WHEREAS: ConnexPay works with a network of partners to allow ConnexPay clients to facilitate payments to suppliers ofgoods and services (the “Payment Service” as further defined below), and
WHEREAS, Client has entered into an agreement forthe administration of Supplier payments with an organization that providesservices ancillary to the Payment Services but that does not directly provide paymentservices (“Partner”); and
WHEREAS ConnexPay has partnered with Partner sothat Partner may refer Partner clients to ConnexPay Payment Services;
NOW THEREFORE, the Parties hereby agree asfollows:
Section 1. Definitions.
For the purposes of this Agreement, the following capitalized terms shall have the meanings set forth below:
Agreement: This agreement and the Application, which is incorporated herein by reference.
AML: policies and procedures relating to the prevention of money laundering and the financing of terrorism.
AncillaryFees: Any service-related assessments, fees, fines,penalties, or other charges ancillary to the Payment Services that are imposedon ConnexPay by the Card Brands, a Member Bank, a regulator or otherthird-party providers and incurred as a result of the processing of Clienttransactions or Client’s actions or inactions including but not limited to, anyamounts due as a result of Chargebacks, settled and unsettled authorizations,refunds or PCI fines.
ApplicableLaw: In respect of a Party, all applicable laws, treaties,regulations, and conventions (including any laws governing the holding ortransmitting of money) and all applicable rules, regulations, and requirementsof any regulatory authorities (including, if and to the extent applicable, CardBrand Rules and the PCI DSS) in any jurisdiction to which that Party issubject.
Application: ConnexPay’s request forClient information which shall include a statement of Client’s financialcondition, a description of the Client’s business or organization, and anyother financial, organizational, or credit-related information requested byConnexPay or Member Bank, and provided in a form acceptable to them, which maybe updated from time to time.
Card Brand: A payment method providerwhose payment method is accepted by ConnexPay for processing, including, butnot limited to, Visa, U.S.A., Inc., Mastercard International, Inc., andDiscover Financial Services, LLC. Card Brand shall also include the Payment CardIndustry Security Standards Council.
Card BrandRules: The bylaws, operating regulations, rules, policies andprocedures as defined by the Card Brands.
Chargeback: A disputed cardtransaction resulting in a withdrawal of funds from a Client Account.
ClientAccount: The Collection Account and/or the Operating Account.
CollectionAccount: A subledger account established on behalf of Clientwithin a bank account in the name of the Member Bank, each created for thepurpose of settling funds associated with the Payment Services in thisAgreement.
ConfidentialInformation: The confidential information of Party, including (i)any data or information that is a trade secret or competitively sensitive, anycommercial, marketing, technical or other information relating to the businessactivities of the Parties; (ii) any other information made available to a Partyby another Party which would reasonably be understood to be confidential,whether or not such information is reduced to a tangible form or marked inwriting as “confidential”, such as, information included in Client’sApplication; and (iii) any and all information which has been or which may bederived or obtained from any of the information detailed in (i) or (ii).
ConnexPayPlatform: The ConnexPay software, APIs and related documentationmade available to Client for the purposes of accessing the Payment Service.
DataIncident: Any suspected or actual unauthorized access,disclosure, theft, or unauthorized use of Personal Data.
EffectiveDate: The date the Agreement is fully executed by theParties.
ElectronicPayments Regulator: National Association Clearing House (NACHA) or otherapplicable governing body or regulator having jurisdiction over the electronicfunds transfer Payment Method elected by Client on Exhibit A.
Fines andPenalties: Fines, penalties and other non-compliance assessmentsof any kind imposed by a Member Bank, Card Brand, Electronic Payment Regulator,or other applicable governing or regulatory body having jurisdiction over aParty or a Partner as a result of Clients use of the Payment Services, exceptto the extent caused by ConnexPay’s gross negligence.
ForceMajeure Event: Force Majeure Event: Forces beyond the reasonablecontrol of a Party including, without limitation, labor disputes, fire, weatheror other casualty or natural catastrophes or acts of God, power outages,however caused, governmental orders or regulations, acts of war or terrorism,civil or military disturbances, and interruptions, loss or malfunctions ofutilities, communications or computer (software and hardware,) or any othercause, whether similar or dissimilar to the foregoing, beyond the Parties’reasonable control.
IssuedCards: Any virtual cards or physical cards as may be offeredby ConnexPay as part of the Payment Services from time to time.
IssuingBank: A financial institution licensed by a Card Brand tosponsor third-party organizations to issue Issued Cards on behalf of the Clientto Suppliers.
KYC: policies and proceduresappropriate to verifying the identity, suitability, and risks involved withmaintaining a business relationship with a particular customer, (whether anindividual or a business), including but not limited to review against OFAC SanctionsLists.
Laws: The laws, rules, orregulations of a governing body with authority over a Party, the Card BrandRules and PCI-DSS.
MemberBank: Issuing Bank or other partner bank, providing bankaccounts for purposes of delivering the Payment Services, as jointly orindividually referenced.
MinimumCash Balance: The cash balance which is required to be retained inthe Collection Account in an amount equal to ConnexPay’s reasonable estimate ofPayment Service Liabilities.
NetSettled Issued Card Volume: The total money volume of issued transactions that havesettled, less all returns or any other reduction to gross monthly settlementvolume.
OperatingAccount: A checking or similar account established in Client’sname, held at a regulated financial institution acceptable to ConnexPay andwhich Client has authorized, ConnexPay, or ConnexPay’s agent to access via theACH system (or a suitable alternative) for the purposes of transferring Clientfunds.
PaymentMethod: Forms of payment made available to Client by Partnerfor Supplier payments (examples may include, Issued Cards, ACH Transactions (orother forms of electronic funds transfer payment method made available byConnexPay) or Push to Card Transactions.
PaymentServices Funds: The amount of Client funds needed to cover SupplierPayment instruction amounts expected to be paid to Client Suppliers and anyAncillary Fees.
PaymentServices Liabilities: The Payment Services Funds, Fees, Amounts paid toSuppliers hereunder, Chargebacks, Fees, Fines and Penalties, Taxes, or otherexpenses and costs incurred by ConnexPay or its Partners on Client’s behalf, orimposed directly upon Client by a Partner, pursuant to the Payment Services,including but not limited to Ancillary Fees.
PCI-DSS: The Payment Card IndustryData Security Standard.
Personal Data: Information that can be used to identify, locate, orcontact an individual, alone or when combined with other personal oridentifying information, or in the case of data processed by ConnexPay relatingto data subjects in the United Kingdom or the European Union, as set forth inthe ConnexPay Data Processing Addendum at https://connexpay.com/legal-regulatory-and-privacy-dpa/.
Secured Assets: has the meaning ascribed to theterm in Section 9 of this Agreement.
Secured Obligations: has meaning ascribed to the term in Section 9 of thisAgreement.
Supplier: A third-party supplier of the goods or services to whomClient makes payments on behalf of its customers or from whom Client makespurchases on its own behalf under this Agreement.
Supplier PaymentInstructions: Instructions for payment via Issued Cards or otherwise issued by aClient under this Agreement for the distribution of funds from the CollectionAccount to Suppliers, provided in a manner acceptable to ConnexPay.
Taxes: Any applicable taxes andother fees, charges, penalties, interest, and other additions thereto levied bya governmental body with authority over Client, ConnexPay or its Partners, thePayment Service, or over any funds transferred under this Agreement.
Vendor: A third-party serviceprovider (other than ConnexPay or its Partners) used by Client in connectionwith the Payment Service received hereunder, including but not limited to,Client’s software providers, equipment providers, and/or third-party payment processors,or gateways.
Other capitalized defined terms in this Agreementshall have the meaning ascribed to them herein.
Section 2. Payment Services.
1. ConnexPay Obligations:
a. ConnexPay shall, directly or through its network of Partners:
i. provide Client with access to ConnexPay’s application programinterface (“API”) and user interface (“UI”) so that Client may access theConnexPay Platform to issue instructions and view and manage account status andreporting;
ii. establish a Collection Account at Member Bank on behalf of Client;
iii. communicate Client instructions for execution by the Member Bank inrelation to the disposition of Client funds from the Client Account as follows:
1. accept Client funds by deposit into the CollectionAccount;
2. cause funds in the Collection Account to be remitted toSuppliers in amounts solely determined by Client, using the Payment Methodelected by Client;
3. refund cancelled Issued Card amounts from the CollectionAccount back to the Operating Account;
4. cause settlement of Payment Services Liabilities inaccordance with the Agreement; and
iv. provide timely Reporting to Client.
2. Client Obligations:
a. Client hereby authorizes and instructs Connexpay to issueinstructions related to the delivery of Payment Services to Client to theMember Banks on Client’s behalf in accordance with the terms of this Agreement.
b. Client shall:
i. complete and maintain the Application with complete and accurateinformation and promptly notify ConnexPay in writing of any change to theApplication on file. Client agrees that ConnexPay or Member Bank may utilizethird parties to verify the information provided on the Application. ConnexPayand Member Banks shall be entitled to rely on the information in theApplication (including as updated from time to time) to set up and administerthe Payment Services to Client and for compliance purposes. Client shallcooperate in good faith to provide reasonable and necessary informationrequested by ConnexPay or Member Banks for the duration of the Agreement;
ii. notify ConnexPay in writing within three (3) days of any lien,judgement, writ, warrant of attachment, execution or levy against twenty-fivepercent (25%) or more of Client’s assets;
iii. designate the Client Operating Account and authorize and enableaccess by ConnexPay and Member Bank for the limited purposes described in thisAgreement;
iv. actively monitor the Collection Account and maintain a balanceadequate to fund all Payment Services Funds, as set forth in Section 5(2)below;
v. for each purchase of Supplier goods and/or services, identify thePayment Method and direct the disbursement of funds in the Collection Accountwith corresponding Supplier Payment Instructions; and
vii. review the Reporting and the Client Accounts on a daily basis andimmediately notify ConnexPay of any discrepancy regarding the Payment Service.
3. Access and Use:
a. Accessing the Payment Services
i. ConnexPay Platform: If Client will access the Payment Service usingthe ConnexPay Platform, then, subject to compliance with all the terms andconditions of this Agreement, ConnexPay hereby grants Client a non-exclusive,non-transferable right to access and use the ConnexPay Platform andIntellectual Property during the Term for purposes of receiving the PaymentServices. Such right is solely for use by those of Client’s employees,consultants and contractors who are authorized by Client to access and use theServices under the rights granted to Client in this Agreement (“End Users”).Such use is limited to Client’s internal use. Client shall not use the PaymentServices for any purposes other than as described in this Agreement. Clientshall not at any time, directly or indirectly, and shall not permit any EndUsers to: (i) copy, modify, or create derivative works of the Services (ii)reverse engineer otherwise attempt to derive or gain access to any softwarecomponent of the Payment Services, in whole or in part; or (iii) use thePayment Services in violation of the Agreement or in any manner that infringes,misappropriates, or otherwise violates any intellectual property right or otherright of any person, or Applicable Law. Client is responsible for maintainingthe security of any access credentials under its control, including those ofEnd Users.
ii. Referral Client Platform: If Client has a separate contract forservices with Partner which provides client with a user interface through whichClient may access Payment Services (the “Partner Portal”), Client shall issuepayment instructions to ConnexPay via the Partner Portal. ConnexPay is notresponsible for, and Client shall not make a claim arising from, any delay,inaccurate information or other failure or errors caused by the PartnerPlatform.
b. Payment Services. Client may use the Payment Service as follows:
i. Client is the authorized user of the Payment Method and the PaymentServices. Client customers may not further resell ConnexPay services or allowuse of the Payment Services or Payment Methods by a third party;
ii. Issued Cards may be issued only for identifiable goods and servicesin non-sanctioned counties and only to non-sanctioned organizations andindividuals and are subject to an approved list of Merchant Category Codes(MCC’s) and businesses determined by ConnexPay, the Member Bank or a Card Brandfrom time to time.
iii. Consumer transactions must be for the express purpose of buying aproduct or service from Client directly and payments to Suppliers arising fromconsumer transactions must align to the purpose for which they were intended inthe underlying consumer transaction. Consumer transactions may be subject to alimited list of MCC’s, accordingly. For clarity, Payment Services may not beused to enable consumer-funded transactions that can obfuscate the consumertransaction, e.g., where funds are used to fund a wallet or to convert one formof fiat (cash, ACH) into another form of currency or fiat (cards,cryptocurrency) for any purpose. Example: a consumer funds an account/walletand then a virtual card is issued and given to either that same consumer oranother consumer for the purpose of transacting – even if it is to purchase aproduct or service. Value loaded Issued Cards may be permitted by ConnexPay inwriting, in its sole discretion, if they can only be used at a specific,approved, merchant/retailer.
vi. Payment Services may only be used for business or commercialpurposes and not for personal, family, household, or other non-businesspurposes.
c. Client shall immediately inform ConnexPay of an occurrence or thelikelihood of an occurrence pursuant to which the carrying out of its businessis in violation of these use parameters or is likely to be considered unlawfulunder Applicable Laws.
Section 3. Intentionally Omitted.
Section 4. Audit Rights.
Uponrequest, Client shall grant ConnexPay (and/or a third-party auditor underappropriate confidentiality obligations, on ConnexPay’s behalf) permission toaudit, examine, or review relevant books and records solely to verifycompliance with the terms and conditions of this Agreement. Each audit will bepre-scheduled in writing with Client reasonably in advance and for a mutuallyagreeable time period, and, except in the case of a good faith belief byConnexPay of a material breach of this Agreement by Client, or at the requestof a Member Bank or Card Brand, will be performed no more than once eachcalendar year. Each Party shall bear its own expenses in connection with anaudit and both Parties shall be entitled to a copy of the audit findings. Allinformation obtained during any such audit shall be deemed ConfidentialInformation hereunder.
Section 5. Establishment and Use of Client Accounts.
1. Client hereby expressly authorizes ConnexPay and/orMember Bank to establish a Collection Account on its behalf. By law, allfinancial institutions must obtain, verify, and record information thatidentifies each person or business entity that establishes an account. Uponrequest by ConnexPay or a Member Bank, Client shall provide the Member Bankwith Client’s legal entity name, principal and local (if different) address,date of establishment, employer identification number and other information andany other reasonable documentation requested by Member Bank from time to time.Client agrees that ConnexPay and Member Bank may seek information about Clientfrom third parties for KYC purposes and for other Client Account relatedpurposes.
2. Client shall fund the Collection Account in a mannerapproved by ConnexPay as follows:
a. Prefunding: Client shallprefund the Collection Account in the amount necessary to cover all PaymentServices Funds. ConnexPay shall not be required to fulfill all or partof any Supplier Payment Instructions if adequate funds are not available in theCollection Account to complete the payment in full. Clients using prefundingshall not direct ConnexPay or its Partners to distribute funds to any Supplierin excess of the amount then held in the Collection Account.
b. Funding on Settlement: AtConnexPay’s sole discretion, in lieu of prefunding, Client may fund theCollection Account upon settlement. Settlement activity will be made availabledaily to Client via the ConnexPay Platform and via email. For purposes of thisSection 5(2)(b), Client shall, at all times, maintain a Minimum Cash Balanceand shall fund the Collection Account in an amount equal to the settlementactivity and any Ancillary Fees each day.
3. Client hereby expressly authorizes ConnexPay to issueinstructions on its behalf related to the disposition of funds to and from theClient Account as set forth in this Agreement. Client shall not directConnexPay to distribute or utilize funds in the Collection Account for anypurpose other than providing the Payment Service.
4. Except as set out in this Agreement, Client shall notconvey, pledge, or assign any interest in the funds held in any CollectionAccount except as expressly authorized in advance in writing by ConnexPay. Anyattempted conveyance, pledge, or assignment of the Client interest in funds inthe Collection Account without ConnexPay’s prior written authorization, shallbe deemed null and void.
5. Client shall not be entitled to collect interest on anyfunds held in the Collection Account.
Section 6. Sufficiency of Funds. (applicable if Client funds the Collection Account)
1. Payment relating to the funding of theCollection Account is due daily by 11am Eastern Standard Time through eitherACH debits or through a wire to the Collection Account. If the CollectionAccount is not funded by 11am Eastern Standard Time, ConnexPay may settle anyamounts due from a Client Account as set forth in Section 5.2. Client shall payinterest in an amount equal to the lesser of an annualized rate of 18% and therate allowed by applicable law for failure to timely fund the CollectionAccount.
2. If the funds in the Collection Accountare insufficient to satisfy the Payment Services Funds, ConnexPay, or itsMember Banks, shall be entitled to debit the Operating Account in an amountequal to such deficiency. Should ConnexPay receive an ACH debit rejection fromthe Operating Account bank, ConnexPay shall inform Client of the deficiency inwriting and Client shall promptly transfer any outstanding funds to theCollection Account. In addition to thelate funding interest in section 5.1, ConnexPay may charge an administrativefee for any ACH debit or credit rejects.
Client hereby expressly authorizesConnexPay and/or Member Bank to debit any funds due to ConnexPay or itsPartners under this Agreement, including but not limited to, any PaymentServices Funds from the Client Accounts. Such authority shall remain in effect for a period of 180 days followingthe later occurring of (i) termination of this Agreement, (ii) final deliveryof the goods and services that are the subject of the Supplier PaymentInstructions, or (iii) the period of time allowed by Card Brands forChargebacks and Refunds.
Section 7. Compensation.
1. Compensation for the PaymentServices to Client is set forth in the Agreement between Partner and ConnexPay.Client shall bring any claims or disputes that arise as a result of Client’sagreement with Partner directly against Partner.
2. Client shall be responsiblefor its own direct and indirect costs in connection with and/or related to (i)Client’s initial connection to the ConnexPay system or Partner’s system, asapplicable; (ii) receipt of the Payment Service; or (iii) Client’s conversionfrom ConnexPay upon the termination or expiration of this Agreement.
Section 8. Term and Termination.
1. This Agreement shall beeffective as of the Effective Date and shall continue for a period of three (3)years (the “Initial Term”), after which it shall automatically renew forsuccessive one (1) year periods (each, a “Renewal Term”), unless eitherParty provides written notice of its intent not to renew ninety (90) days priorto the expiration of the then-current Renewal Term.
2. Subject to Paragraph 8.4below, ConnexPay may suspend any or all of the Payment Services where any ofthe following occur (each a “Event of Default”) or terminate any or allof the Payment Services I the Event of Default is not cured within 30 days ofwritten notice of the Event of Default:
a. Client is in breach of its representations, warranties orobligations under this Agreement, including but not limited to its obligationsunder Section 2.3;
b. Client is holding insufficient funds in the Client Accounts tosettle its obligations under this Agreement, is over-indebted or is otherwiseunable to, or fails to or is likely to fail to, meet its financial obligationsunder this Agreement;
c. Client is not using the Payment Services as intended, or is using the PaymentServices in a manner that is reasonably likely to cause reputational damage toConnexPay or its Partners;
d. ConnexPay knows or reasonably suspects that fraud has occurred, isoccurring, or is likely to occur with regard to Client or the Payment Service;
e. Client or the Supplier Payment Instructions are in violation, orreasonably likely to be in violation, of Applicable Laws;
f. ConnexPay receives an instruction from Member Bank or a Card Brandto suspend all of the Payment Services;
g. Client becomes subject to any voluntary or involuntary bankruptcy,insolvency, reorganization or liquidation proceeding, which involuntaryproceeding is not dismissed or stayed within thirty (30) days, or a receiver isappointed for Client, or Client makes an assignment for the benefit ofcreditors, or admits its inability to pay its debts as they become due; or
h. Client commences a dissolution or the winding up of business orceases to do business.
3. Where ConnexPay suspends the Payment Services as a resultof an Event of Default, ConnexPay shall be entitled to continue any suchsuspension until the Event of Default has been resolved to ConnexPay’ssatisfaction.
4. Notwithstanding anything to the contrary herein, ifConnexPay determines that (i) an Event of Default cannot be or has not beencured within a reasonable time; or (ii) termination is required by ApplicableLaw, the Member Bank or a Card Brands for any reason; then ConnexPay mayterminate the Agreement immediately upon written notice.
5. Client may terminate this Agreement for cause upon written noticeif ConnexPay is in breach of its obligations, representations, or warrantiesunder this Agreement, and fails to cure such breach within thirty (30) days ofwritten notice of breach by Client.
Section 9. Security Interest.
1. Grant of Security Interest. Client hereby grants afirst priority lien and security interest in and to any Collection Account andall funds, deposits and proceeds at any time held in the Collection Account(the “Secured Assets”), whether now or hereafter existing or arising, tosecure any and all amounts at any time due or owing to ConnexPay andConnexPay’s Partners, including, without limitation, as follows: (i) to Member Bank in an amount equal to any outstandingpayments issued in accordance with the Supplier Payment Instructions which havenot been settled; and (iii) to ConnexPay for any unpaid PaymentServices Liabilities other than those amounts inSections (i) and (ii) herein. (All rights set forth here in Section 9(a),together, the “Secured Obligations”).
2. Representations and Warranties. Client represents and warrants that no other person orentity has a security interest in the Secured Assets. Client agrees that ConnexPay and Member Bank shall have all rightsafforded under the Uniform Commercial Code, any/or other Applicable Law, and inequity with regard to the Secured Assets and the Secured Obligations. Clientmust obtain ConnexPay’s written consent prior to granting a security interestof any kind in the Secured Assets to a third party. ConnexPay and Member Bankmay enforce these security interests without notice or demand. ConnexPay andMember Bank’s interest in the Secured Assets shall survive termination of thisAgreement until all obligations to ConnexPay and Member Banks are satisfied.
3. Information and Perfection of Security Interest. Upon request of ConnexPay or Member Banks, Client willprovide one or more financial statements, outside bank account information, orother financial documents requested under this Section 9. Client acknowledgesConnexPay’s security interest in the Secured Assets, including the funds,deposits and proceeds held in the Collection Account and that ConnexPay has,and at all times during the term of this Agreement, exclusive access to andcontrol of the Collection Account. Client shall timely cooperate with ConnexPayin obtaining any control agreement or similar agreement with a depository banknecessary or desirable to perfect or better perfect the security interests andliens granted herein. In addition, Client agrees that its signature on thisAgreement is an acknowledgement and evidence of ConnexPay’s control over theSecured Assets and will be considered Client’s signature agreeing to anycontrol agreement as addressed by Article 9 of the Uniform Commercial Code (orequivalent applicable local rule, if applicable) among Client, ConnexPay, andMember Banks without further consent by Client.
4. Bankruptcy Matters. Client agrees that ConnexPay and Member Bank are notrequired to file a motion for relief from a bankruptcy action automatic stay torealize on any of the Secured Assets or effectuate any recoupment. Clientfurther agrees not to contest or object to any motion for relief from any suchautomatic stay filed by ConnexPay or Member Bank.
5. Set-off and Recoupment. ConnexPay and Acquiring Bank shall have the right ofrecoupment and set-off such that Acquiring Bank or ConnexPay may offset andrecoup any outstanding or uncollected amounts owed to Acquiring Bank, orConnexPay (or its Partners), from any amounts owed to Client that ConnexPay orAcquiring Bank would otherwise be obligated to deposit into the OperatingAccount.
Section 10. Representations and Warranties.
1. Client represents andwarrants:
a. that the business carried on by the Client is a legitimate, lawfulbusiness and Client is not engaged, and will not engage, in any conduct ortransaction which may be considered unlawful according to Applicable Law;
b. that, if applicable to Client'sbusiness, is has and shall maintain an AML/KYC program appropriateto its business which program can be demonstrated and audited;
c. That it does not violate laws prohibiting human trafficking andthat it has reviewed and to the extend applicable to its business, will complywith ConnexPay’s Anti-Human Trafficking policy found at: https://connexpay.com/trafficking/
d. it will use the Payment Services in accordance with the terms ofthe Agreement and Applicable Law;
e. it will not knowingly do nor omit to do anything which isdisreputable, or which is capable of damaging the reputation or goodwill ofConnexPay, a Member Bank or a Card Brand;
f. as of the Effective Date, it is in good financial standing andable to perform its obligations under this Agreement.
2. Each Party represents andwarrants that:
a. it complies with allApplicable Laws;
b. it has all necessary powerand authority to enter into this Agreement and has and will maintain allcertificates, licenses, authorizations and approvals, to perform all of theirrespective obligations required under this Agreement and Applicable Law; and
c. to the best of itsknowledge, there is no claim, or any litigation, proceeding, arbitration,investigation or material controversy pending, against or affecting it thatwill have a material adverse effect on its ability to perform its obligationsunder this Agreement.
3. EXCEPT FOR THOSE EXPRESSWARRANTIES MADE IN THIS AGREEMENT, CONNEXPAY DISCLAIMS ALL WARRANTIES,INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OFMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT HEREBY ACKNOWLEDGESTHAT THERE ARE RISKS ASSOCIATED WITH THE PAYMENT METHODS AND CLIENT HEREBY ASSUMESALL SUCH RISKS EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN.
Section 11. Limitation of Liability.
1. No Party shall be liable to any other Party for indirect,special, incidental, punitive or consequential damages of any kind or naturewhatsoever arising from or related to this Agreement, including withoutlimitation loss of business, lost profits or lost goodwill and whether based onbreach of any express or implied warranty, breach of contract, tort or strictliability, regardless of whether the Party has been advised of the possibilityof such damage or if such damage could have been reasonably foreseen.
2. Except for (i) Party’s financial obligations to anotherParty under this Agreement; (ii) a breach of a Party’s compliance withApplicable Laws; or (iii) a Party’s indemnification obligations as providedherein, the maximum liability for Client, and the maximum cumulative liabilityfor ConnexPay and its Partners, shall not exceed one hundred thousand dollars.
3. The Parties agree that the rights conferred upon ConnexPay in thisAgreement are not intended to be exclusive of each other or of any other rightsand remedies of available to a Party under this Agreement, at law or in equity.Each and every right of a Party under this Agreement, at law or in equity iscumulative and concurrent and in addition to every other right.
Section 12. Indemnification.
1. Subject to the otherlimitations, terms and conditions of this Agreement, ConnexPay shall indemnify,defend, and hold harmless Client, and its directors, officers, employees,affiliates and agents from and against all third-party proceedings, claims, losses,and damages incurred by Client, its directors, officers, employees, affiliatesand agents to the extent resulting from or arising out of ConnexPay’s grossnegligence or willful misconduct or breach of its representations under Section10 or Section 15.
2. Client shall indemnify,defend, and hold harmless ConnexPay and each of their directors, officers,employees, affiliates and agents from and against all third-party proceedings,claims, losses, damages and all reasonable collection costs, incurred byConnexPay, its directors, officers, employees, affiliates and agents resultingfrom or arising out of Client’s gross negligence, willful misconduct, breach ofits representations under Section 10, Section 15 or breach of Section 2.3.
3. The indemnification of each party shall survive the termination ofthe Agreement. The indemnified Party shall (i) provide prompt written notice ofany claim to the indemnifying Party; (ii) cooperate with all reasonablerequests of the indemnifying Party; and (iii) surrender exclusive control ofthe defense and settlement of any third party claim to the indemnifying Partyprovided that the indemnifying party will obtain the indemnified Party’swritten consent prior to agreeing to any settlement or agreement that requiresthe indemnified Party to make any admission of fault or to pay any amounts inconnection with such settlement or agreement that are not fully paid for by theindemnifying Party. The indemnified Party shall not unreasonably withhold or delayany consent required under this Section 12. The indemnified Party may elect toparticipate in the action with an attorney of its own choice at its ownexpense.
Section 13. Confidentiality.
1. The recipient ofConfidential Information (“Recipient”) shall take care to prevent thepublication and distribution of the Confidential Information with at least thesame degree of care which the Recipient takes to protect its own confidentialinformation of a similar nature, but in any case, no less than an appropriateand reasonable degree of care. The Parties shall be permitted to discloseConfidential Information to those of its subsidiaries, affiliates, Partners,and lenders who are informed of the confidential nature of the information andhave agreed to be bound by confidentiality obligations at least as stringent asthose under this Agreement, including, but not limited to, disclosure and/orutilization of Confidential Information:
a. when necessaryto perform the Payment Service;
b. when requiredby law;
c. to solicitors,barristers, attorneys, accountants, or other professional advisers; and
d. to bankers orother financial institutions, to the extent required for the purpose of raisingfunds or maintaining compliance with credit arrangements.
e. to any ofClient’s third-party service providers (including Partner) used by Client inconnection with the Payment Services.
3. The obligations of this Section 13 shall not apply to theexistence of the Agreement or to information that (a) is obtained from thepublic domain without breaching this Agreement; (b) was lawfully anddemonstrably in the Recipient’s possession before the Confidential Informationwas received from the disclosing Party (“Discloser”); (c) is independentlydeveloped without using or referencing the Discloser’s ConfidentialInformation; or (d) is learned from a third party that is not subject to aconfidentiality obligation.
4. Confidential Informationdisclosed by the Discloser (including any copies thereof) shall at all timesremain the property of the Discloser and the Receiver hereby agrees andacknowledges that no right, property, title, interest, intellectual propertyrights or license, either express or implied, is hereby granted to the Receiverin respect of the Confidential Information (other than in accordance with thisAgreement). At any time, including after termination of this Agreement,Discloser may demand in writing that Receiver return or destroy Discloser’sConfidential Information under its control. Receiver shall comply with thisrequest within 30 days and certify in writing that it has returned or destroyedall Confidential Information. Receiver may keep an archival set of its workingpapers and copies of Discloser’s Confidential Information as necessary tocomply with Applicable Laws and professional standards if the materials areretained and destroyed in accordance with this Agreement.
5. The obligations of this Section 13 will remain in fullforce and effect after the termination or expiration of this Agreement.
Section14. Use of Marks.
Client agrees that ConnexPaymay use Client’s name, trademarks, service marks, or other commercial orproduct designations in ConnexPay press releases and in ConnexPay promotionalor marketing materials provided, however, that prior to use, ConnexPay shallprovide a copy of such use to Client for Client’s approval, such approval notto be unreasonably withheld or delayed.
Section 15. Data Protection.
1. Parties warrant andundertake that (i) they will duly observe their respective obligations underapplicable data protection and privacy laws and (ii) Personal Data will behandled with care, in a confidential manner. With respect to any data processedhereunder relating to data subjects in the United Kingdom or European Union,the following terms shall apply https://connexpay.com/legal-regulatory-and-privacy-dpa/, and in the event of conflictbetween this Section 15 and the Data Protection Addendum, the provisions of theData Protection Addendum shall apply to such data.
2. Each Party shall take appropriate technical,organizational and administrative measures, which are designed to (i) ensurethe security and confidentiality of any information obtained from the other;(ii) protect against any anticipated threats or hazards to the security orintegrity of such information; (iii) protect against unauthorized access to oruse of such information that could result in substantial harm to the otherParty; and (iv) comply with all data security and privacy laws. Such measuresshall be commensurate with the risk and harm that might result fromunauthorized or unlawful processing or accidental loss, destruction, or damageto Personal Data and to the nature of Personal Data to be protected and shallinclude taking reasonable steps to ensure the reliability of employees havingaccess to the Personal Data.
3. In the occurrence or thelikelihood of an occurrence of a Data Incident, each Party shall immediately notify the other Party ofthe nature and details of such Data Incident. Each Party shall provide allnecessary assistance to the other Party and any Partners to investigate andrectify any issues arising from the Data Incident and prevent future Data Incidents.
4. When applicable to the services delivered to the Clientunder this Agreement, at all times for the duration of this Agreement and forany period during which it retains information subject to PCI-DSS, each Partyrepresents that it shall comply, and shall ensure, where applicable, that itsPartners or Vendors comply, with PCI-DSS rules and regulations. Client willensure that it, and its applicable Vendors, are validated as a PCI-DSScompliant service providers by a qualified security assessor approved by thePCI Security Standards Council (“QSA”). A copy of the annual PCI-DSS Report onCompliance shall be provided by Client and its applicable Vendors uponConnexPay’s request, no more frequently than one time per calendar year, or, inthe case of a good faith believe by ConnexPay of a material breach of thisAgreement by Client, or at the request of a Member Bank or Card Brand. EachParty shall be liable for any for any costs, fees, fines, charges, orpenalties, including any PCI-DSS forensic investigation arising from itsnon-compliance under this Section 15.4.
5. Client assumes full and sole responsibility for thelawful collection, delivery, and use of all Personal Data and for obtainingrequired consents for the provision of the Payment Service. Without prejudiceto the generality of the foregoing, Client shall obtain all necessary consentto (i) disclosure of Personal Data to ConnexPay and (ii) ConnexPay’s processingand disclosure of Personal Data to Partners or to any Client third partyservice providers used by Client in connection with the Payment Service or compliancewith applicable privacy related rules, laws, or regulations.
6. ConnexPay shall use, store,disclose, dispose, and otherwise handle Personal Data in accordance with thisAgreement and will only process Personal Data as necessary for the performanceof the Payment Service or as required by Applicable Law.
7. Neither Party shall assume responsibility for the otherParty for any breach of such Party’s obligations under applicable dataprotection laws.
Section 15. Taxes.
Each Party will be responsible, asrequired under applicable law, for identifying and paying all Taxes that areimposed on that Party upon or with respect to the transactions and paymentsunder this Agreement. All Fees payable by Client are exclusive of applicabletaxes and duties, including, without limitation, VAT, excise taxes, sales andtransaction taxes, and gross receipts taxes. If ConnexPay or its Partners arecompelled to collect and remit Taxes on Client’s behalf, ConnexPay shallpromptly notify Client in writing.
Section 16. General Provisions.
1. Each Party will ensure thatit and all persons acting on behalf of or associated with that Party shall: (a)comply with the Bank Secrecy Act or equivalent applicable local law and allother applicable laws, statutes, regulations, and codes relating to anti-briberyand anti-corruption (the “Relevant Requirements”); (ii) not engage in anyactivity, practice or conduct which would constitute an offence under any ofthe Relevant Requirements; (c) not do, or omit to do, any act that may lead theother party to be in breach of any of the Relevant Requirements; (d) promptlyreport to the other Party any breach of the Relevant Requirements or anyrequest or demand for any undue financial or other advantage received by it inconnection with this Agreement. Each Party shall have and maintain in placethroughout the term of this Agreement its own policies and procedures to ensurecompliance with the Relevant Requirements and will enforce them whereappropriate. Each Party shall, at alltimes during the term of this Agreement, conduct its business in compliancewith all applicable sanction laws, regulations and regimes imposed by relevantauthorities.
2. Notices. All notices under the Agreement will be inwriting and will be delivered or sent by (a) to the physical address below byfirst class U.S. mail, registered or certified, return receipt requested,postage pre-paid, or, (b) U.S. express mail, or national express courier with atracking system, or (c) to the email address below containing a subject linereasonable designed to indicate that notice is being made under the Agreement(save that service of any notice of any legal proceedings in connection withthis Agreement shall not be effective by e-mail unless also made by hand orpost).
If to ConnexPay:
5700West Plano Parkway, Suite 3600
Plano,Texas 75093
Attn: Ben Peters, CEO
bpeters@connexpay.com
With a copy to legaldept@connexpay.com
If to Client, to the persondesignated as the contact on the Application at the physical and emailaddresses for that individual on the Application.
3. Independent Contractors. The relationship of ConnexPayand Client is that of independent contractors. Except as specifically asrequired for ConnexPay and its Partners to perform the Payment Services,neither Party has any authority to act on behalf of the other Party or to bindit, and in no event will the Parties be construed to be partners, employeremployee, or agents of each other.
4. Entire Agreement. This Agreement constitutes the entireagreement between ConnexPay and Client and supersedes any previous agreementsor representations, either oral or written, with respect to the subject matterof this Agreement. All amendments will be made in accordance with theprovisions of this Agreement and/or as agreed by both Parties in writing.
5. Assignment. No Party shall assign, novate or otherwisetransfer this Agreement or any or all of their rights and/or obligations underthis Agreement nor any part of it, nor any benefit nor interest in or under it,to any third party without the prior written consent of the other Party whichconsent shall not be unreasonably withheld, it being understood that ConnexPayis legally prohibited from performing services for any entity that has notsuccessfully passed ConnexPay’s standard financial due diligence and AML/KYCreview. Notwithstanding the forgoing ConnexPay may assign, novate or otherwisetransfer this Agreement without the consent or approval of Client to anaffiliate, in connection with a merger, reorganization, recapitalization orsale of all of or substantially all of its respective stock, business orassets.
6. Severability. If any part of this Agreement is declaredinvalid or unenforceable for any reason, such part shall be deemed modified tothe extent necessary to make it valid and operative and in a manner mostclosely representing the intention of the Parties, or if it cannot be somodified, then eliminated, and such elimination shall not affect the validityof any remaining portion, which shall remain in force and effect.
7. Waiver. Any failure by aParty to insist upon or enforce performance by the other of any of theprovisions of this Agreement or to exercise any rights or remedies under thisAgreement or otherwise by law will not be construed as a waiver orrelinquishment of any right to assert or rely upon the provision, right orremedy in that or any other instance.
8. Force Majeure.Notwithstanding any provision contained in the Agreement, neither Party will beliable to the other to the extent fulfillment or performance of any terms orprovisions of the Agreement are delayed or, except with respect to eitherParty’s financial obligations, prevented by a Force Majeure Event.
9. Governing Law. ThisAgreement shall be governed by, and construed and enforced in accordance with,the laws of the State of Delaware without regard to conflicts of lawprovisions. The parties hereby consent and submit to service of process,personal jurisdiction, and venue in the state and federal courts in Delawareand select such courts as the exclusive forum with respect to any action orproceeding arising out of or in any way relating to this Agreement, and/orpertaining in any way to the relationship between the Parties. CLIENT HEREBYWAIVES THE RIGHT TO TRIAL BY JURY IN ANY MATTER UNDER, RELATED TO, OR ARISINGOUT OF THIS AGREEMENT OR ANY TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED HEREBY.
10. Survival. Any covenant, term or provision of thisAgreement which, in order to be effective, must survive the termination orexpiration of this Agreement, will survive any such termination or expiration.
11. Amendment. Any alteration, modification, change orrevision of the provisions of this Agreement is valid only if made in writingand executed by the Parties hereto, except as otherwise expressly providedherein.
12. Counterparts. This Agreementmay be executed in counterparts, each of which will be deemed to be anoriginal, but all of which, when taken together, shall constitute one and thesame instrument.
13. Authority the individual(s)executing this Agreement certifies that he/she is an authorized principal,partner, officer, or other authorized representative of the respective Partyidentified on the Application and is thereby fully authorized to bind the Partyto the contractual obligations as defined in this Agreement.