ProTouch Staff B.V. Terms and Conditions of Services
Last updated: 25 March 2021
This ProTouch Staff Terms and Conditions of Services Agreement (“Agreement”) is a legal agreement between ProTouch Staff B.V. (“ProTouch Staff”, “us”, or “we”) and the entity or person (“you”, “your”, or “user”) who registered on the ProTouch Staff Account page to receive certain contracting, outsourcing, management, payment processing, data, technology and analytics services, and other business services that may be offered by ProTouch Staff and its affiliates (each, a “Service”). This Agreement describes the terms and conditions that apply to your use of the Services.
If you do not understand any of the terms of this Agreement, please contact us before using the Services.
You may not access or use any Services unless you agree to abide by all of the terms and conditions in this Agreement.
Section A: General Terms
1. Overview of this Agreement
This Agreement provides a general description of the Services that ProTouch Staff may provide to you.
Note the following:
This Agreement governs the relationship between ProTouch Staff and the user. The user may be a company (“Service User”) or a contractor (“Service Provider”). ProTouch Staff provides the platform that facilitates the engagement between the Service User and Service Provider and ProTouch Staff provides a range of services to the Service User and Service Provider prior to, during and post the engagement. It is important to note that ProTouch Staff does not employ or engage any Service Providers directly. Moreover, the relationship between the Service User and Service Provider is governed by the terms of the agreement between the Service User and the Service Provider which is a separate agreement signed between the Service User and Service Provider directly.
In order to access the ProTouch Staff Services and before using the Services, you must register with ProTouch Staff and create an account (a “ProTouch Staff Account”).
Section A describes the process of registering for and using your ProTouch Staff Account.
Section B describes your use of the Services and the engagement process between Service User and Service Provide.
Section C describes the Payment Processing.
Section D describes proper handling, management, and use of data generated during your use of the Services, including your Customers’ data.
Section E describes your liability to ProTouchStaff for all losses connected with your ProTouchStaff Account, your agreement to resolve all disputes with ProTouchStaff by arbitration and not in a lawsuit, and other legal terms that apply to you.
2. Your ProTouchStaff Account
a. Registration and Permitted Activities: To register for a ProTouchStaff Account, you or the person or people submitting the application (your “Representative”) must provide us with your business or trade name, physical address, email, phone number, business identification number, URL, the nature of your business or activities, and certain other information about you that we require. We may also collect personal information (including name, birthdate, and government-issued identification number) about your beneficial owners, principals, and your ProTouch Staff Account administrator. Until you have submitted, and we have reviewed and approved, all required information, your ProTouch Staff Account will be available to you on a preliminary basis only, and we may terminate it at any time and for any reason.
b. Business Representative: You and your Representative individually affirm to ProTouch Staff that your Representative is authorised to provide the information described in this Section A.2 on your behalf and to bind you to this Agreement. We may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority. Without the express written consent of ProTouch Staff, neither you nor your Representative may register or attempt to register for a ProTouch Staff Account on behalf of a user ProTouch Staff previously terminated from use of the Services.
If you are a sole proprietor, you and your Representative also affirm that your Representative is personally responsible and liable for your use of the Services and your obligations to Customers, including payment of any amounts owed under this Agreement.
The following special requirements apply in relation to persons that are not at least 18 years old. If you are an individual or sole proprietor, and you are not at least 18 years old, but you are 13 years old or older, your Representative must be your parent or legal guardian. If you are a legal entity that is owned, directly or indirectly, by an individual who is not at least 18 years old, but the individual is 13 years old or older, your Representative must either obtain the consent of your board or of an authorised officer. Any such approving board, authorised officer, parent, or legal guardian is responsible to ProTouch Staff and is legally bound to this Agreement as if it had agreed to the terms of this Agreement itself. You may not use the Services if you are under 13 years of age.
c. Validation and Underwriting: At any time during the term of this Agreement and your use of the Services, we may require additional information from you to verify beneficial ownership or control of the business, validate information you provided, verify you or your Representative’s identity, and assess your financial condition and the risk associated with your business. This additional information may include business invoices, copies of government-issued identification, business licences, or other information related to your business, its beneficial owners or principals. We may also require you to provide a personal or company guarantee. Your failure to provide this information or material may result in suspension or termination of your ProTouch Staff Account. ProTouch Staff may periodically update this information as part of our underwriting criteria and risk analysis procedures.
d. Changes to Your Business, Keeping your ProTouch Staff Account Current: You agree to keep the information in your ProTouch Staff Account current. You must promptly update your ProTouch Staff Account with any changes affecting you, the nature of your business activities, your Representatives, beneficial owners, principals, or any other pertinent information. We may suspend your ProTouch Staff Account or terminate this Agreement if you fail to keep this information current.
You also agree to promptly notify us in writing immediately and in any event no more than three days after any of the following occur: you are the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, or similar action (any of the foregoing, a “Bankruptcy Proceeding”); there is an adverse change in your financial condition; there is a planned or anticipated liquidation or substantial change in the basic nature of your business; you transfer or sell 25% or more of your total assets, or there is any change in the control or ownership of your business or parent entity; there is a change in the regulatory status of your business or your business has been notified that it is the subject of an investigation or enforcement action by a regulator or law enforcement; or you receive a judgment, writ or warrant of attachment or execution, lien or levy against 25% or more of your total assets.
3. Your relationship with your Service Provider or Service User
You may only use the Services for legitimate Transactions with your Service Providers (if you are a Service User or employer) or with your Service User (if you are a Service Provider or contractor). You are responsible for your relationship with your Service Providers (if you are a Service User or employer) or with your Service User (if you are a Service Provider or contractor). ProTouch Staff is not responsible for the products or services provided by the Service Providers using the Services. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide. Similarly, the Service User will directly instruct and control the products and services provided by the Service Providers.
ProTouch Staff provides Services to you but we have no way of knowing if any particular purchase, sale, donation, order, or other transaction (each a “Transaction”) is accurate or complete, or typical for your business. You are solely responsible for any losses you incur due to erroneous or fraudulent Transactions in connection with your use of the Services.
4. Fees and Fines
ProTouch Staff will provide the Services to you at the rates and for the fees (“Fees”) described in a specific Pricing Addendum, which Pricing Addendum will form part of this Agreement. The Fees include charges for Transactions (such as processing a payment) and for other events connected with your ProTouch Staff Account (such as handling a disputed charge). We may revise the Fees at any time. However, we will provide you with at least 30 days’ advance notice before revisions become applicable to you (or a longer period of notice if this is required by applicable Law).
In addition to the Fees, you are also responsible for any penalties or fines imposed in relation to your ProTouch Staff Account resulting from your use of Payment Processing Services in a manner not permitted by this Agreement.
You are also obligated to pay all taxes, fees and other charges imposed by any governmental authority, including any employee or wage taxes, value added tax, goods and services tax, sales tax and applicable indirect and transactional taxes (“Taxes”) on the Services provided under this Agreement as well as on the services or products provided by the Service Provider to the Service User in terms of the separate and direct contract between the Service Provider and Service User.
5. Services and ProTouch Staff Account Support
We will provide you with support to resolve general issues relating to your ProTouch Staff Account and your use of the Services. This support includes resources and documentation that we make available to you through the current versions of ProTouch Staff’s support pages, API documentation, and other pages on our website (collectively, “Documentation”). The most efficient way to get answers to your questions is to review our Documentation. If you still have questions after reviewing the Documentation, please contact us.
6. Taxes and Other Expenses
Our fees are exclusive of any applicable Taxes, except as expressly stated to the contrary. You have sole responsibility and liability for: (i) determining what, if any, Taxes apply to the sale of your products and services or payments you make or receive in connection with your use of the Services; and (ii) assessing, collecting, reporting, and remitting Taxes personally or for your business to the appropriate tax and revenue authorities. If we are required to withhold any Taxes, or we are unable to validate any tax-related identification information you provide to us, we may deduct such Taxes from amounts otherwise owed and pay them to the appropriate taxing authority. If you are exempt from payment of such Taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to your tax-exempt status. Upon our reasonable request, you must provide us with information regarding your tax affairs.
We may send documents to you and tax authorities for Transactions processed using the Services. Specifically, pursuant to applicable Law, we may be required to file periodic informational return with taxing authorities in relation to your use of the Services. If you use Payment Processing Services, you acknowledge that we will report the total amount of payments you receive each calendar year as required by appropriate tax and revenue authorities. We also may, but are not obliged to, electronically send you tax-related information.
7. Service Requirements, Limitations and Restrictions
a. Compliance with Applicable Laws: You must use the Services in a lawful manner, and must obey all laws, rules, and regulations (“Laws”) applicable to your use of the Services and to Transactions. As applicable, this may include compliance with domestic and international Laws related to the use or provision of financial services, notification and consumer protection, unfair competition, privacy, and false advertising, and any other Laws relevant to Transactions.
b. Restricted Businesses and Activities: You may not use the Services to enable any person (including you) to benefit from any activities ProTouch Staff has identified as a restricted business or activity (collectively, “Restricted Businesses”). Restricted Businesses include use of the Services in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC), the European Commission, or Netherlands.
Please review the list of Restricted Businesses thoroughly before registering for and opening a ProTouch Staff Account. If you are uncertain whether a category of business or activity is restricted or have questions about how these restrictions apply to you, please contact us. We may add to or update the Restricted Business List at any time.
c. Other Restricted Activities: You may not use the Services to facilitate illegal Transactions or to permit others to use the Services for personal, family or household purposes. In addition, you may not allow, and may not allow others to: (i) access or attempt to access non-public ProTouch Staff systems, programs, data, or services; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the Services, Documentation, or our website except as expressly permitted by applicable Laws; (iii) act as service bureau or pass-through agent for the Services with no added value to Customers; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited; (vi) reverse engineer or attempt to reverse engineer the Services except as expressly permitted by Laws; (vii) perform or attempt to perform any actions that would interfere with the normal operation of the Services or affect use of the Services by our other users; or (ix) impose an unreasonable or disproportionately large load on the Service.
8. Suspicion of Unauthorised or Illegal Use
We may refuse, condition, or suspend any Transactions that we believe: (i) may violate this Agreement or other agreements you may have with ProTouch Staff; (ii) are unauthorised, fraudulent or illegal; or (iii) expose you, ProTouch Staff, or others to risks unacceptable to ProTouch Staff. If we suspect or know that you are using or have used the Services for unauthorised, fraudulent, or illegal purposes, we may share any information related to such activity with the appropriate financial institution, regulatory authority, or law enforcement agency consistent with our legal obligations. This information may include information about you, your ProTouch Staff Account, your Customers, and Transactions made through your use of the Services.
9. Disclosures and Notices; Electronic Signature Consent
a. Consent to Electronic Disclosures and Notices: By registering for a ProTouch Staff Account, you agree that such registration constitutes your electronic signature, and you consent to electronic provision of all disclosures and notices from ProTouch Staff (“Notices”), including those required by Law. You also agree that your electronic consent will have the same legal effect as a physical signature.
b. Methods of Delivery: You agree that ProTouch Staff can provide Notices regarding the Services to you through our website or through the Dashboard (as defined below), or by mailing Notices to the email or physical addresses identified in your ProTouch Staff Account. Notices may include notifications about your ProTouch Staff Account, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within 24 hours of the time a Notice is either posted to our website or emailed to you.
c. SMS and Text Messages: You authorise us to provide Notices to you via text message to allow us to verify your or your Representative’s control over your ProTouch Staff Account, and to provide you with other critical information about your ProTouch Staff Account. In the event of a suspected or actual fraud or security threat to your ProTouch Staff Account, ProTouch Staff will use SMS, email or another secure procedure to contact you. Standard text or data charges may apply to such Notices. Where offered, you may disable text message notifications in the Dashboard by responding to any such message with “STOP”, or by following instructions provided in the message. However, by disabling text messaging, you may be disabling important Security Controls (as defined below) on your ProTouch Staff Account and may increase the risk of loss to your business.
d. Requirements for Delivery: You will require a computer or mobile device, Internet connectivity, and an updated browser to access your Dashboard and review the Notices provided to you. If you are having problems viewing or accessing any Notices, please contact us and we can find another means of delivery.
e. Withdrawing Consent: Due to the nature of the Services, you will not be able to begin using the Services without agreeing to electronic delivery of Notices. However, you may choose to withdraw your consent to receive Notices electronically by terminating your ProTouch Staff Account.
a. Term and Termination: This Agreement is effective upon the date you first access or use the Services and continues until terminated by you or ProTouch Staff. You may terminate this Agreement by closing your ProTouch Staff Account at any time by sending an email request with the heading “close my account” in which you request ProTouch Staff to close your account and ceasing to use the Service after such request. If you use the Services again or register for another ProTouch Staff Account, you are consenting to this Agreement. We may terminate this Agreement or close your ProTouch Staff Account at any time for any reason (including, without limitation, for any activity that may create harm or loss to the goodwill of a Payment Method) by providing you advance Notice (the period of notice as required by applicable Law). We may suspend your ProTouch Staff Account and your ability to access funds in your ProTouch Staff Account, or terminate this Agreement, if (i) we determine in our sole discretion that you are ineligible for the Services because of significant fraud or credit risk, or any other risks associated with your ProTouch Staff Account; (ii) you use the Services in a prohibited manner or otherwise do not comply with any of the provisions of this Agreement; (iii) any Law, Payment Method Provider or Payment Method Acquirer requires us to do so; or (iv) we are otherwise entitled to do so under this Agreement. A Payment Method Provider or Payment Method Acquirer may terminate your ability to accept a Payment Method, at any time and for any reason, in which case you will no longer be able to accept the Payment Method under this Agreement.
b. Effects of Termination: Termination does not immediately relieve you of obligations incurred by you under this Agreement. Upon termination, you agree to (i) complete all pending Transactions including specifically the payment of any disbursements, fees and commission due to ProTouchStaff, (ii) stop accepting new Transactions, and (iii) immediately remove all ProTouchStaff and payment network logos from your website (unless permitted under a separate licence with the payment network). Your continued or renewed use of the Services after all pending Transactions have been processed serves to renew your consent to the terms of this Agreement.
Note that this termination clause does not govern the termination of the direct agreement between the Service User/Employer and the Service Provider/Contractor. The conditions and effect of termination between Service Provider and Service User will be agreed directly between them.
In addition, upon termination you understand and agree that (i) all licences granted to you by ProTouchStaff under this Agreement will end; (ii) subject to Section D.5, we reserve the right, but have no obligation, to delete all of your information and account data stored on our servers; (iii) we will not be liable to you for compensation, reimbursement, or damages related to your use of the Services, or any termination or suspension of the Services or deletion of your information or account data; and (iv) you are still liable to us for any Fees or fines, or other financial obligation incurred by you or through your use of the Services prior to termination.
Section B: ProTouchStaff Services
1. Application & Services
ProTouchStaff has developed and provides access to the ProTouchStaff application that may be used to access the Services. You may use the application solely as described in the Documentation to use the Services on websites and through the applications identified in your ProTouchStaff Account. You may manage your ProTouchStaff Account, connect with Service Providers or Service Users (as the case may be), and enable additional features through the ProTouchStaff management dashboard (“Dashboard”). ProTouch Staff will use the Dashboard to provide you with information about your ProTouchStaff Account. Upon request, ProTouchStaff will also provide you with access to summary reports which will include all your ProTouchStaff Account activity, grouped by month, up to the most recent full day. The information may be provided in your language, and if not, it will be provided in English. Further detail about the information provided to you through the Dashboard is available in the Account Reporting section of the Documentation.
You may not use the application for any purpose, function, or feature not described in the Documentation or otherwise communicated to you by us. Due to the nature of the Services, we will update the application and Documentation from time to time, and may add or remove functionality. We will provide you Notice in the event of material changes, deprecations, or removal of functionality from the API so that you may continue using the Services with minimal interruption.
The Services provided include the following:
- Introduction of Service Providers to Service Users in a transparent and easily accessible way.
- Facilitating the formal engagement between Service Providers and Service Users via the application.
- Management of the interaction between Service provider and Service User – including processing the payments and remuneration as agreed between the parties and as instructed.
- The collection and maintenance of personal data and information required in order to provide the Services.
2. Ownership of ProTouchStaff IP
As between you and ProTouchStaff, ProTouchStaff and its licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in the application, Services, Dashboard, and Documentation (collectively, “ProTouchStaff IP”) or any copies thereof. ProTouchStaff IP is protected by copyright, trade secret, patent, and other intellectual property Laws, and all rights in ProTouchStaff IP not expressly granted to you in this Agreement are reserved.
You may choose to or we may invite you to submit comments or ideas about improvements to the Service, our application or any other component of our products or services (“Ideas”). If you submit an Idea to us, we will presume that your submission was voluntary, unsolicited by us, and delivered to us without any restrictions on our use of the Idea. You also agree that ProTouchStaff has no fiduciary or any other obligation to you in connection with any Idea you submit to us, and that we are free to use your Ideas without any attribution or compensation to you.
You are granted a nonexclusive and nontransferable licence to electronically access and use the ProTouchStaff IP only in the manner described in this Agreement. ProTouchStaff does not sell to you, and you do not have the right to sublicence the ProTouchStaff IP. We may make updates to the ProTouchStaff IP or new Services available to you automatically as electronically published by ProTouchStaff, but we may require action on your part before you may use the ProTouchStaff IP or new Services (including activation through the Dashboard, or acceptance of new or additional terms). ProTouch Staff may revoke or terminate this licence at any time if you use ProTouchStaff IP in a manner prohibited by this Agreement.
You may not: (i) claim or register ownership of ProTouchStaff IP on your behalf or on behalf of others; (ii) sublicence any rights in ProTouchStaff IP granted by us; (iii) import or export any ProTouchStaff IP to a person or country in violation of any country’s export control Laws; (iv) use ProTouchStaff IP in a manner that violates this Agreement or Laws; or (v) attempt to do any of the foregoing.
4. ProTouchStaff Marks; References to Our Relationship
We may make certain ProTouchStaff logos or marks (“ProTouchStaff Marks”) available for use by you and other users to allow you to identify ProTouchStaff as a service provider. To use ProTouchStaff Marks, you must first agree to the ProTouchStaff Marks Usage Agreement. ProTouchStaff may limit or revoke your ability to use ProTouchStaff Marks at any time. You may never use any ProTouchStaff Marks or ProTouchStaff IP consisting of trademarks or service marks without our express permission, or in a manner that may lead people to confuse the origin of your products or services with ours.
During the term of this Agreement, you may publicly identify us as the provider of the Services to you and we may publicly identify you as a ProTouchStaff user. If you do not want us to identify you as a user, please contact us. Neither you nor we will imply any untrue sponsorship, endorsement, or affiliation between you and ProTouchStaff. Upon termination of your ProTouchStaff Account, both you and ProTouchStaff will remove any public references to our relationship from our respective websites.
You may use the Services to upload or publish text, images, and other content (collectively, “Content”) to your ProTouchStaff Account and to third-party sites or applications but only if you agree to obtain the appropriate permissions and, if required, licences to upload or publish any such Content using the Services. You agree to fully reimburse ProTouchStaff for all fees, fines, losses, claims, and any other costs we may incur that arise from publishing illegal Content through the Services, or claims that Content you published infringes the intellectual property, privacy, or other proprietary rights of others.
6. Additional Services
- Service User-Service Provider Agreement: As a Service User/Employer you may publish and thereafter require Service Providers to use your own employment contract or agreement. As indicated, the primary aim of this Agreement is to govern the agreement between ProTouchStaff and users of the ProTouchStaff application, i.e. both Service Providers and Service Users. Acceptance of this Agreement does not automatically infer acceptance of the Service User/Employer agreement by the Service Provider as the agreement between the users for the service will be covered by the e-contract directly between those parties. The contracting process between a Service User and Service Provider will be as follows:
- Service User – i.e. Employer or Company posts a job opportunity or position, using the ProTouchStaff application.
- Via the ProTouchStaff application the Service User can issue a contract offer when a suitable Service Provider is reached.
- Opening the Make Offer page will bring the e-contract into view and this e-contract includes the terms listed below. (Note that an option is included for a Service User to upload a company contract – which results in a live link to the in-house contract document of the Service user.)
- Start and End Dates
- Role or description of service required or of position
- Start Date
- End Date
- Payment Frequency
- Payment Terms
- Additional Terms
- Expense/reimbursement Policy – also will be a link to a document provided by the company
- Comments (recorded in the chat which supports the e-contract)
- Provision is made for signature by both the Service Provider and Service User or Employer
- Note that the agreement between the Service User and the Service Provider must make provision for a dispute resolution clause. In the absence of such a clause the following provision will apply between the Service Provider and Service User:
- Should either party (“the defaulting party”) commit a breach of any of the provisions of this agreement, then the other party (“the aggrieved party”) shall be obliged to give the defaulting party 5 (five) days written notice to remedy the breach.
- If the defaulting party fails to comply with such notice, the aggrieved party shall be entitled to (without any prejudice to the entitlements and rights of ProTouchStaff):
- cancel this agreement and claim whatever damages may flow from such breach from the defaulting party; or
- claim specific performance by the defaulting party of the defaulting party’s obligations
- The foregoing is without prejudice to such other rights as the aggrieved party may have at law including the right to claim damages provided always that, notwithstanding anything to the contrary contained in this agreement” .
Note that Service Providers failing to perform will lead to non-payment and further, if their failure to perform causes damages to the Service User, the Service User will be entitled to pursue the Service Provider for such damages in Court (or via alternate dispute resolution mechanisms) OR to acquire an order form Court to force the Service Provider to perform by the performance deadline embodied in the agreement between Service Provider and Service User or any such time as a Court or alternative dispute resolution agent may order.
Moreover, should there be a failure by the Service User to accept work performed by the Service Provider and/or a delay in the payment of the Service provider, the Service Provider can either sue for the damages suffered (non-payment) or / and acquire an order against the Service User to accept the Service rendered (or refer such dispute etc. to an alternative dispute resolution mechanism).
ProTouchStaff is not a party to the agreement between the Service Provider and the Service User and cannot be held liable for any non-performance between the Service Users and Service Providers. However, note that ProTouchStaff will be entitled to payment for its services / platform use irrespective of any dispute between the Service Users and Service Providers regarding the Services or payment.
- Additional features: From time to time we may offer you additional features or services that may be subject to additional or different terms of service. All such additional features and services form part of the Services, and you may not use these additional services unless you agree to the applicable agreement or terms (if any) for those services.
- Beta or pre-release: We may also provide you access to services identified as “beta” or pre-release services. You understand that these services are still in development, may contain bugs or errors, may be feature incomplete, may materially change prior to a full commercial launch, or may never be released commercially. We provide beta services AS IS, and without warranty of any kind, and your use of, or reliance on beta services is at your own risk.
Section C: Payment Processing Services
1. Payment Processing Services Overview
ProTouchStaff works with various Payment Method Providers and Payment Method Acquirers to provide you with access to the Payment Methods and Payment Processing Services. Where the Payment Processing Services enable you to submit Charges (as defined below), we may limit or refuse to process Charges for any Restricted Businesses, or for Charges submitted in violation of this Agreement. Your use of a Payment Method may be subject to separate terms applicable to the Payment Method. For example, Visa and Mastercard require you to enter into an agreement with the Payment Method Acquirer for Visa and Mastercard Transactions. See Section C.5 and Section C.6 below for more detail.
Some of the Payment Processing Services offered by ProTouchStaff are services that may only be provided by an authorised payment services provider or electronic money institution (“Authorised Payment Services”). To the extent that you acquire Authorised Payment Services, the services will be provided by an Authorised Payment Service Provider (“APSP”). Notwithstanding any other provision of this Agreement, the APSP will, as provider of the Authorised Payment Services, be the sole ProTouchStaff party liable to you for the collection on your behalf of the payment proceeds in respect of Charges, the settlement of those proceeds to your Payout Account and the safeguarding of those proceeds pending such pay-out to you or as directed by you; in particular, no other ProTouch Staff entity will have any such liability whether independently of, or jointly with the APSP. Accordingly, all references to “ProTouch Staff”, “us” and “we” in this Agreement shall be deemed to references only to the APSP to the extent that they refer to the conduct of activities which constitute Authorised Payment Services or E-money Services. The following terms used in this Agreement relate to your use of Payment Processing Services:
- “Charge” means a credit or debit instruction to capture funds from an account that a Customer maintains with a bank or other financial institution in connection with a Transaction.
- “Dispute” means an instruction initiated by a Customer for the return of funds for an existing Charge (including a chargeback or dispute on a Payment Method
- “Fine” means any fines, levies, or other charges imposed by us, a Payment Method Provider or a Payment Method Acquirer, caused by your violation of Laws or this Agreement, or as permitted by the applicable Payment Method Rules.
- “Merchant Initiated Transaction” means a Charge initiated by you: in respect of your provision of products or services to your Customer; in accordance with a mandate from your Customer authorising you to initiate the Charge or a series of Charges and without requiring any specific action of the Customer to trigger the initiation of the Charge.
- “Payment Method Rules” means the guidelines, bylaws, rules, and regulations imposed by the Payment Method Providers and Payment Method Acquirers that operate Payment Methods supported by ProTouch Staff (including the payment card network operating rules (“Network Rules”) for the Visa, Mastercard, and American Express networks; and the BACS, CHAPs and SEPA operating rules).
- “Payment Method” means a type of payment method that ProTouch Staff accepts as part of the Payment Processing Services, such as credit card and debit card.
- “Payment Method Acquirer” means APSP or any other financial institution that is authorised by a Payment Method Provider to enable the use of a Payment Method by accepting Charges from Customers on behalf of the Payment Method Provider, and routing these Charges to the Payment Method Provider.
- “Payment Method Provider” means the provider of a Payment Method, such as Visa, Mastercard, and American Express.
- “Payment Processing Services” are Services that you may use to accept payments from your Customers for Transactions, perform other financial transactions, manage subscriptions, and perform transaction reporting.
- “Refund” means an instruction initiated by you to return funds to a Customer for an existing Charge.
- “Return” means an instruction initiated by you, a Customer, a Payment Method Provider or a Payment Method Acquirer to return funds unrelated to an existing Charge.
- “Reversal” means an instruction initiated by a Payment Method Provider, a Payment Method Acquirer or us to return funds for an existing Charge. Reversals may result from (i) invalidation of a charge by a Payment Method Provider or a Payment Method Acquirer; (ii) funds settled to you in error or without authorisation; and (iii) submission of a Charge in violation of the applicable Payment Method Rules, or where submission of the Charge or your use of Payment Processing Services violates this Agreement.
2. Registering for Use of Payment Processing Services
When you register for a ProTouchStaff Account, you may be asked for financial information, or information we use to identify you, your Representatives, principals, beneficial owners, and other individuals associated with your ProTouchStaff Account. Throughout the term of this Agreement, we may share information about your ProTouch Staff Account with Payment Method Providers and Payment Method Acquirers in order to verify your eligibility to use the Payment Processing Services, establish any necessary accounts or credit with Payment Method Providers and Payment Method Acquirers, monitor Charges and other activity, and conduct risk management and compliance reviews. We may also share your Data (as that term is defined below) with Payment Method Providers and Payment Method Acquirers for the purpose of facilitating the compliance of ProTouchStaff, the Payment Method Providers, and the Payment Method Acquirers with applicable Laws and Payment Method Rules. We will review and may conduct further intermittent reviews of your ProTouch Staff Account information to determine that you are eligible to use the Payment Processing Services. ProTouch Staff’s use of the information you provide to us under this Agreement is described in more detail in Section D.
3. Processing Transactions; Disputes, Refunds, Reversals
You may only submit Charges through the Payment Processing Services that are authorised by your Customers. To enable us to process Transactions for you, you authorise and direct the APSP, the Payment Method Providers and Payment Method Acquirers to receive and settle any payment processing proceeds owed to you through the Payment Processing Services. You may not, other than as required by the Financial Services Terms or Payment Terms (each as defined below), grant or assign any interest in payment processing proceeds to any third party until such time as the payment processing proceeds are deposited into your Payout Account (as defined below). You appoint the APSP as your agent for the limited purpose of directing, receiving, holding and settling such proceeds. You agree that the APSP’s receipt of such proceeds satisfies the relevant end-customer’s obligations to make payments to you. We will promptly update your ProTouchStaff Account balance to reflect any such proceeds that the APSP receives on your behalf.
You are immediately responsible to us for all Disputes, Refunds, Reversals, Returns, or Fines regardless of the reason or timing. We may decline to act upon a Refund instruction, or delay execution of the instruction, if: (i) it would cause your ProTouch Staff Account balance to become negative; (ii) you are the subject of Bankruptcy Proceedings; or (iii) where we otherwise believe that there is a risk that you will not meet your liabilities under this Agreement (including with respect to the Charge that is the subject of the Refund instruction).
In many but not all cases, you may have the ability to challenge a Dispute by submitting evidence through the ProTouchStaff application or the Dashboard. We may request additional information to provide to Payment Method Providers and Payment Method Acquirers to assist you in contesting the Dispute, but we cannot guarantee that your challenge will be successful. Payment Method Providers and Payment Method Acquirers may deny your challenge for any reason they deem appropriate. Where a challenge is entirely or partially successful, your ProTouch Staff Account will, subject to our exercise of our rights under Section C.9 below, be credited with the funds associated with the Charge that is the subject of the Dispute (or a portion thereof). You may not submit a new Charge which duplicates a Transaction that is subject to a Dispute.
Please keep in mind that, as explained in Section D.3, you are liable for all losses you incur when lost or stolen payment credentials or accounts are used to purchase products or services from you. ProTouch Staff does not and will not insure you against losses caused by fraud under any circumstances. For example, if someone pretends to be a legitimate buyer but is a fraudster, you will be responsible for any resulting costs, including Disputes, even if you do not recover the fraudulently purchased product. Even if we work with you to assist you or law enforcement in recovering lost funds, ProTouch Staff is not liable to you, or responsible for your financial losses or any other consequences of such fraud.
A Reversal for a Charge may be issued if the Charge is made without the account owner’s authorisation, or in connection with a Restricted Business, violates the applicable Payment Method Rules, or for other applicable reasons. If a Reversal is issued, we will provide you Notice and a description of the cause of the Reversal.
4. Responsibilities and Disclosures
It is very important to us that both the Service User and Service Provider understand the purpose, amount, and conditions of Charges submitted to us. With that in mind, when using the Payment Processing Services you agree to: (i) accurately communicate, and not misrepresent, the nature of the Transaction, and the amount of the Charge in the appropriate currency prior to submitting it to ProTouchStaff; (ii) provide a receipt that accurately describes each Transaction; (iii) provide a meaningful way for parties to contact you in the event that the product or service is not provided as described; (iv) not use Services to sell products or services in a manner that is unfair or deceptive, expose users to unreasonable risks, or does not disclose material terms of a purchase in advance; and (v) inform parties that ProTouchStaff process Transactions (including payment Transactions) for you. You also agree to maintain and make available a reasonable return, refund, cancellation, or adjustment policy, and clearly explain the process by which Customers can receive a Refund.
The Payment Processing Services may include functionality that enables you to receive recurring or subscription payments, and to issue invoices. If you use the Payment Processing Services to submit recurring or subscription Charges, you agree to comply with applicable Laws and Payment Method. If you use the Payment Processing Services to issue invoices, you understand and agree that it is your responsibility to ensure that the form and content of the invoices comply with applicable Laws and are sufficient to achieve any legal or tax effect that you are trying to achieve.
If you engage in Transactions with individuals, you specifically agree to provide disclosures required by Law, and to not engage in unfair, deceptive, or abusive acts or practices.
5. Payment Terms
Your use of the Payment Processing Services is subject to additional terms that apply between you and one or more of ProTouchStaff and any Payment Method Provider or other Payment Method Acquirer. By using the Payment Processing Services, you agree to the applicable Payment Terms (as set out on our legal page including those that separately bind you with our affiliates, Payment Method Providers and/or any other Payment Method Acquirers). Additionally, a Payment Method Provider may enforce the terms of this Agreement directly against you.
We may add or remove Payment Method Providers and Payment Method Acquirers at any time. The Payment Terms may also be amended from time to time. Your continuing use of the Payment Processing Services constitutes your consent and agreement to such additions, removals and amendments.
6. Specific Payment Methods
When accepting payment card payments, you must comply with all applicable Network Rules, including the Network Rules specified by the Visa Rules and Regulations Rules specified by Visa International (“Visa”), the Mastercard Rules specified by MasterCard International Incorporated (“Mastercard”), and Network Rules specified by American Express. Collectively, Visa, Mastercard and American Express are referred to in this Agreement as the “Networks”.
In addition, for Visa and Mastercard Transactions, Visa and Mastercard require that you enter into a direct contractual relationship with the Payment Method Acquirer for these types of Transactions, as described in the APSP Financial Services Terms.
The Network Rules state that you may only accept payments using payment cards for bona fide legal commercial transactions between you and your Customers for goods or services that are free of liens, claims, and encumbrances. You may only use payment network trademarks or service marks consistent with the Network Rules, and the Network Rules also limit your ability to discriminate by card type or charge surcharges for acceptance of payment cards.
The Networks may amend the Network Rules at any time without notice to you, and ProTouch Staff reserves the right to change the Payment Processing Services at any time to comply with the Network Rules. We may share with the Networks (and the Payment Method Acquirer) information you provide to us that we use to identify the nature of your products or services, including the assignment of your business activities to a particular payment network merchant category code (MCC).
Customers typically raise payment card network Disputes (also known as “chargebacks”) when a merchant fails to provide the product or service to the Customer, or where the payment card account holder did not authorise the Charge. High Dispute rates (typically those exceeding 1%) may result in your inability to use the Payment Processing Services. Failure to timely and effectively manage Disputes with your Customers may ultimately result in your inability to accept payment cards for your business.
When you accept payment card Transactions, Network Rules specifically prohibit you from (i) providing cash refunds for a Charge on a credit card, unless required by Laws, (ii) initiating a Refund more than five calendar days after issuing a credit to your Customer, (iii) accepting cash, its equivalent, or any other item of value for a Refund, (iv) acting as a payment facilitator, intermediary or aggregator, or otherwise reselling Payment Processing Services on behalf of others, (v) submitting what you believe or know to be a fraudulent Charge or a Charge that has not been authorised by the cardholder, (vi) submitting a Charge where the Transaction has not been completed or the goods or services have not been shipped or provided (except where the cardholder has paid a partial or full prepayment or the cardholder’s consent is obtained for a recurring transaction), (vii) splitting Transactions into multiple Charges unless certain criteria are met, or (vii) using Payment Processing Services in a manner that is an abuse of the payment card networks or a violation of the Network Rules.
If you misuse the Payment Processing Services for payment card Transactions or engage in activity the Networks identify as damaging to their brand, or if we are required to do so by the Network Rules, we may submit information about you, Representatives, your beneficial owners and principals, and other individuals associated with your ProTouch Staff Account, to the MATCH terminated merchant listing maintained by MasterCard and accessed and updated by Visa and American Express, or to the Consortium Merchant Negative File maintained by Discover. Addition to one of these lists may result in your inability to accept payments from payment cards. You understand and consent to our sharing this information and to the listing itself, and you will fully reimburse us for any losses we incur from third-party claims, and you waive your rights to bring any direct claims against us that result from such reporting. Our reporting of information under this paragraph is separate from any other right that we may exercise under this Agreement, and we may separately terminate this Agreement or suspend your ProTouch Staff Account due to the misuse or damaging activity that caused us to make the report.
If you engage a third party processor to create and deliver a payment card transaction directly to the payment card network, then you may be able to specify that the transaction will be cleared and settled by ProTouchStaff via our Payment Processing Services. If you intend to make use of this service with respect to the ProTouchStaff Payment Processing Services, you first must notify us. If you engage a third party to deliver this service, and you are permitted to designate ProTouchStaff in this manner, then you take the risk of the third party properly delivering the transaction to the payment card network. You understand and agree that ProTouchStaff will only clear and settle to you funds for transactions that are actually received by the payment card network. You further assume responsibility for any failure by such third party to comply with the applicable Network Rules.
7. Settlement and Payout Schedule
a. Your Payout Account: The APSP will, with its banking partners, arrange to settle funds to the bank or other financial institution account that you designate (your “Payout Account”). You affirm that you are authorised to initiate settlements to and debits from the Payout Account, and that the Payout Account is owned by you, and administered and managed by a financial institution located in the European Union. If you update your Payout Account (including via the Dashboard) then you must ensure that you continue to comply with the requirements of this section. We may require you to provide us with documentary proof demonstrating your compliance with this section, and your failure to provide such proof will constitute a breach of this Agreement.
b. Settlement to Your Payout Account: A positive balance in your ProTouchStaff Account will, subject to the terms of this Agreement, result in settlement to your Payout Account and a negative balance in your ProTouchStaff Account will result in a deduction, set-off and/or debit of the amounts owed in accordance with Section C.9 below. We may reduce the amount settled to your Payout Account by the amount of Fees, Fines, and amounts owed to us for any reason.
c. Settlement to third party recipients: We may offer you the ability to have funds settled to another person (a “third party recipient”) as instructed by you to ProTouchStaff (including by transferring all or part of the positive balance in your ProTouchStaff Account to the ProTouchStaff Account of such third party recipient), instead of settling funds to your Payout Account. If the APSP or a Payment Method Acquirer settles funds to a third party recipient (or transfers all or part of the balance in your ProTouchStaff Account to the ProTouchStaff Account of a third party recipient) as instructed by you, you agree that this satisfies ProTouchStaff’s obligations (and the obligations of any applicable Payment Method Provider and/or any Payment Method Acquirer) to settle funds to you, and we will promptly update your ProTouchStaff Account balance to reflect such settlement or transfer.
d. Multi-currency Processing: We may offer you the ability to have funds settled to your Payout Account in a currency different from the one in which you accepted payment from a customer (“Multi-Currency Processing”). To use this service, you must provide us with a valid Payout Account for each currency for which you request settlement, based on our list of available settlement currencies. We may add or remove currencies from our list of available settlement currencies at any time. If you use Multi-Currency Processing, we will identify at the time of the Charge (for example, through the API), the conversion rate that will apply to the Charge. If you Refund a Charge, the conversion rate that will apply will be the rate in effect at the time of the Refund, not the Charge. By submitting a Charge or Refund you will be deemed to have accepted the applicable conversion rate. You may choose not to use the Multi-Currency Processing service at any time. You may also change the Payout Account information or other settings associated with your use of Multi-Currency Processing, but any such changes will only affect subsequent Charges.
e. Payout Schedule: The term “Payout Schedule” refers to the time it takes for us to initiate settlement to your Payout Account. Your Payout Schedule is specified in the Dashboard. ProTouchStaff may require a holding period before making initial settlement to the Payout Account. After the initial settlement of funds, we will settle funds to the Payout Account according to the Payout Schedule and the terms of this Agreement. If the institution holding your Payout Account is based in the European Union, we expect the maximum execution time to execute a settlement to your Payout Account will be the next business day after we have initiated it; however, please be aware that a Payment Method Provider, a Payment Method Acquirer, or the financial institution holding your Payout Account, may delay settlement for any reason. We are not responsible for any action taken by the institution holding your Payout Account to not credit the Payout Account or to otherwise not make funds available to you as you expected.
We reserve the right to change the Payout Schedule or to suspend settlement to you. Examples of situations where we may do so are: (i) where there are pending, anticipated, or excessive Disputes, Refunds, or Reversals; (ii) in the event that we suspect or become aware of suspicious activity; or (iii) where we are required by Law or court order. We have the right to withhold settlement to your Payout Account upon termination of this Agreement if we reasonably determine that we may incur losses resulting from credit, fraud, or other legal risks associated with your ProTouchStaff Account. If we exercise our right to withhold a Payout for any reason, we will communicate the general reason for withholding the Payout and give you a timeline for releasing the funds.
f. Incorrect Settlement: The information required for settlement will depend on the financial institution holding the Payout Account. Please make sure that any information about the Payout Accounts that you provide to us is accurate and complete. If you provide us with incorrect information (i) you understand that funds may be settled to the wrong account and that we may not be able to recover the funds from such incorrect transactions and (ii) you agree that you are solely responsible for any losses you or third parties incur due to erroneous settlement transactions, you will not make any claims against us related to such erroneous settlement transactions, and you will fully reimburse us for any losses we incur.
8. Clearing Funds and Reserves
All funds resulting from Charges are held in pooled clearing accounts (the “Clearing Accounts”) with our banking partners. The APSP will settle funds to and from the Clearing Accounts in the manner described in this Agreement; however, you have no rights to the Clearing Accounts or to any funds held in the Clearing Accounts, you are not entitled to draw funds from the Clearing Accounts, and you will not receive interest from funds maintained in the Clearing Accounts.
In certain circumstances, we may (or may require you to) place funds in reserve or impose conditions on the release of funds to you (each a “Reserve”). We may establish a Reserve for any reason if we determine that the risk of loss to ProTouchStaff, users, or others associated with your ProTouchStaff Account is higher than normal. For example, we may hold or establish a Reserve if: (i) as a consequence of your or your Customers’ activities, we determine there is an unacceptable level of risk or prospect of loss to us or to your Customers, (ii) you have violated or are likely to violate this Agreement, or (iii) your ProTouchStaff Account has an elevated or abnormally high number of Disputes. We may at our discretion hold all funds in Reserve in a bank account in our name. All funds held in Reserve and all rights, title and interest to such funds, are at all times exclusively for our benefit and vested in us. If we establish a Reserve, we will provide you Notice of the amount, timing, and conditions upon which the funds in the Reserve will be released to you. In many cases, the Reserve amount will be the entire amount of Charges processed using the Payment Processing Services. We may change the terms of the Reserve or impose additional conditions to the Reserve based on our continuous assessment and understanding of the risks associated with your ProTouchStaff Account, including if required to do so by Payment Method Providers or Payment Method Acquirers, or for any other reason. We may fund the Reserve with funds processed through your use of Payment Processing Services, by debiting the Payout Account or another bank account associated with your ProTouchStaff Account, or by requesting funds directly from you.
To the extent possible, we prefer to identify the necessity for a Reserve in advance of establishing one. If you are concerned that we will impose a Reserve on you due to the nature of your business activities, please contact us before using the Services.
9. Security Interests, Collection, and Set-Off Rights
a. Security Interests: At any time upon our request, you will provide us, or you will procure that an entity(ies) or person(s) reasonably satisfactory to us will provide us, with security in such form and over such assets as we require to secure the performance of your obligations and liabilities to us under this Agreement, including all amounts that you owe to us or may owe in the future. You will execute and deliver any documents and pay any associated fees we consider necessary to create, perfect, and maintain security in such form and over such assets as we may reasonably require.
b. Collection and Set-Off Rights: You agree to pay all amounts owed to us and to our affiliates on demand. Your failure to pay amounts owed to us or to our affiliates under this Agreement is a breach and you will be liable for any costs we incur during collection in addition to the amount you owe. Collection costs may include, attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, any applicable interest, and any other related cost. Where possible, we will first attempt to collect or set-off amounts owed to us and to our affiliates from balances in your ProTouchStaff Accounts from your use of the Payment Processing Services or from funds that we hold in Reserve. However, we may collect any amounts you owe us under this Agreement by deducting or setting-off amounts that you owe from the ProTouchStaff account balance, or debiting the payout account for such ProTouchStaff account, or any ProTouchStaff account that we determine, acting reasonably, is associated with your ProTouchStaff Account. Similarly, we may deduct or set-off amounts from your ProTouchStaff Account balance (or debit your Payout Accounts) in order to collect amounts owed to us in relation to such associated ProTouchStaff accounts.
In certain circumstances, we may require a personal or other guarantee (a “Guarantee”) from a user’s principal, owner, or other guarantor. A Guarantee consists of a legally binding promise by an individual or an entity to pay any amounts the user owes in the event that the user is unable to pay. If we require you to provide us with a Guarantee, we will specifically inform you of the amount of, and the reasons for the Guarantee. If you are unable to provide such a Guarantee when required, you will not be permitted to use the Services.
10. Reconciliation and Error Notification
The Dashboard contains details of Charges, Charge history, and other activity on your ProTouchStaff Account. Except as required by Law, you are solely responsible for reconciling the information in the Dashboard generated by your use of Payment Processing Services with your records of Customer Transactions, and for identifying any errors.
You agree to review your ProTouchStaff Account and immediately notify us of any errors. We will investigate any reported errors, including any errors made by ProTouchStaff or a Payment Method Provider, and, when appropriate, attempt to rectify them by crediting or debiting the Payout Account identified in the Dashboard. However, you should be aware that your ability to recover funds you have lost due to an error may be very limited or even impossible, particularly if we did not cause the error, or if funds are no longer available in any Payout Account.
For Transaction errors, we will work with you and our Payment Method Providers to correct a Transaction error in accordance with the applicable Payment Method Rules. If you fail to communicate an error to us for our review without undue delay and, in any event, within 13 months after you discovered it and flagged it in the Dashboard, you waive your right to make any claim against us or our Payment Method Providers for any amounts associated with the error.
11. Dormant Accounts
If you leave any funds dormant in a ProTouchStaff Account and you do not give us instructions where to send them, we may be required by Law to deem the funds to be abandoned by you, and to deliver them to various government agencies. To the extent required by Law, we will attempt to provide you Notice if we hold funds payable to you in an account beyond the applicable dormancy period for abandoned property. If we are unable to contact you, we will treat the funds in your ProTouchStaff Account to be abandoned, and will deliver them to the appropriate government authority.
Section D: Data Usage, Privacy, and Security
1. Data Usage Overview
Protecting, securing, and maintaining the information processed and handled through the Services is one of our top priorities, and it should be yours too. This section describes our respective obligations when handling and storing information connected with the Services. The following terms used in this section relate to data provided to ProTouchStaff by you or your Customers, or received or accessed by you through your use of the Services:
- “Payment Account Details” means the Payment Method account details for a Customer, and includes, with respect to credit and debit cards, the cardholder’s account number, card expiration date, and CVV2.
- “Payment Data” means Payment Account Details, information communicated to or by Payment Method Providers or Payment Method Acquirers, financial information specifically regulated by Laws and Payment Method Rules, and any other information used with the Payment Processing Services to complete a Transaction.
- “Personal Data” means information that identifies a specific living person (not a company, legal entity, or machine) and is transmitted to or accessible through the Services.
- “ProTouchStaff Data” means details of the API transactions over ProTouchStaff infrastructure, information used in fraud detection and analysis, aggregated or anonymized information generated from Data, and any other information created by or originating from ProTouchStaff or the Services.
- “User Data” means information that describes your business and its operations, your products or services, and orders placed by Customers.
- The term “Data” used without a modifier means all Personal Data, User Data, Payment Data, and ProTouchStaff Data.
ProTouchStaff processes, analyses, and manages Data to: (a) provide Services to you, other ProTouchStaff users, and Customers; (b) mitigate fraud, financial loss, or other harm to users, Customers and ProTouchStaff; and (c) analyse, develop and improve our products, systems, and tools. ProTouchStaff provides Data to third-party service providers, including Payment Method Providers, Payment Method Acquirers, and their respective affiliates, as well as to ProTouchStaff’s affiliates, to allow us to provide Services to you and other users. We do not provide Personal Data to unaffiliated parties for marketing their products to you. You understand and consent to ProTouchStaff’s use of Data for the purposes and in a manner consistent with this Section D.
2. Data Protection and Privacy
a. Confidentiality: ProTouchStaff will only use User Data as permitted by this Agreement, by other agreements between you and us, or as otherwise directed or authorised by you. You will protect all Data you receive through the Services, and you may not disclose or distribute any such Data, and you will only use such Data in conjunction with the Services and as permitted by this Agreement or by other agreements between you and us. Neither party may use any Personal Data to market to Customers unless it has received the express consent from a specific Customer to do so. You may not disclose Payment Data to others except in connection with processing Transactions requested by Customers and consistent with applicable Laws and Payment Method Rules.
You affirm that you are now and will continue to be compliant with all applicable Laws governing the privacy, protection, and your use of Data that you provide to us or access through your use of the Services. You also affirm that you have obtained all necessary rights and consents under applicable Laws to disclose to ProTouchStaff – or allow ProTouchStaff to collect, use, retain, and disclose – any Personal Data that you provide to us or authorise us to collect, including Data that we may collect directly from Customers using cookies or other similar means. As may be required by Law and in connection with this Agreement, you are solely responsible for disclosing to Customers that ProTouchStaff processes Transactions (including payment Transactions) for you and may receive Personal Data from you. Additionally, where required by Law or Payment Method Rules, we may delete or disconnect a Customer’s Personal Data from your ProTouchStaff Account when requested to do so by the Customer.
If we become aware of an unauthorised acquisition, disclosure or loss of Customer Personal Data on our systems, we will notify you consistent with our obligations under applicable Law. We will also notify you and provide you sufficient information regarding the unauthorised acquisition, disclosure or loss to help you mitigate any negative impact on the Customer.
c. PCI Compliance: If you use Payment Processing Services to accept payment card Transactions, you must comply with the Payment Card Industry Data Security Standards (“PCI-DSS”) and, if applicable to your business, the Payment Application Data Security Standards (PA-DSS) (collectively, the “PCI Standards”). The PCI Standards include requirements to maintain materials or records that contains payment card or Transaction data in a safe and secure manner with access limited to authorised personnel. ProTouchStaff provides tools to simplify your compliance with the PCI Standards, but you must ensure that your business is compliant. The specific steps you will need to take to comply with the PCI Standards will depend on your implementation of the Payment Processing Services. You can find more information about implementing ProTouchStaff in a manner compliant with the PCI Standards in our Documentation. You will promptly provide us, or any applicable Payment Method Provider or Payment Method Acquirer, with documentation demonstrating your compliance with the PCI Standards upon our request. If you are unable to provide documentation sufficient to satisfy us, the Payment Method Providers, or the applicable Payment Method Acquirers, that you are compliant with the PCI Standards, then ProTouchStaff, and any applicable Payment Method Provider or Payment Method Acquirer, may access your business premises on reasonable notice to verify your compliance with the PCI Standards.
If you elect to store or hold “Account Data”, as defined by the PCI Standards (including Customer card account number or expiration date), you must maintain a system that is compliant with the PCI Standards. If you do not comply with the PCI Standards, or if we or any Payment Method Provider or Payment Method Acquirer are unable to verify your compliance with the PCI Standards, we may suspend your ProTouchStaff Account or terminate this Agreement. If you intend to use a third party service provider to store or transmit Account Data, you must not share any data with the service provider until you verify that the third party holds sufficient certifications under the PCI Standards, and notify us of your intention to share Account Data with the service provider. Further, you agree to never store or hold any “Sensitive Authentication Data”, as defined by the PCI Standards (including CVC or CVV2), at any time. You can find information about the PCI Standards on the PCI Council’s website.
d. Data Processing. You are the data controller and we are the data processor in relation to Personal Data processed on your behalf under this Agreement, except that we will be a data controller in relation to Personal Data where we determine the purposes and manner in which the Personal Data is processed (including, for example, in complying with any regulations or laws imposed upon us through Payment Method Rules or by Payment Method Providers or Payment Method Acquirers).
We will, to the extent that we are a data processor, process Personal Data in accordance with the terms of this Agreement and lawful instructions reasonably given by you to us from time to time, and we will employ appropriate technical and organisational measures to protect such Personal Data. We will not be liable for any claim brought by a data subject arising from any action or omission by us, to the extent that such action or omission resulted from your instructions.
3. Security and Fraud Controls
a. ProTouchStaff’s Security: ProTouchStaff is responsible for protecting the security of Data in our possession. We will maintain commercially reasonable administrative, technical, and physical procedures to protect User Data and Personal Data stored in our servers from unauthorised access, accidental loss, modification, or breach, and we will comply with applicable Laws and Payment Method Rules when we handle User and Personal Data. However, no security system is impenetrable and we cannot guarantee that unauthorised parties will never be able to defeat our security measures or misuse any Data in our possession. You provide User Data and Personal Data to ProTouchStaff with the understanding that any security measures we provide may not be appropriate or adequate for your business, and you agree to implement Security Controls (as defined below) and any additional controls that meet your specific requirements. In our sole discretion, we may take any action, including suspension of your ProTouchStaff Account, to maintain the integrity and security of the Services or Data, or to prevent harm to you, us, Customers, or others. You waive any right to make a claim against us for losses you incur that may result from such actions.
b. Your Security: You are solely responsible for the security of any Data on your website, your servers, in your possession, or that you are otherwise authorised to access or handle. You will comply with applicable Laws and Payment Method Rules when handling or maintaining User Data and Personal Data, and will provide evidence of your compliance to us upon our request. If you do not provide evidence of such compliance to our satisfaction, we may suspend your ProTouchStaff Account or terminate this Agreement.
c. Security Controls: You are responsible for assessing the security requirements of your business, and selecting and implementing security procedures and controls (“Security Controls”) appropriate to mitigate your exposure to security incidents. We may provide Security Controls as part of the Services, or suggest that you implement specific Security Controls. However, your responsibility for securing your business is not diminished by any Security Controls that we provide or suggest, and if you believe that the Security Controls we provide are insufficient, then you must separately implement additional controls that meet your requirements. You may review some of the details of our Security Controls on our website.
d. Fraud Risk: While we may provide or suggest Security Controls, we cannot guarantee that you or Customers will never become victims of fraud. Any Security Controls we provide or suggest may include processes or applications developed by ProTouchStaff, its affiliates, or other companies. You agree to review all the Security Controls we suggest and choose those that are appropriate for your business to protect against unauthorised Transactions and, if appropriate for your business, independently implement other security procedures and controls not provided by us. If you disable or fail to properly use Security Controls, you will increase the likelihood of unauthorised Transactions, Disputes, fraud, losses, and other similar occurrences. Keep in mind that you are solely responsible for losses you incur from the use of lost or stolen payment credentials or accounts by fraudsters who engage in fraudulent Transactions with you, and your failure to implement Security Controls will only increase the risk of fraud. We may assist you with recovering lost funds, but you are solely responsible for losses due to lost or stolen credentials or accounts, compromise of your username or password, changes to your Payout Account, and any other unauthorised use or modification of your ProTouchStaff Account. ProTouchStaff is not liable or responsible to you and you waive any right to bring a claim against us for any losses that result from the use of lost or stolen credentials or unauthorised use or modification of your ProTouchStaff Account, unless such losses result from ProTouchStaff’s wilful or intentional actions. Further, you will fully reimburse us for any losses we incur that result from the use of lost or stolen credentials or accounts.
We may also provide you with Data regarding the possibility or likelihood that a Transaction may be fraudulent. We may incorporate any subsequent action or inaction by you into our fraud model, for the purpose of identifying future potential fraud. You understand that we provide this Data to you for your consideration, but that you are ultimately responsible for any actions you choose to take or not take in relation to such Data.
4. Provision of Payment Account Details upon Termination
For 30 days after termination of your ProTouchStaff Account, you may request in writing that we provide to an alternative payment services provider the Payment Account Details regarding Transactions between you and your Customers that you are entitled to receive. We may require you to provide evidence that the alternative payment services provider has appropriate systems and controls as a precondition to the provision of any Payment Account Details. In addition, for Payment Account Details regarding payment card transactions, the payment services provider must be a PCI-DSS Level 1-certified. Our obligation to comply with a request under this section is limited to the extent commercially reasonable, and we may delay or refuse any request if we believe the payment services provider you have identified does not have systems or controls in place that are sufficient to protect Payment Account Details, that the integrity of Payment Account Details may be compromised, or if Laws or Payment Method Rules prohibit us from providing the Payment Account Details.
Section E: Additional Legal Terms
1. Right to Amend
We have the right to change or add to the terms of this Agreement at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on use of the Services by posting such changes on our website or any other website we maintain or own. We will provide you with Notice of any changes through the Dashboard, via email, or through other reasonable means. If you are an existing ProTouchStaff user, the changes will come into effect on the date we specify in the Notice, and your use of the Services, API, or Data after a change has taken effect, constitutes your acceptance of the terms of the modified Agreement. You can access a copy of the current terms of this Agreement on our website at any time. You can find out when this Agreement was last changed by checking the “Last updated” date at the top of the Agreement.
You may not assign this Agreement, any rights or licences granted in this Agreement, or operation of your ProTouchStaff Account to others without our prior written consent. If you wish to make such an assignment, please contact us. If we consent to the assignment, the assignee must agree to assume all of your rights and obligations owed by you related to the assignment and must agree to comply with the terms of this Agreement. ProTouchStaff may assign this Agreement without your consent or any other restriction. If we make an assignment, we will provide reasonable Notice to you.
3. Right to Audit
If we believe that a security breach, leak, loss, or compromise of Data has occurred on your systems, website, or app affecting your compliance with this Agreement, we may require you to permit a third-party auditor approved by us to conduct a security audit of your systems and facilities, and you must fully cooperate with any requests for information or assistance that the auditor makes to you as part of the security audit. The auditor will issue a report to us which we may share with our Payment Method Providers and Payment Methods Acquirers.
4. No Agency; Third-Party Services
Except as expressly stated in this Agreement, nothing in this Agreement serves to establish a partnership, joint venture, or other agency relationship between you and us, or with any Payment Method Provider. Each party to this Agreement, and each Payment Method Provider and Payment Method Acquirer, is an independent contractor. Unless a Payment Method Provider or Payment Method Acquirer expressly agrees, neither you nor we have the ability to bind a Payment Method Provider or Payment Method Acquirer to any contract or obligation, and neither party will represent that you or we have such an ability.
5. Force Majeure
Neither party will be liable for any delays in processing or other nonperformance caused by telecommunications, utility failures, or equipment failures; labor strife, riots, war, or terrorist attacks; nonperformance of our vendors or suppliers, fires or acts of nature; or any other event over which the respective party has no reasonable control. However, nothing in this section will affect or excuse your liabilities or your obligation to pay Fees, Fines, Disputes, Refunds, Reversals, or Returns under this Agreement.
6. Your Liability For Third-Party Claims Against Us
Without limiting, and in addition to, any other obligation that you may owe under this Agreement, you are at all times responsible for the acts and omissions of your employees, contractors and agents, to the extent such persons are acting within the scope of their relationship with you.
You agree to defend ProTouchStaff, our affiliates, and their respective employees, agents, and service providers (each a “ProTouchStaff Entity”) against any claim, suit, demand, loss, liability, damage, action, or proceeding (each, a “Claim”) brought by a third party against a ProTouchStaff Entity, and you agree to fully reimburse the ProTouchStaff Entities for any Claims that result from: (i) your breach of any provision of this Agreement; (ii) any Fees, Fines, Disputes, Refunds, Reversals, Returns, or any other liability we incur that results from your use of the Payment Processing Services; (iii) negligent or wilful misconduct of your employees, contractors, or agents; or (iv) contractual or other relationships between you and Customers.
Important Note for Sole Proprietors: If you are using Services as a sole proprietor, please keep in mind that the Law and the terms of this Agreement consider you and your business to be legally one and the same. You are personally responsible and liable for your use of the Services, payment of Fees, Refunds, Reversals, Fines, losses based on Disputes or fraud, or for any other amounts you owe under this Agreement for your failure to use Security Controls, and for all other obligations to us and to your Customers. You risk personal financial loss if you fail to pay any amounts owed. Please take the time to read our Documentation and take any measures appropriate to protect against such losses.
7. Representations and Warranties
By accepting the terms of this Agreement, you represent and warrant that: (a) you are eligible to register and use the Services and have the authority to execute and perform the obligations required by this Agreement; (b) any information you provide us about your business, products, or services is accurate and complete; (c) any Charges represent a Transaction for permitted products, services, or donations, and any related information accurately describes the Transaction; (d) you will fulfil all of your obligations to Customers and will resolve all Disputes with them; (e) you will comply with all Laws applicable to your business and use of the Services; (f) your employees, contractors and agents will at all times act consistently with the terms of this Agreement; (g) you will not use Payment Processing Services for personal, family or household purposes, for peer-to-peer money transmission, or (except in the normal course of business) intercompany Transactions; and (h) you will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner that interferes with the normal operation of the Services.
8. No Warranties
WE PROVIDE THE SERVICES AND PROTOUCHSTAFF IP “AS IS” AND “AS AVAILABLE”, WITHOUT ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY OTHER TYPE OF WARRANTY OR GUARANTEE. NO DATA, DOCUMENTATION OR ANY OTHER INFORMATION PROVIDED BY PROTOUCHSTAFF OR OBTAINED BY YOU FROM OR THROUGH THE SERVICES — WHETHER FROM PROTOUCHSTAFF OR ANOTHER PROTOUCHSTAFF ENTITY, AND WHETHER ORAL OR WRITTEN — CREATES OR IMPLIES ANY WARRANTY FROM A PROTOUCHSTAFF ENTITY TO YOU.
YOU AFFIRM THAT NO PROTOUCHSTAFF ENTITY CONTROLS THE PRODUCTS OR SERVICES THAT YOU OFFER OR SELL OR THAT YOUR CUSTOMERS PURCHASE USING THE PAYMENT PROCESSING SERVICES. YOU UNDERSTAND THAT WE CANNOT GUARANTEE AND WE DISCLAIM ANY KNOWLEDGE THAT YOUR CUSTOMERS POSSESS THE AUTHORITY TO MAKE, OR WILL COMPLETE, ANY TRANSACTION.
THE PROTOUCHSTAFF ENTITIES DISCLAIM ANY KNOWLEDGE OF, AND DO NOT GUARANTEE: (a) THE ACCURACY, RELIABILITY, OR CORRECTNESS OF ANY DATA PROVIDED THROUGH THE SERVICES; (b) THAT THE SERVICES WILL MEET YOUR SPECIFIC BUSINESS NEEDS OR REQUIREMENTS; (c) THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; (d) THAT PROTOUCHSTAFF WILL CORRECT ANY DEFECTS OR ERRORS IN THE SERVICE, API, DOCUMENTATION, OR DATA; OR (e) THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL CODE. USE OF DATA YOU ACCESS OR DOWNLOAD THROUGH THE SERVICES IS DONE AT YOUR OWN RISK — YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM SUCH ACCESS OR DOWNLOAD. YOU UNDERSTAND THAT THE PROTOUCHSTAFF ENTITIES MAKE NO GUARANTEES TO YOU REGARDING TRANSACTION PROCESSING TIMES OR PAYOUT SCHEDULES.
NOTHING IN THIS AGREEMENT OPERATES TO EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF ANY IMPLIED CONDITION, WARRANTY OR GUARANTEE, OR THE EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER LAW WHERE TO DO SO WOULD: (A) CONTRAVENE THAT LAW; OR (B) CAUSE ANY TERM OF THIS AGREEMENT TO BE VOID.
9. Limitation of Liability
Under no circumstances will any ProTouchStaff Entity be responsible or liable to you for any indirect, punitive, incidental, special, consequential, or exemplary damages resulting from your use or inability to use the Services or for the unavailability of the Services, for lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to this Agreement or your use of the Services, even if such damages are foreseeable, and whether or not you or the ProTouchStaff Entities have been advised of the possibility of such damages. The ProTouchStaff Entities are not liable, and deny responsibility for, any damages, harm, or losses to you arising from or relating to hacking, tampering, or other unauthorised access or use of the Services, your ProTouchStaff Account, or Data, or your failure to use or implement anti-fraud measures, Security Controls, or any other data security measure. The ProTouchStaff Entities further deny responsibility for all liability and damages to you or others caused by (a) your access or use of the Services inconsistent with the Documentation; (b) any unauthorised access of servers, infrastructure, or Data used in connection with the Services; (c) interruptions to or cessation of the Services; (d) any bugs, viruses, or other harmful code that may be transmitted to or through the Services; (e) any errors, inaccuracies, omissions, or losses in or to any Data provided to us; (f) third-party content provided by you; or (g) the defamatory, offensive, or illegal conduct of others.
You agree to limit any additional liability not disclaimed or denied by the ProTouchStaff Entities under this Agreement to your direct and documented damages; and you further agree that under no circumstances will any such liability exceed in the aggregate the amount of Fees paid by you to ProTouchStaff during the three-month period immediately preceding the event that gave rise to your claim for damages.
These limitations on our liability to you will apply regardless of the legal theory on which your claim is based, including contract, tort (including negligence), strict liability, or any other theory or basis.
We provide some of the Services from facilities in the Netherlands. We do not claim, and we cannot guarantee that Services we provide from the Netherlands are or will be appropriate or available for any other location or jurisdiction, comply with the Laws of any other location or jurisdiction, or comply with Laws governing export, import, or foreign use.
10. Responding to Legal Process
11. Dispute Resolution; Agreement to Arbitrate
a. Binding Arbitration: Any dispute, controversy or claim arising out of or relating to this contract, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the Commerce International Arbitration Rules of the International Chamber. The tribunal will consist of a sole arbitrator. The place of the arbitration will be The Hague, the Netherlands. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction.
This Agreement and the rights of the parties hereunder shall be governed and construed in accordance with the laws of Ireland, exclusive of conflict or choice of law rules. Nothing in this section will preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Either party may commence arbitration by providing to the other party to the dispute a written demand for arbitration, setting forth the subject of the dispute and the relief requested.
b. Service of Process: Each party hereby irrevocably and unconditionally consents to service of process through personal service at their corporate headquarters, registered address, or primary address (for individuals or sole proprietors). Nothing in this Agreement will affect the right of any party to serve process in any other manner permitted by Law.
c. Class Waiver: To the fullest extent permitted by Law, each of the parties agrees that any dispute arising out of or in connection with this Agreement, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any of the transactions contemplated between the parties.
d. Provision of an Award: Subject to the limitations of liability identified in this Agreement, the appointed arbitrators may award monetary damages and any other remedies allowed by Law. In making a determination, the arbitrator will not have the authority to modify any term or provision of this Agreement. The arbitrator will deliver a reasoned written decision with respect to the dispute (the “Award”) to each party, who will promptly act in accordance with the Award. Any Award (including interim or final remedies) may be confirmed in or enforced by any court having jurisdiction over either party or its assets. The decision of the arbitrator will be final and binding on the parties, and will not be subject to appeal or review.
e. Fees: Each party will advance one-half of the fees and expenses of the arbitrator, the costs of the attendance of the court reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to this Agreement, the arbitrator will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defenses on which it prevails, and any opposing awards of costs and attorneys’ fees awards will be offset.
f. Confidentiality: The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except (i) as may be necessary to prepare for or conduct the arbitration hearing on the merits, (ii) in connection with a court application as contemplated above for a preliminary remedy, or confirmation of an Award or its enforcement, (iii) our disclosure of the Award in confidential settlement negotiations, or (iv) as otherwise required by applicable Laws. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration hereunder, except as required by Law or except if such evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.
g. Conflict of Rules: In the case of a conflict between the provisions of this Section E.11.g and the rules governing arbitration identified in Section E.11.a, the provisions of this Section E.11.g will prevail. If any provision of this Agreement to arbitrate is held invalid or unenforceable, it will be so held to the minimum extent required by Law and all the other provisions will remain valid and enforceable.
12. Entire Agreement
This Agreement and all policies and procedures that are incorporated by reference constitute the entire agreement between you and ProTouchStaff for provision and use of the Services. Except where expressly stated otherwise in a writing executed between you and ProTouchStaff, this Agreement will prevail over any conflicting policy or agreement for the provision or use of the Services. This Agreement sets forth your exclusive remedies with respect to the Services. If any provision or portion of this Agreement is held to be invalid or unenforceable under Law, then it will be reformed and interpreted to accomplish the objectives of such provision to the greatest extent possible, and all remaining provisions will continue in full force and effect.
13. Cumulative Rights, Construction, Waiver
The rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement, along with all other rights and remedies available to it at Law, in equity or under the Payment Method Rules. No provision of this Agreement will be construed against any party on the basis of that party being the drafter. Unless expressly stated otherwise, the use of the term “including” or “such as” is not to be interpreted as limiting the generality of the text preceding the term. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of that party’s rights to subsequently enforce the provision.
All provisions of this Agreement that give rise to a party’s ongoing obligation will survive termination of this Agreement, including Sections A.3 (“Your Relationship with Your Customers”), A.6 (“Taxes and Other Expenses”), A.7 (“Service Requirements, Limitations and Restrictions”), A.8 (“Suspicion of Unauthorised or Illegal Use”), A.9 (“Disclosures and Notices; Electronic Signature Consent”), A.10.b (“Effects of Termination”), B.2 (“Ownership of ProTouchStaff IP”), C.6 (“Specific Payment Methods”), C.7 (“Settlement and Payout Schedule”), C.8 (“Clearing Funds and Reserves”), C.9 (“Security Interests, Collection, and Set-Off Rights”), C.10 (“Reconciliation and Error Notification”), C.11 (“Dormant Accounts”), D.3 (“Security and Fraud Controls”), D.4 (“Your Use of Data with ProTouchStaff Connect and ProTouchStaff Publish”), D.5 (“Provision of Payment Account Details upon Termination”), E.4 (“No Agency; Third-Party Services”), E.5 (“Force Majeure”), E.6 (“Your Liability for Third-Party Claims Against Us”), E.7 (“Representations and Warranties”), E.8 (“No Warranties”), E.9 (“Limitation of Liability”), E.10 (“Responding to Legal Process”), E.11 (“Dispute Resolution; Agreement to Arbitrate”), E.12 (“Entire Agreement”), E.13 (“Cumulative Rights, Construction, Waiver”) and E.14 (“Survival”); and any related terms in the Agreement.
The parties hereby acknowledge that they have required this Agreement and all related documents to be in the English language.
If you have a complaint with the Payment Services we provide, please contact firstname.lastname@example.org.
ProTouch Staff B.V