Terms and conditions
THIS RETAILER SERVICES AGREEMENT is a legally binding agreement by and among Etail Depot US, Inc, a District of Columbia corporation (“Etail Depot”), doing business as etailplace.com and you, the retailer accessing these Services (“Retailer”), and is made as of the date of Retailer’s acceptance of this Retailer Services Agreement or as of the date of Retailer’s initial access to or use of the Services (the “Effective Date”).
WHEREAS, Retailer has signed up on a Marketplace website or mobile application, operated by a third-party Marketplace, in order for Retailer to be able to sell its good and/or services to End Users;
WHEREAS, Etail Depot, doing business as etailplace.com provides payment processing capabilities and related services to the Marketplace and to retailers who are authorized to sell their goods or services on the Marketplace website or mobile application; and/>
WHEREAS, Etail Depot, doing business as etailplace.com desires to provide payment processing capabilities and related services to Retailer, and Retailer desires to receive such payment processing capabilities and related services from Etail Depot, in each case on the terms and conditions set out in this Retailer Services Agreement;/>
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which having been acknowledged, Retailer and Etail Depot hereby agree as follows:/>
1. DEFINITIONS. Capitalized terms used in this Retailer Services Agreement shall have the meanings set out in the General Terms Schedule or elsewhere in this Retailer Services Agreement./>
2. TERM. This Retailer Services Agreement shall commence upon the Effective Date and continue for an indefinite period of time (the “Term”), unless terminated as stipulated elsewhere in the Retail Services Agreement (including as stipulated in the General Terms Schedule)./>
3. SCHEDULES. The following Schedules are integral parts of this Retailer Services Agreement and are incorporated by reference:/>
4. REPRESENTATIONS AND WARRANTIES. Upon execution of this Retailer Services Agreement and any amendment hereto, each Party represents and warrants to the other that: (i) it has the power and authority to grant the rights and perform the obligations set forth in this Retailer Services Agreement; (ii) the execution of this Retailer Services Agreement by the person representing it is sufficient to render the Retailer Services Agreement binding upon such Party; (iii) this Retailer Services Agreement will be a valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) the performance of its obligations under this Retailer Services Agreement does not violate applicable law or breach any other agreement to which such Party is bound.
5. ENTIRE AGREEMENT. This Retailer Services Agreement constitutes the entire agreement between the Parties with respect to its subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations and communications, written or oral, with respect to such subject matter hereof. In entering into this Retailer Services Agreement, no Party has relied upon any statement, representation, promise or assurance of the other Party except as expressly stated herein.
GENERAL TERMS SCHEDULE
1.DEFINITIONS AND INTERPRETATION
1.1Definitions. In the Agreement, unless specified otherwise or the context otherwise requires, capitalized terms that are not otherwise defined when used shall have the meaning given to such terms in the Definitions Schedule.
1.1.1 etailplace.com means the trade name under which Etail Depot US Inc conducts its business.
1.2Interpretation. In the Agreement, unless specified otherwise or the context otherwise requires:
1.2.1A reference to a statute, statutory provision or law is a reference to it as amended or re-enacted and includes any subordinate legislation made under it from time to time, as amended or re-enacted. A reference to guidance is to it as amended or re-issued.
1.2.2Any words following the terms “including,” “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3A reference to writing or written includes email.
1.2.4A person includes any natural person, corporation, unincorporated association or organization, governmental authority, firm, partnership or other entity, whether or not having legal status.
1.2.5A reference to a company shall include any company, corporation, trust or other body corporate, wherever and however incorporated or established.
1.2.6A reference to a section, subsection, clause or a Schedule is a reference to a section, subsection, clause or a Schedule to this Agreement.
1.2.7Section, subsection, clause and Schedule headings shall not affect the interpretation of this Agreement.
1.2.8Words in the singular shall include the plural and words in the plural shall include the singular.
1.2.9In the event of any inconsistency or conflict between any provision of this Agreement and the Rules, the Rules will govern with respect to such inconsistency or conflict. In the event of any inconsistency or conflict between the provisions in this Agreement, the following order of precedence shall apply with respect to such inconsistency or conflict (first takes precedence):
(i)The Retailer Services Agreement;
(ii)The Schedules incorporated by reference into the Retailer Services Agreement; and
(iii)The Application.
2.PROVISION OF SERVICES
2.1Services Generally; US Regulated Activities; Waiver; Pre-Approval.
2.1.1Services Generally. In consideration of the payment of the Fees by Retailer and subject to Retailer’s continued compliance with the terms and conditions of this Agreement, Retailer hereby agrees to receive and Etail Depot hereby agrees to provide Retailer with the Services in accordance with the terms of this Agreement. The terms, conditions and specifications regarding the delivery of the Services shall be as described in this Agreement, including the Schedules to this Agreement.
2.1.2US Regulated Activities. Notwithstanding anything to the contrary contained in the Agreement, Etail Depot is a party to the Agreement solely for the purpose of Etail Depot’s performance of US Regulated Activities pursuant to the Services Schedules or as otherwise agreed in its sole and absolute discretion. This includes without limitation Etail Depot’s performance of APM Settlement and Remittance services. Etail Depot hereby represents that Etail Depot: (i) is either properly licensed under applicable law in the Territory or has otherwise received an exemption to provide such US Regulated Activities; and (ii) is reasonably capable of performing the US Regulated Activities.
2.1.3Pre-approval. At Etail Depot’s sole discretion, Retailer may be allowed to go live prior to completion of KYC Requirements in a limited scope as following:
(i)Limited period – up to thirty (30) calendar days from Retailer’s first Transaction;
(ii)Limited volume – up to $[___] ([___] Dollars) during the limited period; and
(iii)Limited Payment Methods – only VISA and Mastercard Cards issued in Territory issuers.
These limitations shall be lifted once and for as long as Retailer fully satisfies Etail Depot’s KYC Requirements. Etail Depot reserves the right to change the aforementioned terms upon notice.
IMPORTANT: should Retailer fail to complete the KYC Requirements to Etail Depot’s satisfaction, Retailer’s account shall be suspended, all processed amounts shall be refunded to End Users and Etail Depot shall hold Retailer liable for all costs and expenses incurred by Etail Depot in the process.
2.2Retailer’s Business. Etail Depot shall provide the Services solely to Retailer and only Retailer has the right to use the Services. Etail Depot is only required to provide the Services pursuant to the terms of this Agreement in respect of Retailer’s business as set out in the Application at the Effective Date and only to the extent permitted by Applicable Law. Retailer must obtain Etail Depot’s prior written consent, such consent not to be unreasonably withheld, before making any change to the type of goods and/or services sold by Retailer which commonly fall within Retailer’s business or change to Retailer’s trade name and, in each case, as set out in the Application and for which the Services are being provided. With respect to any such changes, Etail Depot may require additional industry-specific terms and conditions to Etail Depot’s services.
2.3Etail Depot’s Platform. Etail Depot may provide the Platform to enable the Retailer to use the Services through Marketplace’s website or mobile application, with such use of the Platform being subject to the terms and conditions provided in this Agreement, provided that Marketplace is responsible for (i) providing Retailer with access credentials, and managing Retailer’s access, to Marketplace’s website or mobile application and (ii) receiving Transaction information and communicating them to Etail Depot; and (iii) otherwise managing payments requests on behalf of Retailer. Retailer acknowledges that Etail Depot will only be able to process Transactions and settle to Retailer the Remittances amount for the Transactions the Marketplace submits to Etail Depot on Retailer’s behalf; Etail Depot shall not be liable for any failure or delay on the part of the Marketplace in relation to the foregoing.
2.4General Terms Schedule. For each of the Services to be provided to Retailer, this General Terms Schedule to this Agreement shall apply in respect of the Service being received.
2.5Additional Countries or Regions. Etail Depot, either directly or through its network of Providers and Affiliates, may offer its Services and Platform in numerous countries and regions. It is Retailer’s sole responsibility to specifically request Etail Depot for the receipt of the Services and access to the Platform in any country or region that is not the Territory or to receive domestically mandated Services (as required by Applicable Law to Retailer’s operations), and in each of the foregoing cases, Retailer and Etail Depot (or one of its Affiliates or Providers from its network) shall negotiate, in good faith, the terms and conditions, including applicable Fees, for the performance of such Services, which shall be memorialized in a mutually agreeable written amendment of this Agreement or other separate written agreement.
2.6Services Schedules. Each Services Schedule shall set forth: (i) a description of the Etail Depot Services to be furnished by Etail Depot pursuant to such Services Schedule, and (ii) such additional terms and conditions applicable to such Services described therein. The terms of a Services Schedule shall apply solely with respect to the applicable Services referenced therein. Each Services Schedule shall be deemed to incorporate the provisions of this General Terms Schedule as though such provisions were set forth therein in their entirety. In the event of any inconsistency of conflict between the General Terms Schedule and the terms of any Services Schedule, the terms of the Services Schedule shall govern for such Services provided in the Services Schedule.
2.7 Retailer’s Third-Party Agreements; Marketplace Acting on Behalf of Retailer.
2.7.1 Retailer’s Third-Party Agreements. Retailer is responsible for its compliance with its agreement(s) and dealings with any third-party person directly contracting with the Retailer, including any agreement(s) and dealings that Retailer has with the Marketplace. Etail Depot will not be responsible or liable for Retailer’s relationship with, or any agreement Retailer maintains with, Marketplace, for Retailer’s access to or use of the Marketplace’s services, or for the Marketplace providing, performing, or otherwise making available the Marketplace’s services to Retailer. Marketplace will not be acting on behalf of Etail Depot in providing, performing, or otherwise making available Marketplace’s services and Marketplace will be responsible for all aspects of providing, performing, or otherwise making available Marketplace’s service to Retailer.
2.7.2 Marketplace Acting on Behalf of Retailer. Retailer acknowledges and agrees that, from time to time, Marketplace may submit or modify Transactions and related instructions/communications on behalf of Retailer. Etail Depot is entitled to accept Marketplace’s submission or modification of Transactions and related instructions/communications as if accurately made and consented to by Retailer. Retailer agrees that all actions of a Marketplace as related to this Agreement will be deemed to be actions by Retailer under this Agreement, and Retailer accepts full responsibility and liability for any and all acts and/or omissions of Marketplace as related to this Agreement, including, but not limited to, acts of negligence (whether active, passive or gross negligence), intentional misconduct or fraudulent acts. In addition to all other indemnity obligations contained elsewhere in this Agreement, Retailer agrees to at its expense and upon demand indemnify, defend and hold harmless Etail Depot Indemnified Parties from Losses, which Etail Depot suffers or incurs in relation to any actions or omissions of the Marketplace acting on behalf of Retailer.
2.7.3 Transaction Guidelines. Retailer is bound at all times with the following Transaction guidelines:
(i) Valid Transactions. Only valid Transactions between Retailer and a bona fide End User in amounts which represent and correspond with a bona fide sale of goods or services by Retailer to the End User are permitted. Marketplace is authorized to present Transactions for collection and payment on behalf of Retailer. Such presentments are subject to Etail Depot’s acceptance and presentment procedures, as may be modified by Etail Depot from time to time.
(ii) Invalid Transactions. An invalid Transaction includes a Transaction: (1) that constitutes a refinancing, that results from the transfer of an End User’s obligation that has been determined to be uncollectible, that arises from the refusal of an End User’s personal cheque, or that did not originate as a result of a Transaction directly between Retailer and an End User; and (2) that has previously been processed or declined through Etail Depot, a Provider, or through another acquirer or payment service provider.
2.7.4 Transaction Data Retention Requirements. Retailer must securely retain in readable format all written or electronic data and documents with respect to each Transaction, data transmitted by End Users, conversation and correspondence logs, documents transmitted and post-Transaction actions such as Chargebacks and Refunds. Retailer must retain this data and documents for at least three (3) years following the relevant Transaction unless earlier deletion is required by Applicable Law. Retailer shall not store any Card security code or data. Promptly upon Etail Depot’s request, Retailer shall make the data and documents available to Etail Depot and provide Etail Depot with proof that each Transaction presented to Etail Depot for processing hereunder was processed in accordance with the Rules and the terms of this Agreement.
2.7.5 Specific Transaction Disclosures to End Users. Retailer will provide adequate disclosures to, and consents with, End Users (e.g. duration, charge(s) and frequency, timing, specific terms and conditions, delivery times and cancellation and refund policy). Retailer further acknowledges that deviation from applicable Rules may require a Refund to the End User of any or all of the amounts paid by the End User.
2.7.6 Chargebacks And Fraud. Etail Depot may charge back the amount of a Card Transaction for which the Cardholder disputes having authorized the charge. Retailer assumes sole liability for any and all Chargebacks, including the Fees payable in respect thereof, and shall reimburse Etail Depot for any sums paid to Retailer that are subsequently the subject of a Chargeback, provided that Etail Depot may at its sole discretion elect to collect Fees and/or Chargebacks in accordance with Etail Depot’s other rights and remedies set forth in the Agreement (including by Etail Depot electing to collect Chargebacks in the manner set forth in Section 7.3 of this General Terms Schedule). A Transaction in an attempt to collect a Chargeback may not be initiated. Etail Depot shall promptly represent Chargebacks, as requested by Marketplace on Retailer’s behalf, to the extent representment is permissible under the Rules and subject to Retailer’s payment of any applicable Fees. Retailer shall at all times comply with applicable Chargeback Ratios and Fraud Ratios. Retailer further acknowledges that Payment Schemes and/or Etail Depot may impose Assessments where Retailer exceeds the Chargeback Ratio or Fraud Ratio. In the event that Retailer exceeds any Chargeback Ratio or Fraud Ratio, or Retailer enters into any of the Payment Schemes’ Chargeback, fraud or audit programs (e.g., MasterCard’s Global Merchant Audit Program or Visa’s Merchant Fraud Programs), Etail Depot has the right, in its sole discretion, to suspend all or part of the Services or to impose additional Fees.
2.7.7 Chargeback Representments. In certain Transactions, Marketplace may on Retailer’s behalf initiate a chargeback representment for the purpose of appealing certain chargebacks, subject to Retailer’s payment of applicable Fees for the chargeback representment. Retailer agrees to assist Etail Depot when requested, at Retailer’s expense, to investigate any of the respective Transactions. It shall remain Retailer’s and Marketplace’s responsibility to prove to the reasonable satisfaction of the relevant Provider that the charge of an End User’s account was Authorized by such End User. Etail Depot shall bear no responsibility or liability as to the Provider’s performance or decisions in such matters. Following such efforts any decision or determination of the relevant Provider as to the validity and extent of any Chargeback shall be final and binding. The chargeback representment services are designed to support Retailer’s decision-making. These representment services are always subject to the adequacy of the information/documentation provided to Etail Depot. The recommendations of these representment services may not be viewed or relied upon as a legal advice or as a guaranty or warranty to the authenticity or legality of the Transaction or the submitted information/documentation. Retailer must review the results and apply its own discretion.
2.8 Acquirer’s Role. Etail Depot may select one or more third-party Acquirers from time to time to provide the Acquiring Services for Card Transactions in the Territory. As of the date hereof, the selected Acquirer to provide the Acquiring Services in the Territory is the Bank. For the avoidance of doubt, if the Agreement provides for APM services, Bank will not provide any services in connection with APMs. Subject to the requirements of applicable Card Scheme Rules, Etail Depot and Bank have allocated their respective rights, duties and obligations between themselves as they deem appropriate at their sole discretion.
3. TERMINATION
3.1 Termination Rights. In addition to any other termination rights set forth in this Agreement, this Agreement may be terminated before the end of the Term as follows:
3.1.1 Convenience. Any Party to this Agreement may terminate this Agreement at any time by giving at least one (1) month’s prior written notice to the other Party.
3.1.2 Insolvency. By any Party if the other Party hereto is unable to pay its debts when due or becomes subject to bankruptcy, insolvency or equivalent procedures in any applicable jurisdiction, including having a receiver, manager, provisional liquidator, liquidator or administrator appointed in respect of any material part of its assets or suffering a seizure or execution of an order in respect of a material portion of its property, or if a petition is presented for the winding up or liquidation of the other Party and such petition is not released, satisfied or withdrawn within thirty (30) days of the filing thereof;
3.1.3 Etail Depot’s Breach. By Retailer if Etail Depot breaches this Agreement and has not remedied such a breach within thirty (30) days of receipt of written notice thereof from Retailer (unless such breach is not capable of remedy);
3.1.4 Retailer’s Breach. By Etail Depot if Retailer breaches this Agreement or any of its agreement(s) with any third-party person directly contracting with the Retailer and has not remedied such a breach within thirty (30) days of receipt of written notice thereof from Etail Depot (unless such breach is not capable of remedy);
3.1.5 Etail Depot’s Additional Termination Rights. By Etail Depot immediately upon written notice to Retailer if:
(i) Etail Depot reasonably suspects or believes that Retailer is using the Services in connection with any unlawful, unauthorized, dishonest, fraudulent, wrongful or criminal activities or is otherwise is in violation of Applicable Laws or Rules or through any act or omission has damaged or threatens to damage the goodwill, reputation or business of Etail Depot or any Provider;
(ii) Etail Depot is required to do so by the Bank, a Provider, or a Regulator pursuant to Rules or Applicable Laws;
(iii) Etail Depot becomes aware of facts or circumstances relating to Retailer or arising from or incidental to Retailer’s business or the conduct of Retailer’s business (including trading practices or individual activity) that Etail Depot, in its sole discretion, considers (1) disreputable or capable of damaging a Provider’s or Etail Depot’s reputation, (2) detrimental to a Provider’s or Etail Depot’s business, or (3) may or does give rise to fraud or any other criminal activity or suspicion of fraud or any other criminal activity;
(iv) Any circumstance, event or series of events that Etail Depot has reasonable grounds to believe materially adversely affects or may materially adversely affect Retailer’s ability to fully and promptly perform and comply with any one or more of its obligations under this Agreement, including, without limitation, the following circumstances or events (1) material changes in the goods and/or services supplied by Retailer, (2) material increase in Retailer’s Chargeback levels relative to expected volume, (3) the occurrence of fees, fines, penalties or charges as a result of Retailer’s failure to comply with the provisions of this Agreement, the Rules or Applicable Law, (4) a change of control in respect of Retailer, (5) Retailer receives instructions from a Regulator which Retailer does not or is unable or unwilling to comply with, and/or (6) a material deterioration in Retailer’s financial position; or
(v) Etail Depot’s agreement with the Marketplace terminates.
3.2 Termination of Provider-specific Services. Etail Depot shall have the right to terminate any portion of the Services relating to any Provider for which (i) Etail Depot’s agreement with the relevant Provider has been terminated, or (ii) the relevant Provider fails to have a valid license to operate in the Territory.
3.3 Suspension Rights. Without limiting any other rights available to Etail Depot under this Agreement, Applicable Law or otherwise, in the event that Etail Depot suspects or determines, in its sole discretion, that there is a credible legal, regulatory, fraud, financial, or reputational risk to Etail Depot or a Provider associated with the provision of any Service, unauthorized access or compromise of the account security, a failure by Retailer to comply with this Agreement, any Transaction otherwise fails to comply with any Applicable Laws or Rules or Etail Depot suspends Marketplace’s receipt of any of Etail Depot’s accesses or services, Etail Depot may, in its sole discretion, for any period of time, suspend the provision of any or all of the Services or the Platform or restrict certain or all functionalities and/or access permissions. Such suspension may be for as long as Etail Depot deems necessary or appropriate to protect its rights before terminating this Agreement, if at all, and Retailer acknowledges that Remittances and any other amounts owing to Retailer hereunder may be withheld during such period. Etail Depot shall exert best commercial efforts to provide a prior written notice to Retailer of any suspension of Services.
3.4 Effects of Termination. Upon the termination of this Agreement for any reason, (i) Retailer shall immediately pay to Etail Depot all outstanding Fees and other amounts owed, if any, by Retailer under this Agreement; (ii) Etail Depot may exercise its right to offset any outstanding Fees and other amounts owed to Etail Depot from any amounts held by Etail Depot; (iii) Retailer’s rights to use the Services, the Marks, the Platform and any other rights granted in this Agreement shall immediately cease; and (iv) Retailer shall immediately return and/or destroy all documents and information in its possession in accordance with the provisions of the Confidential Information Schedule. The termination of this Agreement for any reason shall not affect any rights, obligations or liabilities accrued before the date of termination (including any obligations to pay Fees and other amounts accrued and owing pursuant to this Agreement) and all provisions regarding indemnification, warranty, liability and limits, confidentiality and protection of proprietary rights and trade secrets, and any provisions which expressly or by their nature are required to survive termination in order to achieve their purpose, shall so survive until it shall no longer be necessary for them to survive in order to achieve their purpose.
4. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
4.1Representations, Warranties and Undertakings of the Parties. As at the Effective Date, and for the duration of the Term hereof and any applicable survival period, each Party represents, undertakes and warrants to the other that:
4.1.1 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms for the duration of the Agreement;
4.1.2 The execution, delivery and performance of this Agreement will not conflict with or violate any Applicable Law;
4.1.3 It is not involved and will not be involved in any act that constitutes or can be reasonably expected to constitute fraud or other illegal activity, including but not limited to, money laundering, under any Applicable Law;
4.1.4 There is no action, suit or proceeding at law or in equity now pending or, to the best of its knowledge, threatened by or against or affecting it which would impair its right to carry on its business as now conducted or affect its financial conditions or operations or its ability to perform its obligations under this Agreement;
4.1.5 It shall at all times comply with the Data Protection Schedule and Confidential Information Schedule;
4.1.6 It is the sole and exclusive owner or is the authorized licensee of its Marks and all intellectual property rights as well as in the materials provided to the other Party under this Agreement, and any license granted to the other Party under this Agreement relating to the use of any of the foregoing is duly authorized; and
4.1.7 It has been given the opportunity to obtain independent legal advice in connection with this Agreement and that it is entering this Agreement with full knowledge of the contents herein.
4.2 Representations, Warranties and Undertakings of Retailer. As at the Effective Date, and for the duration of the Term hereof and any applicable survival period, Retailer further represents, undertakes and warrants that:
4.2.1 Unless Retailer and Etail Depot have agreed to abide by the terms and conditions detailed in a Card Present Services Schedule, it will not process pursuant to this Agreement any face-to-face Transactions without Etail Depot’s prior written confirmation;
4.2.2 It has obtained and shall continue to maintain during the Term of this Agreement all necessary regulatory approvals, permits, certificates and licenses to lawfully conduct its business as applicable to the Services rendered hereunder, including, without limitation, the required regulatory approvals, certificates and licenses to operate Retailer’s websites, and to sell any goods or provide any services to End Users in and from the applicable jurisdiction;
4.2.3 With respect to any necessary regulatory approvals, permits, certificates and licenses to lawfully conduct its business as applicable to the Services rendered hereunder, Retailer maintains compliance with its obligations under such approvals, permits, certificates and licenses, including, without limitation, any obligations to: (i) restrict underaged persons’ access to such services; (ii) prevent access to its services from jurisdictions where it is not specifically licensed; and (iii) prevent the use of its services for the purpose of laundering money;
4.2.4 Any and all information and documentation provided by Retailer to Etail Depot, including Retailer Information, is and shall at all times remain true, accurate, complete and up-to-date and no information, document or statement provided, or made available to Etail Depot is knowingly untrue, false, incorrect, incomplete or misleading;
4.2.5 To the extent it has access to any such data, Retailer shall not sell, purchase, provide, exchange or in any manner disclose Payment Method or Transaction data, including the primary account number (PAN), payment account reference (PAR), or token (as such terms are used in the Rules), End User Data, or personal information of any individual other than as permitted by the Rules and Applicable Law or in response to a valid governmental, regulatory or court order;
4.2.6 Except as were declared by Retailer in the Retailer Information and/or Application and approved by Etail Depot, (i) it will use the Services only to transact for Retailer’s own account for Retailer’s own business through Retailers own Locations and not on behalf of any third party; and (ii) it does not provide any type of payment services to any company or any business organization without Etail Depot’s prior written confirmation;
4.2.7 It will abide by all relevant accounting principles which apply to Retailer and record the Transactions that Etail Depot processes in the accounting records of the business, fully and properly in accordance with those accounting principles, Applicable Law, and the Rules;
4.2.8 It will pay all relevant taxes as required by Applicable Laws and the Rules relating to all Transactions, their Settlement and Remittance; and
4.2.9 It will comply with the Payment Scheme Rules relating to its receipt of the Services and the supply of its goods and/or services which Retailer is selling and for which transactions are submitted for processing by Etail Depot under the Agreement.
5. FEES AND PAYMENTS
5.1 Fees Payable. Retailer shall pay to Etail Depot all Fees. FIXED FEE ALL FEES FINES WILL BE PAID
5.2 Taxes. Unless otherwise provided in a Schedule, all Fees payable under this Agreement are exclusive of value added tax (or its equivalent in any jurisdiction) or other taxes, charges or duties which may be imposed in connection with any and all payments made or due hereunder as well as all taxes, fees and other costs incidental to and arising from any sale of goods or services by Retailer to End Users. All such taxes, charges, duties, fees and other costs shall be borne by Retailer and remain solely Retailer’s full responsibility. Where Retailer is required to withhold and/or deduct tax, charges, duties, or other costs on a payment due to Etail Depot, it shall gross up such payment to the extent required to ensure Etail Depot receives the same total amount that it would have received if no such withholding or deduction had been required. To the extent requested by Etail Depot, Retailer shall provide to Etail Depot its correct and accurate tax filing name and tax identification number for the U.S. Internal Revenue Service.
5.3 Collection of Fees. Etail Depot may collect the Fees due from Retailer at Etail Depot’s option by: (i) invoicing (electronically or printed invoices permitted) the amount of the Fees to Retailer; (ii) offsetting from any sums held by Etail Depot that are due and owed to Retailer (including netting for Fees from Transactions); and/or (iii) debiting Retailer’s designated Fee Account.
5.4 Invoicing. Where the Fees are collected by invoicing the amount to Retailer, Retailer shall pay such sums due under such invoice within ten (10) Business Days of the date of receipt of such invoice. To the extent Retailer fails to pay such sums due within such ten (10) Business Day period, Etail Depot will be entitled to, in addition to all other available remedies available to it, assess interest that shall accrue on any unpaid invoice owed by the Retailer to Etail Depot at the lesser of one percent (1%) per month or the rate that is the maximum rate permitted under Applicable Law. To the extent not otherwise prohibited by Applicable Law, such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment, and the Retailer shall pay the interest together with the overdue amount.
5.5 Offset Rights. Etail Depot shall be entitled at any time, without prior notice and before and after demand, to offset from any sums held by Etail Depot that are due and owed to Retailer, whether under this Agreement or any other agreement between Retailer and Etail Depot or one of its Affiliates, any Fees or other amounts that are or may reasonably become due and owed by Retailer to Etail Depot pursuant to this Agreement. To the extent that any such Fees or other amounts that are due and owed by Retailer to Etail Depot are not, or cannot be, applied as Deductions or otherwise offset by Etail Depot from available funds, such amounts shall be payable by Retailer to Etail Depot within ten (10) Business Days of Etail Depot’s issuance of an invoice therefor. Etail Depot’s offset rights and remedies are not intended to be Etail Depot’s exclusive rights or remedies, all of which are expressly reserved, and all rights and remedies are intended to be cumulative with all other rights and remedies of Etail Depot under this Agreement and Applicable Law.
5.6 Third Party Amounts. Any fees or amounts paid by Retailer, whether directly or by way of an offset, Deduction or otherwise, to Providers or other third parties, shall not affect or reduce Retailer’s obligation to pay all Fees due to Etail Depot hereunder. Retailer hereby authorizes and irrevocably instructs third-party person directly contracting with the Retailer to pay Etail Depot, upon request, the fees and other amounts payable to Etail Depot pursuant to this Agreement.
5.7 Fee Changes. Etail Depot shall have the right, upon ninety (90) days’ written notice to Retailer, to change the Fees or add new charges or fees for any or all of the Services. To the extent that Etail Depot increases its own charges or fees for existing Services being provided by Etail Depot during the Term, Retailer shall have the right within sixty (60) days of first receiving notice from Etail Depot of the increased fee/charge to terminate the Agreement (in which case, termination must take place within sixty (60) days of Retailer first receiving notice of the increased fee/charge), provided that Retailer will not have a right to terminate this Agreement if the increase in fee/charge is due to an increase in pass-through costs or other increase in fees or charges by a Provider. For the avoidance of doubt, such termination right shall not apply where changes to Fees or additions of new charges or fees are made in accordance with a pre-determined schedule in the Agreement. In addition, Retailer acknowledges that Providers may unilaterally change their existing charges and fees (applicable to Etail Depot and/or Retailer) or assess additional or different charges and fees (applicable to Etail Depot and/or Retailer), all of which may impact the Fees payable by Retailer, which fees or charges shall automatically apply to, and shall be passed through to, Retailer in the form, amounts and as of the date indicated by the relevant Provider. For the avoidance of doubt, such increases or different charges or fees by a Provider will not entitle Retailer to any termination right.
5.8 Currency. Unless otherwise agreed by the Parties or expressly provided in this Agreement, all Fees and Remittances will be due and payable in USD. When processing is in other currencies, the respective banks’ and other third parties’ and Etail Depot’s prevailing conversion rates and fees will apply to each movement. Retailer is responsible for all conversion fees and rates.
5.9 Pre-Authorized Debits. Unless expressly prohibited under Applicable Law, Retailer authorizes Etail Depot to initiate debit and credit entries to the Payment Account, Fee Account, or any other account maintained by Retailer at any financial institution for amounts owed under the Agreement, which amounts may be variable (the “PA Transactions”). Retailer agrees that any withdrawals by Etail Depot in accordance with this Agreement are business pre-authorized debits. This authorization includes initiation by Etail Depot of monthly variable recurring payments and/or occasional one-time payment of any amounts payable pursuant to this Agreement. Retailer waives its right to receive pre-notification of the debit amount before such debit is processed. This authorization shall survive the termination of this Agreement and remain in effect until full and final payment of all of Retailer’s obligations. If (i) Retailer’s Payment Account or Fee Account is closed, transferred, invalid or out of funds; (ii) Retailer withdraws its authorization for Etail Depot to make withdrawals from the Payment Account(s) or Fee Account; or (iii) Etail Depot cannot access such Payment Account(s) or Fee Account for any reason, then Etail Depot may terminate this Agreement and Retailer shall immediately pay all applicable fees and damages. If a new account is opened at another branch or bank, this authorization shall have the same force and effect as if it had originally been directed to that branch or bank and Retailer shall provide Etail Depot all reasonably requested information in relation to such new account. Any delivery of this authorization to such new bank or branch shall constitute delivery by Retailer. Retailer must give Etail Depot no less than 30 days’ prior written notice of any changes to a Payment Account or Fee Account and/or cancellation of this authorization. Etail Depot will not be liable for any delays in receipt of funds or errors in debit entries. The authorization in this Section 5.9 of this General Terms Schedule applies only to the method of payment and does not have any bearing on the contractual obligations between Retailer and Etail Depot under this Agreement.
6. RETAILER OBLIGATIONS
6.1 Laws and Rules. Retailer shall maintain during the Term compliance with all Applicable Laws and Rules, as amended from time to time.
6.2 KYC Requirements. Retailer must satisfy all applicable KYC Requirements at the time of the execution of this Agreement and thereafter as may be requested by Etail Depot from time to time throughout the Term.
6.3 Marketplace’s Websites or Mobile Application. Retailer hereby represents, covenants, and warrants, throughout the term of the Agreement that the only submitted Transactions shall be those originated from the Marketplace’s website or mobile application.
6.4 Prohibited Activities. Retailer shall at all times comply with the Prohibited Activity List Schedule.
6.5 End User Disputes. Retailer will not require an End User to waive a right to dispute a Transaction or include any statement that waives or seeks to waive an End User’s right to dispute a Transaction with the relevant Payment Scheme. All disputes between Retailer and any End User, including but not limited to, disputes relating to an End User’s respective Payment Method shall be settled between Retailer and the End User and neither Etail Depot nor any Payment Scheme shall bear any responsibility for such dispute. Retailer shall respond to all End User disputes (including but not limited to those with respect to handling Chargebacks) in accordance with Applicable Law and Rules (e.g., MasterCard’s Chargeback Guide).
6.6 Etail Depot Guidelines. As a condition to receiving Services, Retailer hereby agrees and acknowledges to comply with the Etail Depot Guidelines.
6.7 Assessments. Retailer shall be solely responsible for any and all Assessments resulting, directly or indirectly from its failure to comply with Applicable Laws or Rules. In the event of such an Assessment, Retailer shall immediately pay such Assessment or alternatively, at Etail Depot’s sole discretion, reimburse Etail Depot or any of the affected parties in the processing chain (e.g., the Bank, an APMP, a Provider or otherwise). Etail Depot also shall have the right to offset the amount of such Assessments against amounts due to Retailer.
6.8 Changes to Retailer Information. Retailer shall notify Etail Depot and the Payment Schemes promptly, in writing (and where legally permissible, in advance) of any changes in the Retailer Information including, but not limited to, changes in Retailer’s business (goods and services, tradenames or URLs, geographical targets, Payment Account or Fee Account details etc.), Retailer’s location (physical address) and fixed place of business through which it conducts its business, Retailer’s directors, principals, shareholders, or beneficial ownership that results in any shareholders owning 25% or more of Retailer (including any change in control of Retailer as such term is commonly used), as well as Retailer’s financial standing and ability to meet its obligations in this Agreement. Such notice of change of Retailer Information shall include all relevant details and supporting documentation reflecting the reported changes. Etail Depot and Payment Schemes shall have the right to examine any changes in Retailer Information and determine, upon notice to Retailer, whether such changes affect, as applicable, Etail Depot’s decision to provide Services to Retailer or with regard to the manner in which Services are provided to Retailer or the Payment Schemes’ decision to process for Retailer, and whether to suspend any Remittances to Retailer, which shall be at, as applicable, Etail Depot’s reasonable discretion or Payment Schemes’ respective discretion.
6.9 Payee Terms. Under this Agreement, (i) Retailer holds Etail Depot out to the public as accepting payments for goods or services on behalf of the payee and, to that end, Retailer hereby directs Etail Depot to collect and process payments from payors on the payee’s behalf; (ii) it is hereby agreed upon that payment for the goods and services are treated as received upon receipt by Etail Depot so that the End User’s payment obligation is extinguished and there is no risk of loss to the End User if Etail Depot fails to remit the funds to the payee.
7. INDEMNITY, LIABILITY AND LIMITATION OF LIABILITY
7.1 Retailer’s Indemnification Obligations. Retailer shall at its expense and upon demand indemnify, defend and hold harmless Etail Depot Indemnified Parties from Losses, which Etail Depot suffers or incurs in relation to any Claim brought against Etail Depot Indemnified Parties by a third party where such Claim is caused by Retailer or arises out of any breach of this Agreement by Retailer or as a result of, or in connection with Retailer’s misrepresentation, breach or failure to comply with the Rules or Applicable Law and/or with respect to Retailer’s websites, trademarks, products or services, and where relevant to Etail Depot’s use of the above, and including without limitation, in relation to actual or alleged infringement, misappropriation, or violation of any third-party intellectual property rights.
7.2 Etail Depot’s Indemnification Obligations. Etail Depot shall at its expense and upon demand indemnify, defend, and hold harmless Retailer Indemnified Parties from Losses, which Retailer suffers or incurs in relation to any Claim brought against Retailer Indemnified Parties by a third party where such Claim is caused by Etail Depot or arises out of any breach of this Agreement by Etail Depot or as a result of, or in connection with Etail Depot’s misrepresentation, breach or failure to comply with the Rules or Applicable Law and/or with respect to the Etail Depot’s websites, trademarks, products or Services, and where relevant to Retailer’s use of the above, and including without limitation, in relation to actual or alleged infringement, misappropriation, or violation of any third-party intellectual property rights.
7.3 Deductions. Retailer acknowledges and agrees that (i) it bears full responsibility for all Deductions (including Chargebacks) resulting in any way from Transactions and all other amounts then due or which thereafter may become due under this Agreement, (ii) Deductions may arise during or after the term of this Agreement, and (iii) Etail Depot shall remain entitled to recover Deductions from Retailer and Retailer shall indemnify and hold Etail Depot harmless in such respect, notwithstanding any prior Remittance, termination or expiration of this Agreement. Etail Depot may collect the Deductions at Etail Depot’s option by: (i) invoicing (electronically or printed invoices permitted) the amount of the Deductions to Marketplace and/or Retailer; (ii) offsetting from any sums held by Etail Depot that are part of an upcoming payment or Remittance or any other sums held by Etail Depot that are due and owed, or that become due and owed, to Marketplace and/or Retailer (including netting for Deductions from Transactions); and/or (iii) debiting the amount from Marketplace’s account(s) and/or Retailer’s account(s).
7.4 LIMITATION OF LIABILITY
7.4.1 In addition to any limitation of liability appearing in any other provision of this Agreement, except for Retailer’s liability for Fees and Deductions (including Chargebacks), and excluding Etail Depot’s obligation to make Remittances that are initiated by Etail Depot during the Term of this Agreement, (i) a Party shall not be liable for any of the following types of Loss, regardless of the form of action, whether in contract, tort (including negligence), strict product liability, or otherwise, even if such Loss were foreseeable and even if such Party has been advised of the possibility of such Loss: (1) any indirect, special, punitive, exemplary, incidental, or consequential Loss of any kind, (2) loss or interruption of use, business, profits, sales, bargain, contract, opportunity, goodwill or anticipated savings, or (3) loss or corruption of data or otherwise; and (ii) the maximum aggregate liability of a Party for any liability and any cause of action arising under or in connection with this Agreement, howsoever arising (including by way of negligence or any other theory of law), shall be limited to the: (y) Fees paid by Retailer to Etail Depot during the three hundred sixty five (365) days immediately preceding the date on which the relevant cause of action arose for any cause of action that is in connection with a violation of a Party’s obligations under the Data Protection Schedule; and (z) Fees paid by Retailer to Etail Depot during the one hundred eighty (180) days immediately preceding the date on which the relevant cause of action arose for any cause of action that is in connection with all other claims (other than a violation of a Party’s obligations under the Data Protection Schedule). For greater certainty, any amounts paid by a Party pursuant to this Section 7 shall reduce the liability limit applicable to such claim by such amounts for any period for which such Party may be required to pay Losses thereafter.
7.4.2 Etail Depot shall have no liability in relation to any of Retailer’s dealings with any third-party person (such as the Marketplace) directly contracting with the Retailer (including any breach by a third-party person directly contracting with the Retailer or Retailer of any agreement between Retailer and a third-party person directly contracting with the Retailer) or any decision, action or omission of a regulatory authority including, without limitation, with respect to Settlements or availability of funds.
7.4.3 Etail Depot shall stand in the place of each of its Affiliates with respect to any claims, actions or proceedings arising out of the Agreement in respect of the Services Retailer receives from Etail Depot. Retailer acknowledges and agrees that its sole remedy, if any, for Etail Depot’s or any of its Affiliates’ failure to provide the Services as provided for in the Agreement shall be against Etail Depot pursuant to the terms of the Agreement, and that Retailer hereby expressly waives any and all separate claims against any Etail Depot Affiliate performing any part of the Services. This waiver shall apply whether such claim arises out of contract or tort law, or whether such claim lies in equity or at law and regardless of whether either party knew or should have known of the likelihood of damages arising out of such a claim.
7.4.4 Notwithstanding the provisions of this Section 7, nothing in this Agreement shall limit or exclude (i) a Party’s liability in respect of Loss suffered by the other Party arising out of such Party’s gross negligence, recklessness, willful misconduct, or fraud, (ii) Retailer’s indemnification obligations under this Agreement, (iii) Retailer’s responsibility for all Fees and Deductions (provided that Etail Depot may at its sole discretion elect to collect any such amounts in accordance with Etail Depot’s other rights and remedies set forth in the Agreement), (iv) Etail Depot’s obligation to make Remittances that are initiated by Etail Depot during the Term of this Agreement, or (v) any other Loss which cannot by Applicable Law be limited or excluded.
8.WARRANTY DISCLAIMER; THIRD PARTIES
8.1 Disclaimer. THE RETAILER RECOGNIZES THAT ETAIL DEPOT PROVIDES SERVICES ON AN “AS-IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) ETAIL DEPOT SPECIFICALLY AND EXPLICITLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY TYPE OR NATURE WHATSOEVER WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, SUITABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ACCURACY IN RELATION TO OR ARISING OUT OF OR IN CONNECTION TO ANY INFORMATION PROVIDED, THE PLATFORM, SERVICES OR OTHERWISE TO ETAIL DEPOT’S PERFORMANCE; AND (II) ETAIL DEPOT MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE PLATFORM, SERVICES OR PRODUCTS OR THAT THE PLATFORM, SERVICES, PRODUCTS AND PAYMENT METHODS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY WILL BE CORRECTED.
RETAILER ACKNOWLEDGES THAT AN AUTHORIZATION FOR PAYMENT IS NEITHER A WARRANTY THAT THE PERSON PRESENTING THE AUTHORIZATION IS THE RIGHTFUL ACCOUNT HOLDER NOR A PROMISE OR GUARANTEE BY ETAIL DEPOT THAT IT WILL PAY OR ARRANGE FOR PAYMENT TO RETAILER FOR THE AUTHORIZED TRANSACTION. RETAILER ACKNOWLEDGES THAT AN AUTHORIZATION DOES NOT PREVENT A SUBSEQUENT CHARGEBACK, RETURN OR REVERSAL OF A PREVIOUSLY AUTHORIZED TRANSACTION PURSUANT TO THIS AGREEMENT.
8.2 Third Parties. Retailer acknowledges and understands that certain components of the Services will rely on third parties (e.g., Providers, ISPs, banks, processing networks, money transfer systems, external data bases, etc.) and are subject to such third party’s solvency, acts or omissions, performance, availability, service levels, availability of processed funds, and terms and conditions. Etail Depot shall not be responsible for the acts and omissions of Providers or third parties over whom it has no control.
9.DOCUMENTATION AND INFORMATION
9.1 Reporting Systems. Retailer understands and acknowledges that Etail Depot may be required under Applicable Laws or Rules to report Retailer’s business name and the names and other identification of its principals to the alerting services or reporting systems maintained by the Payment Schemes, including the Visa Merchant Alert Service or the Mastercard Alert To Control High-risk Merchants file. Retailer expressly agrees and consents to such reporting.
9.2 Requests for Information; Reports. Retailer shall fully cooperate with Etail Depot’s initial and ongoing reasonable requests for Retailer Information, including by providing Etail Depot with any required documentation and executing any required agreements, instruments, and other certifications as part of the Application. At Etail Depot’s request, Retailer shall provide evidence of its compliance with the Agreement to Etail Depot’s satisfaction, in Etail Depot’s reasonable discretion. Etail Depot may hold amounts owing to Retailer (including settlement amounts) pending the provision of such information, which may include copies of Retailer’s business license, articles of incorporation, tax information requirements and authentication of business owner(s) or director(s) identity, and/or other documentation, including without limitation the Retailer Information and the documentation required to meet KYC banking mandates and the requirements of anti-money laundering legislation. Retailer authorizes Etail Depot, or any credit bureau or any credit reporting agency engaged by Etail Depot or any agents of Etail Depot, to investigate the references provided or any other statements or data obtained from Retailer, or any of the above principals, for the purpose of this Agreement, including in connection with the processing of the Application. In connection with the foregoing, Retailer authorizes Etail Depot to obtain credit reports regarding Retailer on an annual basis, unless Etail Depot determines that it is necessary for Etail Depot to periodically obtain Retailer’s credit report on a more than annual basis, in which case Retailer authorizes Etail Depot to obtain such additional credit reports. Notwithstanding anything in this Section 9.2, Retailer authorizes Etail Depot to obtain a credit report regarding Retailer if increased Retailer processing amounts or parameters are requested, or if sporadic Retailer transactional volume is originated.
9.3 Audits. Etail Depot, the Bank, or any Provider, regulatory authorities/agencies with jurisdiction over Etail Depot, the Bank, and/or Providers are entitled to conduct investigations and/or audits of Retailer on an annual or incident basis or with such other frequency as may be required to comply with the Rules or Applicable law in order to enable such parties to ensure compliance with the Rules, Applicable Law and provisions of this as well as to ensure compliance with the requirements of such organizations and agencies. This may include, but not be limited to, inspection of Retailer’s business premises and may include performance of security audits as well as any information or documentation collected relating to the End User. In connection with the foregoing, upon Etail Depot’s request, Retailer shall promptly disclose any required information, allow access to its premises, books and records, and provide full cooperation, and where applicable, ensure the cooperation of its technical service providers and other subcontractors. Each Party shall bear its own costs and expenses of any such investigation and/or audit required under this Section 9.3.
10.SECURITY INTEREST
To secure payment of Retailer’s obligations under this Agreement, Retailer grants to Etail Depot a security interest in all now existing or hereafter acquired: (a) Transactions records or documents evidencing the sale Transaction (including any refund or price adjustment relating to the same), and other items submitted to Etail Depot for processing by or for Retailer; (b) accounts receivable and payment rights relating to or arising from this Agreement, including all amounts due Retailer (including any rights to receive credits or payments hereunder); (c) accounts including without limitation all deposit accounts maintained with Etail Depot or any institution other than Etail Depot in the name of or for the benefit of, Retailer or any guarantor of Retailer’s obligations under this Agreement; (d) deposits, regardless of source, to Retailer’s or any guarantor’s accounts with Etail Depot or any institution other than Etail Depot; (e) all deposits and all other property and funds deposited by Retailer or withheld by Etail Depot, including funds and property withheld as the result of security monitoring; and (f) proceeds of the foregoing. As between Bank and Etail Depot, Bank shall have a security interest in the foregoing and Bank’s security interest in the foregoing shall have priority over Etail Depot’s security interest therein, and Etail Depot covenants and agrees to take any and all actions requested by Bank to honor such priority and allow Bank to perfect such superior security interest in the foregoing. If Etail Depot reasonably determines that Retailer has breached any obligation under this Agreement, or that proceeds of Retailer’s future card sales are unlikely to cover anticipated Chargebacks, credits, fees and adjustments, as reasonably determined by Etail Depot (whether because this Agreement has been terminated or for any other reason), Etail Depot may setoff or otherwise exercise its security interest without notice or demand by immediately withdrawing from or freezing any account or otherwise exercising its rights under this Agreement or those rights available under Applicable Law, including the Uniform Commercial Code, or in equity. In addition to the collateral pledged above, Etail Depot may require Retailer to furnish such other and different security as Etail Depot deems appropriate in its sole discretion to secure Retailer’s obligations under this Agreement. Etail Depot may fully or partially prohibit withdrawal by Retailer of funds from Retailer’s deposit accounts maintained with Etail Depot or financial institutions other than Etail Depot, pending Etail Depot’s determination from time to time to exercise its rights as a secured party against such accounts in partial or full payment of Retailer’s obligations to Etail Depot. Retailer will execute any documents and take any actions required to comply with and perfect any security interest under this Section, at Retailer’s cost. Retailer represents and warrants that no other party has a security interest or lien in any of the collateral pledged above, and Retailer will obtain Etail Depot’s written consent before it grants a lien or security interest in that pledged collateral to any other person. Retailer shall not assign to any third party any payments due to it under this Agreement, and all indebtedness arising from Transactions will be for bona fide sales of goods and services (or both) at its business locations and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Retailer may sell and assign future Transaction receivables to Etail Depot, its Affiliates and/or any other cash advance funding source that partners with Etail Depot or its Affiliates, without consent from any Card Scheme. Notwithstanding the foregoing, Etail Depot prohibits Retailer from selling or assigning future Transaction receivables to any third party without Etail Depot’s prior written consent. Retailer shall not be entitled to any interest or any other compensation whatsoever in respect of any sums processed or held by Etail Depot in accordance with the provisions of this Agreement. Retailer has no right to offset under this Agreement, including in the event that Retailer is required to make a payment under this Section 10.
11.CHANGES
Etail Depot shall have the right, upon thirty (30) days’ notice (unless a shorter term is mandated by a Provider or to comply with any Applicable Laws or Rules), to change the terms, conditions or specifications of any of the Services due to (i) changes in the Services which are made at the request of a Provider; or (ii) changes in Applicable Laws, Rules or any Provider’s requirements which affect Etail Depot’s ability to provide the Services or Retailer’s ability to use or receive the Services. Changes in the Services which are made at Retailer’s request and the resulting impact on Fees (if any) shall be addressed by the Parties separately in an agreement or addendum mutually satisfactory to the Parties.
12. OWNERSHIP; LICENSE; TRADEMARKS
12.1 Ownership. Retailer acknowledges and agrees that all right, title, and interest in and to any and all intellectual property rights of all types or nature whatsoever, including, without limitation, patents, copyrights, trademarks, as well as moral rights, know-how and trade secrets (and any licenses in connection with any of the same), whether or not registered or capable of registration, and whether subsisting in any specific country or countries or any other part of the world, in the Platform and Services are and will remain solely and exclusively the property of Etail Depot, its Affiliates and/or its licensors. Retailer is granted no title or ownership rights in the Services and Platform and any parts thereof. Retailer further acknowledges that Etail Depot considers the Platform and the Services to contain trade secrets. Retailer’s right to use the Platform or Services and any part of the Platform or Services is strictly limited to the rights provided in this Agreement and Etail Depot reserves all rights not expressly granted herein.
12.2 License. Subject to the terms and conditions of this Agreement, and contingent upon payment of the Fees hereunder, Etail Depot grants Retailer a personal, limited, non-exclusive, non-transferable right during the Term of this Agreement to access and use the Platform and Services in connection with the purposes set out in this Agreement and as specifically permitted by Etail Depot for Retailer’s internal purposes and solely as necessary for Retailer’s use of the Services in accordance with this Agreement. Retailer will ensure that Retailer’s installation, configuration, and use of Platform and Services shall conform substantially to specifications set forth in the applicable Services Documentation. Retailer may not (i) distribute, sell, license, sublicense, assign, reproduce, transfer, pledge, or share the Platform or Services and any part of the Platform or Services, and/or any of its rights under this Agreement; or (ii) make the Platform or any part thereof available to others in a service bureau or outsourcing arrangement or for any othe
WHEREAS, Retailer has signed up on a Marketplace website or mobile application, operated by a third-party Marketplace, in order for Retailer to be able to sell its good and/or services to End Users;
WHEREAS, Etail Depot, doing business as etailplace.com provides payment processing capabilities and related services to the Marketplace and to retailers who are authorized to sell their goods or services on the Marketplace website or mobile application; and/>
WHEREAS, Etail Depot, doing business as etailplace.com desires to provide payment processing capabilities and related services to Retailer, and Retailer desires to receive such payment processing capabilities and related services from Etail Depot, in each case on the terms and conditions set out in this Retailer Services Agreement;/>
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which having been acknowledged, Retailer and Etail Depot hereby agree as follows:/>
1. DEFINITIONS. Capitalized terms used in this Retailer Services Agreement shall have the meanings set out in the General Terms Schedule or elsewhere in this Retailer Services Agreement./>
2. TERM. This Retailer Services Agreement shall commence upon the Effective Date and continue for an indefinite period of time (the “Term”), unless terminated as stipulated elsewhere in the Retail Services Agreement (including as stipulated in the General Terms Schedule)./>
3. SCHEDULES. The following Schedules are integral parts of this Retailer Services Agreement and are incorporated by reference:/>
| SCHEDULES | |
| General Terms Schedule | 3D Secure Services Schedule |
| Definitions Schedule | Confidential Information Schedule |
| Settlement and Remittances Services Schedule | Data Protection Schedule |
| APM Services Schedule | Prohibited Activity List Schedule |
5. ENTIRE AGREEMENT. This Retailer Services Agreement constitutes the entire agreement between the Parties with respect to its subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations and communications, written or oral, with respect to such subject matter hereof. In entering into this Retailer Services Agreement, no Party has relied upon any statement, representation, promise or assurance of the other Party except as expressly stated herein.
GENERAL TERMS SCHEDULE
1.DEFINITIONS AND INTERPRETATION
1.1Definitions. In the Agreement, unless specified otherwise or the context otherwise requires, capitalized terms that are not otherwise defined when used shall have the meaning given to such terms in the Definitions Schedule.
1.1.1 etailplace.com means the trade name under which Etail Depot US Inc conducts its business.
1.2Interpretation. In the Agreement, unless specified otherwise or the context otherwise requires:
1.2.1A reference to a statute, statutory provision or law is a reference to it as amended or re-enacted and includes any subordinate legislation made under it from time to time, as amended or re-enacted. A reference to guidance is to it as amended or re-issued.
1.2.2Any words following the terms “including,” “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3A reference to writing or written includes email.
1.2.4A person includes any natural person, corporation, unincorporated association or organization, governmental authority, firm, partnership or other entity, whether or not having legal status.
1.2.5A reference to a company shall include any company, corporation, trust or other body corporate, wherever and however incorporated or established.
1.2.6A reference to a section, subsection, clause or a Schedule is a reference to a section, subsection, clause or a Schedule to this Agreement.
1.2.7Section, subsection, clause and Schedule headings shall not affect the interpretation of this Agreement.
1.2.8Words in the singular shall include the plural and words in the plural shall include the singular.
1.2.9In the event of any inconsistency or conflict between any provision of this Agreement and the Rules, the Rules will govern with respect to such inconsistency or conflict. In the event of any inconsistency or conflict between the provisions in this Agreement, the following order of precedence shall apply with respect to such inconsistency or conflict (first takes precedence):
(i)The Retailer Services Agreement;
(ii)The Schedules incorporated by reference into the Retailer Services Agreement; and
(iii)The Application.
2.PROVISION OF SERVICES
2.1Services Generally; US Regulated Activities; Waiver; Pre-Approval.
2.1.1Services Generally. In consideration of the payment of the Fees by Retailer and subject to Retailer’s continued compliance with the terms and conditions of this Agreement, Retailer hereby agrees to receive and Etail Depot hereby agrees to provide Retailer with the Services in accordance with the terms of this Agreement. The terms, conditions and specifications regarding the delivery of the Services shall be as described in this Agreement, including the Schedules to this Agreement.
2.1.2US Regulated Activities. Notwithstanding anything to the contrary contained in the Agreement, Etail Depot is a party to the Agreement solely for the purpose of Etail Depot’s performance of US Regulated Activities pursuant to the Services Schedules or as otherwise agreed in its sole and absolute discretion. This includes without limitation Etail Depot’s performance of APM Settlement and Remittance services. Etail Depot hereby represents that Etail Depot: (i) is either properly licensed under applicable law in the Territory or has otherwise received an exemption to provide such US Regulated Activities; and (ii) is reasonably capable of performing the US Regulated Activities.
2.1.3Pre-approval. At Etail Depot’s sole discretion, Retailer may be allowed to go live prior to completion of KYC Requirements in a limited scope as following:
(i)Limited period – up to thirty (30) calendar days from Retailer’s first Transaction;
(ii)Limited volume – up to $[___] ([___] Dollars) during the limited period; and
(iii)Limited Payment Methods – only VISA and Mastercard Cards issued in Territory issuers.
These limitations shall be lifted once and for as long as Retailer fully satisfies Etail Depot’s KYC Requirements. Etail Depot reserves the right to change the aforementioned terms upon notice.
IMPORTANT: should Retailer fail to complete the KYC Requirements to Etail Depot’s satisfaction, Retailer’s account shall be suspended, all processed amounts shall be refunded to End Users and Etail Depot shall hold Retailer liable for all costs and expenses incurred by Etail Depot in the process.
2.2Retailer’s Business. Etail Depot shall provide the Services solely to Retailer and only Retailer has the right to use the Services. Etail Depot is only required to provide the Services pursuant to the terms of this Agreement in respect of Retailer’s business as set out in the Application at the Effective Date and only to the extent permitted by Applicable Law. Retailer must obtain Etail Depot’s prior written consent, such consent not to be unreasonably withheld, before making any change to the type of goods and/or services sold by Retailer which commonly fall within Retailer’s business or change to Retailer’s trade name and, in each case, as set out in the Application and for which the Services are being provided. With respect to any such changes, Etail Depot may require additional industry-specific terms and conditions to Etail Depot’s services.
2.3Etail Depot’s Platform. Etail Depot may provide the Platform to enable the Retailer to use the Services through Marketplace’s website or mobile application, with such use of the Platform being subject to the terms and conditions provided in this Agreement, provided that Marketplace is responsible for (i) providing Retailer with access credentials, and managing Retailer’s access, to Marketplace’s website or mobile application and (ii) receiving Transaction information and communicating them to Etail Depot; and (iii) otherwise managing payments requests on behalf of Retailer. Retailer acknowledges that Etail Depot will only be able to process Transactions and settle to Retailer the Remittances amount for the Transactions the Marketplace submits to Etail Depot on Retailer’s behalf; Etail Depot shall not be liable for any failure or delay on the part of the Marketplace in relation to the foregoing.
2.4General Terms Schedule. For each of the Services to be provided to Retailer, this General Terms Schedule to this Agreement shall apply in respect of the Service being received.
2.5Additional Countries or Regions. Etail Depot, either directly or through its network of Providers and Affiliates, may offer its Services and Platform in numerous countries and regions. It is Retailer’s sole responsibility to specifically request Etail Depot for the receipt of the Services and access to the Platform in any country or region that is not the Territory or to receive domestically mandated Services (as required by Applicable Law to Retailer’s operations), and in each of the foregoing cases, Retailer and Etail Depot (or one of its Affiliates or Providers from its network) shall negotiate, in good faith, the terms and conditions, including applicable Fees, for the performance of such Services, which shall be memorialized in a mutually agreeable written amendment of this Agreement or other separate written agreement.
2.6Services Schedules. Each Services Schedule shall set forth: (i) a description of the Etail Depot Services to be furnished by Etail Depot pursuant to such Services Schedule, and (ii) such additional terms and conditions applicable to such Services described therein. The terms of a Services Schedule shall apply solely with respect to the applicable Services referenced therein. Each Services Schedule shall be deemed to incorporate the provisions of this General Terms Schedule as though such provisions were set forth therein in their entirety. In the event of any inconsistency of conflict between the General Terms Schedule and the terms of any Services Schedule, the terms of the Services Schedule shall govern for such Services provided in the Services Schedule.
2.7 Retailer’s Third-Party Agreements; Marketplace Acting on Behalf of Retailer.
2.7.1 Retailer’s Third-Party Agreements. Retailer is responsible for its compliance with its agreement(s) and dealings with any third-party person directly contracting with the Retailer, including any agreement(s) and dealings that Retailer has with the Marketplace. Etail Depot will not be responsible or liable for Retailer’s relationship with, or any agreement Retailer maintains with, Marketplace, for Retailer’s access to or use of the Marketplace’s services, or for the Marketplace providing, performing, or otherwise making available the Marketplace’s services to Retailer. Marketplace will not be acting on behalf of Etail Depot in providing, performing, or otherwise making available Marketplace’s services and Marketplace will be responsible for all aspects of providing, performing, or otherwise making available Marketplace’s service to Retailer.
2.7.2 Marketplace Acting on Behalf of Retailer. Retailer acknowledges and agrees that, from time to time, Marketplace may submit or modify Transactions and related instructions/communications on behalf of Retailer. Etail Depot is entitled to accept Marketplace’s submission or modification of Transactions and related instructions/communications as if accurately made and consented to by Retailer. Retailer agrees that all actions of a Marketplace as related to this Agreement will be deemed to be actions by Retailer under this Agreement, and Retailer accepts full responsibility and liability for any and all acts and/or omissions of Marketplace as related to this Agreement, including, but not limited to, acts of negligence (whether active, passive or gross negligence), intentional misconduct or fraudulent acts. In addition to all other indemnity obligations contained elsewhere in this Agreement, Retailer agrees to at its expense and upon demand indemnify, defend and hold harmless Etail Depot Indemnified Parties from Losses, which Etail Depot suffers or incurs in relation to any actions or omissions of the Marketplace acting on behalf of Retailer.
2.7.3 Transaction Guidelines. Retailer is bound at all times with the following Transaction guidelines:
(i) Valid Transactions. Only valid Transactions between Retailer and a bona fide End User in amounts which represent and correspond with a bona fide sale of goods or services by Retailer to the End User are permitted. Marketplace is authorized to present Transactions for collection and payment on behalf of Retailer. Such presentments are subject to Etail Depot’s acceptance and presentment procedures, as may be modified by Etail Depot from time to time.
(ii) Invalid Transactions. An invalid Transaction includes a Transaction: (1) that constitutes a refinancing, that results from the transfer of an End User’s obligation that has been determined to be uncollectible, that arises from the refusal of an End User’s personal cheque, or that did not originate as a result of a Transaction directly between Retailer and an End User; and (2) that has previously been processed or declined through Etail Depot, a Provider, or through another acquirer or payment service provider.
2.7.4 Transaction Data Retention Requirements. Retailer must securely retain in readable format all written or electronic data and documents with respect to each Transaction, data transmitted by End Users, conversation and correspondence logs, documents transmitted and post-Transaction actions such as Chargebacks and Refunds. Retailer must retain this data and documents for at least three (3) years following the relevant Transaction unless earlier deletion is required by Applicable Law. Retailer shall not store any Card security code or data. Promptly upon Etail Depot’s request, Retailer shall make the data and documents available to Etail Depot and provide Etail Depot with proof that each Transaction presented to Etail Depot for processing hereunder was processed in accordance with the Rules and the terms of this Agreement.
2.7.5 Specific Transaction Disclosures to End Users. Retailer will provide adequate disclosures to, and consents with, End Users (e.g. duration, charge(s) and frequency, timing, specific terms and conditions, delivery times and cancellation and refund policy). Retailer further acknowledges that deviation from applicable Rules may require a Refund to the End User of any or all of the amounts paid by the End User.
2.7.6 Chargebacks And Fraud. Etail Depot may charge back the amount of a Card Transaction for which the Cardholder disputes having authorized the charge. Retailer assumes sole liability for any and all Chargebacks, including the Fees payable in respect thereof, and shall reimburse Etail Depot for any sums paid to Retailer that are subsequently the subject of a Chargeback, provided that Etail Depot may at its sole discretion elect to collect Fees and/or Chargebacks in accordance with Etail Depot’s other rights and remedies set forth in the Agreement (including by Etail Depot electing to collect Chargebacks in the manner set forth in Section 7.3 of this General Terms Schedule). A Transaction in an attempt to collect a Chargeback may not be initiated. Etail Depot shall promptly represent Chargebacks, as requested by Marketplace on Retailer’s behalf, to the extent representment is permissible under the Rules and subject to Retailer’s payment of any applicable Fees. Retailer shall at all times comply with applicable Chargeback Ratios and Fraud Ratios. Retailer further acknowledges that Payment Schemes and/or Etail Depot may impose Assessments where Retailer exceeds the Chargeback Ratio or Fraud Ratio. In the event that Retailer exceeds any Chargeback Ratio or Fraud Ratio, or Retailer enters into any of the Payment Schemes’ Chargeback, fraud or audit programs (e.g., MasterCard’s Global Merchant Audit Program or Visa’s Merchant Fraud Programs), Etail Depot has the right, in its sole discretion, to suspend all or part of the Services or to impose additional Fees.
2.7.7 Chargeback Representments. In certain Transactions, Marketplace may on Retailer’s behalf initiate a chargeback representment for the purpose of appealing certain chargebacks, subject to Retailer’s payment of applicable Fees for the chargeback representment. Retailer agrees to assist Etail Depot when requested, at Retailer’s expense, to investigate any of the respective Transactions. It shall remain Retailer’s and Marketplace’s responsibility to prove to the reasonable satisfaction of the relevant Provider that the charge of an End User’s account was Authorized by such End User. Etail Depot shall bear no responsibility or liability as to the Provider’s performance or decisions in such matters. Following such efforts any decision or determination of the relevant Provider as to the validity and extent of any Chargeback shall be final and binding. The chargeback representment services are designed to support Retailer’s decision-making. These representment services are always subject to the adequacy of the information/documentation provided to Etail Depot. The recommendations of these representment services may not be viewed or relied upon as a legal advice or as a guaranty or warranty to the authenticity or legality of the Transaction or the submitted information/documentation. Retailer must review the results and apply its own discretion.
2.8 Acquirer’s Role. Etail Depot may select one or more third-party Acquirers from time to time to provide the Acquiring Services for Card Transactions in the Territory. As of the date hereof, the selected Acquirer to provide the Acquiring Services in the Territory is the Bank. For the avoidance of doubt, if the Agreement provides for APM services, Bank will not provide any services in connection with APMs. Subject to the requirements of applicable Card Scheme Rules, Etail Depot and Bank have allocated their respective rights, duties and obligations between themselves as they deem appropriate at their sole discretion.
3. TERMINATION
3.1 Termination Rights. In addition to any other termination rights set forth in this Agreement, this Agreement may be terminated before the end of the Term as follows:
3.1.1 Convenience. Any Party to this Agreement may terminate this Agreement at any time by giving at least one (1) month’s prior written notice to the other Party.
3.1.2 Insolvency. By any Party if the other Party hereto is unable to pay its debts when due or becomes subject to bankruptcy, insolvency or equivalent procedures in any applicable jurisdiction, including having a receiver, manager, provisional liquidator, liquidator or administrator appointed in respect of any material part of its assets or suffering a seizure or execution of an order in respect of a material portion of its property, or if a petition is presented for the winding up or liquidation of the other Party and such petition is not released, satisfied or withdrawn within thirty (30) days of the filing thereof;
3.1.3 Etail Depot’s Breach. By Retailer if Etail Depot breaches this Agreement and has not remedied such a breach within thirty (30) days of receipt of written notice thereof from Retailer (unless such breach is not capable of remedy);
3.1.4 Retailer’s Breach. By Etail Depot if Retailer breaches this Agreement or any of its agreement(s) with any third-party person directly contracting with the Retailer and has not remedied such a breach within thirty (30) days of receipt of written notice thereof from Etail Depot (unless such breach is not capable of remedy);
3.1.5 Etail Depot’s Additional Termination Rights. By Etail Depot immediately upon written notice to Retailer if:
(i) Etail Depot reasonably suspects or believes that Retailer is using the Services in connection with any unlawful, unauthorized, dishonest, fraudulent, wrongful or criminal activities or is otherwise is in violation of Applicable Laws or Rules or through any act or omission has damaged or threatens to damage the goodwill, reputation or business of Etail Depot or any Provider;
(ii) Etail Depot is required to do so by the Bank, a Provider, or a Regulator pursuant to Rules or Applicable Laws;
(iii) Etail Depot becomes aware of facts or circumstances relating to Retailer or arising from or incidental to Retailer’s business or the conduct of Retailer’s business (including trading practices or individual activity) that Etail Depot, in its sole discretion, considers (1) disreputable or capable of damaging a Provider’s or Etail Depot’s reputation, (2) detrimental to a Provider’s or Etail Depot’s business, or (3) may or does give rise to fraud or any other criminal activity or suspicion of fraud or any other criminal activity;
(iv) Any circumstance, event or series of events that Etail Depot has reasonable grounds to believe materially adversely affects or may materially adversely affect Retailer’s ability to fully and promptly perform and comply with any one or more of its obligations under this Agreement, including, without limitation, the following circumstances or events (1) material changes in the goods and/or services supplied by Retailer, (2) material increase in Retailer’s Chargeback levels relative to expected volume, (3) the occurrence of fees, fines, penalties or charges as a result of Retailer’s failure to comply with the provisions of this Agreement, the Rules or Applicable Law, (4) a change of control in respect of Retailer, (5) Retailer receives instructions from a Regulator which Retailer does not or is unable or unwilling to comply with, and/or (6) a material deterioration in Retailer’s financial position; or
(v) Etail Depot’s agreement with the Marketplace terminates.
3.2 Termination of Provider-specific Services. Etail Depot shall have the right to terminate any portion of the Services relating to any Provider for which (i) Etail Depot’s agreement with the relevant Provider has been terminated, or (ii) the relevant Provider fails to have a valid license to operate in the Territory.
3.3 Suspension Rights. Without limiting any other rights available to Etail Depot under this Agreement, Applicable Law or otherwise, in the event that Etail Depot suspects or determines, in its sole discretion, that there is a credible legal, regulatory, fraud, financial, or reputational risk to Etail Depot or a Provider associated with the provision of any Service, unauthorized access or compromise of the account security, a failure by Retailer to comply with this Agreement, any Transaction otherwise fails to comply with any Applicable Laws or Rules or Etail Depot suspends Marketplace’s receipt of any of Etail Depot’s accesses or services, Etail Depot may, in its sole discretion, for any period of time, suspend the provision of any or all of the Services or the Platform or restrict certain or all functionalities and/or access permissions. Such suspension may be for as long as Etail Depot deems necessary or appropriate to protect its rights before terminating this Agreement, if at all, and Retailer acknowledges that Remittances and any other amounts owing to Retailer hereunder may be withheld during such period. Etail Depot shall exert best commercial efforts to provide a prior written notice to Retailer of any suspension of Services.
3.4 Effects of Termination. Upon the termination of this Agreement for any reason, (i) Retailer shall immediately pay to Etail Depot all outstanding Fees and other amounts owed, if any, by Retailer under this Agreement; (ii) Etail Depot may exercise its right to offset any outstanding Fees and other amounts owed to Etail Depot from any amounts held by Etail Depot; (iii) Retailer’s rights to use the Services, the Marks, the Platform and any other rights granted in this Agreement shall immediately cease; and (iv) Retailer shall immediately return and/or destroy all documents and information in its possession in accordance with the provisions of the Confidential Information Schedule. The termination of this Agreement for any reason shall not affect any rights, obligations or liabilities accrued before the date of termination (including any obligations to pay Fees and other amounts accrued and owing pursuant to this Agreement) and all provisions regarding indemnification, warranty, liability and limits, confidentiality and protection of proprietary rights and trade secrets, and any provisions which expressly or by their nature are required to survive termination in order to achieve their purpose, shall so survive until it shall no longer be necessary for them to survive in order to achieve their purpose.
4. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
4.1Representations, Warranties and Undertakings of the Parties. As at the Effective Date, and for the duration of the Term hereof and any applicable survival period, each Party represents, undertakes and warrants to the other that:
4.1.1 This Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms for the duration of the Agreement;
4.1.2 The execution, delivery and performance of this Agreement will not conflict with or violate any Applicable Law;
4.1.3 It is not involved and will not be involved in any act that constitutes or can be reasonably expected to constitute fraud or other illegal activity, including but not limited to, money laundering, under any Applicable Law;
4.1.4 There is no action, suit or proceeding at law or in equity now pending or, to the best of its knowledge, threatened by or against or affecting it which would impair its right to carry on its business as now conducted or affect its financial conditions or operations or its ability to perform its obligations under this Agreement;
4.1.5 It shall at all times comply with the Data Protection Schedule and Confidential Information Schedule;
4.1.6 It is the sole and exclusive owner or is the authorized licensee of its Marks and all intellectual property rights as well as in the materials provided to the other Party under this Agreement, and any license granted to the other Party under this Agreement relating to the use of any of the foregoing is duly authorized; and
4.1.7 It has been given the opportunity to obtain independent legal advice in connection with this Agreement and that it is entering this Agreement with full knowledge of the contents herein.
4.2 Representations, Warranties and Undertakings of Retailer. As at the Effective Date, and for the duration of the Term hereof and any applicable survival period, Retailer further represents, undertakes and warrants that:
4.2.1 Unless Retailer and Etail Depot have agreed to abide by the terms and conditions detailed in a Card Present Services Schedule, it will not process pursuant to this Agreement any face-to-face Transactions without Etail Depot’s prior written confirmation;
4.2.2 It has obtained and shall continue to maintain during the Term of this Agreement all necessary regulatory approvals, permits, certificates and licenses to lawfully conduct its business as applicable to the Services rendered hereunder, including, without limitation, the required regulatory approvals, certificates and licenses to operate Retailer’s websites, and to sell any goods or provide any services to End Users in and from the applicable jurisdiction;
4.2.3 With respect to any necessary regulatory approvals, permits, certificates and licenses to lawfully conduct its business as applicable to the Services rendered hereunder, Retailer maintains compliance with its obligations under such approvals, permits, certificates and licenses, including, without limitation, any obligations to: (i) restrict underaged persons’ access to such services; (ii) prevent access to its services from jurisdictions where it is not specifically licensed; and (iii) prevent the use of its services for the purpose of laundering money;
4.2.4 Any and all information and documentation provided by Retailer to Etail Depot, including Retailer Information, is and shall at all times remain true, accurate, complete and up-to-date and no information, document or statement provided, or made available to Etail Depot is knowingly untrue, false, incorrect, incomplete or misleading;
4.2.5 To the extent it has access to any such data, Retailer shall not sell, purchase, provide, exchange or in any manner disclose Payment Method or Transaction data, including the primary account number (PAN), payment account reference (PAR), or token (as such terms are used in the Rules), End User Data, or personal information of any individual other than as permitted by the Rules and Applicable Law or in response to a valid governmental, regulatory or court order;
4.2.6 Except as were declared by Retailer in the Retailer Information and/or Application and approved by Etail Depot, (i) it will use the Services only to transact for Retailer’s own account for Retailer’s own business through Retailers own Locations and not on behalf of any third party; and (ii) it does not provide any type of payment services to any company or any business organization without Etail Depot’s prior written confirmation;
4.2.7 It will abide by all relevant accounting principles which apply to Retailer and record the Transactions that Etail Depot processes in the accounting records of the business, fully and properly in accordance with those accounting principles, Applicable Law, and the Rules;
4.2.8 It will pay all relevant taxes as required by Applicable Laws and the Rules relating to all Transactions, their Settlement and Remittance; and
4.2.9 It will comply with the Payment Scheme Rules relating to its receipt of the Services and the supply of its goods and/or services which Retailer is selling and for which transactions are submitted for processing by Etail Depot under the Agreement.
5. FEES AND PAYMENTS
5.1 Fees Payable. Retailer shall pay to Etail Depot all Fees. FIXED FEE ALL FEES FINES WILL BE PAID
5.2 Taxes. Unless otherwise provided in a Schedule, all Fees payable under this Agreement are exclusive of value added tax (or its equivalent in any jurisdiction) or other taxes, charges or duties which may be imposed in connection with any and all payments made or due hereunder as well as all taxes, fees and other costs incidental to and arising from any sale of goods or services by Retailer to End Users. All such taxes, charges, duties, fees and other costs shall be borne by Retailer and remain solely Retailer’s full responsibility. Where Retailer is required to withhold and/or deduct tax, charges, duties, or other costs on a payment due to Etail Depot, it shall gross up such payment to the extent required to ensure Etail Depot receives the same total amount that it would have received if no such withholding or deduction had been required. To the extent requested by Etail Depot, Retailer shall provide to Etail Depot its correct and accurate tax filing name and tax identification number for the U.S. Internal Revenue Service.
5.3 Collection of Fees. Etail Depot may collect the Fees due from Retailer at Etail Depot’s option by: (i) invoicing (electronically or printed invoices permitted) the amount of the Fees to Retailer; (ii) offsetting from any sums held by Etail Depot that are due and owed to Retailer (including netting for Fees from Transactions); and/or (iii) debiting Retailer’s designated Fee Account.
5.4 Invoicing. Where the Fees are collected by invoicing the amount to Retailer, Retailer shall pay such sums due under such invoice within ten (10) Business Days of the date of receipt of such invoice. To the extent Retailer fails to pay such sums due within such ten (10) Business Day period, Etail Depot will be entitled to, in addition to all other available remedies available to it, assess interest that shall accrue on any unpaid invoice owed by the Retailer to Etail Depot at the lesser of one percent (1%) per month or the rate that is the maximum rate permitted under Applicable Law. To the extent not otherwise prohibited by Applicable Law, such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment, and the Retailer shall pay the interest together with the overdue amount.
5.5 Offset Rights. Etail Depot shall be entitled at any time, without prior notice and before and after demand, to offset from any sums held by Etail Depot that are due and owed to Retailer, whether under this Agreement or any other agreement between Retailer and Etail Depot or one of its Affiliates, any Fees or other amounts that are or may reasonably become due and owed by Retailer to Etail Depot pursuant to this Agreement. To the extent that any such Fees or other amounts that are due and owed by Retailer to Etail Depot are not, or cannot be, applied as Deductions or otherwise offset by Etail Depot from available funds, such amounts shall be payable by Retailer to Etail Depot within ten (10) Business Days of Etail Depot’s issuance of an invoice therefor. Etail Depot’s offset rights and remedies are not intended to be Etail Depot’s exclusive rights or remedies, all of which are expressly reserved, and all rights and remedies are intended to be cumulative with all other rights and remedies of Etail Depot under this Agreement and Applicable Law.
5.6 Third Party Amounts. Any fees or amounts paid by Retailer, whether directly or by way of an offset, Deduction or otherwise, to Providers or other third parties, shall not affect or reduce Retailer’s obligation to pay all Fees due to Etail Depot hereunder. Retailer hereby authorizes and irrevocably instructs third-party person directly contracting with the Retailer to pay Etail Depot, upon request, the fees and other amounts payable to Etail Depot pursuant to this Agreement.
5.7 Fee Changes. Etail Depot shall have the right, upon ninety (90) days’ written notice to Retailer, to change the Fees or add new charges or fees for any or all of the Services. To the extent that Etail Depot increases its own charges or fees for existing Services being provided by Etail Depot during the Term, Retailer shall have the right within sixty (60) days of first receiving notice from Etail Depot of the increased fee/charge to terminate the Agreement (in which case, termination must take place within sixty (60) days of Retailer first receiving notice of the increased fee/charge), provided that Retailer will not have a right to terminate this Agreement if the increase in fee/charge is due to an increase in pass-through costs or other increase in fees or charges by a Provider. For the avoidance of doubt, such termination right shall not apply where changes to Fees or additions of new charges or fees are made in accordance with a pre-determined schedule in the Agreement. In addition, Retailer acknowledges that Providers may unilaterally change their existing charges and fees (applicable to Etail Depot and/or Retailer) or assess additional or different charges and fees (applicable to Etail Depot and/or Retailer), all of which may impact the Fees payable by Retailer, which fees or charges shall automatically apply to, and shall be passed through to, Retailer in the form, amounts and as of the date indicated by the relevant Provider. For the avoidance of doubt, such increases or different charges or fees by a Provider will not entitle Retailer to any termination right.
5.8 Currency. Unless otherwise agreed by the Parties or expressly provided in this Agreement, all Fees and Remittances will be due and payable in USD. When processing is in other currencies, the respective banks’ and other third parties’ and Etail Depot’s prevailing conversion rates and fees will apply to each movement. Retailer is responsible for all conversion fees and rates.
5.9 Pre-Authorized Debits. Unless expressly prohibited under Applicable Law, Retailer authorizes Etail Depot to initiate debit and credit entries to the Payment Account, Fee Account, or any other account maintained by Retailer at any financial institution for amounts owed under the Agreement, which amounts may be variable (the “PA Transactions”). Retailer agrees that any withdrawals by Etail Depot in accordance with this Agreement are business pre-authorized debits. This authorization includes initiation by Etail Depot of monthly variable recurring payments and/or occasional one-time payment of any amounts payable pursuant to this Agreement. Retailer waives its right to receive pre-notification of the debit amount before such debit is processed. This authorization shall survive the termination of this Agreement and remain in effect until full and final payment of all of Retailer’s obligations. If (i) Retailer’s Payment Account or Fee Account is closed, transferred, invalid or out of funds; (ii) Retailer withdraws its authorization for Etail Depot to make withdrawals from the Payment Account(s) or Fee Account; or (iii) Etail Depot cannot access such Payment Account(s) or Fee Account for any reason, then Etail Depot may terminate this Agreement and Retailer shall immediately pay all applicable fees and damages. If a new account is opened at another branch or bank, this authorization shall have the same force and effect as if it had originally been directed to that branch or bank and Retailer shall provide Etail Depot all reasonably requested information in relation to such new account. Any delivery of this authorization to such new bank or branch shall constitute delivery by Retailer. Retailer must give Etail Depot no less than 30 days’ prior written notice of any changes to a Payment Account or Fee Account and/or cancellation of this authorization. Etail Depot will not be liable for any delays in receipt of funds or errors in debit entries. The authorization in this Section 5.9 of this General Terms Schedule applies only to the method of payment and does not have any bearing on the contractual obligations between Retailer and Etail Depot under this Agreement.
6. RETAILER OBLIGATIONS
6.1 Laws and Rules. Retailer shall maintain during the Term compliance with all Applicable Laws and Rules, as amended from time to time.
6.2 KYC Requirements. Retailer must satisfy all applicable KYC Requirements at the time of the execution of this Agreement and thereafter as may be requested by Etail Depot from time to time throughout the Term.
6.3 Marketplace’s Websites or Mobile Application. Retailer hereby represents, covenants, and warrants, throughout the term of the Agreement that the only submitted Transactions shall be those originated from the Marketplace’s website or mobile application.
6.4 Prohibited Activities. Retailer shall at all times comply with the Prohibited Activity List Schedule.
6.5 End User Disputes. Retailer will not require an End User to waive a right to dispute a Transaction or include any statement that waives or seeks to waive an End User’s right to dispute a Transaction with the relevant Payment Scheme. All disputes between Retailer and any End User, including but not limited to, disputes relating to an End User’s respective Payment Method shall be settled between Retailer and the End User and neither Etail Depot nor any Payment Scheme shall bear any responsibility for such dispute. Retailer shall respond to all End User disputes (including but not limited to those with respect to handling Chargebacks) in accordance with Applicable Law and Rules (e.g., MasterCard’s Chargeback Guide).
6.6 Etail Depot Guidelines. As a condition to receiving Services, Retailer hereby agrees and acknowledges to comply with the Etail Depot Guidelines.
6.7 Assessments. Retailer shall be solely responsible for any and all Assessments resulting, directly or indirectly from its failure to comply with Applicable Laws or Rules. In the event of such an Assessment, Retailer shall immediately pay such Assessment or alternatively, at Etail Depot’s sole discretion, reimburse Etail Depot or any of the affected parties in the processing chain (e.g., the Bank, an APMP, a Provider or otherwise). Etail Depot also shall have the right to offset the amount of such Assessments against amounts due to Retailer.
6.8 Changes to Retailer Information. Retailer shall notify Etail Depot and the Payment Schemes promptly, in writing (and where legally permissible, in advance) of any changes in the Retailer Information including, but not limited to, changes in Retailer’s business (goods and services, tradenames or URLs, geographical targets, Payment Account or Fee Account details etc.), Retailer’s location (physical address) and fixed place of business through which it conducts its business, Retailer’s directors, principals, shareholders, or beneficial ownership that results in any shareholders owning 25% or more of Retailer (including any change in control of Retailer as such term is commonly used), as well as Retailer’s financial standing and ability to meet its obligations in this Agreement. Such notice of change of Retailer Information shall include all relevant details and supporting documentation reflecting the reported changes. Etail Depot and Payment Schemes shall have the right to examine any changes in Retailer Information and determine, upon notice to Retailer, whether such changes affect, as applicable, Etail Depot’s decision to provide Services to Retailer or with regard to the manner in which Services are provided to Retailer or the Payment Schemes’ decision to process for Retailer, and whether to suspend any Remittances to Retailer, which shall be at, as applicable, Etail Depot’s reasonable discretion or Payment Schemes’ respective discretion.
6.9 Payee Terms. Under this Agreement, (i) Retailer holds Etail Depot out to the public as accepting payments for goods or services on behalf of the payee and, to that end, Retailer hereby directs Etail Depot to collect and process payments from payors on the payee’s behalf; (ii) it is hereby agreed upon that payment for the goods and services are treated as received upon receipt by Etail Depot so that the End User’s payment obligation is extinguished and there is no risk of loss to the End User if Etail Depot fails to remit the funds to the payee.
7. INDEMNITY, LIABILITY AND LIMITATION OF LIABILITY
7.1 Retailer’s Indemnification Obligations. Retailer shall at its expense and upon demand indemnify, defend and hold harmless Etail Depot Indemnified Parties from Losses, which Etail Depot suffers or incurs in relation to any Claim brought against Etail Depot Indemnified Parties by a third party where such Claim is caused by Retailer or arises out of any breach of this Agreement by Retailer or as a result of, or in connection with Retailer’s misrepresentation, breach or failure to comply with the Rules or Applicable Law and/or with respect to Retailer’s websites, trademarks, products or services, and where relevant to Etail Depot’s use of the above, and including without limitation, in relation to actual or alleged infringement, misappropriation, or violation of any third-party intellectual property rights.
7.2 Etail Depot’s Indemnification Obligations. Etail Depot shall at its expense and upon demand indemnify, defend, and hold harmless Retailer Indemnified Parties from Losses, which Retailer suffers or incurs in relation to any Claim brought against Retailer Indemnified Parties by a third party where such Claim is caused by Etail Depot or arises out of any breach of this Agreement by Etail Depot or as a result of, or in connection with Etail Depot’s misrepresentation, breach or failure to comply with the Rules or Applicable Law and/or with respect to the Etail Depot’s websites, trademarks, products or Services, and where relevant to Retailer’s use of the above, and including without limitation, in relation to actual or alleged infringement, misappropriation, or violation of any third-party intellectual property rights.
7.3 Deductions. Retailer acknowledges and agrees that (i) it bears full responsibility for all Deductions (including Chargebacks) resulting in any way from Transactions and all other amounts then due or which thereafter may become due under this Agreement, (ii) Deductions may arise during or after the term of this Agreement, and (iii) Etail Depot shall remain entitled to recover Deductions from Retailer and Retailer shall indemnify and hold Etail Depot harmless in such respect, notwithstanding any prior Remittance, termination or expiration of this Agreement. Etail Depot may collect the Deductions at Etail Depot’s option by: (i) invoicing (electronically or printed invoices permitted) the amount of the Deductions to Marketplace and/or Retailer; (ii) offsetting from any sums held by Etail Depot that are part of an upcoming payment or Remittance or any other sums held by Etail Depot that are due and owed, or that become due and owed, to Marketplace and/or Retailer (including netting for Deductions from Transactions); and/or (iii) debiting the amount from Marketplace’s account(s) and/or Retailer’s account(s).
7.4 LIMITATION OF LIABILITY
7.4.1 In addition to any limitation of liability appearing in any other provision of this Agreement, except for Retailer’s liability for Fees and Deductions (including Chargebacks), and excluding Etail Depot’s obligation to make Remittances that are initiated by Etail Depot during the Term of this Agreement, (i) a Party shall not be liable for any of the following types of Loss, regardless of the form of action, whether in contract, tort (including negligence), strict product liability, or otherwise, even if such Loss were foreseeable and even if such Party has been advised of the possibility of such Loss: (1) any indirect, special, punitive, exemplary, incidental, or consequential Loss of any kind, (2) loss or interruption of use, business, profits, sales, bargain, contract, opportunity, goodwill or anticipated savings, or (3) loss or corruption of data or otherwise; and (ii) the maximum aggregate liability of a Party for any liability and any cause of action arising under or in connection with this Agreement, howsoever arising (including by way of negligence or any other theory of law), shall be limited to the: (y) Fees paid by Retailer to Etail Depot during the three hundred sixty five (365) days immediately preceding the date on which the relevant cause of action arose for any cause of action that is in connection with a violation of a Party’s obligations under the Data Protection Schedule; and (z) Fees paid by Retailer to Etail Depot during the one hundred eighty (180) days immediately preceding the date on which the relevant cause of action arose for any cause of action that is in connection with all other claims (other than a violation of a Party’s obligations under the Data Protection Schedule). For greater certainty, any amounts paid by a Party pursuant to this Section 7 shall reduce the liability limit applicable to such claim by such amounts for any period for which such Party may be required to pay Losses thereafter.
7.4.2 Etail Depot shall have no liability in relation to any of Retailer’s dealings with any third-party person (such as the Marketplace) directly contracting with the Retailer (including any breach by a third-party person directly contracting with the Retailer or Retailer of any agreement between Retailer and a third-party person directly contracting with the Retailer) or any decision, action or omission of a regulatory authority including, without limitation, with respect to Settlements or availability of funds.
7.4.3 Etail Depot shall stand in the place of each of its Affiliates with respect to any claims, actions or proceedings arising out of the Agreement in respect of the Services Retailer receives from Etail Depot. Retailer acknowledges and agrees that its sole remedy, if any, for Etail Depot’s or any of its Affiliates’ failure to provide the Services as provided for in the Agreement shall be against Etail Depot pursuant to the terms of the Agreement, and that Retailer hereby expressly waives any and all separate claims against any Etail Depot Affiliate performing any part of the Services. This waiver shall apply whether such claim arises out of contract or tort law, or whether such claim lies in equity or at law and regardless of whether either party knew or should have known of the likelihood of damages arising out of such a claim.
7.4.4 Notwithstanding the provisions of this Section 7, nothing in this Agreement shall limit or exclude (i) a Party’s liability in respect of Loss suffered by the other Party arising out of such Party’s gross negligence, recklessness, willful misconduct, or fraud, (ii) Retailer’s indemnification obligations under this Agreement, (iii) Retailer’s responsibility for all Fees and Deductions (provided that Etail Depot may at its sole discretion elect to collect any such amounts in accordance with Etail Depot’s other rights and remedies set forth in the Agreement), (iv) Etail Depot’s obligation to make Remittances that are initiated by Etail Depot during the Term of this Agreement, or (v) any other Loss which cannot by Applicable Law be limited or excluded.
8.WARRANTY DISCLAIMER; THIRD PARTIES
8.1 Disclaimer. THE RETAILER RECOGNIZES THAT ETAIL DEPOT PROVIDES SERVICES ON AN “AS-IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) ETAIL DEPOT SPECIFICALLY AND EXPLICITLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY TYPE OR NATURE WHATSOEVER WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, SUITABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ACCURACY IN RELATION TO OR ARISING OUT OF OR IN CONNECTION TO ANY INFORMATION PROVIDED, THE PLATFORM, SERVICES OR OTHERWISE TO ETAIL DEPOT’S PERFORMANCE; AND (II) ETAIL DEPOT MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE PLATFORM, SERVICES OR PRODUCTS OR THAT THE PLATFORM, SERVICES, PRODUCTS AND PAYMENT METHODS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY WILL BE CORRECTED.
RETAILER ACKNOWLEDGES THAT AN AUTHORIZATION FOR PAYMENT IS NEITHER A WARRANTY THAT THE PERSON PRESENTING THE AUTHORIZATION IS THE RIGHTFUL ACCOUNT HOLDER NOR A PROMISE OR GUARANTEE BY ETAIL DEPOT THAT IT WILL PAY OR ARRANGE FOR PAYMENT TO RETAILER FOR THE AUTHORIZED TRANSACTION. RETAILER ACKNOWLEDGES THAT AN AUTHORIZATION DOES NOT PREVENT A SUBSEQUENT CHARGEBACK, RETURN OR REVERSAL OF A PREVIOUSLY AUTHORIZED TRANSACTION PURSUANT TO THIS AGREEMENT.
8.2 Third Parties. Retailer acknowledges and understands that certain components of the Services will rely on third parties (e.g., Providers, ISPs, banks, processing networks, money transfer systems, external data bases, etc.) and are subject to such third party’s solvency, acts or omissions, performance, availability, service levels, availability of processed funds, and terms and conditions. Etail Depot shall not be responsible for the acts and omissions of Providers or third parties over whom it has no control.
9.DOCUMENTATION AND INFORMATION
9.1 Reporting Systems. Retailer understands and acknowledges that Etail Depot may be required under Applicable Laws or Rules to report Retailer’s business name and the names and other identification of its principals to the alerting services or reporting systems maintained by the Payment Schemes, including the Visa Merchant Alert Service or the Mastercard Alert To Control High-risk Merchants file. Retailer expressly agrees and consents to such reporting.
9.2 Requests for Information; Reports. Retailer shall fully cooperate with Etail Depot’s initial and ongoing reasonable requests for Retailer Information, including by providing Etail Depot with any required documentation and executing any required agreements, instruments, and other certifications as part of the Application. At Etail Depot’s request, Retailer shall provide evidence of its compliance with the Agreement to Etail Depot’s satisfaction, in Etail Depot’s reasonable discretion. Etail Depot may hold amounts owing to Retailer (including settlement amounts) pending the provision of such information, which may include copies of Retailer’s business license, articles of incorporation, tax information requirements and authentication of business owner(s) or director(s) identity, and/or other documentation, including without limitation the Retailer Information and the documentation required to meet KYC banking mandates and the requirements of anti-money laundering legislation. Retailer authorizes Etail Depot, or any credit bureau or any credit reporting agency engaged by Etail Depot or any agents of Etail Depot, to investigate the references provided or any other statements or data obtained from Retailer, or any of the above principals, for the purpose of this Agreement, including in connection with the processing of the Application. In connection with the foregoing, Retailer authorizes Etail Depot to obtain credit reports regarding Retailer on an annual basis, unless Etail Depot determines that it is necessary for Etail Depot to periodically obtain Retailer’s credit report on a more than annual basis, in which case Retailer authorizes Etail Depot to obtain such additional credit reports. Notwithstanding anything in this Section 9.2, Retailer authorizes Etail Depot to obtain a credit report regarding Retailer if increased Retailer processing amounts or parameters are requested, or if sporadic Retailer transactional volume is originated.
9.3 Audits. Etail Depot, the Bank, or any Provider, regulatory authorities/agencies with jurisdiction over Etail Depot, the Bank, and/or Providers are entitled to conduct investigations and/or audits of Retailer on an annual or incident basis or with such other frequency as may be required to comply with the Rules or Applicable law in order to enable such parties to ensure compliance with the Rules, Applicable Law and provisions of this as well as to ensure compliance with the requirements of such organizations and agencies. This may include, but not be limited to, inspection of Retailer’s business premises and may include performance of security audits as well as any information or documentation collected relating to the End User. In connection with the foregoing, upon Etail Depot’s request, Retailer shall promptly disclose any required information, allow access to its premises, books and records, and provide full cooperation, and where applicable, ensure the cooperation of its technical service providers and other subcontractors. Each Party shall bear its own costs and expenses of any such investigation and/or audit required under this Section 9.3.
10.SECURITY INTEREST
To secure payment of Retailer’s obligations under this Agreement, Retailer grants to Etail Depot a security interest in all now existing or hereafter acquired: (a) Transactions records or documents evidencing the sale Transaction (including any refund or price adjustment relating to the same), and other items submitted to Etail Depot for processing by or for Retailer; (b) accounts receivable and payment rights relating to or arising from this Agreement, including all amounts due Retailer (including any rights to receive credits or payments hereunder); (c) accounts including without limitation all deposit accounts maintained with Etail Depot or any institution other than Etail Depot in the name of or for the benefit of, Retailer or any guarantor of Retailer’s obligations under this Agreement; (d) deposits, regardless of source, to Retailer’s or any guarantor’s accounts with Etail Depot or any institution other than Etail Depot; (e) all deposits and all other property and funds deposited by Retailer or withheld by Etail Depot, including funds and property withheld as the result of security monitoring; and (f) proceeds of the foregoing. As between Bank and Etail Depot, Bank shall have a security interest in the foregoing and Bank’s security interest in the foregoing shall have priority over Etail Depot’s security interest therein, and Etail Depot covenants and agrees to take any and all actions requested by Bank to honor such priority and allow Bank to perfect such superior security interest in the foregoing. If Etail Depot reasonably determines that Retailer has breached any obligation under this Agreement, or that proceeds of Retailer’s future card sales are unlikely to cover anticipated Chargebacks, credits, fees and adjustments, as reasonably determined by Etail Depot (whether because this Agreement has been terminated or for any other reason), Etail Depot may setoff or otherwise exercise its security interest without notice or demand by immediately withdrawing from or freezing any account or otherwise exercising its rights under this Agreement or those rights available under Applicable Law, including the Uniform Commercial Code, or in equity. In addition to the collateral pledged above, Etail Depot may require Retailer to furnish such other and different security as Etail Depot deems appropriate in its sole discretion to secure Retailer’s obligations under this Agreement. Etail Depot may fully or partially prohibit withdrawal by Retailer of funds from Retailer’s deposit accounts maintained with Etail Depot or financial institutions other than Etail Depot, pending Etail Depot’s determination from time to time to exercise its rights as a secured party against such accounts in partial or full payment of Retailer’s obligations to Etail Depot. Retailer will execute any documents and take any actions required to comply with and perfect any security interest under this Section, at Retailer’s cost. Retailer represents and warrants that no other party has a security interest or lien in any of the collateral pledged above, and Retailer will obtain Etail Depot’s written consent before it grants a lien or security interest in that pledged collateral to any other person. Retailer shall not assign to any third party any payments due to it under this Agreement, and all indebtedness arising from Transactions will be for bona fide sales of goods and services (or both) at its business locations and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Retailer may sell and assign future Transaction receivables to Etail Depot, its Affiliates and/or any other cash advance funding source that partners with Etail Depot or its Affiliates, without consent from any Card Scheme. Notwithstanding the foregoing, Etail Depot prohibits Retailer from selling or assigning future Transaction receivables to any third party without Etail Depot’s prior written consent. Retailer shall not be entitled to any interest or any other compensation whatsoever in respect of any sums processed or held by Etail Depot in accordance with the provisions of this Agreement. Retailer has no right to offset under this Agreement, including in the event that Retailer is required to make a payment under this Section 10.
11.CHANGES
Etail Depot shall have the right, upon thirty (30) days’ notice (unless a shorter term is mandated by a Provider or to comply with any Applicable Laws or Rules), to change the terms, conditions or specifications of any of the Services due to (i) changes in the Services which are made at the request of a Provider; or (ii) changes in Applicable Laws, Rules or any Provider’s requirements which affect Etail Depot’s ability to provide the Services or Retailer’s ability to use or receive the Services. Changes in the Services which are made at Retailer’s request and the resulting impact on Fees (if any) shall be addressed by the Parties separately in an agreement or addendum mutually satisfactory to the Parties.
12. OWNERSHIP; LICENSE; TRADEMARKS
12.1 Ownership. Retailer acknowledges and agrees that all right, title, and interest in and to any and all intellectual property rights of all types or nature whatsoever, including, without limitation, patents, copyrights, trademarks, as well as moral rights, know-how and trade secrets (and any licenses in connection with any of the same), whether or not registered or capable of registration, and whether subsisting in any specific country or countries or any other part of the world, in the Platform and Services are and will remain solely and exclusively the property of Etail Depot, its Affiliates and/or its licensors. Retailer is granted no title or ownership rights in the Services and Platform and any parts thereof. Retailer further acknowledges that Etail Depot considers the Platform and the Services to contain trade secrets. Retailer’s right to use the Platform or Services and any part of the Platform or Services is strictly limited to the rights provided in this Agreement and Etail Depot reserves all rights not expressly granted herein.
12.2 License. Subject to the terms and conditions of this Agreement, and contingent upon payment of the Fees hereunder, Etail Depot grants Retailer a personal, limited, non-exclusive, non-transferable right during the Term of this Agreement to access and use the Platform and Services in connection with the purposes set out in this Agreement and as specifically permitted by Etail Depot for Retailer’s internal purposes and solely as necessary for Retailer’s use of the Services in accordance with this Agreement. Retailer will ensure that Retailer’s installation, configuration, and use of Platform and Services shall conform substantially to specifications set forth in the applicable Services Documentation. Retailer may not (i) distribute, sell, license, sublicense, assign, reproduce, transfer, pledge, or share the Platform or Services and any part of the Platform or Services, and/or any of its rights under this Agreement; or (ii) make the Platform or any part thereof available to others in a service bureau or outsourcing arrangement or for any othe
