Unless otherwise defined, all capitalised terms used under this General Terms andConditions (the “T&C”) shall bear the same meaning as ascribed to them in the MerchantServices Agreement between the Merchant and the Company (the “Merchant Services Agreement”, together with the “T&C”, collectively the “Agreement”).
1. Services.The Company will provide the Merchant with the Services. Each of the Company and the Merchant will perform and comply with its respective responsibilities set forth under this T&C.
2. Representations and Warranties.Each Party makes each of the following representations and warranties to the other Party, and acknowledges that such other Party is relying on these representations and warranties in entering into theAgreement. A. Authorization.The Party represents and warrants the following (collectively the“Authorization Warranties”), if applicable:
(i) it is an independent corporation duly organized, validly existing and in good standing under the laws of jurisdiction of its incorporation;
(ii) it is properly registered to do business in all the jurisdictions in which it carries on business;
(iii) it has all the licenses, regulatory approvals, permits and powers legally required to conduct its business in each jurisdiction in which it carries on business; and
(iv) it has the power, authority and legal right to execute and perform the Agreement and to carry out the transactions and its obligations contemplated by the Agreement.
B. Validity.Each Party represents and warrants that once duly executed by the Party the Agreement shall constitute valid and binding obligations on the Party, enforceable in accordance with its terms. Except as otherwise stated in the Agreement, no approval or consent of any person or government department or agency is legally or contractually required to be obtained by the Party in order to enter into the Agreement and perform its obligations.
C. No Conflicts.Each Party represents and warrants that neither (a) the execution of the Agreement, nor (b) the consummation by the Party of the Agreement will (i) conflict with the certificate of incorporation or by-laws or any other corporate or constitutional document of the Party; (ii) breach any obligations of the Party under any contract to which it is a party; or (iii) violate Applicable Law.
D. Litigation.Each Party represents and warrants that there is no litigation, proceeding or investigation of any nature pending or, to the Party’s knowledge, threatened against or affecting the Party or any of its Affiliates, which would reasonably be expected to have a material adverse effect on its ability to perform its obligations under the Agreement.
3.Compliance with Law.
A. General.Each of the Parties will comply with Applicable Law in connection with the operation of its business and performance of its obligations under the Agreement. The Merchant will at its own cost, keep such records and do such things as are reasonably necessary to ensure that the Company complies with Applicable Law; provided always that the Merchant shall not be required to do anything which is inconsistent with or in breach of Applicable Law.
B. Anti-bribery and corruption.Each Party agrees to comply with all applicable anti-corruption laws, and will not pay or give, offer or promise to pay or give, or authorize the promise, payment or giving directly or indirectly of any monies or anything of value to any person or firm, including, but not limited to, those employed by or acting for or on behalf of the other Party or its Affiliates for the purpose of inducing or rewarding any favorable action in any matter related to the subject of the Agreement. Each Party agrees to promptly report to the other Party any potential or actual violations of any anti-corruption laws relating to the Agreement of which it obtains knowledge, and cooperate in good faith with the other Party in investigating any such violation.
C. Information Verification.In order for the Company to satisfy its obligations and to comply with the relevant requirements under Applicable Law, upon reasonable request by the Company, the Merchant will share records and information (including the Transaction Information) with the Company from time to time and the Company is authorized by the Merchant to provide the relevant records and information to governmental agencies, regulatory authorities and third party service providers for examination and verification as necessary.
D. AML Requirements.The Merchant shall comply with Applicable Law on anti-money laundering, counter-terrorism financing and sanctions (collectively “AML”). The Merchant shall fully cooperate with the Company’s reasonable due diligence (on site or in writing) of the Merchant’s AML policies and procedures, including but not limited to Merchant management, review of sanctions and politically exposed people, and suspicious Transaction monitoring and reporting.
E. Limitation and Reporting.In accordance with its AML, anti-fraud, and other compliance and security policies and procedures, the Company may impose reasonable limitations and controls on the Merchant’s ability to utilize the Services. Such limitations may include but are not limited to rejecting Payments and/or suspending/restricting any Services with respect to certain Transactions, and/or Merchants. The Company may, for the purposes of complying with the relevant suspicious Transaction reporting requirements under Applicable Law, report suspicious Transactions to the relevant authorities without informing the Merchant. The Merchant shall not sell the Products where such Products contain articles prohibited from being sold to End Users under Applicable Law, including without limitation the products listed in Schedule 1 to the extent applicable.
4. Disclaimer.TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE EXPRESSLY STATED, THE COMPANY DISCLAIMS ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS, IMPLIED, COMMON LAW OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, LICENSEABILITY, DATA ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND USE OF REASONABLE SKILL AND CARE OR THAT THE SERVICES, THE COMPANY’S PLATFORM OR ANY APPLICATION, WEBSITE, PRODUCT PROVIDED OR USED IN CONNECTION WITH THE SERVICES WILL BE ERROR FREE OR OPERATE WITHOUT INTERRUPTION.
5.1. General Indemnity.Subject to Clause 6 below, each Party (the “indemnifying Party”) will indemnify the other Party (the “indemnified Party”) from and against all actions, claims, demands, liabilities, obligations, losses, costs (including, but not limited to legal fees, expenses and penalties) and interest suffered, incurred or sustained by or threatened against the Party (the “indemnifying Party”) will indemnify the other Party (the “indemnified Party”) from and against all actions, claims, demands, liabilities, obligations, losses, costs (including, but not limited to legal fees, expenses and penalties) and interest suffered, incurred or sustained by or threatened against the indemnified Party arising out of any breach or violation of the Agreement by the indemnifying Party or any gross neglect, willful misconduct, fraud or dishonesty by the indemnifying Party or any of its employees or agents.
5.2. Third party IP Indemnity to the Company.The Merchant shall indemnify the Company and its Affiliates from and against all actions, claims, demands, liabilities, obligations, losses, costs (including, but not limited to legal fees, expenses and penalties) and interest suffered, incurred or sustained by or threatened against the Company or its Affiliates arising out of (i) any license the Merchant has granted under Clause 7, (ii) the exercise by the Company or its Affiliates of the rights granted to it in accordance with the Agreement, or (iii) the Merchant’s use of the Services other than in accordance with the terms of the Agreement, which a third party alleges as constituting unauthorized use or infringement of any of its Intellectual Property rights (each an “IP Claim against the Company”).
5.3.Notwithstanding anything to the contrary, nothing under the Agreement shall be construed to exclude or limit the Merchant’s liability in connection with its payment obligations under the Merchant Services Agreement.
5.4.With respect to any indemnity under this Clause 5, the indemnifying entity shall be referred to as the "Indemnifying Entity" and each indemnified entity shall be referred to as the “Indemnified Entity". IP Claims against the Company and any indemnification claims that arise under Clause 5.1 above shall be collectively referred to as the "Indemnification Claims".
5.5. Treatment of the Indemnification Claims.If an Indemnification Claim comes to the notice of an Indemnified Entity –
5.5.1. the Indemnified Entity must notify the Indemnifying Entity in writing as soon as reasonably practicable after becoming aware of the Indemnification Claim and so far as reasonably practical provide details of the nature and amount of the Indemnification Claim;
5.5.2. the Indemnified Entity must, at the Indemnifying Entity’s cost, promptly provide all assistance reasonably requested by the Indemnifying Entity in relation to the Indemnification Claim;
5.5.3. the Indemnified Entity must take all reasonable steps to mitigate the losses, damages, costs and/or expenses incurred by it arising from the Indemnification Claim;
5.5.4. the Indemnifying Entity will have sole control of the defense or settlement of the Indemnification Claim and any related settlement negotiations (albeit with the Indemnified Party having a right to be reasonably consulted and updated), unless the Company and the Merchant jointly own the Intellectual Property rights in the material that is the subject of the Indemnification Claim, in which case, the Company and the Merchant will share the control over the defense of the Indemnification Claim and any related settlement negotiations, unless otherwise agreed between them; and
5.5.5. if, contrary to Clause 5.5.4, the Indemnifying Entity agrees to allow the Indemnified Entity to defend the Indemnification Claim, the Indemnified Entity must comply with the Indemnifying Entity's reasonable directions in relation to the conduct of such defense and must not settle the Indemnification Claim without the Indemnifying Entity's prior written consent.
6. Limitation of Liability.
6.1Notwithstanding anything stated under this Agreement, the Marchant agrees that the Company shall be entitled to recover any reasonable costs, expenses, losses or damages incurred or suffered as a result of the Merchant’s failure to comply with any material term of the Agreement including, but not limited to, any losses incurred by the Company with respect to prohibited Transactions or the Merchant’s failure to provide Transaction information as requested by the Company which causes or has the potential to cause the Company to violate Applicable Laws.
6.2.To the extent permitted under Applicable Law, under no circumstances will the Company or its Affiliates be liable under any theory of tort, contract, strict liability or other legal or equitable theory for lost profits (whether direct or indirect), indirect, incidental, special, consequential or exemplary loss or punitive damages, each of which is excluded by agreement of the Parties regardless of whether such losses and/or damages were foreseeable or whether the Merchant has been advised of the possibility of such damages. Notwithstanding anything in the Agreement to the contrary, other than the Company’s settlement obligations under the Merchant Services Agreement, the Company’s aggregate liability, including for claims, expenses, damages or indemnity obligations under or in connection with the Agreement or the Services, will not exceed the lesser of (a) THB฿10,000 and (b) the total fees payable by the Merchant to the Company for the Services provided in the calendar months (up to six (6) complete calendar months) preceding the date of the first event giving rise to a claim upon which liability is based.
7. Intellectual Property.
7.1Company License to the Merchant. The Company owns or has been granted the appropriate licenses by the relevant owner to use, all right, title and interest in and to the Services, the Company’s Platform and the Company branding and logo, including the rights to all related Intellectual Property. Subject to the terms of the Agreement and, as the case may be, any agreement between the Company and the owner of the relevant Intellectual Property, the Company hereby grants the Merchant during the term of the Agreement, a license to use the relevant Intellectual Property in the Services, the Company’s Platform and the Company branding and logo (it owns or is entitled to use) solely for the purpose of using the Services in accordance with the Agreement. Such license to use the relevant Intellectual Property granted in favor of the Merchant is non-exclusive, non-sublicensable and non-transferrable, and may be modified or revoked by the Company in writing at any time during the term of the Agreement. The Merchant shall be permitted to use the Company's branding and logo solely as required for the purpose of using the Services. The Merchant agrees that the licenses granted under this Clause 7 and the Merchant's use of such Intellectual Property under the Agreement will not confer any proprietary right, and the Merchant agrees to take reasonable care to protect all such Intellectual Property from infringement or damage and cease all use of such Intellectual Property immediately upon termination of the Agreement.
7.2.Merchant License to Company. During the term of the Agreement for the limited purposes of performing the obligations set forth in the Agreement and subject to the terms of the Agreement, the Merchant grants to the Company a non-exclusive, non-transferable and royalty-free license to use, reproduce, publish, distribute and transmit any of the Merchant’s marketing materials, proprietary indicia or other similar items containing the Intellectual Property of the Merchant (the "Merchant IP") necessary for the Company to perform its obligations contemplated by the Agreement and to refer to the name of the Merchant in the public announcement as one of the partners using the Services. The Merchant represents and warrants to the Company that it has obtained all necessary authorities, permissions, approvals and licenses to license the Merchant IP to the Company and that the Merchant IP does not infringe the Intellectual Property of any third party and is (and will be) free from Malicious Code.
8. Data privacyThe Merchant shall be solely responsible, where applicable, for obtaining any necessary consent as may be required under Applicable Law for the collection, use, disclosure and transfer of Personal Information. Each Party will take all commercially reasonable endeavors to ensure that the Personal Information is protected against misuse and loss, or unauthorized access, modification or disclosure and will promptly notify the other Party of any loss of, or any unauthorized disclosure of or access to, the Personal Information. Each Party may retain records of Payments for complying with Applicable Law and internal compliance requirements. “Personal Information” means personal information or data, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or data, processed by either Party in connection with the Agreement. The Company may transfer Transaction data, including Personal Information, to any of its Affiliates that have been delegated any of its obligations under the Agreement.
9. Confidential Information.Each Party acknowledges that the Confidential Information of the other is valuable to it and agrees to treat as confidential all Confidential Information received from the other Party in connection with the Agreement. Neither Party will disclose such Confidential Information to any third party except to its employees, officers, agents, suppliers, advisors who have the need to access the Confidential Information for such Party to perform its obligations under the Agreement or as required by Applicable Law or government authorities, and in each case, the disclosing Party will, to the extent permitted under Applicable Law, give the other Party prior notice of such disclosure. Upon termination of the Agreement or at the written request of the other Party, each Party will promptly return or destroy all material embodying Confidential Information of the other Party. Notwithstanding the foregoing, each Party may retain reasonable copies of the other Party’s Confidential Information to comply with Applicable Law or in order to exercise its rights under the Agreement, provided that such retained Confidential Information will not be disclosed or used for any other purposes. “Confidential Information” means all non-public, proprietary or other confidential information, whether in oral, written or other form, including but not limited to: the content and performance of the Agreement, business plans, capitalization tables, budgets, financial statements; costs, prices, and marketing plans, contracts and licenses, employee, customer, supplier, shareholder, partner or investor lists, technology, know-how, business processes, trade secrets and business models, notes, sketches, flow charts, formulas, blueprints, and elements thereof, and source code, object code, graphical design, user interfaces and other Intellectual Property, including that of any customer, supplier or other third party (including, in the case of the Company, the interface technologies, security protocol and certificate to any other website or enterprise provided by the Company).
10. Publicity.Neither Party will issue any press release or make any public announcement pertaining to the Agreement without the prior written consent of the other Party unless required by Applicable Law binding the Party. Notwithstanding the foregoing, the Merchant agrees that preceding limitation will not be interpreted to prevent the Company from making statements about the Company’s business or about the Services in general in or outside of the jurisdiction where the Merchant locates, including but not limited to identifying the Merchant as a business partner using the Services or making references publicly to the Merchant’s name, logo, trademarks or a general description of the Merchant’s cooperation with the Company for business development purpose.
11. Notice.All notices and other communications given in connection with the Agreement (including changing any terms of the Agreement and, in the case of the Merchant, notification of a change of the Merchant’s legal name) will be in writing, in English/Thai and will be sent either by express courier or facsimile to the respective contact details and addresses provided by the Parties in the Service Application Form. Notice will be deemed to have been received: (i) if sent by express courier, at the time the courier records delivery; and (ii) if sent by facsimile, at the time of successful transmission by the sending Party. Notice given in any other manner will not be deemed to have been received unless acknowledged in writing by the Party receiving the notice. Notwithstanding the foregoing, the Parties agree that email (including email with electronic signature blocks containing the sender’s name) will not constitute valid service of notice to either (i) amend the Agreement; or (ii) notify the receiving Party of any matter which will or may have legal consequences for the receiving Party.
12. Variation.No variation of the Agreement shall be effective unless it is in writing and signed by the Parties (or their authorized representatives). For the avoidance of doubt, the Parties may not vary the terms of the Agreement via email (including email with electronic signature blocks containing the sender’s name).
13. User Dispute Guideline.When an End User initiates with the Company a complaint/dispute relating to such Merchant, the Company and the Merchant shall follow the User Dispute Guideline set forth in Schedule 2, which may be amended and supplemented by the Company from time to time.
14. No Agency.Each Party confirms that it is entering into the Agreement in its own capacity for its own account and is not acting as a nominee or agent of any other third party.
15. Force Majeure.No Party, its Affiliates or agents will be held liable for any default, delay or failure in performing its obligations under the Agreement resulting directly or indirectly from acts of nature, forces or causes beyond such Party’s, its Affiliates’ or agents’ reasonable control, including without limitation, (i) fire, flood, element of nature or other act of God, (ii) outbreak or escalation of hostilities, war, riot or civil disorder, or act of terrorism; (iii) internet failure, computer, telecommunications, electrical power failure or any other equipment failure; (iv) labor dispute (whether or not employees’ demands are reasonable or within the Party’s power to satisfy), (v) act or omission of a government authority prohibiting or impeding the affected Party (or its Affiliates or agents) from performing its obligations under the Agreement, including order of a domestic or foreign court or tribunal, governmental restriction, sanctions, restriction on foreign exchange controls, etc. or (vi) the nonperformance by a third party for any similar cause beyond the reasonable control of the Party (each a “Force Majeure Event”). If a Force Majeure Event occurs, the non-performing Party will be excused from any further performance of the obligations affected by the event only for as long as the Force Majeure Event continues and only to the extent of such Force Majeure Event and the Party continues to use commercially reasonable efforts to resume performance.
16. Costs and Expenses.Except as expressly set forth in the Agreement, each Party will be solely responsible for all costs and expenses incurred by it in connection with providing or receiving the Services.
17. Entire Agreement.This T&C (together with the Merchant Services Agreement, and the documents referred to in it) is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any previous agreements and understandings.
18. Assignment.The Agreement and the rights and obligations of the Merchant to the Agreement may not be assigned, transferred, subcontracted or delegated by the Merchant, by operation of law or otherwise. The Company, in its discretion, can assign or transfer the Agreement or any of the Company’s rights and obligations under the Agreement to any Company Affiliate, or to any third party.
19. No Implied Waiver.The waiver by either Party of a breach or default of any provision of the Agreement by the other Party, or the failure on the part of either Party to exercise any right or privilege will not be construed as a waiver of any subsequent breach or default by the other Party, or as a waiver of any such provision, right, or privilege.
20. Relationship.Nothing contained in the Agreement will be construed as creating a joint venture, partnership, agency, fiduciary or employment relationship among or between the Parties.
21. Severability.If any provision of the Agreement is not enforceable, the remaining provisions remain valid and enforceable.
22. Participation of Company’s Affiliates.The Company may delegate or sub-contract any or all of its obligations under the Agreement to any of its Affiliates, agents or service providers, provided that the Company remains responsible to the Merchant for the performance of its obligations under the Agreement.
23. Third Party Rights.A person who is not a party to the Agreement has no rights under the Contracts (Rights of Third Parties), and Ordinance (or any equivalent legislation under Applicable Law) to enforce any term of the Agreement save that the obligations of the Merchant under the Agreement are owed to the Company’s Affiliates each of whom may enforce the terms of the Agreement against the Merchant.
24. Headings.Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of the relevant section.
25. Language.The Agreement has been prepared in English. In the event of any inconsistency between the original English version and any translation, the English version shall govern.
26. Counterparts.The Agreement may be signed in writing or electronically and in one or more counterparts, each of which will be deemed an original and all of which will together constitute one and the same instrument.
27. Governing Law.The Agreement shall be governed and construed in accordance with the laws of Thailand. Any dispute arising out of or in connection with the Agreement shall be submitted to the exclusive jurisdiction of the court of Thailand.
28. Survival.Upon termination of the Agreement, the respective obligations of the Parties set out in the Agreement will cease other than obligations and rights of the Parties under Clauses 5 to 12 and 14 to 28 of this T&C and those provisions which by their terms are intended to survive any termination (including payment obligations already accrued). Any amounts due and payable by the Merchant shall survive termination and continue to be due and until such amounts are paid in full by the Merchant.