MERCHANT SERVICES AGREEMENT
THESE TERMS AND CONDITIONS REGULATE YOUR USE OF OR ACCESS TO ANY SERVICES, WEBSITES, OR PLATFORMS OPERATED OR PROVIDED BY CHOICEPAY LTD (REFERRED TO AS “CHOICEPAY,” “WE,” “OUR,” OR “US”).
BY UTILIZING OUR SERVICES, WEBSITES, OR PLATFORMS, YOU CONFIRM THAT YOU HAVE THOROUGHLY READ, ACCEPT, AND AGREE TO THE MERCHANT SERVICE AGREEMENT (THE “MSA”). ADDITIONAL CONDITIONS WILL APPLY TO THE SELECTED CHOICEPAY SERVICE (“PROCESSING SERVICE SCHEDULE”). THE MSA TOGETHER WITH THE PROCESSING SERVICE SCHEDULE WILL CONSTITUTE A SINGLE AGREEMENT (THE “AGREEMENT”).
BY UTILIZING OUR SERVICES, WEBSITES, OR PLATFORMS, YOU CONFIRM THAT YOU HAVE THOROUGHLY READ, ACCEPT, AND AGREE TO THE MERCHANT SERVICE AGREEMENT (THE “MSA”). ADDITIONAL CONDITIONS WILL APPLY TO THE SELECTED CHOICEPAY SERVICE (“PROCESSING SERVICE SCHEDULE”). THE MSA TOGETHER WITH THE PROCESSING SERVICE SCHEDULE WILL CONSTITUTE A SINGLE AGREEMENT (THE “AGREEMENT”).
WE MAY PERIODICALLY MODIFY THIS AGREEMENT FOR LEGAL, REGULATORY, OR OPERATIONAL REASONS WITHOUT ANY OBLIGATION TO YOU. ANY CHANGES WILL BE COMMUNICATED TO YOU VIA THE EMAIL ADDRESS YOU PROVIDED IN THE SERVICE SCHEDULE, DURING ONBOARDING, OR THROUGH AN ANNOUNCEMENT ON THE CHOICEPAY WEBSITE. IF YOU DO NOT WISH TO ACCEPT THE UPDATED AGREEMENT, YOU SHOULD DISCONTINUE USING THE CHOICEPAY SERVICES, WEBSITES, OR PLATFORMS. CONTINUED USE OF THE CHOICEPAY SERVICES AFTER THE EFFECTIVE DATE OF THE MODIFICATIONS INDICATES YOUR AGREEMENT TO THE MODIFICATIONS.
1. INTRODUCTION
1.1 Choicepay is a leading payment processing services provider, providing a range of payment solutions solutions, including card processing and Alternative Payment Methods. Choicepay utilizes advanced technology to deliver efficient and secure payment services to its clients.
1.2 You desire to utilize Choicepay’s Services to facilitate the processing of various payment transactions.
1.3 This Agreement aims to establish a comprehensive framework for the use of Choicepay Services, clearly defining the roles, rights, and obligations of both Choicepay and You, and ensuring mutual clarity and understanding of the services and expectations involved.
2. INTERPRETATION
In this Agreement:
“Affiliate” means, in relation to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party from time to time;
“Agreement” means This Merchant Service Agreement, together with the Processing Service Schedules, Privacy Policy and the Compliance Management Framework as amended from time to time;
“API” means the application programming interface made available by Choicepay from time to time to enable You to connect to and obtain access to the Choicepay Service;
“Applicable Laws” means the laws, regulations, regulatory codes, or policies, procedures, legislative or administrative orders issued by a relevant regulatory authority, and which apply to the provision or receipt of the Choicepay Services (as applicable);
“Card” means any physical, virtual, or companion prepaid instrument issued by a member bank of Visa, MasterCard, or similar networks, used to facilitate transactions within payment service agreements. These instruments enable the cardholder to access funds, make purchases, and perform other financial activities as permitted by the issuing bank and governed by the applicable Card Scheme Rules.
“Card Scheme Rules” means the comprehensive set of rules, regulations, standards, and operating guidelines issued by any payment scheme, such as Visa or MasterCard. These rules govern the use and operation of the Card Schemes and are subject to amendments and updates over time. They ensure compliance and standardization across all transactions and interactions involving the Card Schemes within the context of this Agreement.
“Choicepay Services” means the Transaction processing services which are offered and performed pursuant to a Processing Service Schedule entered into by the Parties;
“Compliance Management Framework” means the: (i) means Choicepay’s policies, as amended from time to time, which includes Anti-Money Laundering / Counter-Terrorism Financing Policy, Business Acceptance Policy, Country Acceptance Policy, Client Acceptance Policy and any other policy that Choicepay deems necessary for You to comply with;
“Data Protection Laws” means all laws and regulations, statutes, rules or administrative requirements in force from time to time as stipulated by any competent authority having jurisdiction over the business of Choicepay with respect to data protection or data privacy, including, but not limited to: (i) Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA); (ii) the EU’s General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”); (ix) the version of the GDPR transposed into UK law pursuant to the European Union (Withdrawal) Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019/419 (“UK GDPR”); (x) UK Data Protection Act 2018; (xiiii) any other applicable law relating to the processing, privacy and/or use of personal data in the Territories; and (xii) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
“Force Majeure Event” means any circumstance not within a Party’s reasonable control including (a) flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions or embargo; (d) nuclear, chemical or biological contamination or sonic boom; (e) failure of or interruption in internet or telecommunications services; (f) any law or any action taken by a government or public authority, including imposing an export or import restriction, sanction, quota or prohibition;
“Intellectual Property Rights” means all forms of legal rights and protections related to creations of the mind. This includes patents, trademarks, service marks, design rights (whether registrable or not), and applications for any of these rights. It also covers copyright, including rights in software and database rights, as well as know-how, source code, trade secrets, and confidential information. Additionally, it includes trade or business names and any similar rights or obligations, whether registrable or not, in any jurisdiction worldwide. Intellectual Property Rights protect both tangible and intangible assets, ensuring creators and owners can control and benefit from their innovations and brand identities.
“KYC” shall mean know-your-client processes of identifying and verifying the identity of Customers and Service Partners;
“Parties” means collectively You and Us;
“Privacy Policy” means Our legal statement detailing how We collect, handle and process personal data;
“Processing Service Schedule” means the binding document outlining the specific Choicepay Services elected, the commercial terms applicable, the duration of the Choicepay Services and other terms as agreed between the Parties;
“Reserve” means an amount or percentage of Your Settlement that We hold in order to protect against the risk of reversals, Chargebacks, or any other risk, exposure and/or potential liability to Us related to Your use of the Choicepay Services.
“Service Account” means the Your unique account, including any sub-accounts, created for the purpose of receiving the Choicepay Services;
“Service Fee” means the Transaction processing fees applicable to the Choicepay Services as is outlined in the applicable Processing Service Schedule;
“Support Service Agreement” means the document which sets out the type of and manner in which the support services will be provided to You;
“Service Partner” means a mobile money operator, financial institution, merchant or other corporate entity connected to the Choicepay Platform and to which payment (including a Transaction) is sent and/or received through the Choicepay Services, and which shall include You;
“Settlement” means the amount due to You from Your Transactions, less Our fees and any refunds, Chargebacks, reversals, or other amounts due to Us.
“Territories” means (i) the countries in which the Choicepay Service is provided to You; (ii) Your territory of registration or incorporation;
“Transaction” means a payment transaction conducted, carried out and/or processed by or using the Choicepay Service;
“VAT” means value added tax chargeable under the Applicable Laws;
“Your Data” means any data and materials processed through the Choicepay Services;
“Your Platform” means Your digital payments processing platform that connects to the API and provides You with access to the Choicepay Services; and
“You or Your” means the party with whom Choicepay shall execute Processing Service Schedule pursuant to which Choicepay Services shall be described.
3. ACCESS TO THE CHOICEPAY SERVICES
3.1 The commencement of the Choicepay Services (“Go-Live”) is expressly contingent upon the successful completion and approval of Know Your Business (“KYB”) and Know Your Customer (“KYC”) compliance due diligence by Choicepay. This due diligence process is designed to ensure compliance with all Applicable Laws and the Compliance Management Framework. The Parties acknowledge that Go-Live shall not occur until Choicepay has confirmed that all KYB and KYC requirements have been satisfactorily met. Failure to meet these conditions shall entitle Choicepay to delay or withhold the provision of Choicepay Services without liability. For the purposes of this Agreement, “Go-Live” shall mean the date on which the Choicepay Services are fully operational and available for use by You, as confirmed by Choicepay in writing.
3.2 You agree to comply with the Compliance Management Framework made available to You in connection with Your use of the Choicepay Services. By using the Choicepay Services, You confirm that You have authority to use the Choicepay Services and You confirm that Your use of the Choicepay Services does not violate any laws applicable to You. You take responsibility for any consequences or your breach of this section.
3.3 We may disable any username or password associated with You, at any time and at Our sole discretion, if You fail to comply with any of the provisions of this Agreement or the Compliance Management Framework.
3.4 You must treat any username and password used to access the Choicepay Services as Confidential Information and must take reasonable precautions to prevent any unauthorized access to, or use of, the Choicepay Service. In the event of any such unauthorized access or use, promptly notify Choicepay.
3.5 You shall timeously provide all information, documents, materials, data or other items necessary for Choicepay’s provision of the Choicepay Services and as may be reasonably requested from time to time.
3.6 You explicitly consent to Us accessing, processing, and retaining your personal information in line with our Compliance Management Framework and for the purposes of providing the Choicepay Service.
4. YOUR USE OF THE CHOICEPAY SERVICES
4.1. You shall use, and ensure that the use of the Choicepay Service, is in accordance with the terms of this Agreement and the Compliance Management Framework and You shall be responsible for any actions and omissions by Your Customers, employees or representatives in connection with Your use of the Choicepay Services.
4.2. You shall not, except as may be permitted under this Agreement, use the Choicepay Service:
4.2.1. to access, store, distribute or transmit or prepare for distribution or transmission any computer or software virus;
4.2.2. to access, store, distribute or transmit or prepare for distribution or transmission any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
4.2.3. in a manner that is illegal or causes damage or injury to any person or property;
4.2.4. to process Transactions from banned countries or industries listed in the Processing Service Schedule;
4.2.5. to infringe any intellectual property rights of any person;
4.2.6. to transmit, send prepare for transmission or prepare for sending any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (‘spam’);
4.2.7. to interfere with or attempt to interfere with or compromise the Choicepay Service and/or the Choicepay Platform integrity or security;
4.2.8. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Choicepay Platform in any form or media or by any means;
4.2.9. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Choicepay Platform; or
4.2.10. access all or any part of the Choicepay Platform in order to build a product or service which competes with the Choicepay Service and/or Choicepay Platform or use or attempt to use the Choicepay Platform to directly or indirectly compete with Choicepay.
5. WARRANTIES
5.1. You warrant and represent to Us that:
5.1.1. You have the right, power and authority to enter into this Agreement and grant to Us the rights (if any) contemplated in this Agreement and any Processing Service Schedule;
5.1.2. You are and will remain a company duly organized, registered and existing under the laws of the country in which You are incorporated;
5.1.3. You are and will remain fully authorized and licensed to enter into this Agreement and operate Your business in the countries in which You operate or are incorporated. You are and will continue to act in compliance with Applicable Laws, as required for the provision or receipt of the Choicepay Services (as the case may be);
5.1.4. You will not use the Choicepay Service to process Transactions from banned countries listed on Schedule 3 of the Processing Service Schedule;
5.1.5. You will not use the Choicepay Service to process Transactions in respect of restricted business listed on Schedule 4 of the Processing Service Schedule;
5.1.6. You have never had an agreement with a payment Card Scheme which was terminated upon request and/or demand by the Card Scheme or any regulatory authority.
5.1.7. You shall not submit any transaction which is illegal, fraudulent or restricted for authorization, or not authorized by the Cardholder.
5.1.8. You carry out KYC and due diligence checks on all users, Customers, agents and any other third parties with which You engage during the course of Your business activities to ensure that they are properly identified in accordance with Applicable Laws in the Territories and the Compliance Management Framework and as reasonably required to prevent fraud, money laundering, terrorist funding or other illegal activities through its operations, and that it will make available the results of such checks, together with any other compliance related information, to Us in the form and content requested from time to time (“Compliance Information”). We shall have the right to share the Compliance Information with all relevant authorities, Service Partners involved in a Transaction and other third parties as necessary to enable the Choicepay Services, improve the Choicepay Services and comply with Applicable Laws or the Compliance Management Framework;
5.1.9. You process and will continue to process, Personal Data (as defined in the relevant Data Protection Laws) of Customers and any other parties whose personal information You may obtain in accordance with the Data Protection Laws;
5.1.10. The execution of this Agreement and the performance of the obligations under the Agreement shall not: (a) contravene any Applicable Laws or regulation; (b) shall not contravene Applicable Laws and Compliance Management Framework, when exercising Your rights and performing Your obligations under this Agreement (c) contravene any provision of Your constitutional/ founding documents; or (d) conflict with, or result in a material breach of any of the terms of, or constitute a default under any agreement or other instrument to which You are a Party or subject; and or (e) shall not cause reputational damage to Choicepay or the Choicepay Services.
5.1.11. You shall cooperate with enquiries or investigations of any government agencies acting within their authority relating to the Choicepay Services.
5.2. Except as set out in this Clause, We give no warranty and make no representations in relation to the Choicepay Services and all other conditions, representations and warranties which would otherwise be implied (by law or otherwise) shall not form part of this Agreement.
6. ACCOUNT RECONCILIATION AND DISPUTES
6.1. We will produce and provide You with a reconciliation report or account statement detailing the Service Fees and Settlements due at the end of each week or month, as applicable.
6.2. If a Party receives an account statement that it reasonably believes includes an invalid or improperly due sum:
6.3. The Party must notify the other Party in writing as soon as reasonably possible, specifying the Transaction(s) in question, which notice will be referred to as a “Dispute”;
6.4. The undisputed parts of the reconciliation report or statement will be considered final, and the undisputed Transactions will not be part of the Dispute; and
6.5. The investigation into a Dispute will continue until it is resolved or closed by mutual agreement of the Parties. Upon resolution, the Transaction(s) in question will be included in the next monthly account statement (and, if applicable, fees).
6.6. A Dispute regarding a Transaction must be raised within sixty (60) days of the Transaction date. We will not be liable for claims made after this sixty (60) day period.
6.7. You agree that the uncontested account statement or accepted reconciliation report will create a binding obligation for You to settle the outstanding Service Fees in accordance with Clause 7.
6.8. Upon termination of this Agreement and any associated Processing Service Schedule, any pending payments will be paid and settled by the Parties in full.
7. FEES AND PAYMENT
7.1. You shall pay the Service Fees for the Services in accordance with the provisions of this Clause 7 and the relevant Processing Service Schedule. The Service Fees are exclusive of VAT (or equivalent sales tax). Where applicable, You shall pay any applicable VAT (or equivalent sales tax) to Choicepay on receipt of a valid VAT (or equivalent sales tax) invoice.
7.2. Service Fees due and payable under the Processing Service Schedule may be automatically deducted from Your balance in the Service Account, as and when Transactions are processed pursuant to the Processing Service Schedule or paid into the Choicepay nominated bank account, (where applicable).
7.3. Where any sums due are not paid:
7.3.1. The outstanding sums shall be considered as overdue receivables.
7.3.2. We may, at Our sole discretion, levy interest charges on such overdue receivables at a rate equal to 18% per annum, commencing on the due date and continuing until fully paid; and
7.3.3. Interest so levied shall accrue on a daily compounded basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
7.4. You shall be responsible for any taxes or tariffs payable in the country where You are incorporated and, in the countries, where the Choicepay Services will be performed. It is each Party’s responsibility to ensure that, all taxes and tariffs applicable to them respectively are reported, collected or paid to the proper authority.
7.5. You agree that should Choicepay be required to deduct any taxes, withholding or otherwise, We shall deduct from any settlements due to You and pay them over to the relevant authority and provide adequate proof of the payment of same.
7.6. If any local taxes, duties, levies, calculations or withholding taxes that are payable by You or a merchant are imposed on Us, in respect of the transaction amount We reserve the right to recover the sum of any such tax/deduction or penalty and interest imposed on it from You and set it off against any fees owed to You and/or You shall reimburse Us if necessary.
7.7. We may retain or set off any sums owed to Us by You, which have fallen due and payable against any sums due to You under this Agreement.
7.8. Without limiting the generality of the foregoing, if any tax other than an income tax or withholding in lieu of income tax is required by law to be deducted from the Service Fees, the Service Fees shall be “grossed up” such that the net amounts paid to Us shall be the amounts set forth in this Agreement or otherwise provided for in this Agreement.
7.9. Service Fees shall not be amended other than by prior written consent of both Parties except where a Service Fee change is a direct result of an increase in third party costs related to the Choicepay Services (e.g., an increase in payment network interchange costs), in which case We may inform You and amend the Service Fees accordingly upon Your prior consent (which shall not be unreasonably withheld). All Service Fee changes shall apply 30 (thirty) calendar days after the agreement between the Parties, unless otherwise agreed.
8. SETTLEMENTS
8.1. Subject to the terms of this Agreement, Choicepay will remit the Settlement due to You, less any Service Fees, Chargebacks, refunds, and fraudulent Transactions.
8.2. Notwithstanding any other provision in this Agreement, You acknowledge and agree that there may be instances where Settlement is delayed due to actions or inactions of Service Partners, Card Associations, or other third parties beyond Our control. In such cases, Choicepay shall not be liable for any delay in Settlement or any resulting damages, losses, or costs incurred by You. You agree that Choicepay is not obligated to advance funds to You in the event of such delays, and You shall indemnify and hold Choicepay harmless from any claims arising from these delays.
8.3. This clause shall survive the termination of this Agreement.
9. ROLLING RESERVE
9.1. Where relevant to the specific Choicepay Service, We reserve the right to retain, at any time, a 6 (six) month reserve from You.
9.2. The Reserve is non-interest bearing and shall be maintained for the term of this Agreement and for up to 180 (one hundred and eighty) days following the end of the term hereof in so far as We deem necessary to protect ourselves from actual or potential liabilities hereunder.
9.3. The amount of the Reserve shall be 10% of previous month’s Transaction volumes.
9.4. You may be required to increase the amount of the Reserve on 7 days’ notice from Us, either by set-off against Settlements due to You, or by payments from the You to Us.
9.5. We shall have the discretion to use the Reserve to cover any refunds, Chargebacks or other liabilities connected to You and are not otherwise funded by You.
9.6. The 10% rolling reserve shall be released on day 181.
9.7. In the event that the Chargebacks and the Refunds are higher than the 10% rolling reserve, We are entitled to set-off the amounts from the Merchant’s Settlement until the sum of fine/fee is covered. If the retained amount is not sufficient to cover all outstanding amounts, You shall ensure that You pay Us all pending amounts within ten (10) business days of receiving the demand notice and shall at all times keep Us indemnified in this respect.
9.8. The Reserve, that has not been applied to Your liabilities hereunder, shall be returned to You on the not more than 181st day following termination of this Agreement. You agree that you will remain liable for all obligations related to Your Transactions even after the release of any Reserve.
9.9. In our sole discretion, and in extenuating circumstances, We may extend the period of holding the Reserve for more than 180 days and shall provide relevant documentation attesting to the necessity of extending the period.
10. TRANSACTION VERIFICATION
10.1 In presenting a Transaction for payment processing, You warrant that:
10.1.1 You have supplied the product or services to the value stated on the receipt to the Customer;
10.1.2 No fictitious and/or fraudulent Transactions were processed by You to increase the Your cash flow;
10.1.3 The Transaction is not illegal;
10.1.4 The Transaction has been authorised by the Customer; and
10.1.5 There has been due compliance with all the terms of this Agreement.
10.2 If We believe that Your Transactions pose a significant risk, that You have breached the terms of this Agreement, are likely to breach this Agreement or that the Service Account has been compromised, We may suspend or limit the Your ability to use the Choicepay Services, refuse to process any Transaction, reverse a Transaction, hold back Settlements, and contact Customers to verify Transactions and reduce potential fraud and disputes. We will provide You with advance notice of its actions and resolution steps unless there is an immediate need to take actions such as a security threat, potential fraud, or illegal activity.
10.3 You agree to collaborate with Us regarding any monitoring or inspection conducted with respect to proper use of the Choicepay Services, compliance with this Agreement and any applicable laws and/or Card Scheme Rules. You shall provide, all assistance reasonably requested in relation to any audit, including access to Your personnel and records at no cost to Us.
10.4 We require You to provide an unaltered snapshot (screenshot) with the processing URL which can match with Our data. A request from merchant services must be responded to within 3-5 business days The transaction snapshot verification is required by Our risk control system.
10.5 The snapshot must contain the following information:
URL, Transaction ID, Transaction amount, Date, Product/Service purchased, Customer name, Customer account number or card number and expiration date; and Customer E- mail
10.6 We may report any activity that We suspect is a violation of any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect Our systems, merchants and Customers, or to ensure the integrity and operation of Our business and systems, We may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
10.7 Your shall retain all records (including reports and/or data) obtained or generated by You during the course of this Agreement, for a period as required by the local law or rules to which You are subject to.
11. INTELLECTUAL PROPERTY
11.1. All Intellectual Property rights to the Choicepay Platform, the Choicepay Services and the Choicepay Data belong to Us. You shall not take any action that jeopardizes Our proprietary rights or acquire any right in the Choicepay Platform, or the Confidential Information, as defined herein. We will own all rights in any copy, translation, modification, adaptation or derivation of the Choicepay Platform, the Choicepay Services and the Choicepay or other items of Confidential Information, including any improvement or development thereof.
11.2. Nothing in this Agreement shall be construed as transferring any right of ownership over Our Intellectual Property Rights to You or any authorized user and all rights in the Choicepay Platform, Choicepay Services, and the Choicepay Data, not specifically granted in this Agreement are reserved by Us.
11.3. You grant Us an unlimited, non-exclusive right to use Your Data to carry out Our obligations under this Agreement, including any Processing Service Schedule for the term of this Agreement and thereafter as necessary to comply with Our regulatory obligations.
11.4. You acknowledge that We may use Your Data for the purpose of analyzing Your Data in accordance with the Choicepay Service functionality, displaying the results of such analysis, developing, testing, improving and altering the functionality of the Choicepay Service and producing anonymized or anonymized and aggregated statistical reports and research.
12. CONFIDENTIALITY
12.1. You will treat as confidential all information obtained from Us in anticipation of entering into, under or in connection with this Agreement which is designated as confidential by Us or which is by its nature clearly confidential or proprietary to Us (“Confidential Information”).
12.2. You will not disclose such Confidential Information to any person (except only to those employees, agents, sub-contractors, suppliers and other representatives who need to know it) or use such Confidential Information for purposes other than in connection with this Agreement without Our prior written consent.
12.3. This Clause will not extend to information that:
12.3.1. is or becomes publicly known other than through any act or omission of the receiving Party;
12.3.2. was in the other Party’s lawful possession before the disclosure;
12.3.3. is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
12.3.4. is independently developed by the receiving Party, which independent development can be shown by written evidence; or
12.3.5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
12.4. You will ensure that all persons to whom You disclose Our Confidential Information to are aware, prior to disclosure, of the confidential nature of the information and that they owe a duty of confidence to Us. You shall be liable for any use, disclosure or dissemination of Our Confidential Information by persons to whom You disclose or disseminate Our Confidential Information.
12.5. You will maintain the confidentiality and security of Our Confidential Information, and protect it against threats, hazards or unauthorized access or use, for as long as You are in possession or control of Our Confidential Information. Subject to the data retention practice under the applicable Data Protection Laws, upon termination of this Agreement, and upon written request, You shall return or destroy all copies of Our Confidential Information to Our reasonable satisfaction.
12.6. These obligations of confidentiality will survive any termination of this Agreement for a period of 2 years following termination of this Agreement.
13. DATA PROTECTON AND SECURITY
13.1. Personal data related to identifiable individuals will be exchanged between the Parties under this Agreement. This data pertains to employees, directors, officers, or Customers of the respective Parties or their Affiliates (referred to as “Shared Personal Data”).
13.2. We will manage the Shared Personal Data in accordance with Our Privacy Policy. Each Party must comply with all applicable Data Protection Laws when performing its duties and exercising its rights under this Agreement.
13.3. If providing the Choicepay Services involves transferring Shared Personal Data from the United Kingdom or the European Economic Area (EEA) to a controller located outside these regions, and the destination country is not recognized as providing adequate protection for personal data, the applicable C2C Standard Contractual Clauses will apply. The transferring entity will be the “data exporter,” and the receiving controller will be the “data importer.” These clauses are incorporated by reference.
13.4. Shared Personal Data may also be transferred to destinations outside Your country of incorporation (or You Customer’s residence or nationality) if this is necessary to process Transactions, provide You with other services or fulfil Our obligations under applicable law, regulation or legal process. We will only transfer Your personal data outside your country of incorporation (or Your Customer’s residence or nationality) in accordance with the applicable Data Protection Laws and where applicable, where the destination country has benefited from a European Commission adequacy decision, or we have put in place EU approved Standard Contractual Clauses which contractually oblige the recipient to process and protect your personal data to the standard expected within the United Kingdom or EU/EEA.
14. INDEMNITY
14.1. Each Party (“Indemnifying Party”) shall indemnify and hold the other Party (“Indemnified Party”), its Affiliates, employees and agents harmless from and against any damage, loss, expense, claims or liability may incur as a result of:
14.1.1. any negligent act or omission by, or wilful misconduct of Indemnifying Party’s employees or agents to the extent however that such negligent act can be situated in the normal course of employment or appointment;
14.1.2. Indemnifying Party’s personnel’s violation of any Applicable Laws, Card Scheme Rules, statute or regulation;
14.1.3. any third party claims, actions, demands and/or losses to the extent that such losses result from any breach of this Agreement by Indemnifying Party;
14.1.4. any modification of or addition to the API not provided or approved by Indemnifying Party;
14.1.5. Indemnifying Party failure to treat any username and password used to access the Choicepay Services as Confidential Information and taking reasonable precautions to prevent any unauthorized access to, or use of, the Choicepay Service;
14.1.6. an incorrect payment instruction;
14.1.7. all Chargebacks, refunds, penalties levied by Card Schemes and/or Service Partners;
14.1.8. unlawful, fraudulent or illegal Transactions;
14.1.9. death or personal injury caused by Your negligence;
14.1.10. fraud or fraudulent misrepresentation;
14.1.11. breach of Clause 11 (Intellectual Property), Clause 12 (Confidentiality) and Clause 13 (Data Privacy and Security); and
14.1.12. breach of the warranties contained in this Agreement.
14.2. You agree and confirm that you will be responsible and liable for all Chargebacks, refunds, penalties, losses, damages, or costs incurred by us and/or Customers, as well as for all claims and proceedings arising against Us under this Agreement.
15. LIMITATION OF LIABILITY
15.1. Neither Party shall be liable, whether in contract (by way of indemnity or otherwise), tort (including negligence), misrepresentation, restitution or otherwise under or in connection with this Agreement for any special, indirect or consequential loss or damage civil liability for damages suffered by it or its staff as a result of performance of this Agreement.
15.2. We shall not be liable for any loss, delay or failure in the performance of the Choicepay Services caused by:
15.2.1. Your failure to comply with any of Your obligations under this Agreement or the relevant Processing Service Schedule;
15.2.2. Your failure to provide Us with adequate and/or correct payment instructions for the performance of the Choicepay Services; or
15.2.3. Your failure to supply the required information in a timely manner.
15.3. No liability shall be raised against a Party or its subsidiaries and Affiliates more than two (2) years after the accrual of the cause of such liability.
15.4. We will not be liable for the actions or inactions of any third party not acting on Our instructions nor will We be liable for the actions or inactions not directly traceable to Us or our Affiliates.
15.5. Each Party’s total aggregate liability to the other Party and its Affiliates in any calendar year under or in connection with this Agreement whether in contract, tort (including negligence), misrepresentation, restitution or otherwise will be limited to a sum equivalent to the total Service Fees paid under this Agreement during the twelve (12) month period immediately before the date on which the cause of action first arose.
15.6. The limitation in Clause 15.5 shall not apply to liability incurred under any Clause 14.1 and to any outstanding Service Fees.
16. TERM, SUSPENSION AND TERMINATION
16.1. Term. This Agreement will start on the date of signature and shall continue for a period of two (2) years. Thereafter, this Agreement shall be automatically renewed for successive periods of twelve (12) months (each a “Renewal Period”), unless:
16.1.1. either Party notifies the other Party of termination, in writing, at least sixty (60) days in advance; or
16.1.2. this Agreement is otherwise terminated in accordance with the provisions of Clause 15.3.
16.2. Suspension. If We are hindered or delayed in providing the Choicepay Services due to any cause attributable to You, We (without prejudice to Our other rights): (i) may suspend the Choicepay Services until You rectify Your default; (ii) will not be liable for any costs or losses incurred by You as a result of such suspension; and (iii) may charge You (and You shall pay) for any costs or losses We incur due to Your default. (B) You acknowledge and agree that non-compliance or breach of this Agreement grants Us the right to take any or all of the following actions: (i) immediate, temporary, or permanent withdrawal of Your rights or access to the Choicepay Services; (ii) disclosure of Your breach to law enforcement authorities as We reasonably deem necessary. You acknowledge that the responses described in this Clause are not exhaustive, and We may take any other action We reasonably deem appropriate, including the right to suspend the Choicepay Service while We investigate non-compliance with Applicable Laws, fraud, or fraudulent Transactions.
16.3. Termination. We may terminate this Agreement with immediate effect by giving written notice to the You if You commit a material breach of any of Your obligations under this Agreement which (if the breach is capable of remedy) You have failed to remedy within 30 days after the receipt of a notice in writing requiring You to remedy such breach. We may terminate this Agreement with immediate effect if You: (i) default in payment of the Service Fees and such Service Fees remain outstanding for fourteen (14) calendar days after You have been issued with a demand in writing for payment; or (ii) infringe Our or Our third-party licensor’s Intellectual Property Rights, and You have not remedied such infringement within thirty (30) calendar days following Your receipt of notice requiring You to remedy infringement; or (iii) commit a breach of any Applicable laws including the Data Protection Laws when using Your Platform or the Choicepay Platform or any results, or information obtained from Your Platform or from the Choicepay Platform; or (iii) suffer any material adverse change in Your financial condition. Either Party may terminate this Agreement for any reason or for no cause by giving thirty (30) days’ written notice.
16.4. Consequences Of Termination. On termination of this Agreement however arising: (i) We shall be entitled to receive from You all Service Fees accrued or incurred under this Agreement up to the date of termination; (ii) We will discontinue provision of the Choicepay Services and disable Your access to the Choicepay Service. Termination shall not affect or prejudice the Our accrued rights. The provisions relating to Intellectual Property, Confidentiality, Data Security, Consequences of Termination and Liability shall survive termination of this Agreement for any reason.
17. GENERAL
17.1. Entire Agreement. This Agreement and any Processing Service Schedules or addendums executed between You and Us constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
17.2. Force Majeure. Neither Party (the “Affected Party”) shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement (save an obligation to make a payment) if such delay or failure results from a Force Majeure Event. If the Force Majeure Event prevents the Affected Party’s performance of its obligations under this Agreement for a continuous period of more than two months, the other Party may terminate this Agreement by notice in writing to the Affected Party without liability to the Affected Party as a result of exercising the right of termination.
17.3. Waiver. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.4. Rights and Remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
17.5. Severance. If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision. If such negotiations fail, the invalid, illegal or unenforceable provision or part-provision shall be severed from the Agreement and shall not affect the enforceability of the remaining provisions of this Agreement.
17.6. Assignment and sub-contracting. We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement, including to Our Affiliates. You shall not cede, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
17.7. Notices. A notice or other communication under this Agreement shall be sent to us in writing to legal@choicepay.ca. Notices to You will be sent to the email address provided in the Processing Service Schedule. It is Your responsibility to ensure that the email address is current and capable of receiving communications. All notices shall be deemed received upon successful transmission.
17.8. Governing Law. The Agreement shall be governed by the laws of Alberta, Canada, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and each Party unconditionally and irrevocably submits to applicable binding arbitration, as set out below.
17.9. Dispute Resolution. The Parties undertake to use their best efforts to settle amicably any dispute arising from or in connection with this Agreement or the interpretation thereof. The amicable settlement processes will be steered by the authorized representatives of both Parties. If the Parties are unable to amicably settle a dispute within thirty (30) days from when the amicable settlement process was instituted, either of the Parties shall refer such dispute to court for final resolution. The Parties agree to resolve any disputes arising from or in connection with this Agreement through the courts of Alberta, Canada. Each Party irrevocably submits to the exclusive jurisdiction of the Alberta courts for the resolution of any disputes. The Parties agree that any legal proceedings shall be conducted in English and in accordance with the laws of Alberta, Canada, excluding any conflict of law principles that would apply the laws of another jurisdiction.