Golfmanager Merchant of Record Agreement

Golf Manager S.L. (trading as Golfmanager), a private company with limited liability, duly incorporated and organized under the laws of Spain, having its registered office/principal place of business at Calle Velázquez 86, Bajo Centro, 28006 Madrid the, registration number Spanish Tax Office is ESB88096292, (hereinafter: “GM”), and the client (hereinafter: “Affiliate-Partners”).

(each referred to as a “Party”, together the “Parties”).

WHEREAS: GM provides, to the Affiliate-Partners a SaaS Suite to manage their business operations, bookings, hospitality, etc. The Affiliate Partners also wishes the GM to provide them with a Merchant of Record service, hereinafter MoA. This service includes to process card transactions through GM account, and GM will have control of the funds and will be responsible for settling the Affiliate-Partner.

THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:

 

Definitions

Acquirer” means any financial institution to which GM routes a credit/debit card payments for authorization, processing, and clearing.

Bank Based Payments” means all Payments that are to be (i) debited from a Customer’s bank account and (ii) credited directly to a GM bank account, or a subsidiary thereof, including but not limited to (real-time) bank transfers and direct debits.

Card Association” means MasterCard, VISA, American Express, Carte Bancaire, Diners Club, Discover, JCB or any other card payment scheme that GM offers in its Services.

Chargeback” means any disputed credit or debit card sale that is returned to the Acquirer for reimbursement of the cardholder’s account.

Client ID” means the account ID(s) opened and maintained within GM for the Affiliate Partner for the reporting, administration and reconciliation of the Services.

Collected Payment” means any Payment matched to Affiliate Partner Client ID by GM.

Confidential Information” means (i) the terms of this Agreement; (ii) any commercial, marketing, technical or other information relating to the business activities of the Parties; and (iii) any other information made available to a Party by another Party which would reasonably be understood to be confidential, such as the KYC Documentation.

Customer” means any entity or natural person that purchases goods or services marketed, sold, distributed or re-sold by the Affiliate Partner and who executes and submits or authorizes a Payment.

IPR Claim” means any claim against the Affiliate Partner by a third party asserting that its use of (part of) the Services provided by GM infringes or misappropriates a patent, copyright, database right, or trade secret right of the third party.

KYC Documentation” means the documentation that is required pursuant to laws and regulations, including but not limited to the anti- money laundering and anti-terrorist financing regulations applicable to GM and Payment Method Suppliers. This includes but is not limited to documentation that identifies and verifies Affiliate Partners, his principals, its ultimate beneficial owner(s) and the nature of his business.

Affiliate Partners” means the entity which enters into a this Agreement.

Merchant of Record Service” means the usage of the processing account that GM has with an acquirer.

No-Go Industries” means the commercial activities for which GM is not willing to provide the MoR service, which, as of the Effective Date. Furthermore, GM will only process Golf Club related transactions, which are green-fees, golf shops inside the golf clubs, etc.

Payment” means any payment from a Customer credited on a bank account of GM, or a subsidiary thereof.

Payment Method Supplier” means a third party supplier of payment products and/or services, including Acquirers and any bank at which GC, or a subsidiary thereof, holds an account.

Penalties” means any fine or amount (together with any associated costs) which is levied, GM, Affiliate Partner as a result of the contravention of a Rule, law, statute or guideline of a bank, Payment Method Supplier and/or Card Association.

Power of Attorney” means the power of attorney granted by the Affiliate Partner as set out in Appendix A to any Project Agreement.

Pricing Conditions” means the fees that are applicable to the Services, as Appendix B to any Project Agreement.

Project Agreement” means the agreement for Services entered into pursuant to section 4 of this Agreement.

PSA” (Payment Supplier Agreement) means any additional agreement that is entered into between the Affiliate partner and an Acquirer or other Payment Method Supplier. This agreement is only required in certain occasions.

Reversed Payment” means any Collected Payment that for any reason is refunded, reversed, charged back, withdrawn or otherwise not credited to the account of Affiliate partner, including but not limited to Chargebacks.

Rules” means all current and future by-laws, rules and guidelines promulgated by Card Associations or bank associations (direct debits) which are applicable to acquiring services or to processing by Payment Method Suppliers.

Security” means a deposit or security held by GM and funded or provided by one or more of the following means:

  • an extended settlement period for remittance of Collected Payments to the Affiliate Partner;
  • one or more deductions or offsets to any Collected Payments otherwise due to the Affiliate Partner;
  • transfer of a monetary value to GM by or on behalf of the Affiliate Partner;
  • Affiliate Partner delivery to GM of a bank guarantee. Any such guarantee shall be issued by a financial institution acceptable to GM and shall be in a form satisfactory to GM; and/or

Services” means all the services provided or to be provided by GM to the Affiliate Partner, including, but not limited to, data processing, related technical connections, receivable and merchant of record service.

For avoidance of doubt, by accepting this terms and conditions you are entering in a contract with Golfmanager SL, and Golfmanager SL will be responsible for refunds, chargebacks, disputes, and any other payment related issue that could happen.

General Provisions

Applicable law: This Agreement and all matters (including, without limitation, any dispute relating to the existence, validity, operation or termination of this Agreement or any contractual or non- contractual obligation) arising from or in connection with it shall be governed by, and construed in accordance with, the laws of Spain, excluding its conflict of law provisions. Any and all such matters (legal action, proceeding or otherwise) shall be brought before the competent court of Madrid, the Spain and the Parties irrevocably submit to the exclusive jurisdiction of such court.

Severability: If any provision of this Agreement is held to be invalid or unenforceable in whole or in part, such invalidity or un-enforceability shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof shall continue in full force and effect.

Survival: Any covenant, term or provision of this Agreement which, in order to be effective must survive the termination or expiration of this Agreement, will survive any such termination or expiration.

Amendment: Any alteration, modification, change or revision of the provisions of this Agreement is valid only if made in writing and executed by the Parties hereto, in so far as not provided otherwise in this Agreement.

Waiver: A waiver of any right under this Agreement by any Party shall only be valid if such waiver is in writing and signed by the Party to be charged. No waiver of any right on any occasion shall be deemed a waiver of such right on any other occasion.

Partnership: This Agreement does not create a partnership or joint venture between the Parties. The Parties render or accept the Services as independent contractors and independent parties. No Party is authorized to act as the others’ agent or representative except to the extent necessary to provide or accept the Services set forth in this Agreement and as defined in the Power of Attorney.

Assignment: No Party may assign any of its rights and/or obligations under this Agreement without the prior written consent of the other Parties, which consent shall not be unreasonably withheld. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and insure to the benefit of the successors and permitted assigns of the Parties.

No third party rights: Except as otherwise expressly provided in section 14, nothing in this Agreement is intended to benefit any party other than the Parties hereto or to give any such third party any legal or equitable right, remedy or claim. No one other than a Party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

Entire agreement: This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes any prior or contemporaneous agreement, promise, assurance, warranty, understanding or representation, whether written or oral, concerning the subject matter hereof.

Notices: All notices and other communications required by this Agreement to be in writing must be sent to the recipient by hand, pre-paid post, courier or email at the address set out in section 20 herein or section 4 of any Project Agreement, or to such other address or email address as a Party may notify the other Party in writing.

Counterparts: This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which, when taken together, will constitute one and the same instrument.

Order of preference: Any conflict, ambiguity or inconsistency between this Agreement and any appendices hereto shall be resolved in accordance with the following order of preference:

  1. this Agreement; and
  2. appendices to this Agreement.

Confidentiality

The recipient of Confidential Information (“Recipient”) shall take care to prevent the publication and distribution of the Confidential Information with at least the same degree of care which the Recipient takes to protect its own confidential information of a similar nature, but in any case no less than an appropriate and reasonable degree of care. Parties shall be permitted to disclose Confidential Information to those of its subsidiaries, affiliates, advisors, Payment Method Suppliers and lenders who are informed of the confidential nature of the information and have agreed to be bound by confidentiality obligations at least as stringent as those under this Agreement, including disclosure and/or utilization of Confidential Information:

  • when necessary to perform Services under this Agreement;
  • when required by law;
  • to solicitors, barristers, attorneys, accountants or other professional advisers; and
  • to bankers or other financial institutions, to the extent required for the purpose of raising funds or maintaining compliance with credit arrangements.

The confidentiality obligations will not apply to:

  • information in the public domain, except where such information entered the public domain due to a breach the confidentiality clause; and
  • the existence of the Agreement and use of the Affiliate Partner name and/or logo for purposes of media releases, customer references and public announcements.

The obligations of the confidentiality clause will remain in full force and effect until three (3) years after the termination or expiration of this Agreement.

Affiliate Partner Agreement

The Affiliate Partner hereby engages GM to provide the Services and any entity that enters into a Agreement. GM hereby accepts said engagement. This Agreement stipulates the general terms and conditions that will apply.

Rights and Obligations of GM

GM shall provide technical support services to the Affiliate Partner in order to receive the Services. While GM may assist in payment queries from Customers, GM does not provide direct customer service and will refer any such Customer queries to the Affiliate partner.

GM provides the Affiliate partner with the following reports:

  • daily operational report, showing individual Collected Payment transactions each day;
  • collection report, showing the total amount of Collected Payments per currency per Client ID; and
  • financial statement, showing the total amount of Collected Payments for each remittance

GM is not a party to the purchase agreement between Affiliate Partner and its customer. Therefore, under no circumstances is GM responsible for a customer paying the Affiliate Partner, and furthermore GM does not take ownership of, nor responsibility for any goods or services supplied or to be supplied by the Affiliate partner to its customer.

GM has to ensure the transfer of the Collected Payments to the Affiliate Partner in accordance with the conditions of this Agreement. This obligation is not subject to any limitation of liability that may be expressed elsewhere in this Agreement.

This provision shall only be applicable in case GM receives Collected Payments: In the event of modification, suspension, termination or expiration of this Agreement, GM may withhold (a portion of) the Collected Payments as Security to cover the outstanding and/or reasonably expected future risk of Reversed Payments, Penalties and other obligations of the Affiliate Partner under this Agreement. Upon request, GM shall provide a written justification for the amount withheld.

If the Affiliate Partner has requested that some or all of the Collected Payments be converted into a currency other than the one in which they were collected prior to transfer to the Affiliate partner, then the exchange rates used by GM for such conversion will be made known to the Affiliate partner in the collection reports. The Affiliate partner right to object against the exchange rate used shall be waived and invalidated if such objection is not made within fourteen (14) days after receipt of the collection report in which the exchange rates are disclosed.

The invoice will be settled against the Collected Payments in the currency of the invoice. If there are insufficient Collected Payments in the invoice currency, other currencies will then be converted into the invoice currency (in accordance with this clause) for subsequent deduction of the invoice. Alternatively, in countries with local currency restrictions, GM may choose to convert the invoice into that local currency using the same methodology as set forth in this clause.

Rights and Obligations of the Affiliate Partner

The Affiliate Partner shall access the GM system in accordance with the specifications and instructions provided by GM.

The Affiliate partner acknowledges and agrees that, after Customer’s Payment, the Customer has fulfilled its payment obligations for such payment pursuant to the applicable purchase agreement between the Affiliate partner and Customer and Affiliate partner shall deliver the purchased good and/or service to such Customer.

The Affiliate Partner acknowledges and agrees that they shall be jointly and severally liable for all transactions processed under GM payment account. Under no circumstances will the Affiliate Partner submit transactions for any activity, product or entity not explicitly authorized by GM.

In the event that the Affiliate Partner processes direct debit transactions, whereby the Customer authorizes the Affiliate Partner to draw funds from his or her bank account, the Affiliate partner acknowledges and agrees that:

  • it shall provide GM with all required data elements for each direct debit transaction, including the Customer’s unique mandate reference;
  • it shall obtain the Customer’s consent (via the Customer’s unique mandate reference) to debit the amount of the payment from its account;
  • it shall store the mandate reference for the period prescribed by law and shall produce the mandate reference upon request of GM;
  • it shall be liable for, and indemnify GM against, all damages arising out of or related to the Affiliate partner breach of this clause.

The Affiliates Partner anti-money laundering (AML) and know your customer (KYC) policies shall be approved by the GM Credit & Risk department prior to processing any transactions.

The Affiliate Partner acknowledges that for GM to be able to fulfill the service obligations under this Agreement, it is required that the Affiliate partner signs the Power of Attorney and any applicable PSA.

The Affiliate Partner will estate specifically in the terms and conditions that they are using Golf Manager as the processing Merchant of Record.

The Affiliate Partner acknowledge the fact that some payment instruments, including but not limited to credit cards and direct debits have an increased risk of misuse. He agrees that they will be liable for any Reversed Payments (including but not limited to Chargebacks) with respect to transactions processed under this Agreement. This liability is not subject to any limitation of liability that may be expressed elsewhere in this Agreement and survives termination or expiration of this Agreement.

The Affiliate Partner agree that they will be jointly and severally liable for any Penalties with respect to transactions processed under this Agreement. This liability is not subject to any limitation of liability that may be expressed elsewhere in this Agreement and survives termination or expiration of this Agreement. In the event that a Penalty is (i) caused by, or results from, an act or omission of GM and (ii) not attributable to an act or omission of the Affiliate Partner and/or the Customer, then GM will not be liable for such Penalty.

The Affiliate Partner shall maintain a zero or positive funds balance with GM at all times during and after the term of this Agreement. If at any time the Collected Payments are not sufficient to cover the amounts due by the Affiliate Partner under this Agreement, he shall transfer the full amount of funds due as instructed by GM within fourteen (14) days of receipt of written notice. In the event that the Affiliate partner does not make the balance positive within fourteen (14) days, GM shall – without prejudice to any further claims for compensation or damages – be entitled to interest on arrears from the Affiliate partner, at the rate of 5% per annum above the respectively published European Central Bank 1mth Euribor rate. Such interest shall accrue on a daily basis until actual payment of the overdue amount, whether before or after any related judgment.

Without prejudice to the right of the Affiliate Partner to appeal a reported Reversed Payment or Penalty with the Payment Method Supplier, The Affiliate partner explicitly agrees to accept any such Reversed Payments and Penalties as reported by GM.

The Affiliate Partner will provide up-to-date KYC Documentation upon request of GM. Furthermore, the Affiliate Partner will, upon request of GM, provide (audited, if available) financial statements, and agree to promptly provide to GM such information regarding their financial condition as GM may reasonably request from time to time. Financial statement includes; (1) a profit and loss statement for the fiscal year, (2) a balance sheet as of the end of the fiscal year, and (3) a cash flow statement. The Affiliate Partner shall immediately notify GM if; (i) any insolvency proceeding, receivership, bankruptcy, or similar action or proceeding is initiated; (ii) any judgment, written of attachment execution, levy or similar process against the Affiliate Partner is served or issued with respect to any substantial part (valued at twenty percent (20%) or more of the total tangible assets) of the property; (iii) The Affiliate Partner dissolves or (substantially) discontinues its business; or (iv) important deterioration of its assets is foreseeable or likely to occur.

Security and Risk Conditions

Parties agree that in order to mitigate GM’s financial exposure under this Agreement, GM may determine, in its sole discretion, that a Security is necessary as a condition of providing Services. If so, such Security will be held by GM. For this reason all payment activity will have activated 3D Secure transactions during this agreement and will not have a chargeback ratio of more than 0,2%.

The Security may be used for any form of contractual compensation as defined in this Agreement. GM reserves the right to unilaterally change the level of the Security and/or risk conditions as set forth in this section. This right shall be exercised in good faith and only in the event that (i) the risk profile of the Affiliate partner changes significantly, and/or (ii) The Affiliate partner transactions change significantly.

The Affiliate partner hereby pledge and grant to GM a continuing first priority security interest in and to, and a lien upon and right of set-off against any Security set during the term of this Agreement to secure payment and performance of the obligations under this Agreement. The Affiliate partner hereby declare to preserve, protect or GM’s security interests in every way and limit. In case GM notifies by any communication method of a potencial risk, the Affiliate partner will have 7 days to do the necessary changes in their security or risk systems.

Security will be held until one hundred and eighty (180) days after actual and final delivery to the Customer of the purchased goods and/or service or for the period of time in which a transaction can be reversed in accordance with the Rules, whichever is greater. It is the Affiliates partner obligation to request a return of Security once this period has expired. This clause survives termination or expiration of this Agreement.

 

Intellectual Property

This Agreement will not in any way transfer the intellectual property rights of Parties.

In the event of an IPR Claim, GM shall, at its own expense, defend, remedy or settle the IPR Claim in such manner and on such terms as it deems appropriate; provided, however, that it shall not, without the prior written consent of the indemnified Party (which consent shall not be unreasonably withheld or delayed) effect any settlement or compromise of any such IPR Claim unless such settlement or compromise includes an unconditional release of the indemnified Party from all damages and/or losses that are the subject of or constitute a portion of such IPR Claim.

If a final injunction granted by a court of competent jurisdiction prevents the Affiliate partner continued use of (part of) the Services, GM will, at its option and expense, either procure for the Affiliate partner the right to continue receiving the Services or the affected parts of it; or replace or modify the infringing part of the Services so that they become non-infringing; or, if the aforementioned are not reasonably or commercially feasible (in GM’ reasonable discretion), terminate this Agreement.

The indemnity under this section will not apply if and to the extent that the IPR Claim results from (i) a correction or modification of the Services not provided by GM and/or (ii) the combination of the Services with any items not provided by GM.

Data Protection

Parties warrant and undertake that (i) they will duly observe their respective obligations under applicable data protection laws and (ii) Customer Data will be handled with care, in a confidential manner and in accordance with applicable laws.

Each Party shall have proper organizational and technical security measures in order to prevent loss, theft and/or misuse of Customer data. In the event that loss, theft or misuse occurs (‘Data Incident’), each Party shall immediately notify the other Party of the nature and details of such loss, theft or unauthorized access, copying, modification, use or disclosure.

GM shall use, store, disclose, dispose and otherwise handle Customer data in accordance with this Agreement and will only process said data where necessary for the performance of its business activities or as required by applicable law.

Neither Party shall assume responsibility for the other Party for any breach of such Party’s obligations under applicable data protection laws.

Pricing

The Affiliate Partner shall pay the fees to GM as set out in the Pricing Conditions. If GM is requested to provide Services, not listed in the Pricing Conditions, without specific fees agreed for such Services, GM will be entitled to apply the rate which is standardly applicable to such Services. Pricing Conditions shall accrue from the date GM sets up a Client ID and will be charged to the Affiliate partner on a monthly basis in arrears.

Notwithstanding any other provision of this Agreement:

GM may with one (1) month written notice adjust the Pricing Conditions if the cost of providing the Services increases due to (i) circumstances beyond the reasonable control of GM and/or (ii) price changes applied by the Payment Method Supplier. For the avoidance of doubt, this right to vary the Pricing Conditions will only apply to the rates applied by Payment Method Suppliers. GM shall upon the request of the Affiliate partner provide with documentary evidence from the relevant Payment Method Supplier or otherwise showing any such increase.

GM may with one (1) month written notice adjust the Pricing Conditions if the assumptions provided by the Affiliate partner on which the Pricing Conditions are based (i.e. Affiliate partner annual volume, average transaction amount, payment methods mix and other information provided by the Affiliate partner relevant for the level of the Pricing Conditions) are outside a plus or minus 10% range.

The Affiliate partner agrees that exceptional costs that are charged by the Payment Method Supplier as a result of their behavior and that is not related to their “business as usual’ operations, GM shall be permitted under this Agreement to pass those costs through to the Affiliate partner.

Pricing Conditions, insofar as they are fixed (meaning a nominal amount and not a percentage) shall be annually adjusted by GM in accordance with the European harmonized consumer price index (HICP). Such adjustment shall be applied in January of each year.

Payments, less invoices, Reversed Payments, Penalties and other amounts due under this Agreement to the Affiliate partner on a daily or weekly basis, as agreed between Parties and in accordance with section 8. Transfer will be made by electronic funds transfer to one or more bank account(s) consistent with the Affiliates partner instructions.

In the event of insufficient Collected Payments to deduct the invoice, the Affiliate Partner shall transfer such amount to GM within fourteen (14) days of receipt of notice. If the Affiliate partner does not pay the outstanding amount within fourteen (14) days, GM shall – without prejudice to any further claims for compensation or damages – be entitled to interest on arrears from the Affiliate Partner, at the rate of 5% per annum above the respectively published European Central Bank 1mth Euribor rate. Such interest shall accrue on a daily basis until actual payment of the overdue amount, whether before or after any related judgment.

Card Association costs for card transactions within Europe, as defined by the Card Associations, can be found on the website of Visa Europe (https://www.visaeurope.com) and MasterCard (https://www.mastercard.us).

Payment Card Industry Data Security Standard (“PCI-DSS”)

Compliance

GM represents and warrants that, at all times during the duration of this Agreement, it shall be compliant with PCI-DSS.

Representations & Warranties

GM represent and warrant that:

  • they comply with all applicable Rules, laws and regulations;
  • all information provided to the Affiliate partner in connection with this Agreement is true, accurate and complete to the best of their knowledge and belief;
  • they have and shall continue to have all the necessary assets and liquidity to perform their obligations under this Agreement as they become due;
  • they are not aware of any information which the Affiliate partner and its advisors would reasonably require and expect to be informed of for the purpose of making an informed assessment of GM and their ability to perform their obligations under this Agreement;
  • there is no claim, litigation, proceeding or governmental investigation pending, threatened against or relating to GM

Affiliate Partner represent and warrant that:

  • they comply with all applicable laws and regulations;
  • they comply with all applicable Rules and any related instructions, policies and procedures provided by GM that may change from time to time;
  • all information provided to GM in connection with this Agreement is true, accurate and complete to the best of their knowledge and belief;
  • they have and shall continue to have all the necessary assets and liquidity to perform their obligations under this Agreement as they become due;
  • they are not aware of any information which GM and/or Checkout Ltd and its advisors would reasonably require and expect to be informed of for the purpose of making an informed assessment of the Affiliate partner, and their ability to perform their obligations under this Agreement;
  • there is no claim, litigation, proceeding or governmental investigation pending, threatened against or relating to the Affiliate partner, or their businesses, which does, or may reasonably be expected to, materially adversely affect the ability of the Affiliate partner to enter into this Agreement or to carry out their obligations hereunder.

Indemnification

GM, the Affiliate partner shall indemnify, defend and hold harmless the other Parties, their parents, subsidiaries, affiliates, officers, representatives, agents, and employees against any and all claims, damages, losses, suits, actions, demands, proceedings, liabilities, costs, expenses or attorneys’ fees (including those necessary to successfully establish the right to indemnification) threatened, asserted or filed against the other Parties arising directly out of indemnifying Party’s breach of this Agreement.

Affiliate partner shall indemnify, defend and hold harmless GM of their parents, subsidiaries, affiliates, officers, representatives, agents and employees against any and all claims, damages, losses, suits, actions, demands, proceedings, liabilities, costs, expenses or attorneys’ fees (including those necessary to successfully establish the right to indemnification) threatened, asserted or filed against them, arising directly out of (i) the transactions between the Affiliate partner and its Customers and/or (ii) a violation of Rules by the Affiliate partner. This liability is not limited by any limitation in liability that may be expressed elsewhere in this Agreement.

Where a Party (the “Indemnified Party”) seeks indemnity from the other Party (the “Indemnifying Party”) pursuant to this section, the Indemnified Party shall:

  • promptly provide the Indemnifying Party written notice of any such claim (“Third Party Claim”);
  • permit the Indemnifying Party, through counsel mutually acceptable, to respond to and defend such Third Party Claim; and provide the Indemnifying Party, at the request and expense of the Indemnifying Party, all information and assistance reasonably necessary in order to evaluate, remedy, defend or settle the Third Party Claim; and
  • not commit or make any act, omission, admission of liability or other statement to the third party which is prejudicial to the defense or settlement of the Third Party Claim by the Indemnifying Party.

The Indemnifying Party shall defend, remedy or settle the Third Party Claim at its own expense and on such terms as it deems appropriate; provided, however, that it shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) effect any settlement or compromise of any such Third Party Claim unless such settlement or compromise includes an unconditional release of the Indemnified Party from all damages and/or losses that are the subject of or constitute a portion of such Third Party Claim.

If the Indemnified Party breaches any provisions of this section, the Indemnifying Party shall have no obligation to indemnify the Indemnified Party with respect to such Third Party Claim.

Liability

Notwithstanding anything to the contrary, Affiliate partner expressly acknowledges and agrees that GC shall not have any liability beyond its obligation to transfer the net outstanding amount of Collected Payments, the Security or Rolling Reserve (if any) that is held by GC. Also GM will have the capacity to charge the Affiliate partner with the chargeback or costs that any dispute from the Affiliate partner customer may cause.

No Party shall be liable to any other Party for indirect, special, incidental, punitive or consequential damages of any kind or nature whatsoever arising from or related to this Agreement, including without limitation loss of business, lost profits or lost goodwill and whether based on breach of any express or implied warranty, breach of contract, tort (including negligence) or strict liability, regardless of whether the Party has been advised of the possibility of such damage or if such damage could have been reasonably foreseen.

The maximum liability for GM or the Affiliate partner shall not exceed either (i) the processing and handling fees paid in connection with the provided Services within the twelve (12) months prior to the claim having arisen or (ii) the invoices paid in connection with the provided Services within the three (3) months prior to the claim having arisen, whichever is greater.

If a Party does not notify the other Party of a claim for damages arising out of or related to this Agreement within one (1) year of the claim having arisen, such claim shall be waived and invalidated.

The Affiliate partner acknowledge and agree that during the term of this Agreement and after its termination or expiration for any reason whatsoever will responsable for its customer transactions during the time of this agreement.

The Right to Modify, Suspend and/or Terminate the Services

In order to protect GM it will have the right to immediately modify and/or suspend some or all of the Services by written notice. GM shall use this right in good faith and only in the event that one or more of the following occurs:

  • GM reasonably suspects or has evidence that fraud is or may be occurring;
  • Affiliate partner has a chargeback ration of more than 0,2%
  • Affiliate partner repeatedly fails to respond to communications from GM in a timely manner;
  • a Client ID balance is negative for a period in excess of fourteen (14) days;
  • Affiliate partner are willfully dishonest, fraudulent and/or engage in misconduct with respect to their business or affairs;
  • GM has reasonable and objective indications (supported by documentation) that the Affiliate partner will be unable to fulfill a material obligation of this Agreement;
  • Affiliate partner uses the Client ID to submit transactions for an activity, product or entity that has not been approved by GM;
  • the integrity or reputation of GM and/or Card Association is materially and negatively impacted by the Affiliate partners directors or ultimate beneficial owners (>25% of the shares or voting power);
  • The Affiliate Partner directors or ultimate beneficial owners (>25% of the shares or voting power) are, or GM reasonably suspects that they are, conducting unlawful activities;
  • the risk profile of the Affiliate partner changes significantly, and/or Affiliate partner transactions change significantly;
  • the number of Reversed Payments exceeds the limit set forth in (i) the Card Association Rules, as specified in such Rules or (ii) by GM.
  • The Affiliate partner sell the business for which the Services are provided without notice to GM, or such sale or transfer materially and negatively impacts GM, in its sole discretion, upon notification;
  • in the event that an Supervisory Authority requires or advises GM and/or GC to modify, suspend or terminate any or all of the Services;
  • a law, Rule, banking regulation, including currency restriction from local and/or central banks mandates modification, suspension or termination;
  • The Affiliate partner fail to comply with any clause in this agreement;

In the event circumstances arise that justify suspension and/or modification of (part of) the Services, GM will limit – to the extent reasonably possible – the suspension and/or modification of (part of) its Services to only those particular Client IDs at issue.

The Affiliate partner shall immediately be notified of a modification and/or suspension of the Terms of Service or the Service. If the Affiliate partner cannot remedy the events leading to the modification and/or suspension or provide GM with an explanation satisfactory to GM within fourteen (14) days, GM may terminate some or all of the modified and/or suspended Services, or this Agreement, by written notice.

Force Majeure

No Party will be responsible for loss or damages suffered by the other Party as a result of the first Party’s failure to perform its obligations under this Agreement due to any event beyond the first Party’s control which events include, but are not limited to, war or terrorist activities, civil commotion, government actions, fire, riots and ‘acts of god’.

If the performance, in whole or in part, of any obligation under this Agreement of one Party is delayed by reason of a force majeure for a period exceeding thirty (30) consecutive days, the other Party shall be entitled to terminate this Agreement by written notice.

Term and Termination

This Agreement will be effective as of the Effective Date and will remain in effect for three (3) years thereafter (hereinafter “Initial Term”) unless terminated earlier in accordance with the provisions herein or due to the termination of all the Project Agreements. Unless written notice is provided to the contrary by a Party three (3) months prior to expiration of the Initial Term or any extension term, this Agreement shall automatically renew for successive one (1) year terms.

Termination for cause:

If a Party commits a material breach of this Agreement and such breach is not cured within thirty (30) days of receipt of written notice by the other Party, giving the particulars of the breach and, where appropriate, requiring it to be cured, then the other Parties have the right to terminate this Agreement by written notice, which termination will be effective on the date set out in that notice.

If a Party is unable to pay its debts as and when such debts fall due or becomes bankrupt or insolvent, or has a receiver or manager, provisional liquidator, liquidator or administrator appointed in respect of any material part of its assets or suffers an execution in respect of any of its property, or if a petition is presented for the winding up and such petition is not released, satisfied or withdrawn within thirty (30) days, then the other Parties have the right to terminate this Agreement by written notice, which termination will be effective on the date set out in that notice.

The Affiliate partner shall maintain enough funds (based upon its processing history and risk profile) in the GM processing account as a Security following termination or expiration to cover all expected Reversed Payments, Penalties and other amounts due under this Agreement. If the Affiliate partner cannot meet this obligation, the Affiliate partner shall transfer to GM the required Security. This clause survives termination or expiration of this Agreement.

In connection with termination or expiration of this Agreement, GM shall provide all assistance that may reasonably be required in connection with the migration of processing and related operations provided by GM on a time and materials cost basis.

After termination or expiration of this Agreement, GM may provide certain Services for a period not exceeding one hundred and eighty (180) days. Any Services provided after termination or expiration of this Agreement shall be subject to the fees as specified in the Pricing Conditions.

Anti-Bribery and Corruption

GM shall at all times comply with all applicable anti- bribery and corruption laws, statutes, regulations and codes, including but not limited to the Anti-Bribery European Laws. Also they will comply with the Anti-Money Laundry rules and will provide all transaction information in case the regulators request them.

GM shall not, and shall procure that its employees, agents and subcontractors do not, in connection with the execution of this Agreement, offer, promise or provide (give) to a person a financial or other advantage to encourage such person to improperly perform, delay or omit from performing certain activities; and/or solicit, demand, accept or receive (receive) from a person a financial or other advantage in order to improperly perform, delay or omit from performing certain activities.

Each individual signing this Agreement certifies that he/she is an authorized principal, partner, officer, or other authorized representative of their respective Party identified above and is thereby fully authorized to bind their Party to the contractual obligations as defined in this Agreement.