T&C Agreement (for legal entities)

These terms and conditions (“Terms”) govern the use of the Payment Processing Services (as defined below), which are provided by AstroPay Global (IOM) Limited an Isle of Man limited company with registered office at 2nd Floor, Hillary House, Prospect Hill, Douglas, Isle of Man IM1 1EQ (“Processor”) to the entity identified in the Merchant Agreement Form, whose application is approved. 

1. Definitions and Interpretation ‍
   1. The following definitions shall have the following meanings:

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2. Appointment of the Processor 

1. The Merchant appoints and retains the Processor as its non-exclusive provider of Payment Processing Services in the Territory with respect to its Customers.  
2. The Processor shall assume the obligation to meet the financial obligations arising from the proper use of the payment processing methods in accordance with the terms of this Agreement.  
3. The Processor hereby grants the Merchant a royalty free, non-exclusive, non-transferable right for the Term and for the purposes of this Agreement to use the Payment Processing Services for benefit of its Customers.
4. The Merchant shall not: 
   1. accept payment from an individual which has not passed highest standards in relation to KYC rules and AML regulations;
   2. sub-license the use of the Payment Processing Services to any person or third party (other than its Customers); and/or

3. Duties of Merchant

1. The Merchant agrees to accept the Payment Processing Services for its online sales to its Customers in the Territory. This means that, at the moment to start executing this Agreement the Merchant shall be in a position to be able accept the Payment Processing Services. 

2. The Merchant accepts and acknowledge that the Processor will not enable the Merchant to accept transactions from Payment Processing Services, until the pay-out solution be operative and ready to be offered to the Merchant’s Customers.
3. The Merchant shall at all times hold the licenses, permissions and clearances necessary to conduct its business in all jurisdictions in which it operates and shall not be in breach of any Applicable Legislation whilst providing the Merchants’ products and services in the Territory.
4. The Merchant shall sell the products and services to persons paying by the Payment Processing Services at the same price and conditions as the Merchant does for Customers using other means of payment.  For the avoidance of doubts, Customers using payment methods supplied by the Processor shall not be subject to any commission or surcharge of any type resulting in a higher price to be paid by them in comparison with other means of payment offered by third parties.
5. Payment using the Payment Processing Services may only be accepted for the purpose of paying for the Merchant’s products and services where there is a direct contractual relationship between the Merchant and the Account Holder or Cardholder.  
6. Merchant agrees to fully and timely cooperate with and assist the Processor to address any issues affecting the Payment Processing Service where cooperation or assistance from the Processor is reasonably required.
7. The Merchant shall not be entitled to:  
   1. accept payment by Payment Processing Services for the sale of services or products which are to be performed or delivered by a third party; 
   2. accept payment or offer Payouts by Payment Processing Services, for services or products which are outside the Merchant’s ordinary course of business;
   3. accept payment made by Payment Processing Services where such payment would breach the Daily Transaction Limit;
   4. accept payment by Payment Processing Services for a loan or an extension of a loan or any other financial services; or
   5. accept payment or offer Payouts by Payment Processing Services for illegal or unlawful products or services which, without limitation, involve or are connected to pharma obscene, pornographic, unlawful, or to instructions on the production of weapons or explosives. Any exception therefrom shall require the prior written consent of the Processor which is at the discretion of the Processor and only given if the relevant product or service is not unlawful or immoral.

8. For the avoidance of doubt, the Processor makes no warranties nor representation as to the goods and/or services provided by the Merchant.
9. The Processor shall be entitled to refer to, identify and quote the Merchant in the Processor’s press releases, websites, and other marketing materials for the purposes of identifying the Merchant as a customer of the Processor. The Processor shall be entitled for these purposes to use the Merchant’s trading names and logos for these purposes subject to compliance by the Processor with any brand guidelines that are provided by the Merchant to the Processor. 
10. The Merchant shall promptly notify the Processor of any significant change in ownership or control, including the names of individuals assuming such ownership and control. Furthermore, to ensure compliance with the Applicable Legislation it is hereby agreed that the Processor shall be furnished with comprehensive information about these individuals.

4. Duties of the Processor

1. During the Term of this Agreement, subject to the terms and conditions of this Agreement, the Processor shall provide the Payment Processing Services for Transactions to allow the Merchant to accept payments from Customers using the Payment Processing Services.
2. The Processor shall provide such Payment Processing Services according to good industry practices. The Processor shall use its reasonable efforts to perform its obligations in a timely, and efficient manner.  

3. The Processor shall at all times hold all necessary permits, permissions and licenses (whether of a statutory, regulatory, contractual or other kind) necessary to perform the Payment Processing Services.  
4. In the performance of its duties hereunder, the Processor shall be an independent contractor, and not an employee or agent of the Merchant nor vice versa.
5. Provision of Management Reports
   1. The Processor shall provide the Merchant with (i) online access on a 24/7 basis to reports with respect to Transactions; and (ii) daily detail of all its relevant activity, including: (a) all payment notifications served by the Merchant confirming that a payment has been made; (b) any charges deducted; (c) the current balance owed to Merchant; (d) the history of all transfers to Merchant; and (e) any Payouts.
   2. Such reports and all other reports that qualify as Confidential Information and shall be retained by the Processor in accordance with applicable regulations and, in any event, shall be retained in a readable form for not less than three (3) years after the relevant payment was made. 
   3. The Processor will supply login credentials to the Merchant to all relevant online administrative tools supplied by the Processor as part of the Payment Processing Services and the Merchant shall be solely responsible for keeping such logging credentials secure and confidential.
6. Account or Card Holder Complaints
   1. In the event that the Processor receives a complaint from an Account or a Card Holder, the Processor shall as soon as reasonably practicable refer the complaint to the Merchant where such complaint is in respect of products or services provided or to be provided by the Merchant.
   2. The Merchant shall indemnify in full and hold the Processor, its affiliates, subsidiaries, officers, agents, partners, employees and licensors harmless from and against any and all claims, actions and proceedings made or brought by any third party (including by the Customers) and against all liabilities, losses, costs, damages (including legal costs as part of a pre-litigation and settlement process or otherwise), and expenses incurred by the Processor, arising out of or related to: (i) the products or services provided or to be provided by the Merchant to its Customers (including without limitation in relation to the delivery of these services or products to the Customers); or (ii) any breach by the Merchant of its relevant end user terms and conditions.

7. Fair Competition: The Merchant declares under oath that all payment services providers operating with Merchant in the same territories as the Processor will be subject to the same scrutiny and legal standards as those imposed to the Processor by the Merchant.
8. Support
   1. Subject to receiving reasonable and timely cooperation and assistance from the Merchant, the Processor shall use its reasonable efforts to resolve any technical or other problem that is raised by the Merchant regarding the Payment Processing Services. The Processor shall use commercially reasonable endeavors to provide reliable and regular technical support to the Merchant via email 24 (twenty-four) hours a day, 7 (seven) days a week.  
   2. The Merchant hereby expressly agrees that it will provide timely assistance to its Customers and use all reasonable endeavors to resolve any technical or other problem raised by its Customers quickly, amicably and in good faith.
   3. In order for the Merchant to provide duly assistance to its Customers, the Merchant may request 10 (ten) hours of training for its support team from the Processor. The first 10 (ten) hours of training will be free of charge and provided by the Processor to the Merchant on reasonable request at reasonable hours/dates to be agreed between the parties, every extra hour will be charged at a fee of 300 (USD). 

5. Fraud Prevention; Compliance

1. The Merchant acknowledges that the use of Payment Processing Services in online sales involves a particularly high risk of abuse and that thus it is imperative that the highest standard measures for preventing abuse are taken by the Merchant.  
2. The Merchant shall have and maintain in place throughout the Term of this Agreement adequate policies and procedures (and where applicable carry out credit checks) to prevent fraudulent abuse, enforcing them where appropriate and coordinating to that extent with the Processor in order to avoid that such events will materially adversely affect the Processor and its business, as well as any actual or attempted Transaction hereunder. Merchant shall immediately inform the Processor of any actual or attempted fraud, misuse, irregularity, or other suspicious activity upon Processor’s Payment Processing Services. Further, Merchant shall provide the Processor with corresponding documentation, including the non-identifiable user number associated with a suspected fraudster or suspicious Transaction and/or, subject to any legal requirements, any other relevant information that the Merchant is aware of.  
3. Where applicable, the Merchant shall use all special security processes reasonably introduced by the Processor to prevent abuse in any Transactions. The Merchant shall take such further anti-abuse measures that the Processor, at its reasonable discretion, deems necessary.  For the avoidance of doubt, the Merchant shall bear the costs for implementing and using such processes. While Processor may make certain recommendations or impose certain requirements with respect to the reduction of fraud or improvement of security, Processor shall not be liable for any failures of any of them all of which liability rests with the Merchant.

4. The Merchant shall not accept payment by Payment Processing Services if, due to the circumstances in which these are being used, the Merchant has reasons to assume that the use of the Payment Processing Services was fraudulent. In the event that Merchant’s internal systems and procedures detect a user of Payment Processing Services or a Transaction with high risk of fraud, the Merchant shall promptly either: (i) decline the proposed Transaction; or (ii) reverse the Transaction; in either case the Merchant shall provide the Processor with immediate notice that the proposed Transaction has been declined and/or the reversal of the Transaction.
5. The Processor shall not be responsible whether in contract, tort (including negligence), for breach of statutory duty, or otherwise for payments disputed by Customers or the Merchant if those payments or Payouts acknowledged by the Merchant were in conflict with the terms of this Agreement and or with the Merchant’s relevant end user terms. 
6. The Merchant shall be responsible for marketing Payment Processing Services at all times in compliance with applicable law and shall ensure that it is used only by persons of legal age in the territory where Payment Processing Services are being provided. Nevertheless, when in the marketing content, any mention directly or indirectly to the Processor is risen, the prior written approval of the Processor shall be requested. 
7. The Merchant accepts and acknowledges that Processor will not be obliged to perform a Settlement in the terms of the Section 6 below until the Merchant has (i) provided its Due Diligence documentation to Processor’s full satisfaction and/or (ii) updated its Due Diligence documentation to Processor’s full satisfaction upon Processor’s request or when Merchant reasonably deems necessary according to industry practices. 
8. In any case, Merchant carries exclusive responsibility for Transactions, Refunds and all related disputes, such as any damages, costs, liabilities, disputes, loss of chance, reputational losses, or any other reparation applicable, caused by actions or omissions either directly or indirectly from the Merchant in relation to this agreement. 
9. If the Merchant offers Payouts in conflict with this Agreement and/or with the Merchant`s relevant end user terms, Processor will not be responsible for any payments disputed by a customer or any damage caused by these Transactions nor any other fine, or responsibility whatsoever due to the non-compliance of the Merchant of the maximum standards of the processed industry.
10. The Merchant shall, upon Processor request, provide any and all Customer Due Diligence it has or should have in accordance with Applicable Laws within five (5) Business Day period. In the event the Merchant does not provide the requested information, Processor may terminate the Agreement in accordance with Section 11.

6. Payments to Merchant and Merchant Deposits

1. Merchant Deposits:
   1. The Processor reserves the right to retain, at any time, the Rolling Reserve or the Usable Balance and Settleable Balance of the Merchant to cover Refunds, Fraud Costs, Chargebacks, Payouts connected to the Merchant.
   2. In the event that the Processor decides to retain any of the abovementioned from the Merchant, the Processor will notify the Merchant through the Merchant Panel.
   3. The Rolling Reserve of the Merchant may be updated at any time upon notification in writing by the Processor to the Merchant through the Merchant Panel.
   4. The Processor shall be entitled to apply the Rolling Reserve, Usable Balance and or Settleable Balance to cover any Refunds, Fraud Costs, Chargebacks and Payouts connected to the Merchant. The Processor shall be entitled to retain further amounts from the Net Transaction Value to replenish the amounts of the Rolling Reserve applied to cover such liabilities.
2. Payment terms:
   1. the Net Transaction Value (less any Refunds, Payouts, Fraud Costs, Chargebacks and Deposits where applicable and any other amounts deductible from the Net Transaction Value under the Agreement) will be available for payment to the Merchant on or after the Availability Date (the “Settleable Balance”).  
   2. Upon the Merchant’s request throughout the Merchant Panel, the Processor will pay to the Merchant all or part of the Settleable Balance, as requested by the Merchant, in accordance with Clause 6.2.3.
   3. Subject to Clause 6.2.4, all payments shall be made to the Merchant’s Bank account by bank wire transfer in Euros on the next Business Day after receiving a request from the Merchant (requesting payment of all or part of the Settleable Balance) to a bank account authorized and approved by Processor, the bank account must be of the Merchant directly and no subsidiary or third party.  
   4. Any and all payments made by Processor may be made from whichever bank account Processor deems appropriate, whether it is under its own name or an affiliate, subsidiary, or any other third party. 
   5. Notwithstanding the foregoing, in the event any funds due to the Merchant are seized or made unavailable by an action of a law enforcement body, regulator or other third party, the Processor shall use reasonable efforts, at the Merchant’s expense, to assist the Merchant in securing release of such funds as soon as possible.
   6. The Merchant shall be responsible for the payment of any and all applicable sales or other taxes due upon the Transactions.
   7. The Merchant shall as soon as practicable, verify the correctness and completeness of the payments and statements of account by the Processor. Complaints and objections about these may only be made in writing within a strict time limit of 8 (eight) weeks after the Merchant receives the payment or statement of account.  
   8. Payment of Payouts: in the event that a Customer requests a Payout and the Processor has authorized the Merchant to offer Payouts, the Merchant shall request the Processor to issue the Payout (in the manner specified by the Processor). The Processor will show to the Customer (and where applicable to the Merchant) the Payout amount converted into the applicable local currency (only as backup information). The Payout Commission or the Payout Fee (whenever applicable) will always be credited or deducted accordingly in USD. The Processor will send the Payout to the Customer (in the applicable local currency) within 3 (three) Business Days from the Merchant’s request.
3. Taxes:

6.3.1.  The sole responsible party for any or all applicable national, state, or local sales, charges, use, value-added, or income withholding taxes (“Tax/Taxes”), related to payments made by the Processor under this Agreement is the Merchant. The Processor shall not assume any extra cost in this regard, including any penalty, interest, or other additional thereto. The Merchant shall indemnify the Processor and hold it harmless from and against all claims, damages, losses, costs, and expenses, including reasonable fees and expenses of attorneys and other professionals, in connection to any obligation imposed on the Processor to pay any Tax in respect to payments due under this Agreement

6.3.2. If the Processor is required by Applicable Law to collect or make a deduction or withholding of any Tax to perform any payment due under this Agreement, it will make the payment net of such Tax. In this event, the Processor shall make its best efforts to collaborate with the Merchant to recover such Tax, only if this is legally feasible and applicable, provided that the Merchant previously provides the Processor with the necessary funds to cover all the costs and expenses required for the respective measures.

7. Processor’s Service Fees

1. The Merchant shall pay the Processor the Service Fee as set out in Schedule A.
2. The Merchant authorizes the Processor to deduct the Service Fees from the payments to be made to the Merchant. If, however, there are insufficient funds for settlement to pay Fees, the Merchant shall pay the Fees by wire transfer to the Processor no later than two (2) business days following the Transactions to which they apply. In case of delay in payment, Merchant will be charged the maximum legal interest per day of delay in payment.  
3. The Processor may change the Service Fees by providing fifteen (15) day prior notice to the Merchant. The Processor will notify the Merchant in accordance with Clause 21 (Notice). Any new Service Fees shall be applicable to the Merchant after the fifteen (15) day period has elapsed from notification or at such later date as may be specified by the Processor in a notice to the Merchant. Where the Service Fees change is a direct result of an increase in third party costs related to Payment Processing Services (e.g., an increase in payment network interchange costs), the Processor may, at its discretion, amend the Service Fees accordingly immediately upon notification to the Merchant. 
4. Merchant agrees that it will reimburse the Processor for the amount of any Refunds, Fraud Costs, Chargebacks, Payouts, and any other cost incurred in the provision of the Services (including but not limited to fx costs); and that the Processor is entitled to deduct such Refunds, Fraud Costs, Fx costs. and Payouts, plus any other amounts deductible from the Net Transaction Value under the Agreement, from the payments to be made to the Merchant.  

8. Merchant’s Authorization Request

1. The Merchant shall complete an Authorization Request prior to accepting any payment through the Payment Processing Services. The Authorization Request shall be made by transmitting the Authorization Data of the relevant proposed Transaction to the Processor, which shall meet the requirements specified by the Processor as regards content, format and communication channel.  
2. The Authorization Data shall include:
   1. the Merchant’s internet address;
   2. Merchant’s Credentials (user and password as per article 4.8 of this Agreement)
   3. the Cardholder’s AstroPay Prepaid Voucher number and expiration date;
   4. the amount of the proposed Transaction;
   5. the identification number of the proposed Transaction; and  
   6. such additional information arising from the API documentation defined by the Processor.

3. The Processor shall verify the Merchant’s Authorization Request for the proposed Transaction to be processed and if satisfactory, the Processor shall communicate an Authorization Code to the Merchant.  
4. Merchant shall not accept payment through Payment Processing Services for a proposed Transaction unless it has received an Authorization Code from the Processor. 
5. A Transaction will only be considered to be an Authorized Transaction where all of the following requirements are met: some text
   1. the Transaction originated from one of the Merchant’s Authorized IP addresses;
   2. the Merchant has complied with the requirements set out in this Clause 8;
   3. the payment instruction by the Account Holder or the Cardholder has been given using the communication channel specified by the Processor;  
   4. the Payment Processing Services was valid according to purchaser statements, i.e.  the date of the Transaction is within the period of validity of the AstroPay Prepaid Voucher;
   5. the sales are denominated in US Dollars or any other agreed currency;
   6. neither the account held by Account Holder or the Cardholder, nor the AstroPay Prepaid Card/Voucher has not been declared as invalid, and is not included in a black list or any other communication to the Merchant;  
   7. the Cardholder has successfully passed the Merchant’s credit checks (where applicable);
   8. where an obligatory special security process has been introduced, payment by the Payment Processing Services shall only be admitted if the Merchant has instituted this process;  
   9. the Merchant has provided the Account Holder or the Cardholder with a complete, correct and legible description of its offered products and/or services or has made it easily accessible to him or her;  
   10. the Merchant shall include the following disclaimer on its webpage:

DISCLAIMER (MERCHANT’S WEBSITE)We (the “Merchant”) expressly recognize and will communicate to our Customers that neither the Processor, nor any of its affiliates nor any of its brands, have made or will make any warranty nor representation as to the goods and/or services provided by us and that the Processor and its affiliates shall not be liable whether in contract, tort (including negligence), for breach of statutory duty, or otherwise for any loss or damage including without limitation, indirect or consequential loss or damage, or any loss or damage whatsoever arising out of, or in connection with the products and/or services Merchant provides. Moreover, regarding our business relation with the Processor, we hereby declare their activities are exclusively those related to Payment Processing. 

11. the Merchant has submitted or made easily accessible its general terms and conditions of business to the Account Holder or the Cardholder in such a way that the Account Holder or the Cardholder can become aware of any material conditions, including the right to revocation or redemption, any export or age restrictions, other restrictions in relation to the use or purchase and any other material circumstances which are reasonably necessary to make a reasonable decision on the proposed purchase or Payout;  
12. the Merchant has issued an order confirmation and/or invoice for the Transaction in writing or by e-mail to the Account Holder or to the Cardholder, indicating that the Account Holder or the Cardholder will be debited (in the case of a purchase of goods or services) or credited (in the case of a Payout); any other sensitive information, shall not appear in this confirmation for security reasons; 
13. the Payout is transferred to a valid Payout Card or to a valid Customer’s Bank Account linked to the relevant Cardholder; and
14. the Transaction was processed accordance to the terms of this Agreement

9. Submission of Transactions

1. Transactions will be initiated pursuant to the Account Holder or Cardholder’s request and Merchant agreement to such request, communicated via Merchant’s internet site. 

10. Electronic Transmission

1. Unless otherwise agreed, only electronic transmission shall be used for the Authorization and submission of Transactions.  
2. In order for the Processor to provide the Payment Processing Services, the Parties shall develop and implement a connection either through a direct connection or secure connection resulting in a reliable and secure network communication facility to support the platform interface. The Merchant shall cooperate and assist the Processor timely to implement this connection.  Each Party shall assume responsibility for the costs of any required telecommunication equipment on its respective end of the communication facility.
3. The Merchant shall bear the costs (including the telecommunication costs) and the risk of malfunctions of the electronic transmission. The Merchant shall be responsible for continuously ensuring that its apparatus, networks, data carriers or other equipment used for data transmission are in a good working order.  
4. The Merchant shall ensure that it is not possible to abuse the Account Holder Data, the Cardholder Data or the electronic transmission, e.g., by manipulation of the data input, within its personnel area or on its premises, including the persons commissioned by it (e.g., internet provider). When entering data, the manufacturer’s operating instructions shall be strictly observed.  Should the Merchant become aware of any abuse of the electronic transmission, it shall inform the Processor immediately.  
5. Each Party shall inform the other in writing of the list of approved IP addresses for the Transactions.  Any change to the list of accepted valid IP addresses shall be notified at least 7 (seven) days in advance.  
6. The Processor shall notify Merchant of any changes in its Secret Key.  Any change to the Secret Key shall be notified at least 7 (seven) days in advance. Transactions signed by an out-of-date key shall be deemed invalid.  
7. In the event that either the Processor or Merchant detects a security breach to one of its servers (the “Notifying Party”), it shall immediately notify the other Party (the “Notified Party”), using the contacts listed under Clause 21.  The notification shall include the list of affected IP address(es) and/or keys. The Notifying Party shall be responsible for all Transactions executed until 6 (six) hours after the security breach has been notified to the Notified Party. After that period, it is up to the Notified Party to reject all Transactions originated from the affected IP address(es) and/or signed with the affected keys.  

11. Term and Termination

1. This Agreement shall commence on the Effective Date and continue for an initial period of 24 (twenty-four) months (the “Initial Term”) with automatic 24 (twenty-four) months periods of renewal thereafter (the “Renewal Terms”), unless otherwise terminated pursuant to the terms hereof.  
2. In addition to any rights of termination provided hereunder: (i) the Processor may terminate this agreement with immediate effect without cause by giving written notice to the Merchant; (ii) any Party may terminate this Agreement at any time without cause upon 30 (thirty) calendar days prior written notice; and (iii) either Party may terminate this Agreement immediately should the other Party remains in breach of a material provision of this Agreement for more than 10 (ten) Business Days following notice thereof unless during the notice period the breach is cured to the Parties’ mutual satisfaction.
3. If any case or proceeding is commenced by or against the Processor under any law dealing with insolvency, bankruptcy, receivership or other debt relief, the Processor shall immediately notify the Merchant in writing and, this Agreement shall terminate upon the Merchant’s notice in writing. Any Net Transaction Value due to Merchant shall accelerate and become immediately due and payable, without the necessity of any notice, declaration or other act whatsoever by the Merchant and the Processor is entitled to deduct from the Net Transaction Value any Refunds, Payouts, Fraud Costs, Chargebacks, Deposits and, any other amounts deductible from the Net Transaction Value under the Agreement).
4. If the Merchant ceases trading online, or ceases providing the services associated to the Payment Processing Services or if any case or proceeding is commenced by or against a Merchant under any law dealing with insolvency, bankruptcy, receivership or other debt relief, the Merchant shall immediately notify the Processor in writing and the Processor shall, at its sole discretion, be entitled to terminate this Agreement immediately. Any Service Fees or any other amounts payable to the Processor under the Agreement in connection with the Merchant, shall accelerate and become immediately due and payable (without the necessity of any notice, declaration or other act whatsoever by the Processor). 
5. Where the Processor believes Merchant is acting illegally or not in compliance with the requirements set-out in this Agreement, the Processor shall, at its sole discretion, be entitled to terminate this Agreement immediately, or suspend or Disconnect the Payment Processing Services to the Merchant (and its Customers) until such time as the Merchant satisfies the Processor that it is in compliance with its obligations.
6. If the breach is in respect of the Merchant’s duties established in Clause 3 and in light of the difficulties in estimating the damages for an early termination due to Merchant’s breach, the Parties herby agree that a sum of USD 500,000 shall be applied to the Merchant by the Processor as liquidated damages, in addition to the rights of terminate the Agreement. Liquidated damages are not intended to be a penalty and are solely intended to compensate for damages.
7. The Processor may stop providing all or part of the Payment Processing Services in a specific country within the Territory, pursuant to any regulatory demand, requirement or directive within this country for the cessation of the provision of all or part of the Payment Processing Services or in connection with specific products or services sold by the Merchant (the “Affected Services”). In the event of receipt of such notice, the Processor shall notify the Merchant as soon a reasonably practicable of such demand, requirement or directive. Upon 14 (fourteen) calendar days of the Processor’s notice, the Agreement will be terminated by the Processor as it relates to the Affected Services and Clauses 11.9 to 11.12 below will apply to such termination. For the avoidance of doubt, the Agreement will remain in force for the remaining Services and countries of the Territory, not affected by the regulatory changes referred to in the paragraph above. 
8. The Processor may terminate this Agreement with immediate effect, as it relates to a specific country within the Territory, pursuant to any regulatory demand, requirement or directive within this country for the cessation of Payment Processing Service for all or part of the products or services sold by the Merchant (the “Affected Country”).  In the event of receipt of such notice, the Processor shall immediately notify Merchant of such demand, requirement or directive. Upon giving 14 (fourteen) days written notice to the Merchant, the Agreement will be terminated by the Processor as it relates to the Affected Country and Clauses 11.9 to 11.12 will apply to such termination. For the avoidance of doubt, the Agreement will remain in force for the remaining countries of the Territory not affected by the regulatory changes referred to in the paragraph above. 
9. Within 180 (one hundred and eighty) days from termination the Processor shall pay the Merchant the Net Transaction Value less any Refunds, Chargebacks, FX costs, and Fraud Costs for the period between when Settlement was last made to Merchant pursuant to Clause 6.2 above up until the effective date of termination as shall be communicated to Merchant by the Processor. 
10. Termination shall not affect any legal rights or obligations that may already have arisen under this Agreement at the date of termination.
11. Where the Agreement terminates, or the Merchant is Disconnected then:
    1. In circumstances where the termination of the Agreement or the Disconnection is pursuant to Clause 11.4 then the Processor shall:
       • retain the Deposit for a period of 6 (six) months from the Termination Date or from the Disconnection Date (as applicable); 
       • be entitled to apply such Net Transaction Value to cover any Fraud Costs, Payouts, Chargebacks and Refunds; and 
       • pay to the Merchant, at the end of the 6 (six) months period referred to in Clause a), any remaining Deposit (not applied to cover any Fraud Costs Chargebacks or Refunds).
    2. In circumstances where the termination of the Agreement or the Disconnection is not pursuant to Clause 11.4 then the Processor shall:
       1. retain the 6 (six) month Deposit from the Disconnection Date or from the Termination Date and release it in accordance with Clause c) below; 
       2. be entitled to apply the 6 (six) month Deposit to cover any Fraud Costs or Refunds; and
       3. successively release 1 (one) month of the 6 (six) month Rolling Reserve to the Merchant at the end of each month (the “Monthly Deposit Payback”), starting from the end of the month following the Disconnection Date or Termination Date (less any amounts of the Deposit applied to cover Fraud Costs and Chargebacks, Refunds). In the event that the Fraud Costs and the Chargebacks, Refunds are higher than the Monthly Deposit Payback in any month, the remaining Fraud Costs and Refunds shall be deducted from the following Monthly Deposit Payback along with any new Fraud Costs, Chargebacks and Refunds.
       4. be entitled to retain any Merchant´s funds up to the end of any legal, administrative procedure initiated against the Merchant, its affiliates, subsidiaries, officers, agents, partners, suppliers, employees, sub-contractors and licensors caused or related directly or indirectly, to the Merchant´s activity. Processor may apply those funds to any cost or damage suffered itself, its affiliates, subsidiaries, officers, agents, partners, suppliers, employees, sub-contractors and licensors evidencing to Merchant proof of such costs or damages paid and then release remaining funds if any.
12. Upon termination of the Agreement:
    1. licenses granted pursuant to this Agreement shall immediately terminate and the Processor shall be entitled to immediately remove the Merchant (and its Customers) from the Payment Processing Services; and
    2. Clauses that are necessary for the enforcement or interpretation of this Agreement shall survive, which shall include Clauses relating to confidentiality and protection of Intellectual Property Rights.

12. Exclusion and Limitation of Liability

1. Nothing in this Agreement shall exclude or restrict either Party’s liability for death, personal injury, fraudulent misrepresentation or fraud or any other liability that cannot be excluded or limited by law.
2. Subject to Clause 12.1 above, in no event shall the Processor be liable for any loss of revenue, loss of actual or anticipated profits, loss of the use of money, loss of business, loss or corruption of data, loss of operating time or loss of use, loss of opportunity, loss of goodwill, or any other indirect or consequential loss or damage howsoever caused.  The Processor shall not be liable for any loss sustained by Merchant arising from a Transaction made in breach of Clause 3.7 and Merchant shall be responsible for any fines or penalties to the extent arising from such Transaction that are levied by a bank or applicable regulatory authority, provided that such fines or penalties are not attributable to a breach of this Agreement by the Processor, that the Processor notifies the Merchant of such fines or penalties as soon as it becomes aware that they may be imposed and that the Processor has taken reasonable measures within its control that are necessary to mitigate the extent of any such exposure. Further in any case in which the Processor deems appropriate, either for Fraud, penalties or any other cause, the Processor may freeze and retain the funds of the Merchants until said matters are clarified. In case any penalty, or Fraud occurs the Processor is hereby authorized to set off the Merchant’s Funds against such costs or damages. 
3. Subject to this Clause 12, the total aggregate liability of the Processor to the Merchant under or in connection with this Agreement, whether arising from tort (including negligence), breach of contract, or otherwise, shall not exceed in aggregate an amount equal to the lower of: (i) the 100% (hundred per cent) of the Service Fees paid by the Merchant during the 12 (twelve) months preceding the event or circumstances giving rise to such liability; or (ii) USD $250,000.  
4. For the purposes of this Clause, the Processor includes its LLP members, employees, sub-contractors and licensors. The Parties acknowledge that AstroPay Global (IOM) Limited members, employees, sub-contractors and licensors shall have the benefit of the limits and exclusions of liability set out in this Clause in terms of the Contracts (Rights of Third Parties) Act 1999.  
5. The Processor shall not be liable for any failure to meet its obligations under this Agreement to the extent that such failure arises from a failure of the Merchant to meet any of its obligations arising under this Agreement or otherwise.
6. To the maximum extent permitted by law, the Processor shall not be liable whether in contract, tort (including negligence), for breach of statutory duty, or otherwise:some text
7. for any payments in excess of the Daily Transaction Limit; or
8. for any loss or damage including without limitation, indirect or consequential loss or damage, or any loss or damage whatsoever arising out of, or in connection with the contract between the Merchant and the Customer regarding the sale of goods and/or services of the Merchant.

13. Indemnities

1. Subject to Clauses 12.2 and 12.6, the Processor shall defend and hold harmless the Merchant, its officers and directors against any and all third-party claims resulting from any breach by the Processor of any of its, representations and warranties in this Agreement.  
2. The Merchant shall defend and hold harmless the Processor, its officers and directors against any and all claims resulting from any breach by the Merchant of any of its, representations and warranties in this Agreement. 

14. Representations, Warranties and Covenants

1. Both Parties represent, warrant and undertake to the other that:
   1. they have the full right, power, legal capacity and authority to perform their obligations under this Agreement; 
   2. by entering into this Agreement, it will not conflict with, or breach the terms, conditions or provisions of, or default under any other agreement to which it is a party;
   3. there is no action, suit or proceeding at law or in equity now pending or, to their knowledge, threatened by or against or affecting them which would substantially impair their right to carry on their business as contemplated herein or adversely affect their financial condition or operations;
   4. they have and shall continue to comply with relevant Data Protection Legislation in relation to all Account Holder Data and Cardholder Data which is personal data (including any sensitive personal data); 
   5. they will undertake their obligations pursuant to this Agreement with all reasonable skill, care and diligence and in accordance with the provisions of this Agreement; and  
   6. The Merchant represents, warrants and covenants that it shall at all times during the Term hold all necessary permissions licenses and clearances in connection with the provision of its services in any applicable jurisdiction.  

15. Non-Compliance

1. The Merchant shall be responsible and shall reimburse the Processor for any non-compliance fines, fees or penalties levied by any Card Association (or any other relevant body or authority) or otherwise  related to the Transactions, and the Processor is entitled to deduct such fines, fees or penalties from the Rolling Reserve or the Net Transaction Value provided that the Merchant shall not be responsible for such penalties to the extent that: (i) the Processor required that the Merchant take the actions specifically and directly resulting in the non-compliant activity giving rise to the penalties; or (ii) the Merchant has taken all steps necessary to ensure that the Transaction complies with the Card Association (or any other relevant body or authority) by laws and rules and the non-compliance giving rise to the penalties directly results from the Bank’s processing error.

16. Entire Agreement

1. This Agreement sets out the entire agreement and understanding between the Parties in relation to the subject matter of this Agreement and no Party has entered into this Agreement in reliance upon any representation, warranty or undertaking which is not set out, or referred to, in this Agreement.
2. This Agreement replaces, supersedes and overrides any previous agreements or understandings, written or oral, between the Parties and/or any other company related to the Payment Processing Services provided in this Agreement.

17. Assignment

1. The Processor may, from time to time, transfer, novate or assign any of its rights and/or obligations under this Agreement, including partial or total assignment, to any of its affiliate companies upon prior written notice to the Merchant. If any assignment, disposal, novation or transfer be required, the Merchant shall enter into such an agreement and/or a deed as the Processor shall reasonably require so as to give effect to such an assignment, disposal or novation.
2. The Merchant may not, and may not purport to, assign, transfer, novate, charge or part with all or any of its rights and/or obligations under this Agreement or sub-contract the performance of any of its obligations under this Agreement without the prior written consent of the Processor.

18. Confidentiality

1. All Confidential Information communicated by one Party (the “disclosing party”) to the other Party (the “receiving party”), whether before or after the Effective Date, shall be, and shall be deemed to have been, received in strict confidence and shall be used only for the Agreement.  Without obtaining the prior written consent of the disclosing party, the receiving party shall not disclose any such Confidential Information received from the disclosing party.  Confidential Information will not include any information that: (a) is already in the possession of the receiving party without being subject to another confidentiality agreement; (b) is or becomes generally available to the public other than as a result, directly or indirectly, of a disclosure of information by the receiving party or by other persons to whom such Party disclosed information; (c) is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or its representatives, provided that such source is not bound by a confidentiality agreement with the disclosing party; (d) is independently developed by the receiving party without the use of the other Party’s information; (e) is required to be disclosed pursuant to a Court order or arbitration proceeding conducted in accordance with this Agreement; or (f) is required to be disclosed pursuant to a requirement of any governmental authority or any statute, rule or regulation, provided that such Party gives the disclosing party notice of such requirement prior to any such disclosure.  For the avoidance of doubt, Confidential Information shall include the existence and content of this Agreement.
2. However, the Merchant hereby agrees that the Processor may disclose any information concerning this Agreement such as process volumes, fees, amongst others, to any of its subsidiaries or group companies or any other bank or company if it is necessary to the Processor for the performance of the services under this Agreement.

19. Non-Circumvent

It is expressly agreed that the Merchant will not seek to by-pass, compete, avoid or circumvent the Processor from any business opportunity that relates to the Payment Processing Services by utilizing Confidential Information or by otherwise exploiting or deriving any beneficial know how or proprietary information shared in the development of their commercial relationship. The Processor shall be able to sue for damages and freeze Merchant’s funds should the covenants in this Clause be violated in any way. The Merchant shall be bound by the covenant set out in this Clause during the term of this Agreement, and for a period of 12 (twelve) months after termination or expiry of this Agreement

20. Force Majeure

1. If any Party is totally or partially prevented or delayed in the performance of any of its obligations under or pursuant to this Agreement by Force Majeure and gives written notice thereof to the other Party specifying the matters constituting Force Majeure and the period for which it is estimated that such prevention or delay will continue, together with such evidence as it reasonably can give, the Party so prevented or delayed shall, subject to the provisions of Clause 19, be excused the performance as from the date of such notice for so long as such cause or delay shall continue.
2. If any Party gives to the other Party such notice as is referred to in Clause 21.1, both Parties shall attempt so far as reasonably within their power to mitigate the effect of such notice and, in particular, but without limitation, shall endeavor to agree a reasonable and cost-effective solution to the consequences of the matters constituting Force Majeure.

21. Notice

1. This Agreement and any other agreements, notices or other communications regarding the Payment Processing Services (“the Communications”), may be provided to or by the Parties by delivering them by hand, express courier, or electronic mail to the contact details indicated in the Merchant Agreement Form and for AstroPay Global (IOM) Limited to: 
   
   2nd Floor, Hillary House, Prospect Hill, Douglas, Isle of Man IM1 1EQ, Email: legal@astropay.com, Attn: Legal Department.
   
   ‍Such contact details may be varied by each Party only by notice in writing to the other Party and such change shall take effect at least after 5 (five) Business Days of receipt of such notice.‍

2. Clause 21.1 does not affect any provision in any relevant legislation or the Agreement requiring Communications to be delivered in a particular way.
3. A Notice is deemed to have been received:
   1. if delivered personally, at the time of delivery; 
   2. in the case of e-mail, at the time of being sent
   3. in the case of express courier 5 (five) Business Days from the date of posting.

4. Notwithstanding anything to the contrary contained in this Agreement or permitted by the law, no Communications referred to in this Clause 21 shall be deemed effective if mailed by regular post. 
5. A notice given as described above on a day which is not a Business Day (or after normal business hours in the place of receipt) shall be deemed to have been received on the next Business Day.

22. Waiver

The waiver by either Party of a breach or violation of any provision of this Agreement shall not operate as or be construed to be a waiver of any subsequent breach hereof.  The failure to exercise any right or remedy hereunder shall in no way be construed as a waiver or release of the right or remedy.  

23. Amendments

No amendment shall be made to this Agreement unless in writing and approved by both Parties.

24. No Intellectual Property Rights Conveyed

1. Any Intellectual Property Rights which are owned or controlled by either Party prior to the Effective Date or which is acquired by a Party independently of this Agreement shall at all times continue to be owned and/or controlled by the said Party.
2. During the Term, the Processor hereby grants a limited, non-exclusive, revocable, non-transferable license to the Merchant to display Processor’s trademarks or logos in the Merchant’s internet site strictly for the purposes of this Agreement and during the Term.
3. The Merchant shall not seek to:
   1. copy, data-mine, cache, reverse engineer, decompile, disassemble or otherwise extract data from the Payment Processing Services, except as otherwise agreed in this Agreement; 
   2. obtain or claim any ownership in any software (or in any derivation or improvement) connected to the Payment Processing Services; 
   3. write or develop any derivative software or any other software based on the Payment Processing Services utilising the proprietary and Confidential Information of the Processor or a third-party licensor of the Processor. 

25. Severability

If any one or more of the provisions of this Agreement shall be invalid, illegal or unenforceable in any event the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired and shall be valid and enforceable to the fullest extent permitted by law.

26. Governing Law and Jurisdiction

1. This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Isle of Man.
2. Each party irrevocably agrees that the courts of Isle of Man shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.

27. Partnership

Each of the Parties are independent contractors.  Nothing in this Agreement shall render a Party a partner, joint venture or an agent of the other.

28. Third Party Rights

1. Other than as set out in Clause 12.4, the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and no person other than the Parties to this Agreement shall have any rights under it.  
2. The right of the Parties to terminate, rescind, or agree any amendment, variation, waiver or settlement under this Agreement is not subject to the consent of any person who is not a Party to this Agreement.

29. English Language

All notices or communications under or in connection with this Agreement shall be in the English language or, if in any other language, accompanied by a translation into English.  In the event of any conflict between the English text and the text in any other language, the English text shall prevail.

30. Miscellaneous

Where the context so admits or requires words denoting the singular include the plural and vice versa and words denoting any gender include all genders. A reference to any Party shall include that Party's personal representatives, successors and permitted assigns. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision. References to Clauses and Schedules are to the Clauses and Schedules of this Agreement. Where there is a conflict between the Schedules and the main body of this Agreement, the main body of the Agreement shall take precedence unless the relevant Schedule expressly states to the contrary. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.  A reference to writing or written includes e-mail. Any obligation on a Party not to do something includes an obligation to not to allow that thing to be done.

SCHEDULE B

Authorized IP Addresses and Secret Key

The IPs addresses from Processor’s servers shall be provided by the Processor to the Merchant.

The Merchant shall specify its own IP addresses and inform the Processor.

Each Party shall inform the other Party of any subsequent change in IP addresses.

API key shall be taken by the Merchant in the back office provided by the Processor.

‍

SCHEDULE C

Daily Transaction Limit for the Payment Processing Services

‍

The Daily Transaction Limit may be varied by the Processor upon 3 (three) days prior written notice to Merchant of such change.

*Subject to modifications depending on the Territory and Customer’s KYC. 

Any modification with regards to the Daily Transaction Limits shall be fully communicated by the Merchant to the Processor through e-mail.

‍

SCHEDULE F

Data Processing Addendum (“DP Addendum”)

10. Definitions

The following definitions shall have the following meanings:

‍

2. ‍Personal Data Processing‍
   1. The Merchant and Processor shall comply with Data Protection Legislation when Processing the Merchant Personal Data.
   2. Notwithstanding the generality of paragraph 2.1, the Merchant shall ensure that it has all necessary appropriate consents and notices in place to enable the lawful processing of Merchant Personal Data by the Processor for the duration and purposes of this Agreement.‍
   3. Scenario 1 – The MERCHANT acts as the Controller, Processor acts as a Processor‍
      1. When acting as a Processor of the Merchant, Processor shall:
         • process the Merchant Personal Data only in accordance with the Merchant’s instructions from time to time and shall not process the Merchant Personal Data for any purpose other than those authorized by the Merchant, unless Processor is required by applicable law to process Personal Data in such manner. Where Processor is relying on applicable law as the basis for processing Personal Data, Processor shall notify the Merchant of this before performing the processing required by the applicable law unless the applicable law prohibit Processor from so notifying the Merchant
         • not disclose the Merchant Personal Data to any third party other than in accordance with this Addendum, the Data Protection Legislation or at Merchant’s request;
         • notify the Merchant within three (3) Business Days if it receives a Data Subject Request and provide the Merchant with reasonable co-operation and assistance in relation to any Data Subject Request;
         • ensure that only persons authorized by Processor process the Merchant Personal Data and that such persons are subject to binding obligations to maintain the confidentiality of the Merchant Personal Data; and
         • without undue delay after discovering a Data Breach:
           1. notify the Merchant about the Data Breach;
           2. provide to the Merchant the details and describe the likely consequences of the Data Breach in accordance with the information requirements specified in Article 33 of the GDPR; and
           3. provide to the Merchant any reasonable co-operation and assistance.
      2. Processor shall be entitled to charge the Merchant for its assistance
         1. when the Merchant request Processor’s assistance to comply with Data Protection Legislation;
         2. with a Data Subject Request; or
         3. during a Data Breach (unless the Data Breach is directly attributable to Processor), at Processor’s standard rate card, unless the parties agree otherwise in writing.

4. Scenario 2 – Processor acts as a Controller

1. Processor will comply with Data Protection Legislation in relation to any Merchant Personal Data that Processor processes as a Controller. Processor may process Merchant Personal Data as a Controller when it determines what Personal Data to collect and process, and the purposes of means for which the Personal data is processed:
   • to provide the services under the Agreement; or
   • to comply with its own professional obligations.

2. Processor may act as a Controller when it:
   1. processes Personal Data from Merchant’s representatives or personnel to provide the Services; or
   2. records email and calls from the Merchant, members of staff, subcontractors or the Merchant’s end users relating to the provision of the Services (including emails and calls to its Services support team). Processor will do so for the purposes of providing the Services to Merchant, for training and quality purposes and to keep a record of the Services provided to the Merchant.

3. Employees

1. Each party shall take reasonable steps to ensure the reliability and adequate training on all applicable requirements of the Data Protection Legislation of all its employees who have access to Merchant Personal Data.

4. Warranties

1. Each party warrants to the other that it will comply with all applicable requirements of the Data Protection Legislation and that it will Process the Merchant Personal Data in compliance with the Data Protection Legislation.

2. Processor warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
   1. take appropriate technical and organizational measures against the unauthorized or unlawful Processing, and accidental loss or destruction of, or damage to, Merchant Personal Data;
   2. ensure a level of security appropriate to the harm that might result from such unauthorized or unlawful Processing or accidental loss or destruction of, or damage to the Merchant Personal Data and the nature of the data to be protected; and

3. take reasonable steps to ensure compliance with the chosen technical and organizational measures.

5. Liability and Indemnity

1. The limitations and exclusions of liability under the Agreement including but not limited to Clauses 12 and 13.1 shall apply to any liability or indemnity provisions under this Schedule.

2. The Merchant acknowledges that Processor is reliant on the Merchant for direction as to the extent to which Processor is entitled to use and Process the Merchant Personal Data. Consequently, Processor shall not be liable for any claim brought by a Data Subject or a regulator arising from any action or omission by Processor, to the extent that such action or omission resulted from the Merchant 's instructions or it is based on inaccurate, incorrect or incomplete data, or information provided by the Merchant.

3. Subject to paragraphs 5.1 and 5.2 above, Processor shall indemnify the Merchant against all liabilities, costs, expenses, damages and losses suffered or incurred by the Merchant, arising from Processor’s breaches of Data Protection Legislation.

4. Notwithstanding Clause 13.2 (Indemnity) of the Agreement, the Merchant shall indemnify Processor against all liabilities, costs, expenses, damages and losses suffered or incurred by Processor arising out of or in connection with Merchant s breaches of Data Protection Legislation.

6. Appointment of Sub-Processors

1. The Merchant herewith generally authorizes Processor to appoint Sub-processors for the purposes of providing the Payment Processing Services, provided that:
   1. the Sub-processor's contract is on terms which are substantially the same as those set out in this Schedule; and
   2. Processor remains fully liable for all acts or omissions of any Sub-processor appointed by it pursuant to this paragraph.

2. The Merchant herewith expressly authorizes Processor to engage any Processor Affiliate as a Sub-processor if that Processor Affiliate is engaged in the provision of the Payment Processing Services.

3. In addition to the Sub-processors engaged pursuant to paragraph 6.1, Processor shall be entitled to engage additional or replacement Sub-processors, subject to:
   1. the provisions of paragraph 6.1 above being applied; and
   2. Processor notifying the Merchant of the additional or replacement Sub-processor>

7. Return Or Destruction of Merchant Personal Data

1. Subject to paragraph 7.2 below, Processor shall, at the choice of the Merchant, delete or return all the Merchant Personal Data to the Merchant after the end of the provision of the Services relating to the Processing. The Merchant shall be responsible for arranging a back-up of such Merchant Personal Data before the end of the provision of the Services.

2. In the event that the Merchant requires the Processor to return the Merchant Personal Data, Processor shall be entitled to charge the Merchant for this service, at Processor’s standard rate card.

3. In the event that Processor is required by applicable law to retain all or part of the Merchant Personal Data (e.g., for tax and/or accounting purposes) Processor shall retain such data only for as long as it is required or needed. The provisions of this DP Addendum shall continue to apply to any Merchant Personal Data retained by Processor pursuant to this paragraph.

8. Audits

1. Processor shall use reasonable endeavors to make available to the Merchant all information necessary to demonstrate compliance with its obligations as a Processor under Data Protection Legislation and allow the Merchant or the Merchant’s designated auditors to carry out data protection compliance audits under terms agreed by the parties acting reasonably and in good faith.

9. Transfers Of Merchant Personal Data Outside The EEA

1. In the event that Processor transfers any Merchant Personal Data to a country outside the EEA in respect of which the EU Commission has not made a positive finding of adequacy, Processor shall ensure that there is adequate protection and appropriate safeguards in place for such transfer of Merchant Personal Data in accordance with applicable Data Protection Legislation. Such adequate protection and appropriate safeguards may include entering into Standard Contractual Clauses with the Merchant.