditions likely to damage, disable, overburden or alter the Site. He undertakes not to impersonate another person or entity, to falsify or conceal his identity, his age or to create an identity.
In the event of failure to comply with these obligations, the Issuer reserves the right to take any appropriate measure to put an end to the acts concerned. He will also be entitled to suspend, delete and/or block his access to the Account. Without prejudice to legal actions brought by third parties, the Issuer is entitled to take any legal action in a personal capacity to compensate for any damage it may have personally suffered as a result of the User's failure to fulfil its obligations under this Agreement.
15. Right of withdrawal
15.1 Provisions applicable to all Users
The User who has been approached within the meaning of Articles L. 341-1 et seq. of the Monetary and Financial Code has a period of fourteen (14) completed calendar days to exercise his right of withdrawal, subject to meeting the conditions of Article D. 341-1 of the same code, if applicable, without having to justify any reason or incur any penalty.
This withdrawal period begins to run from the day of his registration as a User.
15.2 Provisions applicable to the Consumer User
Under the terms of Article L. 222-7 of the Consumer Code, the Consumer User has a right of withdrawal that can be exercised within a period of fourteen (14) days without having to justify any reason or incur any penalty. This withdrawal period shall start to run either from the day of conclusion of the Framework Agreement or from the receipt of the contractual conditions and information, if the latter is later than the date of conclusion of the Framework Agreement.
The Framework Agreement may only be commenced before the expiry of the withdrawal period with the consent of the Consumer User. The Consumer User acknowledges that the use of the Services after the conclusion of the Framework Agreement shall constitute an express request on his part to start the performance of the Framework Agreement before the expiry of the aforementioned period.
The exercise of the right of withdrawal shall entail termination of the Framework Agreement which, in the event of commencement of performance, shall take the form of termination and shall not affect the services previously performed. In this case, the Consumer User shall only be required to pay proportionally for the Services actually provided.
15.3 Exercise of the right of withdrawal
The User must notify the Distributor's Customer Service by telephone or email of his withdrawal request within the time limit set and send a confirmation letter to the Distributor's Customer Service address. For this purpose, he may use the withdrawal slip provided by the Distributor.
16. Rules to combat money laundering and terrorist financing
The Issuer is subject to all Luxembourg and French regulations relating to the fight against money laundering and terrorist financing.
In accordance with the provisions of French and Luxembourg law relating to the participation of financial undertakings in the fight against money laundering and terrorist financing, the Issuer is required to obtain information from any User for any transaction or business relationship relating to the origin, purpose and destination of the transaction or the opening of the Account. He must also perform all due diligence necessary to identify the User and, where applicable, the Beneficiary of the Account and/or the Payment Transactions related to it.
The User acknowledges that the Issuer may terminate or postpone at any time the use of Personalized Security Data, access to an Account or the execution of a transaction or a Reimbursement in the absence of sufficient information on its purpose or nature. It is informed that a transaction carried out hereunder may be subject to the exercise of the right of disclosure by the national financial intelligence unit.
The User may, in accordance with the regulations, access all the information thus communicated, provided that this right of access does not affect the purpose of combating money laundering and terrorist financing when this data relates to the applicant.
No action or civil liability action may be brought or professional sanction imposed against the Issuer, its directors or officers who have made in good faith the reports of suspicion to their national authority.
17. Protection of Personal Data
The Issuer collects and processes any Personal Data in accordance with the regulations in force applicable to the protection of such Data, and in particular with Law No. 78-17 of 6 January 1978 as amended and European Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016.
The Personal Data required at the time of subscription is necessary for the services provided pursuant to this Agreement. In the event of failure to provide the required Personal Data, the requester may be denied access to the services.
The Data Subject is informed that Personal Data are collected for the following purposes in particular: the provision of the services provided as described herein; the fight against money laundering and terrorist financing; the processing of requests for information and complaints; the production of statistics. These processing operations are necessary in particular for the performance of the Framework Agreement and for compliance with the legal obligations to which the controllers are subject. The Issuer and the Distributor act as joint controllers for these processing operations.
Personal Data will not be transmitted to any third party without the express consent of the Persons concerned. However, the Data Subject is informed that the Personal Data are transmitted to subcontractors of the Issuer for the purposes mentioned above. Such subcontractors shall act only on instructions from the Issuer and exclusively on behalf of the latter.
The Person concerned may access the list of subcontractors by sending his request to the Distributor's Customer Service Department. It is informed that the Issuer ensures that its subcontractors take all necessary measures to preserve the security and confidentiality of Personal Data. In the event of a violation of Personal Data (loss, intrusion, destruction, etc.) involving high risks for the Person concerned, the latter will be informed.
The Issuer reserves the right to disclose Personal Data at the request of a legal authority to comply with any applicable law or regulation, to protect or defend the rights of the Account holder or a relevant Person, if compelling circumstances so warrant or to protect the safety of the Account holder, the Services or the public.
Personal Data processed by the Issuer in connection with the services provided hereunder shall be retained for as long as strictly necessary to achieve the purposes mentioned above. Unless otherwise provided by law and regulation, Personal Data will not be retained beyond the effective date of termination of the Agreement. In particular, it is specified that Personal Data relating to identification are kept for a period of five years from the end of the contractual relationship, in accordance with the regulations applicable to the fight against money laundering and terrorist financing.
The Data Subjects have the following rights over their Personal Data, under the conditions provided for by the regulations: right of access, right of rectification, right of opposition, right to erasure, right to limit processing and right to portability. A Person concerned may at any time exercise his rights by contacting the Distributor's Customer Service Department. His request must indicate his surname, first name and identification, and be accompanied by a photocopy of an identity document bearing his signature.
A reply will be sent to the Person concerned within one (1) month of receipt of the request. This period may be extended by two (2) months, depending on the complexity and number of requests. In this case, the Person concerned shall be informed of the extension and the reasons for the postponement within one (1) month of receipt of the request.
The Data Subject is informed that he/she has the right to file a complaint with the competent authority for any request relating to his/her Personal Data.
If the Person concerned submits his or her request in electronic form, the response will be provided electronically, unless he or she expressly requests otherwise.
Where the Personal Data relate to a Data Subject who is not a party to the Framework Agreement and has been transmitted by the User, the User is responsible for communicating the information in this Article to the Data Subject.
18. Professional secrecy
The Issuer is bound by professional secrecy. However, this secrecy may be lifted, in accordance with the legislation in force, by virtue of a regulatory and prudential legal obligation, in particular at the request of the regulatory authorities, the tax or customs administration, as well as that of the criminal judge or in the event of a judicial requisition notified to the Distributor. Notwithstanding the foregoing, the User may exempt the Distributor from professional secrecy by expressly indicating to him the third parties authorized to receive confidential information concerning him.
It is specified that professional secrecy may be lifted by the effect of regulation for the benefit of companies providing the Distributor with important operational tasks within the scope of this agreement.
19. Intellectual Property
The Issuer retains full ownership of the securities and ownership rights whatsoever attached to the Services offered to the User. None of these property rights are transferred to the User hereunder.
20. Death of the User and Inactive Accounts
20.1 Death of the User
The death of the User terminates the Master Agreement as soon as it is brought to the attention of the Issuer. Operations occurring after death are, unless otherwise agreed by the beneficiaries or the notary in charge of the estate, considered as not having been authorised.
The Electronic Money Unit Account shall remain open for the time necessary to settle the succession and the Distributor/Issuer shall settle the balance with the agreement of the beneficiaries or the notary in charge of the succession.
20.2 Inactive accounts
Any inactive Electronic Money Unit Account may be subject to an inactivity notification by e-mail from the Distributor, followed by a reminder one (1) month later. The User's Account is considered inactive when, at the end of a twelve (12) month period, it has not been the subject of any transaction (excluding the deduction of management fees) at the User's (or any agent's) initiative and has not been reported to the Distributor in any form whatsoever.
In the absence of a response or use of the Electronic Money available within this period, the Account will be closed and maintained for the sole purpose of refunding the Electronic Money. Management fees may be charged by the Issuer.
The Account may no longer give rise to the subsequent use of the Electronic Money.
21. Force majeure
The Parties shall not be held liable, or considered to have failed hereunder, in the event of delay or non-performance, when their cause is related to force majeure as defined by Article 1218 of the Civil Code.
22. Independence of contractual provisions
If any of the provisions hereof are held to be null and void, they shall be deemed unwritten and shall not render the other provisions null and void.
If one or more of the provisions hereof become null and void or are declared null and void pursuant to any law, regulation or final decision of a competent court, the remaining provisions shall remain binding and enforceable. Provisions declared null and void and invalid will then be replaced by the provisions that most closely resemble the meaning and scope of the provisions initially agreed.
23. Protection of funds collected
The User's funds are deposited at the end of each Business Day in an account opened with a Bank and are confined by the latter.
Pursuant to Article 24-10 (1) (a) of the Law of 20 May 2011 published in Mémorial A No. 104 of 24 May 2011 of the Grand Duchy of Luxembourg and Article 14 of the Law of 10 November 2009 published in Mémorial A No. 215 of 11 November 2009 of the Grand Duchy of Luxembourg, transposing Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up and pursuit of the business of electronic money institutions, the funds collected shall be protected and shall not fall within the electronic money institution's assets in the event of its liquidation, bankruptcy or any other assistance.
The Framework Agreement may not be assigned in whole or in part by the User, whether for a fee or free of charge. It is therefore prohibited to assign to a third party any of the rights or obligations it holds hereunder. In the event of failure to comply with this prohibition, in addition to the immediate termination of this agreement, the Issuer may be held liable.
25. Convention of proof
All data recorded in an unalterable, reliable and secure way in the computer database of the Issuer relating in particular to payment orders and confirmations received from the User, notifications sent, access, Withdrawal and Refund shall be binding between the parties until proven otherwise.
26. Complaint and mediation
The User is invited to contact the Distributor's Customer Service Department, which may be indicated on the Site for any complaint.
Any complaint other than that provided for in Article 8 relating to the conclusion, performance or termination of the Framework Agreement and the e-Money issuance and management services shall be notified by e-mail to the following address: email@example.com.
The User accepts that the Issuer may respond to its complaints on a durable medium. The reply will be sent as soon as possible and at the latest within fifteen (15) Business Days following receipt of the complaint by the Issuer. However, for reasons beyond its control, the Issuer may not be able to respond within this fifteen (15) day period.
In this case, he will communicate to the User a reply specifying the reasons for this additional period as well as the date on which he will send the final reply. In any event, the User will receive a final response no later than thirty-five (35) Business Days following receipt of the complaint.
The User is informed that the CSSF (Commission de Surveillance du Secteur financier) is competent to settle disputes relating to the performance of this Framework Agreement on an out-of-court basis. For more information on the CSSF and the conditions of such recourse, the User may contact the Distributor's Customer Service or consult the CSFF website (http://www.cssf.lu). Requests for mediation should be addressed to the Mediator of the Commission de Surveillance du Secteur Financier (CSSF), 283 route d'Arlon, L-1150 Luxembourg, (firstname.lastname@example.org) and this, without prejudice to other legal proceedings. However, the case may not be referred to the mediator if the request is manifestly unfounded or abusive, if the dispute has previously been examined or is being examined by another mediator or by a court, if the request to the mediator is made within a period of more than one year from the written complaint to the professional, if the dispute does not fall within the scope of the mediator's competence.
27. Language - Applicable law and competent jurisdiction
Except in the case of the application of a public policy law (which will only apply within the strict limits of its purpose), it is expressly stipulated that English is the language chosen and used by the Parties in their pre-contractual and contractual relations, and that the Framework Agreement is subject to French law and that any dispute between the Parties in respect thereof shall be subject to the jurisdiction of the competent French courts.