Terms and Conditions

THIS AGREEMENT shall be entered into and dated on the date that the confirmation notice referred in clause 23.7 of this Agreement will be sent to the MERCHANT (“Effective Date”) by and between:

TRUEVO PAYMENTS LTD. a company registered and existing under the laws of Malta bearing company registration number C 62721, and currently having its registered address and principal place of business at The Watercourse, 3rd Floor, Triq L-Imdina, Zone 2 Central Business District, Birkirkara, Malta, CBD2010 Malta (“Truevo”); and

THE MERCHANT  as defined in the Agreement;

each of which a “Party” and collectively, the “Parties”.

WHEREAS:

  1. Truevo is authorised and regulated by the Malta Financial Services Authority to provide payment services as a payment institution in terms of the Financial Institutions Act (Cap. 376 of the Laws of Malta). Truevo is also registered as a payment institution in the Payment Institutions Register of the European Banking Authority;
  2. The Merchant wishes to accept electronic forms of payment for its goods and/or services; and
  3. The Merchant wishes to avail itself of the services offered by Truevo under the terms and subject to the conditions set forth in this Agreement and any other Additional Services which may be signed and executed by the Parties from time to time.

The Parties have agreed as follows:

1.           DEFINITIONS AND INTERPRETATIONS

1.1        The following capitalized terms shall bear the meaning attributed thereto:

Additional Services” shall refer to any other service and/or product provided to the Merchant by Truevo, as agreed to between the Parties from time to time;

Adjustments” shall mean all Refunds, returns, adjustments, fees, Penalties, surcharges, expenses (including but not limited to legal expenses), Interchange Fees and similar fees and assessments, and other payments or amounts due from Merchant or for which Merchant is liable under this Agreement or otherwise with respect to the Services and/or Additional Services or Transactions, and shall include, for the avoidance of doubt, any amounts due as a result of a Chargeback or Refund;

Agreement” shall mean this agreement in its entirety, including any and all Service Schedules and any other schedules and annexes thereto, the Other Terms and Conditions, the Card Association Rules and any relevant and applicable guidelines, procedures, rules or conditions issued by Truevo, as the same may be amended from time to time;

Applicable Laws” shall mean all statutes, laws, regulations, orders, rules, directions, judgments, decisions, recommendations, policy, made by a regulatory or other public authority with binding effect in force from time to time, applicable to a party and relevant to this Agreement, including those regarding the execution and performance by the Merchant of its obligations under this Agreement;

Business Day” shall mean any day other than a Saturday or a Sunday on which banks are open for business in Malta;

Card” shall mean any valid payment instrument issued under a Card Association bearing the Card Association Marks and issued by a card issuing member of that Card Association pursuant to the Card Association Rules of that Card Association, which is accepted by a Merchant pursuant to the terms of a Merchant Agreement;

Cardholder” shall mean a person to whom a Card has been issued and acting as a customer of the Merchant;

Card Association” or “Card Scheme”shall mean (a) VISA International, Inc., VISA Europe Inc., MasterCard Inc.; (b) any other association or entity added after the Effective Date which facilitates the clearing and settlement of Transactions; and (c) and any successor organisation or association of any of the above, in relation to which Truevo is registered as a member or otherwise authorised to process Transactions;

Card Association Marks shall mean the names, logos, service marks, trademarks, trade names, taglines or any other property designations belonging to any Card Association;

Card Association Rules” or “Card Scheme Rules”shall mean all current and future by-laws, rules, regulations, interpretations and other guidelines promulgated by any Card Association from time to time;

CBM Directive No.1” shall mean directive number one (1) issued by the Central Bank of Malta in terms of the Central Bank of Malta Act (Cap. 204 of the laws of Malta) on the provision and use of payment services, transposing title three (3) and four (4) of Directive (EU) 2015/2366;

Change of Control” shall mean the occurrence of any of the following events: (i) an acquisition of the direct or indirect holding in a Merchant by another entity by means of any transaction or series of related transactions (including, without limitation, any reorganization, merger or consolidation but excluding any merger effected exclusively for the purpose of changing the domicile of the Company) representing fifty per cent (50%) or more of the equity and/or voting rights in the Merchant, or (ii) a sale of all or substantially all of the assets of the Merchant;

Chargeback” shall mean the reversal of a Transaction in accordance with the applicable Card Association Rules, including any fees, costs and expenses of collection related thereto;

Chargeback Period” shall have the meaning in clause 13.4;

Claims” shall have the meaning in clause 10.1;

Confidential Information” shall mean all confidential information, in whatever form (including written or oral), disclosed by one party to the other, including but not limited to (i) any and all trade secrets; (ii) any commercial, marketing, technical or other information relating to the business activities of the Parties; and (iii) any other information of whatever nature made available to a Party by another Party which would reasonably be understood to be confidential;

Customer” shall mean any person who purchases goods or services from the Merchant, which may include without limitation a Cardholder;

Data Protection Rules” shall mean all Applicable Laws relating to the processing of personal data and privacy, including but not limited to the General Data Protection Regulation (EU Regulation 2016/679) (the “GDPR”), the Data Protection Act (Cap. 586 of the laws of Malta) and any subsidiary legislation enacted under the said Data Protection Act;

Event of Default” shall have the meaning set out in clause 11.1 of this Agreement;

Excessive Chargeback” shall mean such level of Chargeback which exceeds the thresholds stipulated by the Card Associations for time to time;

Fees” shall mean the fees, as agreed between Truevo and the Merchant, which Truevo is entitled to deduct before a payment is made to the Settlement Accounts, as indicated in the applicable Service Schedule/s between the Parties attached;

Force Majeure” shall mean an unforeseeable circumstance where the performance of Truevo’s obligations under this agreement is not reasonable or practical. Such circumstances include natural calamities, accidents, fires, public disorders, walkouts, revolutions, hostilities, legislative acts, government orders and directives of the authorities, which directly or indirectly prohibit the types of business stipulated herein;

Gross Fees” shall mean those fees the Transaction amount without any deduction of the Fees (as described in the Fee Schedule) in respect of each Transaction processed by the Merchant by means of the Service;

IFR”    shall mean the Interchange Fee Regulation (EU 2015/751);

Intellectual Property Rights” shall mean all contingent and future intellectual property rights including goodwill, reputation, rights in Confidential Information, copyright, compilations, trademarks, logos, service marks, design rights, patents, know-how, trade secrets, inventions, get-up, database rights and any other proprietary rights (in each case whether registered or unregistered) and any applications or registrations for the protection of these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created;

Interchange Fee shall refer to such fee as indicated in the respective Service Schedule;

Malta” means the Republic of Malta and “Maltese” shall be construed accordingly;

“Merchant” means the merchant having the details as per the Merchant Application Form;

“Merchant Application Form”  shall mean the electronic application form provided by Truevo to the Merchant before on-boarding the Merchant, which is subsequently filled-in, approved and electronically signed by the Merchant in order for Truevo to be able of offer its Services under this Agreement;

Merchant Funds” shall mean the funds held by the Merchant in the Truevo Settlement Account;

Merchant Information” shall mean the information, documents, websites and data (relating to the Merchant or third parties or otherwise) provided by the Merchant as may be requested by Truevo from time to time;

Merchant Settlement Account” shall mean the account held by the Merchant with a credit or a financial institution the details of which have been provided by the Merchant to Truevo for settlement of funds due to the Merchant, as approved by Truevo;

Merchant Website” shall mean the website of the Merchant, which honours the Card for payments to be made by the Cardholder of the goods and services sold by the Merchant;

MID” shall mean an identifier assigned by Truevo to the Merchant;

PCI-DSS” shall mean the Payment Card Industry Data Security Standard and the Payment Application Data Security Standard as updated from time to time and published by the Payment Card Industry Security Standards Council at https://www.pcisecuritystandards.org;

Penalties” shall mean any fine or amount (including any associated costs) which may be levied on Truevo or Merchant by the Card Associations as a result of a breach of the Card Association Rules, including without limitation any such fines or amounts the quantum of which is dependent on or affected by factors external to the Merchant, such as breaches of merchant location rules;

Personal Data” shall have the meaning as set out in clause 8.1;

PIN”shall means the Personal Identification Number issued (or changed by the Merchant) for use with the Commercial Card;

Provider” shall mean an entity that has introduced, referred, or provided the Merchant one or more Merchants to Truevo for the provision of Services by Truevo to the Merchant. Such Provider would typically be authorised to act for and on behalf the Merchant/s in relation to such Merchant’s/s’ Services with Truevo;

PSD II” means the Directive 2015/2366 as transposed in Maltese law through the CBM Directive No.1 and the Financial Institutions Act;

Other Terms and Conditions” shall mean the terms and conditions set out in the document titled as such, as the same may be amended from time to time by Truevo at its sole discretion. The latest version of the Other Terms and Conditions is published at the following website: https://truevo.com/terms-of-use/.

Refund” shall mean a Transaction initiated by the Merchant to effect a credit or refund to Truevo Settlement Account and linked directly to a prior sales Transaction. This includes a Transaction initiated by Merchant that results in a credit to a Card for a purpose other than refunding a purchase;

Reserve” shall mean an amount withheld and retained from the Merchant by Truevo (based on a reasonable assessment of the potential Adjustments, exposure and other liabilities and on the basis of the information provided by the Merchant regarding its anticipated use of any of the Services at the time of onboarding), as a security against any sums due (including but not limited to Chargebacks) to Truevo by the Merchant under the respective Service Schedule. The Reserve may take the form either of a fixed sum or a percentage of the settlement funds (Rolling Reserve) as may be set by Truevo from time to time and may be funded by one or more of the following means: (i) an extended settlement period of settlement funds to Merchant; (ii) one or more deductions or offsets to any settlement funds otherwise due to Merchant before any deductions or payments are made from the amounts processed by the Merchant and/or (iii) transfer of a monetary value to Truevo by or on behalf of Merchant;

Services” shall mean the services and/or products provided to the Merchant by Truevo as agreed to in the relevant Service Schedules annexed to this Agreement;

Service Schedule(s)” shall mean the specific terms of the services and/or products selected by the Merchant for provision by Truevo;

Term” shall have the meaning as set out in clause 15.1.

Third-Party sub-contractors” shall have the meaning as set out in clause 8.9.1;

Transaction” shall mean any purchase, return or Refund by a Card, for the payment of goods and/or services provided to Cardholders by the Merchant, regardless whether the Transaction is approved or declined. The term ‘Transaction’ shall include credits, error and Adjustments;

Truevo Settlement Account” shall mean the account held by Truevo with a credit institution or a financial institution, and where Merchant deposits Merchant Funds. Truevo will maintain one or more Truevo Settlement Accounts, and such accounts may hold the funds and monies of other Merchants.

VAT” shall mean value added tax imposed by the Value Added Tax Act, Chapter 406 of the laws of Malta and legislation and regulations supplemental thereto and includes any other tax of a similar fiscal nature whether imposed in Malta (instead of or in addition to value added tax) or elsewhere from time to time.

1.2        References to Clauses and Sub-clauses are to clauses and sub-clauses of this Agreement.

1.3        A reference to any statute or statutory provision shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or re-enacted.

1.4        Headings to Clauses and Schedules are for convenience only and do not affect the interpretation of this Agreement.

1.5        Where a Merchant acts through a Provider, any reference to Merchant shall also include its Provider.

1.6        Any obligation which Truevo has to fulfill in favour of a Merchant/s shall be deemed to be satisfied if the same obligation is fulfilled in favour of a Provider entitled to represent a Merchant/s.

2.           SCOPE AND PROVISION OF SERVICES

2.1        This Agreement sets forth the terms under which the Merchant shall, for the purpose of conducting its business, engage and receive Services from Truevo in relation to the services listed in the Service Schedule(s) hereof as the same may be amended from time to time, in accordance with the terms and subject to the conditions contained in this Agreement.

2.2        In consideration for the supply of the Services, the Merchant shall pay the Fees as duly notified by Truevo.

2.3        The Parties agrees that Title III of the Payment Services Directive as implemented in terms of Maltese law or any other law applicable to the Parties, as well as any equivalent or similar requirements under any succeeding legislation, shall not apply between the Parties insofar as such disapplication is permissible under the Payment Services Directive or any succeeding legislation.

3.           RIGHTS AND OBLIGATIONS OF THE PARTIES

3.1  Card Association Rules

3.1.1      The Merchant agrees to comply with all the applicable Card Association Rules and with any instructions, policies and procedures provided by Truevo. The Merchant will execute and/or deliver to Truevo all such instruments and documents that Truevo may from time to time reasonably deem necessary to verify the compliance of the Merchant with this clause. Furthermore, the Merchant acknowledges that the Card Associations have the right to audit the business of the Merchant to confirm compliance with the Card Association Rules.

3.2  Card Association Marks

3.2.1      The Merchant shall prominently display the Card Association Marks and logos on the Merchant Website(s) Provided that Truevo reserves the sole right to require the Merchant to display any promotional material of Truevo under any terms and conditions that Truevo deems fit. Any such display shall be removed by the Merchant immediately at the request of Truevo or upon termination of the Agreement. The Merchant shall not use the Card Association Marks in a way that is or may be detrimental to the business of brand of the relevant Card Association and shall immediately stop displaying, distributing or otherwise making use of any or all the Card Association Marks upon request by any Card Association and/or Truevo acting on behalf of any applicable Card Association.

3.3  Due Diligence.

3.3.1      Truevo shall, at all times, have the right to request any Merchant Information from the Merchant for the purposes of verifying (i) the identity of the Merchant, its shareholders, and directors; (ii) the proposed business activities of the Merchant; (iii) the ongoing compliance of the Merchant with this Agreement, including the Service Schedules, the Card Association Rules and/or any applicable laws; (iv) the risk profile of the Merchant, including but not limited to, the financial position of the Merchant; (v) the ability and willingness of Truevo to provide the Services to the Merchant; and (vi) whether the Merchant Information provided to Truevo by the Merchant, or any Merchant Information relating to the Merchant and obtained by Truevo is true and correct;

3.3.2      The Merchant shall provide any Merchant Information requested by Truevo within ten (10) Business Days (or any other time frame as may be mandated by the Card Associations and/or the competent authorities) from the date of any such request by Truevo. Failure to provide such Merchant Information as requested by Truevo (in the absence no reasonable grounds for such failure as determined by Truevo) shall constitute an Event of Default for the purposes of this Agreement.

3.3.3      Furthermore, the Merchant shall, (i) provide reasonable assistance as Truevo may require for the prevention and detection of money laundering, funding of terrorism and/or any other fraudulent or criminal activity, and for the general compliance with the Agreement and with any applicable laws; and (ii) cooperate with Truevo in the event that an inspection must be carried out at the premises of the Merchant for the purpose of ascertaining compliance with this Agreement.

3.3.4      Truevo shall maintain any Merchant Information for a period of five (5) years in pursuance of its anti-money laundering obligations under the Applicable Laws. Competent authorities in Malta are entitled to demand that such records, including Personal Data, be retained by Truevo for longer periods, when this extension is considered necessary for the purposes of the prevention, detection, analysis and investigation of money laundering and financing of terrorism. Unless otherwise required by any Applicable Law or by the Card Association Rules, Truevo will not hold the Merchant Information for a period exceeding ten (10) years in total.

3.4  Merchant Website (if applicable)

3.4.1      The Merchant shall be responsible for establishing, hosting and maintaining the Merchant Website and its connection to the Internet, fulfilling all orders for products and services sold by Merchant to its users on the Merchant Website(s) or otherwise, including without limitation transmitting the Transaction information and data of the Merchant to Truevo servers and ensuring that the information and data transmitted is accurate, complete and in the form requested by Truevo, and is not corrupted due to the Merchant’s systems. The Merchant is also responsible for reviewing the entries in its Merchant Account on a regular basis and notifying Truevo promptly of suspected unauthorised activity through its Merchant Account.

3.4.2      The Merchant shall be responsible for maintaining commercially reasonable business practices, ensuring the security and privacy of its Merchant data and complying with all applicable laws and regulations.

3.5  Ongoing Monitoring

3.5.1      The Merchant acknowledges that it shall be subject to periodic ongoing monitoring which shall include, but is not limited to, the periodic review of the physical location of the Merchant and/or Merchant Website(s). In the event that a breach has been found as a result of such periodic monitoring, such costs shall be borne by the Merchant. The Merchant shall grant Truevo reasonable access to the physical location as Truevo may require for the purpose of this clause.

3.5.2      Where the Merchant is requested to make any change to Merchant Website(s) or any other requirement in light of ongoing monitoring and/or compliance with the Card Association Rules, the Merchant shall make any such change(s) within ten (10) Business Days (or any other time frame as may be mandated by the Card Associations and/or the competent authorities) from the date of such request by Truevo. Failure to provide such documentation and/or Merchant Information as requested by Truevo (in the absence no reasonable grounds for such failure as determined by Truevo) shall constitute an Event of Default for the purposes of this Agreement.

3.6  Notification to Truevo

3.6.1      Merchant shall, without unreasonable delay, inform Truevo of any change in any Merchant Information provided to (either directly by Merchant or by the Provider, as the case may be) or otherwise held by Truevo, and which relates to the Merchant, its business, it products and/or services, its corporate structure, and/or the location of the Merchant.

3.6.2      Merchant shall be responsible to immediately inform Truevo in writing in the event of: (i) an occurrence or the likelihood of an occurrence pursuant to which the carrying out of its business would or is likely to be considered unlawful under Applicable Laws; (ii) any change in circumstances which may affect the condition or status or ability of the Merchant to perform its obligations under the Agreement or in the event that the Merchant is or is likely to be unable to pay its debts; and /or (iii) of a Change of Control. Truevo shall not be held liable for any Fees, charges, Penalties, or fines incurred as a result of the Merchant not notifying Truevo of such changes. In the event that Truevo incurs any such Fees, charges, Penalties or fines, the Merchant shall promptly indemnify Truevo for such fees, charges, Penalties or fines.

3.6.3      The Merchant must ensure that the Cardholder is easily able to understand that the Merchant is responsible for the Transaction, including delivery of the goods (whether physical or digital) or provision of the services that are the subject of the Transaction, and for customer service and dispute resolution, all in accordance with the terms applicable to the Transaction.

4.           COMMUNICATIONS, NOTICES AND COMPLAINTS

4.1        Truevo shall contact the Merchant or the Provider in the English language, by post, telephone, or electronic mail using the details the Merchant or Provider has provided.

4.2        Certain forms of communication are not completely secure, and the Merchant shall take adequate precautions to ensure that others do not access, read or use any information contained in any communication between Truevo and the Merchant. Truevo shall not be liable if due to circumstances beyond its reasonable control, communications are intercepted, delayed, corrupted, not received or received by persons other than the Merchant or Provider.

4.3        Truevo shall send information to the Merchant or Provider using the most recent contact details that the Merchant has provided to Truevo and the Merchant or Provider shall notify Truevo promptly about any change in the Merchant’s or Provider’s contact details.

4.4        The Merchant or Provider may contact Truevo by post, telephone or electronic mail using the details Truevo provides, unless otherwise specifically stated in this Agreement and/or any Service Schedule(s), and Truevo shall inform the Merchant or Provider should such details change.

4.5        Any notice delivered by prepaid post will be deemed to have been received five (5) days after dispatch and evidence that the notice was properly addressed, stamped and sent by post will constitute conclusive evidence of posting. Any notice sent by electronic mail or delivered by hand will be deemed to have been received on the date on which it is sent or delivered, and failure to receive any confirmation shall not invalidate such notice.

4.6        In case the Merchant has a complaint related to the Services, the Merchant has to contact Truevo in writing on complaints@truevo.com . Truevo shall do its best to resolve the complaint as soon as possible and send the Merchant or Provider a final response by email within fifteen (15) Business Days of receiving the complaint. If, in exceptional circumstances, for reasons beyond Truevo’s control, Truevo needs more time to respond, Truevo shall send the Merchant or Provider a holding reply within fifteen (15) Business Days of receiving the Merchant’s complaint to let the Merchant or Provider know when it will receive Truevo’s final response (which will be no later than thirty-five (35) Business Days from the date on which we first received your complaint).

4.7        If the Merchant does not receive Truevo’s final response on time or the Merchant is unsatisfied with Truevo’s final response, the Merchant may submit its complaint to the Office of the Financial Arbiter at First Floor
St Calcedonius Square Floriana FRN 1530 Malta or via website on www.financialarbiter.org.mt.

5.           FEES

5.1        The Fees payable by the Merchant to Truevo are detailed in the applicable Service Schedules entered into and annexed to this Agreement by the Parties.

5.2        Notwithstanding the foregoing, upon the receipt of ancillary requests from the Merchant (including, but not limited to, change in provision of statements over and above the weekly statements provided, etc.), Truevo reserves the right to charge additional fees for such requests. Such additional fees shall be quoted to the Merchant prior to the fulfillment of such request and shall only be charged upon final confirmation of the Merchant to proceed with such request. Any amounts due shall be deducted from the funds in the Merchant Account, or, when unavailable, claimed directly from the Merchant.

5.3        Truevo is authorised by the Merchant to deduct and set-off any fees and/or reimbursements payable and due to it in terms of this Agreement from monies held by it for the benefit of the Merchant.

5.4        Without prejudice to the other provisions of this Agreement, Truevo may, at any time, require the Merchant to provide additional guarantees or other security for the obligations of the Merchant under this Agreement and/or to take up an insurance policy acceptable to Truevo to cover all or any of the obligations and liabilities of the Merchant under this Agreement and/or to apply Other Terms and Conditions in relation to the acceptance of Transactions of the Merchant. Truevo may rely on any such guarantees and/or other security provided to Truevo now or in the future.

5.5        In addition to the Fees set forth in the Service Schedule(s), the Merchant shall pay any additional fees, Penalties, Adjustments and other amounts levied by the Card Associations and/or the Regulator or an administrative authority.

5.6        Truevo shall be entitled to take such action as it thinks fit to enforce this Agreement and any and all Service Schedule(s) entered into by the Parties, and the Merchant shall indemnify Truevo for all costs and expenses incurred by Truevo in respect of any such enforcement action, including all legal fees, collection fee and disbursements on a full indemnity basis.

6.           INFORMATION SECURITY

6.1        The Parties must comply with the requirements of the PCI-DSS as applicable and any other data security standards issued by the Payment Card Industry Security Standards Council (or any replacement body), the Payment Method Facilitators, and any operator or governing body (or a similar body) of a Payment Method at its cost during the term of this Agreement. The Merchant will, on demand, provide Truevo with a certificate issued by a Qualified Security Assessor (as defined in relation to such standards) confirming that the Merchant and any sub-contractor of the Merchant to which such standards apply, has met such standards., including any modifications thereof or replacements of such programs that may occur from time to time.

6.2        The Parties shall ensure that they are each fully compliant with the requirements of the PCI-DSS, as applicable to each business of the Party and at its own cost. Each Party is solely responsible for any Penalties, associated costs or charges arising from non-compliance with the PCI-DSS or from data held by the Party being used for fraudulent and/or unauthorized purposes, including any investigation of the same.

6.3        If applicable, the Merchant acknowledges that its ability accept Card payments from its Merchants may be temporarily suspended during any time that the Merchant is found to be non-compliant with the requirements of the PCI-DSS.

6.4        The Merchant shall immediately notify Truevo (and the Provider, as the case may be) of (i) any suspected or confirmed breach of the PCI-DSS; and/or (ii) any loss or theft of cardholder data in accordance with clause 8.6.

7.           CONFIDENTIALITY

7.1        In addition to any obligations set forth in this Agreement, each Party agrees to keep confidential and to not disclose to any third party, the Confidential Information.

7.2        The Merchant acknowledges and agrees that Confidential Information provided pursuant to this Agreement by the Merchant, including, but not limited to, Personal Data, may be used, disclosed or processed by Truevo and its Affiliates for any or all of the following purposes: (i) to comply with applicable laws, a court order and/or other legal process; (ii) to administer and operate the Agreement, including where applicable, conducting due diligence checks and credit checks on the Merchant and its principals , and to conduct, monitor and analyse the business of Truevo; (iii) to market and sell to the Merchant, products and services offered by Truevo; (iv) to obtain advice from professional advisors; (v) to third party investors or potential third party investors in Truevo or their respective Affiliates in the event of the sale, disposal, merger, or transfer of the business of Truevo or its Affiliates, or obtaining financing for Truevo’s business, or negotiations in connection with that purpose.

8.           PROCESSING OF PERSONAL DATA AND CARDHOLDER DATA

8.1        The terms “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “process”, “processing”, “processed”, “processing”, “appropriate technical and organisational measures”, “supervisory authority/ies” and “third country transfer” shall have the same meaning as in the Data Protection Rules.

8.2        The Parties hereby acknowledge that they each act as independent data controllers within the meaning of the Data Protection Rules in respect of any Personal Data processed by them as a result of or in connection with this Agreement. The Merchant hereby accepts that Truevo will be processing its Personal Data strictly in accordance with the terms of this Agreement.

8.3        The Parties warrant and undertake that: (i) they will each duly observe their respective obligations under the applicable Data Protection Rules; and (ii) all Personal Data will be handled with care, in a confidential manner, and in accordance with the Applicable Laws and the Data Protection Rules.

8.4        The Merchant represents and warrants that it has the express authority to disclose, for the purposes of this Agreement, any Personal Data which it discloses, or otherwise provides, to Truevo regarding other persons, including, but not limited to, its employees and Cardholders. The Merchant assumes full and sole responsibility for ensuring that any Personal Data which it collects and shares with Truevo is carried out in a lawful and legitimate manner in accordance with the Applicable Laws and for obtaining any and all consents required thereto.

8.5        Personal Data may be used, processed, or disclosed (including, without limitation, to and by any Affiliate, agent or representative of the Provider (if applicable), Truevo and/or any third party service provider) in accordance with the Data Protection Rules, for such purposes as may be reasonably required in connection with the performance of the Agreement and for the purpose of enabling Truevo (and the Provider, if applicable) to fulfill their duties and obligations pursuant to this Agreement and the Card Association Rules. Notwithstanding the above, it is agreed that the information contained herein and related to the activities of the Merchant can be exchanged by Truevo with any member within the Truevo Group (Truevo Holdings Ltd and its subsidiaries), the associates and agents of the Truevo Group and with the Card Associations, whereby required to provide or facilitate the provision of the services under the agreement.

8.6        The Merchant shall take all necessary steps to prevent the transfer or disclosure of Personal Data to any third party and will not use or disclose the names, addresses, account numbers and Transactions, except as provided otherwise in this Agreement. Each Party shall have the proper organisational and technical security measures in order to prevent loss, theft and/or misuse of any Personal Data. Merchant shall immediately notify Truevo and the Provider(as the case may be), and the regulatory authorities if required, no later than three (3) Business Days after such event, of any suspected or confirmed compromise of any Personal Data or data relating to a Transaction (including any loss, theft and/or misuse). Merchant shall provide all necessary assistance and/or access to the Merchant’s premises, systems, sub-contractors, and/or other services providers and their systems to Truevo, Provider, Card Associations and/or an independent third party authorized by them in order to (i) rectify any issues arising from the data compromise; (ii) verify the ability of the Merchant to prevent future compromises in a manner that is consistent with the requirements of the Card Association Rules or applicable laws; and (iii) take all necessary steps in order to comply with applicable Data Protection Rules. The Merchant shall undertake to rectify any weaknesses that caused the compromise within ten (10) Business Days or any other time frame as may be mandated by the Card Associations and/or the competent authority).

8.7        The Merchant acknowledges and agrees that Personal Data provided to Truevo by the Merchant may be transferred outside the European Economic Area for any and all of the foregoing reasons. In countries that do not provide for an adequate level of statutory data protection, Truevo shall ensure that Personal Data remains protected by the use of contractual safeguards such as, the EU model clauses, if and as required by the applicable laws (including, but not limited to the Data Protection Rules) applicable to Personal Data.

8.8        Where, and strictly to the extent that, either Party (the “First Party“) processes, on behalf of the other party (the latter acting as the Controller), including, without limitation, (i) the Personal Data of Customers and/or any prospective Customers of the Merchant and/or (ii) any Personal Data comprised within the data relating to any Transaction or Merchant Information, the provisions of this Clause of the Agreement shall apply between the Parties, and in this regard, the First Party (acting as the Processor) shall:

  1. only process such Personal Data in accordance with this Agreement and on the instructions of the Controller (except where required to process that personal data in terms of Applicable Laws and/or the Data Protection Rules, in which cases the First Party shall be entitled to act autonomously);
  2. have in place appropriate technical and organisational security measures to protect such data against unauthorised or unlawful processing and accidental loss, destruction or damage;
  3. ensure that all of its personnel who are given access to such data have committed themselves to confidentiality terms or are under an appropriate statutory obligation of confidentiality;
  4. be permitted and have the authorisation of the Controller to transfer or otherwise process any such Personal Data outside the European Economic Area including by, or through, any sub-contractor (or sub-processor) engaged in accordance with this Agreement, provided that the third country transfer is made in compliance with the Data Protection Rules, and is based on any one mechanism or basis set out in Chapter V of the GDPR for transfers of personal data to third countries or international organisations (Article 44 et seq), including inter alia an adequacy decision or any one of the appropriate safeguards recognised therein;
  5. taking into account the nature of the processing, assist the Controller within a reasonable timescale with the fulfilling of its obligation to respond to requests made by Data Subjects, including, but not limited to, Customers or any prospective customers of the Merchant to exercise any data subject right provided to them under the Data Protection Rules. Should the Processor receive any such requests directly, the Processor must inform the Controller that it has received the request and forthwith forward the request to the Controller. The Processor will not respond in any other way to such a request, except on the instructions of the Controller;
  6. promptly notify the Controller of any event involving an actual compromise of the security, confidentiality or integrity of such Personal Data, including but not limited to any unauthorised access or use or any loss such Personal Data (“Personal Data Breach“). The Processor shall also provide the Controller with a description of the Personal Data Breach, and to the extent that it has such information, the type of data that was the subject of the Personal Data Breach, the identity of each affected person or class of persons, and the cause of the Personal Data Breach, as soon as such information can be collected or otherwise becomes available. Furthermore, it shall be the Controller’s sole responsibility to notify the Personal Data Breach to the applicable data protection supervisory authority and, where applicable, communicate the same to the affected data subjects.

and, in connection with the foregoing, the Controller hereby consents to and authorises the appointment and use of one or more sub-processors by the First Party (as Processor) and that same First Party shall: (i) ensure in each case that the sub-processor is bound by data protection obligations no less onerous than those contained in this Clause and (ii) provide details of all such sub-processors to the Controller following a written request thereto.

8.9  Third Party sub-contractors.

8.9.1      The Merchant provides general authorization to Truevo to engage third party sub-contractors, which, as part of the sub-contractor’s role in delivering the Services to the Merchant, will process Personal Data (“Third-Party sub-contractors”) provided that this clause is adhered to by Truevo.

8.9.2      Truevo shall maintain a list of all Third-Party sub-contractors and Affiliates that may process the Personal Data, which shall be made available upon reasonable requested by the Merchant.

8.9.3      Truevo shall put in place the appropriate legal agreement with all Third-Party sub-contractors that will process Personal Data on behalf of the Merchant. Such agreements shall ensure that (i) the Third-Party sub-contractors shall process Personal Data only for and on behalf of the Merchant and only as Truevo is permitted to do so; (ii) such third parties shall have the adequate technical and organizational measures in place to protect the Personal Data against unauthorized processing and accidental or unauthorized loss, destruction, and damage, if and as required per the applicable laws (including but not limited to the Data Protection Rules) to the Personal Data; and (iii) the Third Party sub-contractors shall not make transfers of Personal Data other than to other permitted Third Party sub-contractors.

9.           REPRESENTATIONS AND WARRANTIES

9.1        The Merchant represents, warrants in favour of Truevo that, as at the date of and throughout the terms of this Agreement:

  1. it has the power to execute, deliver and perform its obligations under this Agreement in a lawful manner;
  2. it shall not misrepresent itself as being a member of any of the Card Association(s);
  3. the person(s) representing the Merchant are duly authorised to act for and on behalf of the Merchant and bind the Merchant accordingly;
  4. it shall be in possession of all necessary licences, permits, approvals as required in terms of applicable law to carry out its business lawfully;
  5. it is using the Services provided by Truevo for legitimate business purposes only and to facilitate lawful business between Merchant and its Merchants;
  6. all information and documentation provided to Truevo (either directly or via Provider, as the case may be) is true, accurate, and complete and properly reflects the corporate structure, business and financial condition of the Merchant;
  7. it is lawfully constituted or incorporated under the laws of its country of incorporation and the business of the Merchant complies with all applicable laws, Card Association Rules and any related policies, procedures and instructions provided by Truevo;
  8. it has and shall continue to have all the necessary assets and liquidity to perform its obligations under this Agreement as they become due;
  9. there is no action, suit, or proceeding pending, or to the Merchant’s knowledge, threatened which if decided adversely would impair the ability of the Merchant to carry on its business substantially or which would adversely affect Merchant’s financial condition or operations;
  10. confirms that the location of the Merchant is and for the duration of this Agreement within the licensed area of use of Truevo, as specified in the Other Terms and Conditions as may be amended from time to time;
  11. ensure at all times, that it meets the requirements as set out under the Card Association Rules, including, but not limited to, with respect to its location;
  12. it has not been refused or had terminated any card processing facility (including the processing of Original Credit Transfers, in the OCT Service Schedule referred to as OCTs) by another credit or financial institution and that the Merchant has no outstanding lawsuits or Court judgments against it or its business.
  13. it has never been placed on alert database systems of the Card Associations (such as, MATCH™ and VMSS™), or if the Merchant has, Merchant has clearly and unambiguously disclosed that fact to Truevo in writing; and
  14. it is the lawful owner of the website(s) that may be submitted for processing and has full control and authorization of the content of such website(s).

9.2  Truevo represents, warrants in favour of Merchant that, as at the date of and throughout the terms of this Agreement:

  1. it has the power to execute, deliver and perform its obligations under this Agreement in a lawful manner;
  2. the person(s) representing Truevo are duly authorised to act for and on behalf of the Truevo and bind Truevo accordingly;
  3. it shall be in possession of all necessary licences, permits, approvals as required in terms of applicable law to carry out its business lawfully; and
  4. it is lawfully constituted or incorporated under the laws of its country of incorporation and the business of Truevo complies with all applicable laws, and Card Association Rules.

9.3  Each Party represents that it shall, at all times comply with any Applicable Laws including but not limited to, laws relating to bribery and corrupt practices.

10.        INDEMNITY AND LIABILITY

10.1        The Merchant shall be liable for and shall indemnify, and hold harmless Truevo, its Affiliates, employees, directors, agents and any Card Association from and against any and all claims made by third parties threatened, asserted against any of the abovementioned indemnified parties in this clause, arising out of this Agreement, and for all other claims (third party or otherwise), actions, proceedings, loss, damages, liability, legal fees and other costs and expenses, including reasonable legal costs, Penalties, any increase in the card issue interchange fee and Chargebacks (collectively referred to as “Claims”) paid or incurred by any of the abovementioned indemnified parties in this clause, that arise out of the breach of the Agreement by the Merchant, as well as with respect to Claims resulting from or relating to (i) any Transaction processed under this Agreement; (ii) any Merchant Account assigned to Merchant; (iii) improper activity of the Merchant including improper use of the Card Association Marks; (iv) an Event of Default; (v) breach of the Card Association Rules by Merchant; (vi) any misrepresentation by, fraudulent or criminal activity of the Merchant; and (vii) a potential account data compromise resulting from the negligence of the Merchant and/or as a result of malicious software present on the host device of the Merchant or any other computer peripheral provided by the Merchant. This liability is not limited by any limitation of liability that may be expressed elsewhere in this Agreement.

10.2        Merchant shall assist Truevo as it may require in the handling of any claims or actions brought against Truevo by any cardholder or card issuer and Truevo shall be entitled to settle or otherwise deal with such claims or actions at its sole discretion.

10.3        Truevo shall be liable for and shall indemnify and hold harmless Merchant, its Affiliates, employees, directors, and agents from and against any and all claims made by third parties threatened, asserted or filed against the above mentioned indemnified parties in this clause arising out of: (i) a breach of the Card Association Rules by Truevo (not resulting, directly or indirectly, from the business activities of the Merchant); and/or (ii) any misrepresentation by, fraudulent or criminal activity of Truevo.

10.4        The Parties hereby agree that all Fees, Adjustments, and/or charges assessed by the Card Associations (either directly to Merchant or indirectly via Truevo) in connection with any act or omission done wilfully or negligently by the Merchant, shall be considered to be the liability of the Merchant and shall be charged to the Merchant. Merchant acknowledges and agrees that during the term of this Agreement and after its termination or expiration for any reason whatsoever, Merchant shall continue to bear liability for all Chargebacks, Penalties, Fees Adjustments, and indemnification obligations pursuant to this Agreement and all other amounts due or which may become due under this Agreement. This liability is not subject to any limitation of liability that may be expressed elsewhere in this Agreement.

10.5        Truevo shall provide the Services using reasonable due care and skill. Except as specifically provided by the foregoing, Truevo makes no other warranties, guarantees, or undertakings, express or implied regarding the performance of such services, and nothing contained in this Agreement will constitute a warranty. Merchant expressly agrees and acknowledges that all other condition, terms, undertaking and warranties, express or implied, or statutory in respect of the Services (including but not limited to, quality, performance, suitability or fitness for a particular purpose) are hereby excluded.

10.6        The maximum liability of Truevo under this Agreement shall not exceed in the aggregate an amount equal to the Fees paid by Merchant to Truevo for providing the Services during the six (6) months immediately prior to the first act or omission that formed the principal basis of the loss or claim being sought.

10.7        Notwithstanding anything to the contrary in this Agreement, in no event shall any Party, their Affiliates or any of their respective directors, officers, employees, agents or sub-contractors be liable for loss of profit, loss of revenues, loss of business opportunities, exemplary, punitive, special, incidental, indirect or consequential loss or damages, even if such loss was reasonably foreseeable.

10.8        No provisions in this Agreement shall limit the right of Truevo to recover from the Merchant any and all Chargebacks, Penalties, or other fines levied by the Regulator, a competent authority, and/or the Card Associations, arising from a breach by the Merchant of this Agreement, Card Association Rules, and/or any applicable laws.

10.9        Truevo shall be relieved of its liability for non-performance (partial or total) of its obligations hereunder, if such non-performance is due to circumstances of Force Majeure which Truevo could not reasonably anticipate or prevent. In the event of circumstances arising out of Force Majeure, Truevo’s obligations under this Agreement shall be suspended for the duration of the relevant circumstances, unless the performance of such obligations is in Truevo’s view not reasonable or practical, in which case, Truevo shall be entitled to immediately termination the Agreement in accordance with clause 15 of this Agreement.

10.10    In the event of Force Majeure, Truevo shall notify the Merchant (and the Provider as the case may be), in writing as soon as reasonably possible. The notice shall contain information about the nature of the circumstances arising out of Force Majeure and, if possible, an assessment of their impact on the possibility to perform its obligations under this Agreement. Neither Party shall be deemed to be in default, or be liable to the other for any delay or failure to perform, which is the direct result of a cause beyond the control and without the fault or negligence of the Party claiming excuse for such delay or failure, provided the Party claiming excuse for such cause (i) promptly notifies the other Party of the event causing such delay or failure and describes in such notice the effects of such cause and its actual or expected duration; and (ii) uses its best efforts to mitigate such effects.

10.11    Truevo shall likewise be relieved of its liability for non-performance (partial or total) of any of its obligation relating to any processing, transfer or acceptance of any fees, monies or payments whatsoever from and/or to the Merchant or any other third party if such non-performance is attributable (partially or totally) to a credit institution, correspondent bank or other third party financial institution used by Truevo to process such transfer. The Merchant hereby accepts that Truevo is authorized to suspend any payments due to the Merchant in the scenario contemplated for in this sub-clause. Furthermore, the Merchant acknowledges that Truevo shall not be held liable or assume any responsibility for any loss of any funds deposited or held with a credit institution or other financial institution caused by the fact that such credit institution or other financial institution has become financially distressed, unable to make any payments or for any reason has suspended its services or ceased to operate or has been forced to do so by any regulatory authority. The Merchant hereby also gives its irrevocable consent to Truevo to allow the same to deposit any funds in connection with this Agreement with any credit institution or other financial institution of Truevo’s sole choice.

10.12    The Merchant shall hold harmless Truevo against all claims (whether arising by the Merchant or by any third party) for any act performed by Truevo in accordance with its discretion on whether to terminate or to offer any service mentioned in this Agreement.

11.        EVENTS OF DEFAULT

11.1        Each of the following events shall constitute an Event of Default for the purposes of this Agreement:

  1. the Merchant commits or is suspected to have committed any fraudulent or criminal activity or any other act that causes harm or loss of goodwill to Truevo, the applicable Card Associations or any of their Affiliates, partners, distributors or agents;
  2. there is a risk as reasonably determined by Truevo that the Merchant will be unwilling or unable to meet its obligations under this Agreement;
  3. the Merchant experiences a escalation of Chargebacks in a given period of time as reasonably determined by Truevo;
  4. it transpires that the Merchant has provided Truevo with false, inaccurate, incomplete or misleading information;
  5. the Merchant discontinues its operation or changes the trading name, the nature of its business, or ownership;
  6. the Merchant processes Transactions through Truevo, which are not of the nature as specified in the executed Service Schedule(s) entered into by and between the Parties and/or such transactions are of a fraudulent and/or illegal nature, or are such which the Merchant should have been aware that they are of a fraudulent and/or illegal nature;
  7. the Merchant fails to cooperate with Truevo in providing the required documentation and/or information in accordance with clause 3.5.2 to this Agreement;
  8. the risk profile of the Merchant and/or the transactions change significantly including, but not limited to, an escalation of fraud, Chargebacks or Excessive Chargeback levels, counts and/or volumes;
  9. if Merchant is unable to pay its debts as and when such debts fall due or becomes bankrupt or insolvent, or has a receiver or manager, provisional liquidator, liquidator or administrator appointed in respect of any material part of its assets or suffers an execution in respect to any of its property, or if a petition is presented for the winding up and such petition is not released, satisfied, withdrawn within thirty (30) calendar days;
  10. the Merchant has committed any material breach of this Agreement (including, but not limited to, the Service Schedules) entered into by the Parties or in the case of a breach capable of remedy, did not remedy the same within thirty (30) days or such other period stipulated by Truevo;
  11. in the case of the Merchant’s non-compliance with any Applicable Law and/or the Card Associations mandatory obligations and/or requests, including but not limited to those of an operational and/or technical nature;
  12. in Truevo’s sole view, the Merchant engages in prohibited practices in terms of the Card Association Rules and/or applicable law;
  13. if any event or a series of events occur, which in Truevo’s opinion may affect the Merchant’s ability or willingness to comply with any of his obligations under this Agreement (including, but not limited to, the Service Schedules) entered into by the Parties;
  14. if any one of the Card Associations and/or the competent authorities instructs Truevo to modify, suspend or terminate any one of the Services;
  15. any MID balance is negative and is not remedied within fourteen (14) calendar days or other period stipulated by Truevo;
  16. where Truevo is required to investigate suspicious or unusual Transaction activity or where Truevo has reasonable suspicion of money laundering or any other fraudulent or criminal activity. In all events, Merchant must give reasonable assistance to Truevo and/or the Provider in the prevention and detection of fraud;
  17. any additional Event of Default as described in the Agreement or any Service Schedule for any reason valid at law.
12.        REMEDIES

12.1    Should any Event of Default occur, Truevo reserves the right to:

  1. immediately modify and/or suspend the provision of any one of the Services or all of the Services by – inter alia – withholding payments due to the Merchant (without prejudice to any Reserve) and/or to amend or establish any condition applying to the Merchant including but not limited to the Fees; and/or
  2. withdraw from any Merchant Funds, without any prior notice, an amount by way of penalty which in Truevo’s discretion is reasonable and commensurate to the Event of Default in question; and/or
  3. terminate the Agreement, should any Event of Default subsist for more than ten (10) Business Days or any other time period as determined by Truevo, after the modification and/or suspension has been effected.

12.2    Truevo shall have no liability for any losses that the Merchant may attribute to any modification, suspension and/or termination of the Service(s), including, but not limited to, the withholding of settlement funds.

12.3    In the event of any suspension or termination for any reason whatsoever, Truevo reserves the right to:

  1. suspend payment of any amounts payable to the Merchant or withhold any future amounts payable to the Merchant as may be applicable in order to safeguard its interests for a period of time as reasonably determined by Truevo when deemed necessary and this without prejudice to Truevo’s right to seek reimbursement and indemnification from the Merchant if such amounts are insufficient; and/or
  2. impose a penalty for any reputational damage that it might incur as a result of any act or omission of the Merchant for non-compliance with any Card Association Rules or any Applicable Laws. For the scope of this sub-clause, the term ‘reputational damage’ shall include but not be limited to unwanted or unfavourable publicity to Truevo, its directors, related companies or employees as a result of any Merchant’s act or omission. Provided that such reputational damage shall be deemed to be presumed should the Card Associations issue any Penalties as defined in this Agreement.
13.        RESERVE

13.1     Without prejudice to Truevo’s rights in terms of the Agreement to withhold any payments due to the Merchant, Truevo may establish a Reserve, as may be stipulated by Truevo from time to time, for the purpose of providing a source of funds to pay Truevo for any and all amounts owed by Merchant pursuant to this Agreement, as a condition of providing any of the Services to the Merchant. Truevo reserves the right to, at any time, review, adjust and increase the level/amount of the Reserve. Any funds held by Truevo as Reserve shall be held in accordance with Applicable Laws. The Reserve may be used for any form of contractual compensation as defined in this Agreement. Furthermore, a guarantee may be required as a security against potential liabilities arising under this Agreement.

13.2     Truevo may hold as a Reserve funds it would otherwise be obligated to pay to the Merchant. In the event that Truevo requires that Merchant should transfer into the Reserve additional funds, Merchant is entitled to refuse such request. In such event, Truevo may, among other remedies, terminate this Agreement or suspend providing any of the Services pursuant to this Agreement, without prior notice.

13.3     Merchant hereby gives its irrevocable consent to Truevo to, without notice to Merchant, apply funds held in a Reserve to provide security and/or any other guarantee as may be required from time to time to the Card Association for payment against potential Chargebacks and/or payments of any assessments and/or Penalties to the said Card Association.

13.4     Truevo reserves the right to utilize the Reserve and/or any other requested guarantee or security to pay Chargebacks, Penalties, Adjustments, Fees and/or any other liabilities, costs or expenses incurred under this Agreement or any other agreement signed between the Parties. Furthermore, Truevo reserves the right to retain the Reserve and/or any other requested guarantee or security for a period of six (6) months after termination of the Agreement or six (6) months after the goods and/or services of the last processed Transaction have been delivered to the Cardholder, whichever occurs later (the “Chargeback Period”). Provided that where upon the termination of the Chargeback Period, any Adjustments or other liabilities remain contingent or pending, Truevo may extend the Chargeback Period to the extent necessary to cover such Adjustments and/or other liabilities. Merchant acknowledges that the release of the Reserve and any outstanding balances may take place up to two (2) months following the lapse of the Chargeback Period.

13.5     In addition and without prejudice to the Reserve, Truevo may block and retain a percentage or the full amount of the settlement funds as a cover against actual and anticipated losses from Chargebacks, Penalties, assessments and/or Fees which cannot be recovered by Truevo. Furthermore, Truevo may (without prejudice to any other rights Truevo may have) defer settlement of sums due to the Merchant, in Truevo’s sole (but reasonable) opinion, for a specified period in the event (i) Merchant fails to provide Merchant Information within the timescales set under clause 3.3.2 to the Agreement; (ii) the financial information indicates a deterioration in the financial condition of the Merchant or (iii) of an increased risk exposure to Truevo. Truevo shall exercise the rights as stipulated in this clause in good faith. In the event that the financial condition and risk profile of Merchant improves, in the reasonable opinion of Truevo, then Truevo will return any (or part thereof) of the funds withheld in excess of the Reserve.

14.        INTELLECTUAL PROPERTY RIGHTS

14.1     Truevo or its licensors own all right, title and interest, including all Intellectual Property Rights, in and to the Services or data provided using the Services and all components used in the provision thereof, including without limitation, all software, data, business methods, business processes, website designs, graphics, text, content, API and API instructions and responses, trade names, trade secrets and know-how, and all documentation in relation to the foregoing, used in the provision of the Services (“Proprietary Information“).

14.2    Except as expressly stated herein, this Agreement does not transfer any right, title or interest in the Services or the Proprietary Information to the Merchant or to any third party.

14.3    Truevo grants to the Merchant a non-exclusive, non-transferable licence to display certain logos and trade marks of Truevo or related to the Services as Truevo may from time to time designate, on the Merchant’s Website(s) for the sole purpose of advising its Customers of the availability of the Services.

14.4    The Merchant agrees to adequately display the promotional sign(s) and any other materials provided by Truevo for use on the Merchant Website(s) payment pages and to only use names or designs approved in advance by Truevo to indicate that Payment Methods are accepted for payment and processed by Truevo. The Merchant shall not use any other material referring to Truevo or any other name associated with the Services or Payment Methods without Truevo’s prior written approval.

14.5    The Merchant acknowledges that it is prohibited from any use, reproduction, decompilation, reverse engineering, modification or distribution of any Proprietary Information that is not expressly authorised in this Agreement except to the extent as may be expressly permitted under Applicable Laws and on prior written notice to Truevo. The Merchant may not sell, resell, assign or otherwise transfer rights to the Services or any Proprietary Information or enter any part of the software forming part of the Services into any other product or software, without Truevo’s prior written consent. All Proprietary Information may be used only in connection with the Services and such use must cease immediately upon termination of this Agreement.

14.6    The Merchant agrees that:

  1. it will not sell, license, lease, rent, loan, lend, transmit, network or otherwise distribute or transfer the Services in any manner to third parties; and
  2. it will maintain true and accurate records to enable Truevo to ensure the Merchant’s compliance with the terms of this Agreement. The Merchant will permit Truevo to have access to all of the Merchant’s records and computer systems and to use software audit tools on the Merchant’s systems that may reasonably be required for the purpose of verifying the Merchant’s compliance with the terms of this Agreement.
  3. The Merchant undertakes throughout the term of this Agreement:
  4. not to use Truevo’s or a Payment Method’s Intellectual Property Rights or Services in any way which would or is likely to bring Truevo’s or a Payment Method’s reputation into disrepute;
  5. not to cause or permit anything which may damage or endanger Truevo’s or a Payment Method’s Intellectual Property Rights or Truevo’s or a Payment Method’s title to them;
  6. to obtain Truevo’s written consent prior to using or referring to any of Truevo’s or a Payment Method’s trademarks, logos, copyrighted materials, business names or other Proprietary Information in any of the Merchant’s materials and Merchant Website(s);
  7. to notify Truevo of any actual, threatened or suspected infringement of Truevo’s or a Payment Method’s Intellectual Property Rights that the Merchant becomes reasonably aware of;
  8. to take such reasonable action as Truevo may direct in relation to such actual, threatened or suspected infringement;
  9. to indemnify Truevo for any liability incurred by Truevo to third parties for any use of Truevo’s or a Payment Method’s Intellectual Property Rights by the Merchant otherwise than in accordance with this Agreement; and
  10. to acknowledge that any goodwill or reputation for the Services generated by the Merchant’s obligations under this Agreement or the Merchant’s use of the Services will belong to Truevo and upon termination of this Agreement for whatever reason the Merchant shall not be entitled to claim recompense or compensation for such enhanced goodwill or reputation.

14.7    Truevo shall defend, at Truevo’s expense, any claim (the “IP Claim“), brought against the Merchant alleging that the Services infringe an Intellectual Property Right of a third party.

14.8    Truevo shall pay all costs and damages awarded or agreed to in settlement of an IP Claim if the Merchant:

  1. provides Truevo with prompt written notice of the IP Claim;
  2. makes no admissions as to liability, settlement or compromise in relation to the IP Claim without Truevo’s prior written approval; and
  3. provides Truevo with reasonable assistance and sole authority to defend or settle the IP Claim.

14.9    If in Truevo’s reasonable opinion the Services become the subject of an IP Claim, then Truevo may obtain for the Merchant the right to continue to receive the Services, replace the Services or modify them so that they become non-infringing. If such remedies are not reasonably available (in Truevo’s opinion), then Truevo will cease to provide and the Merchant shall cease to receive the Services which are the subject of the IP Claim.

14.10 Truevo shall have no liability for any IP Claim resulting from the use of the Services in conjunction with other products or services which were neither supplied by nor combined with the Services by Truevo.

15.        TERM AND TERMINATION

15.1    This Agreement shall come into effect as at the Effective Date and shall remain in force for a term of two (2) years, which shall be automatically renewed for further periods of one (1) year (each a “Term” and collectively the “Term”).

15.2    Either Party may terminate this Agreement at any time without cause, subject to ninety (90) calendar days prior notice.

15.3    Without prejudice to the foregoing, Truevo reserves the right to exercise immediate termination of the Agreement, whether in relation to all or part of the Services in the event:

  1. there is a Change of Control of the Merchant or its business and/or the location of the Merchant, and such change is not accepted by Truevo;
  2. the obligations of Truevo under this Agreement is not reasonably practical in the event of Force Majeure; and
  3. any Termination Event as described in a Service Schedule to this Agreement.

15.4    Truevo may agree, in its sole and reasonable discretion, to support the process of Refunds after notice of termination has been served until the lapse of the Chargeback Period, provided that the Merchant provides up-front payment of the value of such refunds.

15.5    Termination of this Agreement will not affect the liability of a Party towards the other Party, existing at such date of termination, including but not limited to, any liability on the part of the Merchant in respect of Chargebacks and Penalties which are notified to Truevo at any time after the Agreement has ended. If this Agreement ends, the Merchant must pay Truevo immediately all and any amounts due under this Agreement.

15.6    Merchant agrees and acknowledges that any payments held may be retained when reasonably deemed necessary by Truevo, after notice of termination of the Agreement and may be used to offset any amounts due to Truevo, any regulatory authority and/or the Card Associations, future Chargeback liability and/or fraud loss. Interest on any overdue amounts shall be due at the maximum rate allowed by law from the due date for payment until payment is received.

15.7    All obligations of the Merchant regarding Transactions processed prior to termination will survive termination. Funds related to Transactions processed prior to the notice of termination may be deferred under clause 13.5 until Merchant pays all amounts to Truevo under this Agreement. In addition, upon expiration or termination of this Agreement, Merchant acknowledges Truevo’s right to withhold payments in accordance with clause 12.3 of this Agreement.

15.8    Truevo reserves the right to charge a termination fee in the event of termination requested by the Merchant under clause 15.2 (90 days) within six (6) months from the Effective Date of the Agreement.

15.9    The termination of the business relationship between the Parties effected in terms of this Agreement shall also terminate and any and all ancillary Service Schedule(s) entered into by the Parties. However, the termination of any Service Schedule alone shall have no effect on the validity of this Agreement.

15.10 Upon termination of this Agreement for any reason whatsoever, all provisions contained in this Agreement that by their sense and context are intended to survive completion of performance, termination or cancellation of this Agreement shall survive and continue in full force and effect, including but not limited to the rights and obligations set out in clauses 1, 3.3, 5, 7, 10, 13, and 15 of this Agreement.

16.        ENTIRE AGREEMENT

16.1    The Parties agree that this Agreement constitutes the entire agreement between Parties in relation the subject matter thereof. Neither of the Parties has relied on any verbal or written information provided by the other Party unless it is set out or expressly referred to therein such information, except that Truevo has relied and will continue to rely on all verbal and written information provided by the Merchant in relation to its business or status.

17.        CONFLICT

17.1      In the event of a conflict between the documents comprising this Agreement, the following order of priority shall apply, to the extent permissible under applicable law: (i) the body of and schedules (including but not limited to, the Service Schedules); and (ii) any other guidelines or information issued by Truevo from time to time; provided however, in the event of a conflict between this Agreement and the Card Association Rules, the Card Association Rules will govern and control the relationship between the Parties, and this Agreement will be interpreted to give as full effect as is possible to both the Card Association Rules and this Agreement.

18.        SEVERABILITY

18.1      If any of the clauses (or part thereof) of this Agreement is or becomes invalid or unenforceable for any reason whatsoever, the validity of the remaining clauses or part thereof will not in any way be affected or impaired. If any invalid or unenforceable clause or part thereof of this Agreement would be valid or enforceable if its form or effect were modified in any way, it shall be deemed to have the modified form or effect provided that Truevo gives its consent.

19.        AMENDMENT

19.1      Truevo reserves the right to amend this Agreement and/or any other Service Schedule entered into by the Parties from time to time, in accordance with this clause 19 to this Agreement. Such amendments may include changes to – inter alia – processing limits, Fees, any transaction capping, the frequency of settlement, the funding delay etc. by giving notice in writing to the Merchant or the Provider (as the case may be). Such amendments shall be without prejudice to the Merchant’s right to terminate this Agreement or any Service Schedule by giving notice in writing to Truevo in accordance with clause 15 of this Agreement.

19.2      Truevo reserves the right to modify the Services from time to time in its reasonable discretion and upon reasonable written notice to the Merchant, provided that such modifications shall not diminish the functionality of the Services.

19.3      Truevo may propose amendments or additions to this Agreement and/or to any of the Service Schedules. Truevo or Provider (as the case may be) shall notify the Merchant of a proposed change in the form of an amendment to this Agreement to be signed by the Parties or in the form of a written notice in accordance with clause 4 to this Agreement, as the case may be.

19.4      Notwithstanding the aforementioned, no notice is required where the amendment is necessitated by any applicable laws and/or regulations and/or the Card Associations Rules and regulations and/or in the event of changes imposed on Truevo by any of the Card Associations or in the event of any changes in the way the Merchant accepts to process payments and/or in the event of any other serious or valid reason. The Merchant can either accept or reject the changes before the date of their proposed date of entry into force.

19.5      The Merchant is to be deemed to have accepted these changes if the Merchant does not notify Truevo that it does not accept them before the proposed date of their entry into force. In the event the Merchant rejects the changes, the Merchant shall have the right to terminate this Agreement or any Service Schedule entered into by the Parties without charge and with effect at any time until the date when the changes would have applied.

20.        ASSIGNMENT

20.1      No Party shall assign, novate or otherwise transfer this Agreement or any or all of their rights and/or obligations under this Agreement nor any part of it, nor any benefit nor interest in or under it, to any third party without the prior written consent of the other Party which consent shall not be unreasonably withheld; provided, however that Truevo may assign, novate or otherwise transfer this Agreement without the consent or approval of Merchant to an affiliate, in connection with a merger, reorganization, recapitalization or sale of all of or substantially all of its respective stock, business or assets. Merchant shall enter into any such documents as Truevo may direct in order to effect such assignment, novation or transfer. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Subject to the above, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties’ hereto and their respective successors and assigns. Truevo reserves the right to fulfil any of its duties and powers under this Agreement by the use of agents and sub-contractors (on the basis that Truevo will continue to remain liable to the Provider and Merchant as principal) and to assign such duties and powers without the prior consent of Merchant.

21.        APPLICABLE LAW AND GOVERNING JURISDICTION

21.1      This Agreement shall be governed by and construed in accordance with the laws of Malta. The Parties agree that the courts of Malta shall have exclusive jurisdiction to settle any disputes in connection herewith and accordingly submit to the exclusive jurisdiction of such courts. The Merchant waives any objection to the Maltese Courts on grounds of inconvenient forum or otherwise as regards proceedings in connection herewith and agrees that a judgment or order of such a court shall be conclusive and binding on them and may be enforced against them in the courts of any other jurisdiction.

21.2      Nothing in this Agreement (including any of the Service Schedules) shall operate so as to exclude or restrict any liability, the exclusion or restriction of which is prohibited by the Laws of Malta.

22.        COUNTERPARTS

22.1      This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts (including fax copies) were on a single copy of this Agreement.

22.2      Delivery of an executed signature page of a counterpart via Conga Solutions or any other signature solution which may be approved by Truevo from time to time, shall take effect as delivery of an executed counterpart of this Agreement. If either method is adopted, without prejudice to the validity of such agreement, each party shall provide the other with the original of such page as soon as reasonably practicable thereafter.

23.        GENERAL

23.1      The Merchant shall ensure that it has obtained all necessary consents from its Merchants and/or Cardholders to transfer and provide their documentation to Truevo in accordance with this Agreement. Truevo reserves the right to request presentation of proof of such necessary consents at any point in time throughout the whole business relationship between the Merchant and Truevo. The Merchant shall cooperate with Truevo upon receipt of such requests, and shall provide such documentation without delay, within a maximum of five (5) business days unless otherwise specified by Truevo, and in accordance with the requisites specified by Truevo in its request.

23.2      The Merchant understands that this Agreement, together with any Schedule, including its annex/es, is entered into by Truevo on condition that all information submitted by the Merchant is true and complete and that the Merchant will forthwith notify Truevo of any change in its circumstances which may affect the Merchant’s condition or status or ability to perform its obligations under this Agreement and any Schedule, including its annex/es

23.3      Any failure or delay by Truevo in enforcing any right, power or remedy under this Agreement or applicable law shall not be deemed to be a waiver thereof unless made in writing by Truevo.

23.4      Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties. Save as expressly provided in this Agreement, neither party is authorised to act as agent for the other, and neither party shall have authority to act in the name of or on behalf of or otherwise bind the other in anyway (including through the making of any representation or warranty, the assumption of any obligation or liability or the exercise of any right or power on behalf of the other).

23.5      The rights conferred upon Truevo in this Agreement are not intended to be exclusive of each other or of any other rights and remedies of Truevo under this Agreement, at law or in equity; rather, each and every right of Truevo under this Agreement, at law or in equity is cumulative and concurrent and in addition to every other right.

23.6      This Agreement may be executed electronically (including but not limited by ticking-the-box option) in the English language. By executing the Agreement, the Merchant hereby declares that the Merchant:

  1. Is duly authorized to represent and bind the Merchant, and shall assume all responsibilities, obligations and duties listed down in the Agreement.
  2. Has read and understood the Agreement and any Schedules and Annexes to it and declares that these shall immediately be binding upon the Merchant.

23.7      If this Agreement is executed electronically by ticking-the-box option, the Agreement shall only be binding on Truevo once a confirmation is communicated to the Merchant to this effect.

23.8      Unless otherwise required by law or by any authority, the Agreement shall not be filed and/or registered with an Authority by Truevo and shall be made available to the Merchant upon request.