These terms and conditions (the “Agreement”) govern the supply of the Service by Jarsatt Ltd (Company number 1641620), also known as ForestCloud Payments and/or ForestCloud Pay, a company incorporated in British Virgin Islands and having its registered office at Quijano Chambers P.O. Box 3159 Road Town, Tortola (“ForestCloud” or “We”) to you (“User”, or “You”).
ForestCloud is a specialised mobile commerce business providing services that facilitate credit and debit card payments using the Cardholder Device and who is willing to provide such services to User on the Terms and Conditions set out in this Agreement.
In this Agreement, the following terms shall have the following meanings:
1.1 Account: means User’s on-line account maintained by ForestCloud where records of User’s Account Information are held.
1.2 Account Information: means (i) details of processed transactions, applicable fees, and available balance in respect of Transactions and (ii) the personal or business information, settlement bank details, Account details, password, details of User’s debit card and other login information of User that is provided by User and stored on the Account or otherwise provided to or made available to ForestCloud.
1.3 Acquirer: means an organisation with which ForestCloud has a contractual relationship, pursuant to which such organisation authenticates, authorises, and settles credit and/or debit card transactions, including refunds and chargebacks.
1.4 Affiliate: means, in relation to a company which is, on or after the date of this Agreement, its subsidiary or holding company, or a subsidiary of such holding company.
1.5 Card Issuer: means the organisation from which a Cardholder receives his/her Card.
1.6 Cardholder: means the customer of a User who wishes to execute a Transaction with a Card and whose name is written on the Card.
1.7 Card(s): means a plastic payment card that in its appearance, layout of its data, and protective components corresponds on the face and reverse side to the specifications of the relevant Card Scheme. The Card remains the property of the Card Issuer and is issued to the Cardholder for use. The Card is non-transferable.
1.8 Cardholder Device: means a device with voice data and/or Wi-Fi connectivity capabilities. Cardholder Devices may include but not limited to smartphones, mobile feature phones, tablet and desktop computers.
1.9 Card Scheme: means a worldwide incorporated body regulating and processing specific brands of Cards, namely: VISA, VISA International Inc., and MasterCard and such other bodies or schemes as ForestCloud may determine from time to time.
1.10 Card Scheme Rules: means the rules and regulations issued by the Card Schemes.
1.11 Chargeback: means the reversal of a Transaction in accordance with the Card Scheme Rules.
1.12 Confidential Information: means information that is designated as “confidential” or which by its nature is clearly confidential including any information relating to this Agreement; any one of the Card Schemes; ForestCloud’s technology, technical processes, procedures, business affairs, finance and other proprietary knowledge, however any such information is conveyed or presented.
1.13 Consequential Loss: means consequential, incidental, special, indirect or punitive damages, or any loss of actual or anticipated profits (or any other economic loss), loss of data, loss of opportunity, loss of goodwill and loss of reputation, whether the claim in respect of such loss is made in contract or in tort or on any other basis, and whether or not such loss was foreseeable.
1.14 Developer Account: means an Account created with ForestCloud for the purposes of building and testing a mobile application using the Services.
1.15 Developer Tools: means the application programming interface, sandbox, software development kits and other developer tools that help developers quickly add the Services to their merchant customers’ mobile application.
1.16 Fee(s): means the fee or fees as set out in Appendix A (as the same may be modified or updated from time to time) and to which you must agree during the registration process and which form an inseparable part of this Agreement.
1.17 IVR: means an interactive voice recording service is used on a touchtone phone.
1.18 Losses: means actions, proceedings, damages, liabilities, claims, costs and expenses including fines, penalties, legal and other professional fees and expenses.
1.19 Marks: means the service marks, trademarks or registered symbols of any of the Card Schemes, ForestCloud and/or any of ForestCloud’s partners in providing the Service.
1.20 Overage fees: means fees charged for transactions in excess of the maximum transaction value per month in the Subscription fee model.
1.21 Parties: means ForestCloud and User and “Party” shall mean either of them as the context requires.
1.22 Personal Data: means any information or data provided directly or indirectly to ForestCloud during the course of applying for and/or using the Service.
1.23 Reserve: means a fixed amount or percentage of the funds held in User’s Account to cover any transaction reversals including but not limited to chargebacks and refunds.
1.24 Rolling Reserve: means a Reserve where a fixed amount or percentage of each transaction is held and then released at a later date on a scheduled basis.
1.25 Service: means any and all services that ForestCloud shall provide to you under this Agreement, relating to the acceptance of Cards in relation to Transactions with Cardholders.
1.26 Software: means any software provided to User, by ForestCloud, or used by ForestCloud in fulfilling its obligations under this Agreement or otherwise including but not limited to the Developer Tools.
1.27 Transaction: means the payment made by a Cardholder using the Service for goods and/or services provided by User.
1.28 Website: means ForestCloud’s website which you can visit at http://www.forestcloud.com
In this Agreement, subject to any express contrary indication:
(a) Words (including the definitions in this Section 1) importing the singular shall include the plural and vice versa;
(b) any reference to any gender shall include the other genders;
(c) any reference to a person shall be construed as including any person, firm, company, corporation, society, trust, foundation, government, state or agency of a state or any association or partnership (in each case whether or not having separate legal personality) of any two or more of these;
(d) any reference to this Agreement or any other agreement or document shall be construed as a reference to that agreement or document as it may have been, or may from time to time be, amended, varied, novated, replaced or supplemented;
(e) any reference to a Section shall be construed as a reference to a section of this Agreement;
(f) the rule known as the ejusdem generis rule shall not apply and accordingly:
(g) general words introduced by the word other shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things; and
(h) any phrase introduced by the words include, including or in particular or any similar words or expression shall be construed as illustrative and shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words;
(i) any references to in writing shall include any modes of reproducing words in a legible and non-transitory form;
(j) the table of contents and all headings in this Agreement are for ease of reference only and shall not affect the interpretation of this Agreement; and
(k) if User consists of more than one legal person (e.g., you are a partnership) each legal person has joint and several liability under this Agreement. This means all of you are together and individually responsible for any money owed to ForestCloud under this Agreement and we may demand repayment from all and any of you for any monies owing under this Agreement. If the partnership ends, we may end this Agreement and if there is any dispute as to who is entitled to any funds we hold, we may retain such funds until we are satisfied that the dispute has been resolved.
2. Provision of the service
2.1 ForestCloud will provide the Service to User on the terms and conditions of this Agreement (and any addendums or subsequent amendments and updates).
2.2 ForestCloud may at any time revise or modify the Service. ForestCloud shall always attempt to notify User of any changes. However ForestCloud reserves the right to implement such changes with immediate effect to maintain the security of its systems or to comply with relevant laws, regulations or the Card Scheme Rules.
2.3 ForestCloud will always do its best to ensure the Service is error and interruption free but cannot guarantee it will be free from errors or interruptions.
2.4 From time to time ForestCloud will perform maintenance and upgrades of the Service, which may result in interruptions, delays or errors in the Service. ForestCloud shall try to communicate any planned maintenance in advance, but cannot guarantee that such notification will always be provided. In addition, the Service may contain errors or "bugs" that may lead to interruptions and errors. User understands this and accepts that ForestCloud may contact User in order to help User with the Service and also to request information needed to identify and remedy such errors.
2.5 User’s access to the Service is dependent on third-party services (such as mobile telephony services). User accepts that ForestCloud shall have no responsibility for the performance of such third-party services.
2.6 The Services are made available to you subject to:
2.6.1 Any Software, upgrades or intellectual property relating to the Service not being copied, altered, sub-licensed or misused by you without ForestCloud’s express written authorisation;
2.6.2 The Service not being used for illegal or improper purposes;
2.6.3 You following any and all reasonable instructions given by us.
3. Service use and transactions
3.1 ForestCloud shall provide the User (via the Website) with a transaction history and further analysis systems, if applicable.
3.2 ForestCloud shall provide the Software, technical infrastructure and the interface for the facilitation of payment processing via ForestCloud’s partners. ForestCloud is an agent of Acquirer. ForestCloud may change its Acquirer from time to time. We reserve the right to require you to install or update any and all Software to continue using the Service.
3.3 As part of the Service, payments can only be carried out with Cards that are specified on the Website. The range of Cards that are accepted can be changed by ForestCloud at any time and without notice. It is User’s responsibility to check the Cards specified on the Website from time to time.
3.4 User will not use Service for any activities that are prohibited by law or, at ForestCloud’s sole discretion, are otherwise doubtful or deemed unacceptable by ForestCloud (in its sole discretion) from a risk, compliance or reputational perspective, including those activities specified in Section 3.5.
3.5 User shall not use the Service to receive payment for any of the following goods and services: tobacco acquired through the Internet; any product or service related to pornography, including sex clubs, escort services, prostitution, magazines, videos or images with pornographic content and sex toys in cases where such products are the only products marketed; relate to time-sharing; are prescription drugs (unless User has all applicable authorisations for the supply of such drugs and such supply is made in accordance with applicable laws and regulations) or narcotics; relate to dating (including sex dating); are weapons; relate to gambling, betting, lotteries, bingo and other casino services (this does not apply to such gaming and lottery operations conducted in accordance with all applicable laws and authorised by all applicable regulatory authorities); relate to so-called “anonymity services”; relate to vouchers with a longer duration than 36 months; relate to virtual currency; relates to erotic dance or comparable services; telecommunication services; drugstores, pharmacies; direct marketing, travel related arrangement services; direct marketing, outbound telemarketing merchants; direct marketing, continuity/subscription merchants; direct marketing/direct marketers, not elsewhere classified; buyers’ clubs/membership clubs; credit counselling or credit repair services; credit protection/identity theft protection; infomercial merchants; multi-level marketing businesses; outbound telemarketers; rebate-based businesses; and/or upselling merchants.
3.6 ForestCloud shall at its sole discretion decide whether User’s use of the Service shall be deemed attributable to any of the products or services listed in Section 3.5 and therefore prohibited in accordance with the Terms and Conditions of this Agreement. User shall not in any way incorrectly identify the relevant good or service sold pursuant to a Transaction or in any way attempt to mislead any other party as regards the subject matter of each Transaction.
3.7 User will not accept Transactions which are not directly undertaken between User and the Cardholder.
3.8 User shall not (i) apply a price threshold for accepting a Card or (ii) make cash deductions during the Transaction. You must not discriminate against the use of Cards in any other way. User must not impose excessive fees or charges on a customer who wishes to use an eligible payment card. Any fee or charge must be limited to reflect User’s costs for the use of the payment card with the Services. User must inform the customer of any such charge before the payment transaction is initiated.
3.9 User may not use the Service to carry out Transactions with Cards belonging to User or registered in User’s name. User must not process Transactions on behalf of a third party. The Service is available only to people or entities who would use the Service for the purposes of selling goods and/or services in the course of their business. The Service must not be used for personal, family or household purposes.
3.10 User agrees that from the time that the User’s Account is activated, until the account with Us is terminated, ForestCloud may identify the User as a ForestCloud Customer or Merchant. Neither User nor ForestCloud will imply any untrue sponsorship, endorsement or affiliation between User and ForestCloud.
3.11 User is responsible for the security of data on your mobile application, servers, or otherwise in your possession. User agrees that at all times User shall be compliant with the Payment Card Industry Data Security Standards (PCI-DSS) and the Payment Application Data Security Standards (PA-DSS), as applicable.
3.12 When using the Services it is the User’s responsibility to obtain Cardholders’ consent to be billed, or their consent to have their payment card charged, in compliance with any and all applicable legal requirements and Card Scheme rules.
3.13 When using the Services it is the User’s responsibility to obtain Cardholders’ consent to access, use and protect their data.
3.14 User grants ForestCloud a lien and security interest in the User’s Account and all funds therein. This is to ensure performance of User’s obligations under this Agreement and any other current or future agreements between User and ForestCloud including without limitation your obligation to pay any amounts due and owing to us. You will execute, deliver and pay any fees or charges for documents or other information which we request in order to maintain and enforce this security interest.
3.15 User will not process more than €100,000.00 (one hundred thousand pounds sterling) annually (based upon the date its Account is approved).
3.16 In order to use the Service, User must create an Account with ForestCloud. User is obliged to provide accurate and complete information, and if such information changes, User agrees to promptly notify ForestCloud of all relevant changes by updating User’s Account. If any information is or becomes inaccurate or incomplete, ForestCloud has the right to terminate the Account and cancel User’s access to the Service.
3.17 User will receive notification of a Transaction successfully completed by SMS to User’s registered mobile phone and/or by server notification. If User does not receive explicit confirmation of a Transaction by either SMS or server notification, a Transaction is not deemed complete, you must not continue to process the Transaction, and ForestCloud will not be liable for any Losses to User.
3.18 If a User receives notification of an unrecognised Transaction, User must notify ForestCloud immediately. Failure to notify ForestCloud of an unrecognised Transaction could result in termination of Service and/or this Agreement by ForestCloud.
3.19 User’s ability to access the Service may require a Cardholder Device and is dependent on services received by User from a third party telecommunication provider. User is solely responsible for any fees charged by such third parties.
3.20 It is User’s responsibility to ensure that User’s Account Information, including Account details, password, and other login information is kept secure and undisclosed to others.
3.21 User will promptly supply such information in respect of itself and its performance of and obligations under this Agreement as may be requested by a Card Scheme, ForestCloud or Acquirer from time to time.
4. Settlement
4.1 ForestCloud will register the amounts received by ForestCloud in its client bank account pursuant to the Transactions carried out through the Service on User’s Account (after deduction of the Fees) and following receipt of instructions from User pursuant to Section 4.2 procure the transfer of such amounts to the bank account designated by User in User’s Account. User’s Account Information shall be registered on a central server at ForestCloud’s location in England. Prior to payment to User, an amount equal to the balance on the Account shall, on behalf of User, be kept separated from ForestCloud funds (but together with the amounts held on behalf of other Users) in a designated client account in a bank in accordance with the applicable law. ForestCloud has the sole authority over the establishment and maintenance of all accounts which it selects for the above purposes. User shall not be entitled to receive any interest on funds held in the client account and any such interest may be retained by ForestCloud.
4.2 To effect Settlement User must log in to its Account via the Website and request transfer of funds held by ForestCloud pursuant to Transactions carried out through the Service.
4.3 ForestCloud reserves the right to withhold funds received and credited to a User’s Account on behalf of User (pursuant to Section 8 or otherwise) to the extent that it is necessary for ForestCloud to complete any on-going investigation or to resolve an on-going dispute or if required by law or by court order or otherwise requested by an applicable regulatory body or law enforcement authority or other governmental entity.
4.4 ForestCloud reserves the right to set Rolling Reserves and/or guarantees on funds held in User’s Account insofar as ForestCloud determines is necessary to protect against any risk associated with User’s account or for any other reason deemed necessary at ForestCloud’s sole discretion. ForestCloud may change the terms of the Rolling Reserve at any time and ForestCloud will notify User of any such change. If User’s account is closed for any reason, ForestCloud has the right to hold the Rolling Reserve amount for up to 180 days.
4.5 ForestCloud is not liable for funds which, due to User’s incorrect information, have been paid to a bank account other than User’s.
4.6 If User’s Account has been inactive for a period of twelve months, ForestCloud will give one month’s notice before suspending the Account.
4.7 If the Account has been inactive for a period of two (2) years and there is a balance on the Account, ForestCloud will notify User and give User the opportunity to keep the Account active or withdraw funds. If there has been no response in thirty days from date of communication ForestCloud will close the Account and the retention of any funds will thereafter be subject to applicable laws and to the extent so permitted shall be assumed by ForestCloud.
4.8 In order to protect User’s Account information from accidental loss and unauthorised access, ForestCloud has implemented and shall follow the globally recognised account data protection security standards PCI-DSS (www.pcisecuritystandards.org), which includes requirements on governance, policies, procedures, network architecture, software and other critical measures. ForestCloud however cannot guarantee that unauthorised third parties never will be able to circumvent these security measures, or use Account Information for improper purposes. User acknowledges that User provides the information and utilises the Account at User’s own risk.
Installing Applications on your ForestCloud Account
These terms only apply to you if you authorise another application to connect to your ForestCloud Account.
By authorising another application to link to your ForestCloud Account, you agree to be bound by these ForestCloud Acquire User Terms as well as the above Agreement. You specifically agree as follows:
Application Permissions: By authorising an application to link to your ForestCloud Account (a “Partner Application”) you are authorising ForestCloud to permit the Partner Application to (a) access your ForestCloud Account data, (b) create charges in your ForestCloud Account, and (c) deduct amounts (for example, fees and charges) from the amount that would otherwise be payable to you from transactions occurring in connection with the Partner Application (“Partner Fees”). Any Partner Fees will be in addition to ForestCloud’s own Fees.
Duration: Once you have authorised a Partner Application it will continue to have access to your ForestCloud Account and be authorised as described in these ForestCloud Acquire User Terms until you specifically withdraw your authorisation by changing your settings by contacting ForestCloud.
Appendix A
The fees listed below only apply where there is no alternate pricing agreement in place. Fees are separated between Accounts set up directly with ForestCloud ("Standard"), those set up through 3rd parties ("Marketplace") and Accounts branded as ‘mPayMe’. Alternate pricing agreements are agreed to separately and replace the fee structure in Appendix A below.
Fees Schedule for Accounts set up directly with ForestCloud after Nov 1, 2013 ("Standard")
Transactions: 2.4% + €0.20 per successful transaction Chargebacks: €15 Settlement Fee: €0.25
Fees Schedule for Accounts set up through 3rd party intermediaries ("Marketplace")
Transactions: 2.5% + €0.25 per successful transaction Chargebacks: €15 Settlement Fee: €0.25
Fees Schedule for mPayMe powered by ForestCloud
Transactions: 2.9% + €0.29 per successful transaction Chargebacks: €15 Settlement Fee: €0.25
