TERMS OF SERVICE

Last Updated and Effective Date: April 25th, 2017

These Terms of Service (“Terms”) govern your access to and use of our Services, including but not limited to our various websites, APIs, libraries, notifications, applications, and any other covered services that link to these Terms (collectively, the “Services”), and any information, text, graphics, photos or other materials uploaded, downloaded or appearing on the Services.

Terms are made effective by and between PayAi Ltd aka PayApi or payapi.io, operating under laws of England and Wales with business ID 10736488 (“PayApi”) and you, the entity and/or individual, who enters into this Agreement (“Client”). This Agreement and the Privacy Policy sets out the terms and conditions under which Client may utilize the Services as defined below.

Your access to and use of the Services are conditioned on your acceptance of and compliance with these Terms and the Privacy Policy. By accessing or using the Services you agree to be bound by these Terms. If you do not agree to these Terms and/or Privacy Policy, please discontinue to use and access any of the Services and remove any and all material related to the Services.

Recitals

WHEREAS, PayApi provides point of payment routing service (payment gateway aggregator), data processing, anti-fraud detection, equipment and related goods and services (the “Payment Service”); and

WHEREAS, PayApi wishes to provide Payment Service to Client so that Client may utilize Payment Service.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

Agreement

1. Services provided by PayApi

1.1. Services

PayApi will provide the Payment Service to Client. With respect to the Payment Service, PayApi and Client shall agree upon the equipment and services to initially be provided under this Agreement and may update, amend and change the goods and services provided to the Client upon the mutual consent of PayApi and Client. For the purposes of this Agreement, “Customers” shall mean the customers of the Client.

1.2. Limited License

During the term of this Agreement, PayApi hereby grants to Client a nonexclusive, non-sublicensable, and non-transferable license, under the intellectual property rights owned or licensed by PayApi, to use Payment Service software provided by PayApi to Client, provided however that: such license is subject to all obligations and restrictions imposed on Client in this Agreement; such license extends only to Client’s employees and contractors, but only to the extent that such employees and contractors use Payment Service for the sole purpose of processing payments on the behalf of Client, and for no other purpose whatsoever; such license extends only to Client use of Payment Service solely to perform the functions specified herein, and in compliance therewith, and while exercising such license, Client shall treat Payment Service as PayApi’s Confidential Information under this Agreement. if Client implements the Payment Service client libraries and related software in its merchant app, Client acknowledges and agrees that their Customers are restricted for proper use of the Payment Service for legal purposes only and that Client will maintain the confidentiality of the libraries and will use the libraries solely for the purposes of facilitating PayApi’s offering to Customers. Client will not modify, decompile or reverse engineer the Payment Software or libraries. Subject only to the limited rights expressly granted under this Agreement, PayApi or its licensors shall retain all right, title and interest, including all intellectual property rights, in and to the Payment Service, and related software, and the PayApi Intellectual Property (including, without limitation, all changes, modifications, enhancement, or corrections or additions made by either party to any of the foregoing).

1.3. Limitations on Rights Granted

Except as expressly provided to the contrary in this Agreement, Client shall not, and shall not knowingly cause or permit any non-party to, use or reproduce Payment Service. Client shall not, and shall not knowingly cause or permit any non-party, to disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share Payment Service, or otherwise apply any procedure or process to Payment Service in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for Payment Service or any algorithm, process, procedure or other information contained in Payment Service. Except as expressly authorized herein, Client may not rent, lease, assign, sublicense, transfer, modify, alter, or time share the Payment Service.

1.4. Independent Contractors

The relationship of PayApi and Client is that of independent contractors. Neither Client nor its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of PayApi, nor do they have any authority to bind PayApi by contract or otherwise to any obligation. They will not represent to the contrary, either expressly, implicitly, by appearance or otherwise.

1.5. Compliance With Laws

Client will comply with the rules and regulations of all applicable card and payment schemes (including, as appropriate the rules and regulations of Visa, MasterCard, Discover, American Express, JCB, Diners, PayPal, and any or their affiliate and/or successor organizations) and all other such associations and all applicable laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Payment Service. Client agrees to comply with any federal or regional Automated Clearing House rules applicable to automatic and electronic transfer of funds including without limitation, laws, regulations, and rules governing correct authorizations by consumers and businesses, disclosures and notices required in connection with electronic funds transfer, and all necessary waivers and releases. Client has the sole responsibility to verify PayApi’s list of merchant card processors and payment gateways to be used under terms of this Agreement to determine if PayApi can properly transmit the necessary credit card information to Client’s credit card processor or payment gateway. Client acknowledges that PayApi’s list can be modified from time to time and must be verified by Client prior to being set up with PayApi. Client has the sole responsibility for obtaining the proper authorization from Client’s own credit card processor, payment gateway and/or settlement bank to be able to use Client’s merchant account for key entry transactions and transactions being processed over the internet or online. Client shall be solely responsible for chargebacks, credits, returns, disputes and all costs associated with data transmissions. Client will be solely responsible to obtain accurate credit card and ACH information and authorization from its customers, and will transmit said information to PayApi via the internet or service originally agreed upon by all parties. PayApi agrees to provide a Payment Service that has been implemented taking into consideration the requirements of the Payment Card Industry (“PCI”) Data Security Standard (“DSS”) of Visa and MasterCard. Upon PayApi’s further discression, PayApi may further validate and provice 3rd party compliance with the PCI DSS in future and in that case the compliance can be verified by viewing the Global List of PCI DSS Validated Compliant Service Providers on Visa’s website at http://usa.visa.com/merchants/risk_management/cisp.html and given the availability of this list from Visa. PayApi shall not have any duty to provide any information to Client regarding PayApi’s compliance with the PCI DSS. PayApi will comply with all applicable laws in performing its duties hereunder and in any of its dealings with respect to the Payment Service. PayApi acknowledges that they are responsible for the security of cardholder data, if any, in their possession or otherwise stored, processed, or transmitted on behalf of the Client and their customers in the extent PayApi can impact the security of the customer’s cardholder data.

1.6. Authorizations

Client will obtain from each participating consumer or business the required ACH and necessary credit card information in proper form authorizing automatic debits to such consumer or business bank account to transfer payment amounts to Client’s bank deposit account using the selected and pre-determined payment processors and/or payment gateways with whom Client has their own agreement to use such services from whom. Client warrants that Client will properly warehouse all authorizations obtained from consumers or businesses and will provide such authorizations for inspection upon request by PayApi or any regulatory body governing these types of transactions. Client hereby authorizes PayApi to instruct direct deposit of payments from consumer or business bank accounts and to debit Client for fees and other charges owed to PayApi or to payment processor and/or payment gateway as set forth herein.

1.7. Access

Client understands and agrees that, if applicable, it has contracted with a third party provider that may have access to the Payment Service. Client hereby grants the third party provider access and authorizes PayApi to take all reasonable steps to provide such access. All actions taken by PayApi in this regard will be a part of the Payment Service for purposes of this Agreement and PayApi shall have no liability under this Agreement for such access.

1.8. Customer Data

“Customer Data” shall mean the following information regarding Customers who agree to save their payment information with the Payment Service that Client understands and agrees that following may be collected from Customers: name, billing address, shipping address, billing zip code, unique Customer ID, unique device ID, card number, CVV/AVS, card expiration date, other payment gateway credentials, analytics tracking ID, public key, token, merchant identification, payment methods, stored value card number, PIN, email, ID, cookies, time zone, language, operating system, browser, javascript settings, cookie settings, User Agent, http header, IP, type of mobile device, mobile carrier, ISP, and any other data or information that PayApi must request from the Customer sufficient for the payment processor and/or payment gateway to process the transaction and to provide Client and their customers the Payment System services, it’s anti-fraud detection, information security and compliance, and any other information that the Customer provides to PayApi.

PayApi will obtain an independent ownership right in any data transmitted by the Customer to PayApi, even if the information first passes through Client’s servers. Such Customer Data will constitute PayApi’s Confidential Information and Intellectual Property for purposes of this Agreement. To the extent Client provides to PayApi any data similar to Customer Data (collectively “Other Customer Data”) that PayApi does not own, Client hereby grants PayApi a non-exclusive, royalty-free license to use, reproduce, electronically distribute, and display all such Other Customer Data for the purposes of (i) providing Payment System services to Customers, Client, and other Participating Merchants; (ii) preparing internal reports for use by PayApi or its corporate group to manage their business; (iii) data analytics, developing and analyzing data metrics, anonymising Personal Data (as defined below) and other analysis purposes, and to publish in aggregated form the results of such analyses; (iv) providing anti-fraud detection and prevention services to the Client and/or third parties; (v) processing and/or resolving chargebacks or other disputes; (vi) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of Personal Data in accordance with local laws and (vii) any other purpose for which consent has been provided by the Customer( together the “Agreed Purposes”).

In addition, for the purposes of this section, the following definitions shall apply:

“Data Controller” shall have the meaning given in the EU Data Protection Directive 95/46/EC as implemented in the country where the Client is established.

“Data Processor” shall have the meaning given in the EU Data Protection Directive 95/46/EC as implemented in the country where the Client is established.

“Data Protection Requirements” means the EU Data Protection Directive (95/46/EC), the EU Electronic Communications Data Protection Directive (2002/58/EC) (as amended) and all applicable local laws and regulations implementing such Directives together with any similar laws or regulations anywhere in the world (to the extent applicable) as they may pertain to a data controller or the equivalent thereof.

“Personal Data”, means any information relating to an identified or identifiable natural person as defined in EU Data Protection Directive 95/46/EC as implemented in the country where the Client is established.

“Processing” shall have the meaning given in the EU Data Protection Directive 95/46/EC as implemented in the country where the Client is established.

(i.) The Parties acknowledge that the provision of the Payment Service and Customer Data shall require the Processing of Personal Data and each Party shall be responsible for complying with its respective obligations under the applicable Data Protection Requirements.

(ii.) To the extent that PayApi acts as a Data Processor and Processes Personal Data on behalf of the Client, PayApi shall (a) Process and use the Personal Data provided to it by the Client only to perform its obligations and only to the extent permitted under the terms of this Agreement; (b) Only act on the Client’s reasonable and lawful instructions in relation to the Processing of the Personal Data provided to it PROVIDED THAT such instructions shall not prevent or hinder PayApi from performing its express obligations under this Agreement; and (c) Operate appropriate technical and organisational measures to protect against unauthorised or unlawful processing of such Personal Data and accidental loss or destruction of, or damage to such Personal Data.

(iii.) The Client acknowledges that Personal Data may be held in the US but that the organisations holding such Personal Data hold current and valid safe harbor certificates. For avoidance of doubt, the personal data is stored currently in the European Union.

(iv.) The Parties acknowledge where Personal Data is made available to PayApi for the Agreed Purposes, PayApi shall act as a Data Controller or co-Data Controller with the Client such Agreed Purposes.

(v.) In respect of the Agreed Purposes, and in all instances in which the Client is a Data Controller, the Client warrants and undertakes to PayApi that it has satisfied the appropriate Data Protection Requirements in relation to the disclosure of such Personal Data to PayApi for the Agreed Purposes including any complying with any appropriate notice or consent requirements.

Section 2 — The Payment Service

2.1. Providing Payment Service During the term of this Agreement, PayApi shall use its commercially reasonable efforts to provide the Payment Service 24×7 consistent with its practices in effect as of the date of this Agreement. However, the parties acknowledge that the Payment Service is computer network based services which may be subject to outages and delay occurrences.

In such an event, PayApi shall use its commercially reasonable efforts to diligently and promptly remedy any and all material interruptions. PayApi will not be liable in any manner for any interruptions, outages, or other delay occurrences relating to the Payment Service.

Section 3 — Payment of Fees

3.1. Fees in General Client shall pay fees to PayApi as set forth in the application for the Payment Services, as set forth on PayApi’s website and/or as disclosed to Client in any other documents or materials by PayApi.

3.2. Fees for Payment Service Client agrees to pay PayApi for the Payment Service via deduction of all applicable fees directly from Client’s bank account or via credit card transaction or via any other accepted payment method. Client shall provide PayApi with all necessary bank account, routing and related information or credit card information depending on the possible offered payment method by PayApi for the Client. PayApi will deduct automatically all such fees and charges on the first business day of each month for the preceding month’s services. Interest shall accrue at the lesser of 1.0% per month or the maximum amount permitted by applicable law (“Late Fee”) for any fees that remain unpaid beyond any due dates. In the event of a dispute made in good faith as to the amount of fees, Client agrees to remit payment on any undisputed amount(s); and, the Late Fee shall not accrue as to any disputed amounts unless not paid within thirty (30) calendar days after said dispute has been resolved by both parties.

Client also acknowledges that in processing any payment transactions, Client will be charged for any payment gateway fees according to their respective fees, if such fees are not included in the Payment Service fee.

Section 4 — Term and Termination

4.1. Term

The initial term of this Agreement shall continue on until terminated as set forth herein. Notwithstanding any other provisions in this Agreement, either party may terminate this Agreement, without cause, by providing the other party with one (1) days written notice.

4.2. Upon any termination of this Agreement, PayApi agrees, upon written request from Client, to provide the Client with any available transactions and customer information relating to Client’s customers subject to the following conditions: (i) Client must provide PayApi with proof that Client is in compliance with the PCI DSS standards by giving PayApi a certificate or report on PCI DSS compliance from a qualified provider and any other information reasonably requested by PayApi; (ii) the transfer of such information is compliant with the latest version of the PCI DSS Standard; and (iii) the transfer of such information is allowed under the applicable card association rules, and any applicable laws, rules or regulations.

Section 5 — Obligations

5.1. Confidential Information

The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation, in the case of PayApi, information concerning the Payment Service and the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information. The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure.

5.2. Indemnification

Client agrees to indemnify, defend, and hold harmless PayApi, its employees or agents from and against any loss, liability, damage, penalty or expense (including attorneys’ fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any failure by Client or any employee, agent or affiliate of Client to comply with the terms of this Agreement; (ii) any warranty or representation made by Client being false or misleading; (iii) negligence of Client or its subcontractors, agents or employees; or (iv) any representation or warranty made by Client or any employee or agent of Client to any third person other than as specifically authorized by this Agreement.

5.3. Disclaimer of All Warranties

THE PAYMENT SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. PAYAPI DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO CLIENT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PAYAPI OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF PAYAPI’S OBLIGATIONS.

5.4. LIMITATION OF LIABILITY

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PAYMENT SERVICE, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL PAYAPI’S TOTAL LIABILITY TO CLIENT OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CLIENT UNDER THIS AGREEMENT TO A MAXIMUM OF FIFTY DOLLARS ($50.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE. NOTHWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY EXCLUDES OR LIMITS LIABILITY TO THE OTHER FOR: FRAUD OR FRAUDULENT MISREPRESENTATION, DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, OR A BREACH OF ANY IMPLIED CONDITION AS TO TITLE, ENCUMBRANCES AND/OR QUIET ENJOYMENT.

5.5. Taxes

Client shall pay, indemnify and hold PayApi harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on PayApi’s income; and (ii) all government permit fees, customs fees and similar fees which PayApi may incur with respect to this Agreement. Such taxes, fees and duties paid by Client shall not be considered a part of, a deduction from, or an offset against, payments due to PayApi hereunder.

5.6. Client represents and warrants to PayApi as follows:

Client has the full power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against Client in accordance with its terms and no provision requiring Client’s performance is in conflict with its obligations under any constitutional document, charter or any other agreement (of whatever form or subject) to which Client is a party or by which it is bound.

Client is duly organized, authorized and in good standing under the laws of the state, region or country of its organization and is duly authorized to do business in all other states, regions or countries in which Client’s business make such authorization necessary or required.

Client enters into this Agreement and will only use the Payment Service in the course of its own business, trade or profession and not as a consumer (nor for any personal, household or domestic purposes).

5.7. Trademarks

License to PayApi Trademarks. Subject to the limitations in this Agreement, PayApi grants Client the nonexclusive right and license to use PayApi’s and its licensors trademarks (the “Trademarks”) during the term of this Agreement solely in conjunction with the use of the Payment Service. The PayApi Trademarks licensed as of the date hereof are identified in Exhibit A. PayApi grants no rights in the Trademarks or in any other trademark, trade name, service mark, business name or goodwill of PayApi except as licensed hereunder or by separate written agreement of the parties. Client agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to PayApi (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). During the term of this Agreement, Client agrees not to use any trademark, trade name or product name confusingly similar to a trademark, trade name or product name of PayApi, except for the Trademarks expressly licensed hereunder. Upon expiration or termination of this Agreement, Client will immediately cease all display, advertising and use of all of the Trademarks and will not thereafter use, advertise or display any trademark, trade name or product designation which is, or any part of which is, similar to or confusing with any Trademark or with any trademark, trade name or product designation associated with PayApi or any of PayApi’s products and services.

Client grants PayApi the non-exclusive right and license to use Client’s trademarks and logos as provided by Client pursuant to Exhibit A (the “Client Trademarks”) during the term of this Agreement in connection with the Trademark Uses. Upon termination of this Agreement, this license will survive for up to ninety (90) days for use solely in connection with the ordinary operation of Payment Service in order to inform Payment Service customers of the merchant at which their stored payment method was last used. Client grants no rights in the Client Trademarks or in any other trademark, trade name, service mark, business name or goodwill of Client except as licensed hereunder or by separate written agreement of the parties. PayApi agrees that it will not at any time during or after the term of this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Client Trademark (including, without limitation registering or attempting to register any Client Trademark). During the term of this Agreement, PayApi agrees not to use any trademark, trade name or product name confusingly similar to a Client Trademark, except for the Client Trademarks expressly licensed hereunder. Within ninety (90) days of the expiration or termination of this Agreement, PayApi will promptly cease, all display and use of the Client Trademarks in connection with Payment Service. Subject only to the limited rights expressly granted under this Agreement, Client or its licensors retain all right, title and interest, including all intellectual property rights, in and to the Client Trademarks.

5.8. Intellectual Property

“Intellectual Property” means all of the following owned by a party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.” Other than the express licenses granted by this Agreement, PayApi grants no right or license to Client by implication, estoppel or otherwise to the Payment Service or any Intellectual Property Rights of PayApi. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of PayApi, in the Payment Service) and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein. PayApi (and not Client) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for the Payment Service and any Intellectual Property Rights incorporated therein. Client will cooperate with PayApi in pursuing such protection, including without limitation executing and delivering to PayApi such instruments as may be required to register or perfect PayApi’s interests in any Intellectual Property Rights and any assignments thereof. Client shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from PayApi in connection with this Agreement.

5.9. Data Security Compliance

Client agrees to comply with privacy and security requirements under the Payment Card Industry Data Security Standard (“Association Requirements”) with regards to Client’s use, access, and storage of certain credit card non-public personal information (“Cardholder Information”) on behalf of PayApi. Visa, MasterCard, Discover, American Express, any ATM or debit networks, and the other financial service card organizations shall be collectively known herein as “Associations.” Client shall comply with its obligations under any applicable law or regulations as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of Cardholder Information. Client agrees that it shall protect the privacy of Cardholder Information to at least the same extent that PayApi must maintain that confidentiality under the Association Requirements or applicable law. Client agrees to ensure that any agent, including a subcontractor, to whom it provides Cardholder Information received from, or created or received by Client on behalf of PayApi, agrees to the same restrictions and conditions that apply through this Agreement to Client with respect to such information. Upon five (5) business days notice or immediately upon any unauthorized access to, use or disclosure of any Cardholder Information, PayApi may at its discretion, conduct an on-site audit and review of Client’s procedures and systems.

5.10. Data Accuracy

Client shall provide PayApi with data necessary for the electronic funds transfer (“collection data”) in the form and at the times prescribed by PayApi and shall make periodic checks and updates necessary to cause the collection data to be current and accurate at all times. The format and schedule requirements for delivery of collection data by Client may be changed by PayApi during the term of this Agreement, and Client shall deliver collection data in conformity with changed requirements set forth from time to time by PayApi. Client warrants to PayApi that all data and entries delivered to PayApi by Client will (a) be correct in form, (b) contain true and accurate information, (c) be fully authorized by the consumer or business, and (d) be timely under the terms and provisions of this Agreement.

5.11. Merchant Account Services

In the event Client applies for and is approved for merchant account services, Client’s use of such services shall be governed by the terms of the applicable merchant account services agreement. Merchant account services are not covered by this Agreement.

5.12. Compliance with Export Controls

Client understands and acknowledges that PayApi may be subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, or regulation agencies of EU, or national regulation agencies, which prohibit export or diversion of certain products and technology to certain countries, entities, and individuals. Any and all obligations of PayApi to provide any products or services hereunder shall be subject in all respects to such United States laws, EU laws and national laws and regulations as shall from time to time govern the license and delivery of technology and products abroad. Client agrees not to export or re-export any PayApi Intellectual Property in violation of any such restrictions, laws or regulations. Unless all required permits and/or approvals have been obtained, Client shall not cause, approve or otherwise facilitate others such as agents, subsequent purchasers, customers or any other third parties to export or re-export any PayApi Intellectual Property.

Section 6 — General Provisions

6.1. Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.

6.2. Drafting

No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein. This Agreement shall be deemed to be jointly prepared by the parties and therefore any ambiguity or uncertainty shall be interpreted accordingly.

6.3. Waiver

No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.

6.4. Assignment

This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Client may not assign this Agreement without the written consent of PayApi. PayApi may assign this Agreement in its sole discretion without the written consent of Client.

6.5. Amendments

This Agreement may be amended by PayApi by posting a new version of this Agreement within the website, backoffice or any place that Client has access to in order to view the revised Agreement. Any new version of this Agreement will immediately replace in its entirety this Agreement.

6.6. Notices

All notices and other communications required or permitted under this Agreement shall be in writing and given by personal delivery, telecopy (confirmed by a mailed copy), or first class mail, postage prepaid, sent to the addresses set forth herein. In addition, PayApi may provide notice to Client via e-mail, including, but not limited to as it relates to product updates, new features and offers and Client hereby consents to such e-mail notification.

6.7. Section Headings

The section headings contained in this Agreement are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement.

6.8. Entire Agreement; Binding Effect

This Agreement, including all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.

6.9. Jurisdiction; Venue; Governing Law

The parties mutually acknowledge and agree that this Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be construed, governed and enforced in accordance with the laws of England and Wales. The parties mutually consent and submit to the exclusive jurisdiction of the England and Wales and any action or suit concerning this Agreement (including non-contractual disputes or claims) and/or other related matters shall be brought by the parties in the court of England and Wales with appropriate subject matter jurisdiction in United Kingdom. The parties mutually acknowledge and agree that they shall not raise in connection therewith, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing. The parties acknowledge that they have read and understand this clause and agree willingly to its terms.

6.10. Attorney’s Fees

Should suit be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including expert witness fees and fees on any appeal.

6.11. Publicity

Client hereby grants PayApi permissions to use Client’s name and logo in its marketing materials including, but not limited to use on PayApi’s website, backoffice, application, software, customer listings, references, in interviews and press releases.

6.12. Survival

All representations, covenants and warranties shall survive the execution of this Agreement, and all terms that by their nature are continuing shall survive the termination or expiration of this Agreement, including, but not limited to, sections ‎1.2, ‎1.3, ‎1.4, ‎1.5, ‎1.6, ‎2.1, ‎3.1, ‎3.2, ‎4.2, ‎5.1, ‎5.2, ‎5.3, ‎5.4, ‎5.5, ‎5.6, ‎5.7, ‎5.8, ‎5.9, ‎5.10, ‎5.11, ‎5.12, ‎6.1, ‎6.2, ‎6.3, ‎6.4, ‎6.5, ‎6.6, ‎6.7, ‎6.8, ‎6.9, ‎6.10, ‎6.11 and ‎6.12.

Exhibit A

PayApi Trademarks

The PayApi Trademarks are “PayAi” and “PayApi” words & design mark and “(padlock shield logo) BY PayApi” word & design mark, in each case, solely in one of the formats and color schemes displayed at the website.

Client Trademarks

The Client Marks are their name and logo, if not otherwise stated in written. If executing this Agreement electronically, please provide PayApi written notice of the Client Trademarks promptly after execution of the Agreement.

Client Account Client may receive from PayApi login credentials to access certain information regarding Payment Service. Client is solely responsible for the confidentiality and use of its passwords, user names and account identifiers. In no event will PayApi be liable for any loss of Client data or other claims to the extent the same arose from unauthorized access to the Payment Service by obtaining a password, username or account identifier from Client or otherwise caused by a negligent or intentional act or omission of Client.

Client Integration

Client will integrate the Payment Service APIs, library, and related software into their website, applications, merchant sites, and similar, at its own cost. Client agrees to implement the Payment Service APIs, check-out flow, payment page and similar according to any guidance and instructions from PayApi. Client will further provide Customer Data to PayApi which a Customer requests be sent to PayApi through Customer’s use of Payment Service. If agreed upon by the parties in writing, PayApi also will provide assistance in the integration of Payment Service.

Functionality

Client will be solely responsible for testing the functionality of Payment Service.

Quality Assurance and Approval

After the Payment Service APIs and related software have been integrated into the Client\s software or similar application, Client will be solely responsible for submitting the software for quality assurance testing and any applicable third party approval or testing (for example, to Apple, Android, Blackberry or other mobile phone operating software manufacturer) prior to making the software commercially available.

Compliance with Applicable Law

Client will comply with all applicable laws, regulations, and platform requirements (including, without limitation, Apple’s iOS Developer Program License Agreement, the Android Developer Distribution Agreement, and other similar operating system provider agreements). This includes, but is not limited to Client doing the following: Client will make Client’s privacy policy available to its Customers prior to allowing them to download the application and Client shall cooperate with PayApi in providing Payment Service compliant Terms of Use and Privacy Policy to users of their application.

Prohibited Activity

Client agrees that it shall not nor shall it allow its Customers to use or involve Payment Service with any action that (i) is known, or reasonably should be known, to be libellous, obscene and/or pornographic and/or harmful to minors; (ii) is known, or reasonably should be known, to infringe the copyrights, patents, trade secrets, trademarks, trade names or other proprietary rights of a third party; or (iii) is unlawful, or would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation (including without limitation any applicable export restrictions).

END OF TERMS OF SERVICE