General Terms and Conditions Certo Payment Solutions

1. Definitions

In the General Terms and Conditions of Certo Payment Solutions, the terms written with a capital letter will have the meanings defined below (the meanings of the definitions in the singular will include the plural and vice versa):

1.1 References to articles are references to articles in the General Terms and Conditions, unless stated otherwise.

2. Applicability General Terms and Conditions

2.1 The General Terms and Conditions apply to all offers, legal relationships, agreements and contracts relating to or ensuing from the service of Certo Payment Solutions.

2.2 The User Agreement and the General Terms and Conditions form one integral part.

2.3 Deviations from or additions to the General Terms and Conditions or the User Agreement – including oral agreements – only apply if they have been confirmed In Writing by Certo.

2.4 If any provision of the General Terms and Conditions or the User Agreement is declared void, or voidable or otherwise invalid or inapplicable, this will not affect the remaining provisions of the General Terms and Conditions and the User Agreement. In that case, the parties will consult with each other to agree on a new provision to replace the relevant provision and in doing so will take account of the object and purpose of the relevant provision as far as possible.

2.5 Certo reserves the right to amend the General Terms and Conditions. Certo will inform the Client In Writing of the amendment before it takes effect.

2.6 Without prejudice to the provisions in paragraph 5 of this article, any amendment made to the General Terms and Conditions by Certo will, directly after notification thereof by Certo, bind Certo and the Client if that amendment - in Certo's reasonable opinion - relates to or ensues from an amendment to rules or laws or regulations, a court judgment, instruction or advice to which Certo is bound or considers itself bound, or if the amendment is purely of a practical nature.

2.7 In the event of inconsistency between additional agreements confirmed In Writing by Certo within the meaning of paragraph 3 of this article and the User Agreement and the General Terms and Conditions, the following ranking order applies: (1) additional agreements confirmed by Certo In Writing; (2) the User Agreement; and (3) the General Terms and Conditions.

3. Conclusion of the User Agreement

3.1 The User Agreement will be concluded at the time Certo informs the Client in accordance with article 24 (Notice) that the User Agreement returned by the Client has been received by Certo and has been filled out correctly and completely. Certo will send the User Agreement to the Client for signature no later than four (4) weeks after the Client has provided Certo with the data requested by Certo, unless the outcome of the acceptance process is negative. Acceptance takes place if:

• the Client has been identified by Certo in accordance with the statutory provisions; and
• the Client has been approved by Certo in accordance with Certo's acceptance policy.

3.2 The Client and its representatives undertake to fully cooperate with Certo and provide all information requested by Certo to establish and verify the Client's identity and the object of the intended Purchase Agreement.

3.3 Certo is entitled to refuse acceptance of a Client without stating reasons. Certo will inform the Client of the refusal in writing.

4. How Certo Payment Solutions work

4.1 Certo arranges the receipt, holding in escrow and release of the Payment for the Client through Certo Payment Solutions.

4.2 Certo Payment Solutions only facilitates transactions in EUR.

4.3 The Client may not use Certo Payment Solutions for activities that adversely affect the interests or the brand of Certo or of the Stichting.

4.4 In order to protect the Client's rights in the event of Certo's bankruptcy and in implementation of Article 3:29a of the Financial Supervision Act, the Stichting will receive, hold in escrow and release the Payment on instruction by Certo. The Stichting is not obliged to separate funds held in escrow.

4.5 The claims administered on the Client's Account are (conditional) obligations of the Stichting towards the Client, administered in EUR.

4.6 The Stichting will only carry out acts of disposition on instruction by Certo or on further instruction by the Client as laid down in article 18 or to prevent obvious loss for the Client with regard to the Client's Account.

4.7 The Client's Account cannot have a (negative) debit balance.

4.8 Neither the Stichting nor Certo will pay interest on a credit balance on the Client Account.

5. Provision of Information

5.1 Certo provides the Client with information about the transactions in the Client's Account by email and expressly not by post. The Client grants Certo permission to do so in advance. Certo is entitled to change its procedure to disseminate information.

5.2 Certo will provide information within the meaning of paragraph 1 of this article only if and to the extent this information has been requested by the person that represents the Client in respect of Certo. Certo will handle requests for information by the Client within three (3) Business Days of receipt of the request.

5.3 The Client will check the information referred to in paragraph 1 of this article as quickly as possible after such information has been made available by Certo. If the Client establishes an error with regard to the processing of a Payment, it must immediately inform Certo thereof In Writing.

5.4 If a Client fails to contest a transaction as referred to in paragraph 1 of this article In Writing within two (2) months after the information as referred to in paragraph 1 has been made available by Certo, the content of the information will be deemed to have been approved by the Client.

6. Processing of a Payment

6.1 Certo is entitled to refuse the instruction to process a Payment if:

• it is incomplete or unclear;
• Certo is not allowed to process the Payment by virtue of applicable laws and regulations;
• Certo suspects fraud, abuse or other irregularities;
• The Client fails to adhere to the User Agreement or some other agreement that it entered into with Certo; or
• Certo has any other well-founded reason for refusal.

6.2 If Certo refuses to process a Payment, it will inform the Client thereof by email, stating the reason insofar as possible. It will do so no later than the next Business Day after receipt of the Payment.

6.3 If the refusal referred to in paragraph 3 of this article has been caused because the Payment contained incorrect or incomplete information, the Client will, if possible, be informed about the procedure to correct this or have it corrected.

6.4 If, after refusal as referred to in paragraph 3, Certo does not receive the necessary additional information to enable the successful processing of a Payment, then Certo will return this Payment within five (5) Business days.

6.5 If the Client has wrongly received funds from the Stichting, the Client is obliged to repay these funds as quickly as possible by way of transfer to the Trust Account.

6.6 Prior to the Client delivering a performance in accordance with the Purchase Agreement, the Client must verify the status of the Payment. If the Payment has not been given the status: ‘successful’, the risk of funds not received lies with the Client. Certo is never liable for any non-payment by a Purchaser for the products and/or services purchased from the Client, nor for any costs incurred by the Client to collect the funds from the Purchaser.

7. Effecting a release

7.1 Certo will instruct the Stichting – exclusively in accordance with the Purchase Agreement – to pay out funds received from a Purchaser to the Client or a third party.

7.2 Certo will arrange for payment of the funds by the Stichting—whether or not after deduction of a fee and any other costs—within one (1) Business Day after the conditions for release as determined in the Purchase Agreement, has been met.

7.3 If:

• the Purchaser or Client is declared bankrupt, applies for a moratorium or (if the Client is a natural person) if a statutory debt management scheme is declared applicable to the Client; or
• the status of the Purchaser or the Client under foreign law is similar to the status referred above, Certo will only instruct the Stichting to release the relevant funds pursuant to and in accordance with a joint written request by both parties, or an irrevocable decision given by a competent court.

7.4 The costs incurred by Certo (including the costs for the engagement of a lawyer) in connection with a situation as referred to in paragraph 3 of this article will be for the account of the Client.

8. Dispute about a Payment

8.1 In the event of a dispute between the Client and the Purchaser with regard to the Payment, the Stichting will, on instruction by Certo, hold the funds received from the Purchaser in escrow until such time as the Purchaser and the Client have jointly and unanimously informed Certo In Writing on the manner of termination of the dispute, or until such time as a competent court has rendered an irrevocable decision on the manner of termination of the dispute.

8.2 If a situation arises as referred to in paragraph 1 of this article, Certo will instruct the Stichting to pay out the relevant funds in accordance with the joint Written instructions of the Purchaser and the Client, or in accordance with the irrevocable court decision as referred to in paragraph 1 of this article.

8.3 The costs incurred by Certo (including the costs for the engagement of a lawyer) in connection with a dispute as referred to in paragraph 1 will be for the account of the Client.

9. Performance of User Agreement

9.1 Certo will make an effort to fulfil its obligations under the User Agreement. Certo cannot guarantee that Certo Payment Solutions will always function without restriction, interruption or breakdown.

9.2 Certo strives to avoid a restriction, interruption or breakdown in Certo Payment Solutions within reasonable boundaries to the extent this lies within its control, or to otherwise ensure the restriction, interruption or breakdown is resolved within a reasonable period of time.

9.3 Certo reserves the right, without this entitling the Client to compensation, to implement a change to Certo Payment Solutions that it deems useful or necessary. Certo will inform the Client of this In Writing. The Client undertakes to accept this change, and to follow the instructions given by Certo with regard to the implementation thereof.

9.4 Certo may, in executing Certo Payment Solutions, engage third parties and outsource or partly outsource activities.

9.5 The Client vouches for the expert use and monitoring of the use of Certo Payment Solutions and will not use Certo Payment Solutions contrary to the purpose or these General Terms and Conditions, and will observe the user instructions and the applicable laws and regulations.

9.6 Certo is always entitled to not perform the User Agreement or to limit performance of the User Agreement, or suspend its obligations if:

• Certo receives information regarding a circumstance relating to the Client, as a result of which it is reasonably plausible to Certo that it is uncertain as to whether the Client will be able to fulfil its obligations under the User Agreement;
• it seems plausible to Certo that the Client is acting contrary to paragraph 5 of this article;
• it becomes clear that the Client, when entering into the User Agreement, provided incorrect or incomplete information to Certo, and knowledge of the correct and complete information would have been reason to not accept the Client;
• Certo knows or suspects that the Client does not or will not fulfil one or more of the obligations under the User Agreement;
• the Client fails in its obligation to provide information in respect of Certo as laid down in article 10 of the General Terms and Conditions;
• some other circumstance arises giving Certo reason to not perform or to limit performance of the User Agreement; or
• If the Client is a natural person: in the event the Client dies.

10. Client's obligations to notify

10.1 The Client must notify Certo of any changes regarding its business that affect the performance of the User Agreement, no later than four (4) weeks prior to the date on which this change takes effect. This applies, in any event but not exclusively, to the following situations:

• alienation, pledging or any other form of transfer, division or termination of the Client's business;
• changes to or the closing of the Contra Account;
• changes to the products and/or services offered by the Client;
• changes in the nature of the Client's business operations; and
• any other changes to the Client's details as provided to Certo.

10.2 Even if they have been entered in the public registers, any changes made to the Client’s authority, its representatives or its agents, in respect of Certo are in force only after Certo has been notified thereof by or on behalf of the Client in accordance with paragraph 1 of this article.

11. Availability, administration and maintenance

11.1 Certo is entitled to temporarily interrupt Certo Payment Solutions for the purpose of administration and maintenance. Certo accepts no liability for any damage resulting from a temporary interruption.

11.2 The availability, administration and maintenance of the relevant payment methods, such as iDEAL, and the payment infrastructure of third party financial institutions are beyond Certo's control. Certo accepts no liability for any damage resulting from a temporary interruption of Certo Payment Solutions.

11.3 Certo will inform the Client In Writing in advance about the interruption of Certo Payment Solutions, to the extent Certo can reasonably be required to do so, and only insofar as the interruption has significant consequences for the Client. Certo strives to ensure that the interruption will not take place on Business Days between 09:00 and 17:00 hours.

12. Retention obligation and proof

12.1 An extract from the Client's Account serves as proof for the Client, subject to contrary proof produced by the Client. Neither Certo nor the Stichting are obliged to keep their administrative accounts for longer than the statutory retention period.

13. Liability of Certo

13.1 Only Certo is liable for the administration of the Client's Account and the Escrow Account.

13.2 Certo's liability under paragraph 1 of this article or with regard to its services under the User Agreement is limited to direct loss suffered by the Client, caused by an attributable failure in the performance of the User Agreement on the part of Certo.

13.3 Certo's liability within the meaning of paragraph 1 of this article is limited to EUR 5,000 per event or EUR 10,000 per series of events with a common cause.

13.4 Any liability on the part of Certo for indirect or consequential loss is excluded. Certo is expressly not liable for the performance of the Purchase Agreement and/or other agreements between the Client and the Purchaser.

13.5 The liability limitations referred to in the previous paragraphs of this article do not apply if the loss suffered by the Client is the result of intent or deliberate recklessness on the part of Certo.

13.6 A right to compensation of loss does not exist unless the Client informs Certo In Writing of the loss as quickly as possible, but no later than within one (1) month after the Client could reasonably have been aware of such loss.

13.7 If, because the Client has not given any clear instruction, Certo fails to instruct the Stichting, or gives a late instruction to process a Payment, Certo is not liable for this.

13.8 Certo is not responsible for any third parties engaged by it for the performance of the User Agreement.

13.9 If a circumstance as referred to in paragraph 2 of this article arises, Certo will take the measures that can reasonably be required from it, in order to limit the adverse effects resulting therefrom for the Client.

13.10 The Client acknowledges its duty to mitigate loss and will do all that is reasonably possible to minimize any loss.

13.11 If the Client fails to limit its loss in due time, the Client will acknowledge and accept the fact that all loss that has arisen from the time it could have limited its loss, is for its own account and risk. Certo is not obliged— at the time the Client must limit its loss—to remind the Client of the existence of its duty to mitigate loss.

14. Liability of the Client

14.1 The Client accepts liability for damage arisen due to acts or omissions on the part of the Client and its subordinates, such as employees, temporary employees and directors, as a result of an attributable failure in the performance of the User Agreement or the General Terms and Conditions, or unlawful act.

14.2 The Client indemnifies Certo against entitlements and claims of third parties to the extent that these entitlements and claims of third parties have been caused by, arisen from or are based on an attributable failure by the Client in the performance of the User Agreement or the General Terms and Conditions, or an unlawful act.

15. Fees

15.1 The Client will owe Certo a Fee for Certo Payment Solutions in accordance with the User Agreement concluded.

15.2 Reimbursement of the Fee in the event of change or discontinuation of a Payment is not possible.

15.3 Certo is at liberty to make the Client an offer for the long-term use of Certo Payment Solutions. If applicable, Certo will communicate this option to the Client on registration.

15.4 If the User Agreement is terminated In Writing, no repayment will be made on an offer for long-term use as described in paragraph 2.

15.5 Certo may change its fees once (1) per calendar year. Certo will inform the Client of this change within four (4) calendar weeks prior to a fee change.

16. Payment

16.1 If the Client owes the ‘once-only costs’ to Certo for verifying the Client's data in the context of the acceptance policy within the meaning of article 3, this will be clear from the User Agreement.

16.2 The prices and fees agreed on the basis of the User Agreement are exclusive of VAT and are payable at the time the Purchaser accepts the User Agreement.

16.3 Any amounts which the Client owes under the User Agreement to Certo and/or to the Stichting will be deducted by the Stichting from the funds Certo holds for the Client, such at the moment of release to the Client or to a third party.

16.4 The Client will receive an invoice from Certo within four (4) days before the amount is debited as referred to in paragraph 2 of this article.

16.5 Insofar as the invoice cannot be debited from the account as referred to in paragraph 2 of this article, the Client must pay the invoice referred to in paragraph 3 of this article within fourteen (14) days after it has been made available.

16.6 Any fixed monthly costs will be payable by the Client in advance before the beginning of the relevant calendar month. Certo will make an invoice available for this by e-mail on a monthly basis.

16.7 If, after the expiry of the payment terms within the meaning of this article, the Client owes at least two (2) invoices, Certo is entitled block the Client's access to Certo Payment Solutions.

16.8 Interruption of Certo Payment Solutions as referred to in paragraph 6 of this article will not release the Client from performing its obligations under the User Agreement.

16.9 The block on Certo Payment Solutions can be lifted once the Client has fulfilled its obligations under the User Agreement. The cost of unblocking amounts to EUR 100.

16.10 The Client will owe an annual 5% interest on a claim that Certo has against the Client that has not been paid after the expiry of the terms referred to in paragraphs 4 and/or 5 of this article. The Client will also owe collection costs.

17. Duration, renewal and termination of this User Agreement

17.1 Certo is entitled to terminate the User Agreement with immediate effect without any notice of default or other formality being necessary, to block the Client's Account and to claim repayment by the Client of all amounts with immediate effect, if the Client:

17.2 Subject to paragraph 1 of this article, Certo reserves the right to terminate the User Agreement with immediate effect and without notice of default or other formality if Certo's risk-based procedures, within the meaning of the Money Laundering and Terrorist Financing (Prevention) Act, show that offering Certo Payment Solutions to the Client will create a risk of money laundering and terrorist financing higher than was the case on entering into the User Agreement.

17.3 After termination of the User Agreement, any Payment processing orders still outstanding and the other matters will be settled as soon as possible. During the settlement, the further arrangements that have been confirmed by Certo In Writing, the User Agreement and the General Terms and Conditions will remain in force.

18. Transfer and encumbrance

18.1 The Client's rights and obligations arising from and/or associated with Certo Payment Solutions cannot be transferred to other parties without Certo's prior written permission.

18.2 The Client may not pledge or encumber its balance on the Client's Account with other limited rights.

18.3 With paragraphs 1 and 2 of this article, the parties envisage limiting the assignability of the Client's claims against the Stichting within the meaning of Article 3:83(2) of the Dutch Civil Code.

19. Bankruptcy

19.1 In the event of Certo's bankruptcy, the Stichting will arrange for the release of funds as referred to in article 9 of the General Terms and Conditions, by instruction of the Client, whereby Certo's rights vis-à-vis the Client under the User Agreement will pass to the Stichting.

19.2 In the event of a situation within the meaning of paragraph 1 of this article, it is no longer possible to start new transactions by way of Certo Payment Solutions.

20. Attachment

20.1 The Client, the Purchaser and Certo expressly agree that neither the Client nor the Purchaser will attach the funds held in escrow by the Stichting.

20.2 If the Client or the Purchaser nonetheless attaches the funds held in escrow, despite of what is described in paragraph 1, the Client and the Purchaser will jointly and each separately grant Certo an irrevocable power of attorney with the mandate to separate funds held in escrow in such manner that the attachment relates only to the funds held in escrow pursuant to the Purchase Agreement.

20.3 Furthermore, the power of attorney described in paragraph 2 includes Certo's power to arrange for a bank guarantee, whereby the funds held in escrow serve as security, with the aim of lifting the attachment. The said power also includes the power to deduct the costs associated with the lifting of the attachment from the funds held in escrow.

21. Confidentiality

21.1 Certo and the Client are obliged to observe the confidentiality of all the information they obtain in the performance of this User Agreement and of which the parties know or reasonably should know to be confidential.

21.2 Confidential information within the meaning of paragraph 1 of this article is in any event understood to mean all details relating to Certo or any third parties engaged or designated by Certo, including financial and technical details, which come to the Client's knowledge in the performance of the User Agreement, the software and all information that Certo has provided to the Client within the framework of the use of Certo Payment Solutions (such as access codes, passwords, etc.) and, where applicable, the details of the Purchasers which Certo and the Client have become aware of.

22. Force majeure

22.1 Certo has the right to suspend the performance of its obligations in the event of force majeure.

22.2 Force majeure is taken to mean, among other things, the circumstance that The Dutch Central Bank imposes additional restrictions on Certo or Certo Payment Solutions, amendments of the applicable laws and regulations, earthquakes, fire, power failure, loss or theft of data, or data being lost.

22.3 If the force majeure situation has lasted longer than 3 months, each of the parties will be entitled to terminate the User Agreement.

22.4 The parties are not entitled to compensation of damage suffered or to be suffered as a result of suspension or termination due to force majeure.

23. Privacy

23.1 The Client declares that it is aware of and agrees to Certo's Privacy Statement. The Privacy Statement can be downloaded from Certo's Website.

24. Notices

24.1 Any notices relating to the User Agreement will be sent by Certo to the email address specified by the Client.

24.2 The Client agrees that access to reports and any notices and/or invoices will be sent to it by e-mail.

25. Applicable law

25.1 The User Agreement and any agreements and documents arising from it are governed by Dutch law.

25.2 Any disputes arising from the User Agreement must be submitted to the competent Oost-Brabant District Court, the Netherlands.