PAYNODE GENERAL TERMS AND CONDITIONS

Version 2020.08.24

The following terms govern the use of the Paynode Services (as defined below) which allow the sub-merchant (“Sub-Merchant”) to execute Payment Transactions (defined below) through the Paynode Platform (as defined below) and receive payment for air charters and related services processed through the Paynode Platform, and constitute the general terms and conditions (“Paynode General Terms and Conditions”) of Paynode AB and its Affiliates (each such company, as applicable, referred to herein as “Paynode”). These Paynode General Terms and Conditions shall constitute a binding agreement between Paynode and Sub-Merchant, and shall govern all matters relating to the Paynode Services (as defined below) by Sub-Merchant from, or through any arrangement made by Paynode. Sub-Merchant accepts these Paynode General Terms and Conditions by either (i) submitting an application for the Sub-Merchant Onboarding Process to Paynode or (ii) using the Paynode Services. For purposes of these Paynode General Terms and Conditions, each of Paynode, and Paynode and Sub-Merchant, individually, constitute a “Party” and, collectively, the “Parties”.

  1. Defined Terms.
    1. Adyen” means Adyen-N.V., a provider of payment processing and acquiring services that enables Paynode to offer the use of the Adyen Services as an integrated payment solution on the Paynode Platform to enable Sub-Merchants to offer various payment methods to their customers to pay for goods or services of Sub -Merchant.
    2. “Adyen MarketPay Terms and Conditions” means the general terms and conditions for the Adyen Services and the Adyen Prohibited and Restricted Services and Products List to be accepted and agreed by Sub-Merchants during the Sub-Merchant Onboarding Process.
    3. Adyen Services” means the services provided by Adyen to Sub-Merchants relating to Payment Transactions.
    4. Affiliates” means any entity that controls, is controlled by, or is under common control with a Party.
    5. Applicable Law” shall mean (A) the Scheme Rules, (B) any and all applicable foreign, federal, provincial, state or local laws, treaties, rules, regulations, regulatory guidance, directives, policies, orders or determinations of (or agreements with), and mandatory written direction from (or agreements with), any foreign, federal, provincial, state or local government agency or other Regulatory Authority, as each of the foregoing may be amended and in effect from time to time.
    6. Beneficiary Payment” means funds sent by a Sub-Merchant to another entity outside of the Paynode Platform.
    7. Card” means the credit/debit cards authorized for Payment Requests by Payers.
    8. Compromised Data Event” shall mean any actual or potential loss, unauthorized disclosure, theft or compromise of Payer data or Card transaction information.
    9. Currencycloud” means The Currency Cloud Group Limited and its Affiliates, a provider of payment services that enables Paynode to offer the use of the Currencycloud Services as an integrated payment solution on the Paynode Platform to enable Sub-Merchants to offer various payment methods to their customers to pay for goods or services of a Sub -Merchant.
    10. Currency Accounts” mean online virtual named bank accounts that belong to the Sub-Merchant that are provided as part of the Currencycloud Services and accessible through the Paynode Platform.
    11. Currencycloud Services” means the services provided by Currencycloud to Sub-Merchants relating to Payment Transactions.
    12. Currencycloud Terms and Conditions” means the general terms and conditions for the Currencycloud Services (https://paynode.paydirect.io/registrations/ib-uk-terms) to be accepted and agreed by Sub-Merchants during the Sub-Merchant Onboarding Process, as well as the Currencycloud Non-Permitted Activity (described here: https://www.currencycloud.com/support/topics/item/non-permitted-activity/) and Currencycloud Permitted Jurisdictions (described here:  https://www.currencycloud.com/support/permitted-jurisdictions/).
    13. “EFT Process” means the process through which Paynode automatically deducts funds from Sub-Merchant’s bank account by means of Electronic Funds Transfer.
    14. Emergency Suspension Event” shall mean an immediate regulatory change, governmental action, a breach of security, requirement of Adyen or a Scheme Owner, the financial insolvency of a Party, the appointment of a receiver, trustee or fiduciary over any Party, or any other reason determined by Paynode using its commercially reasonable judgment in order to prevent fraud, abuse, or a violation of Applicable Law.
    15. “FX Conversion” means the conversion of one country’s currency into another.
    16. Instant Payment” is the means by which a Sub-Merchant, through the Paynode Platform, defines and sends a payment for the applicable Sub-Merchant Services to another Sub-Merchant on the Paynode Platform, using the Currencycloud Services.
    17. Operating Procedures” shall mean any operating procedures, Scheme Owner Rules or policies and procedures issued and as amended by the Scheme Owner or Paynode.
    18. Payer” means a person who has authorized a Payment Request to Sub-Merchant or a Sub-Merchant who sends an Instant Payment.
    19. Payer Funds” means those funds that have been tendered by, or on behalf of, a Payer to Adyen in connection with a Payment Request for Sub-Merchant Services.
    20. Payment Provider Services” means the combined Adyen Services and Currencycloud Services.
    21. Payment Request” is the means by which a Sub-Merchant, through the Paynode Platform, defines the applicable Sub-Merchant Services for which it initiates a Payment Transaction.
    22. Payment Solution Providers” means Adyen and Currencycloud combined.
    23. Payment Transaction” means the use of a Card, Instant Payment or Beneficiary Payment to facilitate a payment to Sub-Merchant for Payer’s use of Sub-Merchant Services, as well as the ability to do FX Conversions.
    24. Paynode Platform” means a Web-based program to facilitate payment between Payers and Sub-Merchants and payments between Sub-Merchants for Sub-Merchant Services.
    25. Paynode Services” means the services and solutions provided by Paynode and its Affiliates in connection with the provision of the Paynode Platform that enables Adyen to provide the Adyen Services and Currencycloud to provide Currencycloud Services.
    26. Regulatory Authority” means any federal, provincial or state regulator of banking or financial services and any governmental agency or other enforcement agency (domestic, international or multi-national) having jurisdiction over any of the Parties or any of the services to be provided hereunder.
    27. Scheme Owners” means the entity who regulates and provides a specific payment method (e.g. Visa, MasterCard, American Express).
    28. Scheme Rules” means the collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Scheme Owners as may be amended or supplemented over time and with which Sub-Merchants must comply with when using the relevant payment method, including, without limitation, applicable PCI DSS security requirements imposed by the Scheme Owners.
    29. Sub-Merchant Funds” shall mean those Payer Funds less any applicable Paynode fees that are received by Adyen and are paid or payable to Sub-Merchant in accordance with the Paynode General Terms and Conditions.
    30. Sub-Merchant Onboarding Process” means the onboarding process to be concluded with each Sub-Merchant to qualify for the use of the Adyen Services and the Currencycloud Services, which includes the submission of the registration details of the Sub-Merchant for KYC or KYB check and the acceptance by the Sub-Merchant of the Adyen MarketPay Terms and Conditions and the Currencycloud Terms and Conditions when registering with Paynode for the Adyen Services.
    31. Sub-Merchant Services” means the private air charter and related services offered by Sub-Merchant to Payer and authorized passengers in connection with private air charter that Sub-Merchant makes available to its customers.

 

  1. Services and Responsibilities.
    1. Paynode Services. Subject to these General Tems and Conditions, Paynode shall provide to Sub-Merchant the Paynode Services.  Sub-Merchant acknowledges Paynode will have access to Sub-Merchant’s transaction data for the purpose of providing Payers customer support, reporting and other services as set forth herein.  Sub-Merchant agrees to provide Paynode with any information reasonably requested in order for Paynode to provide the Paynode Services. Paynode will provide first line support for the Payment Provider Services. Inquires can be sent to support@paynode.com.
    2. Processing Services. Subject to the terms of these Paynode General Terms and Conditions, Paynode shall provide to Sub-Merchant access to the Payment Provider Services.  Sub-Merchant agrees to provide Paynode  with any information reasonably requested in order for Paynode to provide the Payment Provider Services. Sub-Merchant acknowledges and agrees that the Adyen Services are performed by Adyen and that the Currencycloud Services are performed by Currencycloud and that the Sub-Merchant’s use of the Payment Provider Services is subject to their respective terms and conditions. Sub-Merchant acknowledges and agrees that Paynode will be designated as an authorized representative of Sub-Merchant towards Adyen and Currencycloud with respect to the use by Sub-Merchant of the Payment Provider Services and as such authorized by the Sub-Merchant to access and use the data of the Sub-Merchant processed by the Payment Solution Providers.
    3. AML/KYC Screening and Compliance.
      1. Paynode’s acceptance of Sub-Merchant is subject to Paynode’s due diligence and approval of Sub-Merchant in accordance with Paynode’s compliance policies and procedures (i) prior to and as a prerequisite of Sub-Merchant’s use of the Paynode Services, and (ii) at Paynode’s request at any time as a prerequisite of Sub-Merchant’s continued use of the Paynode Services. If Paynode determines in its sole discretion that Sub-Merchant is not eligible to continue using the Paynode Services, Paynode shall notify Sub-Merchant and Sub-Merchant shall, at its sole cost and expense, immediately take such corrective action that is necessary to satisfy Paynode’s due diligence requirements, unless the deficiencies identified by Paynode’s due diligence by their nature cannot be corrected.
      2. Paynode shall have the right to suspend, modify or discontinue, eithertemporarily or permanently, the Paynode Services as necessary: (i) if Sub-Merchant breaches these Paynode Tems and Conditions or any Payment Solutions Providers’ terms and conditions, (ii) to comply with Applicable Law (including upon the direction of any Regulatory Authority); or (iii) in the event of an Emergency Suspension Event, or (iv) as directed by a Scheme Owner (including, without limitation, by American Express when required in accordance with Section 13 of the American Express Merchant Regulations).  Sub-Merchant agrees that Paynode shall not be liable to Sub-Merchant or to any third party for any such necessary modification, suspension or discontinuance of the Paynode Services.
      3. To comply with the Scheme Rules and to be allowed to use the Payment Provider Services, each Sub-Merchant will contract directly with Adyen and Currencycloud and undergo a know your customer (“KYC”, or “KYB”) and anti-money laundering (“AML”) background check. For this purpose, each Sub-Merchant must during the Sub-Merchant Onboarding Process for the Payment Provider Services on the Paynode website accept (and download) the Payment Solution Providers’ respective terms and conditions, provide personal details (to enable KYC, KYB and AML review by the Payment Solution Providers ) and provide bank account details for settlement of funds for successfully processed payments. Payment Solution Providers  will perform formal verification and mandatory checks in accordance with applicable laws and Scheme Rules on the submitted information during the Sub-Merchant Onboarding Process and subsequently as needed.  Sub-Merchant agrees to provide KYC, KYB, AML and other information to Paynode or Payment Solution Providers, upon request and as a prerequisite to continued use of the Paynode Services and Payment Provider Services.
      4. All activities performed by Paynode with respect to, and in the context of an individual Sub-Merchant, will by Payment Solution Providers be considered to be performed by Paynode as authorized representative of Sub-Merchant. Where Payment Solution Providers become aware of and/or receives any notice of a potential exposure to a fine from the Scheme Owners or Regulatory Authority related to any Sub-Merchant’s behavior, Sub-Merchant agrees to provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation. Sub-Merchant authorizes Paynode to act on its behalf in any way necessary relating to the Payment Provider Services. Paynode shall have no liability for such actions and Sub-Merchant indemnifies, defends and holds harmless the Indemnitees (as defined below) for any and all Damages (as defined below) arising from such actions. 
      5. Sub-Merchant is responsible to ensure that all information submitted to Paynode and Payment Solution Providers is accurate and complete. Sub-Merchant agrees that Paynode shall have no liability for such actions and Sub-Merchant indemnifies, defends and holds harmless the Indemnitees (as defined below) for any and all Damages (as defined below) arising from such actions or omissions.
      6. Sub-Merchant acknowledges that Paynode will charge certain fees relating to the provision of the Paynode Services (the “Paynode Fees”). Sub-Merchant hereby agrees that each set of settlement instructions to Adyen will authorize and instruct Adyen to withhold the Paynode Fees from the Sub-Merchant Funds. Paynode Fees related to the Currencycloud Services will be billed via invoice.

 

  1. Card Acceptance Procedures.
    1. Sub-Merchant agrees to follow and comply with any Operating Procedures in connection with Sub-Merchant’s use of the Paynode Services and Adyen Services. Sub-Merchant agrees that it is solely responsible for monitoring and complying with all Operating Procedures, Scheme Owner Rules, policies and procedures.
    2. Sub-Merchant agrees that the Payment Transactions on the Paynode Platform must be in payment for the Sub-Merchant Services, and that no other products or services of any kind may be sold through the Payment Transactions subject to these Paynode General Terms and Conditions and must comply with the Adyen MarketPay Terms and Conditions.
    3. In the event of a dispute by the Payer after the Sub-Merchant has received from Adyen the Merchant Funds, and the Card issuer has decided in favor of the Payer, then Paynode will deduct funds as set forth in Section 3(d). The Sub-Merchant is required to provide to Paynode supporting documentation to help resolve any dispute in a timely manner.
    4. Any Payer Funds or other amounts representing Payment Transactions not made in strict accordance with these Paynode General Terms and Conditions, the Adyen MarketPay Terms and Conditions or the Operating Procedures may be rejected, and if any Sub-Merchant Funds are paid to Sub-Merchant in connection therewith and subsequently properly rejected by Adyen or the Scheme Owner, such Sub-Merchant Funds will be deducted from the next regular (or subsequent) payment due to Sub-Merchant or collected in another manner as Paynode may determine in its sole discretion. Paynode has the right to chargeback any Payment Transaction using a Card to a Sub-Merchant  where the Sub-Merchant fails to provide requested supporting documentation.   If the Scheme Owner determines there are excessive chargebacks at a location, Sub-Merchant will be solely responsible for any fees, charges or other amounts assessed by the Scheme Owner. If Adyen charges Paynode for chargebacks or refunds on Payment Transactions processed by Adyen for Sub-Merchant, then Paynode will invoice Sub-Merchant for such chargebacks and refunds, which invoice is due and payable within 5 business days.  Sub-Merchant further agrees that Paynode can, and hereby authorizes Paynode to, deduct such chargebacks and refunds from Sub-Merchant’s using the EFT Process.
    5. Sub-Merchant shall not receive any Payer Funds from Payers directly with respect to charges made on Cards for Sub-Merchant Services, and no cash advance shall be paid by the Sub-Merchant to the Payer pursuant to any Payment Transaction. The Sub-Merchant will not submit any Payment Requests that represent (i) replacement for any uncollected funds from a Payer in connection with transactions and payment methods that arise outside of the Paynode Platform, (ii) bad debt or potential bad debt with regard to the Sub-Merchant’s own receivable; or (iii) or that otherwise do not comply with the Adyen MarketPay Terms and Conditions.
    6. In the event that after the provision of Sub-Merchant Services by Sub-Merchant there are additional payments due to the Sub-Merchant by a Payer, an additional Payment Request can be raised using the procedure specified on the Paynode platform.
    7. Sub-Merchant is solely responsible for the quality, accuracy and completeness of all data provided to Paynode. Where relevant, Sub-Merchant will ensure adequate technical and procedural security measures are implemented with respect to its systems and in particular with respect to its interfaces to ensure system integrity and protection against unauthorized third-party access and use of data that is processed hereunder, expressly including Sub-Merchant Data, payment transaction data and any personal data. Where PCI DSS or similar compliance standards are to be adhered to under applicable Scheme Rules, Sub-Merchant shall ensure it is and remains compliant with respect to the relevant standards. Sub-Merchant will indemnify and hold the Indemnitees (as defined below) harmless from Damages (as defined below) including fines from payment Scheme Owners and acquirers resulting from a breach of the obligations under this Section.
    8. Payment Requests must include all details as required by Paynode or Adyen.
    9. Part 380 Public Charter Restrictions: Sub-Merchant hereby acknowledges and agrees that the Sub-Merchant Services offered by Sub-Merchant in connection with Card Payment Transactions shall not include any services related to Part 380 public charter operations as defined by the U.S. Department of Transportation under 14 C.F.R. Part 380. 

 

4. American Express Related Transactions.

    1. If a Sub-Merchant accepts American Express as part of the Paynode Services, then the Sub-Merchant warrants and represents to Paynode that:
      1. It authorizes Paynode to submit Card Payment Transactions to, and receive settlement from, American Express on behalf of Sub-Merchant;
      2. It consents to Paynode disclosing Card Payment Transaction data, Sub-Merchant Data and other information about Sub-Merchant to American Express and its affiliates, subcontractors and employees and that such entities can use such information to under services, operate and promote American Express’ network, perform analytics and create reports and for any other lawful business purpose, including as described in the American Express Merchant Regulations;
      3. It understands that pursuant to the American Express Merchant Regulations, American Express states that it wants to help encourage its cardmemebrs to seek out and shop at small merchants that accept the American Express cards and that from time-to-time American Express amy include small merchants in cardmember offers, and that there is no additional cost to Sub-Merchant’s business to be included in these offers. Additionally, American Express provides in the American Express Merchant Regulations that for more information, Sub-Merchant can visit www.americanexpress.com/ShopSmallFAQs and click on the “Cardmember Offers” tab where Sub-Merchant can view offer terms and conditions, determine if Sub-Merchant’s business is an eligible small merchant that is included in any offers and access any available signage to promote customer offers, that Sub-Merchant is included in, to Sub-Merchant’s customers;
      4. It will display American Express’ marks and otherwise honor the American Express card in accordance with the American Express Merchant Regulations, including, without limitation:
        1. Sub-Merchant must accept the American Express card for goods and services (other than those goods and services prohibited under Section 3.3 of the American Express Merchant Regulations, unless otherwise permitted by American Express) sold, or (if applicable) for charitable contrubitions made, at all of Sub-Merchants establishments, except as expressly permitted by state stautes. Sub-Merchant agrees that it is jointly and severally liable for the oblgiations of Sub-Merchants establishments hereunder;
        2. Unless expressly permitted by applicable law, Sub-Merchant must not:
          1. Indicate or imply that Sub-Merchant prefers, directly or indirectly, any other payment products or any other method of payment (e.g., payment by check);
          2. Try to dissuade American Express cardmembers from using the American Express card;
          3. Criticize or mischaracterize the American Express card or any of its services or programs;
          4. Impose any restrictions, conditions, disadvantages or fees when the American Express card is accepted that are not imposed equally on all other payment products, except for electronic funds transfer or cash or check;
          5. Suggest or require American Express cardmembers to waive the right to dispute any transaction;
          6. Engage in activities that harm the American Express business or the American Express brand (or both);
          7. Promote any other payment products (except Sub-Merchant’s own private-label card that Sub-Merchant issues for use solely at Sub-Merchant’s establishments) more actively than Sub-Merchant promotes its cards; or
          8. Convert the currency of the original sale transaction to another currency when requiring authorization or submitting transactions (or both).
        3. Sub-Merchant may offer discounts or in-kind incentives from Sub-Merchant’s regular prices for payments in cash, ACH funds transfer, check, debit carr or credit/charge card, provided that (to the extent required by applicable law): (i) Sub-Merchant clearly and conspicuously discloses the terms of the discount or in-kind incentives to Sub-Merchant’s customers, (ii) the discount or in-kind incentve is offered to all of your prospective customers, and (iii) the discount or in-kind incentive does not differentiate on the basis of the issuer or, except as expressly premtited by applicable state statute, payment card network (e.g., Visa, MasterCard, Discover, JCB, American Express). Sub-Merchant agrees the offering of discounts or in-kind incentives in compliabce with the terms of this Section 4(a)(3) do not consitiute a violation of the provisions set forth in Section 3.2 of the American Express Merchant Regulations.
        4. It agrees that whenever payment methods are communicated to cusstomers, or when customers ask what payments are accepted, Sub-Merchant must indicate its acceptance of the American Express card and display American Express marks (including any American Express Card application forms American Express may provide) as prominently and in the same manner as any other payment products.
        5. It agrees that Sub-Merchant will not use American Express marks in any way that injures or diminishes the goodwill associated with the American Express mark, nor in any way (without American Express’ prior written consent) indicate that American Express endorses Sub-Merchant goods or services and that Sub-Merchant will only use American Express marks as permitted herein and pursuant to the American Express Terms and Conditions and will cease using American Express marks upon termination of these Paynode Terms and Conditions or the American Express Terms and Conditions.
        6. It agrees that except as otherwise specified, Sub-Merchant must not disclose cardmember information, or use or store it, other than to facilitate transactions at Sub-Merchant establishments in accordance with the terms and conditions herein and in the American Express Terms and Conditions. For more information, see Section 4.4 of American Express Merchant Regulations and Chapter 8 of American Express Merchant Regulations.
        7. It shall comply with the applicable website information display guidelines set forth in Section 13.4 of the American Express Merchant Regulations.
        8. It shall have requirements in place to enable it to comply with Chapter 4, Chapter 5, Chapter 8 and Chapter 11 of the American Express Merchant Regulations.
        9. It shall comply with the industry-specific requiremetns of Chater 12 of the American Express Merchant Regulations, as applicable.
        10. It shall maintain customer service information pursuant to Subsection 13.4.1 of the American Express Merchant Regulations.
        11. It will not process transactions or receive payment on behalf of, or (unless required by law) re-direct payments to any other party.
        12. It has refund policies for puchases on American Express cards that are at least as favorable as Sub-Merchant’s refund policy for purchases on any other payment product, and that the refund policy is disclosed to American Express cardmembers at the time of purchase and in compliance with applicable law.
        13. It has prohbitions against billing and collecting from any American Express cardmember for any purchase or payment on the American Express card unless a chargeback has been exercised, the Sub-Merchant has paid in full such charge and it otherwise has the right to do so.
        14. It is not a third-party beneficiary under the Agreement (as defined in the American Express Merchant Regulations).
        15. It will remove Americn Express marks from its website and wherever else they are displayed under termination of Sub-Merchant acceptance of the American Express card as part of the Paynode Services or as otherwise terminated.
        16. In the event that Sub-Merhant or Paynode is not able to resolve a claim against American Express, or a claim against Paynode or any other entity that American Express has a right to join in resolving a clairm, the American Express Merchant Regulations – US Appendix 1 (Arbitration Agreement (as to Claims involving American Express)), explains how claims can be resolved through arbitration. 

 

  1. Additional Provisions.
    1. EFT Process.
      1. Sub-Merchant authorizes Paynode or its applicable Affiliate to collect and deposit funds into and/or deduct funds from the bank account specified by the Sub-Merchant in the Sub-Merchant Onboarding Process.
      2. Sub-Merchant authorizes Paynode or its applicable Affiliate to:
        1. deposit funds into the designated bank account for payment of goods and services processed through the Paynode Services in the applicable currency for the jurisdiction;
        2. to deduct funds from the designated bank account for chargebacks, refunds and transactions reversed in accordance with Scheme Owner Rules and/or chargebacks, refunds and transactions reversed in accordance in connection with the Adyen Services, and/or fees owed to Paynode or its applicable Affiliate.
        3. debit and/or credit Sub-Merchant account ( “Account”), for any amounts owing by or owed to Sub-Merchant from time to time hereunder, including, without limitation, fees, charges and penalties payable by Sub-Merechant hereunder. Paynode will obtain Sub-Merchant’s authorization in advance of any sporadic debit or credit made on Account.
    2. Sub-Merchant shall provide to Paynode the Sub-Merchant’s tax identification number with the applicable taxing authority and immediately provide an updated tax identification number when applicable. If there are not sufficient Sub-Merchant Funds to offset, Paynode has the right to debit the necessary amount from Account.
    3. Upon creation of Sub-Merchant’s Currency Accounts, Paynode will direct Adyen to send disbursements from Payment Transactions to Sub-Merchant’s Currency Accounts.”

 

  1. Transaction Information.
    1. In order for Paynode to provide the Paynode Services and for Payment Solution Providers to provide the Payment Provider Services, Paynode shall, and Sub-Merchant agrees that Paynode will, use and disclose Sub-Merchant Data (as defined below) and other information provided to Paynode by Sub-Merchant in connection with the provision of the Paynode Services and Payment Provider Services. Sub-Merchant represents and warrants that it has the right to provide all Sub-Merchant Data to Paynode, and that the use of the Sub-Merchant Data in connection with the Paynode Services and related services provided by Paynode and as contemplated herein will not infringe, misappropriate or otherwise violate the rights of any third party. Sub-Merchant data may be used to perform analytics and create reports and any other lawful business purposes of Paynode, its service providers and Scheme Owners.
    2. The “Sub-Merchant Data” is information collected during Sub-Merchant Onboarding Process, and any supplemental information related thereto.
    3. Each Party shall treat as confidential all Confidential Information (as defined below) of the other Party, shall not use such Confidential Information for any purpose other than perform its obligations under these Paynode General Terms and Conditions and as otherwise authorized herein, and shall not disclose such Confidential Information to any third party or to such party’s representatives except those representatives who are required to have the Confidential Information in connection with such Party’s performance hereunder and who are bound by terms and conditions of confidentiality at least as stringent as those provided in these Paynode General Terms and Conditions. Without limiting the foregoing, each party shall use at least the same degree of care such party uses to prevent the disclosure of such Party’s own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other Party. Each Party shall promptly notify the other Party of any actual or suspected misuse or unauthorized disclosure of the other Party’s Confidential Information.
    4. A Party shall not be in breach of these Paynode General Terms and Conditions merely for disclosing Confidential Information as required by applicable statute, regulation, order, or other law, provided that (i) any such disclosure is made only to the extent so required, the disclosing Party, to the extent legally permissible, timely notifies the other party of the disclosure requirement prior to disclosure, so that the other Party may seek a protective order or confidential treatment, or take other appropriate measures to protect its interests, in which event such party will reasonably cooperate in such effort, and (iii) if timely notice cannot be given, the disclosing Party seeks to obtain a protective order or confidential treatment from the court or government for such Confidential Information.
    5. “Confidential Information” means any information or material disclosed by either Party to the other Party, directly or indirectly, in writing, orally, visually or by inspection of tangible objects that a party treats as confidential or proprietary, including, without limitation, any and all information relating to such party’s or its business partners’ research, development, know-how, products, product plans, services, customers, customer lists, markets, software, developments, inventions, processes, technology, designs, drawings, marketing, finances, or other business information or trade secrets, that is designated as “confidential”, “proprietary” or the like, or that should reasonably be understood to be confidential or proprietary under the circumstances.

 

  1. IT, Data and Payer Information Security.
    1. The Sub-Merchant cannot act as, or on behalf of, any Payer. The Sub-Merchant may only create Payment Requests and receive Sub-Merchant Funds pursuant to Paynode’s provision of the Processing Services. 
    2. Sub-Merchant agrees to immediately notify Paynode of any suspected, alleged or confirmed Compromised Data Event.  Sub-Merchant agrees that upon Sub-Merchant’s suspected or actual discovery of a Compromised Data Event, Sub- Merchant will not alter or destroy any related records.  Sub-Merchant will share with Paynode all information related to any actual or suspected Compromised Data Event, including, but not limited to, forensic reports and system audits; and allow Paynode access to Sub-Merchant and its Sub-Merchant’s facilities and records for the purpose of performing any inspection, examination and/or copying of books or files pertaining to the affected Payment Transactions.  Paynode may share such information with others as permitted under Applicable Law.  In the event of a suspected Compromised Data Event and/or violation of Applicable Law, Sub-Merchant must promptly take appropriate corrective action, subject to Paynode’s approval.  Paynode  shall be entitled to pass on to Sub-Merchant, and Merchant shall be solely responsible for paying, any costs, damages, fees and other liabilities related to any Compromised Data Event, including without limitation any costs, damages, fees and other liabilities that the Scheme Owners or government authorities may assess against Paynode, and/or the costs Paynode incurs for its investigation of the Compromised Data Event, including those associated with examinations and inspections.

 

  1. Payments and Settlement.
    1. Sub-Merchant agrees to the pricing and settlement terms set forth in the Paynode Fees Schedule located at http://academy.avinode.com/en/articles/4256436-paynode-fees-schedule (incorporated herin by reference).
    2. Card Settlement: Sub-Merchant Funds for all card types are disbursed to the Sub-Merchant’s Account once the following criteria are met:
      1. Sub-Merchant has confirmed that services have been rendered; and
      2. Adyen has received the Sub-Merchant Funds from the Scheme Owners.
    3. Card Settlement typically takes 2 business days (excludes statutory holidays in the country in which the Sub-Merchant is located).
    4. Payment Requests, Instant Payments and Beneficiary Payments are subject to certain reviews for compliance with legal and regulatory requirements.  Sub-Merchant Funds are not confirmed or available to the Sub-Merchant pursuant to the Paynode Services until the review is complete and the status of the Payment Request, Instant Payment or Beneficiary Payment is set to “Payment Confirmed” in the Paynode Platform. Sub-Merchant acknowledges and accepts the risk of non-payment, if Sub-Merchant elects to provide Sub-Merchant Services before the status of the Payment Request shows as “Payment Confirmed” in accordance with this Section.

 

  1. Representations, Warranties, Covenants and Limitation of Liability.
    1. Neither Party shall be liable to the other for failure to perform hereunder when such failure to perform is due to any natural disaster, fire, flood, storm, strike, terrorist event, act of war, labor unrest, acts of God, equipment or power interruption (when not due to the negligence of the non-performing Party, its employees and contractors) interruptions in the telephone or Internet systems, failures in third party computer software or hardware or any cause beyond the non-performing Party’s reasonable control.
    2. Paynode makes no warranties or representations with respect to the Paynode Services or Payment Provider Services.
    3. Sub-Merchant acknowledges that the Payer is the purchaser of the Sub-Merchant Services pursuant to these Paynode General Terms and Conditions and that Paynode (including its respective Affiliates) takes no title or risk on any product or service supplied by Sub-Merchant in connection with Sub-Merchant’s provision of the Sub-Merchant Services to Payer.  Any dispute arising under Payer’s use of the Sub-Merchant Services is a matter between the Sub-Merchant and the Payer.
    4. Without limiting any other warranties made hereunder, Sub-Merchant represents, warrants and covenants to Paynode and with the submission of each Payment Transaction reaffirms that:
      1. (a) it has full power and legal right to execute and deliver these Paynode General Terms and Conditions and to perform its obligations hereunder, (b) no authorization or approval from any third party is required in connection with Sub-Merchant’s execution, delivery or performance of these Paynode General Terms and Conditions, and (c) in performing its obligations under these Paynode General Terms and Conditions it does and will comply with all Applicable Laws and Operating Procedures;
      2. it is duly qualified and is properly licensed to do business, and is in good standing (a) in each jurisdiction in which the conduct of its business requires it to so qualify or be licensed, and (b) with each Regulatory Authority having jurisdiction over it; and Sub-Merchant has, and shall at all times maintain, all necessary licenses, permits, approvals, and registrations under Applicable Law, in each case which are required to perform its obligations hereunder, including providing the Sub-Merchant Services and receiving the Payment Provider Services;
      3. in connection with Sub-Merchant’s submission of each Payment Transaction that: (a) each Payment Transaction is genuine and arises from a bona fide transaction, permissible under Applicable Law and the Operating Procedures, by the Payer directly with the Merchant for respective Sub-Merchant Services purchased; (b) each Payment Transaction has been entered into for primarily business purposes, and not for family, personal or household purposes, and (c) with respect to each Payment Transaction, Sub-Merchant has no knowledge or notice of any fact, circumstance or defense that would indicate that such Payment Transaction is fraudulent that would otherwise impair the validity or collectability of that Payer’s obligation arising from that Payment Transaction with respect hereto.
    5. UNDER NO CIRCUMSTANCES SHALL PAYNODE BE LIABLE TO SUB-MERCHANT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF ATHE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDED, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR SUCH PARTY’S LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE. SUB-MERCHANT AGREES THAT NONE OF PAYNODE, ITS RESPECTIVE AFFILIATES, NOR ITS AND THEIR DIRECTORS, OFFICERS, SUBCONTRACTORS, AGENTS AND EMPLOYEES, SHALL BE LIABLE TO SUB-MERCHANT FOR ANY CLAIMS, LIABILITIES OR EXPENSES RELATING TO (I) THE PAYNODE PLATFORM AND PAYNODE SERVICES, OR (II) THE PAYMENT PROVIDER SERVICES, FOR AN AGGREGATE AMOUNT IN EXCESS OF THE TOTAL FEES PAID BY SUB-MERCHANT TO PAYNODE FOR SUCH SERVICES DURING THE IMMEDIATELY PRECEDING CONTRACT YEAR, OR $10,000, WHICHEVER IS LESS. ADDIIOTNALLY, SUB-MERCHANT AGREES TO ABIDE BY THE LIMITATION OF LIABILITY PROVISION SET FORTH IN THE AMERICAN EXPRESS TERMS AND CONDITIONS.

 

  1. Indemnification.
    Sub-Merchant agrees to indemnify, defend and hold harmless Paynode and its Affiliates, and their respective directors, officers, employees, subcontractors and agents  (the “Indemnitees”), from and against any and all liabilities, obligations, damages, injuries, penalties, claims, demands, actions, suits, judgments and any and all costs, fines, expenses or disbursements (including attorneys’ fees and expenses) of whatsoever kind and nature of whatsoever kind and nature imposed on (“Damages”), asserted against or incurred by any of the Indemnitees in any way relating to or arising out of:
    1. death or personal injury caused by the negligence of Sub-Merchant or its agents or subcontractors;
    2. breach of these Paynode General Terms and Conditions by Sub-Merchant;
    3. gross negligence, fraud, or willful misconduct of Sub-Merchant;
    4. infringement of a third party’s intellectual property rights by Sub-Merchant;
    5. non-compliance by Sub-Merchants to Applicable Laws, the Adyen MarketPay Terms and Conditions, or Operating Procedures, including, without limitation, any fines imposed by the Scheme Owners or by Regulatory Authorities on Paynode or Adyen as a result of such noncompliance; and
    6. any VAT, turnover and other taxes or levies including penalties, interests, surcharges (“Taxes”) due on any product or service of Sub-Merchant and any costs or damages related to such Taxes. Sub-Merchant shall apply all reasonable efforts to ensure that Paynode cannot be held liable for any Taxes and costs or damages thereto, shall promptly inform Paynode of any such liability and shall provide Paynode with all relevant information and documentation in that respect.

 

  1. Subcontracting.
    Paynode may subcontract any or all of its obligations hereunder.

  2. Third-Party Beneficiaries 
    These Paynode General Terms and Conditions are intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person; provided that American Express has the beneficiary rights, but not the obligations, to these Paynode Terms and Conditions to fully enforce these Paynode Terms and Conditions against Sub-Merchant for American Express card transactions executed hereunder.

 

  1. Entire Agreement.
    These Paynode General Terms and Conditions along with the Avinode General Terms and Conditions represent the entire agreement between the Parties relating to subject matter hereof and supersedes any inconsistent terms and conditions contained in any other agreement between the Parties. Except as specifically provided in Paynode Fees Schedule, these Paynode General Terms and Conditions can be amended unilaterally from time to time by Paynode. These Paynode General Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Florida, USA.  Each of the Parties hereto agrees to the exclusive jurisdiction and forum of the federal and/or state courts located in Miami-Dade County, FL, USA.

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