ConnexPay Terms and Conditions
This ConnexPay Payment Services Agreement (“Agreement“) is made on ___________ (the “Effective Date”) between ConnexPay, LLC (“ConnexPay”), having its principal office at 27299 Riverview Center Blvd Suite 104, Bonita Springs, FL 34134 and ________________ (“Client”) having its principal office at ____________________________(each a “Party,” and together, the “Parties”).
WHEREAS: ConnexPay works with a network of partners to allow ConnexPay clients to facilitate payments to suppliers of goods and services (the “Payment Service” as further defined herein) and has partnered with Global Rewards, LLC (“Global Rewards”) to deliver payment services to Global Rewards clients referred to ConnexPay for Payment Services; and
WHEREAS Client is a merchant in good standing and wishes to receive the Payment Service and Client has entered into an agreement for services with Global Rewards for the administration of card payment.
NOW THEREFORE, the Parties hereby agree as follows:
Section 1. Definitions.
For the purposes of this Agreement, the following capitalized terms shall have the meanings set forth below:
Agreement: This agreement and the Application, which is incorporated herein by reference.
AML: policies and procedures relating to the prevention of money laundering and the financing of terrorism.
Anticipated Supplier Liabilities: The amount of Client funds needed to cover Supplier Payment Instruction amounts expected to be paid to Client’s Suppliers as determined by Client from time to time.
Application: ConnexPay’s request for Client information which shall include a statement of Client’s financial condition, a description of the Client’s business or organization, and any other financial, organizational or credit-related information requested by ConnexPay or Member Bank, and provided in a form acceptable to them, which may be updated from time to time.
Card Brand: A payment method provider whose payment method is accepted by ConnexPay for processing, including, but not limited to, Visa, U.S.A., Inc., Mastercard International, Inc., and Discover Financial Services, LLC. Card Brand shall also include the Payment Card Industry Security Standards Council.
Card Brand Rules: The bylaws, operating regulations, rules, policies and procedures as defined by the Card Brands.
Client Account: The Collection Account and/or the Operating Account.
Collection Account: A subledger account established on behalf of Client within a bank account in the name of the Member Bank, each created for the purpose of settling funds associated with the Payment Services in this agreement.
Confidential Information: The confidential information of Party, including (i) any data or information that is a trade secret or competitively sensitive, any commercial, marketing, technical or other information relating to the business activities of the Parties; (ii) any other information made available to a Party by another Party which would reasonably be understood to be confidential, whether or not such information is reduced to a tangible form or marked in writing as “confidential”, such as, information included in Client’s Application; and (iii) any and all information which has been or which may be derived or obtained from any of the information detailed in (i) or (ii).
Data Incident: Any suspected or actual unauthorized access, disclosure, theft, or unauthorized use of Personal Data.
Fees: The fees set forth on Exhibit A and any additional Exhibits describing optional services and pricing, where elected by Client.
Force Majeure Event: Force Majeure Event: Forces beyond the reasonable control of a Party including, without limitation, labor disputes, fire, weather or other casualty or natural catastrophes or acts of God, power outages, however caused, governmental orders or regulations, acts of war or terrorism, civil or military disturbances, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware,) or any other cause, whether similar or dissimilar to the foregoing, beyond the Parties’ reasonable control.
Issuing Bank: A financial institution licensed by a Card Brand to sponsor third-party organizations to issue Issued Cards on behalf of the Client to Suppliers.
Issued Card: A virtual card provided by ConnexPay to Client as part of the Payment Service.
KYC: policies and procedures to verify the identity, suitability, and risks involved with maintaining a business relationship with a particular customer, including but not limited to review against OFAC Sanctions Lists.
Laws: The laws, rules, or regulations of a governing body with authority over a Party, the Card Brand Rules and PCI-DSS.
Member Banks: Issuing Bank or other Partner bank providing bank accounts for purposes of delivering the Payment Services, as jointly referenced.
Minimum Cash Balance: The cash balance which is required to be retained in the Collection Account in an amount equal to ConnexPay’s estimate of potential liability arising from Client’s Supplier Payment Instructions prior to receiving payment from the Client.
Operating Account: A checking or similar account established in Client’s name, held at a regulated financial institution acceptable to ConnexPay and which ConnexPay, or its agent is authorized to access via the ACH system (or a suitable alternative) for the purposes of transferring Client funds.
Partners: Member Banks and third-party service providers engaged by ConnexPay for the provision of the Payment Service, including, but not limited, to Card Brands.
PCI-DSS: The Payment Card Industry Data Security Standard.
Personal Data: Information that can be used to identify, locate, or contact an individual, alone or when combined with other personal or identifying information.
Rebate: The monthly rebate based on interchange rates.
Reporting: An accounting of (i) all deposits into the Collection Account, (ii) all Fees and any Rebates related to the Payment Services, (iii) any liabilities or expenses settled from a Client Account and (iv) any liabilities or expenses which remain outstanding, as documented and made available by ConnexPay via the ConnexPay online portal and, monthly, in invoices.
Secured Assets: shall have the meaning ascribed to the term in Section 9 of this Agreement.
Secured Obligations: shall have meaning ascribed to the term in Section 9 of this Agreement.
Supplier: A third-party supplier of the goods or services to whom Client makes payments via Issued Cards under this Agreement.
Supplier Payment Instructions: Instructions for payment via Issued Cards or otherwise issued by a Client under this Agreement for the distribution of funds from the Collection Account to Suppliers, provided in a manner acceptable to ConnexPay.
Taxes: Any applicable taxes and other fees, charges, penalties, interest, and other additions thereto levied by a governmental body with authority over Client, ConnexPay or its Partners, the Payment Service, or over any funds transferred under this Agreement.
Vendor: A third-party service provider (other than ConnexPay or its Partners) used by Client in connection with the Payment Service received hereunder, including but not limited to, Client’s software providers, equipment providers, and/or third-party payment processors, or gateways.
Other capitalized defined terms in this Agreement shall have the meaning ascribed to them herein.
Section 2. Payment Services.
1. ConnexPay Obligations: ConnexPay shall, directly or through its network of Partners:
a. establish a Collection Account at Member Bank on behalf of Client;
b. accept Client funds into the Collection Account;
c. accept client instructions from the Global Rewards Platform, as defined in 2.2(b) below, so that Client may cause Issued Cards to be issued in amounts solely determined by Client;
d. cause funds in the Collection Account to be remitted to Suppliers in accordance with Client’s Supplier Payment Instructions;
e. upon instruction from Client refund cancelled Issued Card amounts from the Collection Account back to the Operating Account;
f. settle (i.e., debit via ACH from the Collection Account) Fees, liabilities and expenses in accordance with the Agreement; and
g. provide timely Reporting to Client.
2. Client Obligations.
a. Client shall:
i. complete and maintain the Application with complete and accurate information and promptly notify ConnexPay in writing of any change to the Application on file. Client agrees that ConnexPay or Member Bank may utilize third parties to confirm and verify the information provided on the Application. ConnexPay and Member Banks shall be entitled to rely on the information in the Application (including as updated from time to time) to set up and administer the Payment Services and Acquiring Services to Client and for compliance purposes. Client shall cooperate in good faith to provide any and all information requested by ConnexPay or Member Banks for the duration of the Agreement;
ii. notify ConnexPay in writing within three (3) days of any judgement, writ, warrant of attachment, execution or level against twenty-five percent (25%) or more of Client’s assets;
iii. designate the Client Operating Account and enable access by ConnexPay and Member Bank for the limited purposes described in this Agreement;
iv. actively monitor the Collection Account and maintain a balance adequate to fund all Supplier Payment Instructions, as set forth in Section 5(2)(b) below;
v. for each purchase by a consumer of Supplier goods and/or services, request an Issued Card and direct the disbursement of funds in the Collection Account with corresponding Supplier Payment Instructions;
vi. review the Reporting and the Client Accounts on a daily basis and immediately notify ConnexPay of any discrepancy regarding the Payment Service; and
vii. use the Payment Service only (i) for business or commercial purposes and not for personal, family, household or other non-business purposes; (ii) to issue Issued Cards for identifiable goods and services in sanctioned counties and only to non-sanctioned organizations and individuals. Issued Cards may not be issued in exchange for cash or its equivalent including, for example, cryptocurrency or value loaded cards (unless value loaded Issued Cards are for a specific merchant/retailer. Client shall immediately inform ConnexPay of an occurrence or the likelihood of an occurrence pursuant to which the carrying out of its business is likely to be considered unlawful under applicable laws.
b. Client has a separate contract for services with Global Rewards which provides client with a user interface through which Client may access Payment Services (the “Global Rewards Portal”). Client shall issue payment instructions to ConnexPay via the Global Rewards Portal. ConnexPay is not responsible for, and Client shall not make a claim arising from, any delay, inaccurate information or other failure or errors caused by the Global Rewards Platform.
Section 3. Intentially Omitted.
Section 4. Audit Rights.
To the extent applicable to Client’s business model upon request, Client shall grant ConnexPay (and/or a third-party auditor under acceptable confidentiality obligations, on ConnexPay’s behalf) permission to audit, examine, or review relevant books and records solely to verify compliance with the terms and conditions of this Agreement, including but not limited to Client’s AML/KYC practices. Each audit will be pre-scheduled in writing with Client reasonably in advance and for a mutually agreeable time period, and, except in the case of a good faith belief by ConnexPay of a material breach of this Agreement by Client, will be performed no more than once each calendar year. Each Party shall bear its own expenses in connection with an audit and both Parties shall be entitled to a copy of the audit findings. All information obtained during any such audit shall be deemed Confidential Information hereunder.
Section 5. Establishment and Use of Client Accounts.
1. Client expressly authorizes ConnexPay and/or Member Bank to establish a Collection Account on its behalf. Federal law requires all financial institutions to obtain, verify, and record information that identifies each person or business entity that establishes an account. Client shall provide the Member Bank with Client’s legal entity name, principal and local (if different) address, date of establishment, employer identification number and other information and any other documentation reasonable requested by Member Bank from time to time. Client agrees that Member Bank may seek information about Client from third parties for KYC purposes and for other Client Account related purposes.
2. Client shall fund the Collection Account in a manner approved by ConnexPay as follows:
a. Prefunding: Client shall prefund the Collection Account in the amount necessary to cover all Anticipated Supplier Liabilities. ConnexPay shall not be required to fulfill all or part of any Supplier Payment Instructions if adequate funds are not available in the Collection Account to complete the payment in full. Clients using prefunding shall not direct ConnexPay or its Partners to distribute funds to any Supplier in excess of the amount then held in the Collection Account.
b. Funding on Settlement: At ConnexPay’s sole discretion, in lieu of prefunding, Client may fund the Collection Account upon settlement. Settlement activity will be made available daily to Client via the ConnexPay portal and via email. For purposes of this Section 5(2)(b), Client shall, at all times, maintain a Minimum Cash Balance and shall fund the Collection Account in an amount equal to the settlement activity each day.
3. Client shall not direct ConnexPay to distribute or utilize funds in the Collection Account for any purpose other than providing the Payment Service.
4. Except as set out in this Agreement, Client shall not convey, pledge or assign any interest in the funds held in any Collection Account except as expressly authorized in advance in writing by ConnexPay. Any attempted conveyance pledge or assignment of the Client interest in funds in the Collection Account without ConnexPay’s prior written authorization, shall be deemed null and void.
5. Client shall not be entitled to collect interest on any funds held in the Collection Account.
Section 6. Sufficiency of Funds.
1. If the funds in the Collection Account are insufficient to satisfy the Supplier Payment Instructions, ConnexPay, or its Partners, shall be entitled to: (i) debit a Client Account in an amount equal to any deficiency; and/or (ii) request payment from Client for funds necessary to satisfy Supplier Payment Instructions.
2. Client expressly authorizes ConnexPay and/or Member Bank to debit any funds due to ConnexPay or its Partners under this Agreement from the Client Accounts, including but not limited to, any Fees, fines, penalties, Taxes, or other costs incurred by ConnexPay or its Partners on Client’s behalf, or imposed directly upon Client by a Partner. Such authority shall remain in effect for a period of 180 days following the later occurring of (i) final delivery of the goods and services that are the subject of the Issued Cards, or (ii) termination of this Agreement.
Section 7. Compensation.
1. Compensation for the Payment Services to Client is set forth in the Agreement between Global Rewards and ConnexPay wherein ConnexPay is entitled to deduct its fees and other processing costs from interchange earned on transactions processed under this Agreement. Any remaining Rebate shall be paid by ConnexPay to Global Rewards directly. Rebates to be paid to Client shall be determined by Client and Global Rewards pursuant to the agreement between and Client and Global Rewards and Client shall bring any claims or disputes that arise as a result of Global Rewards distribution of payments to Clients directly against Global Rewards.
2. Client shall be responsible for its own direct and indirect costs in connection with and/or related to (i) Client’s initial connection to the ConnexPay system or a Partner’s system; (ii) receipt of the Payment Service; or (iii) Client’s conversion from ConnexPay upon the termination or expiration of this Agreement.
Section 8. Term and Termination.
1. This Agreement shall be effective as of the Effective Date and shall continue for a period of three (3) years (the “Initial Term”), after which it shall automatically renew for successive one (1) year periods (each, a “Renewal Term”), unless either Party provides written notice of its intent not to renew ninety (90) days prior to the expiration of the then-current Renewal Term.
2. ConnexPay may suspend or terminate any or all of the Payment Services where any of the following occur (each a “Event of Default”):
a. Client is in breach of its representations, warranties or obligations under this Agreement;
b. ConnexPay knows or reasonably suspects that fraud has occurred, is occurring, or is likely to occur with regard to Client or the Payment Service;
c. Client is holding insufficient funds in the Client Accounts to settle its obligations under this Agreement, is over-indebted or is otherwise unable to, or fails to or is likely to fail to, meet its financial obligations under this Agreement;
d. Client or the Supplier Payment Instructions are in violation, or reasonably likely to be in violation, of applicable Laws;
e. ConnexPay receives an instruction from Member Bank to suspend or terminate all of the Services;
f. Client becomes subject to any voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding, which involuntary proceeding is not dismissed or stayed within thirty (30) days, or a receiver is appointed for Client, or Client makes an assignment for the benefit of creditors, or admits its inability to pay its debts as they become due; or
g. Client commences a dissolution or the winding up of business or ceases to do business.
3. Where an Event of Default occurs, ConnexPay shall be entitled to continue any such suspension until the Event of Default has been resolved to ConnexPay’s satisfaction.
4. If ConnexPay determines that (i) an Event of Default cannot be or has not been cured within a reasonable time; or (ii) termination is required by applicable Law, the Card Brands or ConnexPay’s Partners for any reason; then ConnexPay may terminate the Agreement immediately upon written notice.
5. Client may terminate this Agreement for cause upon written notice if ConnexPay is in breach of its obligations, representations or warranties under this Agreement, and fails to cure such breach within thirty (30) days of written notice of breach by Client.
Section 9. Security Interest.
1. Grant of Security Interest. Client hereby grants a first priority lien and security interest in and to any Collection Account and all funds, deposits and proceeds at any time held in the Collection Account (the “Secured Assets”), whether now or hereafter existing or arising, to secure any and all amounts at any time due or owing to ConnexPay and ConnexPay’s Partners, including, without limitation, as follows: (i) to Member Bank in an amount equal to any outstanding payments issued in accordance with the Supplier Payment Instructions which have not been settled; and (iii) to ConnexPay for any unpaid Fees, penalties, chargebacks, losses, liabilities fines or other amounts which may become due under this Agreement other than those amounts in Sections (i) and (ii) herein. (All rights set forth here in Section 9(a), together, the “Secured Obligations”).
2. Representations and Warranties. Client represents and warrants that no other person or entity has a security interest in the Secured Assets. Client agrees that ConnexPay and Member Bank shall have all rights afforded under the Uniform Commercial Code, any other applicable law, and in equity with regard to the Secured Assets and the Secured Obligations. Client must obtain ConnexPay’s written consent prior to granting a security interest of any kind in the Secured Assets to a third party. ConnexPay and Member Bank may enforce these security interests without notice or demand. ConnexPay and Member Bank’s interest in the Secured Assets shall survive termination of this Agreement until all obligations to ConnexPay and Member Banks are satisfied.
3. Information and Perfection of Security Interest. Upon request of ConnexPay or Member Banks, Client will provide one or more financial statements, outside bank account information, or other financial documents requested under this Section 9. Client acknowledges ConnexPay’s security interest in the Secured Assets, including the funds, deposits and proceeds held in the Collection Account and that ConnexPay has, and at all times during the term of this Agreement, exclusive access to and control of the Collection Account. Client shall timely cooperate with ConnexPay in obtaining any control agreement or similar agreement with a depository bank necessary or desirable to perfect or better perfect the security interests and liens granted herein. In addition, Client agrees that its signature on this Agreement is an acknowledgement and evidence of ConnexPay’s control over the Secured Assets and will be considered Client’s signature agreeing to any control agreement as defined in Article 9 of the Uniform Commercial Code among Client, ConnexPay, and Member Banks without further consent by Client.
4. Bankruptcy Matters. Client agrees that ConnexPay and Member Bank are not required to file a motion for relief from a bankruptcy action automatic stay to realize on any of the Secured Assets or effectuate any recoupment. Client further agrees not to contest or object to any motion for relief from any such automatic stay filed by ConnexPay or Member Bank.
5. Set-off and Recoupment. ConnexPay and Acquiring Bank shall have the right of recoupment and set-off such that Acquiring Bank or ConnexPay may offset and recoup any outstanding or uncollected amounts owed to Acquiring Bank, or ConnexPay (or its Partners), from any amounts owed to Client that ConnexPay or Acquiring Bank would otherwise be obligated to deposit into the Operating Account.
Section 10. Representations and Warranties.
1. Client represents and warrants
a. that the business carried on by the Client is a legitimate, lawful business and Client is not engaged, and will not engage, in any conduct or transaction which may be considered unlawful according to applicable law;
b. that is has and shall maintain an AML/KYC program appropriate to its business which program can be demonstrated and audited;
c. it will use the Payment Services in accordance with the terms of the Agreement and Applicable Law
d. it will not do nor omit to do anything which is disreputable, or which is capable of damaging the reputation or goodwill of ConnexPay or a Card Brand;
e. as of the Effective Date, it is in good financial standing and able to perform its obligations under this Agreement.
2. Each Party represents and warrants that
a. It complies with all Applicable Laws;
b. that it has all necessary power and authority to enter into this Agreement and has and will maintain all certificates, licenses, authorizations and approvals, to perform all of their respective obligations required under this Agreement and applicable Law; and
c. that there is no claim, or any litigation, proceeding, arbitration, investigation or material controversy pending, against or affecting it that will have a material adverse effect on its ability to perform its obligations under this Agreement. To the best of its knowledge, no such claim, litigation, proceeding, arbitration, investigation or material controversy has been threatened or is contemplated against it.
3. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, CONNEXPAY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT HEREBY ACKNOWLEDGES THAT THERE ARE RISKS ASSOCIATED WITH THE ACCEPTANCE OF CARDS AND CLIENT HEREBY ASSUMES ALL SUCH RISKS EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN.
Section 11. Limitation of Liability.
1. No Party shall be liable to any other Party for indirect, special, incidental, punitive or consequential damages of any kind or nature whatsoever arising from or related to this Agreement, including without limitation loss of business, lost profits or lost goodwill and whether based on breach of any express or implied warranty, breach of contract, tort (including negligence) or strict liability, regardless of whether the Party has been advised of the possibility of such damage or if such damage could have been reasonably foreseen.
2. Except for (i) Party’s financial obligations to another Party under this Agreement; (ii) a breach of a Party’s compliance with applicable Laws; or (iii) a Party’s indemnification obligations as provided herein, the maximum liability for Client, and the maximum cumulative liability for ConnexPay and its Partners, shall not exceed the Fees paid in connection with the provided Payment Services within the twelve (12) months prior to the claim having arisen.
3. Client agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Payment Services or to this Agreement, must be filed within twelve months after such claim or cause of action arose or be forever barred. To avoid any doubt, Client agrees that the rights conferred upon ConnexPay in this Agreement are not intended to be exclusive of each other or of any other rights and remedies of ConnexPay under this Agreement, at law or in equity. Each and every right of ConnexPay under this Agreement, at law or in equity is cumulative and concurrent and in addition to every other right.
Section 12. Indemnification.
1. Subject to the other limitations, terms and conditions of this Agreement, ConnexPay shall indemnify, defend, and hold harmless Client, and its directors, officers, employees, affiliates and agents from and against all third-party proceedings, claims, losses, and damages incurred by Client, its directors, officers, employees, affiliates and agents to the extent resulting from or arising out of ConnexPay’s negligence, willful misconduct, any Data Incident occurring on systems under its control, or breach of its representations under Section 10.
2. Client shall indemnify, defend, and hold harmless ConnexPay and each of their directors, officers, employees, affiliates and agents from and against all third party proceedings, claims, losses, damages and all reasonable collection costs, incurred by ConnexPay, its directors, officers, employees, affiliates and agents resulting from or arising out of Client’s negligence, willful misconduct, any Data Incident occurring on systems under its control, or breach of its representations under Section 10 or breach of Section 2.2(g).
3. The indemnification of each party shall survive the termination of the Agreement. The indemnified Party shall (i) provide prompt written notice of any claim to the indemnifying Party; (ii) cooperate with all reasonable requests of the indemnifying Party; and (iii) surrender exclusive control of the defense and settlement of any third party claim to the indemnifying Party provided that the indemnifying party will obtain the indemnified Party’s written consent prior to agreeing to any settlement or agreement that requires the indemnified Party to make any admission of fault or to pay any amounts in connection with such settlement or agreement that are not fully paid for by the indemnifying Party. The indemnified Party shall not unreasonably withhold or delay any consent required under this Section. The indemnified Party may elect to participate in the action with an attorney of its own choice at its own expense.
Section 13. Confidentiality.
1. The recipient of Confidential Information (“Recipient”) shall take care to prevent the publication and distribution of the Confidential Information with at least the same degree of care which the Recipient takes to protect its own confidential information of a similar nature, but in any case, no less than an appropriate and reasonable degree of care. Parties shall be permitted to disclose Confidential Information to those of its subsidiaries, affiliates, Partners, Suppliers, and lenders who are informed of the confidential nature of the information and have agreed to be bound by confidentiality obligations at least as stringent as those under this Agreement, including, but not limited to, disclosure and/or utilization of Confidential Information:
a. when necessary to perform the Payment Service;
b. when required by law;
c. to solicitors, barristers, attorneys, accountants, or other professional advisers; and
d. to bankers or other financial institutions, to the extent required for the purpose of raising funds or maintaining compliance with credit arrangements.
2. The obligations of this Section 13 shall not apply to:
a. information in the public domain, except where such information entered the public domain due to a breach of this Section 13; and
b. the existence of the Agreement and use of the Client’s name and/or logo for purposes of media releases, customer references and public announcements.
3. The obligations of this Section 13 will remain in full force and effect after the termination or expiration of this Agreement.
Section 14. Use of Marks.
Client agrees that ConnexPay may use Client’s name, trademarks, service marks, or other commercial or product designations in ConnexPay press releases and in ConnexPay promotional or marketing materials provided, however, that prior to use, ConnexPay shall provide a copy of such use to Client for Client’s review, such review not to be unreasonably withheld or delayed.
Section 15. Data Protection.
1. Parties warrant and undertake that (i) they will duly observe their respective obligations under applicable data protection and privacy laws and (ii) Personal Data will be handled with care, in a confidential manner.
2. Each Party shall maintain proper organizational and technical security measures in order to prevent loss, theft and/or misuse of Personal Data. In the event of a Data Incident, each Party shall immediately notify the other Party of the nature and details of such Data Incident. Each Party shall provide all necessary assistance to the other Party and any Partners to investigate and rectify any issues arising from the Data Incident and prevent future Data Incidents.
3. At all times for the duration of this Agreement and for any period during which it retains information subject to PCI-DSS, each Party represents that it shall comply, and shall ensure, where applicable, that its Partners or Vendors comply, with PCI-DSS rules and regulations. Client will ensure that it, and its applicable Vendors, are validated as a PCI-DSS compliant service providers by a qualified security assessor approved by the PCI Security Standards Council (“QSA”). A copy of the annual PCI-DSS Report on Compliance shall be provided by Client and is applicable Vendors upon request, no more frequently than one time per calendar year. Each Party shall be liable for any for any costs, fees, fines, charges or penalties, including any PCI-DSS forensic investigation, arising from its non-compliance under this Section.
4. Client assumes full and sole responsibility for the lawful collection, delivery and use of all Personal Data and for obtaining required consumer consents for the provision of the Payment Service. Without prejudice to the generality of the foregoing, Client shall obtain all necessary consent to (i) disclosure of Personal Data to ConnexPay and (ii) ConnexPay’s processing and disclosure of Personal Data to Partners for the Payment Service or compliance with applicable rules, laws or regulations.
5. ConnexPay shall use, store, disclose, dispose and otherwise handle Personal Data in accordance with this Agreement and will only process such consumer data as necessary for the performance of the Payment Service or as required by applicable law.
6. Neither Party shall assume responsibility for the other Party for any breach of such Party’s obligations under applicable data protection laws.
Section 16. Taxes.
1. Each Party will be responsible, as required under applicable law, for identifying and paying all Taxes that are imposed on that Party upon or with respect to the transactions and payments under this Agreement. All Fees payable by Client are exclusive of applicable taxes and duties, including, without limitation, VAT, excise taxes, sales and transaction taxes, and gross receipts taxes.
2. If ConnexPay or its Partners are compelled to collect and remit Taxes on Client’s behalf, ConnexPay shall promptly notify Client in writing.
Section 17. General Provisions.
1. Each Party will ensure that it and all persons acting on behalf of or associated with that Party shall: (a) comply all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption (the “Relevant Requirements”); (ii) not engage in any activity, practice or conduct which would constitute an offence under any of the Relevant Requirements; (c) not do, or omit to do, any act that may lead the other party to be in breach of any of the Relevant Requirements; (d) promptly report to the other Party any breach of the Relevant Requirements or any request or demand for any undue financial or other advantage received by it in connection with this Agreement. Each Party shall have and maintain in place throughout the term of this Agreement its own policies and procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate. Each Party shall, at all times during the term of this Agreement, conduct its business in compliance with all applicable sanction laws, regulations and regimes imposed by relevant authorities.
2. Notices. Except as otherwise specified in the Agreement, all notices under the Agreement will be in writing and will be delivered or sent by email containing a subject line of “Notice as Required by Services Agreement” to an email address reasonably likely to be regularly monitored, with a copy sent by (a) first class U.S. mail, registered or certified, return receipt requested, postage pre-paid; or (b) U.S. express mail, or national express courier with a tracking system, to the address specified in this Agreement, above. Notices will be deemed given on the day actually received by the party to whom the notice is addressed.
3. Independent Contractors. The relationship of ConnexPay and Client is that of independent contractors. Except as specifically as required for ConnexPay and its Partners to perform the Payment Services, neither Party has any authority to act on behalf of the other Party or to bind it, and in no event will the Parties be construed to be partners, employer employee, or agents of each other, unless explicitly stated herein.
4. Entire Agreement. This Agreement constitutes the entire agreement between ConnexPay and Client and supersedes any previous agreements or representations, either oral or written, with respect to the subject matter of this Agreement. All amendments will be made in accordance with the provisions of this Agreement and/or as agreed by both Parties in writing
5. Assignment. No Party shall assign, novate or otherwise transfer this Agreement or any or all of their rights and/or obligations under this Agreement nor any part of it, nor any benefit nor interest in or under it, to any third party without the prior written consent of the other Party which consent shall not be unreasonably withheld; provided, however that ConnexPay may assign, novate or otherwise transfer this Agreement without the consent or approval of Client to an affiliate, in connection with a merger, reorganization, recapitalization or sale of all of or substantially all of its respective stock, business or assets.
6. Severability. Any failure by a Party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance.
7. Waiver. Any failure by a Party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance.
8. Client agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or ConnexPay Platform, or to this Agreement, must be filed within twelve months after such claim or cause of action arose or be forever barred. To avoid any doubt, Client agrees that the rights conferred upon ConnexPay in this Agreement are not intended to be exclusive of each other or of any other rights and remedies of ConnexPay under this Agreement, at law or in equity. Each and every right of ConnexPay under this Agreement, at law or in equity is cumulative and concurrent and in addition to every other right.
9. Force Majeure. Notwithstanding any provision contained in the Agreement, neither Party will be liable to the other to the extent fulfillment or performance of any terms or provisions of the Agreement are delayed or, except with respect to either Party’s financial obligations, prevented by a Force Majeure Event.
10. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware without regard to conflicts of law provisions. The parties hereby consent and submit to service of process, personal jurisdiction, and venue in the state and federal courts in Delaware and select such courts as the exclusive forum with respect to any action or proceeding arising out of or in any way relating to this Agreement, and/or pertaining in any way to the relationship between the Parties. CLIENT HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY MATTER UNDER, RELATED TO, OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED HEREBY.
11. Survival. Any covenant, term or provision of this Agreement which, in order to be effective must survive the termination or expiration of this Agreement, will survive any such termination or expiration.
12. Amendment. Any alteration, modification, change or revision of the provisions of this Agreement is valid only if made in writing and executed by the Parties hereto, except as otherwise provided herein.