1 Definitions
The capitalized terms will throughout the agreement have the meanings, respectively, ascribed thereto.
Acquirer shall mean a regulated financial entity, engaged in the business of providing Merchants with services to facilitate debit card, credit card, financial transactions, and serve as an acquiring company for Merchant card clearing (Merchant Services)
Agreement shall mean this agreement in its entirety including all appendices and amendments thereto;
Authorization shall mean an approval from an Issuer, verifying that a Transaction is within the Cardholder’s available credit limit, and that the Cardholder has not reported the Card lost or stolen. All Transactions require Authorization;
AML means Anti Money Laundering Procedures;
Business Day shall mean a day, when the Provider is open for business, and excludes Saturdays, Sundays, bank holidays and public holidays in Denmark;
Card shall mean all cards types provided by Visa and MasterCard;
Card Schemes shall mean Visa, MasterCard or any other similar payment schemes;
Card Scheme Rules shall mean rules, regulations or requirements (whether contractual or otherwise) imposed by the Card Schemes;
Cardholder shall mean the person or entity authorized to use a Card;
Chargeback is a transaction that is disputed by a Cardholder or an Issuer and which is returned to the Acquirer;
Confidential Information shall mean any data, information, the API, and the Software that is a trade secret or competitively sensitive. Additionally, any data in respect of Transactions;
Data Protection Law means the Data Protection Act (No. 429 of 31 May 2000), as amended from time to time, as well as any other regulation or legislation implementing the EU Directive 95/46/EC
Fees, Charges and Assessments shall mean all returns, Chargebacks, assessments, fees, fines, penalties, surcharges, expenses, including Interchange fees or similar fees, and other charges due to the Card Schemes. Additionally, comprising all other payments due by the Merchant under the Merchant Agreement, or any amounts due by the Partner under this Agreement;
Issuer shall mean a company issuing cards to the consumer on behalf of the Card Schemes;
Introduced Merchant shall mean a Merchant, who has entered into a Merchant Agreement with the Acquirer after being referred to the Provider by the Partner;
KYC means Know Your Customer Procedures
Merchant shall mean a seller, who offer his products or services over the internet and accepts Card not Present payments;
Merchant Agreement shall mean the agreement entered into for the purpose of obtaining Merchant Services from the Acquirer through the Provider, and any guides or documents incorporated herein;
Merchant Bank Account shall mean a bank account in the Merchant’s name, held at a regulated credit institution, used to settle Transactions processed by the Provider through the Acquirer in pursuance of the Merchant Agreement. Additionally, the account will be used for effecting appropriate debits and credits;
Merchant Services means the services, including the authorization, processing, settlement and clearing services provided to an Introduced Merchant by the Provider through an Acquirer according to the Merchant Agreement;
Partner Services shall comprise the services set out in clause 6;
Requirements of Law shall mean any local laws, regulations, or EU directives, including any Data Protection Laws;
Rolling Reserves is a reserve withheld by the Acquirer for the purpose of recovering any outstanding monies pursuant to the Merchant Agreement;
Settlement Funds shall mean funds by which Transactions are settled to the Merchant Bank Account;
Term shall mean the term of this Agreement as set out in clause 17;
Transaction shall mean the acceptance of a Card for the payment of goods or services provided to the Cardholder by the Introduced Merchant using the Services provided by the Provider. Additionally, the receipt of payment from the Acquirer, whether the Transaction was approved, declined, or processed as a forced sale;
Transaction Fees means all fees collected by the Acquirer from the Introduced Merchant as set out in the Merchant Agreement.
2 Interpretation
i. If there is ever a conflict in interpreting this Agreement, between the terms stated and the rules of the Card Schemes, the latter shall prevail.
ii. All clause, schedule, and paragraph headings are solely for convenience and shall not affect the interpretation of the Agreement.
iii. Any reference to national law or European law, shall include all future amendments and replacements.
3 Relationship between the parties
i. General
a. The Parties shall enter into agreement with the Introduced Merchants for the provision of card processing services and payment services through the Provider. In addition, the Partner shall provide the Introduced Merchants with all information needed for them to process Transactions in compliance with the obligations set out in this agreement, and in accordance with the rules of the Card Schemes.
ii. Marketing of Merchant Services
a. The Partner shall actively market the Merchant Services, at its own expense, pursuant to applicable laws, regulations, the Card Scheme Rules and any guidelines provided by the Provider.
b. The Partner cannot throughout the term of this agreement and for 6 months after its expiration or termination, knowingly solicit any merchant, currently affiliated with the Provider, for the purpose of providing the Services.
4 Referral of Merchants by the Partner
i. When referring Merchants to the Provider the Partner shall submit the necessary documentation for a Merchant required by the Card Schemes and by law.
ii. The Partner shall use reasonable care to ensure that every prospective Merchant:
a. has appointed the Provider as the Attorney by signing the Provider’s Power of Attorney;
b. is legally incorporated in accordance with the laws of the country of registration;
c. does not undertake any prohibited activities referred to under the provisions of this agreement;
d. is able to meet the obligations they will assume when signing the Merchant Agreement, at the time of the submission of the application form;
e. has provided the Partner with the correct information for the application form.
iii. The Acquirer is under no obligation to accept any prospective Merchant introduced or referred by the Provider on behalf of the Partner. Furthermore, the Acquirer is not obliged to divulge the reasons for declining an application.
iv. The Parties agree that as soon as the Merchant begins processing transactions, the affair shall be governed in accordance with this Agreement, policies of the Acquirer, the Rules of the Card Schemes and the Requirements of Law.
5 Obligations of the Partner
i. The Partner is not allowed to process transactions through the Provider from other payment facilitators, internet payment service providers, gateways or unaffiliated Merchants.
ii. The Provider shall make the needed software available in order to enable communication between the Parties’ computer systems for the submission and processing of Authorizations and Transactions. Additionally, the Partner undertakes to integrate this software strictly in accordance with the applications program interface (the API), periodically provided by the Partner, solely for the purpose of this Agreement.
iii. The Partner further undertakes:
a. to present all Transactions to the Provider in accordance with the technical specifications as agreed between the Parties;
b. to only transmit Authorizations or Transactions to the Provider via the provided Software;
c. to use appropriate security measures as mandated by the Provider for all communication between the Parties;
d. to maintain accurate and up-to-date records of Authorizations and Transactions processed via the Software, for a period of not less than 12 months, from the date of the Authorization or Transaction;
e. to adopt appropriate security and fraud prevention measures for the capturing and transmission of the details necessary for processing the Card’s CVV/CVC2, process transactions using 3D secure if mandated by the Provider, and implement other security measures agreed to by the Parties;
f. to adopt due security measures for the safekeeping of any user codes, secret keys and passwords that may be provided by the Provider;
g. to keep its systems updated, at its own cost, with the Provider API and security measures, and apply updates within the set timeframes;
h. to keep the fraud level of their portfolio under the Card Schemes thresholds; If the level exceeds the threshold of the Card Schemes the amount of fraud and chargebacks for the past six months shall be put as collateral. It will be adjusted every 6th month. If the Partner does not succeed in maintaining the fraud and chargeback level below Card Schemes thresholds, the Partner enters a program in which the Partner will be fined on a monthly basis according to the below:
- EUR 25.000 per month
- EUR 50.000 per month after 2 months in the program
- EUR 100.000 per month after 4 months in the program
- If the Partner remains in the program for more than six months the following fine will be decided by the management of the Provider.
- If the Partner manages successfully to get out of the program and thereby keeping the fraud and chargeback level of their portfolio below Card Schemes thresholds; The Partner must remain out of the program for 6 consecutive months. If it fails to do so, the program picks up where it ended, and the Partner is fined accordingly.
i. to grant access to the representatives of the Provider, the Acquirer or the Card Schemes, for any inspection or audit deemed necessary by the Card Schemes, for the purpose of verifying compliance with the terms and conditions of this Agreement, the Card Scheme Rules or any applicable Requirements of Law. Furthermore, upon reasonable prior notice, the Partner shall permit the representatives from the Provider, the Acquirer or the Card Schemes, to inspect and audit the Partner’s data processing activities, and shall comply with all requests or directions, from the Provider, the Acquirer or the Card Schemes, to verify that the Partner operates in full compliance with the data processing obligations under this Agreement or pursuant to Card Scheme Rules. The Partner shall pay any costs of facilitating this access, inspection or audit;
j. to respect the confidential nature of the sensitive information of the Provider, the Merchants or any third party, and to take the steps necessary to safeguard its confidentiality;
k. to answer any question put forth by the Provider stemming from the Card Schemes or a Regulatory Body in depth within 5 working days. If a reply does not take place within this time table or is inadequate, the Partner will be fined EUR 2000 per incidence.
l. to acknowledge that all copyrights, trademarks, trade names, patents, and other intellectual property rights used in connection with the API, shall always remain the sole property of the Provider. Additionally, the Partner undertakes to indemnify the Provider fully against all liabilities, costs, and expenses, that may incur due to the infringement of any third party's’ intellectual property rights, arising from the use of the API during the integration of the Parties’ systems.
m. to give the Provider at least 15 days prior written notice, before terminating an agreement with an Introduced Merchant. In the event that the termination is occasioned by urgent or serious circumstances, the Partner may terminate the agreement instantly with written notice to the Provider;
n. to ensure that the Partner is not knowingly submitting prohibited or harmful transactions to the Provider. This includes but is not limited to any processing of MOTO-transactions, any transactions that violate the rules of the Card Schemes or the provided Merchant Acceptance guidelines of the Provider.
o. to immediately notify the Provider, and cease to process the introduced Merchant’s transactions until instructed otherwise, if the Introduced Merchant or the Partner should become insolvent, be declared bankrupt, cease trading, be sold, leased or transferred;
iv. If the Partner becomes aware that an Introduced Merchant undergoes a change in ownership, business, or any other significant information about non-compliance with the Merchant Agreement, the Partner shall notify the Provider no later than 3 days from the time his becomes aware.
v. For the purpose of assisting the Provider in preventing fraud and risk issues, the Partner shall monitor the Introduced Merchants processing activity and respond accordingly in an effort to prevent or mitigate such issues. Additionally, the Partner must comply with all reasonable requests from the Provider to investigate or supply information about the Introduced Merchants’ activities.
6 The Partner Services
i. The Partner shall provide the following services:
a. engage in all communications to the Introduced Merchant including but not limited to communication regarding Transactions, Chargebacks, risks and fraud management;
b. enable the technical integration of the Merchant to the Provider via its systems;
c. any and all supporting ancillary services to the above.
ii. The Partner is fully responsible for the provision of Partner Services, and neither Partner or the Introduced Merchant can hold the Provider responsible for the provision of these services.
iii. The Partner must indemnify the Provider from any loss suffered as a result of the provision of Partner Services to the Merchants
iv. The Partner is liable to the Provider for the performance of its obligations under this agreement as well as for the payment of all Fees, Charges and Assessments, whether these are assessed directly against the Partner or against the Provider, due to an act or omission of the Partner. the Provider will notify the Partner about any Fees, Charges or Assessments that are incurred by an Introduced Merchant, and reserves the right to terminate the Merchant Agreement, if a solution is not achievable within an acceptable time frame. Alternatively, the Provider may contact the Introduced Merchant and find a solution without the involvement of the Partner.
v. If requested by the Provider, the Partner must provide reports about an Introduced Merchant in order to ease concerns regarding Chargebacks, refunds, etc.
vi. From the commission payable to the Partner, the Provider reserves the right to deduct any economic loss, put down to the negative balance of an Introduced Merchants.
vii. If the Parties have inadvertently omitted any service that is necessary for the achievement of the relationship described in this Agreement, the Parties hereby agree to co-operate in working out reasonable terms for the provision of such services in accordance with the rules of the Card Schemes.
viii. The Partner agrees that the Provider have the right to enforce the rules of the Card Schemes, and to prohibit any conduct by the Partner or Introduced Merchant that may injure the Card Schemes.
7 Fees
i. Subject to clause 4, upon accepting an Introduced Merchant by the Partner, the Provider undertakes to charge Transaction Fees, as agreed by the Parties.
ii. From the amount payable to the Partner, the Provider shall deduct all amounts, including Fees, Charges and Assessment, due by the Partner or a Merchant, under this Agreement or as required by law or the Card Schemes. If the deduction for any amounts due is not possible, the Provider shall issue the Partner with an invoice for Fees, Charges, Fines and Assessments that have not yet been settled. Invoices issued by the Provider shall be payable within 10 days of the date of invoice, following which any unpaid amount shall bear interest of the highest rate permissible by the Laws of the Kingdom of Denmark, from the day the payment was due until the day the claim is paid, both days included.
iii. The Partner may charge the Merchant administrative fees as deemed fit, however the Provider shall in no way be responsible for the collection of said fees.
iv. All amounts are exclusive of Value added Tax and other similar taxes, all of which must be borne solely by the Partner or the Merchant.
v. The Provider have the right to set off and may offset outstanding or uncollected amounts from any amounts the Provider may owe the Partner under this Agreement.
8 Authorization and Transaction Procedures
i. The Partner is authorized to forward all payment transactions, for acceptance, to the Provider. All transactions must be transmitted online and in real time mode to obtain authorization irrespective of the amount.
ii. All Authorizations and Transactions processed via the Software shall identify the Introduced Merchant as required by the Card Scheme Rules and the procedures agreed to by the Parties. It is the full responsibility of the Partner to ensure that all the Transactions correctly reflects the details of the transaction made by the cardholder, that the Merchant Identification Number corresponds to the one assigned by the Provider, and that it has been made by the Partner on behalf of the Merchant as stated in the Merchant Agreement.
iii. Should a discrepancy occur between the information transmitted via the Software or stored by the Partner, and the information held by the Provider, the latter shall prevail except in case of manifest errors.
iv. If a request for Authorization is not authorized by the Issuer, the Partner will receive an electronic message of non-acceptance. Neither the Merchant nor the Partner can amend or in any way alter the response code issued by Issuer.
v. If the level of Chargebacks, in terms of the volume and value of transactions presented, should exceed the tolerated monthly chargeback levels of the Provider, the Acquirer or the Card Schemes, the Provider may suspend the processing of new Transactions for the particular Merchant, until the Partner and the Introduced Merchant have taken appropriate corrective measures in their respective systems, and the Provider has accepted them.
9 Settlement
i. The Acquirer will clear and settle transactions as well as perform other related responsibilities required by the Card Schemes. Consequently, the Acquirer shall act and conduct settlements the following way:
a. clear and settle Transactions (including Chargebacks and retrievals) directly to the Merchant’s Bank Account;
b. net out, from the funds due to an Introduced Merchants, the amounts incurred as a result of any type of liability, cost, fee or expense; or any amount due according to the Requirements of Law or pursuant to the Merchant Agreement;
c. settlement to the Introduced Merchant’s Bank Account shall constitute full and final settlement;
d. the Acquirer shall have the right to request reimbursement or to withhold payment of the Settlement Funds, if it has a good faith basis to believe that any Transaction or amount being paid to the Merchant Bank Account is incorrect, for the avoidance of any doubt, and notwithstanding the Partner’s or the Provider’s role with respect to the funding of Merchant Bank Accounts, all Settlement Funds shall be controlled exclusively by the Acquirer;
10 Data Protection
i. Each Party shall ensure that all data made available to perform their obligations under this Agreement, is protected and only used in accordance with applicable law.
ii. Notwithstanding any other provision of this Agreement, the Parties must always comply with all applicable laws and regulations regarding their data processing obligations under this Agreement and shall not do anything that may result in a breach of the law by either Party.
iii. The Partner acknowledges that, to the extent performing its obligations under this Agreement involves the processing of personal data, it shall follow the instructions from the Provider.
iv. The Parties undertakes to use appropriate security measures against unauthorized or unlawful processing of the Cardholder’s or Merchant’s data and must protect such data against accidental loss or destruction. Additionally, unless required by law neither Party can make any changes to their information security measures that would materially increase the risk of unauthorized access to the Cardholder’s or Merchant’s personal data.
v. The Partner is through this Agreement, authorized to use the data from the Provider for the purpose of direct marketing, such as to inform the Merchant about the products and services supplied by the Provider. Should the Provider wish to end the marketing, the Partner should be informed in writing.
vi. In the event that any clause in chapter 11 is breached, the Parties agree that the non-breaching Party will suffer irreparable harm, and the total amount of monetary damages for any injury to the non-breaching Party will be difficult to calculate. Consequently, the Parties agree that the non-breaching Party is entitled to seek temporary and permanent injunctive relief against the breaching Party and its representatives.
vii. If the Provider provides the Partner with a password for any of its databases or services, the Partner shall always keep the password confidential, and will be liable for all action taken by any user of the password. Furthermore, the Partner undertakes to promptly notify the Provider, if they believed that their databases, services or the Partner’s information has been compromised by use of the password.
11 Confidentiality
i. All information exchanged between the Provider and the Partner is strictly confidential. Each Party shall keep the terms and conditions of this Agreement confidential, except with the consent of the other Party, if required by law or if disclosure is needed to carry out the services in terms of this Agreement.
ii. Any discrepancy between the Parties must be resolved discreetly. Therefore, both Parties are prohibited from publicly disclosing any circumstances, which have occurred under this agreement. The duty of confidentiality includes any negative public mention of the other Party or the partnership, throughout the Term of this Agreement as well as after its expiration or termination.
iii. The Parties agree to a penalty of EUR 1000 per day if the duty of confidentiality is breached. The agreed penalty shall be paid from the day confidentiality was breached by publishing information or negative press, until the day the information or statement is withdrawn. If the duty of confidentiality is breached more than once, a penalty shall be paid for each violation. In the event that it is not possible to withdraw the statement, a penalty of EUR 100.000 shall be paid by the breaching party, equalling the information being public for 100 days.
iv. If the duty of confidentiality has been breached, the violated Party may make a public statement responding to the breaching Party’s statement. This shall not be considered a breach of confidentiality, and the penalty shall therefore not apply.
v. In the event that the Parties have partnered previous to this Agreement, the duty of confidentiality applies to the affairs of this partnership as well. However, the agreed penalty can only be charged from the day the Parties entered into this Agreement.
vi. The Partner undertakes to use the API, or any other relevant Confidential Information supplied by the Provider, solely in accordance with the provisions of this Agreement, and shall not, during or after the expiration or termination of this Agreement, disclose the information to any third party without consent from the Provider.
vii. The Partner cannot itself or through any third party, vary, enhance, copy, sell, lease, license, sublicense, or in any other way modify or deal with the API or the Software, based on the confidential information supplied by the Provider.
12 Representations and Warranties
i. As of this date and throughout the term of this Agreement, the Parties warrant to each other that:
a. they are companies validly incorporated and existing under the laws of the country of incorporation;
b. they have always conducted business in full compliance with the requirements of the Law;
c. they have all the requisite powers to execute and deliver this Agreement and to perform their obligations;
d. they possess all authorizations, licenses, approvals, registrations and consents from the relevant authorities;
e. they shall perform their obligations under this Agreement exercising all the skill and care expected of professional providers of merchant processing and settlement services, and that they will act in good faith in their performance of these services;
f. they will not act in any way that would place either Party in breach of the Rules of the Card Schemes or any requirements of the law.
13 Limitation of Liability
i. The Provider shall not be responsible for any dispute arising between the Partner and an Introduced Merchant. Additionally, the Provider is not responsible for any violation of Law by the Partner or an Introduced Merchant, or by the Provider itself due to an act or omission by the Partner or Introduced Merchant.
ii. The Partner shall not be responsible for any dispute related exclusively to the Provider and an Introduced Merchant.
iii. Except as provided for in Clause 13(VI), whether arising in contract, tort or otherwise, the total liability of the Provider shall not exceed EUR 10.000, provided that such limitation shall not apply to any charges, fines or assessments charged by the Card Schemes due to a violations of card scheme rules by an Introduced Merchant.
iv. Except as provided in clause 13(VI), the Provider will not be liable for any loss of profits, including any loss of sales, loss of bargain, loss of opportunity, goodwill, loss of computer equipment, software or data, or loss of time, that may arise in connection with this Agreement or the Merchant Services, even if such loss is reasonably foreseeable.
v. Both Parties undertake to perform their obligations under this Agreement using reasonable care and skill. Except as specifically provided within this Agreement, the Parties disclaim any warranties (including but not limited to quality, performance or suitability for a particular purpose), regarding the performance of their obligations, to the maximum extent permitted by law.
vi. Neither of the Parties excludes or limits any liability to the other Party for (i) the death or personal injury arising from the negligence or wilful default of itself, its employees, agents or subcontractors; or (ii) fraudulent misrepresentation.
14 Indemnities
i. The Parties shall indemnify and hold each other harmless from any losses arising as a consequence of:
a. without prejudice to the provisions of clause 13, the provision of services contemplated under this Agreement in a manner which infringes or violates the intellectual property rights or other rights of third parties;
b. any acts or omissions of their employees, directors, officers or agents in respect of any claim arising under this Agreement, whether or not such act or omission constitutes a breach of this Agreement;
c. the provision of the services or any failures whatsoever in respect thereto, whether leading to a failure of the Provider in the provision of the Merchant Services or otherwise;
d. any failure to comply with their obligations under this Agreement or the failure of any warranty or representation made true and correct;
e. any negligence, misrepresentation or wilful misconduct on the part of the Partner or any of its employees or agents;
f. third party claims in relation to the Merchant Reserve Account;
g. loss or theft of any cardholder data by or from the Partner;
15 Compliance with the Law
i. The Parties acknowledge that they are subject to various Requirements of Law and must at the same time operate in accordance with the Rules of the Card Schemes. Additionally, the Parties agree to assist each other in identifying and resolving compliance issues regarding the Requirements of Law and the Rules of the Card Schemes.
ii. During the Term of the Agreement, each Party agrees that they will:
a. comply with applicable Requirements of Law and the Card Scheme Rules at their own cost;
b. notify the other Party as soon as possible, if an addition or amendment to the Requirements of Law or the Card Scheme Rules could have a material effect on the other Party.
iii. Notwithstanding the generality of clause 15 (section II), the parties agree that:
a. they are responsible for ensuring that they perform their obligations under this Agreement in accordance with the Requirements of Law;
b. the marketing of Merchant Services is carried out in accordance with all relevant Requirements of Law;
c. all Requirements of Law in relation to the Acquirer entering into Merchant Agreements (including KYC and AML requirements) are complied with.
iv. The Parties acknowledge that in the event that inconsistency or conflict between the Rules of the Card Schemes and the provision of this Agreement is found, the Card Scheme Rules shall prevail.
v. Should any modification be needed for this Agreement to meet the requirements of Law or the Rules of the Card Schemes, the Parties shall negotiate in good faith to reach a mutually acceptable revision of this Arrangement. The Parties shall not be under any obligation to continue any arrangements that violate the Requirements of Law or disregards the Card Scheme Rules.
16 Trademarks and Logos
i. The Partner agrees that the Card Schemes are the sole and exclusive owners of their respective trademarks, service marks, logos etc., and will not contest the ownership of such marks. Additionally, the Partner will not use the Card Schemes’ trademarks, service marks or logos except as permitted by the Card Schemes or after prior written approval from the Card Schemes. The Partner agrees that the Card Schemes may immediately, and without advance notice, prohibit the Partner from using the marks and logos for any reason. The Partner shall have no authority to permit the use of the Card Scheme program marks by any third party. Without limiting the foregoing, the Partner acknowledges that 3D Secure™, MasterCard®, SecureCode™ and Verified by Visa™ are all trademarks of Visa, MasterCard or other third parties.
17 Term and Termination of this Agreement
i. This Agreement shall be valid for a period of 12 months, and shall be automatically renewable for additional periods of 12 months, unless written notice of intention to terminate is provided by either Party at least 3 months in advance.
ii. The Provider may give written notice to the Partner to terminate this Agreement:
a. if the Partner is insolvent, bankrupt or otherwise unable to pay its debts, or there is reason to believe that the Partner is about to be insolvent;
b. upon the occurrence of an Event of Default;
c. upon the occurrence of a Change in Control of the Partner.
iii. Each of the following occurrences will constitute an Event of Default under this Agreement:
a. if the Partner engages in activities which (i) violate the Rules of the Card Schemes or cause the Provider to breach these rules, (ii) violate applicable Requirements of Law, or cause the Provider to be in breach of applicable Requirements of Law; or (iii) damage the goodwill of the Provider or the Card Schemes;
b. if the Partner or any of its representatives commits fraud or wilful intentional misconduct;
c. if any representation made by the Partner, in connection with the referral or application of a prospective Merchant, proves to have been false or misleading in any material respect;
d. the Partner is in breach of any material obligation specified in this Agreement and fails to rectify such breach within 15 days of receipt of written notice thereof;
e. the Partner fails to follow the Merchant Underwriting Policies and other policies and guidelines established by the Acquirer, and such failure is not remedied within 15 days of receipt of written notice thereof;
f. the Provider determines that the Partner has conducted itself in violation of the Card Scheme Rules, or otherwise in such a manner that the Partner has created an unacceptable reputational, financial or operational risk to the Provider.
iv. This Agreement shall automatically terminate in the event that:
a. any of the Card Schemes prohibit the Provider from providing services related to another Scheme’s products;
b. a determination by Visa and MasterCard that the Partner is in material breach of their Rules, and as a result, requires that the Provider terminate this Agreement.
v. Upon the expiry or termination of this Agreement;
a. all amounts outstanding or unpaid due and owed to the Provider shall become immediately due and payable;
b. the Provider shall have the right, in addition to the other rights and remedies under this Agreement and the applicable law, to exercise the right of set-off;
c. None of the Parties shall have any further right or obligation with respect to the other party except as set out in Clause 11, Clause 13, Clause 17, and Clause 22, which shall survive the termination or cancellation of this Agreement.
d. The Parties shall keep accurate books and records related to the referral of Introduced Merchants to the Provider, and regarding the performance by the Partner of its obligations under this Agreement, for a period of 1 year after such expiry or earlier termination thereof.
vi. For the avoidance of any doubt and without prejudice to the generality of Clause 17 (section V) above, upon the expiry or termination of this Agreement, the Provider shall not have any obligation to make further payments to the Partner.
vii. The expiry or termination of this Agreement shall not affect any right of action or remedy, which accrues to a Party, and shall not affect any Introduced Merchant Agreements existing at the time, as they will continue in full force and effect.
viii. Upon notice by any Party of termination of this Agreement in accordance with Clause 17 (section II), or in the absence of such notice, upon expiry or terminations of this Agreement for any reason, the Parties shall work together in good faith to develop a deconversion plan.
ix. Upon the expiry or termination of this Agreement, the Partner shall immediately (unless agreed otherwise between the Parties) cease all uses of the Provider’s marks in connection with the Promotional Materials, in connection with the Merchant Services, or for any other purpose.
18 Force Majeure
i. Neither Party shall be liable to the other for any failure, delay or interruption in the performance of its obligations under this Agreement, or for any loss or damage arising from cases or events, reasonably beyond its control (‘Force Majeure Event’), including but not limited to acts of God, acts of government or of any civil or military authority, national emergencies, insurrections, riots, war, strikes, lockouts.
ii. Neither Party can claim relief if the Force Majeure Event is attributable to its own wilful act, neglect or failure to take reasonable precautions against the event.
iii. The affected Party shall immediately give the other Party written notice of the Force Majeure Event. The notification shall include details of the event as well as provide evidence of its effect on the obligations of the affected Party, and any action the affected Party proposes to take to mitigate its effect.
iv. As soon as practicable, following the affected Party's notification, the Parties shall consult with each other in good faith, and use all reasonable endeavours to agree on appropriate terms to mitigate the effects of the Force Majeure Event and to facilitate the continued performance of this Agreement.
v. The affected Party shall notify the other Party as soon as possible after the Force Majeure Event ceases, and no longer causes the affected Party to be unable to comply with its obligations under this Agreement. Following such notification, this Agreement shall continue to be performed on the terms existing immediately before the occurrence of the Force Majeure Event, unless agreed otherwise by the Parties.
19 General
i. If any of the provisions of this Agreement is held to be invalid, illegal or unenforceable by the courts, or are deemed to conflict with the Card Scheme Rules, such provisions shall be severed without effect to the remaining provisions.
ii. No failure or delay by a Party, to exercise any right provided under this Agreement or by law, shall constitute a waiver of that right, nor preclude or restrict its further exercise. No single or partial exercise of such right shall preclude or restrict the further exercise of that or any other right.
iii. Except as provided, nothing in this Agreement is intended to constitute a partnership or joint venture between the Parties, nor constitute either Party the agent of the other, or give the authority to bind the other Party in any way.
iv. Each Party shall, at its own cost, use all reasonable effort to provide all documents, acts, and assurances needed to perform as required to give effect to this Agreement, and ensure that all the provisions of the Agreement are observed and performed.
v. The Provider will provide the Partner with a list of Prohibited and Restricted actives and shall continuously update the list through the Term.
20 Assignment
i. The Parties may not assign or in any way transfer its rights or obligations under this Agreement without the prior written approval of the other Party, and the receipt of all the required consents from the Card Schemes.
21 Entire Agreement
i. This Agreement and its appendix constitute the entire Agreement between the Parties in respect of the matters dealt with, and it cancels any previous agreement between the parties in relation to this matter.
22 Modifications to Agreement or Service
i. The Provider reserves the right to amend or modify this Agreement at any time if the amendment or modification is a consequence of the provider's obligations to comply with relevant laws or regulations, and with 30 days prior notice if this is not the case.
23 Governing Law and Jurisdiction
i. This Agreement shall be governed and construed in accordance with the Laws of the Kingdom of Denmark. Each Party hereby submits to the jurisdiction of the Danish Courts regarding all claims, disputes, or matters, arising in connection with this agreement, its implementation and effect. The Venue shall be the District Court of Copenhagen.