General terms and conditions governing payment services

Transcription

1 General terms and conditions governing payment services Valid from 1 December 2018 Note: Although for purposes of readability the masculine gender form is used to reference persons in the relevant sections, this is, of course, always deemed to include members of both genders. The same applies to the plural form. 1. Common provisions The European Union Directive on Payment Services provides the legal basis for the Single Euro Payments Area (SEPA). The Directive aims to establish a modern and comprehensive set of rules applicable to all payment services in the European Union (EU). Bank Frick & Co. AG Landstrasse Balzers Liechtenstein T F bank@bankfrick.li ID no. FL VAT no As a member of the European Economic Area (EEA), Liechtenstein is obliged to transpose these EU rules into national law. The Liechtenstein Payment Services Act (Zahlungsdienstegesetz; hereinafter referred to as the PSA ) has been created to incorporate the rules. Bank Frick & Co. AG (hereinafter referred to as the Bank ) has also incorporated the relevant requirements into these General terms and conditions governing payment services. These General terms and conditions governing payment services apply to transactions carried out through a payment account at the Bank. The provisions of clauses 1.1 to 1.13 apply to the provision of payment services in general. Section 2 applies to the provision of national and cross-border payment services, i.e. payment transactions from or within countries of the EEA that are denominated in euros or the currency of an EEA member state outside the euro area. Section 2 does not apply to payment transactions from or to Switzerland or other third countries. The terms and conditions provide a framework contract for consumers within the meaning of the Liechtenstein PSA. The following clauses solely apply to consumers within the meaning of the Liechtenstein PSA: 1.3, 1.9, 2.6(2), 2.7.3, 2.7.5, 2.7.6, 2.7.7, and 2.9. The General terms and conditions governing payment services supplement the Bank s General Business Conditions and form an integral part thereof. In the event of any conflict between the General terms and conditions governing payment services and the General Business Conditions of the Bank, the General terms and conditions governing payment services prevail. 1.1 Information regarding the Bank and the regulator The Bank has its registered office at the following address: Landstrasse 14, 9496 Balzers, Liechtenstein. The Bank is registered as a bank with the legal form of a public limited company in the commercial register of Liechtenstein. The Bank is licensed to operate as a bank by the Financial Market Authority (FMA) Liechtenstein, Landstrasse 109, P.O. Box 279, 9490 Vaduz, Liechtenstein, and is regulated by the FMA. 1.2 Definitions For the purposes of the terms and conditions hereinafter set forth, the following definitions apply: Charges: depending on the context, charges may mean expenses, fees, commission, etc., chargeable by the payment service provider. 1/9

2 Unique identifier: means a combination of letters, numbers or symbols specified to the payment service user by the payment service provider and to be provided by the payment service user to unambiguously identify the other payment service user and/or his payment account for a payment transaction (e.g. IBAN). Payer: means an individual or legal entity who holds a payment account and allows a payment order from that payment account, or, where there is no payment account, an individual or legal entity who issues a payment order. Payment service provider: the bank of the payer or payee. Payment service user: means an individual or legal entity who uses a payment service in the capacity of either payer or payee, or both. Payee: means an individual or legal entity who is the intended recipient of funds which have been the subject of a payment transaction. Payment instrument: means any personalised device and/or set of procedures agreed between the payment service user and the payment service provider which can be used by the payment service user in order to issue a payment order. Payment account: means an account which is used for the execution of payment transactions. 1.3 Key features of payment services The key features of our payment services are set out in communications or brochures which are available on our website at Execution and refusal of orders in general Execution of orders The Bank shall exercise all due care in processing payment orders. Where the Bank requires further information or instructions from the client in order to execute an order and is unable to obtain the information in time, either because the payment service user has opted not to be contacted by the Bank or because he cannot be reached, the Bank reserves the right, if in doubt, not to execute the order for the protection of the payment service user. Where orders must be executed at a specific time, the payment service user shall ensure that the order is issued promptly Information required for proper execution To enable it to execute payment orders properly, the Bank requires the following information, in particular, from the payer: 1. Family name and given name, or company name, and the payee s place of residence/registered office address; this information is also required for the payer for direct debit instructions 2. Unique identifier: International Bank Account Number (IBAN) 3. Details of the payee s payment service provider (company name, Bank Identifier Code [BIC]) and equivalent details for the payer for direct debit instructions 4. Date of execution 5. Indication whether it is a single payment or a recurring payment transaction 6. Currency and amount 7. Date and signature for payment orders in writing; for electronic payment orders (e.g. via e-banking), the specific terms and conditions governing electronic services apply. 2/9

3 1.4.3 Refusal or delayed execution of orders The Bank is under no obligation to execute orders where insufficient funds or no credit limit are available. If the payment service user has issued several orders, which in total exceed his available credit balance or any credit facilities granted to him, the Bank is entitled to determine, at its discretion, which of the transactions will be carried out, in whole or in part, having regard to the order date and when the order was received. The Bank expressly reserves the right to refuse a payment order or execute it at a later date if the required information has not been properly provided or there are other legal or regulatory reasons for not executing the order. The Bank shall inform the client of the reasons for refusal provided that this is not in breach of other legal requirements and/or any orders issued by a court of law or public authority. The Bank is not required to provide such information in any particular form. The Bank is entitled, but is not required, to execute a payment order even if the information provided is inadequate or incomplete, provided that it can add the information required or correct the details provided with absolute certainty. The Bank accepts no liability for any delays in the execution of orders resulting from compliance with legal requirements (including, in particular, the requirements set forth in the Liechtenstein Due Diligence Act [Sorgfaltspflichtgesetz]). Upon receiving any unusual amounts, the Bank is entitled, having investigated the specific circumstances, to decide at its discretion whether to credit the amount to the client account or return the remittance. Furthermore, the Bank reserves the right to return any assets previously credited to the instructing bank if it does not receive sufficient information regarding the background and origin of the assets within a reasonable period of time. Ultimately, the Bank is under no obligation to execute orders issued electronically (Internet, , fax, etc.) unless a specific agreement to that effect is in place. The Bank may charge the client for providing information on refused payment orders, provided such refusal is objectively justified. 1.5 Collective orders For collective orders, all requirements must be met for the execution of each individual payment order. Otherwise, the entire collective order may be returned unprocessed by the Bank. 1.6 Issuing orders, cut-off times and revocation Payment transactions will only be deemed to be authorised if the payer has agreed to the payment transaction. As a general rule, the payer shall issue payment orders in writing. The order will be deemed to have been authorised if it has been duly signed. Special terms and conditions apply to the use of electronic and other means of communication, which will be deemed to have been authorised subject to such terms. The payment service user may revoke a payment order at any time prior to the instructions being received by the payer s bank. The time of receipt is deemed to be the time at which the payment order arrives at the payer s bank. Any payment order not received on a bank business day will be deemed to have been received on the next bank business day. Clients will be informed of the cut-off times by appropriate means. If the client delivers a payment order after the relevant cut-off time, it will not 3/9

4 normally be possible to carry out the payment transaction until the next business day. However, the Bank reserves the right to immediately execute orders received after the cut-off time. If the payer wishes the order to be executed at a later date, this date will be deemed to be the date of receipt. In this case, the payer may revoke the payment order at the latest by the end of the business day preceding the agreed date. In the case of direct debits, and without prejudice to any refund rights, the payer may revoke the payment order at the latest by the end of the business day preceding the date agreed for debiting the funds. The Bank may charge the payer for the revocation of a payment order. 1.7 Charges for payments Fees may be charged for payment services. Such fees are set out in the applicable schedule of charges. The Bank reserves the right to make additional charges in accordance with these General terms and conditions governing payment services (in particular clauses 1.4.3, 1.6 and 2.7.9). The Bank may charge fees for performing other ancillary duties. Such fees will be charged on the basis of actual costs. 1.8 Currency conversion Payments will be made in the currency requested by the client. Amounts denominated in foreign currencies will be credited and debited in Swiss francs using the exchange rate (generally the daily rate) prevailing on the date on which the relevant amount is entered by the Bank. The foregoing is without prejudice to any special instructions from the client (e.g. fixed rate agreed with Bank in advance) or the existence of an appropriate foreign currency account. If the client only holds accounts in foreign currencies, the Bank may credit or debit the amount in one of these currencies. 1.9 Amendments to and termination of the framework contract Amendments to the framework contract The Bank reserves the right to amend the framework contract at any time. Any amendments to the framework contract will be submitted in writing no later than 60 days prior to their proposed date of application. Any amendments to the framework contract will be deemed to have been adopted unless the payment service user informs the Bank that he does not agree to the new conditions prior to the proposed date on which they take effect. In this case, the client has the right to terminate the framework contract immediately and without charge prior to the proposed date from which the amendments will apply. The Bank may adjust interest or exchange rates at any time and shall inform clients of such adjustments by any suitable means (e.g. online [ , website], by letter, verbally). 4/9

5 1.9.2 Term of the contract This framework contract is concluded for an indefinite period of time Notice periods and termination options The payment service user may terminate the framework contract at any time without notice. The payment service user may terminate the framework contract free of charge after the expiry of 12 months. In all other cases, any charges for termination will be appropriate and in line with costs. The Bank is entitled to terminate the framework contract concluded for an indefinite period by giving 60 days notice. However, in special circumstances, the Bank may terminate the framework contract at any time Language and method of communication German is the authoritative language for the contractual relationship between the Bank and its clients. However, the client may communicate with the Bank in English or, subject to prior agreement, in another language. The contract documents and other documents will normally be in German, except as otherwise agreed between the Bank and the client. The Bank will normally communicate with the client by letter. Orders and notifications sent via other communication channels will only be accepted on the basis of a separate written agreement. If there is such an agreement and if the client contacts the Bank through any of the relevant communication channels, the Bank reserves the right to contact the client by the same means. Electronic services are governed by the special agreements applicable to such services Applicable law and place of jurisdiction The legal relationship between the client and the Bank is governed by and construed in accordance with Liechtenstein law. Vaduz is the place of performance, the place of debt enforcement for clients resident or having their registered office outside Liechtenstein and the exclusive place of jurisdiction for all proceedings, unless any mandatory provisions of law provide otherwise. Notwithstanding the foregoing, the Bank is also entitled to refer any claim against the client to any court or authority of competent jurisdiction Complaints procedure and dispute resolution The Conciliation Board Liechtenstein is responsible for the out-of-court settlement of disputes between the Bank and the payment service users. It shall act as mediator in any disputes between the parties, as appropriate, and seek to facilitate an agreement between the parties Force and effect These General terms and conditions governing payment services were adopted by the Management Board on 21 September 2009 and entered into force on 1 November /9

6 2. Payments in Liechtenstein and within the EEA 2.1 Limitations on the use of payment instruments For certain payment instruments, spending limits and conditions for blocking the instrument may be laid down in separate agreements. The Bank reserves the right to block a payment instrument for objectively justified reasons related to the security of the payment instrument, the suspicion of unauthorised or fraudulent use of the payment instrument or, in the case of a payment instrument with a credit line, a significantly increased risk that the payer may be unable to fulfil his liability to pay. In such cases, the Bank shall inform the payer of the blocking of the payment instrument and the reasons for it in an agreed manner, where possible, before the payment instrument is blocked and at the latest immediately thereafter, unless giving such information would objectively compromise security or be prohibited by the relevant legislation of the member states of the EEA and/or any order of a court of law or public authority. 2.2 Amounts transferred and received The payee s bank may deduct its charges from the amount transferred before crediting it to the payee. In this case, the full amount of the payment transaction and charges will be itemised separately in the information given to the payee. 2.3 Execution time and value date For payment transactions in euros, payment transactions in Swiss francs within Liechtenstein and cross-border payment transactions within the EEA involving the conversion of an EEA member state currency into euros, the maximum execution time applicable since 1 January 2012 is one business day. The execution time means the time period within which the amount is credited to the payee. For payment orders issued in paper form, these periods will be extended by an additional business day. For other payments within the EEA, a maximum execution time of four business days applies. 2.4 Value date and availability of funds The credit value date for the payee s payment account is to be no later than the business day on which the amount of the payment transaction is credited to the payee s account at the Bank. The debit value date for the payer s payment account is to be no earlier than the point in time at which the amount of the payment transaction is debited from that payment account. 2.5 No data reconciliation for incoming payments or refunds The Bank will only credit incoming payments on the basis of the unique identifier indicated in the payment order. The Bank, therefore, points out that it does not normally check that the payee s name and address match the unique identifier. However, the Bank reserves the right to reconcile such data at its discretion and to refuse the payment order if it identifies any inconsistencies. In the event that a payment order is refused, the Bank is entitled to inform the payer s bank of the inconsistencies. In the capacity of remitter, the client agrees that amounts will only be credited to the payee s bank with reference to the unique identifier indicated and that no check will be performed to ensure that the payee s name and address match the unique identifier. However, the payee s 6/9

7 bank may also reserve the right to reconcile such data at its discretion and to refuse the payment order if it identifies any inconsistencies. Incoming payments for which no IBAN is provided or for which the IBAN provided does not exist will normally be returned to the remitter s bank. The same applies if a payment cannot be credited on other grounds (e.g. statutory or regulatory requirements, orders issued by the authorities, suspended account). In these circumstances, the Bank is entitled to disclose the reason for not crediting the payment to all parties involved in the transaction (including the remitter). 2.6 Charges Where a payment transaction does not involve currency conversion, the payee and the payer shall bear the charges levied by their respective payment service providers. The Bank will supply the General terms and conditions governing payment services and the information included therein at any time in hard-copy form or on any other durable medium free of charge. The Bank may charge a fee for any additional information requested by the client, for providing information more frequently or for sending information using methods of communication other than those specified. 2.7 Security measures, liability and refunds Obligations of the payment service user Any payment service user entitled to use the payment instrument must: 1. use the payment instrument in question in accordance with the special terms agreed for the issue and use of the payment instrument; and 2. inform the Bank, or any other authority indicated in the special terms agreed, immediately on becoming aware of the loss, theft, misuse or any unauthorised use of the payment instrument. The payment service user shall take all reasonable steps to protect, in particular, the personalised security features from unauthorised access immediately upon receipt of the payment instrument Notification of unauthorised or incorrectly executed payment transactions The client must inform the Bank in writing immediately on becoming aware of any unauthorised or incorrectly executed payment transactions giving rise to a claim, including that under clauses 2.7.6, and 2.7.9, but no later than 13 months after the debit date. For clients who do not qualify as consumers, the applicable period is 30 days after the debit date Evidence of authentication and execution of payment transactions If the client denies having authorised an executed payment transaction or claims that the payment transaction was not properly executed, it is for the Bank to prove that the payment transaction was authenticated, accurately recorded, entered in the accounts and not affected by technical problems. Where a client denies having authorised an executed payment transaction, the use of a payment instrument recorded by the Bank will in itself not necessarily be sufficient to prove either that the payment transaction was authorised by the payer or that the payer acted fraudulently or was 7/9

8 in breach of his obligations under clause either due to some deliberate act or gross negligence on his part Bank s liability for unauthorised payment transactions In the case of an unauthorised payment transaction, the payer s bank shall refund to the payer the amount of the unauthorised payment transaction and, where applicable, restore the debited payment account to the state in which it would have been had the unauthorised payment transaction not taken place. The foregoing is without prejudice to the provisions of clause Payer s liability for unauthorised use of the payment instrument Notwithstanding the provisions of clause 2.7.4, the payer shall bear the loss relating to any unauthorised payment transactions, subject to a maximum of EUR , or the equivalent in Swiss francs, resulting from the use of a lost or stolen payment instrument or, if the payer has failed to keep the personalised security features in a safe place, from the misuse of a payment instrument. The payer shall bear all the losses relating to any unauthorised payment transactions if he incurred them by acting fraudulently or by failing to fulfil one or more of his obligations under clause either deliberately or through gross negligence. In these cases, paragraph 1 of this clause does not apply. Except where he has acted fraudulently, the payer will not bear any financial consequences resulting from use of a lost or stolen payment instrument, or the misuse of a payment instrument, provided that he has notified the incident in accordance with clause Errors in executing a payment order initiated by the payer Where a payment order is initiated by the payer, his Bank shall, subject to the provisions of clauses 2.7.2, 2.7.8(2) to (4) and 2.8, be liable to the payer in respect of the correct execution of the payment transaction, unless the Bank can prove to the payer and, where relevant, to the payee s bank that the payee s bank received the amount of the payment transaction in accordance with clause 2.3, in which case the payee s bank will be liable to the payee in respect of the correct execution of the payment transaction Errors in executing a payment order initiated by the payee Where a payment order is initiated by or through the payee, his bank is, subject to the provisions of clauses 2.7.2, 2.7.8(2) to (4) and 2.8, liable to the payee in respect of: 1. the correct transmission of the payment order to the payer s bank; 2. the processing of the payment transaction in accordance with its obligations under clause Incorrect unique identifier If a payment order is executed in accordance with the unique identifier, the payment order will be deemed to have been executed correctly with regard to the payee specified by the unique identifier (see also clause 1.4.3). If the unique identifier provided by the payment service user is incorrect, the Bank will not be liable under clauses and in respect of the non-execution or defective execution of the payment transaction. However, the payer s bank shall make reasonable efforts to recover the funds involved in the payment transaction. The Bank may charge the payment service user for recovery. 8/9

9 If the payment service user has provided information additional to that specified in clause 1.4.2, the Bank will only be liable in respect of the execution of payment transactions in accordance with the unique identifier indicated by the payment service user. The Bank reserves the right to verify, at its discretion, that the payee s name and address match the unique identifier and to refuse the payment order if it identifies any inconsistencies. In the event that a payment order is refused, the Bank is entitled to inform the remitter s bank of the inconsistencies Additional financial compensation There may be additional entitlements pursuant to legislative provisions or the terms of special agreements. 2.8 Exclusion of liability Liability in connection with the authorisation and execution of payment transactions will not apply in the event of abnormal and unforeseeable circumstances beyond the control of the party pleading for the application of those circumstances, the consequences of which would have been unavoidable despite all efforts to the contrary, or where the Bank is bound by other legal obligations covered by national or Union legislation. 2.9 Refunds for payment transactions initiated by or through a payee The payer is entitled to a refund from the Bank of an authorised payment transaction initiated by or through a payee which has already been executed, on condition that: 1. the authorisation did not specify the exact amount of the payment transaction when the authorisation was given; and 2. the amount of the payment transaction exceeded the amount the payer could reasonably have expected taking into account his previous spending pattern and the particular circumstances in question. At the Bank s request, the payer shall provide factual evidence relating to such conditions. The full amount of the executed payment transaction will be refunded. The payer is not entitled to a refund where he has given his consent to execute the payment transaction directly to the Bank and, where applicable, information on the pending payment transaction was provided or made available by suitable means to the payer at least four weeks prior to the due date by the Bank. The payer shall request the refund of an authorised payment transaction initiated by or through a payee within eight weeks of the date on which the funds were debited. Within 10 business days of receiving a request for a refund, the Bank shall either refund the full amount of the payment transaction or inform the payer of the reasons for refusing the refund, indicating the conciliation bodies to which the payer may refer the matter if he does not accept the grounds for refusal given by the Bank. 9/9