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Purchase Terms of use
Last amended as of: 14 November 2018

These ClearPay Merchant of Record Terms of Use (hereinafter – “MoR Terms”, “Agreement”) regulate the Supplier’s (“Supplier”, “Merchant”, “You”) use of ClearPay and constitute a legally binding agreement between the Administration and the Merchant as to the Services provision (hereinafter collectively referred to as the “Parties” and separately as the “Party”).

Please read carefully these MoR Terms as well as the Privacy Policy and Cookies Policy, before using ClearPay. The Privacy Policy is a document regulating our privacy practices as to your personal information. The Cookies Policy is a document regulating our practices of using Cookies when You use ClearPay Website and engage its Services. They shall be integral parts of these MoR Terms. If You wish to be a ClearPay’s Supplier whose products/services will be resold by ClearPay to customers through this Website, You must first agree to these MoR Terms, Privacy Policy and Cookies Policy in their entirety and place the text from this link to the Terms of Service on your site and online resources. If you disagree with these MoR Terms, or Privacy Policy, or Cookies Policy, or if you are not legally authorized to do so, please do not use ClearPay. The MoR Terms constitute a public offer and are mutually binding for the Parties after You agree to these MoR Terms. The MoR Terms together with the Privacy Policy shall be deemed accepted by You upon your Account registration with ClearPay and checking the respective blank “I have read and agree to the MoR Terms”.

1. DEFINITIONS

“Account” shall mean a virtual space detached for You by means of software and intended for the use of ClearPay, the access to which is provided for You automatically upon your successful registration, verification, all required onboarding procedures under the law and company’s internal policies and procedures, and upon acceptance of these MoR Terms.

“Administration” shall mean company, registered at collectively with FinTech Decision pte LTD registered at , the companies which owns and operates ClearPay Service.

“Blocking” shall mean the method by which the Administration pursuant to the provisions of these Terms may technically prevent Merchants from using ClearPay (for a definite time) or permanently (for an indefinite time), and which may be applied to Merchant Accounts, IP addresses, and to ranges of IP addresses.

“Card” shall mean the service of the payment system allowing to execute payment transactions issued by the financial institution indicated on the Card.

“End-User”, “Customer” shall mean any person or entity, who may buy Products/Services from ClearPay through ClearPay’s Website.

“ClearPay” shall mean an on-line service providing transaction processing services, e-payment services, costs transmission services, invoicing, as well as the marketplace platform provided by Administration through the website “ClearPay.com”.

“Services” shall mean the provision of the marketplace platform where the Supplier/Merchant product/services are offered for immediate resale to end-users by ClearPay, as well as the provision of an access to payment instruments through integration of ClearPay API into the Merchants’ services, to ensure provision to the Merchant and Merchants’ customers of payment services, such as payment processing, costs transmission, invoicing and other related services; Administration’s information and consulting services on issues related to the usage of ClearPay.

Any other terms, not defined in this Section, shall be interpreted pursuant to applicable laws, mentioned herein.

2. PURPORT OF ClearPay

ClearPay operates within following patterns: ClearPay has the right to provide the Merchant with (i) payment processing services as a PSP provider and/or payment facilitator under these MoR Terms, as well as (ii) a reseller of the Merchant's products/services to the end-users (buyers) either on its own behalf or on the Merchant's behalf under these MoR Terms and under the ClearPay Purchase Terms of Use.

(i) In case when ClearPay acts as a payment facilitator, it onboards Supplier(s)/Merchant(s) as a PSP provider rendering its online software platform and processing the payment transactions. PSP is the operator for payment services and payment gateway services that facilitate the payment transactions related to the products/services sold by the Merchant(s).

(ii) In case when ClearPay acts as a reseller/distributor: ClearPay sets contract relationships with the Supplier(s)/Merchant(s) in order to purchase their products/services for immediate resale to ClearPay Customers; ClearPay is responsible for accepting payments for the Merchant's product/services and for financial support of the Merchant’s transactions made through the ClearPay Service; Merchant undertakes to carry out all the logistics of the goods to the end-users, to ensure the warranty obligations, maintenance, technical or product support services for those products.

ClearPay Service is a way of storing the end-user’s payment data, but it does not change anything else about the end-user’s relationship with the Merchant that it is paying to. The end-user is ultimately responsible for the purchases he/she makes using ClearPay Service. Also, the Merchant is the one and only responsible for providing the end-user the products/services that he/she buys using ClearPay Service, not ClearPay. ClearPay will comply with all applicable law, regulations and Card Organization rules to keep the User’s payment data secure.

Although ClearPay is the owner and operator of this Website, products/services sold through its online marketplace platform are sold to the client by the Merchant/Supplier pursuant to contractual arrangements with ClearPay. The client’s contract for the purchase of any products/services from our marketplace platform will therefore be with a respective Merchant/ Supplier.

In some cases ClearPay provides only a technical solution for the merchants. Under such circumstances, our financial/payment services partner is responsible for acquiring services, transactions processing and settlements conduct.

3. ACCOUNT

The Merchant’s registration of the Account following the registration procedure shall mean the Merchant’s full and unconditional acceptance of these MoR Terms, the Privacy Policy and the Cookies Policy, pursuant to the Merchant’s consent.

ClearPay provides two types of the Accounts: Personal and Business Accounts. The Merchant may switch the type of the Account by filing a request to the Technical Support of ClearPay.

Personal Account may be registered by any person, who has the right and legal capacity to use the Services provided by ClearPay, and is not barred or otherwise legally prohibited from accessing or using ClearPay. The person shall not use ClearPay if they are under 18 years of age.

Business Account may be registered on behalf of any legal entity by an authorized person or by private entrepreneur.

The registration of the Account requires that the Merchant specifies and uses their email address and a reliable password.

Upon the registration of the Account, in order to use ClearPay fully-fledged, the Merchant may pass the verification procedure through the provision to ClearPay of the additional information and uploading of the required documents.

Taking into account the KYC and AML/CTF procedures of the USA Patriot Act of 2001 and similar procedures of other countries, including European Economic Area (EEA) countries, the Administration will require the Merchant to pass the compulsory verification when registering a new Account.

The Merchant shall be fully responsible for all activity that occurs under their Account, including for any actions taken by persons to whom the Merchant has granted access to the Account, if done so. Administration reserves the right to suspend or terminate the Account of any Merchant who provides inaccurate, untrue, or incomplete information, or who fails to comply with the Account registration requirements or these Terms.

The Merchant is entitled to cancel their Account at any time. If the Account is cancelled: it will be deactivated or deleted; all of the rights granted under these MoR Terms will immediately come to an end; and all of the Merchant’s data and content may be deleted from our systems provided that it is in compliance with the applicable Data Protection laws (e.g., US jurisdictions; EU General Data Protection Regulation, concerning the privacy of the individuals from within the EU/EEA, etc.), and/or duly archived for the necessary period of time if and where required by appropriate applicable law.

As indicated above, after the Supplier/Merchant agrees to be bound by this agreement and fill in the registration form, ClearPay will establish an account for the Supplier/Merchant. Thereupon, the Supplier/Merchant may establish only one Account. ClearPay may request additional information and/or documents from You in the process of identification and verification procedures, including Your financial credentials and history. In case of insufficient credibility, in ClearPay’s judgement, ClearPay may terminate these MoR Merchant Terms without notice.

4. SERVICES

ClearPay provides an online marketplace where products/services are purchased from the Supplier/Merchant and offered for immediate resale on ClearPay Website, when the customers intend to purchase products/services, including those of the Supplier/Merchant, directly from ClearPay’s Website, if not from the Supplier’s website. ClearPay is an online retailer and provider of online checkout services. When purchasing from ClearPay’s distribution marketplace via this Website, or receiving a refund, or executing other payment transactions, the customers may use any payment methods specified on the Website.

Alongside with the purchase of products/services from the Supplier/Merchant and immediately reselling them to the Customer, ClearPay provides processing Services for all payment Transactions, ensuring the data (including sensitive data) to be properly encrypted and highly secured in accordance with all industry standards, including Payment Card Industry Data Security Standards (PCI DSS).

The Supplier/Merchant undertakes to provide its products/services to ClearPay for immediate resale to the Customer timely, smoothly, efficiently, and on an ongoing manner, without regard to any crediting or funding, when ClearPay purchases products/services from it to execute the Payment Transaction.

Since ClearPay also functions as PSP of certain payment services and payment gateway services that facilitate the payment for products/services sold by the

Supplier/Merchant, the Supplier/Merchant agrees that ClearPay in providing the Services linked to that certain Supplier/Merchant hereunder does not act as a principal but acts as a payment facilitator on behalf of such Supplier/Merchant to enable the Supplier/Merchant entering into Card payments with its End-Users. The Supplier/Merchant further agrees to allow ClearPay to act as a payment facilitator on behalf of such Supplier/Merchant for the purpose of processing transactions for authorization and payment.

The Merchant may access ClearPay through any device, which is capable of accessing and/or supporting ClearPay using an internet connection.

The Merchant shall at all times comply with any operating procedures, requirements, or guidelines regarding the use of ClearPay, that are by any means provided or made available to the Merchant.

The Services provided by ClearPay as a Merchant of record should be subject to the additional conditions detailed and set out in the “MERCHANT OF RECORD FUNCTION” Section hereof.

5. MERCHANT OF RECORD FUNCTION

Within the framework of these MoR Terms, in accordance to the Supplier/Merchant ID, ClearPay will process transactions for payment from end-user for products/services through ClearPay as the Merchant of Record, where the Supplier/Merchant is providing products/services to be resold through ClearPay marketplace, and the Merchant of Record is deemed and recorded as executing the payment transaction with the End-User.

In providing the Services through the Merchant ID, the parties mutually agree that the Merchant has granted a worldwide, non-exclusive, non-transferable license to ClearPay in order to perform such sales transactions through the Merchant ID. The Merchant ID refers to ClearPay’s account(s) at the acquirer being used by ClearPay to process payment for the products/services.

To place the products for being marketed on ClearPay platform (“product transactions”) to the End-Users, the Supplier/Merchant acknowledges ClearPay as a reseller or as the Merchant of Record. The End-User will be informed of ClearPay’s function as the Merchant of Record.

Thereat, the Merchant warrants and represents that it is duly authorized and has a right, title and license in the products/services to make ClearPay entitled to process transactions with ClearPay as the Merchant of Record. If the Supplier/Merchant breaches its warranty, ClearPay may instantly suspend or terminate its Services for the Supplier/Merchant.

The Supplier/Merchant shall comply with the US laws and regulations, as well as those jurisdictions where international laws may apply (EU/UK), regarding data protection, ecommerce, consumer rights, provision of services. The Merchant is primarily responsible to provide warranty, maintenance, technical or product support services for the item(s). The Merchant is primarily responsible to the End-User for any liabilities related to the Merchant’s fulfillment of Products/Services orders, End-User License Agreements, or use of Products/Services by the End-User, as well as warranty and maintenance provision with regard to the End-User, and liability for products/services in accordance with applicable law.

To enable ClearPay to use the information, the Merchant should supply to ClearPay, including without limitation, the images, trademarks, trade names and logos found on the Merchant’s website(s), without violating any rights. It should be expressly indicated that the Merchant agrees to grant and hereby grants ClearPay a worldwide, non-exclusive, perpetual and irrevocable license to exercise the copyright, publicity and database rights, and to sublicense such rights through multiple tiers of sublicensees, that You have in such information, images, trademarks, trade names and logos, in any media now known or not currently known, with respect to the information, images, trademarks, trade names and logos. This is intended to ensure that We may publish details of supplied products both on our own marketplace and on partner websites, if this would be agreed and provided, from time to time as may be required for marketing purposes according to this Agreement.

Taxes shall be charged and paid by either Party as agreed being in compliance with the applicable law.

6. INDEPENDENT CONTRACTORS

Each Party shall act solely as an independent contractor, and nothing in these MoR Terms shall be construed to give either Party the power or authority to act for, bind, or commit the other Party in any way. Nothing herein shall be construed to create the relationship of partners, principal and agent, or joint-venture partners between the Parties.

ClearPay will not enter into any contracts or commitments in the name of or on behalf of the Supplier/Merchant. As a PSP, ClearPay shall not take possession or control of any products/services but shall only render payment services. As the MoR, ClearPay shall only provide the marketplace platform. The parties shall be independent contractors.

7. RESPONSIBLE PARTY

The Supplier/Merchant shall be the sole responsible party in relation to the end-users as per the Supplier/Merchant’s products/services and/or their functionality, and Merchant will in no manner represent that ClearPay is a guarantor or responsible party for those products, or otherwise involve ClearPay in an End User Customer or other third party dispute relating to the transaction, delivery or functionality of a product.

8. ClearPay INFRASTRUCTURE

ClearPay infrastructure will enable functions to manage and issue returns of Refunds to the end-users that should be managed and issued by the Supplier/Merchant through the ClearPay Service.

Upon using the ClearPay Service, the Supplier/Merchant shall have all required contact and identifying information on its website for purposes of informing the end-users of complaint, warranty and refund rights.

The Supplier/Merchant acknowledges that respective Card Association Rules for Merchant’s credit card acceptance policies and procedures may require the Supplier/Merchant to make changes to its website and working conditions to make sure that they are in compliance with financial credit card institution standards. The Supplier/Merchant shall allow ClearPay to monitor its activities.

As part of performing Services under these MoR Terms, ClearPay may carry out fraud checks. The Supplier/Merchant acknowledges and agrees that such fraud checks may delay transactions and payment collection from the end-users. In the event an end-user seeks to cancel an order due to such delay, ClearPay will not be held liable to the Supplier/Merchant for such cancellation.

9. RULES OF POSTING

1) Product items should be posted in accordance with requirements as follows: Check that the title, description and image match each other and are actual. All information should be true and accurate. One product or service can be created only under one item posted. If two or more items of the Merchant contain the same or identical image (including the same image in different angles), name and/or description, such item is considered as a duplicate and should be deleted. Please note: the exception may be only for items with the same image and/or description, but which contain in the title their distinctive features (e.g., size, model of the product, etc). Observe copyright, patent law, trade secrets, as well as other intellectual property rights. Post only those images, texts, videos, drawings, where you are the author or the owner. Otherwise, you may post third-party content, if that third party authorised you to do so. Products/services posted must comply with the requirements of the applicable legislation, including the regulations on advertising and marketing. Please abide by the list of products/services not allowed for publication on the marketplace platform (Prohibited Items). In marketing activity the Merchant will comply with US state and federal anti-spam laws, including the Controlling the Assault of Non-Solicited Pornography And Marketing Act (CAN-SPAM) and similar EU, UK and international legislation. If the products/services or your type of business activity are subject to mandatory licensing or certification, please download the relevant documents in a respective section of the Service.

2) The Administration has a right not to place product/services items in a catalogue, if: the name and description of the item contains a senseless range of symbols or key words; the information posted contains external websites, except for the cases when a third-party is a party to the item to be provided; the information contains any elements/codes that modify the item and webpage design and/or manage the browsers of other Website users; the offer announcement text contains words in CAPITAL letters (excluding abbreviations) or the text with letter-spacing (words printed with spaces between letters); the text contains multitude of grammatical mistakes or transliteration description; the rules of items placing are contravened; items are duplicated, as stated above; the product items posted are misleading for the end-users/buyers, e.g. the price and availability are not up-to-date; the image and description of the product/service are not true; etc).

10.PROHIBITIONS AND LIMITATIONS

ClearPay may prohibit the sale of products/services in accordance with its internal policies, from time to time, at its sole discretion, without prior notice.

ClearPay may impose limits on sales of products/services and refuse to process Transactions for specific Customers for any reason, at its sole discretion.

ClearPay shall not be held liable to the Supplier/Merchant for any losses, expenses, or damages the Supplier incurs, including claims for lost profits, resulting from or related to ClearPay's imposition of limits on Transactions or Reserve amounts, for any reason.

An item will be considered prohibited, not only if it contains prohibited information in the title or description of the product/image, but also in key words.

In case of grounded suspicion that the item in its essence bears information about prohibited items/services or induces to illegal/illicit activity, the Administration has the right to block an access to such information without prior notice.

The Supplier/Merchant shall comply with ClearPay’s list of Prohibited/Restricted Items and Activities as set forth on its Website and updated from time to time as appropriate, and/or as indicated below:

Prohibited/Restricted List: 1. It is strictly forbidden to send or receive payments as consideration for the sale or supply of: tobacco products, prescription drugs, drugs and drug paraphernalia, weapons (including without limitation, knives, guns, firearms or ammunition), satellite and cable TV descramblers, pornography, adult material, material which incites violence, hatred, racism or which is considered obscene, government IDs and licences including replicas and novelty items and any counterfeit products, unlicensed or illegal lotteries or gambling services (including without limitation the use of or participation in illegal gambling houses), unregistered charity services, items which encourage or facilitate illegal activities, prepaid debit cards or other stored value cards that are not associated with a particular merchant and are not limited to purchases of particular products or services, third party processing or payment aggregation products or services, multi-level marketing, pyramid selling or ponzi schemes, matrix programmes or other “get rich quick” schemes or high yield investment programmes, goods or services that infringe the intellectual property rights of a third party, un-coded/miscoded gaming, timeshares or property reservation payments (On and Off Plan). We reserve the right, in our sole discretion, to add categories of prohibited transactions by adding such categories either to these agreement or an acceptable T&C Policy published on the Website. 2. It is strictly forbidden to make payments to or receive payments from persons or entities offering illegal gambling services, including (but not limited to) illegal sports betting, casino games and poker games. The company may suspend or terminate the Merchant’s Account at any time or refuse to execute or reverse a transaction if it believes that the Merchant directly or indirectly uses or have used his Account for or in connection with illegal gambling transactions. This list is not exhaustive and it is the Merchant’s responsibility to ensure that s/he does not use the company’s services for transactions that may be considered illegal in the Merchant’s jurisdiction. 3. The Merchant may not use our services if he is residing in certain countries. These countries will be listed on the Website and updated from time to time. This list is not exhaustive and we may in our sole discretion decide to discontinue or restrict our services in other countries at any time and without prior notice. We reserve the right to suspend or terminate the Merchant’s Account at any time if we reasonably believe to be required to do so by law or in order to comply with recommendations issued by a relevant government authority or recognised body for the prevention of financial crime. 4. The Merchant is strictly forbidden to use his Account for any illegal purposes including but not limited to fraud and money laundering. We will report any suspicious activity to the relevant law enforcement agency. The Merchant is prohibited from using his Account in an attempt to abuse, exploit or circumvent the usage restrictions imposed by a merchant on the services it provides. 5. It is Merchant’s and not our responsibility to ensure that the Merchant only sends payments to or receives payments from persons or entities for the sale or supply of goods and services that the Merchant may provide or receive in compliance with any applicable laws and regulations. The mere fact that a person or entity accepts payments through us is not an indication of the legality of the supply or provision of their goods and services. If the Merchant is in doubt as to the legality of a supply or purchase, he should not continue with his payment.

11. THE MERCHANT’S RIGHTS AND OBLIGATIONS

The Merchant shall be solely liable for the content of its website(s) and full compliance with the mandatory laws and regulations of the country(-ies) where the Merchant operates or is directly or indirectly involved in the sale of goods or services from its website(s).

The Merchant shall be fully liable for content, correctness of advertisements in its website(s) and their compliance with requirements of applicable laws.

By accepting these MoR Terms the Merchant confirms to ClearPay that it owns or has lawful rights to use, utilise, distribute all information, data, schedules, texts, video, music or other intellectual property, which forms part of the website or in any way is included in the website and is offered to customers as well as to other persons who access the website.

The Merchant must organise its business in a way not exceeding ChargeBack and Fraud thresholds stated in the Fees section of the marketplace platform as to their count and amount proportions.

If the Merchant’s monthly performance exceeds the ChargeBack threshold or Fraud threshold, ClearPay will charge each Fraud or Chargeback transaction done during such month at a rate prescribed for the exceedance of these thresholds as appropriate.

The Merchant shall inform ClearPay in writing on all changes to the Merchant’s Bank Account(s) number(s), where the Payouts due to the Merchant should be paid, within 2 business days starting from coming into effect of such changes.

Accepting payments by cards, it should be observed the general terms and conditions of the Acquirer / Acquiring Bank, Card Organisations, ClearPay rules.

The Merchant must not use ClearPay services in an unlawful manner. The Merchant will not use Services for the sales of goods and/or services which are in breach of any legislation and particularly the local and international legislation in the area of fraud, Money Laundering or Terrorist Financing, and the sanction legislation.

In the event of theft or any unauthorized access to the data of transactions, the Merchant shall notify ClearPay of such incident as quickly as possible, but no later than 24 hours afterwards.

The Merchant shall inform ClearPay on all fraudulent transactions with cards that it gets aware of. Upon receipt of notice on fraudulent transaction, the Merchant shall provide ClearPay with:

a copy of credit card of the suspected customer, a copy of passport of the suspected customer, a copy of utility bill of the suspected customer

The Merchant shall be involved and assist ClearPay as much as possible to solve issues or disputes arising between all parties involved in performance of the Agreement (Acquirer(s), Card Organisation(s), Cardholder(s), Customer(s)) so that the amount of potential claims, fines or other losses and costs would be decreased to the extent possible. The Merchant shall keep documents confirming the transactions (receipts, if any, confirmations of supply and others) for at least 1 year after performance of transactions and submit them to ClearPay upon its request.

The Merchant may not disclose the functionality of ClearPay website to the third parties, not related to the present Agreement provisions.

12. ​ClearPay RIGHTS AND OBLIGATIONS

ClearPay shall provide the services stated in this Agreement to the Merchant in due quality and within the limits of its technical possibilities.

ClearPay may request and receive compensation for contractual penalties, sanctions, losses, claims or expenses incurred by ClearPay due to the Merchant’s activities or omission of activities or in relation to them, including fines which are charged from ClearPay by Acquirer(s), Card Organizations or other local or international organizations, merchants and natural persons.

The Parties hereby agree that ClearPay reserves the right at its sole discretion immediately, unilaterally and without prior notice to the Merchant to suspend provision of services to the Merchant and/or block all of the Merchant's amounts and their payment, including Payouts due to the Merchant until full clarification of all circumstances.

In case the Merchant performs transactions within ClearPay payment processing system with the Merchant Account by using a website which was not previously indicated as the website, through which the Merchant operates (the ‘registered website’), or in case the Merchant's website fully or partially fails to comply with preconditions stated in this Agreement, ClearPay reserves the right at its sole discretion:

to apply contractual penalties of unregistered website; and/or unilaterally terminate this Agreement and stop provision of services hereunder to the Merchant; and/or suspend provision of the services and block all of the Merchant’s amounts and their payment until full clarification of all circumstances.

If the total amount of transactions carried out by the Merchant within 30 days from the date of the Merchant Account registration does not reach an amount of the set limits, ClearPay may suspend the Merchant Account and provision of services hereunder.

The Parties hereby agree that ClearPay is entitled to make deductions of any penalties that shall be applied to the Merchant by Card Organisations or Acquirer(s).

In case ClearPay finds that the Merchant uses services for sales that are in breach of the applicable local or international laws or regulations, ClearPay reserves the right to cancel its services provision hereunder with immediate effect and without prior notice to the Merchant.

13. WARRANTIES AND REPRESENTATIONS

The Supplier/Merchant guarantees that the products/services offered by it shall be in compliance with the information specified in the name and description of the items, are free from claims of third parties and the fact of their placement does not violate intellectual property rights.

Placing the offer of products/services sale specifying the Trade Marks, the Supplier/Merchant warrants that these items are placed by him/her legally and lawfully (with the consent of the copyright holder or after the goods are put into civil circulation by him or an authorized person).

Placing information about the products/services subject to mandatory certification, where applicable, or licensed activities, the Merchant is responsible for the respective documentary permits availability, where applicable.

In case the Administration reveals information, products, services prohibited to be published and/or offered in accordance with these MoR Merchant Terms and/or the applicable legislation, or the activity provided without appropriate authorization and permits, the Supplier/Merchant account will be blocked automatically without notice.

The Merchant will make commercially reasonable efforts not to trade with end-user individuals of the age under 18. ClearPay reserves the right to refuse the Services in transactions with minors.

14. TAXATION

The Merchant is responsible for the registration, filing, reporting, and payment of all applicable taxes with connection to its business nature and activity.

The parties agree that if any taxes are imposed in connection with ClearPay Services provision when ClearPay executes tax payment on the Supplier’s behalf, the Supplier will repay ClearPay an amount of such tax paid by ClearPay, including, where applicable, relevant fines or penalties, and/or any other related extra charges resulting from the resale of the Supplier’s products/services, incurred by ClearPay.

15. AUDITS

The Merchant shall allow ClearPay and/or any relevant acquirer to conduct financial, compliance, security audits upon 10 business days written notice or, in case of suspicious transactions/activity and security threats, 1 business day written notice. Such audits shall include the right to examine all relevant accounts, books, financial data, bank records, customer details, and contact creditors, clients and partners, and security policies and records, server hosts, security certificates and server records and outsourced arrangements.

The Merchant shall promptly provide access to all necessary documentation, and give full cooperation and disclosure as required to complete such audits.

The Merchant shall at all times develop and update, where applicable, the security measures to secure the end-users data, particularly sensitive data.

16. FEES. SETTLEMENTS

The Merchant agrees to pay ClearPay all Transaction fees (“Fees”) and other amounts required by this Agreement, when due.

Upon the purchase by an End-User of a Product offered by the Supplier/Merchant, in accordance with the terms hereof, ClearPay will pay the Supplier/Merchant for the purchase of products/services resold by ClearPay, in accordance with the fees stated by the Parties.

ClearPay may retain a portion of the proceeds of Transactions, to establish and maintain a Reserve Account. Any funds held in a Reserve Account for whatever reason shall accrue no interest, or any other earnings to the Supplier/ Merchant.

The Merchant authorizes ClearPay, where applicable, to receive funds from acquirers/acquiring banks on the Merchant’s behalf for settlement to the Merchant. Where the currency exchange conversion is applied, the Merchant authorizes such funds to be converted as appropriate and then forward the settlement funds in the converted currency directly to Merchant.

17. CANCEL OF TRANSACTION

If the Merchant desires to cancel any Transaction and Refund the Transaction amount, the Merchant must inform ClearPay thereon in writing by email indicated in the Agreement or using its program interface on ClearPay transaction data recording system.

The notice should include information on the initial Transaction, as well as the Transaction identification code. ClearPay will act strictly in compliance with this instruction within 1 business day after receipt of such instruction.

In case some fraudulent transaction is found, it can be cancelled upon ClearPay initiative, together with all logically related Transactions and the Transaction amount repaid to the end user’s card.

The Transaction cancel and Refund of the Transaction amount mentioned in this clause can be referred to all logically related Transactions which have been performed within previous 180 days.

ClearPay is entitled by informing the Merchant to unilaterally annul any suspicious or fraudulent Transaction and Refund the Transaction amount to the end user. In such case, where required at law, ClearPay may report a fraudulent Transaction to the competent authorities.

18. LAW COMPLIANCE

The Merchant must comply with all applicable laws and regulations including, but not limited to, relating to export control laws and economic sanctions, including the International Emergency Economic Powers Act (IEEPA), the Office of Foreign Assets Control (OFAC), the Arms Export Control Act, International Traffic in Arms Regulations (US ITAR), European Union lists of persons under sanctions, terrorist lists, groups and entities subject to financial sanctions, including the UK HM Treasury Consolidated List of Financial Sanctions Targets.

19. APPLICABLE LAW AND DISPUTES RESOLUTION

These Terms and other relationships between the Parties are governed by the law of the State of Delaware. The Merchant agrees that the laws of the State of Delaware, without regard to principles of any conflict of laws, govern these Terms and any claim or dispute that has arisen or may arise between the Merchant and ClearPay. All disputes and disagreements that might arise from these MoR Terms shall be resolved by means of negotiations. The Merchant agrees that for the purposes of the settlement of disputes between the Parties, an e-mail correspondence with the authorized persons of the ClearPay shall be the effective and binding method of communication. If the Parties cannot agree on the subject of the dispute within thirty (30) days, the dispute shall be submitted to the competent court in accordance with the applicable law of Delaware.

20. THE ​SOFTWARE​ ​LICENSE

ClearPay grants the Merchant a revocable, non-exclusive, non-transferable license to use ClearPay’s software applications in accordance with the documentation accompanying the software. This license grant includes all updates, upgrades, new versions and replacement software for the Merchant's use in connection with ClearPay payment processing services, as well as marketplace services. If the Merchant does not comply with the documentation and any other requirements provided by ClearPay, then the Merchant will be liable for all resulting damages suffered by the Merchant, ClearPay and the third parties. Unless otherwise provided by applicable law, the Merchant consents not to alter, reproduce, adapt, distribute, display, publish, reverse, engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the software. Upon expiration or termination of this Agreement, the Merchant will immediately cease all use of any software.

21. ​TRADEMARK​ ​LICENSE

ClearPay hereby grants the Merchant a revocable, non-exclusive, non-transferable license to use ClearPay’s trademarks used to identify ClearPay payment processing services and marketplace services solely in conjunction with the use of ClearPay payment processing services and marketplace services. The Merchant consents that it will not at any time during or after this Agreement claim any rights 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 ClearPay, including, without limitation registering or attempting to register any trademark or any such other trademark, trade name or product designation.

22. ​INTELLECTUAL​ ​PROPERTY

Other than the express licenses granted by this Agreement, ClearPay does not grant any kind of right or license of ClearPay payment processing services, marketplace provision or any Intellectual Property (IP) rights of ClearPay. Each party shall retain all ownership rights, title, and interest in and to its own products and services and all IP rights therein, subject only to the rights and licenses specifically granted herein. The Merchant shall in no way represent, except as specifically permitted under this Agreement, that it has any right, title or interest in or to the IP of ClearPay.

23. ​INDEMNIFICATION

The Merchant agrees to indemnify, defend, and hold harmless ClearPay, its parent, affiliates, officers, directors, agents, employees and suppliers from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorneys’ fees and cost of defense) they may suffer or incur as a result of:

the Merchant's breach of this Agreement or any other agreement the Merchant enters into with ClearPay or its suppliers in relation to Merchant use of ClearPay services; the Merchant's use of ClearPay services; and/or the Merchant's violation of any applicable law, regulation, or Card Organization Rules and requirements.

The Merchant shall also pay ClearPay for any related expenses incurred by ClearPay, including reasonable attorney's fees, in its collection of any amounts due from the Merchant.

24. ​LIMITATION​ ​OF​ ​LIABILITY

ClearPay shall not be held liable to the Merchant or any third party for any consequential, indirect, incidental, reliance, or exemplary damages arising out of or relating to this Agreement, 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 or impairment of other assets; or labour claims, even if ClearPay has been advised of the possibility of such damages. ClearPay assumes no liability for the Merchant's failure to perform in accordance with this Agreement or any results caused by acts, omissions or negligence of the Merchant, a subcontractor or an agent of the Merchant or an employee of any of them, nor shall ClearPay have any liability for claims of the third parties, including but not limited to, claims of the third parties arising out of or as a result of, or in connection with, the Merchant’s services, messages, programs, promotions, advertising, infringement or any claim for violation of copyright, trademark or other IP rights. Under no circumstances shall ClearPay’s total aggregate liability to the Merchant or any third party arising out of or related to this Agreement exceed the direct damages suffered by such party in an amount equal to the amounts paid/payable by the Merchant to ClearPay under this Agreement.

25. ​DISCLAIMER​ ​OF​ ​WARRANTIES

ClearPay and its functionality including all scripts, annexes, content, and design are provided for the Merchants on “as is” and “as available” basis, without any warranty whatsoever. The Administration shall not be obliged to extend the ClearPay’s functionality or to change ClearPay otherwise. The Administration shall not be obliged to ensure the operation of ClearPay on all program platforms, for all devices or under certain specific conditions. ClearPay disclaims all warranties whether express, implied, to the Merchant regarding any matter whatsoever, including all implied warranties of merchantability fitness for a particular purpose and non-infringement of the third party rights. No verbal or written information or advice given by ClearPay or its employees or representatives shall create a warranty or in any way increase the scope of ClearPay’s obligations. The Merchant acknowledges that the ClearPay payment processing services and marketplace services are a computer network based services, which may be subject to outages and delay occurrences. As such, ClearPay does not guarantee continuous or uninterrupted access to ClearPay payment processing services and marketplace services. The Merchant further acknowledges that access to ClearPay website or its payment processing services and marketplace services may be restricted for maintenance. ClearPay will make reasonable efforts to ensure that transactions are processed and marketplace provided in a timely manner. However, ClearPay will not be held liable for any interruption, outage, or failure to provide its payment processing services and marketplace services. The Administration shall be entitled to change the design of ClearPay, its functionality, the used technical solutions, scripts, software, and other elements both visible and invisible to the Merchant at any time unilaterally without giving the Merchant a prior notice. The Merchant agrees that it shall use ClearPay at their own discretion. The Administration shall not warrant that the operation of ClearPay will be uninterrupted, free from immaterial or critical errors, failures, or other defects. The Administration shall take adequate efforts for maintaining the appropriate operational condition of ClearPay. If the Merchant is unsatisfied with the conditions and/or quality of ClearPay or its functionality, they shall discontinue using ClearPay. The Merchant agrees that the Administration shall not incur liability for any losses (direct, indirect or accidental) or other property and non-property losses of the Merchant or third parties resulting from a failure in the operation of ClearPay, the use or impossibility of the use thereof, loss of the information (including files) being important to the Merchant due to technical reasons and as a result of the acts or omission of other Merchants. Where and if some states in USA do not permit limitation of incidental or consequential losses, such limitation may not apply to the Merchant. If the Merchant loses access to his/her Account as a result of his/her (i) violation of these Terms, (ii) negligence concerning the cybersecurity and any other necessary measures, including precautionary and preventive measures, that resulted in theft of the Merchant’s Account, (iii) any other action (act or omission), the Administration shall not be liable under these MoR Terms. The Merchant represents and warrants that he/she will be solely responsible for these losses and will not make any claims to the Administration connected to such losses.

26. ​TERM​ ​AND​ ​TERMINATION OF THE AGREEMENT

These MoR Terms shall be in effect from the date of accepting these Terms and until either Party terminates them by a written notice by email or postal mail. The Merchant may terminate these MoR Merchant Terms and ClearPay account(s) at any time upon written notice at least 10 (ten) business days before termination. ClearPay may terminate these Terms at any time for any reason. ClearPay may terminate this Agreement or suspend services to the Merchant if any of the following occurs: ClearPay is required by the Card Organizations, the Acquirer / Acquiring bank, or an order from a regulatory body to cease providing services to the Merchant; ClearPay believes that the Merchant has breached this Agreement, or is likely to do so; If ClearPay determines that the Merchant's use of ClearPay services carries an unacceptable amount of risk, including credit or fraud risk; or Any other legal, reputational, or risk-based reason exists, in ClearPay’s sole discretion. After termination by either party, the Merchant shall no longer have an access to, and shall cease all use of ClearPay services. Any termination of this Agreement does not relieve the Merchant of any obligations to pay any fees, costs, penalties, Chargebacks or any other amounts owed by the Merchant to ClearPay as provided under this Agreement, whether accrued prior to or after termination. Upon termination of these MoR Merchant Terms, any outstanding and unpaid fees and charges of the Merchant to ClearPay shall become immediately due and payable. ClearPay may at termination of these MoR Merchant Terms and at its sole discretion, hold back all then due purchase payments including any existing Reserve amounts for a period of up to 180 (one hundred and eighty) days ("Holdback") so that to cover additional financial risks related to Disputes, Refunds, or Returns of products supplied by the Supplier/Merchant that extend beyond the time of termination of these MoR Merchant Terms. Such Holdback may be necessary in order to protect ClearPay from serious risks in relation with with Suppliers/Merchants who, e.g. change business activity, go bankrupt, have claims for undelivered products/services, any fees charged against them, etc. Any Holdback funds retained for this period will be used by ClearPay to pay for any outstanding disputes, refunds or returns of products supplied by the Supplier/Merchant and/or related card association fines that are necessary for this period of financial risk to ClearPay after termination of these MoR Merchant Terms. The remainder of the Holdback monies will be returned after that period has elapsed. If ClearPay holds funds related to the Account at the termination of these MoR Merchant Terms and it is later determined that such funds should be sent to the Supplier/Merchant, the Supplier/Merchant’s legal name and address, email, and other details, as set in the Account on the date of termination, will be used to try to contact the Supplier/Merchant regarding any funds that are being held for the Supplier/Merchant. If ClearPay is unable to complete the payment of funds to the Supplier/Merchant, or the duly authorized representative thereof, e.g. trustee, after a period of attempting to contact the Supplier/Merchant, of not less than 12 (twelve) months, the funds will be subject to the applicable laws as unclaimed estates. Otherwise, the funds may also be donated to a charity. Upon Termination of these MoR Merchant Terms, the provisions of the Parties’ obligations under this Agreement shall survive such Termination.

27. FINAL PROVISIONS

These MoR Terms shall be valid till terminated by either Party. The Merchant shall be entitled to terminate these MoR Terms unilaterally at any time as stated above, subject to the deactivation of their Account and cessation of use of ClearPay. These MoR Terms shall supersede any other arrangements between the Parties as well as all prior versions thereof. Should any provision of these MoR Terms (a clause or a statement within a clause) be void, unenforceable or legally invalid otherwise, it shall not affect any other provision hereof, or these MoR Terms as a whole. The Administration shall be entitled to make amendments or additions to these MoR Terms unilaterally at any time without any special notice by placing a new version hereof on the website. The new version of the Terms shall come into force at the moment it is placed on the website, unless otherwise provided by the new version thereof. The Merchant is responsible to regularly monitor the PyOp website or Merchant’s account on the ClearPay dashboard for notice of changes to the ClearPay Services and fees. The Merchant shall be notified in advance of such changes in ClearPay Services and fees. Fees may be updated and revised by ClearPay upon 10 days notice. The following notifications sent by email must be immediately confirmed by the sender, by a registered mail or by delivering to the other Party against signature: complaints regarding fulfillment of the Agreement; claims for damages or payment of contractual penalties; notices regarding the termination of the Agreement.

Any additional enquiries can be sent to the Administration by support@clearpay.com.