Azure Processing Terms and Agreements
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THIS AGREEMENT is made as of the legal entity or sole proprietorship (hereinafter referred to as the “Principal") identified in and having its principal office at the address (hereinafter “Principal Address") specified in the Principal Application (aka “Application”) submitted to/on this website/portal (hereinafter “Site”) and AZURE PAYMENTS LIMITED (UK Company reg. number 12108869, located at 123 King Street, Hammersmith, London, United Kingdom, W9 9JG (hereinafter referred to as the “Agent").
WHEREAS the Principal desires to appoint the Agent on the terms herein as the agent for the limited purpose of conducting negotiations and entering into agreements with financial and credit institutions providing payment services on behalf of the Principal and for Principal’s account and the Agent wishes to provide certain services as an Agent on the terms herein to the Principal as set forth in this Agreement;
NOW IN CONSIDERATION OF THE MUTUAL COVENANTS AND THE PREMISES HEREIN CONTAINED AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, IT IS HEREBY AGREED BETWEEN THE PARTIES HERETO as follows:
1. Term
The term of this Agreement shall be for an unlimited term until terminated by either Party on the terms specified in this Agreement.
2. The Agent Appointment and Services
a) The Principal appoints the Agent as an agent for the limited purpose of conducting negotiations and entering into agreements with banks, payment processors, payment transmitters or other financial and credit institutions providing payment services (hereinafter – the “Payment Institutions”) on behalf of the Principal and for Principal’s account.
b) The Principal authorises the Agent to sign any agreement with the Payment Institution under which the Payment Institution provides payment services used by the Principal’s Customers (hereinafter – the “Payment services agreement”) on behalf of the Principal and to bind the Principal to this Payment services agreement. The Principal only should be bound the Payment services agreement terms and bears all rights and responsibilities under the mentioned agreement.
c) The Principal instructs the Agent to perform on behalf of the Principal and for Principal’s account such activities and services as are or may be required or prescribed from time to time by the Principal (hereinafter – the “Services”) including but not restricted to:
- to search for the banks, payment processors, payment transmitters or other financial and credit institutions providing payment services and to conduct negotiations aimed at the provision of the Payment services;
- if requested by the Principal to receive payments in Principal’s favour from third parties (Principal’s Customers) and transmit received funds to the Principal according to the Principal’s orders. In case there are no special orders, the Agent shall transfer the sum received from the Principal’s Customers during reporting month within the 10 (ten) days following the reporting month;
- to reports the total amount of money received from the Principal’s Customers in the reporting month and submit such report within 10 (ten) days following the reporting month.
3. Provision of the Remuneration by the Principal
a) On entering into Payment services agreement with the new Payment Institution the Agent shall be entitled to a remuneration.
b) The remuneration payable to the Agent in respect of entering into the Payment services agreement with the new Payment Institution shall be agreed individually and paid by an invoice until otherwise agreed by the Parties hereto.
c) The Agent’s remuneration shall be payable in full within 30 business days following the effective date of the Payment services agreement closed by the Agent with the Payment Institution until otherwise agreed by the Parties hereto.
d) The Agent shall not be solely responsible for any and all taxes assessments levies duties rents and other exactions or payments required to be paid to any authority on or in respect of all monies paid by the Principal to the Agent.
e) All payments under this Agreement shall be in EUR and remitted by wire transfer to the Agent’s account and the Principal shall be responsible for any delay and for any and charges for the said remittance shall be borne by the Principal.
4. Terms of providing the Services
The Agent shall provide the Services on the terms herein to the Principal on a professional basis and shall be free to provide its services to third parties during the Term of this Agreement provided to the Principal hereunder.
5. Dealing with third persons
In order to fulfil the obligations assumed under Agreement the Agent has the right to engage Subagents (hereafter referred to as the “Subagents”). The Subagents shall be selected in a manner that ensures that entering and executing of any respective agreement between such Subagents and the Agent complies with applicable laws and regulations. The Agent shall conduct business with the Subagents in its own name and shall be reasonable for its obligations before such Subagents .
6. Ownership of Intellectual Property and Work Product
a) The Agent acknowledges and agrees that all materials, including but not limited to any and all written material, graphs, diagrams, drawings, software, software packages, data, correspondence and other documents, artwork, photographic images, video or audio materials and/or recordings, in digital form or magnetically or optically encoded materials prepared and/or obtained by the Agent from the Principal in relation to the Principal operations and/or in the delivery of the Services in all forms of media or data whatsoever whether now known or hereafter devised as well as any and all rights of any nature whatsoever pertaining to and/or arising in connection with such materials, including, without limitation, any intellectual property rights (collectively the “Materials”), remain the sole and exclusive property of the Principal. The Principal grants the Agent with the limited, personal, non-exclusive, non-sublicensable, non-assignable license to use the Materials for the term of this Agreement only.
b) Upon termination of the Services and/or the expiry in the normal course or the termination of this Agreement, or at the request of the Principal prior to such expiry or termination, the Agent shall promptly return and/or deliver to the Principal any and all software programs, documents, books, disks and diskettes, drawings, graphs, photographs, magnetic tapes and microfilms, video or audio materials or any other Materials of any kind or nature, and/or any and all materials of any kind in relation to the intellectual property in its possession which have been obtained by the Agent from or through the Principal in the course of performance of this Agreement. Any such Materials which are not practicable to return shall be destroyed by the Agent, and the Agent shall certify such destruction in writing to the Principal.
7. Confidential Information
a) The Parties hereby acknowledge that in connection with performance of this Agreement each Party (as the “Receiving Party”) may receive information from the other Party (the “Disclosing Party”) which is non-public including, without limitation, business plans, financial information, customer data, computer programs, proprietary software, etc. Such information shall be deemed “Confidential Information” under this Agreement regardless of the form in which it is provided and whether expressly marked as confidential upon provision or not.
b) The following information shall may not be deemed as Confidential Information under this Agreement (subject to the burden of proof of existence of the respective conditions lying on the Receiving Party):
(i) Information that was obtained by the Receiving Party from a third party without confidentiality restrictions preventing the use in question,
(ii) Information that was discovered by the Receiving Party without any use of the Confidential Information in question,
(iii) Information that is and/or became public through no fault of the Receiving Party.
c) The Receiving Party agrees that it shall not use Confidential Information and/or divulge it to any members of its staff, management and to the Payment Institution for purposes other than performance of its respective obligations under the Agreement, shall not communicate Confidential Information in any form or way to any third party, unless specifically authorized by the Disclosing Party in writing to do so, and shall safeguard Confidential Information with a degree of care, which is neither less than that, exercised by the Receiving Party with respect to its own information of confidential nature, nor less than the reasonable degree of care.
d) Limitations set forth in Subclause 7(c) above shall not apply to any Confidential Information, which is to be communicated as per duly executed demand of a court or any other applicable authority of relevant jurisdiction (a “Disclosure Order”), provided that:
(i) The Receiving Party has notified the Disclosing Party of such Disclosure Order as soon (and if) practicable,
(ii) The Receiving Party has provided the Disclosing Party with full assistance (at the Disclosing Party’s expense) in defending and/or limiting such Disclosure Order,
(iii) The Receiving Party discloses only such portion of Confidential Information, as necessary under the Disclosure Order (subject to any alterations to the foregoing as the result of actions taken by the Disclosing Party to defend and/or limit it).
e) The Receiving Party shall be bound by confidentiality obligations set forth in this Clause 4 throughout the entire Term and for the further period of 2 years following the expiry or termination of this Agreement for any reason whatsoever.
f) Without limitation to generality of the provisions of this Clause, it is hereby expressly stipulated, that any information relating to any Product shall be deemed Confidential Information of the Principal for the purpose of this Agreement.
8. Termination
The Principal may terminate this Agreement and cancel the Agent's Services and powers hereunder without cause or for any reason upon giving the Principal seven days’ notice of the intent to terminate and without further obligation to the Agent except for payment due for Services performed to the date of such termination. The Agent may terminate this agreement for any reason upon giving the Principal one month’s notice of the intent to terminate. Each Party agrees that upon termination by either Party, it shall promptly return to the other any and all embodiments of Confidential Information it has obtained as the Receiving Party under this Agreement. When such return is not practicable, such Party shall destroy the respective embodiments of Confidential Information and shall certify such destruction to the other Party in writing.
9. Representations and Warranties
The Agent hereby represents, warrants and covenants to the Principal that:
a) it has the right and capacity to enter into this Agreement and fully perform all of its obligations hereunder;
b) is not wound-up nor bankrupt nor insolvent and is properly constituted and incorporated or not suffering from any illegal incapacity to enter into this Agreement;
c) It will not act in any manner that jeopardizes the rights of the Principal;
d) it shall not incur any cost expense, liability or obligation in the name of or on the credit of the Principal, except in accordance with the instructions and authorization of the Principal;
e) No action of the Agent in the course of performance of this Agreement shall cause the Principal, any Materials or Services to be in breach of any third party right including, without limitation, intellectual property rights, and/or any applicable law.
10. Indemnification
The Agent shall not be responsible in any circumstances to the Principalor any third party for any indirect or consequential or inconsequential or economic damage or loss, howsoever caused, whether as a result of negligence, misrepresentation, breach of contract or otherwise.
The Principal shall indemnify the Agent against any and all losses, costs, liabilities, damages and expenses (including reasonable lawyers’ fees) resulting from the Principal’s breach of this agreement and any of the Payment services agreements.
11. Notice
Any notice required or permitted to be given hereunder shall be given by personal delivery or registered mail and shall be deemed given (i) when delivered personally to any officer of the party being notified; or (ii) on the third business day after being sent by registered mail and addressed to the respective parties at their respective addresses.
12. No Assignment
This Agreement is non-assignable by the Agent. This Agreement shall inure to the benefit of the Principal’s successors, assignees, licensees, grantees and associated, affiliated and subsidiary companies. The Principal and any subsequent assignee may freely assign this Agreement, in whole or in part, to any party provided that such party assumes and agrees in writing to keep and perform all of the obligations of the Principal hereunder.
13. Severance
Any Section or Subsection or any other provision of this Agreement which is, or becomes, illegal, invalid or unenforceable shall be severed herefrom and shall be ineffective to the extent of such illegality, invalidity or unenforceability and shall not affect or impair the remaining provisions hereof which shall continue in full force and effect.
14. Entire Agreement
a) This Agreement (including the recitals, the Schedules, and the amendments jointly agreed to in writing contained herein) constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations, and discussions, whether oral or written, of the Parties in the event of discrepancy between them.
b) No amendment, modification or waiver of this Agreement shall be binding unless duly executed in writing by the Parties. No oral collateral contract and/or parole evidence shall be allowed or admitted in a court of law or elsewhere to howsoever contradict or add to or vary or alter or amend the terms herein nor to construct nor set-up any alleged equity accruing howsoever to the Agentin the demised premises or at all.
c) Notwithstanding anything to the contrary herein contained, the Principal shall have the unilateral and sole right to issue written supplementary terms and conditions in addition to the Term herein without ascribing any reasons for the same.
15. Waiver
No waiver of any breach of any provision of this Agreement will be effective or binding unless in writing and signed by the parties. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provisions unless otherwise expressly provided in writing by the Parties.
16. Governing Law and Arbitration
All disputes arising out of or in connection with the present contract shall be finally settled in Riga (Latvia) under the Rules of the Latvian Republic Court in accordance with the said Rules and the Parties hereto submit to the jurisdiction of the Courts and laws of Latvia in respect of any matter arising from or relating to the said.
17. Counterparts
This Agreement may be executed in counterparts in the same form and such parts as so executed shall together form one original document and be read together and construed as if one copy of this Agreement had been executed. Execution and delivery of this Agreement by fax transmission shall constitute legal and binding execution and delivery of this Agreement.
18. Legal Counsel
Each Party acknowledges that it has read and understood the Agreement in its entirety and signs this Agreement voluntarily, having had the opportunity to seek independent legal advice on the matters contained herein.
19. Force Majeure
Neither Party shall be liable for any delay or failure to perform its obligations under this Agreement caused by circumstances which are beyond the control of such Party, which have arisen without the fault or negligence of the foregoing and prevent it from due performance of its obligation under this Agreement (“Force-majeure”), unless the Party affected by such Force-majeure was or should have been aware of the foregoing events and their potential effect on its performance of the Agreement at the time of its signing. Force majeure events include but are not limited to: war (declared or undeclared), flood, fire, earthquake or other natural disaster, military actions, riot, civil commotion, government actions, acts of God, fire, blockades, labor disturbances, strikes, insurrections, earthquakes, acts of terrorism and other.
The suspension of performance may not be of longer duration than is reasonably required given the nature of the Force Majeure event.
The affected party shall give the other Party a written notice of the Force Majeure as soon as practicable following such occurrence. The notice should include the time when the event started and the expected duration of its effect on the performance of this Agreement. As soon as the affected Party is able to resume performance of the obligations affected by the Force Majeure, such Party shall give the other Party a written notice to that effect and shall promptly resume performance hereunder. The affected Party may not claim the Force majeure circumstances as the reason for its non-performance under this Agreement beyond the time period, during which the event in question reasonably effects such performance.
20. Interpretation
In this Agreement where the context so admits:-
a) "the Principal" shall include their heirs, personal representatives, successors and assigns;
b) "the Agent" shall include their heirs, personal representatives, successors and assigns;
c) "the Parties" means the Principal and the Agent and their respective heirs, personal representatives, successors and assigns;
d) "the Agreement" means this Agreement including the Schedules hereto;
e) words importing the masculine gender shall be deemed to include the feminine and neuter genders and the singular to include the plural and vice versa; and
f) words importing to human beings or person include any body or persons corporate or unincorporated and vice versa.
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Effective Date: August 1, 2020 up to 13 July 2023.