KoalaPays Terms and Conditions

Safe Payments Solutions S.R.O., in the future referred to as “Company”, incorporated in Czech Republic under registration number 06419526, the registered office of which is Kameníčkova 1114/2, Žabovřesky, 616 00 Brno, Czech Republic, is trading as ‘KoalaPays’ and are the issuer of the electronic money to you, in the future referred to as “Merchant”.

 

The Company and the Merchant may be referred to as a “Party” and collectively as the “Parties” in these Terms and Conditions.

 

KoalaPays™ is a wholly owned brand of the Company.

 

RECITALS:

 

I. Restricted Countries, Prohibited Entities, Designated Nationals and Politically Exposed Persons.

  1.  The Company may choose not to develop a relationship with any the Merchant whose country of origin is, or who has any identified principals, senior management, individuals with significant control, or beneficial owners residing in a country that is identified on the Consolidated list of persons, groups and entities subject to EU financial sanctions.
  2. The Company will check the identity of all listed and/or identified principals, senior management, individual with significant control, and beneficial owners of the Merchant against relevant governmental sanctions list, such as the Consolidated list of persons, groups and entities subject to EU financial sanctions.
  3. Should any of the individuals identified in I.2 above be on the mentioned list, the Company may choose not to develop a relationship with the Merchant. This decision shall be at the Company’s absolute and unfettered discretion.

 

II. The Merchant understands and agrees that the Services provided by the Company are for the provision of payment services only, and that the Company is not, does not and will not be involved in any manner in the commercial Transactions between the Merchant and the Merchant’s Customers.

 

III. The Merchant agrees it will not, nor will it allow any of its management, staff, agents or representatives of any kind make any representations of any kind to its Customers, prospective customers, any other person, company, law enforcement agency, regulatory agency or any entity that the Merchant has any relationship with the Company other than that the Merchant utilises the Services of the Company to process payments from the Merchant’s Customers to the Merchant under these Terms and Conditions.

 

  • I - Definitions
    • A. As used in these Terms and Conditions, the following terms have the following meanings:

      B. “Account” means an Account that is provided by the Company, through its Regulated Provider, which includes at least one e-Wallet and may include multiple e-Wallets.

      C. “Account Holder” or “Holder” means an individual or an organisation that is rightfully in possession of an Account.

      D. “Account Payment” means the Services which provides the ability for a Customer of the Merchant who has an Account to send funds to the Merchant’s Account as payment for the use, purchase and/or investment in the Merchant Products and/or Merchant Services.

      E. “API” means an Application Program Interface which the Company may supply to the Merchant or which the Company and the Merchant may work together to develop and implement to allow program-to-program communications between the Company and the Merchant.

      F. “Beneficial Owner(s)” means any individual or entity owning, directly or indirectly, twenty- five percent (25%) or more of the Merchant’s common (voting) stock for low to moderate risk merchants, and ten percent (10%) or more for high risk merchants.

      G. “Business Agreement” means the document so named and completed by the Merchant at the time of onboarding.

      H. “Business Day(s)” means any day on which the Company is open for business, not including any gazette public holidays and/or bank holidays in Czech Republic. Any day in these Terms and Conditions not referenced as a Business Day shall mean a calendar day.

      I. “Card Organisation” means Visa® Incorporated, MasterCard® International Incorporated and China UnionPay or any other payment card organisation, such as American Express® International, Diners Club® International, JCB and so forth.

      J. “Compliance Violations” means situations where the Merchant violates any of these Terms and Conditions.

      K. “Customer” means an individual or entity who has a commercial relationship with the Merchant. A Customer may or may not have an Account with the Company.

      L. “e-Wallet” means the Account that is provided to each Account Holder into which funds can be loaded, transferred or spent using methods provided by the Company. e- Wallets may be provided in different currencies.

      M. “Identification Documentation” means the KYB documentation that must be provided by the Merchant and approved by the Company prior to the Company allowing the Merchant to process its first Transaction.

      N. “Know Your Business” and/or “KYB” means the process by which the Company identifies and validates the legal status of the Merchant and determines if the Company can provide the Merchant with a Merchant Account, and allow the Merchant to receive funds as a result of valid Transactions.

      O. “Merchant Account” means the Account that is provided to the Merchant by the Company. Such Merchant Account will consist of one (1) or more e-Wallet(s).

      P. “Merchant Account Transfer” means a transaction in which the Merchant makes a secure on- line payment and/or transfers funds from its Merchant Account to any other Account electronically.

      Q. “Merchant Application” means the document so named and completed by the Merchant at the time of onboarding.

      R. “Merchant Bank Account” means the Merchant’s bank account at a registered bank to which the Company is allowed to transfer Settlement Funds.

      S. “Merchant Website(s)” means any website owned, sponsored, allowed, provided by, or affiliated with the Merchant in any manner on which the Merchant Products and/or Merchant Services are offered to Customers for sale, use, and/or investment.

      T. “Payment Reference Number” means the reference number provided by the Merchant to their Customer to allow the Company to identify a wire transfer from a Customer through a Request Payment User transfer of funds.

      U. “Merchant Products and/or Merchant Services” means the merchant products and/or merchant services that the Merchant offers to its Customers including any investment related offerings.

      V. “Programme Marks” means the KoalaPays name and logo, and any other brands and/or logos that the Company may add at any time.

      W. “Regulated Provider” means KoalaPays and any appropriately regulated company or companies selected by the Company to provide payment services and/or issue electronic money (which services/issuance, notwithstanding anything herein, shall be subject to the law of the jurisdiction of such company) on behalf of the company who are also principal members of the relevant Card Organisation for issuing payment instruments and/or acquiring payment transactions.

      X. “Request Payment Users” means the Company Services which provides the ability for a Customer to send funds to the Merchant via the Company when the Customer does not have an Account with the Company.

      Y. “Reserve” means funds that are retained by the Company in the Company bank account. No interest will be paid to the Merchant on the funds that are held in this bank account.

      Z. “Reserve Requirement” means the funds that will be held by the Company to mitigate any reasonable risk that the Merchant cannot meet chargeback, refunds and reserve requirements.

      AA. “Services” means the standard e-Wallet Account, all Account maintenance functionality, all transaction processing functionality and all other functionality provided by the Company. Directly or through it Regulated Provider all Services are presented and branded with the Company logos and other product/services identifications.

      BB. “Settlement Funds” means the value of funds that the Company is required to pay to the Merchant on the Settlement Date.

      CC. “Settlement Date” means the date on which the Company will pay the Merchant for Transactions processed by the Company.

      DD. “Settlement Delay” means the number of days in arrears that the Company will pay the Settlement Amount to the Merchant.

      EE. “SEPA” means the Single European Payments Area, dealing solely in the Euro currency.

      FF. “Segregated Account” means the Account in which are deposited Account Holder funds. the Merchant’s Funds are deposited in this Segregated Account until they are paid out to the Merchant.

      GG. “Sponsored Account” means an account created by the Merchant from his Merchant Account or by the Merchant’s customer through a link provided by the Merchant.

      HH. “Transaction(s)” means an exchange or transfer of funds from a Customer or an Account Holder to the Merchant for the purchase of goods and/or services offered by the Merchant to Customers

      II. “Ultimate Beneficial Owner(s)” means a person who enjoys the benefits of ownership even though ownership/title to some form of property and/or a company may be in another name.

  • II - Merchant Identification - Know Your Business Documentation, Merchant Information and Other General Requirements
    • (a) Merchant Identification and Know Your Business (“KYB”) Documentation.

      • (i) The Merchant must provide, at minimum, the Identification Documentation as shown in the Business Agreement provided at the time of onboarding.
      • (ii) The purpose of the identification documentation is to establish the identity of the Beneficial Owners and controllers of the Merchant. Without proof of the identity of the Beneficial Owners and controllers of the Merchant, the Merchant will not be approved.
      • (iii) The Company reserves the right in its sole discretion to approve or deny this documentation, and/or to change the Identification Documentation requirements at any time.
      • (iv) The Merchant may not be provided with any reason that Identification Documentation is rejected/disapproved, other than that the Identification Documentation is illegible or must be provided in colour.
      • (v) The Merchant may be provided a conditional approval so that the Merchant may commence work on integration with the Company. However, the Merchant must provide and have approved all Identification Documentation within thirty (30) days of the Company granting such conditional approval and prior to the Merchant gaining access to an e-Wallet or prior to the Merchant making any transactions.
      • (vi) Should the Merchant provide any documentation that the Company deems, in its absolute and unfettered discretion, to be counterfeit or fake the Merchant may not be approved. If the Merchant has already been given conditional approval prior to this finding by the Company, the Merchant’s conditional approval will be immediately terminated.
      • (vii) The Merchant understands and accepts that should the Merchant provide any documentation identified to be counterfeit or fake the Company will report the Merchant to relevant authorities, and if ordered, will provide such documentation to the relevant authorities, as is required by relevant law, and/or the Company licenses.

      (b) Identification and Registration of the Merchant’s websites.

      • (i) The Merchant must provide the Company with the URLs of any and all the Merchant Websites on which the Merchant intends to offer its Merchant Products and/or Merchant Services to Customers.
      • (ii) The Company will in its absolute and unfettered discretion validate each URL and provide the Merchant with an approval or denial decision on whether the Merchant can accept Transactions through the Merchant Website, including the jurisdictions from which the Merchant Website is able to accept traffic
        • (1) Should the Company reject/deny the Merchant Website, the Company will provide the Merchant with the reasons for such rejection/denial. The Merchant may modify such Merchant Website according to the Company’s requirements and resubmit such Merchant Website for reconsideration by the Company.
        • (2) Should the Merchant offer its Merchant Products and/or Merchant Services on any Merchant Website to any Customer or any other entity for which payment can be through the Company’s Services that has not been approved by the Company, the Merchant hereby confirms liability for all such actions and agrees that the liquidated damages are accepted as a fair estimate of the cost to the Company for such actions.

      (c) Disclosure of Products and/or Services Sold on the Merchant’s Registered Websites.

      • (i) The Merchant represents and warrants that the description of its business and the description of the Merchant Products and/or Merchant Services provided at the time of onboarding is true and accurate.
      • (ii) Should the Merchant change, add to, subtract from or in any manner modify its Merchant Products and/or Merchant Services, the Merchant agrees to notify the Company at least five (5) Business Days prior to such change, addition to, subtraction from or in any manner modification of such Products-Services.
      • (iii) Should the Merchant change, add to, subtract from or in any manner modify its Merchant Products and/or Merchant Services without notifying the Company according to the conditions of Section 2.(c)(ii) above, these Business Agreement may be terminated by the Company without prior notice to the Merchant. Should the Company choose not to terminate the Business Agreement, the Merchant accepts the liquidated damages mentioned in the Business Agreement.

      (d) Other General Requirements.

      • (i) Billing and Processing Services. Should the Merchant utilise the services of a billing and/or processing entity, the Company will require that the Merchant provide certain documentation on the processing and/or billing entity which may include full KYB on the entity and/or a copy of the billing and processing agreement with that entity.
      • (ii) Remote Offices and Agents. Should the Merchant be organised in one country and have business offices, remote offices, or employ the services of agents in another country, the Merchant will be required to provide proof that the business office, remote office or the agent has the legal right to operate in the country where the Merchant is not organised.
      • (iii) The Merchant is expressly prohibited from making any representations or inferences of any kind to its Customers, prospective customers, any other person, company, law enforcement agency, regulatory agency or any entity that funds paid to the Merchant by a Customer for a Transaction, or by the Company for any reason, are held in the Company’s Segregated Account or that such funds are secured by the National Bank of the Czech Republic or any other such authority.
      • (iv) The Merchant is expressly prohibited from making any representations or inferences of any kind to its Customers, prospective customers, any other person, company, law enforcement agency, regulatory agency or any entity that the Company’s authority to issue electronic money and provide additional financial services applies to or covers the Merchant or the Merchant’s business.
      • (v) The Merchant must provide the Company with a contact name, address and telephone number of an individual within the Merchant that has the authority to act in the name of the Merchant.
      • (vi) Should the Merchant not comply with any of the conditions of this Section 2.(d), the Merchant shall pay liquidated damages according to the schedule-of-such amounts as provided in the Business Agreement.
  • III - Nature and Term of Engagement
    • (a) Term. Subject to the termination rights set forth herein, the term of the Business Agreement shall be three (3) years from the Effective Date. Thereafter the Business Agreement shall be automatically renewed for one (1) year terms, unless either Party gives the other Party written notice of its intention not to renew at least thirty (30) days prior to the last day of the then current term, in which event the last effective date of the Business Agreement shall be the last day of the then current term.

      (b) Termination by the Merchant. As long as the Merchant is not in default under these Terms and Conditions and has paid the Company all fees, costs and other amounts then due to the Company, the Merchant may terminate the Business Agreement at any time, with or without cause, on thirty (30) days written notice to the Company.

      • (i) Once the Merchant notifies the Company of its intention to terminate the Business Agreement and close its Account, it may withdraw any remaining funds in its the Merchant Account, subject to any Reserve Requirement, by requesting a wire transfer for the funds remaining in the Merchant Account less a “Wire Issuance Fee” which will be deducted from the Merchant Account.
      • (ii) Should the Merchant not have withdrawn the remaining funds in the Merchant Account prior to termination of the Business Agreement and sixty (60) Business Days have expired since the termination event, the Merchant should contact the Company to discuss how to redeem such remaining funds.

      (c) Termination by the Company.

      • (i) The Company may terminate the Business Agreement at any time, with or without cause, on thirty (30) days written notice to the Merchant.
      • (ii) The Company may terminate the Business Agreement at any time immediately upon notice (whether in writing, by e-mail, fax or otherwise) to the Merchant if the Company believes, in its sole discretion, that the Merchant has engaged, is engaging, or will or may engage, in any activities or omissions to act that: (1) are illegal or potentially illegal; (2) have subjected, are subjecting and/or will or may subject, either the Merchant, or the Company (including for purpose of this Section any of its officers, directors, employees or shareholders), to a fine or other civil or administrative penalty, review, audit, heightened scrutiny, or change in administrative or legal status; (3) have infringed, are infringing, and/or will or may infringe on the rights of third parties; (4) are, will or may be detrimental to the past, present or future business or reputation of the Company; (5) constitute a breach of the Merchant’s covenants, representations and warranties, as contained in these Terms and Conditions; or (6) if required to do so by any Card Organisation; or (7) if directed to do so by a governmental agency having authority to do so; or (8) by a court of competent authority having jurisdiction over these Terms and Conditions.
      • (iii) Following termination by the Company, the Merchant may withdraw the remaining funds from the Merchant Account, subject to any Reserve Requirement according to the terms of Section 9.(c)(i)

      (d) Suspension in Lieu of Termination. In lieu of termination for any of the above reasons, the Company shall have the right, but not the obligation, to suspend the Business Agreement to allow the Merchant to remedy the cause of such suspension. The Company may convert such suspension to a termination at any time, for any reason or no reason, in its absolute and unfettered discretion.

  • IV - Description of the Services and Delivery Commitment
    • Services. The Company will, following provision and approval of Know Your Business documentation, provide the Merchant the Merchant Account and allow the Merchant to commence utilisation of the Services as are presently operational to process Transactions.

  • V - Merchant Account
    • (a) Merchant Account receipt of funds via a “Request Payment Users’ transaction” or “RPU transaction”. Through this process the Merchant shall have the ability to receive funds into its Merchant Account from Customer Transactions where their Customer does not hold an Account.

      • (i) The Merchant may provide a payment reference number to their Customer and the Company will allow the Customer to instruct the Customer’s bank to transfer the funds identified by that payment reference number to the Company and the Company will transfer such funds directly to the Merchant’s Account.
      • (ii) The Merchant may also utilise an API, as agreed between the Company and the Merchant, to initiate a RPU transaction.
      • (iii) The Merchant’s Customer does not have to hold an Account for the Merchant to receive payment by this RPU transaction service, but is required to comply with the information requirements of EU Regulation 2015/847 and the Company’s AML Policy, and provide the necessary information to accompany transfers of funds as required by the Company.
      • (iv) Fees for the RPU transaction service payable by the Merchant are as identified in the Business Agreement and will be deducted from the Merchant’s Account.

      (b) Merchant Account receipt of funds via Account Payment Transactions. Through this process the Merchant shall have the ability to receive funds into the Merchant Account from Customer Transactions where the Customer does hold an Account.

      • (i) An Account Holder may use the payment functionality of their Account to make purchases on the Merchant’s website for the Merchant’s Goods and/or Services.
      • (ii) Merchant fees for this service are as documented in the Business Agreement and will be deducted from the Merchant’s Account at the time of the Transaction.

      (c) Pay-Out of the Merchant’s Funds to the Merchant’s Bank Account.

      • (i) The Merchant must register its external business bank account with the Company.
      • (ii) The Company will authenticate the validity of this registered external bank account.
      • (iii) Subject to 5(d) below funds from the Merchant’s Account will only be transferred to the Merchant Bank Account.

      (d) Pay-Out of the Merchant’s Funds to Another Bank Account.The Merchant may request the Company to transfer the Merchant’s Funds to a bank account that is not in the Merchant’s name (hereinafter the “Nominee Bank Account”), however, in order for the Company to approve funds transfers to this Nominee Bank Account:

      • (i) The Merchant must register this bank account with the Company.
      • (ii) The Company must have authenticated the validity of this registered external bank account.
      • (iii) The Company must ensure comprehensive due diligence has been performed on the owner of the bank account to its satisfaction.
      • (iv) The Merchant may be required supply the Company with written documentation authorising the Company to transfer the Merchant’s funds to this bank account.
  • VI - Availability of Services
    • The Company shall use all commercially reasonable efforts to maintain its Services in operation twenty-four (24) hours per day, seven (7) days per week and three hundred and sixty-five (365) days per year; provided, however, that the Company shall have no liability whatsoever for its failure to provide its Services where such failure results from a cause set out in Section 19, and in all other circumstances the Company’s liability shall be limited in the manner described in Section 16.

  • VII - Fees
    • (a) Fee Amounts.

      • (i) The Merchant shall pay the Company the setup fees set forth in the Business Agreement.
      • (ii) The Merchant agrees that the Fee Schedule included in the Business Agreement identifies the Fees that will be charged to the Merchant when a Transaction takes place. These Fees will be deducted from the Merchant’s Account balance.
      • (iii) The Company shall have the right to deduct any funds owed to the Company under the Business Agreement from any account opened by the Merchant with the Company.

      (b) Modification of Fees. The Company reserves the right, upon not less than fifteen (15) days prior written notice to the Merchant, to modify its Fees, or to add new charges from time to time. Upon receipt of a notice of such an increase or of new charges, the Merchant may, by written notice to the Company, received by the Company at least seven (7) days prior to the date such price increase or new charge becomes effective, terminate the Business Agreement. Should the Merchant terminate the Business Agreement pursuant to this Section 7(c), the notice provided pursuant to this Section 7(c) shall be deemed to be sufficient notice of the Merchant Termination pursuant to Section 3(b) of the Business Agreement but, otherwise, all other conditions, terms and provisions of Section 3 of the Business Agreement shall govern such termination.

      (c) Compliance Review of Features and Fees: The Merchant’s Account and all features within the Account are subject to compliance reviews as mandated by the Company’s AML policy and/or directives of any regulatory agency having jurisdiction over the Business Agreement. These compliance reviews will address the legality and/or commercial viability of:

      • (i) Any or all of the Services that are being supplied to the Merchant; and
      • (ii) The Fees that are being assessed to the Merchant for delivery of those features.

      Should a compliance review identify any Service that has to be disabled or any Fees that are to be increased at the Company’s sole discretion, the results of any such compliance review will be, to the extent the Company in its absolute and unfettered discretions shall determine, be made available to the Merchant.

      As a result of the compliance review modifications including, but not limited to, the following may be implemented:

      • (i) Certain features may be disabled due to commercial considerations or as directed by a regulatory agency;
      • (ii) Fees may be increased due to commercial considerations; and/or
      • (iii) Additional Fees charged for increased features to satisfy commercial considerations or to remain in compliance with the rules and regulations set by any relevant regulatory or legal entities (including, inter alia Card Organisations) having jurisdiction over the Business Agreement, the Company or the Merchant.

      (d) Compliance Violations: Should the Merchant violate any of the Terms and Conditions, such violation shall be considered a Compliance Violation. Any Compliance Violation must be cured immediately and in any event within five (5) days of notice to the Merchant by the Company. Notwithstanding any cure, the Merchant accepts the liquidated damages according to the schedule of such amounts as provided in the Business Agreement in respect of all such Compliance Violations.

  • VIII - Fines and Liquidated Damages
    • (a) Fines:

      • The Merchant shall be responsible for any fine levied against the Company or its Regulated Provider as a result of the Company processing the Merchant’s Transactions, by any authority having jurisdiction over the Business Agreement, except for a situation in which the Company has not complied with the rules and regulations of the relevant fining authority or the terms and conditions of the Business Agreement.

      (b) Liquidated Damages:

      • The Merchant may be assessed for any of the liquidated damages as identified in the Business Agreement for violation of any relevant Terms and/or Conditions. With respect to such liquidated damages the Parties: (i) agree that the injury caused by the Merchant by its actions or omissions as contemplated by the Business Agreement would be difficult or impossible for accurate estimation; and (ii) agree that the sums stipulated in the Business Agreement are a genuine and reasonable pre-estimate of any such loss.
  • IX - Reserves
    • (a) Reserve Amount

      • (i) If required by the Company, the Merchant expressly authorises the Company to establish a Reserve pursuant to the terms and conditions set forth in this Section 9. The initial amount of the Reserve (“Initial Reserve Amount”)which shall be established in accordance with the terms and conditions of the Business Agreement.Upon:
        • (1) the occurrence of the Merchant Event of Default; or
        • (2) the provision of notice of termination of the Business Agreement by any Party hereto,

        the Merchant expressly authorises the Company to increase the amount maintained in the Reserve. Such amount shall be determined by the Company, in their sole discretion, but will not exceed the sum of nine (9) months of Chargebacks, plus two (2) months of credits/adjustments, plus the value of any goods and/or services billed in advance of fulfilment, plus the amount of any fees or discounts due to the Company, plus the amount of any current or anticipated fees, fines, assessments.

        The calculation for the credits and Chargeback portion of the Reserve Account will be based upon the Merchant’s processing history and anticipated risk of loss to the Company.

      (b) Reserve Account; Security Interest.

      • (i) Subject to the conditions described in Section 9.a, if a Reserve is required to receive additional and/or new funding such Reserve Account must be funded immediately, and may be funded by all or any combination of the following: (i) one or more debits to the Merchant’s Account; (ii) one or more deductions or off sets to any payments otherwise due to the Merchant. Within any permissible funding period, the form of the Reserve Account funding may be determined by the Merchant. Thereafter, or in the event that the funding is to be immediate, the Company will elect in which form(s) the Reserve Account will be funded. All funds in any Reserve Account will be held by a bank of the Company’s sole discretion for the period set forth in the Business Agreement after termination of the Business Agreement or for such longer period of time as is consistent with the Company’s liability for Transactions.
      • (ii) The Merchant’s funds held in a Reserve Account may be held in a pooled Reserve Account for all of the reserve funds of the Company’s customers, without involvement of an independent escrow agent. During the period in which Reserve Funds are held in a Reserve Account, the Company agrees to review and recalculate the Reserve Account on a quarterly basis (the “Reserve Account Periodic Review”). the Company will notify the Merchant of any refunds amounts which may be due, after the Reserve Account Periodic Review. Any Reserve Account refund will be made via credit to the Merchant’s Account, within ten (10) business days after the end of the applicable quarter-end.
      • (iii) If the Merchant’s funds in the Reserve Account are not sufficient to cover the Chargebacks, adjustments, fees and other charges due from the Merchant, or if the funds in the Reserve Account have been released, the Merchant agrees to promptly pay the Company such sums upon request. In the event of a failure by the Merchant to fund the Reserve Account, the Company may fund such Reserve Account in the manner set forth in subsection 9. (b), (i), above.
      • (iv) To secure the Merchant’s obligations to the Company under these Terms and Conditions the Merchant grants to the Company a first priority lien and security interest in and to any of the Merchant’s funds relating to the Transactions contemplated by the Business Agreement now or hereafter in the possession of the Company, whether now or hereafter due or to become due to the Merchant from the Company. Any such funds, money or amounts may be pooled with other funds of the Company.

      (c) Reserve Account; Distribution/Payout of Reserves.

      • (i) The Company will release Reserve Funds to the Merchant according to the schedule identified in the Business Agreement.
  • X - Right to Reverse Transactions
    • The Company shall have the right to reverse any Transaction if the Company determines in good faith that the Transaction was unauthorised, duplicate, wrongful, in breach of these Terms and Conditions, erroneous, illegal or fraudulent.

  • XI - Representations and Warranties
    • With the Merchant’s full understanding that the Company is expressly and directly relying on the following representations and warranties in agreeing to enter into the Business Agreement and to provide services hereunder, the Merchant hereby makes the following representations and warranties to the Company:

      • (a) Strict Compliance with Laws, Rules and Regulations. The Merchant does, and at all times during the term of the Business Agreement will, operate its business in strict compliance with all laws and regulations applicable to its business to the highest legal and ethical standards
      • (b) Libel, Intellectual Property, etc. The Merchant’s website(s) and products/services being offered for sale do not, and at all times during the term of the Business Agreement will not contain any material which is libellous, slanderous, defamatory, or which will violate or infringe upon or will otherwise give rise to any adverse claim with respect to any common law or other right of any person or other entity, including, without limitation, patent rights, copyright rights, trademark rights, service mark rights, trade name rights, literary, artistic, and dramatic rights, idea submission rights, privacy rights and all other civil, personal and proprietary rights.
      • (c) Use of the Company’s Services. The Merchant will not during the term of the Business Agreement use any of the Company’s products/services in any manner, or in furtherance of any activity, which constitutes a violation of any law or regulation or which may cause the Company to be subject to investigation, prosecution or legal action.
      • (d) No Reselling of Accounts. The Merchant will not use its Business Account to market or resell the Accounts, although it may use its Business Account to create accounts for resellers, Sponsored Account Holders and employees.
      • (e) Legal Advice. The Merchant has had ample opportunity to consult with a lawyer regarding the Business Agreement, and either did so or voluntarily declined to do so.
  • XII - Confidentiality
    • (a) Confidential Information. The Company and the Merchant acknowledge and agree that in the course of fulfilling their obligations hereunder, each Party may have access to information or material that is commercially valuable to both companies and not generally known in the industry (“Confidential Information”). Confidential Information includes but is not limited to:

      • (i) the terms of the Business agreement;
      • (ii) any and all versions of proprietary computer software and any documentation related thereto;
      • (iii) technical information concerning products and services, including product data and specifications, know-how, formulae, diagrams, flow charts, drawings, source code, object code, program listings, test results, processes, inventions, research projects and product development;
      • (iv) any and all versions of any designs, patents, trademarks or copyrightable works, discoveries, formulae, processes, manufacturing techniques, trade secrets, inventions, improvements, ideas, business plans;
      • (v) information concerning each Party’s business, including cost information, profits, sales information, accounting and unpublished financial information, business plans or strategies, markets and marketing methods, the Merchant lists and the Merchant information, sponsor lists and sponsor information, purchasing techniques, supplier lists and supplier information and advertising strategies;
      • (vi) information concerning employees, including salaries, strengths, weaknesses and skills;
      • (vii) information submitted by each Party’s the Merchants, suppliers, employees, or co-venturers for study, evaluation or use; or,
      • (viii) any other information not generally known to the public or by actual or potential competitors of the Company and/or the Merchant, which, if misused or disclosed, could reasonably be expected to adversely affect either Party’s business.

      (b) Non-disclosure. The Company and the Merchant acknowledge and agree that: (i) all Confidential Information of each Party is the sole and exclusive property of such Party and is regularly used by such Party in the operation and conduct of each of their respective businesses, and that the unauthorised disclosure of Confidential Information would have a material adverse effect on the business, operations and competitive position of the Party whose information was thus disclosed; (ii) neither Party will at any time divulge to any person or entity, orally or in writing, directly or indirectly, in whole or in part, any Confidential Information of the other, without both Parties’ explicit prior written consent; (iii) both Parties will receive and maintain all Confidential Information in strictest confidence using reasonable care; (iv) any violation or breach of these Terms and Conditions may result in significant and irreparable injury, a remedy at law may be inadequate, and in the event of any such violation or breach, the Parties, in addition to any other relief to which they may be entitled, shall be entitled to temporary and permanent injunctive relief.

      (c) Exception. Notwithstanding anything in these Terms and Conditions to the contrary, neither Party has any duty of non-disclosure with respect to Confidential Information that: (i) was in that Party’s possession or already known to that Party without an obligation to keep it confidential, before such information was disclosed, is publicly available at the time of disclosure or that becomes publicly available after disclosure other than through breach of these Terms and Conditions or other wrongful act; (ii) is disclosed by either Party with mutual prior written approval; (iii) is disclosed to either Party by a third party who is not in breach of its own obligation of confidentiality; (iv) either Party develops independently other than through breach of these Terms and Conditions; or (v) is required to be disclosed under operation of law, or pursuant to a Financial Institution or Card Organisation request, or in respect of a court, administrative or governmental order.

      (d) Survival. The provisions of this Section shall continue for so long as the either Party remains in possession of Confidential Information and shall survive the termination of these Terms and Conditions for any reason.

  • XIII - Card Organisation and/or Regulatory Demand
    • (a) Demands to Revise or Discontinue Services. If a Card Organisation, Financial Institution, Regulated Provider any governmental and/or regulatory agency, or a court of competent jurisdiction having jurisdiction over the subject matter of these Terms and Conditions makes a demand that either the Company discontinue or substantially modify its products/services, either Party in its sole discretion may terminate this Agreement upon written notice to the other, in which case neither Party shall be deemed to be in default by reason of such termination.

      • (i) Alternatively, the Company may amend or revise these Terms and Conditions, its rules, its policies and procedures to comply with such Regulatory Demand.
      • (ii) The Merchant hereby agrees to accept to and abide by all such amendments and revisions within ten (10) days after receipt of such revisions or immediately if required by such Card Organisation, Regulated Provider or regulatory agency. However, the Merchant may terminate the Business Agreement upon written notice to the Company during that ten (10) day period and shall not be deemed to be in default by reason of such termination.
  • XIV - Intellectual Property
    • The Merchant hereby acknowledges and agrees that nothing in these Terms and Conditions, or any of the documents or transactions referenced herein, shall be deemed to transfer, assign, grant or license any right, title or interest of any kind in, and that the Merchant shall at no time have or acquire any right or claim to, any intellectual property generated, created, produced, purchased, owned by or licensed to the Company, including, without limitation, any rights in the Company’s trademark or any other service mark, trade dress, photograph, video graphic work, audio ideographic work, text, program or other intellectual property appearing in, on, at or in association with the Company or any site or advertisement thereof. Upon termination of the Business Agreement for any reason, all right, title and interest in and to the Company’s intellectual property shall remain with the Company, the Merchant shall have no right to the use thereof, and the Merchant shall immediately cease the use of all such intellectual property in any manner whatsoever.

  • XV - Indemnification
    • Notwithstanding anything else contained herein, as material consideration to induce the Company to enter into these Terms and Conditions, the Merchant hereby agrees to indemnify, defend (with counsel reasonably acceptable to the Company), protect and hold harmless the Company and its officers, directors, shareholders, sponsored entities and persons, employees, agents, representatives and attorneys (collectively “Representatives”) from and against any and all claims, causes of actions, demands, judicial and administrative proceedings, liabilities, forfeitures, errors, damages, costs and expenses (including without limitation, reasonable attorney’s fees and attendant costs and expenses, whether or not suit is filed or proceedings instituted thereon), directly or indirectly arising in connection with these Terms and Conditions or the various subject matters hereof, or the performance or non-performance by either Party of its obligations hereunder, or relationships created hereby, or any breach or default in the Merchant’s performance of any of its obligations hereunder, or any of the Merchant’s partners, shareholders, officers, directors, employees, managers, members, agents, representatives, Sponsored Accounts, agents or representatives, whether or not intentional or negligent, and whether or not covered by insurance. Without limiting the foregoing, any reference in these Terms and Conditions to indemnification shall be governed by this Section.

  • XVI - Liability of the Company
    • In no event shall the Company or any persons or entities associated therewith be liable for any direct, indirect, punitive, incidental, special or consequential damages arising out of or in any way connected with these Terms and Conditions or the subject matters hereof (including, without limitation, damages for loss of business profits, business interruption or loss of business information) even if the Company has been advised of the possibility of such damages. Because of the extreme difficulty of fixing actual damages for any failure of the Company to perform its obligations hereunder or from any failure of the Company to perform any obligations imposed by law, the Merchant agrees that the Company’s entire liability, and the Merchant’s exclusive remedy, for any claim for damages against the Company arising out of these Terms and Conditions or the various subject matters hereof, or the performance or non-performance by the Company of its obligations hereunder, whether grounded in contract or in tort, shall be limited to liquidated damages in the amount of the fees paid to the Company by the Merchant in connection with the affected transaction, and no more. The provisions of this Section apply even though the loss or damage, irrespective of cause or origin, results directly or indirectly, either from performance or non-performance of obligations imposed by these Terms and Conditions.

  • XVII - Disclaimer of Warranty
    • The Company disclaims all warranties, express or implied, written or oral, including but not limited to warranties of merchantability and fitness for a particular purpose. The Merchant acknowledges that the services provided by the Company hereunder may not be uninterrupted or error free.

  • XVIII - Guarantee
    • One or more of the officers, directors or principals of the Merchant may be required by the Company to provide a personal guarantee of the Merchant’s obligations hereunder. For this purpose, a principal is any officer or director of the Merchant and any equity holder holding more than twenty-five percent (25%) of the total outstanding equity interest in the Merchant for low to moderate risk merchants and ten percent (10%) for high risk merchants.

  • XIX - Force Majeure
    • If the Company cannot perform any of its obligations due to events beyond its control, such failure to perform shall not constitute a breach of these Terms and Conditions, and the time provided for performing such obligations shall be extended by a period of time equal to the duration of such events. Events beyond the Company’s control include, but are not limited to, acts of God, war, civil commotion, labour disputes, equipment failures, strikes, fire, flood, earthquake or other casualty, shortages of labour or material, Card Organisation’s rules, processing failures beyond its control, bank failures, government regulation or restriction, weather conditions, breaches or failures to perform by third parties, technical problems, including hardware and software crashes and other malfunctions, disruptions on account of or caused by vandalism, theft, phone service outages, Internet disruptions, viruses, and mechanical, power or communications failures. If, after the date of these Terms and Conditions, any law, regulation, or ordinance, whether federal, state, or local becomes effective which substantially alters the Company’s ability to perform services hereunder, the Company shall have the right to terminate the Business Agreement, with notice, if reasonably possible, effective upon the earlier of (i) the date upon which the Company shall be unable to provide its customary services hereunder, or (ii) thirty (30) days following written notice.

  • XX - Maintenance of the Merchant Bank Account
    • (a) Maintenance of Account. At all times during the term of these Terms and Conditions, the Merchant shall maintain a business bank account (the “the Merchant Bank Account”) where the Merchant can make Withdrawals.

      • (i) The Merchant Bank Account must be in the name of the Merchant unless the Merchant has request that the Company deposit the Merchant’s Funds into a Nominee Bank Account according to the conditions identified in Section 5(d) of these Terms and Conditions.

      (b) Balance for Fees and Returns. Should there ever be any amount of Fees or expense due the Company under these Terms and Conditions that the Company cannot debit against the Merchant’s Account, then within forty-eight (48) hours of notice from the Company of such insufficiency, the Merchant shall either replenish the Merchant Account or make other payment arrangements acceptable to the Company.

  • XXI - General Provisions
    • (a) Relationship Between Parties. The Parties to these Terms and Conditions are independent contractors and nothing in these Terms and Conditions shall make them joint venturers, partners, employees, agents or other representatives of the other Party hereto. Neither Party shall make any representation that suggests otherwise.

      (b) Use of the Company Program Marks and the Company Brands. The Company hereby grants to the Merchant a non-exclusive, revocable, royalty free licence for the duration of the Business Agreement to use, reproduce and display the Company’s Program Marks and the Company Brands in accordance with these Terms and Conditions of the, and any other instructions issued in writing by the Company from time to time. The Merchant shall have the right to use the Company’s Program Marks and Brands on its registered and approved the Merchant Website(s) to allow the Company as a payment mechanism.

      (c) Assignment. The Merchant may not transfer or assign any of its rights or duties under these Terms and Conditions without the prior written consent of the Company, which consent the Company may withhold or condition at its sole and absolute discretion. The Company may assign all or any of its rights and duties under these Terms and Conditions at any time without notice. In no event will any transfer or assignment relieve the Merchant or any of its principals of any liability to the Company under these Terms and Conditions unless such liability is expressly waived in writing by the Company.

      (d) Notices. Except where specifically provided for to the contrary, all notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given: (i) if delivered personally; or, (ii) three (3) days after mailed by certified or registered mail, postage prepaid, return receipt requested; or, (iii) upon transmission, if sent by prepaid telegram, telex, email or fax and a receipt of transmission is obtained, in each case addressed to the Party to receive notice, at the address or fax number specified herein, or at such other address or fax number as the Parties may provide from time to time, in the manner prescribed herein for the delivery of notices. The Company’s address for receipt of notice is:

      Safe Payments Solutions s.r.o.
      Kameníčkova 1114/2, Žabovřesky, 616 00 Brno, Czech Republic
      Email address: businesssupport@koalapays.com

      (e) Taxes. Each Party shall report and pay all taxes imposed on its revenues or income by any jurisdiction. If the Company is required to pay any such taxes on the revenues or income of the Merchant, the Merchant shall immediately reimburse the Company for the amount of such taxes and all related interest, fines and penalties. If excise, sales or use taxes are imposed, the payment of such taxes shall be the Merchant’s responsibility. the Company shall have the right to collect and pay over taxes in the nature of an excise, sales or use tax on behalf of the Merchant if reasonably required to do so by a taxing authority of competent jurisdiction. If the Company makes any such payment, the Merchant shall immediately reimburse the Company for the amount of any such taxes and related fines, penalties and interest.

      (f) Governing Law. These Terms and Conditions shall be governed by and construed in accordance with the laws of Czech Republic, without regard to any principles of conflicts of laws thereof. Venue for any suit or claim arising out of or related hereto, except for allegations that the Merchant has infringed or have threatened to infringe the Company’s intellectual property rights, shall exclusively be in the courts of Czech Republic, and by entering into the Business Agreement the Merchant irrevocably consents to the jurisdiction of the courts of Czech Republic. If the Company alleges that the Merchant has infringed or has threatened to infringe the Company’s intellectual property rights, then in addition to any other rights and remedies the Company may have, the Company may seek preliminary or permanent injunctive relief from any court of competent jurisdiction, and any such claims shall be governed by the laws of Czech Republic, without regard for any principles or conflicts of laws thereof.

      (g) Claims: Any claim that the Merchant seeks to initiate arising out of or related to these Terms and Conditions must be brought within one (1) year of the event giving rise to the claim.

      (h) Severability. If any term or provision of these Terms and Conditions shall be held invalid or unenforceable to any extent under any applicable law by a court of competent jurisdiction, the remainder of these Terms and Conditions will not be affected thereby, and each remaining term and provision of these Terms and Conditions shall be valid and enforceable to the fullest extent permitted by law.

      (i) Waiver. No waiver by either Party of the breach of any covenant shall be construed as a waiver of any preceding or succeeding breach nor shall the acceptance of any fee or other payment during any period in which either Party is in default be deemed to be a waiver of such default. All waivers must be in writing and signed by the waiving Party.

      (j) Lawyer’s fees. If suit, action or arbitration is brought to enforce or interpret any provision of these Terms and Conditions, or the rights or obligations of any Party hereto as they relate to the subject matter of these Terms and Conditions, the prevailing Party shall be entitled to recover, as an element of such Party’s costs of suit, and not as damages, all reasonable costs and expenses incurred or sustained by such prevailing Party in connection with such suit or action or arbitration, including, without limitation, attorneys’ fees and expenses and court costs.

      (k) Authority. By agreeing to these Terms and Conditions, the person applying on behalf of the Merchant represents to the Company that the Merchant’s governing body or person(s): (i) has authorised the Merchant to agree to these Terms and Conditions and to assume the duties and obligations set forth herein; and (ii) the Merchant has obtained all necessary, regulatory approvals and certificates to provide any services it intends to offer the Merchants.

      (l) Effectiveness of these Terms and Conditions. These Terms and Conditions shall not be effective until the Business Agreement has been signed by the Company, and the Company has received and approved completed supporting required “Know Your Business” documentation from the Merchant. Until then, the Merchant’s execution and delivery of these Terms and Conditions shall only constitute an offer, contingent on approval by the Company.

      The Merchant’s submitted KoalaPays Business Account Application, which if approved by the Company, completes the requirement stated in (l) above, unless additional information is required and is included in these Terms and Conditions by reference.

      The Merchant represents and warrants that all of the information submitted on the KoalaPays Business Account Application is true and accurate to the best of their knowledge. Submission of any information on the KoalaPays Business Account Application that is later found not to be true and accurate shall constitute a violation of these Terms and Conditions and may result in immediate cancellation of these Terms and Conditions by the Company.

      (m) Survival of Representations and Warranties. All representations and warranties of the Merchant contained herein shall survive the execution of these Terms and Conditions.

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