Terms & Conditions

                         GENERAL TERMS & CONDITIONS      

DEFINITIONS

The following definitions are applicable to the singular as well as the plural forms of such terms:

   A. “Acquirer” includes a merchant acquirer, eCheck or ACH service provider/processor, PIN debit acquirer, and their respective designated sponsoring member bank(s).

   B. “ACH Service” includes services that allow merchants to originate Automated Clearing House (“ACH”) credit and debit entries to a bank account (the “ACH Service”) and the ACH Service shall be deemed part of (and included in) the definition of Services under this Agreement.

   C. “Affiliates” shall mean any entity that controls, is controlled by, or is under common control with a Party, including its parents and subsidiaries.

   D. “Applicable Laws and Rules” any laws, rules and regulations applicable to a Parties’ business in the US or any of the Permitted Countries, including any rules established by Card scheme or Acquirer and any AML Laws for the purpose of protecting the financial system from the abuses of financial crime, including terrorist financing, money laundering, and other illicit activity activities, and of preventing, detecting, or reporting suspicious activities related thereto.

   E. “Buyer” shall mean any person or entity that purchases or otherwise acquires the right to access to or use the Products and authorizes a payment to Merchant or authorizes Merchant to initiate a payment to the Merchant Account, and for purposes hereof, “Buyer” shall include a Cardholder.

   F. “Buyer Data” shall mean any personal data about or relating to a Buyer that XPaydite collects via the Merchant Site or that XPaydite otherwise receives from Merchant.

   G. “Buyer Invoice” shall mean a written invoice for Product provided by Merchant to Buyer for a completed sale.

   H. “Cardholder” shall mean any person authorized to use a Card or the accounts established in connection with a Card.

   I. “Cards” shall mean MasterCard, VISA, Discover and Other Network cards in Permitted Countries, account numbers assigned to a Cardholder or other forms of payment accepted by Processor, for which pricing is set forth in the account opening documentation.

   J. “Chargeback” shall mean the right of the Cardholders to file a claim for a refund with their Card issuer, for example, as a result of fraud or dissatisfaction with a purchase.

   K. “Confidential Information” shall mean any information disclosed by either Party to the other Party pursuant to the Agreement that is designated either in writing or orally as proprietary and/or confidential or that a reasonable person would consider to be proprietary and/or confidential under the circumstances. For the avoidance of doubt, all technology and proprietary information underlying the XPaydite Platform will be deemed Confidential Information of XPaydite, without any need for designating the same as confidential or proprietary. Furthermore, the terms and conditions set forth in the Agreement will be deemed XPaydite’s Confidential Information.

   L. “Documentation” shall mean the technical and associated documentation concerning the Services that XPaydite makes available to Merchant, including any documentation made available digitally via the XPaydite CRM. 

   M. “EULA” shall mean any end user license agreement or other terms of use of Merchant that is applicable to the Product.

   N. “Intellectual Property Rights” shall mean all (a) copyrights (including the right to reproduce, distribute copies of, display, and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any state, country or jurisdiction; and (b) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement, or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how.

   O. “Launch Date” shall mean the date upon which all integration work has been completed and Products may be made available for sale via the Merchant Site. 

   P. “Merchant Account” shall mean an account provided by XP that enables Merchant’s use of the XPaydite CRM. 

   Q. “Merchant Site” shall mean the Merchant website or online service or mobile app or other property that includes the XPaydite APIs, and through which Products may be purchased by Buyers.

   R. “Order Form” shall mean XPaydite’s services and pricing schedule form (the first of which is attached hereto as EXHIBIT A) which the Parties enter into from time to time as an addendum to this Agreement for the purchase of additional Services by Merchant, and which specifies at a minimum the Permitted Countries, Payment Methods available in Permitted Countries, applicable prices and fees for each Payment Method, and a Commencement Date, each such Order Form to be incorporated into and to become a part of this Agreement upon execution by the parties. In the event of a conflict between the terms of this Agreement and the terms of an Order Form, the terms of the Order Form shall prevail.

   S. “Partner Bank” shall mean a bank in USA or Permitted Countries that provides sponsorship, depository, currency exchange or remittance services in connection with this Agreement.

   T. “Payment Method” shall mean any payment method listed in the Agreement which is available to Buyers to pay for Products via the Merchant Site in each Permitted Country. 

   U. “PCI DSS” shall mean the then-currently accepted Payment Card Industry Data Security Standard.

   V. “Permitted Countries” shall mean the countries or territories listed in the Merchant Services Agreement and its Schedules (“Agreement”) and in which XPaydite has enabled use of the Services by Merchant.

   W. “Personal data” means any information relating to an identified or identifiable natural person.

   X. “Product” shall mean any goods, software or services of Merchant that are sold (or for which the right to access or use is sold, as applicable) via the Merchant Site to Buyers and delivered to Buyer by the Merchant.

   Y. “Product Information” shall mean any of the following information or materials provided by Merchant via the XPaydite CRM: (a) compatibility requirements and other information that describe the Product or any material usage terms or restrictions; (b) the name or description of the Product, any logos, images or other materials that identify or describe the Product or Merchant; (c) shipping, delivery and support instructions and (d) if applicable, the EULA or web address pursuant to which such EULA may be viewed.

   Z. “Prohibited Businesses” shall mean any of the businesses, activities, practices, or items set forth under relevant section of the Agreement, as may be updated by XPaydite in its sole discretion. 

   AA. “Prohibited Materials” shall mean: (a) any material that violates or encourages the violation of any applicable laws or any third-party rights, including rights of publicity or privacy rights; (b) any material that infringes or misappropriates a third party's Intellectual Property Rights; (c) any defamatory material or any material that constitutes hate speech or advocates discrimination against individuals or groups; (d) any obscene or excessively profane material; (e) any misleading or deceptive material; (f) material advocating or providing instructions regarding computer hacking, cracking, or phishing; or (g) any virus, worm, Trojan Horse, security vulnerability, malicious code or other harmful materials that may damage or interfere with the normal operation of software, networks or devices or which is designed to permit unauthorized access to or use of software, networks or devices.

   BB. “Reserve” shall mean a personal or company guaranty or other form of adequate security, including a separate reserve account held by XPaydite.

   CC. “Reversal” shall mean the return of funds to a bank account at the bank account owner’s request (e.g., due to unauthorized use of the bank account).

   DD. “Services” shall mean the services provided by XPaydite under the Agreement, including the collection of payment for Product sales occurring via the Merchant Site, the use of a local Affiliate (where applicable) to conduct the collection and remittance of applicable Buyer Sale Taxes due in connection with the Product purchase, and any currency conversion necessary to provide the Merchant Funds to Merchant in its local currency. 

   EE. “XPaydite APIs” shall mean application programming interfaces (the “APIs”), iframes, hosted pages, or other integration options developed by XPaydite, which will enable the Merchant Site to communicate with XPaydite to: (i) send certain transaction information from the Merchant Site to the XPaydite Platform; (ii) tokenize Buyer credit card information; and (iii) process refunds and Reversals. APIs include all improvements, updates, upgrades, and modifications to the aforementioned.

   FF. “XPaydite CRM” shall mean the web portal provided by XPaydite that enables Merchant to manage and update: (a) the Products that may be sold via the Merchant Site, (b) transaction details, (c) the Buyer details and (d) Product Information.

   GG. “XPaydite IP” shall mean the XPaydite Platform, and all alterations, enhancements, improvements, corrections, derivatives, or other modifications thereto and all Intellectual Property Rights related to any of the foregoing.

   HH. “XPaydite Platform” shall mean the XPaydite CRM, XPaydite APIs, Documentation and any other software, services or technologies that are used or otherwise provided by XPaydite in connection with the provision of the Services to Merchant or any other Merchant.

Website Contents and Intellectual Property (IP)

• All content including logos, photos and texts published on our websites are owned by XPaydite. XP shall have all rights in all our trademarks, design, software code, domain names, logos, patents and any other intellectual property and/or proprietary rights. All materials published on our website is protected by copyright laws. 
• You can keep a copy of any content from our site strictly for your personal use. Registering on our website in no way give you any IP rights on any content on our website. Use of any content beyond your personal use must be done only with our prior written permission for which you will have to send a separate email to us explaining the content that you want to use and the reason of such usage.
• We make reasonable efforts to keep our site updated with latest information; however, we make no representations, warranties or guarantees, whether express or implied, regarding completeness and correctness of the content on our site. Should you think that any information is not correct, you may inform us of such inaccuracies through email to us. We will work on your feedback and try to do the required correction(s) as applicable at the earliest possible. 
• During the Term and subject to the terms of the Agreement, XPaydite hereby grants to Merchant a limited, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided in Merchant agreement), and worldwide license to: (a) use the XPaydite CRM and Integration Option for the purpose of enabling the sale of Products to Buyers via the Merchant Site; (b) use, and create a reasonable number of reproductions of, the Documentation solely for the purpose of exercising the right as defined under relevant section of the agreement; and (c) use a logo, name or other trademark provided by XPaydite, provided that such use is (i) pre-approved in writing by XPaydite, and (ii) in accordance with written instructions or guidelines provided by XPaydite.
• We may have third party or partners websites’ links on our site where we do not have any control/influence on such websites and such linkage with our websites must not be considered as our approval on the contents of such websites.  You will have to give separate consent while providing your data on all such websites. We suggest you to go through the terms of such website before providing your data and consent as applicable. 

Registration & Login credentials

• For availing our services, you will be required to register with us by providing the information in the registration or onboarding form. Once registered, we will provide you with user ID and password for logging into your account. 
• It is important that your password must be kept secured and must not be shared with anyone. If you are representing an organization, you should ensure that the user ID and Password are shared with a trustworthy person within the organization as per your internal policies. XP will not be liable for any misuse of your user ID and password. If you have suspicion of any misuse, you must report to us immediately as per the touch points mentioned in the “Contact Us” page on the website.
• Registration does not give you right to use services unless you have accepted to the appropriate agreement as applicable. In case you use the services offered by us, without any separate agreement, it would be deemed that you have expressly accepted our terms as described here in subsequent sections or as applicable on the services or products being used by you.
• Your onboarding will be as per our internal Merchant onboarding process and applicable regulatory guidelines. You will be required to provide details as listed in the onboarding form and submit all required documents including Organization KYC. Information and KYC of Directors/Key Management Person/Beneficial Owners will have to be provided to us. Onboarding process is primarily influenced by the KYC & other requirements as defined in regulations/circulars published by Central Banks and/or other governing Authority(ies) from time to time and also to perform risk assessment to protect our business interests while controlling fraudulent activities. Basis review of documents and information submitted, XP may ask for additional information. It must be noted that onboarding may also include requirements from our downstream partners including banks to comply with various guidelines based on services and products being used.
• Considering the global nature of business, XP is required to ensure compliance to regulatory framework of both origin and destination countries, hence, may ask for information not required for one country but may be required in the other country. Non-submission of information is not an option and XP may choose not to provide Services in such scenarios.
• Providing all information /documents does not make a merchant eligible for onboarding. XP will onboard a merchant only post assessment of all information/documents. In case of false/conflicting information, XP may choose not to onboard a customer/merchant. In addition, decision to onboard a merchant is XP’s discretion and may disapprove onboarding a Merchant basis certain internal procedures.  
• If it is realized at a later stage that a merchant has provided incorrect information, this is considered a material breach of the Agreement and other terms, XP may terminate the Agreement with the merchant immediately and further settlement of any dues may not happen. In case of any breach against regulatory obligation(s), XP may decide to report the same to local law enforcement agencies as appropriate and subsequent action will be as per the instructions of the agency.
• For processing a sale, the merchant can use APIs or other integration options provided by XP for integration. Any payment related data storage by a merchant must be strictly as per guidelines issued by Central bank and/or other governing bodies as applicable and industry standards like PCI DSS.
• Integration related API details and/or keys shared with a merchant must not be shared further with any third party or website which does not belong to the merchant. Such sharing by merchant group companies whose names are not mentioned in the contract must not be done without prior permission from us. 

Payments, Reversals and Refunds 

• Under agency services, XP will act as Payment facilitator between the Payor and the Beneficiary. XP will not be liable for delivery or quality of goods or services even. It is the sole responsibility of the Merchant.  Reseller terms can be referred in the Exhibit C of General Merchant Agreement Terms. 
• XP will provide different modes of payments as per its arrangement with various partners. Merchant will have to process payment only as per the modes/channels provided by us.
• XP will deduct its fee or any other dues before settlement of funds. Taxes as applicable will also be adjusted before settlement and will be obligation of the Merchant.  Local taxes in a country where XP is acting as Reseller, will be obligation of XP only. 
• Merchant must clearly make available to its customers or buyers, its policies with regards to refunds and cancellations through its Website. 
• Refunds or reversals cannot be initiated by XP. Payment once processed will be settled to the Merchant. Customer should approach the Merchant from which the goods or services were purchased for any refund/reversal related queries.
• In case of any dispute, Customer should raise concern/complaint with his/her bank or the Merchant. XP will work with Merchant to resolve any payment related issues. If customer approaches XP directly, the request will be routed to the concerned Merchant for further investigation/action. Status of payment transaction along with details as per our records will be shared with the Bank, Acquirer, and/or Merchant upon request.
• A transaction may be put on hold, not accepted for processing or cancelled by us if there is a red flag observed, suspected fraud or notice from a Regulatory body or any other Govt agencies.

Records management & Data Protection

• XP will store records for a minimum period of 5 years from the date when a transaction is complete. A higher period may be observed depending upon the regulatory provisions in different countries.
• Customer Data is stored by XP only basis consent and is shared with third parties as necessary for providing the Services. Merchants are required to collect customer consent for all data shared with XP. 
• Merchant will be solely responsible for storing records as per the laws applicable on the Merchant. XP will not be storing any data on behalf of Merchant unless specifically listed as part of services rendered to the Merchant.
• As part of providing services to Merchant, there would be certain data of end consumer which XP may have to retain subject to retention period as defined under various regulations. Such data is required to be stored solely for the purpose of providing services like executing the transactions and meeting the regulatory requirements.

Audit 

• XP has the right to conduct audit of a Merchant to satisfy itself if the Merchant is adhering to the obligations as per the agreement. Merchants are obligated to provide information necessary for XP to conduct and complete the audit to its satisfaction at Merchant’s reasonable cost.
• Merchant has to comply with all applicable regulations; however, XP may review Merchant’s business practices as well from time to time or as required to fulfil our regulatory obligations. A Merchant not complying with local laws may not have any direct impact on XPs business; however, such partnerships may post threat to XPs business interests and XP may decide to terminate its services immediately in its sole discretion. 
• Audit may be conducted by an XP employee or an external auditor engaged by XP for conducting such audits. 
• Audit may be conducted physically on-site or remotely. 

Losses and Limitation of Liabilities

We accept liability towards Merchant onboarded with us, caused by our negligence or any fraudulent misrepresentation directly by our employees or agents or indirectly attributable to our conduct subject to the following:

• XP’s obligation to indemnify the Merchant, the aggregate liability of XP to the Merchant from any cause whatsoever shall not, in any event, exceed the sum equivalent to the preceding one (1) month’s aggregate fee earned by XP from the date of occurrence of such liability.
• XP will make reasonable efforts to provide uninterrupted services; however, non-availability of website will not create any liability on us. We will not be liable to a Merchant for any loss or damage caused due to use of our website or if website is not available or reliance on any content displayed on our site.
• Under no circumstances, XP is liable to Customers of any Merchant or third party.
• We will not be responsible for any liabilities arising out of any fraudulent activities by Merchant and/or its Customers.
• Terms mentioned in the Agreement with a Merchant will be considered final for resolving any dispute pertaining to liabilities.

Communication

Communication is a critical aspect of providing services to our clients. We will use SMS and/or email for sending necessary communications on transactions accepted and processed through our platforms. These communications are primarily related to login via OTP, verification, transaction status, updates, etc which are important for providing you the Services. Providing us with your phone number and/or email while registering with us will be considered as authorization to send communication via SMS and/or email as applicable. If you do not want to receive communication via any specific mode, please inform us via “Contact us” section on our website; however, please be advised that processing such request may result in discontinuation of services provided by XPaydite.

                        General Merchant Agreement Terms

These terms are part of Services Agreements that Merchants are required to execute in order to avail the Services offered by us. Final agreement that a Merchant will sign may have additional terms or some modification to the below terms may be required depending on the arrangement with the Merchant.

1. RULES OF CONSTRUCTION 

As used in this Agreement, references to “include,” “includes” or “including” will be deemed to be followed by the words “without limitation.”

2. SERVICES 

      2.1 Services. XPaydite will provide the Services to Merchant subject to the terms of this Agreement, and each Order Form executed and delivered by both Parties. If Merchant does not enable Product sales to Buyers in a Permitted Country within 2 months from the applicable Commencement Date, the prices and fees set forth in the applicable Order Form will expire. If Merchant desires to enable Product sales to Buyers in (a) a country or other territory that is not listed as a Permitted Country in an Order Form, or (b) a Permitted Country after the expiration time, then, in each case, the Parties will execute a new Order Form prior to enabling Product sales to Buyers in such country or territory. 

      2.2 Integration. Merchant and XPaydite will cooperate in good faith to enable the integration between the XPaydite Platform and the Merchant Platform via the XPaydite Hosted Page or APIs prior to the Launch Date. Merchant will implement and use the Services, including the XPaydite APIs, in accordance with the Documentation. Merchant may enable the integration to XPaydite Platform using services of an ISP as defined under Section 3.6 and captured under Order Form for such Merchant.

      2.3 XPaydite CRM. Merchant will: (a) provide Product information and all other details including pricing as requested via the XPaydite CRM and/or XPaydite Platform and maintain the accuracy of such information and materials at all times; (b) maintain the security of its Merchant Account, including by protecting its Merchant Account credentials from unauthorized access, use and disclosure and by not disclosing its Merchant Account credentials to any third party; (c) promptly notify XPaydite if Merchant discovers any unauthorized access or use of the XPaydite CRM via the Merchant Account; and (d) be responsible for all use of the XPaydite CRM via the Merchant Account credentials, even when enabling the Services through an ISP.

      2.4 Payment Methods. XPaydite will use commercially reasonable efforts to make the Payment Methods listed in each Order Form available to Buyers to purchase Products via the Merchant Site in each Permitted Country; provided, that XPaydite may at any time suspend or cancel the use of any such Payment Method that is no longer: (a) available in the Permitted Country, (b) available to XPaydite under terms (including pricing) that are acceptable to XPaydite in its sole and absolute discretion, or (c) deemed compliant with applicable laws by XPaydite in its sole and absolute discretion. XPaydite will notify Merchant as promptly as possible of the suspension or cancelation of any Payment Method.

3. RELATIONSHIP BETWEEN PARTIES

      3.1  Payment Agent. In connection with each transaction in which XPaydite accepts a Buyer’s order to purchase a Product via the Merchant Site (a “Transaction”), XPaydite or its Affiliate will act as an agent of the Merchant for the purpose of collecting, holding and remitting the proceeds from the sale of Products to Buyers in the Permitted Countries, and of collecting and remitting to the Tax Authorities any applicable Buyer Sales and Withholding Taxes (each as defined below) or related services such as designing and issuing invoices. Merchant hereby appoints XPaydite as Merchant’s agent for the limited purpose of facilitating, on Merchant’s behalf, the receipt, collection and transmission of payments from Buyers to Merchant, and transmitting or settling such funds to it. Merchant further authorizes XPaydite or its Affiliates to use services of local payment service providers and authorizing them to facilitate the collections from the Buyers and to facilitate disbursements to Merchant tied up with XPaydite in Permitted Countries.

      3.2 Merchant agrees that receipt of funds by XPaydite (and XPaydite’s Acquirer’s) from a Buyer on Merchant’s behalf in connection with the Services (i) is deemed to be Merchant’s receipt of funds from the Buyer, and (ii) satisfies the Buyer’s obligations to Merchant in the amount of the Buyer’s payment, even if XPaydite fails to remit to Merchant the funds received from the Buyer and Merchant will promptly deliver the Product to Buyer. 

      3.3 Reseller Services. This Section 3.3 will only apply for Permitted Countries identified in Order Form where XPaydite will act as a reseller of Products sold via the Merchant Site. In connection with each transaction in which XPaydite accepts a Buyer’s order to purchase a Product via the Merchant Site, XPaydite or its Affiliate will purchase the right to access or use the Product from Merchant at the applicable price established by Merchant via the XPaydite Platform and immediately resell such right to the Buyer. The Parties acknowledge and agree that in case of digital Products, XPaydite or its Affiliate, as applicable, is reselling only the right to access or use the Product, and that title to the Product will at all times remain with Merchant and its licensors (if applicable). License to Products that are not sold will remain with Merchant at all times. Merchant in this case will be responsible solely for delivering, provisioning, managing and supporting the Product for Buyers.

      3.4 Merchant acknowledges that (i) XPaydite will not provide any services or activities defined as “money transmission services” under Applicable Laws and Rules that are outside the scope of Services permitted under this Agreement, except to the extent that it is licensed to do so or is operating as an agent for a third party, (ii) XPaydite is not a bank or other chartered depository institution, and (iii) funds received by XPaydite (a) may be commingled with funds of XPaydite and/or other Merchants at one or more banks. XPaydite has sole discretion over the establishment and maintenance of any such account. XPaydite will not use funds held in such an account for XPaydite’s corporate purposes. Merchant will not receive interest or any other earnings on any funds that XPaydite holds for Merchant or on Merchant’s behalf.

      3.5 XPaydite or its designee will provide Buyers with a receipt or acknowledgement and any other information required by applicable law confirming that payment has been made on the applicable date. If required by applicable law, Merchant authorizes XPaydite to collect from each Buyer and remit to the applicable local taxing authority on Merchant’s behalf, all taxes applicable to the sale of Merchant’s Products, including sales and use, or similar taxes. Merchant shall be responsible to collect consent from Buyer to share Buyer data collected by Merchant with XPaydite and/or its downstream partners that is required to complete Services and any requirements under Applicable Laws and Rules. Merchant will share Buyer consent for such data sharing within 2 business days as and when requested by XPaydite. 

      3.6 Intermediary Service Provider. This Section 3.6 and related terms apply only to Merchant that uses an Intermediary Service Provider to avail XPaydite Services as mentioned in this Section and the Order Form. XPaydite has contracted marketplace or technology gateway platform or payment facilitation services partners or providers, each an Intermediary Service Provider i.e. “ISP”, under XPaydite’s Reseller Partner Agreement (“ISP Agreement”) that pre-approves the ISP to promote, integrate and / or resells XPaydite Services to its clients. ISP under aforementioned arrangement is authorized and integrated to XPaydite Platform and may facilitate Merchant onboarding with XPaydite and to submit Transaction for and on behalf of such Merchant. Merchant agrees and acknowledges ISP is properly contracted and authorized to collect and submit Merchant information in relation to XPaydite onboarding, availing Services and XPaydite will fully rely on such information, documents and Transactions as submitted by ISP to provide Services under this Agreement. Notwithstanding ISP arrangement with the Parties, Merchant hereby continues to be obligated and bound by all the Terms of this Agreement. Further, Merchant hereby fully indemnifies XPaydite and shall cause and additionally hold ISP solely responsible for such terms including, but not limited to, data sharing, data protection and integration support on ISP services and in relation to facilitating XPaydite Services through ISP platform. Merchant acknowledges and agrees that XPaydite and ISP are reasonably and independently bound under the ISP Agreement terms of their arrangement for each such Service Merchant enables through ISP including any fees payable to ISP. XPaydite retains the sole decision to onboard such Merchants at its own discretion.

4. MERCHANT RESPONSIBILITIES

      4.1 Merchant Information. Merchant will collect, validate, and make available to XPaydite upon request any information and documentation regarding Merchant, Buyers, Buyer Consent, Buyer Invoice, proof of delivery, Products and Transactions, as may be reasonably requested by XPaydite in order for XPaydite to (a) comply with its obligations under applicable AML Laws, (b) provide the Services in a fully compliant manner, or (c) meet any requirements imposed by government authorities, banks, local card acquirers, or payment service providers in the Permitted Countries. Merchant will implement reasonable measures to ensure the accuracy of the data provided to XPaydite as provided herein. XPaydite reserves the right to deny or suspend the Services in connection with any Products or Transactions for which it has not received to its full satisfaction accurate information as required in this Section 4.1. 

      4.2 Merchant’s Business. Merchant will (a) maintain and provide to XPaydite, upon request, a detailed list of every Product that is offered in the Permitted Countries and all applicable Merchant refund policies, (b) obtain XPaydite’s written consent before offering new Products in the Permitted Countries, including abiding by transaction limits for each Product offered, (c) hold the licenses, permissions and clearances necessary to conduct its business in all jurisdictions in which it operates and to offer and sale the Products in the Permitted Countries, (d) use the Services only in connection with the sale of Products in the Permitted Countries pursuant to a direct contractual relationship between Merchant and the Buyers, obtain Buyer consent prior to initiating transaction with XPaydite, and (e) not engage in any Prohibited Businesses without XPaydite’s prior written consent. XPaydite reserves the right to deny or suspend the Services immediately without notice if Merchant is in violation of this Section 4.2.

      4.3 Compliance. Merchant represents and warrants that it has implemented, and will maintain throughout the Term, a written program, systems and controls reasonably designed to comply with the requirements of any Applicable Laws and Rules, including PCI DSS when handling Buyer Data as applicable. Merchant and XPaydite will reasonably cooperate with each other in connection with each meeting its respective compliance obligations. Notwithstanding any advice, assistance or information provided hereunder or otherwise by either Party to the other Party, each Party shall be responsible for its own compliance with all applicable licensing, reporting, notification, record-keeping, employee training, and other legal or regulatory requirements with respect to each respective Party’s obligations and role in connection with the Services. Each Party agrees to comply with its legal and regulatory obligations set forth in this Section 4.3.

      1. Services being provided pursuant to this Agreement are contingent upon XPaydite completing, to its satisfaction, its business and compliance due diligence review of Merchant’s policies and procedures, including AML/CFT policies if existing or applicable. XPaydite has sole discretion with respect to whether and how the business due diligence and compliance review is completed. This Agreement may be terminated by either Party, prior to completion of the business and compliance due diligence review by XPaydite without any liability to either Party. XPaydite reserves the right to conduct a new or revised business and compliance due diligence review prior to any new services being added to this Agreement and no new services will be provided until completion of said review.

      2. Upon request, each Party shall provide the other Party with such information and reasonable assistance as may be necessary for the requesting Party's legal or regulatory compliance requirements, subject to assurances to maintain the confidentiality of confidential information, and subject to applicable privacy, confidentiality and other laws. Without limiting the foregoing, and subject to applicable laws, the Parties agree to share and provide each other access to information to facilitate each other’s BSA, AML, and compliance efforts (including information regarding patterns, remitters, beneficiaries, and recipients of the Party’s services, and the Party’s policies, procedures, audits and internal controls).

      3. Merchant hereby agrees to provide the following during initial due diligence and/or any periodic or ongoing review required in order for XPaydite to comply with its BSA policy requirements: (i) Identities and personal information of and regarding, the parties involved in utilizing the Services including its owners/beneficial owners, employees, contractual counterparties, partners, buyers, beneficiaries, and financial institutions (collectively, the “Merchant Parties”) and/or entire due diligence compliance files regarding the Merchant Parties including tax identification and/or social security numbers, date of birth, government identifications, addresses, and account numbers. (ii) Risk assessments, BSA-related questionnaires, regulatory findings, audits/independent reviews, negative news information, Office of Foreign Assets Control (OFAC) information, Politically Exposed Persons (PEP) information. Each Party will provide the requested information within five business days after a request. If a Party is unable to provide the requested information, the Party will indicate in an email or other written communication within five business days directed to the other Party’s Chief Compliance Officer (or the Chief Compliance Officer’s designated delegate) the reasons why the information is being withheld.

      4. Any information requested in a BSA/AML/compliance review effort that involves the financial institutions or buyers who are using Merchant’s services cannot be withheld on the basis of confidentiality requirements between Merchant and XPaydite either under prior executed NDA or under this Agreement and will be provided within its entirety with no information redacted or otherwise masked by Merchant, XPaydite, or any agent/third-party acting on their behalf.

      5. Due to its regulatory and legal requirements, XPaydite may require additional information about a financial institution Merchant uses that is not in the Parties’ files. If the information is related to a BSA/AML/compliance issue, XPaydite may request Merchant to contact the financial institution or Buyer to obtain the necessary information. Merchant will in turn contact the financial institution or Buyer within five business days after XPaydite has made its initial request to Merchant. If Merchant chooses not to contact the financial institution or Buyer, Merchant will indicate in an email or other written communication within five business days directed to XPaydite’s Chief Compliance Officer (or the Chief Compliance Officer’s designated delegate), the reasons for not contacting the financial institution or Buyer. The Parties will provide the financial institution or Buyer with a reasonable period to respond to the BSA/AML/compliance request. If the financial institution or Buyer does not respond to Merchant’s request within a reasonable period, XPaydite has the option of limiting or terminating the financial institution or Buyer from using XPaydite’s services. The Parties will not consider XPaydite’s adverse action regarding the financial institution or Buyer to be a breach of this Agreement in relation to a BSA/AML/compliance issue.

      6. Each Party shall implement such policies, procedures or internal controls as are reasonably necessary to ensure compliance with its legal and regulatory obligations (including obligations pursuant to the United States Bank Secrecy Act (BSA) and anti-money laundering (AML) requirements) in connection with the Services. Neither Party shall be obligated to provide any Service or conduct transactions hereunder if the Party is not satisfied, in its sole discretion, with any of such policies, procedures or controls of, or the implementation thereof by, the other Party.

      4.4 Recurring Charges. With respect to any Products that will require XPaydite to charge Buyers on an automatically recurring basis (e.g., renewals of subscription-based Products), XPaydite reserves the right not to enable such recurring charges if it reasonably believes that such charges (or the notices and acknowledgements provided in connection therewith by Merchant) are not permitted by or in compliance with all applicable laws, including all applicable rules of approved Payment Method providers, as reasonably interpreted by XPaydite. Merchant will provide all notices and acknowledgements to, and obtain all authorizations and consents from, Buyers as required under such Applicable Law and Rules in order to enable XPaydite to charge Buyers for Products on an automatically recurring basis. Without limiting the foregoing, Merchant will provide clear and conspicuous notice of the applicable cancellation method that Buyers must utilize to cancel the recurring charges. Merchant will be solely responsible for responding to cancellation requests from Buyers and will provide XPaydite with notice (in a manner approved by XPaydite) regarding any cancellation by a Buyer of such recurring charges immediately following Merchant’s receipt of such cancellation. Upon expiration or termination of this Agreement, XPaydite will discontinue any recurring charges and Merchant will be solely responsible for any disputes, claims or complaints from Buyers regarding such discontinuance.

      4.5 Buyer Sales and Withholding Taxes. Merchant will be solely responsible for determining, calculating and, except as provided in the following sentence, collecting and remitting to the applicable tax authorities in the Permitted Countries (the “Tax Authorities”) any taxes levied or assessed by any governmental authority in the Permitted Countries (including income tax withholding, sales and use tax, gross receipts tax, goods and services tax, value added tax, equalization levy, transaction privilege tax and any similar taxes) in connection with, based on, or arising from, a Buyer’s purchase of Products via the Merchant Site (“Buyer Sales and Withholding Taxes”), but excluding any taxes based solely on XPaydite’s net income. XPaydite will withhold from the Merchant Funds and remit to the Tax Authorities Buyer Sales and Withholding Taxes at those rates set forth in the respective Order Form. Upon request, XPaydite will supply evidence to Merchant, as deemed sufficient to Merchant, of XPaydite’s remittance of any Buyer Sales and Withholding Taxes withheld to the Tax Authorities (e.g., in the form of a tax bill or receipts). Merchant acknowledges and agrees that the Buyer Sales and Withholding Tax rates set forth in the respective Order Form are only good faith determinations by both Parties of the tax rates currently applicable in each Permitted Country as of the applicable Commencement Date based on the advice of tax experts in such Permitted Countries, and that the actual Buyer Sales and Withholding Tax rates for which Merchant is responsible may be higher or lower than those set forth in the respective Order Form as determined by the Tax Authorities. Following the applicable Commencement Date, should any Tax Authority challenge the calculation of the tax rates set forth in an Order Form, impose additional taxes, raise any Buyer Sales and Withholding Taxes, and/or should there be a change in the tax regime in the Permitted Countries that adversely affects the services rendered by XPaydite therein, XPaydite will give prompt notice to Merchant upon XPaydite being aware of such occurrence, whereupon (a) Merchant may suspend or instruct XPaydite to suspend the sale of Products to Buyers via the Merchant Site, and (b) unless and until Merchant suspends or instructs XPaydite to suspend the sale of Products to Buyers via the Merchant Site, XPaydite will have the right to withhold from the Merchant Funds and remit to the Tax Authorities any additional or increased Buyer Sales and Withholding Taxes. Merchant will provide to XPaydite any information (including information about the Products, the tax residency status and the organizational structure of Merchant), documentation (including tax residency certificates where applicable) and assistance reasonably required by XPaydite to collect or remit any Buyer Sales and Withholding Taxes in the Permitted Countries, to file any applicable reports or returns related to such Buyer Sales and Withholding Taxes, or to claim any exemption or reduction in connection thereto.

      4.6 Buyer Refunds. Merchant will be solely responsible for responding to and facilitating requests for refunds to Buyers for Products purchased via the Merchant Site (“Buyer Refund”), including for communicating with Buyers regarding rights to refunds and for complying with distance selling requirements and all other applicable laws associated with Buyer refunds. If Merchant elects to provide a Buyer Refund, it will notify XPaydite as provided in this Agreement. Merchant will not submit any Refund to XPaydite: (a) that does not correlate to an original purchase transaction from the Buyer; (b) that exceeds the amount shown as the total on the original purchase transaction. XPaydite reserves the right to provide a Buyer Refund where refunds are required by applicable law. In connection with any Buyer Refund, Merchant will pay to XPaydite the applicable Merchant Funds previously paid by XPaydite to Merchant for any purchases refunded pursuant to a Buyer Refund.

      4.7 Fulfillment. XPaydite will notify Merchant of any Product sale, and Merchant will promptly deliver and provide the applicable Buyer with all necessary information required to exercise the rights to the Products purchased by such Buyer via the Merchant Site. Merchant will provide confirmation and/or proof of delivery satisfactory to XPaydite for each transaction completed successfully. As between the Parties, Merchant is solely responsible for the Products, including the risk of loss, delivery, shipping and handling costs, operation, and support thereof. Merchant will provide, operate and support the Products in accordance with the Product Information, Applicable Laws and Rules, and with a level of quality and professionalism commensurate with industry standards. In addition, Merchant will: (a) fulfill, and be solely responsible for fulfilling, any warranty or other obligations, legal or otherwise, with respect to the Products; (b) not include any Prohibited Materials in the Product or Product Information; or (c) not make any statements to Buyers or any other third party stating or implying that XPaydite is in any way responsible for the Products or any support or warranties in connection thereto.

      4.8 Fraud Prevention. The Parties acknowledge that the use of the Service in online transactions involves a risk of abuse and fraud. Merchant represents and warrants that it has and will maintain throughout the Term adequate policies and procedures in accordance with good industry practice designed to prevent fraudulent abuse, enforcing them where appropriate and coordinating to that extent with XPaydite, including providing XPaydite with the non-identifiable user number associated with a suspected fraudster or suspicious transaction and/or any other relevant information in connection thereof. Merchant will not accept payments processed through the Services if Merchant knows or has reason to believe that the Transaction is fraudulent and the Merchant will give XPaydite prompt notice that any such Transaction has been declined or reversed. Merchant agrees that XPaydite may decline to process any payment due to fraud prevention activities, applicable law, XPaydite policies, or for any other reason in XPaydite’s sole discretion.

      4.9 Suspension. XPaydite reserves the right to suspend the sale of Products or to decline any purchase of Products, if it reasonably believes that Merchant is in breach of this Agreement, including if the Products or Product Information contain or promote Prohibited Materials. Upon request by XPaydite, Merchant will provide information, materials or access reasonably requested by XPaydite for it to confirm that the Products comply with this Agreement.

      4.10 Use of XPaydite APIs. Merchant will implement the XPaydite APIs in accordance with the written API specification guidelines provided by XPaydite from time to time. XPaydite may update the XPaydite APIs from time to time and Merchant agrees to code to the updated XPaydite APIs within a commercially reasonable period of time of the updated XPaydite API being made available to Merchant for testing, unless such changes are required to be implemented sooner by the rules or requirements of the applicable payment method organization (e.g., credit card network) or applicable law. If Merchant does not code to such updated XPaydite API within such timeframe, XPaydite may suspend the provision of the Services until such update is completed by Merchant. Merchant agrees to comply with such written API guidelines at all times. If XPaydite makes changes to the XPaydite APIs that Merchant reasonably believes would have a material adverse effect on Merchant’s business, then Merchant may terminate this Agreement upon 30 days’ prior notice. 

5. PAYMENT 

      5.1 Merchant Funds. Subject to the terms of this Agreement and respective Order Form, XPaydite will periodically pay to Merchant funds equaling the total number of Products sold via the Merchant Site multiplied by the applicable price for each Product sold, net of applicable fees payable to XPaydite under this Agreement, Buyer Sales and Withholding Taxes, fees assessed by Card networks or other third parties, and any amounts paid by XPaydite as Buyer Refunds or Chargebacks in such calendar month (“Merchant Funds”). Processing times may vary depending upon XPaydite’s risk assessment, risk holds, third party processor requirements and regulations, and Merchant’s bank’s processing time. XPaydite will be entitled to revise the pricing set forth in any Order Form at any time, provided that it will give written notice to Merchant at least 30 days prior to the effective date of any such revision. Merchant is solely responsible for: (a) ensuring that it maintains accurate up-to-date bank account information with XPaydite to enable XPaydite to make any required payments. Failure to do so may result in Merchant Funds being misdirected, withheld, or returned to its Buyers. XPaydite shall in no event be liable for any damages directly or indirectly resulting from incorrect bank information; and (b) paying any sales, use, value-added or similar taxes payable in connection with its receipt of the Merchant Funds. 

      5.2 Payment Terms. Merchant Funds will be paid in United States dollars unless otherwise specified in the respective Order Form (the “Settlement Currency”), and in the event the sale of the Products via the Merchant Site is conducted in currencies other than the Settlement Currency, then XPaydite will convert said proceeds into the Settlement Currency based upon the market exchange rate as of the date of settlement, or if such day will fall on a non-business day, then as of the first business day following said day. 

      5.3 Other Charges. If Merchant requests or otherwise utilizes any services performed by XPaydite that are not set forth in an Order Form (such as custom integration work), XPaydite reserves the right to determine whether to perform such additional services and will charge Merchant mutually agreed upon fees for same.

      5.4 Reports. With each payment or invoice sent to Merchant, XPaydite will provide a report to Merchant including sufficiently detailed information, such as transaction volumes, revenue, and deductions, in order to allow Merchant to reasonably verify the accuracy of such payments or invoices, as the case may be. It is understood and acknowledged by the Parties that Payment Method providers provide different levels of detail to their merchant clients and that, consequently, the reports provided by XPaydite may contain only as much detail as XPaydite actually receives from the applicable Payment Method providers.

      5.5 Reserve; Right of Setoff. Merchant agrees that XPaydite may, at any time, require and/or cause Merchant to pay to XPaydite, a Reserve of funds. XPaydite may set the Reserve in an amount that it reasonably determines is necessary to cover its or any Acquirer’s actual or anticipated fees, liabilities, and any other risk in connection with providing the Services to Merchant (including anticipated Chargebacks or credit risk). The Reserve may be raised, lowered, or removed from time to time in XPaydite’s sole discretion. If the Reserve is in the form of a separate reserve account, Merchant agrees that XPaydite may fund the Reserve by making one or more deductions or offsets from amounts due to Merchant under this Agreement and Merchant grants XPaydite, Acquirers or Partner Banks the right, without prior notice to Merchant, to debit the Reserve to collect amounts owed to XPaydite under this Agreement. Merchant grants XPaydite, Acquirers or Partner Banks a security interest in, and lien on, (i) all funds held in any Reserve and (ii) any of Merchant Funds pertaining to the transactions contemplated by the XPaydite’s Agreement with Acquirers or Partner Banks now or hereafter in Acquirer’s or Partner Bank’s possession, whether now or hereafter due or to become due to Merchant. Such lien granted to Acquirer and Partner Bank may have a higher priority than any lien granted to XPaydite in and to both (i) and (ii) above. In addition to any rights now or hereafter granted under Applicable Laws and not by way of limitation of any such rights, Acquirer and Partner Bank are hereby authorize by Merchant at any time and from time to time, without notice or demand to Merchant or to any other person (and such notice and demand being hereby expressly waived), to set off, recoup and to appropriate and to apply any and all funds held in a reserve account established hereunder and held by XPaydite against and on account of obligations owed to Acquirer or Partner Bank by XPaydite on Merchant’s behalf, whether such obligations are liquidated, unliquidated, fixed, contingent, matured or un-matured. Merchant agrees to duly execute and deliver to XPaydite, Acquirer or Partner Bank, as applicable, such instruments and documents as they may reasonably request to perfect and confirm the lien or security interest set forth in this Agreement. The right of setoff shall be deemed to have been exercised immediately upon the occurrence of default hereunder without any action by XPaydite or notation in XPaydite’s records, although XPaydite may enter such set off on its books and records at a later time. Merchant will execute any additional documentation required for XPaydite to perfect such security interest. This security interest survives for as long as XPaydite holds funds in the Reserve. Merchant agrees that all interest or other earnings that may accrue or be attributable to the Reserve will belong to XPaydite. XPaydite may maintain the Reserve for up to 12 months following the expiration or termination of this Agreement.

6. CHARGEBACKS AND REVERSALS

      6.1 Payment by a Buyer is subject to a right of Reversal or Chargeback. These rights exist between the Buyer and the Buyer’s bank or Card issuer. Merchant acknowledges that (i) the Chargeback and Reversal processes, procedures and deadlines are set by the applicable Card issuing bank, Card network, or banking system, (ii) Chargeback and Reversal decisions are made by the applicable Card issuing bank, Card network, or banking system, (iii) all judgments as to the validity of the Chargeback or Reversal are made at the sole discretion of the applicable Card issuing bank, Card network, or banking system, and (iv) XPaydite does not determine the outcome of a Chargeback or Reversal dispute. Further, Merchant agrees that it is responsible for any Chargeback or Reversal of a payment, plus the corresponding Chargeback Fee or Reversal Fee listed in the Order Form, regardless of the reason for the Chargeback or Reversal. In the event of a Chargeback or Reversal of any payment by a Buyer, XPaydite is authorized to, immediately and without notice, recapture such amount plus the applicable Chargeback Fee or Reversal Fee associated with the Chargeback or Reversal from Merchant’s bank account or to withhold such amount from any payment due to Merchant. XPaydite will have no obligation to pursue any collection action against any Buyer. Therefore, XPaydite’s obligation to remit to Merchant funds that XPaydite collected from a Buyer on Merchant’s behalf will be limited to funds that XPaydite has actually received from the Buyer that are not subject to Chargeback or Reversal.

      6.2 With respect to Chargebacks, XPaydite may, in its sole discretion, choose to assist Merchant to investigate and dispute the validity of the Chargeback on Merchant’s behalf. For disputed Chargebacks, Merchant (i) will be liable for all fees and costs imposed by the applicable Card network to dispute the Chargeback, (ii) agrees to cooperate with XPaydite and to provide any information that may be reasonably requested by XPaydite as part of the dispute process, and (iii) authorizes XPaydite to share information about the Chargeback with the Buyer, the Buyer’s financial institution, and Merchant’s financial institution. If a Chargeback dispute is resolved in Merchant’s favor and XPaydite is in possession of the applicable funds, XPaydite will deposit the funds into Merchant’s bank account. If a Chargeback dispute is not resolved in Merchant’s favor or Merchant chooses not to contest the Chargeback, Merchant waives its rights to repayment of the disputed funds. Merchant acknowledges that Merchant’s failure to abide by the applicable Chargeback dispute deadlines or to provide sufficient documentation (as determined by the applicable Card issuing bank or Card network) may result in Merchant losing the Chargeback dispute. Merchant further acknowledges that American Express Chargebacks that are deemed to be fraudulent or unauthorized (as defined by American Express) may not be disputed.

      6.3 If Merchant has incurred an excessive number or amount of Chargebacks or Reversals, as determined by the then-current and applicable Card network or banking system operating regulations, XPaydite may, without advance notice: (i) increase the fees and costs set forth in the Order Form, (ii) require Merchant to establish a Reserve, (iii) delay payments to Merchant, and/or (iv) suspend providing the Services to Merchant.

7. INTELLECTUAL PROPERTY AND BUYER DATA

      7.1 Merchant License. During the Term and subject to the terms of this Agreement, Merchant hereby grants XPaydite and its Affiliates a limited, non-exclusive, non-sub licensable, non-transferable (except as otherwise provided in Section 14.5), and worldwide license to reproduce, distribute, publicly display, and modify (solely to the extent necessary for presentation via the Merchant Site) Product Information solely to the extent necessary to market, sell and offer to sell the Products via the Merchant Site.

      7.2 XPaydite License. During the Term and subject to the terms of this Agreement, XPaydite hereby grants to Merchant a limited, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided in Section 14.5), and worldwide license to: (a) use the XPaydite CRM and Integration Option for the purpose of enabling the sale of Products to Buyers via the Merchant Site; (b) use, and create a reasonable number of reproductions of, the Documentation solely for the purpose of exercising the right under Section 7.2(a); and (c) use a logo, name or other trademark provided by XPaydite, provided that such use is (i) pre-approved in writing by XPaydite, and (ii) in accordance with written instructions or guidelines provided by XPaydite. 

      7.3 Ownership. Except for the licenses expressly granted to Merchant pursuant to Section 7.2, XPaydite and its licensors will retain all right, title, and interest in and to the XPaydite IP. Nothing contained in this Agreement will be construed as conferring upon Merchant, by implication, operation of law, estoppel, or otherwise, any other license or right in or to the XPaydite IP, including to: (i) copy, modify, or create derivative works of the Services or XPaydite IP; (ii) license, sell, resell, market, reproduce, transfer, assign, or distribute the Services or the XPaydite IP (or any part thereof) in any way; (iii) reverse engineer, decompile, disassemble, or translate the Services or the XPaydite IP; or (iv) access the Services or the XPaydite IP in order to build a competitive product or service. Merchant may not modify, translate or distribute any Documentation except as is deemed necessary for purposes defined in the Section 7.2 (a). Any modifications made to Documentation by Merchant are at Merchant’s sole risk.

      7.4 Trademarks. Any goodwill arising from use of a Party’s trademarks, logos or other brand features by the other Party will inure solely to the benefit of the first Party.

Buyer Data. XPaydite reserves the right to: (a) use Buyer Data and data obtained from its other Merchants for the purpose of preventing and detecting fraud across the XPaydite Platform; and (b) share Buyer Data with fraud prevention and detection service providers who may combine such information with other information they receive from their customers in order to provide fraud services to XPaydite (and its Merchants) and the service providers’ other customers. Other than in connection with the foregoing rights, XPaydite will only use Buyer Data to provide the Services or as otherwise instructed by Merchant. Merchant will provide all notices, and obtain all consents, as required under all Applicable Laws and Rules (i) for XPaydite to exercise the rights specified in this Section 7.5, and (ii) in connection with Merchant’s collection, use and disclosure of any personal data processed by or on behalf of Merchant in connection with Products. 

8. TERM, TERMINATION, SUSPENSION, AND SURVIVAL

      8.1 Term. This Agreement will commence on the Effective Date and continue until the expiration or earlier termination of each Order Form. Each Order Form will become effective on its Commencement Date and will remain in effect for the initial term set forth therein (the “Initial Term”), whereupon it will automatically renew for successive one-year periods (each, a “Renewal Term”), unless either Party has given written notice of its intent not to renew such Order Form at least 90 days prior to the end of the Initial Term or the then-current Renewal Term, as the case may be. The Initial Term and all Renewal Terms, if any, are collectively referred to in this Agreement as the “Term.”

      8.2 Termination. Either Party may terminate this Agreement or any Order Form at any time, for any reason or no reason, by delivering to the other Party 180 days’ advance written notice of their intent to terminate this Agreement. If, prior to the expiration of the Initial Term or then-current Renewal Term, Merchant terminates this Agreement for convenience under this Section 8.2, Merchant will pay to XPaydite a termination fee equal to the average monthly fees and costs paid by Merchant in the six months prior to the date of the termination notice, including any minimums, multiplied by number of months remaining in the Term at the time of termination (the “Termination Fee”). Merchant agrees that the Termination Fee represents fairly calculated liquidated damages and is not a penalty.

      8.3 Termination or Suspension for Cause. In the event of material breach of this Agreement by a Party, which breach is not cured by the defaulting Party within 30 days after delivery of a written notice of such breach by the non-defaulting Party, the non-defaulting Party may immediately terminate or suspend its performance under this Agreement by delivering to the defaulting Party a written notice thereof on or after the date on which such 30-day cure period ends. Further, a Party will have the right to immediately terminate or suspend its performance under this Agreement upon delivery of a written notice thereof to the other Party if any of the following events occur: (a) a material breach of this Agreement by the other Party that, because of the nature of the defaulting Party’s obligation, or obligations, cannot be cured; (b) in circumstances in which suspension or termination is necessary or advisable in order to comply with applicable legal or regulatory requirements; (c) the insolvency of the other Party; (d) the voluntary or involuntary bankruptcy of the other Party; (e) the appointment of a receiver, trustee, or custodian for all or a substantial part of the assets of the other Party; (f) an assignment by the other Party for the benefit of creditors; or (g) the voluntary or involuntary dissolution of the other Party. If XPaydite reasonably believes that any Transaction or the conduct of Merchant may violate applicable AML Laws or poses a threat to XPaydite’s systems, services, equipment, processes, or Intellectual Property (each, a “Threatening Condition”), XPaydite may provide Merchant with notice (including by e-mail or telephone) of the Threatening Condition (as permitted by Applicable Laws) and immediately suspend any and all activity on the affected Merchant Account until such threat is cured. Further, XPaydite may terminate or suspend its performance under this Agreement if the Threatening Condition remains uncured more than 15 days after Merchant receives written notice thereof. XPaydite may also terminate or suspend its performance under this Agreement for cause if XPaydite determines that Merchant, Merchant Affiliates or Merchant critical third party service providers, including Merchant’s ISP (i) fail to provide information and reasonable assistance to XPaydite in connection with XPaydite’s legal or regulatory compliance requirements, or (ii) are engaged in activity that fails to comply with AML Laws, Applicable Laws and Rules or causes a significant risk of reputational harm to XPaydite. 

      8.4 Events on Termination. Upon termination of this Agreement for any reason: (a)  the license granted by each Party to the other Party will immediately terminate; (b) subject to      Section 8.5, each Party will pay in full to the other Party any payments that are then due that are not the subject of a bona fide dispute; (c) all liabilities accrued prior to the effective date of the termination will survive, including any payment obligations; and (d) any obligation on the part of XPaydite to make the Integration Option, Services or Documentation available for use by Merchant or to perform for Merchant any related services will cease immediately. Notwithstanding the above, each Party may retain a copy of this Agreement and such other Confidential Information of the other Party as reasonably required for legal, accounting, and auditing purposes. Further, upon a request from Merchant, XPaydite will provide Merchant with a copy of any available Buyer Data in XPaydite’s possession, subject to the following conditions: (i) in the event that such Buyer Data includes “cardholder data”, as defined under the PCI DSS, Merchant must provide evidence demonstrating, to XPaydite’s reasonable satisfaction, that Merchant is in compliance with PCI DSS and is capable of receiving such data in accordance with the PCI DSS and applicable laws, rules and regulations; and (ii) the transfer of such Buyer Data must be permitted by the PCI DSS and all applicable data privacy and security laws, rules and regulations.

      8.5 Survival. The rights, duties, and obligations of the Parties that, by their nature, are continuing will survive the expiration or earlier termination of this Agreement, including the rights, duties, and obligations set forth in Sections 1, 3.6, 4.1, 4.5, 4.7, 5.5, 6, 7.4, 7.5, 8.4, 8.5, and 9 through 14. 

9. WARRANTIES AND DISCLAIMERS

      9.1 Mutual Warranties. Each Party hereby represents and warrants to the other Party that: (a) it has all necessary right, power, and authority to execute, deliver, and perform this Agreement and to perform its obligations pursuant hereto; (b) this Agreement has been duly authorized, executed, and delivered by such Party, constitutes the legal, valid, and binding obligation of such Party and is enforceable against such Party in accordance with its terms; (c) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement; (d) it does and will comply with PCI DSS as applicable to its performance under this Agreement; (e) it does and will comply with all Applicable Laws and Rules, including all laws and regulations pertaining to data protection and the protection of personal data to the extent such laws and regulations apply to such Party’s actions undertaken in connection with this Agreement; and (f) its actions undertaken in connection with this Agreement do not and will not breach any other agreement to which such Party is bound. Further, the Merchant represents and warrants that the Permitted Countries shall be FATF compliant and non-sanctioned jurisdictions. For the avoidance of doubt, any breach of the representations and warranties set forth in this Section 9 will be deemed a material breach of this Agreement.

      9.2 XPaydite Warranties. XPaydite represents and warrants that the Services will conform in all material respects to the specifications set forth in the applicable Documentation, as may be amended by XPaydite from time to time. The preceding warranty in this Section 9.2 will not apply to the extent a breach is caused by (i) Merchant’s breach of this Agreement; (ii) modification of the Services by a party other than XPaydite; or (iii) a defect or interruption in the Services caused by Merchant’s or any third party’s equipment, hardware, devices, software, systems, data, or personnel. In the event the Services are not in conformance with the representation and warranty under 9.2, following XPaydite’s receipt of notice thereof from Merchant, XPaydite will use commercially reasonable efforts to correct the non-conformity at no additional charge to Merchant. THE REMEDY STATED IN THIS SECTION CONSTITUTES MERCHANT’S SOLE AND EXCLUSIVE REMEDY AND XPAYDITE’S ENTIRE LIABILITY FOR ANY BREACH OF SECTION 9.2.

      9.3 Merchant Warranties. Merchant represents and warrants that: (a) Merchant’s installation, configuration, and use of Services will conform in all material respects to the Documentation; (b) the Products, including the sale of such Products or any Buyer’s use thereof, and the Product Information do not infringe the Intellectual Property Rights of any third party and do not and will not violate any applicable law, rule or regulation; (c) the Products and Product Information do not contain any Prohibited Materials; (d) Merchant alone is responsible for delivery of any physical goods, including logistics, all costs, freight, charges, excise or other duties as well as costs related to any refunds or returns of goods or damaged goods; and (e) Merchant is solely responsible for obtaining authorization to debit its Buyers’ bank accounts for ACH payments, and agrees that it shall obtain such authorization in each instance. Merchant shall provide XPaydite with evidence of authorization upon request.  XPaydite shall not be liable for any debit or other failure (or any related costs) arising from Merchant’s acts and omissions, including failure to obtain Buyer authorization.  Merchant shall maintain data sufficient to reconstruct the transaction authorization, and maintain such authorization in accordance with all Applicable Laws and Rules. Merchant agrees XPaydite is permitted to document and store ACH authorization, including timestamp, Merchant logo and applicable ACH credentials (“ACH Authorization”).  Merchant shall provide ACH Authorization to XPaydite upon request.

      9.4 Disclaimer. EXCEPT AS PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THE PARTY IS ADVISED OF THE PURPOSE), ACCURACY, TITLE, AND/OR NON-INFRINGEMENT.

10. INDEMNIFICATION

      10.1 XPaydite Indemnification. XPaydite will defend, hold harmless, and indemnify, at its expense, Merchant, its Affiliates, and its and their officers, directors, employees, agents, successors, and assigns from and against any third-party cause of action, claim, suit, proceeding, or regulatory action brought against any such indemnified Party (“Claim”) and the associated damages, liabilities, and losses of such third party finally awarded by a court of competent jurisdiction or agreed to in settlement pursuant to Section 10.3 (“Losses”) to the extent arising from: (a) any actual or alleged infringement or misappropriation by the XPaydite Platform of the Intellectual Property Rights of a third party; or (b) a breach of this Agreement by XPaydite except in instances where such breach is caused in whole, or part, by Merchant’s gross negligence or willful misconduct. 

      10.2 Merchant Indemnification. Merchant will defend, hold harmless, and indemnify, at its expense, XPaydite, its Affiliates, and its and their officers, directors, employees, agents, successors, and assigns from and against any Claims and Losses to the extent arising from: (a) any actual or alleged infringement or misappropriation by the Products or Product Information of the Intellectual Property Rights of a third party; (b) a breach of this Agreement by Merchant; (c) a breach by Merchant of its contractual obligations to Buyers; or (d) the sale or delivery of a Product or any use of the Product by a Buyer.

      10.3 Conditions. Each Party’s obligations under Sections 10.1 and 10.2 above are conditioned upon the indemnified Party: (a) notifying the indemnifying Party in writing promptly after the indemnified Party becomes aware of any Claim, provided that the failure to so notify will not affect the indemnifying Party’s obligations hereunder unless, and then only to the extent that, the indemnifying Party has been actually prejudiced thereby; (b) tendering sole control over the defense and settlement of any Claim to the indemnifying Party, provided that the indemnifying Party will not agree to any settlement without obtaining the indemnified Party’s prior written consent if such settlement involves injunctive or equitable relief affecting the indemnified Party, requires admission of liability by the indemnified Party, or requires payment of any amount by the indemnified Party; and (c) reasonably cooperating, in good faith, in the defense of any Claim.

      10.4 Additional Remedies. Should any of the indemnifying Party’s products or services become, or in the indemnifying Party’s opinion are highly likely to become, the subject of any Claim based on the infringement or misappropriation of Intellectual Property Rights, the indemnifying Party may, at its option: (a) obtain the right for the indemnified Party to continue using (or offering to sell or selling, if applicable) said products or services; (b) replace or modify the products or services with substantially similar products or services so that they are no longer infringing or to reduce the likelihood that they will be determined to be infringing; or (c) if neither of the foregoing options is commercially reasonable, terminate this Agreement.

      10.5 Exceptions. The indemnifying Party will have no obligations or liability for any Claim or Losses to the extent arising from: (a) the indemnified Party’s gross negligence or willful misconduct, (b) the indemnified Party’s breach of this Agreement; (c) products or services of the indemnifying Party that have been modified by any party other than the indemnifying Party without the latter’s authorization if the Claim or Losses would not have arisen but for such modification; (d) the indemnified Party’s use of the indemnifying Party’s products or services in conjunction with equipment, hardware, devices, software, systems, or data not provided by the indemnifying Party, if the Claim or Losses would not have arisen but for the use of such equipment, hardware, devices, software, systems, or data; or (e) in the case of XPaydite as the indemnifying Party, the failure of Merchant to install upgrades or patches provided by XPaydite at no additional cost, if such upgrade or patch would have removed the condition, or conditions, leading to the Claim or Loses.

11. LIMITATIONS OF LIABILITY

      11.1 Disclaimer of Consequential Damages. EXCEPT WITH RESPECT TO A PARTY’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY, NOR THEIR RESPECTIVE LICENSORS OR AFFILIATES, WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

      11.2 Cap on Liability. EXCEPT WITH RESPECT TO THE PARTIES’ OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION) AND PAYMENTS DUE AS SET OUT IN EXHIBIT A, THE AGGREGATE LIABILITY OF EITHER PARTY, OR ITS LICENSORS, TO THE OTHER PARTY ARISING IN CONNECTION WITH THIS AGREEMENT AND/OR ITS SUBJECT MATTER, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE, AND/OR OTHER TORT, WILL IN NO EVENT EXCEED THE TOTAL AGGREGATE AMOUNT OF FEES PAYABLE TO XPAYDITE UNDER THIS AGREEMENT IN THE 3 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH LIABILITY FIRST ARISES. 

      11.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY XPAYDITE TO MERCHANT AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

12. CONFIDENTIAL INFORMATION

      12.1 Confidentiality Obligations. Neither Party will use the other Party’s Confidential Information other than as necessary to perform its obligations or exercise its rights under this Agreement. Each Party will take all reasonable steps to prevent unauthorized disclosure or use of the other Party’s Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorized persons. Neither Party will disclose Confidential Information of the other Party to any person or entity other than its officers, employees, Affiliates, consultants, and other agents and representatives who need access to such Confidential Information in order to achieve the intent of this Agreement and who are bound to confidentiality obligations sufficient to enable the receiving Party to otherwise comply with its confidentiality obligations under this Agreement. The receiving Party must notify the disclosing Party promptly upon discovery of any unauthorized access, use or disclosure of the disclosing Party’s Confidential Information, but in no event later than 48 hours following the receiving Party’s discovery of the unauthorized access, use or disclosure and the receiving Party will cooperate with the disclosing Party in every reasonable way to help the disclosing Party regain possession of the Confidential Information and prevent its further unauthorized access, use or disclosure.

      12.2 Exceptions. Notwithstanding the foregoing, the obligations set forth in this Section 12 will not apply with respect to any information to the extent that it is: (a) already in the possession of the receiving Party without restriction prior to the first disclosure hereunder as shown by records or files; (b) already part of the public knowledge or becomes part of the public knowledge after the time of disclosure other than as a result of any improper action by the receiving Party; (c) approved for public release by the disclosing Party; (d) required to be disclosed by applicable legal authority, provided that, if practicable and permitted by applicable law, adequate notice and reasonable assistance is given by the receiving Party to the disclosing Party for the purpose of enabling the disclosing Party to prevent and or limit the disclosure; or (e) independently developed by either Party without use of the Confidential Information from the disclosing Party. In addition, except for Buyer Data, either Party may disclose information concerning this Agreement and the transactions contemplated hereby, including providing a copy of this Agreement, to potential acquirers, mergers, investors and their personnel, attorneys, auditors and investment bankers, solely in connection with the due diligence review, provided that such disclosures are made pursuant to confidentiality obligations sufficient to enable the receiving Party to otherwise comply with its confidentiality obligations under this Agreement.

      12.3 Other Confidentiality Obligations. The Parties acknowledge that each has received, and in the future will receive, from third parties confidential or proprietary information subject to a duty on such Party’s part to maintain the confidentiality of the information and to use it only for certain limited purposes. The Parties owe each other and these third parties, during and after the Term, a duty to hold this confidential and proprietary information in the strictest confidence and not to disclose it to any person or entity, or to use it except as necessary to meet its obligations pursuant to this Agreement consistent with the disclosing Party’s agreements with these third parties.

13. DISPUTE RESOLUTION

      13.1 Arbitration. The Parties agree to submit any dispute, controversy, or claim arising out of or in connection with this Agreement, including any question regarding this Agreement's formation, existence, validity, enforceability, performance, interpretation, breach, or termination to arbitration administered by the International Center for Dispute Resolution in accordance with its International Arbitration Rules. The place of the arbitration will be in San Francisco, California, U.S.A. The language to be used in the arbitral proceedings will be English and all documents not in English will be accompanied by a translation into English. The arbitral tribunal will be comprised of three arbitrators, where each Party will appoint an arbitrator, and the two arbitrators so appointed will appoint a third arbitrator who will act as president of the tribunal. If the two arbitrators to be appointed by the Parties fail to agree upon a third arbitrator within 30 days of the appointment of the second arbitrator, the third arbitrator will be appointed by the International Center for Dispute Resolution at the written request of either Party. If either Party fails to appoint an arbitrator within 30 days after receiving notice from the other Party of the appointment of an arbitrator and of the matter in dispute to be dealt with, then the matter will be decided solely by the arbitrator then appointed. The prevailing Party will be entitled to recover reasonable attorneys’ fees and costs in addition to such other relief as the arbitral tribunal may award. All arbitration information including the existence of the arbitration, any submission or document submitted in connection with and during the arbitration, any oral submissions or testimony, transcripts, or any award unless disclosure is required by law or is necessary for permissible court proceedings, such as proceedings to recognize or enforce an award, will be confidential and Parties will not disclose to any person, other than those necessary to the arbitration proceedings. Absent agreement of the Parties, the arbitral tribunal will determine the procedural rules applicable to the arbitration, including rules related to the taking of evidence. Any award issued by the arbitral tribunal will be final and binding. By agreeing to arbitrate under this Agreement, the Parties waive all recourse or rights of appeal from a final award of the arbitral tribunal insofar as such waiver is legally permissible. Notwithstanding anything to the contrary in this Section, before the arbitral tribunal is constituted, each Party, for the sole purpose of seeking conservatory or interim measures, including temporary restraining orders or preliminary injunctions, or their equivalent, will have recourse to a state or federal court located in San Francisco, California, U.S.A.

      13.2 Governing Law; Attorneys’ Fees. This Agreement and all disputes, claims, or controversies arising out of or in connection with this Agreement, including any question regarding its formation, existence, validity, enforceability, performance, interpretation, breach, or termination will be governed by and construed in accordance with the substantive local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. In the event of any litigation between the Parties, the prevailing Party will be entitled to recover reasonable attorneys’ fees and costs in addition to such other relief as the court may award.

      13.3 Equitable Remedies. Each Party acknowledges and agrees that, due to the unique nature of Intellectual Property, licenses, and Confidential Information, there may be no adequate remedy at law for any breach or threatened breach of a Party’s obligations related thereto, that any such breach or threatened breach may allow the defaulting Party or third parties to unfairly compete with the non-defaulting Party resulting in irreparable harm to the non-defaulting Party, that any such breach or threatened breach would cause irreparable harm to the non-defaulting Party, and, therefore, that upon any such breach or threatened breach, in addition to any other remedies at law or in equity that the non-defaulting Party may have, the non-defaulting Party is entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance.

      13.4 Exclusive Jurisdiction. In the event of dispute, controversy, or claim arising out of or in connection with this Agreement, each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in San Francisco, California, U.S.A., and agrees that service of process to the Party’s address set forth on the signature page to this Agreement (as may be updated from time-to-time by written notice to the other Party in accordance with Section 14.4 below) will constitute effective service of process. Each party expressly waives the applicability of the forum non conveniens doctrine as to the forum and venue selection process.

14. GENERAL

      14.1 Relationship of Parties. Except as otherwise expressly set forth in an exhibit to this Agreement, the relationship between XPaydite and Merchant is that of independent contractors. 

      14.2 Subcontracting. The rights, duties, and obligations of XPaydite pursuant to this Agreement may be exercised or performed by XPaydite, any of XPaydite’s Affiliates, or any of their respective subcontractors and agents. All liabilities arising under or as a consequence of this Agreement, whether arising from the acts or omissions of XPaydite, any of XPaydite’s Affiliates, or any of their respective subcontractors and agents, will be solely those of XPaydite and not those of any of XPaydite’s Affiliates or any of their respective subcontractors or agents. 

      14.3 Force Majeure. A Party temporarily will be excused from any delay or failure in performance due to any acts of God, natural disasters, an epidemic or pandemic, war, acts of terrorism, embargoes, strikes, revolutions, lack or failure of transportation facilities, lack or failure of public utilities, lack or failure of banking or communication systems, third-party networks or systems, imposition of foreign exchange controls, laws or regulations, or any other cause that is beyond such Party’s reasonable control (each, a “Force Majeure Event”). For the avoidance of doubt, obligations hereunder, in no event, will be excused permanently but will be suspended only until the cessation of the Force Majeure Event. Such Party will use commercially reasonable efforts to cure any failure or delay resulting from the Force Majeure Event and will timely advise the other Party of such efforts. If such failure or delay continues for more than 30 days, the performing Party, with no less than 15 days’ prior written notice, may terminate this Agreement.

      14.4 Notices. All notices and other communications as per the final signed agreement

      14.5 Assignability. Neither this Agreement nor any rights, duties, or obligations under this Agreement may be assigned or otherwise transferred by either Party, in whole or in part, without obtaining the express prior written consent of an authorized officer of the other Party, except in connection with an assignment or transfer to an Affiliate or in connection with a merger, acquisition, change of control or sale of all or substantially all of the assignor’s assets and/or capital stock or ownership interests (“Transfer Event”); provided that, in connection with any Transfer Event, the assignor will provide advance written notice of such Transfer Event to the other Party as early as reasonably possible. The Parties acknowledge that an assignment effected in accordance with this Section 14.5 will not entitle the assignor, the assignee, or their respective successors and assigns to terminate this Agreement and that this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.

      14.6 Applicable Laws. Each Party will comply with all Applicable Laws and Rules in connection with its performance under this Agreement. Merchant is solely responsible for complying with all applicable export and import laws in connection with the distribution of Products to, or access or use of Products by, Buyers. Merchant will not export any XPaydite IP to any country outside of the United States without XPaydite’s written authorization. Merchant will not enable any person or entity to access or use the Services that are located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country or that is listed on any U.S. Government list of prohibited or restricted parties.

      14.7 Marketing. Except for any announcement intended solely for internal distribution or any disclosure required by legal, accounting, or regulatory requirements beyond the reasonable control of either Party, all media releases, public announcements, or public disclosures (including promotional or marketing material) by either Party or its employees or agents relating to this Agreement or its subject matter, or including the name, trade name, trademark, or logo of the other Party, are prohibited without the prior written consent of both Parties. Notwithstanding the foregoing, either Party will be entitled to disclose the existence of the relationship formed hereunder between XPaydite and Merchant without the prior written consent of the other Party and XPaydite will be entitled to include Merchant’s name and logo in Merchant lists within XPaydite corporate presentations without prior written consent.

      14.8 Construction; Interpretation; Language. The Parties have had an equal opportunity to participate in the drafting of this Agreement, including all schedules, exhibits, and attachments attached hereto. No ambiguity will be construed against either Party based upon a claim that such Party drafted the ambiguous language. This Agreement is in the English language, which language will be controlling, even if interpretations of this Agreement in other languages are made. The headings appearing at the beginning of sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. References to Merchant and XPaydite will include their respective successors and/or permitted assignees. Any references to recitals, articles, sections, paragraphs, schedules, exhibits, and other attachments are to the recitals, articles, sections, paragraphs, schedules, exhibits, and other attachments to this Agreement. The schedules, exhibits, and other attachments form part of this Agreement and will have effect as if set out in full in the body of this Agreement. A reference to days will mean calendar days and not business days or working days, unless otherwise stated in this Agreement. Any reference to any statute or statutory provision, including any subordinate legislation, includes a reference to that statute or statutory provision as from time to time amended, extended, or re-enacted.

      14.9 Severability. If any provision of this Agreement is determined to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary for this Agreement to remain enforceable.

      14.10 Entire Agreement. This Agreement, together with any schedules, exhibits, or other attachments attached hereto, contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to subject matter hereof. No terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that either Party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties, or obligations of the Parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving Party to object to these terms, provisions, or conditions.

      14.11 Waiver and Amendment. No term or provision hereof will be considered waived by either Party, and no breach excused by either Party, unless such waiver or consent is in writing signed on behalf of the Party against whom the waiver is asserted. No consent by either Party to, or waiver of, a breach to, by either Party, whether express or implied, will constitute a consent waiver of, or excuse of any other, different, or subsequent breach by either Party. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed by both Parties.

14.12 Counterparts and Electronic Signatures. This Agreement may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement. This Agreement may also be executed and delivered by facsimile or other electronic means and such execution and delivery will have the same force and effect of an original document with original signatures.

                                                      EXHIBIT A

ORDER FORM

This Order Form is customized for every merchant and primarily contains services and prices agreed between XPaydite and the Merchant. Multiple order forms can be executed against one agreement.

                                                      EXHIBIT B

PROHIBITED BUSINESSES

By using the Services, Merchant is confirming that Merchant will not use the Services to accept payments in connection with the following businesses, business activities or business practices without XPaydite’s express permission:

• Goods or services that represent a violation of any law, statute, or regulation, or payments related to transactions that encourage, promote, facilitate, or instruct others to engage in illegal activity or stolen goods 
• Selling or providing items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction 
• Any product, service or activity that is deceptive, unfair, predatory, or prohibited by one or more Card brands 
• Potential or actual brand or reputational damaging activities including bestiality, child pornography, escort services, mail order brides, occult, massage      parlors, obscene material, or prostitution
• Items that promote hate, violence, racial intolerance, harassment, or abuse 
• Weapons or related items i.e. guns, gun parts, ammunitions, knives etc.
• Illegal drugs and drug paraphernalia 
• Tobacco products,
• Gaming bots
• Pyramid, Ponzi, or any “get rich quick” scheme
• Any product, service, or activity that is prohibited in a Permitted Country by an applicable Card scheme or an applicable Acquirer or Applicable Laws and Rules.

For a complete list of Prohibited Business or if Merchant is uncertain as to whether a business Merchant wants XPaydite to serve is a Prohibited Business or has questions about how these requirements apply to Merchant, please contact XPaydite.  Prohibited Business categories may be imposed through Applicable Laws and Rules. 

                                                      EXHIBIT C

Additional Terms and Conditions Related to Reseller Services

The additional terms and conditions set forth in this EXHIBIT C shall apply to XPaydite’s agreement to act as the Reseller of Products on Merchant’s Site with respect to transactions processed via the XPaydite Platform and the performance of the Reseller Services by XPaydite pursuant thereto. In the event of any inconsistency or conflict between the Agreement and this EXHIBIT C, the terms, conditions, and provisions of this EXHIBIT C shall govern and control. Any capitalized term used but not defined in this EXHIBIT C shall have the meaning ascribed to such term in the Agreement.

1. Reseller and Reseller Services

The term “Reseller” or “Seller of Record” when used describes additional services to be provided by XPaydite to Merchant. It shall mean that XPaydite will be responsible for creating orders for Buyers on Merchant Site via the XPaydite Platform and making Products available for purchase by Buyers of such Merchant Site via the XPaydite Platform using one or more merchant accounts that XPaydite establishes and maintains with payment method providers, subject in each case to Merchant’s sole responsibility for Product delivery and support in accordance with Section 4 of the Agreement.

As a Reseller, XPaydite or its Affiliates will do the following under aforementioned services: (a) host a paywall/API/widget (or provide other comparable integration methods); (b) establish and manage relationships with applicable payment method providers and/or Acquirers; (c) make the Products available for purchase by Buyers; (d) manage chargebacks, reversals, refunds, and other payment disputes with payment method providers and/or Acquirers; (e) have the exclusive right to set and enforce payment policies, such as velocity limitations, in order to mitigate fraud and manage payment disputes (f) engage in fraud screening and other fraud mitigation measures; (g) provide the terms of service, terms of sale, and privacy policy applicable to end users of the paywall/widget (or other comparable integration method) and transactions made via the XPaydite Platform; (h) on Merchant’s behalf pay the fees, penalties, fines, and interest associated with chargebacks, reversals, refunds, and other payment disputes; (i) address Buyer Transaction Taxes using XPaydite’s tax nexus (as described more fully in Section 5 below of this EXHIBIT C); (j) send consolidated reports to Merchant at the end of each calendar month or other mutually agreed schedule; (k) provide direct end user customer support to Buyers in connection with their use of the XPaydite Platform; (l) email receipts or Buyer Invoice to Buyer; and (m) perform appropriate Buyer screening against the Office of Foreign Assets Control (OFAC) list, including sanctioned countries, denied persons / parties, and specially designated nationals, as required by law (collectively, the “Reseller Services”).

2. Delegation

Merchant acknowledges and agrees that XPaydite’s obligation to act as Reseller on Merchant’s behalf may be performed by XPaydite, its Affiliate or a payment method provider with whom XPaydite has established a merchant account; provided, that: (a) in all cases, XPaydite shall be solely responsible for compliance with all applicable laws, regulations, and standards, including, PCI DSS; and (b) XPaydite remains responsible for the obligations herein and nothing in this Section 2will release XPaydite of any obligations in the Agreement or this EXHIBIT C. Merchant will execute and deliver all applications, assignments, and other documents or instruments reasonably requested by any payment method provider in order to permit XPaydite or such provider to act as the Reseller on Merchant’s behalf.

3. Title Transfer

In connection with transactions in which XPaydite acts as Reseller, title to Products that are tangible goods or consist of tangible media that contain one or more digital copies of Products (e.g., copies of software applications) will remain with Merchant until the XPaydite Platform processes the applicable transaction and issues a purchase order or its equivalent (in electronic form – e.g., an API call) to Merchant, at which time XPaydite purchases from Merchant the digital copy or tangible good that has been sold for no purpose other than to immediately transfer title and ownership or licensed rights to the consumer that purchased the Product. At no time will XPaydite take possession or control of any Product or the tangible media that contain digital copies of any Product, and Merchant shall remain, at all times, solely responsible for the Product delivery and support in accordance with Section 4 of the Agreement. Merchant bears the risk of loss, as well as any other costs associated with the delivery of orders for the Products, including shipping and handling costs, if any.

4. Buyer Disclosures 

As Seller of Record, XPaydite will control the disclosures that are needed in order to notify consumers that XPaydite is the Seller of Record with respect to transactions in which XPaydite acts as Seller of Record (e.g., the XPaydite branding that appears to end users at checkout), including, without limitation, the right to include those disclosures that XPaydite deems necessary or advisable in order to comply with the terms of its agreements with payment method providers or applicable credit card association rules, requirements, and recommendations.

5. Buyer Transaction Taxes

In connection with transactions in which XPaydite acts as Seller of Record, XPaydite will be responsible for determining, calculating, collecting, and remitting to the applicable tax authorities any and all Transaction Taxes (including any sales and use tax, value added tax, goods or services tax, or other similar tax or charge). XPaydite’s obligation to collect and remit Transaction Taxes will be determined, among other things, based on XPaydite’s tax nexus with the applicable jurisdiction, or jurisdictions, as opposed to Merchant’s tax nexus. During and after the Term, XPaydite will indemnify, defend, and hold Merchant and its affiliates, officers, directors, employees, agents, successors, and assigns harmless from and against any and all losses, damages, liabilities, costs, fees, sanctions, penalties, fines, settlements, or expenses (including reasonable attorneys’ fees and expenses) resulting from any claim or allegation that Transaction Taxes was not properly calculated, collected, or remitted to the applicable tax authorities. Merchant, at its sole cost and expense, will take those steps reasonably necessary to assist XPaydite in the preparation of any applicable reports or returns related to Transaction Taxes, as reasonably requested by XPaydite. 

All amounts received or to be retained by XPaydite pursuant to the Agreement are to be free and clear of (and without deduction or withholding for) any Transaction Taxes, withholding tax, duties, fees, commissions, or other withholdings of any kind, and Merchant shall be solely responsible for any such withholdings. To the extent that XPaydite makes, pays, deducts, or withholds any such withholdings (or is required to do the same), XPaydite shall be entitled to receive or retain, as the case may be, such additional amount as will ensure that XPaydite receives or retains the same total amount that it would have received or retained pursuant to this Agreement if no such withholding had been required.

6. Product Pricing

In connection with any transactions in which XPaydite acts as Seller of Record, Merchant shall provide XPaydite with a suggested retail price for each Product to be sold, resold, licensed, sublicensed, issued, distributed, or otherwise made accessible to consumers (each, a “Suggested Retail Price”). In order to ensure full compliance with state, federal, and foreign anti-trust and anti-competition laws and regulations, XPaydite shall have the right to set the list price to consumers of each such Product, which list price may, at XPaydite’ sole discretion, match the Suggested Retail Price; provided, however, that XPaydite will provide Merchant with advance written notice before offering a Product for sale for anything other than the Suggested Retail Price and Merchant then has the opportunity to not use XPaydite as Seller of Record for such Products.

                                                      -- End of agreement --

THIS DRAFT IS FOR REFERENCE PURPOSE ONLY. SOME CLAUSES IN THE FINAL AGREEMENT MAY CHANGE OR NEW CLAUSES MAY BE ADDED BASIS MUTUAL AGREEMENT BETWEEN THE PARTIES. 

For further queries, Merchants can write to info@xpaydite.com