‍1.     Definitions and Interpretation

In this Agreement, the following terms shall have the following meanings:

“3D Secure” means an authentication standard supported by Card Schemes, including “MasterCard SecureCode” by MasterCard and Maestro, “Verified by Visa” by Visa, “J/Secure” by JCB and any other similar standard from time to time.

“Acquirer” means a financial institution that enables the Client to (a) accept payments by Cardholders using Cards; and (b) receive value in respect of Card payments. For the purpose of this Agreement, an Acquirer may be Nuvei or a third party (each when it utilizes its membership with a Card Scheme) as notified to the Client by Nuvei from time to time.

“Affiliate” means, in relation to a Party, any company, partnership, or other entity that, which directly or through one or more intermediaries, Controls, is Controlled by or is under common Control with such Party. “Control” or “Controls” or “Controlled” means (i) in the case of a company, the ownership or control, directly or indirectly, of more than twenty five percent (25%) of the shares attaching voting rights for the election of directors, or has the ability to direct the operation of the company; or (ii) in the case of an entity other than a corporation, the ownership or control, directly or indirectly, of more than twenty five percent (25%) of the assets or interests of such entity, or has the ability to direct the operation of the entity.

“Agreement” shall have the meaning defined above.

“Alternative Payment Method” or “APM” means a payment method (other than cash or Cards) which Nuvei is able and has agreed to process (as notified by Nuvei to the Client from time to time).

“Alternative Payment Method Provider” or “APMP” means a third party which regulates or is responsible for processing any APM(s) and which is in an arrangement with Nuvei which enables Nuvei and the Client to (a) accept payment by End Users using APMs; and (b) receive value in respect of such payments.

“Applicable Law” means all laws; statutes; regulations; rules; codes; directives and ordinances of Regulators and/or the subject matter of this Agreement, including anti-money laundering and terrorist financing regulations, anti-bribery laws, consumer protection laws in particular the provisions governing distance selling and electronic business, consumer credit laws and Data Protection Laws, and any guidance issued by any Regulator, all of the above to the extent applicable to a Party, to the performance of the business of that Party or to the services provided by or on behalf of that Party.

“Assessment(s)” means any and all assessments, fees, fines, penalties or charges (which may be titled ‘filing fee’, ‘administrative fee’, ‘technical fee’, ‘review fee’, ‘arbitration decision’ or otherwise) assessed or imposed by Nuvei in protecting its legitimate regulatory, commercial and reputational interests and the integrity of the payment system (adopting industry standards such as the Visa Core Rules on non-compliance) on Client, or directly or indirectly by the Service Providers or Regulators on Nuvei or on the Client through Nuvei, as a result of the Client’s failure to comply with the provisions of this Agreement, the Rules or Applicable Law including but not limited for the purpose of the assessing party protecting its legitimate interests, or in relation to Client’s actions, omissions or in connection with the Client’s use of the Services.

“Authorization” means the issuance of a request to charge a Payment Method to the respective Service Provider and the subsequent reply (e.g. approval or decline of a Transaction) by the respective Service Provider.

“C-Panel” as defined under the STC.

“Card” means a credit, debit, pre-paid, charge or purchase or other card in either physical or virtual form issued by a Card Issuer to Cardholder.

“Cardholder” means (i) the person to whom the Card is issued and whose name is embossed or imprinted on the face of the Card, and/or (ii) is the authorized user of a Card.

“Card Issuer” means a person who is a member of a Card Scheme and issues Cards to Cardholders.

“Card Scheme” means Visa, MasterCard, American Express, JCB, Diners, Discover, China UnionPay or such other scheme governing the issuance (issued by what are commonly referred to as Card Issuers) and use of Cards including their respective members. Nuvei will notify the Client from time to time of the supported Cards and Card Schemes and the respective terms and conditions.

“Chargeback” means any direct or indirect dispute, reversal or debit of a Transaction by an End User, Card Scheme, Acquirer, APM or APMPs, because of such Transaction being invalid, disputed, unauthorized (or there are grounds to believe it was not authorized), suspicious, the goods or services were not delivered at all or as agreed, or otherwise for any reason. Chargebacks can be procedural or substantive.

“Chargeback Ratio’ means the highest permissible ratio Nuvei or Service Provider may set from time to time, calculated by dividing the number of Chargebacks the Client has received in a given period by the total number of Transactions received in that period.

“Claim” shall have the meaning set forth in clause ‎5.2.

“Confidential Information” shall have the meaning set forth in Schedule 6.

“Data Protection Laws” shall have the meaning set forth in Schedule 5.

“Deductions” shall have the meaning set forth in Schedule 2.

“Effective Date” shall have the meaning set forth in the STC.

“End User” means (i) a Cardholder, or (ii) a person that purchases goods or services from the Client through the use of an APM.

“End User Data” means any data which relates to an End User, including names, addresses and financial details.

“Fees” shall have the meaning set forth in the STC .

“Force Majeure Event” means, in relation to either Party, any event or circumstances beyond the reasonable control of that Party including any acts of God, storm, earthquake, fire, flood, war, industrial action, vandalism, non-availability of any part of the network, governmental action, inclement weather conditions, atmospheric conditions and other causes of radio interference, failure or shortage of power or fuel supplies, and the acts or omissions or service failures of communications operators or internet service providers or other third parties.

“Fraud Ratio” means the highest permissible ratio Nuvei or the Service Provider may set from time to time, calculated by dividing the number of fraudulent Transactions in a given period by the total number of Transactions received in that period.

“Intellectual Property Rights” means patents, rights to inventions, copyright and neighboring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“KYC Requirements” has the meaning set forth in clause ‎2.10.1.

“Marks” mean brands, names, logos, trademarks, trade names or service marks.

“Merchant Agreement” means the direct contractual engagement between the Client and the respective Acquirer, APMP or other third-party service provider as may be required by the said institutions as a condition for the provision of the respective Services to the Client by Nuvei.

“Payment Account” means a bank account designated by the Client which Nuvei may credit with Remittances or debit as the case may be.

“Payment Method” means any Card or APM.

“PCI-DSS” means Payment Card Industry Data Security Standards as released from time to time by the Security Standards Council.

“Personal Data” shall have the meaning set forth in Schedule 5.

“Parties” means Nuvei and the Client and a “Party” means either Nuvei or the Client.

“Platform” means the technology, hardware and software upon and in conjunction with which the Services are provided, and any code or software (including payment page, SDK, API) which may be provided to the Client or for the Client’s use under this Agreement, any web interface to the Services and to Nuvei online systems, and any work products created and/or delivered and related documentation in connection with this Agreement.

“Refund” means a refund, return or credit of an amount to an End User’s Payment Method or the reversal of a payment effected, in each case pursuant to a request or instruction from the Client.

“Regulator” means any regulatory body, authority, courts or government body having authority over a Party or its services.

“Remittance” shall have the meaning set forth in Schedule 2.

“Rules” means all by-laws, rules, regulations, policies, procedures and guidelines issued from time to time by the respective Service Providers and any other relevant payment providers which may apply to either Party.

“Scheme Marks” shall have the meaning as in clause ‎9.3.

“Services” shall have the meaning set forth in the STC .

“Service Provider” means the Acquirer, Card Issuer, APMP and/or Card Scheme as the case may be.

“Transaction” means any payment, Refund, Payout, or exchange of value made by the use of a Payment Method or its unique identifier (e.g. Card number) to debit or credit the End User’s account, and any process undertaken by Nuvei or the respective Service Provider in relation to any of these activities or any processing stage thereof. There can be several types of Transactions in each payment, including registration of the Payment Method, authorization, settlement, credit or voiding. Rerouting or cascading of an already submitted activity shall be deemed a separate Transaction.

A reference to a statute, statutory provision or law is a reference to it as amended or re-enacted and includes any subordinate legislation made under it from time to time, as amended or re-enacted. A reference to guidance is to it as amended or re-issued.

Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

A reference to writing or written includes email.

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

A reference to a clause or a Schedule is a reference to a clause or a schedule to this Agreement.

Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.

2.     Supply of Services

2.1.        In consideration of the Fees and subject to the Client’s continued compliance with the provisions of this Agreement, Nuvei shall provide the Client with, and the Client accepts, the Services.

2.2.   The provision of any Service and Payment Method to the Client is contingent upon the following conditions: (i) Nuvei maintains a valid contractual relationship with the respective Service Provider; (ii) the Service Provider continues to offer and support the Service or Payment Method, including to the Client; and (iii) mutual agreement between the Parties on the terms of the Service or Payment Method, as outlined in this Agreement, including the applicable Fees.

2.3.       Subject to clause 14.2, Nuvei shall have the right, upon at least one (1) month’s notice (unless shorter notice is imposed by the Service Providers), to change the terms, conditions or specifications of any of the Services due to (i) the changes in the Services which are made at the Service Provider’s request; or (ii) the changes in (or in the interpretation of) the Applicable Law or Regulator guidelines which affect Nuvei’s ability to provide the Services or the Client’s ability to use or receive the Services. Changes in the Services which are made at Client’s request and the respective effect on Fees (if any) shall be addressed separately. The proposed change under this clause ‎2.3 shall come into effect on the date stated in Nuvei’s notice, such date to be at least one (1) month after the date of receipt of the notice unless the Client notifies Nuvei that it wishes the Agreement to end before the change takes effect.

2.4. Without derogating from any other right available to Nuvei under this Agreement, Applicable Law, Rules or otherwise, Nuvei has the right, in its sole discretion, to suspend certain or all the Services in any jurisdiction at any time and for any period of time on the basis of risk management considerations or where required in compliance with any Applicable Law or Rules. Nuvei shall use reasonable commercial efforts to provide prior written notice of such suspension to the Client.

2.5. The Client must ensure that its systems and the Transactions processed comply at all times with all technical, communications, implementation and integration requirements as provided by Nuvei from time to time. Nuvei’s ability to provide the Services depends on Client’s compliance with this clause ‎2.5 and the Client must not make any alterations to the Client’s systems which may affect integration with Nuvei without first consulting with Nuvei and properly testing the change.

2.6. Where a Merchant Agreement is required, the Client’s undertakings, obligations and responsibilities under this Agreement shall be expanded to include the Client’s compliance with the respective Merchant Agreement and any breach by Client of the Merchant Agreement shall be deemed a breach of this Agreement.

2.7. Certain components of the Services may be provided by or rely on third parties (including Service Providers, ISPs, banks, processing networks, money transfer systems, external data bases) and are subject to such third party’s solvency, acts or omissions, performance, availability, service levels, terms and conditions and, where applicable, the availability of processed funds held with such third parties should a third party becomes insolvent or otherwise unavailable (e.g. settlement banks), in which case there is a risk that the Client might not be able to recover some or all of its funds. Nuvei is not liable or responsible for such third parties’ acts or omissions nor to any loss suffered by Client and arising in relation to the aforementioned reliance or dependency on third parties.

2.8. Nuvei’s sole obligation in respect of the Client’s funds is to deposit the Client’s funds into client account(s) with licensed and reputable financial institutions and instruct such institutions to transfer, deploy or return the Client’s funds as required under this Agreement or under law. The aforementioned client account is a trust account that is distinguished and maintained separately from any other account in which Nuvei deposits its own money. Client’s funds in the client account will commingle with other Nuvei’s clients’ funds. While Nuvei’s systems have the ability to distinguish the funds for each client, the risks of such commingling include but are not limited to the Client’s interest in the Client’s funds not being identifiable or distinguished from other clients

2.9.   Subject to Applicable Law, Nuvei’s commercial discretion and agreement with its clients, Nuvei’s Services and Platform are generally available to numerous clients in numerous geographies. It is the Client’s sole responsibility to request from Nuvei any and all specific or domestically mandated requirements for the Services and Platform provided under this Agreement (e.g. as per Applicable Law applicable to the Client’s operations or licensing). In such case the parties shall discuss in good faith the available coverage of the current Services and Platform and agree on the terms and conditions of the requested change or on the applicable statement of work for the performance of such alignments by Nuvei.

2.10.  Documentation and Information

2.10.1.  Provision of documentation and information. The Client shall be entitled to use the Services after and for as long as it has satisfied and continues to satisfy Nuvei’s verification, know-your-client and risk-based related requirements (“KYC Requirements”), as may apply from time to time. KYC Requirements may be updated or supplemented from time to time, and may vary between the Services.

2.10.2.  Changes in Client’s circumstances. The Client shall promptly (and, where legally permissible, in advance) notify Nuvei in writing, and with any supporting evidence, of any changes to any documentation and information it has previously provided to Nuvei including with respect to its: (i) business (including goods and services, trade names, URLs, geographical targets, Payment Account details), (ii) the Client’s location (physical address) and fixed place of business through which it conducts its business as such address was disclosed to and approved by Nuvei; (iii) direct or indirect directors and shareholders; (iv) change of control (as such term is commonly used); and (v) financial standing and ability to meet its obligations set out in this Agreement. In certain cases, Nuvei may approach Client as to such changes if they come to Nuvei’s attention and the Client shall notify Nuvei accordingly. Said notice from Client shall be in writing and shall include all relevant details and updated documents and information.

Nuvei shall have the right to examine these changes and determine whether such changes affect Nuvei's decision to provide Services or the manner in which Services are provided to the Client and to notify the Client accordingly.

2.10.3.  Full cooperation. The Client shall fully cooperate with Nuvei’s initial and ongoing requests for documentation and information and assist Nuvei in satisfying the KYC Requirements.

2.10.4.  Essentiality of cooperation. The Client’s meeting of the KYC Requirements is essential to Nuvei’s ability to provide Services and understands that Client’s failure to comply with them in a timely manner entitles Nuvei to suspend the Client’s access to some or all of the Services with immediate effect. Nuvei may withhold the funds until such time as all the KYC Requirements have been met, and Nuvei shall have no liability for any termination, suspension or withholding carried out as a result of this provision.

2.11. Disclaimer. Nuvei provides the Services on an "as-is" and “as available” basis.

3.     Fees

3.1. Nuvei shall be entitled at any time to offset any sums that are due and owing under this Agreement by the Client to Nuvei or Service Providers, or should otherwise be borne by the Client, or are recoverable by Nuvei or Service Providers, from any amounts owing to the Client.

3.2. To the extent that any amounts and/or Fees under this Agreement are due by the Client and are not or cannot be deducted by Nuvei from available funds (such deduction being at Nuvei’s sole discretion), such amounts and/or Fees shall be payable by the Client to Nuvei (unless otherwise indicated by Nuvei), within ten (10) days of Nuvei’s issuance of an invoice, and by such method as Nuvei may specify in such invoice.

3.3. All Fees payable under this Agreement are exclusive of value added tax (or its equivalent in any jurisdiction) and any additional or other taxes, charges, levies, or duties which may be imposed in connection with any and all payments made or due, or which may apply in certain jurisdictions shall, if applicable, be borne by the Client. The Client shall remain at all times fully and solely responsible for all taxes, fees and other costs incidental to and arising from any sale of goods or services by the Client. Where the Client is required to withhold and/or deduct tax on a payment due to Nuvei, it shall gross up such payment to the extent required to ensure Nuvei receives the same total amount that it would have received if no such withholding or deduction had been required.

3.4. Client’s failure to pay the Fees by the due dates shall entitle Nuvei to exercise all available remedies including the right to charge interest on due amounts at the maximum rate permitted by law.

3.5. The Client acknowledges that Service Providers may have different charges and fees for same or similar services and said differences shall apply when transferring between said Service Providers and that Service Providers may change their existing charges and fees (applicable to Nuvei and/or the Client) as well as assess additional or different charges and fees (applicable to Nuvei and/or the Client), all of the above to be considered and affect the then current Fees for the purpose of this Agreement and automatically apply to Client in the form, amounts and as of the date such institution indicates.

3.6. Subject to clause 14.2, Nuvei shall have the right, upon at least one (1) month’s written notice, to change the Fees or add new charges or fees. The proposed change under this clause ‎3.6 shall come into effect on the date stated in Nuvei’s notice, such date to be at least one (1) month after the date of receipt of the notice unless the Client notifies Nuvei that it wishes the Agreement to end before the change takes effect.

3.7. Any fees or amounts paid by the Client, whether directly or by way of a set-off, deduction or otherwise, to Service Providers or other third parties, shall not affect nor derogate from the Client’s obligation to pay all Fees due to Nuvei.

4.  Obligations and Responsibilities

4.1.          Each Party shall comply with the terms and conditions of this Agreement and with all Applicable Laws and Rules. Each Party shall co- operate with, and assist, the other Party, at the other Party’s expense, in identifying and resolving compliance issues with any Applicable Laws and Rules. Client further undertakes to comply with the provisions of Schedule 3.

4.2.          End User Identification. The Client shall confirm the identity of the End User in accordance with Applicable Law, including Anti-Money Laundering directive and laws, and where applicable require additional identification if required to complete the Transaction (e.g. for MOTO or similar) and shall not honor any Payment Method if the Payment Method has expired or if the Transaction has not been undertaken in good faith by the End User. Nuvei and/or the Service Providers may audit the Client’s performance of its obligations under this clause 4.2 to comply with their respective regulatory obligations and the Client shall co-operate fully with them and provide them all necessary assistance including by providing Transaction and End User specific information and documentation.

4.3. The Client Identity. The Client must prominently and unequivocally inform the End User at all points of interaction of the Client’s: (i) identity so that the End User can readily distinguish the Client from any other party; and (ii) the location (physical address) and fixed place of business through which it conducts its business (both terms as defined by the Rules), as such address was disclosed to and approved by Nuvei. Furthermore, the Client must not misrepresent itself as being a member with a Card Scheme.

4.4. Responsibility for Transactions. The Client must ensure that the End User is easily able to understand that the Client is responsible for the Transaction, including delivery of the goods (whether physical or digital) or provision of the services that are the subject of the Transaction, and for customer service and dispute resolution, all in accordance with the terms applicable to the Transaction.

4.5. The Client shall honor, without discrimination, any Card properly submitted for payment and must maintain a policy to that effect. The Client must not refuse to accept any Card on the basis of the identity of the Card Issuer or Cardholder or prevent use of a Card for domestic or intra-EU Transactions. Cardholders shall be entitled to the same services and return privileges that the Client extends to cash customers.

4.6. As a condition to receiving Services, the Client shall be required to undertake and comply with the terms of this Agreement as well as with policies, guidelines and reasonable instructions which are mainly derived from Service Providers’ rules or regulations, that Nuvei may issue or make available from time to time. The Client shall demonstrate compliance with the above in an appropriate manner to Nuvei upon request. Clients in certain lines of business may be required to sign additional or different acknowledgements and undertakings.

4.7. The Client confirms it has received or has access to Card Scheme Rules including their guidelines for merchants, Transaction processing, the Business Risk Assessment and Mitigation (BRAM) Compliance Program of Mastercard®, the VISA Core Rules and the Global Brand Protection Program (GBPP) of VISA® (titles and links may change over time).

4.8. The Client’s failure to comply with the Applicable Laws and/or Rules may result in Assessments. The Client agrees to immediately pay such Assessments or alternatively (at Nuvei’s sole discretion) reimburse Nuvei and any affected parties, including Service Providers for their payment.

4.9. The Client shall immediately notify Nuvei if: (i) the Client reasonably believes that there has been any security breach (including instances of unauthorized access or attempts to access Transaction data or End User Data), (ii) there is a suspected or confirmed damage, loss or theft of Transaction data or End-User Data or (iii) the Client becomes subject to an Assessment.

4.10. Audit. Nuvei, Service Providers, Regulators and/or other relevant payment providers are entitled to conduct annual and/or incident-based audits in order to enable them to ensure the Client’s compliance with the Rules, Applicable Law, provisions of this Agreement and any specific requirements imposed by them on the Client. This may include inspection of the Client’s business premises or security audits (including a PCI-DSS audit). Upon Nuvei’s request, the Client shall, at the Client’s own expense: disclose any required information, allow access and provide full cooperation. Where applicable, the Client shall procure the cooperation of its technical service providers and subcontractors. The Client shall reimburse Nuvei for the costs and expenses of any such inspection and/or audit which is performed by or for the Service Providers, Regulator and/or other relevant payment providers due to the Client’s alleged breach of Rules or Applicable Law.

4.11.     Chargebacks and fraud

4.11.1.  The Client solely assumes liability for Chargebacks and related risks and must reimburse sums paid out to it by Nuvei to the extent that said payment sums are charged back. In certain circumstances a Chargeback may be applied as per Nuvei guidelines or as stipulated by the Rules.

4.11.2.  Nuvei and/or Card Schemes may impose Assessments when the Client exceeds the Chargeback Ratios and/or the Fraud Ratios. Additional information in this matter is made available on the Card Schemes’ websites or by Nuvei. The Client shall maintain Chargeback Ratios and Fraud Ratios which do not exceed any or both of the allowable ratios of the Card Schemes. In the event that the Client exceeds any allowable Chargeback Ratio or Fraud Ratio or is or becomes part of any Card Scheme’s Chargeback, fraud or audit programs (e.g. MasterCard’s Global Merchant Audit Program or Visa’s respective Merchant Fraud Programs), Nuvei has the right, in its sole discretion, to suspend all or part of the Services.

4.12.     3D Secure

4.12.1.  The Client must enable and technically support 3D Secure, whether it uses Nuvei or a third party as a technical connector.

4.12.2.  Where the Client (i) fails to comply with clause 4.12.1 and/or (ii) exceeds any Fraud Ratio or Chargeback Ratio, Nuvei may at its discretion move the Client’s Transactions (all or some of them) to 3D Secure and set (or procure that the relevant Acquirer or third-party processor sets) the 3D Secure exemption flags for those Transactions. Where a third party provides a technical connection for the Client and the Client (i) fails to comply with clause 4.12.1 and/or (ii) exceeds any Fraud Ratio or Chargeback Ratio, the Client shall ensure that upon Nuvei’s written request, the Client promptly moves the Client’s Transactions (all or some of them) to 3D Secure and sets the 3D Secure exemption flags for those Transactions as instructed by Nuvei.

4.13. Nuvei may suspend or terminate the use of all or some of the Services (including the use of 3D Secure) or suspend all or some of the Client’s Transactions (including 3D Secure Transactions), where the Client fails to comply with its obligations under clause 4.12.

4.14. Specific reference is made to the provisions of Schedule 2 of this Agreement including but not limited to the Service Providers specific provisions and requirements.

5. Indemnity and Limitation of Liability

5.1. The Client shall be fully liable for all Deductions, Chargebacks, Assessments, Refunds, Fees and adjustments resulting in any way from Transactions (regardless of the date of the Transaction) and all other amounts which may become due under this Agreement from time to time, including after the termination or expiry of this Agreement for any reason, Nuvei shall remain entitled to recover Chargebacks, Refunds and Assessments from the Client and the Client shall indemnify and hold Nuvei harmless in such respect.

5.2. Indemnification. The Client shall upon demand indemnify, defend and hold harmless Nuvei and its Affiliates and Nuvei’s and its Affiliates’ respective employees, officers and directors from and against any and all actions, proceedings, assessments, fines, charges, claims, penalties, demands, payments, losses, costs, expenses, liabilities, damages, and reasonable legal costs and expenses (including but not limited to those imposed by regulatory authorities/agencies or by the Acquirers, APMPs, Card Schemes as indemnification of these entities due to third party claims against such entities) (each a “Claim” and jointly the “Claims”) which may be suffered or incurred by Nuvei or any of the aforesaid indemnified, to the extent arising as a result from or in connection with the Client’s acts or omissions, including with respect to:

(i)  any claim by a third party, including but not limited to End Users or Service Providers, resulting from or in connection with the Client's misrepresentation (including any allegation of fraud made in relation to Client’s business), actual or alleged infringement of any third-party Intellectual Property Rights, or breach of warranty of any kind;

(ii) breach of, or failure to comply with, the provisions of this Agreement, Rules and Applicable Law;

(iii)  any security breach, loss, corruption, compromise or breach of data (including Personal Data) or non-compliance with PCI-DSS; and

(iv) Assessments. The Client shall be solely and fully liable for any Assessments.

5.3. In addition to any limitation of liability appearing in any other provision of this Agreement, a Party shall not be liable for any of the following types of loss or damage, regardless of the form of action, whether in contract, tort (including negligence), strict product liability, or otherwise, even if such damages were foreseeable and even if such Party has been advised of the possibility of such loss or damage: (i) any indirect, special, incidental, or consequential damages of any kind; (ii) loss or interruption of use, business, profits, sales, bargain, contract, opportunity, goodwill or anticipated savings, or (iii) loss or corruption of data or otherwise.

5.4. The maximum aggregate liability of a Party for the term of this Agreement for any liability and any cause of action arising under or in connection with this Agreement, howsoever arising (including by way of negligence or any other theory of law), shall be limited to the Fees (above cost) paid by the Client to Nuvei during the ninety (90) days immediately preceding the date on which the relevant cause of action arose. It is clarified that any damages paid by a Party as per the provisions of this clause 5 shall reduce the liability limit for any period for which such Party may be required to pay damages thereafter.

5.5. Notwithstanding the provisions of this clause 5, nothing in this Agreement shall limit or exclude: (i) a Party’s liability in respect of damages or losses suffered by the other Party arising out of the first Party’s (or its personnel’s) gross negligence, willful misconduct, fraud; (ii) a Party’s liability in respect of death or bodily injury to persons caused by negligence of such Party; (iii) the Client’s indemnification obligations under this Agreement; (iv) the Client’s liability and responsibility for the Fees and Deductions (as defined in Schedule 2); (v) Nuvei’s obligation to make the Remittances as per the provisions of Schedule 2; or (vi) any other liability which cannot by law be limited or excluded.

5.6. Nuvei shall have no liability in relation to any decision, action or omission of a Service Provider, bank or Regulator including with respect to settlements or availability of funds.

5.7. The Client shall not be entitled to any interest or any other compensation whatsoever in respect of any sums processed or held by Nuvei in accordance with the provisions of this Agreement (prior to Remittance or Deduction or as a Reserve as set forth in Schedule 2 or otherwise).

5.8. Each party is responsible and shall protect the other party at all times from its employees’ actions or inactions.

6.     Term and Termination

6.1. Term. The Agreement shall commence on the Effective Date and shall continue in force until terminated in accordance with the provisions of the Agreement.

6.2. Termination for convenience. Subject to clause 14.2, any Party to this Agreement may terminate this Agreement at any time by giving at least one (1) month’s prior written notice to the other Party.

6.3. Without derogating from clause 6.2, a Party may immediately suspend or terminate all or part of the Services or terminate this Agreement, upon written notice if: (i) the other Party has committed a material breach of this Agreement or the Merchant Agreement and has not remedied within 30 days of notice (unless such breach is not capable of remedy); or (ii) the other Party is unable to pay its debts or becomes bankrupt or insolvent, or has a receiver, or manager, provisional liquidator, liquidator or administrator appointed in respect of any material part of its assets or suffers an execution in respect of any of its property, or if a petition is presented for the winding up and such petition is not released, satisfied or withdrawn within thirty days or if the other Party suffers or is subject to any equivalent event, circumstance or procedure to those set out above in any other jurisdiction.

6.4. Should this Agreement terminate for cause by Nuvei, an Acquirer and/or Card Scheme then the Client may be listed on a Service Provider’s alerting service (for example on the VISA Merchant Alert Service).

6.5. Notwithstanding clauses 6.2 or 6.3, Nuvei may immediately suspend all or part of the Services or terminate this Agreement in whole or in part, upon written notice if: (i) Nuvei or Service Provider reasonably suspects or believes that the Client is using the Services in connection with any unauthorized, dishonest, fraudulent, wrongful or criminal activities or is otherwise is in breach of Rules or through any act or omission has damages or threatens to damage the goodwill, reputation or business of Nuvei or any Service Provider; (ii) Nuvei is required to do so by any Service Provider or Regulator or under the Rules or Applicable Laws; (iii) anything happens to the Client or comes to Nuvei’ attention in relation to the Client or arising from or incidental to the Client’s business or the conduct of the Client’s business (including trading practices or individual activity) that Nuvei in its sole discretion considers: (a) disreputable or capable of damaging Nuvei’s or Service Provider’s reputation; (b) detrimental to Nuvei’s or Service Provider’s business; or (c) may or does give rise to fraud or any other criminal activity or suspicion of fraud or any other criminal activity; (iv) a circumstance, event or series of events that Nuvei has reasonable grounds to believe adversely affects or may materially adversely affect: (a) the Client’s liabilities or potential liabilities under this Agreement; or (b) the Client’s ability fully and promptly to perform and comply with any one or more of its obligations, under the Agreement, such circumstance and event may include: (1) material change in the goods and/or services supplied by the Client; (2) material positive or negative fluctuations month on month in the Client’s Transaction volumes or the average value of Transactions; (3) material increase in the volumes of Chargeback relative to expected volume; (4) occurrence of Assessments; (5) change of control in respect of the Client; (6) instructions from a Regulator which the Client does not or is unable or unwilling to comply with; and/or (7) a material deterioration in the Client’s profits or financial or trading position.

6.6. Without derogating from the above, this Agreement (or specific Services as the case may be) shall automatically and immediately expire with respect to the Services which (a) fall under an agreement between Nuvei and a respective Service Provider which has expired or been terminated or (b) when the relevant Acquirer or APMP has no longer have a valid license to operate.

6.7. Nuvei may rely on third party information or requests when exercising rights and/or applying discretion in the matters set forth in this clause 6, including the Service Providers.

6.8. Effect of Termination. Upon any termination or expiry of this Agreement for any reason: (i) the Client shall immediately pay Nuvei all amounts owed by the Client under the Agreement; (ii) the Client’s rights to use the Services, Marks and any other rights granted in this Agreement shall immediately cease; (iii) the Client shall destroy any copy of the materials licensed to the Client under this Agreement; (iv) the Client shall cease using the Platform (limited C-Panel permissions may be retained); and (v) the Client shall return or destroy Confidential Information in accordance with this Agreement.

6.9. The termination or expiry of this Agreement for any reason shall not affect any rights, obligations or liabilities accrued before the date of termination or expiry and all provisions regarding indemnification, warranty, liability and limits, confidentiality and protection of proprietary rights and trade secrets, and any provisions which expressly or by their nature are required to survive or enter into force upon termination in order to achieve their purpose, shall so survive or enter into force until it shall no longer be necessary for them to survive in order to achieve their purpose. Furthermore, termination of this Agreement shall not relieve the Client of its obligations to pay amounts accrued or owing as per the provisions of this Agreement even when such liabilities has arisen after date of termination or expiry (for example: Chargebacks).

6.10. Without prejudice to any other right which Nuvei is entitled to under this Agreement or under Applicable Law, in the event of the suspension of part or all of the Services, termination or expiry of this Agreement or the issuance of notice of termination hereof, Nuvei shall have the right, at its sole discretion, to freeze and withhold (or, to the extent applicable to instruct the respective Acquirer and/or APMPs to freeze and withhold) any amount due to the Client, for a period of up to six (6) months from the end of the month of the last approved Transaction for the purpose of securing the payment of all Deductions due or which are reasonably expected to be due from the Client. If after the said period, Nuvei believes there still exists a risk of actual or potential Fees and/or liabilities, Nuvei shall have the right to withhold, or cause to be withheld, such amounts until such risk ceases to exist. At the end of the said period or an extended period where applicable the remaining amounts shall be remitted to the Client as per the provisions of Schedule 2.

7. Representations and Warranties

7.1. Each Party represents, undertakes and warrants to the other that:

(a)  this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms for the duration of the Agreement;

(b)  it will perform all obligations hereunder with reasonable skill and care;

(c)   the execution, delivery and performance of this Agreement by it does not and will not conflict with or violate any Applicable Law;

(d)  it is not, and will not be, involved in any act or traffic that constitutes or can be reasonably expected to constitute fraud or other illegal activity, including money laundering, under any Applicable Law;

(e)  there is no action, suit or proceeding at law or in equity now pending or, to the best of its knowledge, threatened by or against or affecting it which would impair its right to carry on its business as now conducted or affect its financial conditions or operations or its ability to perform the obligations required under this Agreement;

(f)   it has full knowledge of the PCI-DSS, undertakes to faithfully comply and apply the best organizational and technical security measures for such purpose and to only use service providers that are PCI-DSS compliant. Each Party shall meet all costs associated with achieving its own PCI-DSS compliance and shall prove PCI-DSS compliance in an appropriate manner to the other Party upon request. The aforementioned provisions shall not derogate from a Party’s PCI-DSS obligations where such Party is PCI-DSS certified;

(g)  it shall at all times comply with all Data Protection Laws applicable to the conduct of its business and the performance of its obligations under this Agreement and shall not do or omit to do, or cause or permit anything to be done or omitted to be done, which may cause or otherwise result in a loss, alteration, theft and/or abuse of Personal Data and/or a breach of the Data Protection Laws;

(h)  it has obtained and shall continue to maintain during the term of this Agreement all necessary regulatory approvals, certificates and licenses to conduct its business.

(i) Except as expressly provided in this Agreement and to the extent permitted by Applicable Law, Nuvei makes no representation or warranty of any type or nature whether express or implied, statutory or otherwise, including as to: (i) the merchantability, suitability, satisfactory quality, completeness, non-infringement, fitness for a particular purpose or use of the Platform, the Services or Nuvei’s performance; (ii) the accuracy of any information provided; (iii) that the Services will be error-free, uninterrupted, timely, secure or that any defects in the operation or functionality will be corrected; or (iv) that there are no viruses or other harmful components in the Platform.

7.2. The Client further represents, undertakes and warrants that:

(a)  it will not sell, purchase, provide, exchange or in any manner disclose Payment Method or Transaction data, including the account PAN, PAR, or Token (as such terms are used in Rules), or the End User’s personal information to anyone other than the relevant Service Provider, or in response to a valid governmental or regulatory demand or as otherwise permitted under this Agreement or by law. This prohibition applies to Card imprints, TIDs, carbon copies, mailing lists, tapes, database files, and all other media created or obtained as a result of a Transaction;

(b)  it will not process pursuant to this Agreement any face-to-face Transactions without Nuvei’s prior written confirmation and the signature of the applicable addenda where required;

(c)   it has obtained and shall continue to maintain during the term of this Agreement all required regulatory approvals, certificates and licenses to operate the Client’s websites and applications, sell any product or provide any good and service the Client intends to offer in each jurisdiction;

(d)  it will not require an End User to waive a right to dispute a Transaction or include any statement that waives or seeks to waive an End User’s right to dispute a Transaction with the respective Payment Method issuer;

(e)  any and all information and documentation provided by the Client is true, accurate, complete and up to date and not misleading;

(f)   it shall not do anything or allow anything to be done which is likely to harm the reputation of Nuvei and/or the Service Providers;

(g)  the Client’s use of Services will not conflict with or violate any Applicable Law and it shall not use the Services, directly or indirectly, in connection with any non-permitted, illegal or fraudulent business activities;

(h)  all Transactions that will be processed in connection with the Services are owned by the Client and will be originated only from the Client’s websites and applications disclosed by the Client in Schedule 3 and approved by Nuvei.

(i) it will use the Services only to transact on the Client’s own account and not on behalf of any third party;

(j) it does not provide any type of payment services to any person;

(k)   it shall at all times comply with codes of practice applicable to the Transactions and the sale of goods and/or services;

(l) it will abide by all relevant accounting principles which apply to the Client and record the Transactions that Nuvei processes in the accounting records of the permanent establishment/business (as the case may be), fully and properly in accordance with those principles, Applicable Law, and the Rules; and

(m) it will pay all relevant taxes as required by Applicable Law and the Rules relating to the Transactions.

Each of the representations and warranties given by the Client above shall be deemed to be repeated by the Client from time to time so long as this Agreement is in force and until all sums owing from the Client to Nuvei (if any) are paid and settled.

8.     Transaction specific guidelines

8.1. This clause highlights certain Transaction guidelines which Nuvei deems important to highlight and will not derogate from the Client’s specific acknowledgment and undertaking to comply with the Rules.

8.2. The Client must present only valid Transactions between the Client and a bona fide End User in amounts which represent a bona fide sale of goods or services by the Client.

8.3. The Client shall not present for processing or credit, directly or indirectly, any Transaction that represents the refinancing or transfer of an existing End User obligation that is deemed to be uncollectible, or that arises from the dishonor of an End User’s personal cheque, or that did not originate as a result of a Transaction directly between the Client and an End User.

8.4. Illegal or Brand Damaging Transactions. The Client shall not submit any Transactions which are illegal or could damage the goodwill or reflect negatively on Nuvei or the Service Providers’ brands, including unlicensed sports betting or gambling transactions and transactions arising from tobacco, child pornography, guns, rape, hate, violence, bestiality and the non-face-to-face sale of prescription drugs. The Client is responsible for acquainting himself with the regulations applicable to the supply of payment services and to maintaining at all times all domestic authorizations and licenses applicable to the Client’s activities.

8.5. The Client shall not submit any Transaction where an End User has withdrawn Authorization for such Transaction or a Transaction that was subsequently reversed for the full amount or represents the amount of the partial Authorization reversal. Notwithstanding any Authorization or request from an End User, the Client shall not re-enter or reprocess any transaction which has been charged back.

8.6. Authorization. Unless otherwise notified, all Transactions must be electronically authorized through the Platform (i.e., the Client’s floor limit is zero).

8.7. The Client accepts that an Authorization is neither a guarantee that the person submitting the Transaction is, in fact, the Payment Method holder, nor is it a representation from Nuvei or any Service Provider that the Transaction will not be subject to Chargebacks.

8.8. The Client shall not submit any Transaction where the Client knows or ought to know that the Transaction or the subject content, goods or services are: (i) fraudulent, not authorized by the Payment Method holder or in breach of the Rules; (ii) illegal under Applicable Law governing the Client, the End User or the Client’s goods or services; (iii) immoral; or (iv) which, at the Card Scheme’s sole discretion, could damage the goodwill of the Card Scheme or reflect negatively on the Card Scheme brands.

8.9. The Client must not submit a Transaction for goods or services that the End User would not reasonably expect to receive, or which was not specifically authorized by the End User.

8.10. The Client shall not present a Transaction until the goods or services underlying the Transaction have been delivered or provided to the End User or recipient of the goods/services, or the End User has agreed to delayed delivery of goods or performance of services. Subject to the above, the Client must present records of valid Transactions no later than three (3) business days after the date of the Transaction.

8.11. The Client shall only submit to Nuvei the End User’s payment details required for the processing of the Transaction. The Client represents and warrants that the person whose details are submitted as part of the Transaction consented to the purchase.

8.12. Prior to submitting any Transaction to Nuvei, the Client must electronically record the sale and Transaction details and with each request for Authorization or any other type of Transaction made by the Client shall include the specific fields and information as required by Nuvei.

8.12.1.  Records. The Client must securely retain in readable format all written or electronic data and documents with respect to each Transaction, data transmitted by End Users, conversation and correspondence logs, documents transmitted, subsequent actions such as Chargebacks and Refunds and in the case of distance sales by telephone, the date and time of the phone call, the person from whom the instruction to pay was taken, the subject matter of the purchase order and the payment details transmitted by the End User (but not the card security code). The Client shall make the data and documents available to Nuvei immediately upon request. The Client must retain this data and documents for at least five (5) years unless deletion is mandatory by Applicable Law. The Client shall not store any card security code or data.

8.13. The Client shall only present a Transaction to Nuvei for settlement once and shall never submit a Transaction that has previously been processed or declined through Nuvei or another acquirer or payment service provider.

8.14. Prepayments, repeated or recurring payments and deferred payments. In applying any of the aforementioned forms of payment Client shall comply with Applicable Law as well as with certain specific Rules in such matters including but not limited with respect to adequate disclosures to End Users (including duration, charge(s) and frequency, timing, specific terms and conditions, delivery times, cancellation and refund policy, associated charges) as well as recorded specific consents by the End Users at the time of the first or initial Transaction. The Client further acknowledges that certain Rules mandate that deviation from the respective guidelines will mandate a refund of the full amounts paid.

8.15. Charges to End Users. The Client must not directly or indirectly require any End User to pay a surcharge (for this purpose: a surcharge is any fee charged in connection with a Transaction that is not charged if another Payment Method is used) or any part of any Client fee paid to Acquirer or any contemporaneous finance charge in connection with a Transaction, unless applicable laws expressly require that client be permitted to impose a surcharge. The Client may provide a discount to its End Users for cash payments. Any surcharge amount, if allowed, must be included in the transaction amount and not collected separately. The Client must clearly communicate surcharge amount to End User and End User must agree to the surcharge amount before the client initiates the Transaction. The Client is permitted to charge a fee (such as a bona fide commission, postage, expedited service or convenience fees, and the like) if the fee is imposed on all like Transactions regardless of the form of payment used, or as the respective Card Scheme or APMP expressly permitted in writing.

8.16. Without prejudice to the Client’s other obligations in this Agreement, the Client agrees not to use the Platform and not to do any of the following with respect to any Transaction: (1) obtain multiple Authorizations for amounts less than the total sale amount; (2) obtain Authorization for purposes of setting aside End User’s credit line for use in future sales; (3) require or indicate that it requires a minimum or maximum Transaction amount to accept a Card; (4) process Transactions relating to goods and services which are not under the Client’s trade names or do not fall within the Client’s ordinary course of business as identified by the Client to Nuvei and specifically approved by Nuvei in writing; (5) sales by third parties; (6) goods or services for which the Client has received or expects to receive payment in any other form; (7) Transactions which relate to the matters prohibited or restricted as per Nuvei’s then current list of prohibited and restricted transactions, business types, products and services as set forth in Schedule 4; (8) split a Transaction into two or more Transactions; and/or (9) accept any Transaction using any Card issued in Nuvei’s or Client’s name, or related to a bank account of a partner or a director or an officer of Nuvei and/or Client, or of the spouse or any member of the immediate family or household of any such person.

8.17. Upon request, the Client shall provide Nuvei with proof that each Transaction presented was processed as per the Rules and these guidelines, was based on a legal transaction with the End User that was permitted under this Agreement and in an amount that corresponds to the presented transaction.

8.18. Should the Client breach the guidelines set forth in this Agreement in relation to Transactions Nuvei shall be entitled, in addition to any other available remedy, to reject and not process any affected Transactions; suspend the Client’s access to the Services; and/or immediately terminate the Agreement.

8.19. Refunds. Any credit back or Refund in respect of a Card Transaction shall be made: (i) only if the original Card Transactions was (a) originally submitted to Nuvei; and (b) subsequently cancelled, and (ii) only to the same Card used for the original Card Transaction. A credit or a Refund shall not exceed the amount of the original transaction. The Client may not initiate a Refund without a sufficient positive balance in the Client favor held by Nuvei.

8.20. All Transactions are at the Client’s risk.

9. Ownership; Right to Use; Trademarks

9.1. Ownership. All right, title, and interest to, any and all Intellectual Property Rights in the Platform and Services are and will remain solely and exclusively the property of Nuvei and/or its licensors (or Affiliates).

The Client is granted no title or ownership rights in the Platform or in part of the Platform. The Client further acknowledges that Nuvei considers the Platform to contain trade secrets. The Client’s right to use the Platform and any part of the Platform is strictly limited to the provisions of this clause and Nuvei reserves all rights not expressly granted herein.

9.2. Right to Use. Subject to the terms and conditions of this Agreement, and contingent upon payment of the Fees, as set out in this Agreement, Nuvei grants the Client a limited, non-exclusive, non-transferable right during the term of this Agreement (subject to suspension provisions) to access and use the Platform and Services for the purposes set out in this Agreement and as specifically permitted by Nuvei for the Client’s internal purposes and solely as necessary for the Client’s use of the Services in accordance with this Agreement. The Client may not (i) distribute, sell, license, sublicense, assign, reproduce, transfer, pledge, or share the Platform and any part of the Platform, and/or any of its rights under this Agreement; or (ii) make the Platform or any part thereof available to others in a service bureau or outsourcing arrangement or for any other commercial time-sharing, data processing or other third party use. For the avoidance of doubt, Transaction specific guidelines and prohibitions as set forth in this Agreement shall also be read to apply to use of the Platform (e.g. where a Transaction is prohibited the Client is also prohibited from using the Platform in that respect).

9.3. Marks

9.3.1. Each Party represents and warrants that it is the sole and exclusive owner or is the authorized licensee of its Marks and all Intellectual Property Rights as well as in the materials provided to the other Party.

9.3.2. The Client hereby grants to Nuvei a worldwide, non-exclusive, unlimited and royalty-free license to use its Marks in the provision of Services and public disclosure of the parties’ relationships herein.

9.3.3.    Service Providers and Nuvei Marks (jointly: “Scheme Marks”)

9.3.3.1. The Client’s use of Scheme Marks shall be subject to Nuvei’s prior written consent and strictly limited to the manner of use as approved by Nuvei. Such right may be given, revoked or changed at any time upon notice at Nuvei’s (or the respective owners’ or licensors’) sole discretion. The Client will accordingly change or remove such display immediately upon request by Nuvei or the respective Mark owners or licensors.

Where the use is permitted by Nuvei, the Client’s authorization to use the Scheme Marks shall comply with the Rules including the reproduction, usage, and artwork standards as they refer to the Client’s specific line of business (each Scheme has brand standards with which the Client will comply), as may be in effect from time to time and will be limited to the Client’s promotional materials and website to indicate that the respective Payment Methods are accepted as payment for the business’ goods and services. Where the Client uses marks owned or licensed by different owners, visual parity must be maintained and no mark shall appear in a more prominent way than other marks and must be displayed as a free- standing mark. Client may be required to provide samples of such usages.

9.3.3.2. No Implied Endorsement. The Client will not use Scheme Marks and/or refer to Scheme Mark owners or licensors in any way which implies their endorsement of the Client, its activities or its goods or services. The Client may not refer to any of the Scheme Marks owners in stating eligibility for the Client’s products or services or to indicate payment acceptance.

9.3.3.3. The Client shall not contest the ownership of the Scheme Marks for any reason. The Client specifically acknowledges and agrees that the respective Service Providers are the sole and exclusive owner of their respective Marks. The Client may not use, adopt, register, or attempt to register a company name, product name, or Mark that is confusingly similar to any Scheme Mark.

9.3.3.4. The Client’s right to use or display the Scheme Marks will terminate effective with the termination of this Agreement, suspension of the Services or upon notification by Nuvei or the respective Scheme Mark owner or licensor to discontinue such use or display. The Client acknowledges that Card Schemes reserve the right to immediately prohibit the Client from using their Marks at any time and without advance notice.

10.  Confidentiality. The Parties shall comply with the provisions of Schedule 6.

11.  Data Protection. The Parties shall comply with the Data Protection Laws and the provisions of Schedule 5.

12.  Independence. Nuvei is an independent contractor and in its capacity herein is not an agent, distributor or reseller of the Service Providers. The Parties’ relationship to each other in all matters relating to the performance of this Agreement is that of independent entities and nothing contained in this Agreement will place the Parties in the relationship of partners, participants in a joint venture, contractor-subcontractor, or employer- employee and, except as set forth herein, neither Party shall have the authority to act in the name or on behalf of the other Party nor will it have any right to obligate or bind the other in any manner whatsoever nor represent to a third party that it has any right to enter into any binding obligation on the other’s behalf. Any attempt to do so shall be null and void.

13.  Governing Law and Jurisdiction.

This Agreement and all matters (including any dispute relating to the existence, validity or termination of this Agreement or any contractual or non-contractual obligation) arising from it shall be governed by, and construed in accordance with, English law. English court shall have exclusive jurisdiction to settle any dispute or claim (including non- contractual disputes or claims) arising out of or in connection with this Agreement, its subject matter or formation.

14.   Miscellaneous Provisions

14.1. In the event of any inconsistency between any provision of this Agreement and the Rules, the Rules will prevail. In the event of any conflict or inconsistency between the STC signed between the Client and Nuvei and these GTC, the STC will prevail.

14.2. The Client confirms that if the Client does not meet the criteria for a micro-enterprise or a charity within the meaning of the UK Payment Services Regulations 2017 ((SI 2017/752), or any equivalent regulations in Gibraltar, as amended or re-enacted from time to time, the Client agrees that none of the provisions of Part 6, nor regulations 66(1), 67(3), 67(4), 75, 77, 79, 80, 83, 91, 92 and 94 of the Payment Services Regulations 2017, or any equivalent regulations in Gibraltar, as amended from time to time, apply to this Agreement. If the Client does meet the aforementioned criteria, then the notice periods set out in clauses 2.3, 3.6 and 6.2 required of Nuvei’s shall be two (2) months. The proposed change under clauses 2.3 and 3.6 shall come into effect on the date stated in Nuvei’s notice, such date to be at least two (2) months after the date of receipt of the notice unless the Client notifies Nuvei that it wishes the Agreement to end before the change takes effect.

14.3. Disputes with End Users. All disputes between the Client and the End User, including in relation to the End User’s respective Payment Method shall be settled between the Client and the End User. Neither Nuvei nor the respective Acquirer or APMP shall have any responsibility for such disputes. The Client shall handle all End User disputes (including with respect to Chargebacks) in accordance with the Applicable Law and Rules (such as, for example MasterCard’s Chargeback Guide).

14.4.     Neither Party shall be deemed to be in breach of this Agreement or otherwise be liable to the other by reason of any delay in performance or non-performance of any of its obligations to the extent that such delay or non-performance is due to any Force Majeure Event of which it has promptly notified the other Party after becoming aware of it and the time for performance of that obligation shall be extended accordingly. If the Force Majeure Event in question continues for a continuous period in excess of three (3) months the Parties shall enter into bona fide discussions with a view to alleviating its effects or to agreeing upon such alternative arrangements as may be fair and reasonable. Subject to the provisions of this Agreement, the Force Majeure Event will not alleviate any of the Parties from their payment obligations towards one another, in case of termination of the Agreement.

14.5. The STC signed between the Client and Nuvei together with these GTC and their Schedules and the documents referred to herein shall constitute the entire agreement between the Parties with respect to its subject matter and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to that subject matter.

14.6. Unless specifically indicated otherwise, this Agreement may only be varied in writing subject to signature by all the Parties.

14.7. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy; and will not be construed as a waiver of any subsequent breach or default under the same or any other provision of this Agreement.

14.8. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.

14.9. This Agreement, any part thereof or any rights or obligations under it may not be novated, assigned, outsourced, or transferred by the Client without the advance written consent of Nuvei. Nuvei may novate, assign, outsource, or transfer all or part of the rights and/or responsibilities under this Agreement to a party of at least equal financial standing without the prior consent of the Client, subject to the recipient being permitted to receive such novation, assignment, outsourcing arrangement or transfer under Applicable Law.

14.10.   Third party rights. Unless it expressly states otherwise, this Agreement does not give rise to any rights to any third party under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. The rights of the Parties to rescind, vary or terminate this Agreement are not subject to the consent of any other person. The Acquirers and APMPs have a right to enforce the indemnification and liability provisions of this Agreement and may, at their sole discretion, assign any such right to Nuvei.

14.11.   Card Scheme rights. The Card Schemes shall have the right, either in law or in equity, to enforce any provision of the Rules and to prohibit Nuvei and/or the Client from engaging in any conduct the Card Scheme deems could injure or could create a risk of injury to the Card Scheme, including injury to reputation, or that could adversely affect the integrity of the interchange system, the Card Scheme’s Confidential Information as defined in the Rules, or both. The Client agrees to refrain from taking any action that would have the effect of interfering with or preventing an exercise of these rights by the Card Schemes.

14.12.   Notices. Any notice required or permitted in his Agreement shall be in writing and shall be delivered by overnight courier at the respective addresses set forth above (as may be changed by each of the Parties from time to time) or via electronic mail to Nuvei to its managing director and if to the Client to its authorized representative. Any notice shall operate and be deemed to have been served on the second business day (in the place of receipt) after the date of delivery to the overnight courier or the sending via electronic mail. Notwithstanding the above, court documents and legal claims must be submitted as per Applicable Law.

14.13.   Severability. If any provision (or part thereof) of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision (or part thereof) of this Agreement is deemed deleted under this clause 14.13, the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

14.14.   Intentionally omitted.

14.15.   Intentionally omitted.

14.16.   Means of Communication. Any documentation Nuvei may send to the Client by email from time to time may be sent as an electronic attachment (for example, as a PDF). The Client should make sure that its electronic device(s) are set up to receive Nuvei’s communications (for example, they have the correct hardware, software, operating system and browser). The language this Agreement will be concluded in and in which any information or notifications required under this Agreement and/or the Applicable Law shall be English.

14.17.   Safeguarding. Any funds held by Nuvei pending Remittance (including as a Reserve) shall, where required, be held in one or more segregated bank accounts separate from Nuvei’s funds, or via such other safeguarding method, as permitted in accordance with Applicable Law.

14.18.   1.1. Regulatory Information. Nuvei Financial Services Limited is authorized as Electronic Money Institution and regulated by the Financial Conduct Authority (FRN 994233). Nuvei Financial Services Limited is also authorized by the Gibraltar Financial Services Commission (GFSC) To find out more about us, see the Financial Services Register: https://register.fca.org.uk/ or call the FCA on 0800 111 6768 or +44 207 066 1000 if calling from outside the UK. You can contact us via your dedicated account manager or by using Contact Us section on www.nuvei.com. To find out more about our Gibraltar authorization, please see the Financial Services Register: https://www.fsc.gi/regulated-entities or call the GFSC on +350 20040283.

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SCHEDULE 1 - RESERVED

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SCHEDULE 2 - PROCESSING SERVICES

The form of Service, contractual structure, method of settlement and remittance as well as the respective terms and conditions may vary between Clients, Payment Methods and financial institutes and may be subject to the Merchant Agreement. The provisions below are to be read in such context.

1.       Definitions

In this Schedule, any capitalised terms shall have the meaning ascribed to them in the Agreement or the Merchant Agreement, unless expressly stated otherwise. The following terms as used in this Schedule shall have the meanings ascribed to them herein:

1.1         “Deductions” means any and all of the following: (1) fees, charges and tax due to Nuvei, Card Schemes, Acquirers and/or APMPs as per the provisions of this Agreement; (2) Chargebacks, Refunds, credits, payments imposed and any other amounts deducted from settled Transactions by the Card Schemes, Acquirers and/or APMPs; (3) Assessments; (4) the Reserve amounts and any amount required to maintain the Reserve at the designated level; (5) amounts of overpayment, however made; (6) payments made in respect of invalid Transactions; (7) all wiring or bank transfer charges; and/or (8) any amounts owed or due to Nuvei, Card Schemes, Acquirers and/or APMPs or recoverable by Nuvei and/or on behalf of Card Schemes, Acquirers and/or APMPs under this Agreement or otherwise.

1.2         “Remittances” means a transfer of money to Client for the amount actually collected by Nuvei or the respective Acquirer or APMPs with respect to the Client’s Transactions processed, less Deductions.

2.       Processing Services and Settlement

2.1         The Processing Services shall include the following:

2.1.1  real-time online authentication and approval of the respective Payment Method information as provided by the Client for each Transaction processed by Nuvei.

2.1.2  real-time online confirmation and approval that the relevant End User’s payment account which are connected to their selected Payment Method have sufficient credit/monies available to cover the amounts of the Transactions.

2.1.3  settlement of the Transactions that have been approved based on positive Payment Method information, positive credit availability (where relevant) and positive electronic mail verification to the extent that the same are used.

2.1.4      risk screening as per requirements set by the Client.

2.1.5      crediting back Payment Methods (up to the amount debited) upon electronic instructions from the Client.

2.1.6  weekly electronic confirmation to the Client regarding the status of the Transactions including the total deposits, returns, Chargebacks pending and processed.

2.1.7  the Client shall check periodic statements of account whilst accessing the C-Panel or on their receipt from Nuvei and notify Nuvei of any errors promptly but no later than within six (6) weeks. Upon the expiry of said period, statement shall be deemed to have been approved by the Client and Nuvei will not have any obligation to investigate or correct any errors.

2.2         In certain pre-identified scenarios (e.g. with specific APMPs or Acquirers) some of activities described in this Schedule will be provided by the specific Acquirer or APM (e.g. aggregation of funds or settlement to the Client) and in such cases Nuvei’s rights and remedies herein shall apply accordingly and Nuvei may instruct such third parties to perform the activities described herein (e.g. settle, hold Reserve, withhold or deduct etc. Rules may include other/additional provisions.

3.       Reserve

3.1         Nuvei shall maintain a non-interest bearing security reserve to guarantee payment by the Client of Deductions or any other actual or potential debt or liability (the “Reserve” or sometimes referred to as a ‘holdback’). Nuvei will fund the Reserve, replenish and maintain it at the designated level by deducting the required amounts from the Remittances and/or other funds due to the Client and if such Deductions are not possible require that the Client makes a payment to Nuvei for the amounts required to replenish the Reserve within two (2) days of Nuvei’s request and by such means as Nuvei may specify. When the Client is required to make a payment under this paragraph, the Client hereby waives any right of setoff it may have or to which it may be entitled under this Agreement from time to time. The Client not meeting these provisions may, inter alia, force Nuvei to suspend or terminate the Services.

3.2         Unless otherwise advised by Nuvei in the STC, the amount of the Reserve shall be ten percent (10%) of the total value of all approved and settled Transactions within a specific calendar month and the Reserve for each calendar month will be held and maintained for a minimum of six (6) months from the end of such calendar month, on a rolling basis. If after the six (6) month period there is still a risk of more Deductions or any other actual or potential debt or liability, then Nuvei will have the right to withhold such amount until such risk is eliminated. Upon expiry of this six (6) month period (or longer, as the case may be), any balance remaining as the Reserve for the relevant calendar month will be remitted to the Client. Nuvei will inform the Client of any charges debited to the Reserve during this period.

3.3         Nuvei may change the Client’s Reserve and/or the manner in which it is calculated upon notice to the Client depending on the Client’s Deductions, Refund Ratios, Fraud Ratios, Chargeback Ratios, and other risk considerations.

4.       Withholding, Deductions and Set-off

4.1         Nuvei shall have the right to withhold, deduct or set-off the Deductions or any actual or potential debt or liability, from and against any amounts due to the Client or appearing on the Client’s balance under this Agreement (including the Client’s approved and settled Transactions) or alternatively debit said amounts against the Reserve or debit the Client directly and if such actions are not possible require that the Client makes a payment to Nuvei for the amounts required within two (2) days of Nuvei’s request. Nuvei may also instruct the respective Service Provider to withhold or deduct such amounts from the Client balances held with it and settle those amounts to Nuvei. The Client acknowledges that the Service Providers shall have the right to withhold settlement of any funds due to Nuvei or the Client in the event of breach of this Agreement and/or the Rules by the Client. The Client not meeting these provisions may, inter alia, force Nuvei to suspend or terminate the Services.

4.2         The Client agrees that not applying a Deduction or set-off for any period of time does not constitute a waiver of Nuvei’s right to apply such Deduction or set-off retroactively or for that period of time including but not limited where such retroactive or retrospective Deductions are applied by the respective Payment Methods or third-party processors.

4.3         THE CLIENT EXPRESSLY AGREES TO ANY DEDUCTION, CHARGE OR DEBIT MADE BY NUVEI TO THE CLIENT’S BALANCE OR RESERVE THAT ARE MADE IN ACCORDANCE WITH THIS AGREEMENT.

5.       Payment of Remittances

5.1         Remittances shall be remitted to the Client in accordance with the provisions of this clause and the STC. Remittance is always subject to the availability of funds with the respective third parties (including the Service Providers, ISPs, banks, processing networks, money transfer systems, external data bases) and the receipt by the party remitting of the respective funds from the respective Payment Method provider (Service Provider or otherwise).

5.2         Intentionally omitted.

5.3         Remittance intervals may be changed or Remittance may be withheld or delayed upon notice and at Nuvei’s discretion depending on the Client’s level of Deductions (e.g. refund ratios, Fraud Ratios or Chargeback Ratios), any other actual or potential debt or liability and other risk considerations until such matters are resolved to Nuvei’s reasonable satisfaction. Remittance may also be withheld or delayed where Nuvei has financial crime or other risk concerns, the Client is in breach of the Agreement, when the amount due is higher than the aggregate of the amounts held in the Client’s Reserve and settlement account or in the event the Client is part of or the Client is entered into any of the Card Schemes’ Chargeback, fraud or audit programs (e.g. MasterCard’s Global Merchant Audit Program or Visa’s respective Merchant Fraud Programs).

5.4         Remittances may be affected, postponed or delayed due to weekends, public or banking holidays in the respective jurisdictions (including Nuvei’s, the Client’s, the respective Service Provider’s, bank’s or other Service Provider’s jurisdiction), or due to any technical delays or malfunctions of the relevant systems. Nuvei shall not be liable for any loss arising in relation to such delays.

5.5         Payments will be made only if the accumulated amount payable to the Client is at least 5000 of the applicable currency units. If this minimum amount is not reached in a particular week, Nuvei will be entitled to withhold payment and carry the amount due to the Client to the next payment(s) until the minimum amount is reached.

5.6         Currency. Unless otherwise agreed by the Parties in the STC, Remittances will be due and payable in GBP. When processing is in other currencies, the respective banks’, Service Providers’ and Nuvei's prevailing conversion rates and fees will apply to each movement.

5.7         Wiring and transfer charges in connection with any payment will be borne by the Client and deducted from such payment.

5.8         The amounts remitted to the Client shall constitute the full, final, and complete payment and consideration due to the Client.

5.9         The Client acknowledges, understands and accepts that (i) the Authorization of a Transaction only indicates that a Payment Method is not restricted, declared invalid and within limits at the time of Authorization; (ii) the Authorization is not a promise to pay, guarantee of acceptance, payment by the End User or protection against a Chargeback or Refund, and that (iii) an Authorization shall not relieve the Client of its contractual and legal obligations or otherwise validate a fraudulent or disputed Transaction whether or not the Client knew or should have known of the Transaction being so.

5.10   The Client further acknowledges, understands and accepts that no acquisition of any Transaction shall be final so long as the Transaction is subject to refunds, Chargeback, investigation of fraud or repayment, that Nuvei may evoke prior provisional settlements and that all settlements, remittance and credits by Nuvei are provisional and made conditionally and subject at all times to Rules, permissible Deductions or any other right to set off regardless of time of Deduction (for example purposes: if a Deduction is due after the remittance has been made).

6.       Payouts.

Nuvei may enable the processing of payouts, VISA Direct or OCT - Original Credit Transactions (for VISA), PT - Payment Transactions (for MasterCard) or as otherwise titled or any similar launch by the respective Card Scheme or Payment Method (jointly: “Payout” or at times “OCT”). Nuvei may suspend or terminate this service at its sole discretion. The processing of Payouts is subject to the Rules, Applicable Law, permitted jurisdictions and Nuvei’s guidelines as provided from time to time, including the following:

• Payouts are made from the available amounts due to the Client as Remittance as per the provisions of this Agreement and may be subject (individually and in the aggregate) to periodic, percentage and amount limitations.

• Payouts are not a credit or a Refund against a previous Transaction.

• Payouts are non-reversible, by submitting a Payout to Nuvei the Client irrevocably authorizes the transfer of the said amount.

•  The Client shall only initiate Payouts to End Users which are registered with the Client and which have undergone and passed the Client’s strict ‘know your customer’ due diligence as mandated by Applicable Law.

•  The Client must get the End User’s explicit consent to Payout and to the specific Payment Method.

•  Payout shall be considered a Transaction and additional fees and charges may apply as per the provisions of the Agreement, including the provisions of clause 5 of the Agreement.

7.       Payment Facilitator (where applicable)

In certain pre-defined instances Nuvei may act as a payment facilitator or equivalent (as may be defined by the specific Card Scheme; Card Schemes may title it differently), in which case specific provisions may apply to the Client (sometimes defined as a ‘Sponsored Merchant’ or a ‘Sub merchant’ in payment facilitator structure) as per the requirements of the specific Acquirer.

8.       Remittance by/via a Third Party. Nuvei may at any time and without notice use third parties for the purpose of payment of Remittances and any other Services and shall notify the Client of the identity of such third parties from time to time. All payments to the Client’s account by third parties shall be deemed as payment by Nuvei. Notwithstanding, where Remittances are made directly by such third parties such transfer of funds shall be subject to the third party’s practices and the third party may deduct a wire fee for each Remittance in accordance with its terms. Nuvei shall not have any liability to the Client with respect to such payments by the third party.

9.    The Client hereby irrevocably instructs the Acquirers and APMPs to pay Nuvei the Nuvei Fees and other amounts payable to Nuvei under the Merchant Agreement immediately upon request by Nuvei.

SCHEDULE 3 – CLIENT DECLARATION WITH RESPECT TO ITS SERVICES, WEBSITES AND APPLICATIONS

The Client hereby represents, covenants, and warrants upon signature of this Agreement and throughout the term of the Agreement, as follows:

1.     The Client owns and operates the Websites (as such term is defined under the STC). The Client has full control and authorization of the Websites' content. In this document ‘Website’ shall include any and all subpages and webpages included under, in or referred to, the following:

(a) URLs, websites and applications identified and specified in the list of Websites under the STC signed between the Client and Nuvei; and

(b) URLs, websites and applications approved by Nuvei in writing and recorded on Nuvei’s Platform.

2.     Where there are changes to the list of Websites, the Client shall update Nuvei in writing (electronic mail sufficient) immediately for Nuvei’s consideration of such changes.

3.     The Client warrants that it does not, and shall not, provide any type of payment services to any company or any business organization.

4.     The Client shall only permit Transactions originated from a Website which has been approved in advance and in writing by Nuvei.

5.     Save where the Client is a marketplace, as defined by Card Schemes, the Client is the owner of all sales traffic that originates from the Websites.

6.     The Client’s use of Nuvei’s Platform and Services shall comply in all matters with the provisions of the Agreement including but not limited with the Client’s specific representations as to its offering and services and the restrictions on use as detailed in the Agreement.

7.     The Client may not include any statement that waives or seeks to waive a consumer’s right to dispute the transaction with the respective Service Provider.

8.     The Client shall comply with and observe and ensure that the Websites comply with and observe all the Rules and Applicable Law including PCI-DSS (Payment Card Industry Data Security Standard) regulations.

9.     The Websites do not and shall not contain any illegal material or material depicting, advertising, promoting or endorsing and illegal or immoral activity and/or activity which is prohibited by Nuvei and/or the respective Service Provider and such prohibitions shall be conveyed to the Client and including the matters prohibited in the Agreement or as detailed in Schedule 4.

10.   Websites shall contain the following information at all times: (i) customer service contact including electronic mail address and/or telephone number, fax number, address, country(ies) of domicile; (ii) what goods and services are offered for sale and complete description of the goods or services; (iii) price of good or service and transaction currency; (iv) returned merchandise and refund/exchange/cancellation policies. If no refund or return is given (and no refund or return is required to be given by Applicable Laws), the End User must be advised in writing that the sale is a “final sale” and “no returns” are permitted at the time of the Transaction. End Users must also be advised in writing of any of the Client’s policies that provide for no-cash refunds and in-store credit only; (v) applicable export and legal terms and restrictions, if known; (vi) delivery policy; (vii) the Client’s security capability and policy for the transmission of payment data; (viii) at the point where the payment is executed a clear message that states that a payment is about to be made and any other information required by Applicable Law or Rules; (ix) the Website and the Client’s Privacy Policy and method(s) of transaction security; (x) the way the Client’s details will appear on the End User’s statement with the Payment Method; and (xii) in case of a recurring transaction, an explanation on the frequency of the recurring transaction and as to how to stop receiving goods and/or services, delivering goods and/or services and related charges (xiii) transaction currency.

11.   Websites shall also include the following shipping details: (i) time to deliver (which, save for pre-orders, must be lower than ten (10) days); (ii) method of delivery; (iii) shipment fee; (iv) order tracking if applicable; (v) insurance if applicable; (vi) time of charge (upon shipment or upon arrival). If, after the order has been taken, additional delays will be incurred (e.g., out of stock), the Client must notify the End User and have the transaction reauthorised.

12.   At time of purchase, the Client must disclose to the End User any restrictions, additional conditions, or customer service policies that may be relevant to the End User’s ability to access the service purchased.

13.   All Websites shall prominently display an ownership statement identifying the Client stating that the Client is the owner of the Websites and that the Client is responsible for the Transaction, including delivery of any products or provision of any services, for customer services and dispute resolution.

14.   Nuvei may require the Client to make any changes to the Website or otherwise as it deems necessary or appropriate to ensure that the Client remains in compliance with Applicable Law and this Agreement.

SCHEDULE 4 - PROHIBITED AND RESTRICTED TRANSACTIONS, BUSINESS TYPES, PRODUCTS AND SERVICES

 The Client is prohibited from processing Transaction and from using Nuvei’s Platform and Services for Transactions relating to the following non- exhaustive categories without Nuvei’s prior written approval which may be withheld or revoked at Nuvei’s sole discretion. Nuvei may change these guidelines from time to time.

• Adult products and services

• Advanced payments greater than 1 year (any product or service that will be delivered partially or fully one year or more from the initial payment

• Bestiality

• Bidding fee auction

• Business/investment opportunities operating as “get rich quick schemes

•  Cash advance

• Child abuse

•  Chain letters and cash gifting

• Charity organizations – unless explicitly authorized and registered to a local Charities Regulator or equivalent

• Cigarettes and Tobacco (unless explicitly authorized and/or licensed by a local regulatory authority or equivalent)

• Collection agencies (unless explicitly authorized and/or licensed by a local regulatory authority or equivalent)

• Companion/escort services

• Counterfeit merchandise, goods/replicas

• Credit repair/restoration

• Data pass

• Debt/interest collection, consolidation, refinance, or reduction services (unless explicitly authorized and/or licensed by a local regulatory authority or equivalent)

• Decryption and descrambler products including mod chip

• Drugs (illicit) and drugs paraphernalia of any form

• Essay Mill

• Fake references and other services/products that foster deception (including fake IDs and government documents

• File sharing services/cyberlocker

• Firearms, ammunition and gun parts, bombs, or other explosive device

• Unlicensed gambling including online and sports betting transactions

• Herbal smoking blends and herbal incense

• “How To” books, newsletters, subscriptions, or on-line access for any industry shown in this Schedule

• Jammers or devices that are designed to block, jam, or interfere with cellular and personal communication devices/signals

• Medical benefits packages (including discount medical cards

• Medical health insurance packages

• Mortgage/credit/debt reduction/consulting services

• Multi-level marketing

• Non-consensual sexual behavior of any kind, whether real or simulated

• Operations that have ransom-like or extortion-like basis for their business model (e.g. mugshot removal

• Products or services that infringe the Intellectual Property Rights

• Products or services, including an image, which is patently offensive and lacks serious artistic value (such as, by way of example and not limitation, images of non-consensual sexual behavior, sexual exploitation of a minor, non-consensual mutilation of a person or body part, and bestiality), or any other material that the Card Schemes deem unacceptable to sell in connection with a Scheme Mark

• Payday loans

• Spy software products or services

• Trafficking in persons (TIPS)

• Unauthorized ticket sellers

• Violence

• Virtual currency(ies) business(es) if unlicensed/unregistered (in jurisdictions where required) and/or licensed from high-risk/prohibited jurisdictions

• Vitamins and supplements “magic pills”

SCHEDULE 5 – DATA PROTECTION

1.     Definitions

1.1.          In this Data Protection Schedule, the following words shall have the following meanings:

(a) controller, process, and processor have the meanings given to them in the Data Protection Law.

(b) data subject means an individual who is the subject of personal data.

(c) Data Protection Law means: (i) the General Data Protection Regulation ((EU) 2016/679) (GDPR); (ii) the Data Protection Act 2018, Law 125(I)2018 and (iii) any other laws, regulations and secondary legislation enacted from time to time in the United Kingdom relating to data protection, the use of information relating to individuals, the information rights of individuals and/or the processing of personal data.

(d) Personal Data means information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person.

2.     Compliance with data protection law

2.1. Each party shall comply with the Data Protection Law as it applies to personal data processed under this Agreement. This clause is in addition to, and does not relieve, remove, or replace, a party’s obligations under the Data Protection Law.

3.     Data processing

3.1. The Parties agree and acknowledge that for the purpose of Data Protection Laws Client will be acting as a data controller and Nuvei will be acting as a data processor in respect of the Personal Data that is the subject of this agreement.

3.2. The Client is solely and wholly responsible for establishing and maintaining the lawful basis for the processing of personal data by Nuvei under this Agreement in order to fulfil its obligations and with respect to including (where applicable) the obtaining of all necessary consents from data subjects.

3.3. A description of the data processing carried out by Nuvei under this Agreement is set out in Part 1 of the Appendix to this Data Protection Schedule.

3.4. The Client acknowledges that aggregated, anonymized data may be created based on Personal Data. Data subjects are not identifiable from this data. This Data may be used and/or shared with third parties for the purposes of billing, product enablement and build, testing or product improvement and for the purposes of replying to requests from public authorities.

3.5. The Client and Nuvei agree to ensure that all staff are appropriately trained in line with their responsibilities under applicable data protection law.

3.6. Data protection enquiries should be addressed to Nuvei’s Data Protection Officer at DPO@nuvei.com.

3.7. In respect of the personal data processed by Nuvei as a data processor acting on behalf of the Client under this Agreement, Nuvei shall:

(a)   process the personal data only on the Client’s written instructions, for compliance with legal obligations to which Nuvei is subject (in which case it shall, if permitted by such law, promptly notify the Client of that requirement before processing), and where processing is necessary for the purposes of the legitimate interests pursued by Nuvei including the prevention of fraud and the maintenance of information security (except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, or where the data subject is a child).

(b)  ensure that it has in place appropriate technical and organizational measures to protect against unauthorized, unlawful or accidental processing, including accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data, such measures in each case to be appropriate to the likelihood and severity of harm to data subjects that might result from the unauthorized, unlawful or accidental processing, having regard to the state of technological development and the cost of implementing any measures.

(c)  ensure that persons engaged in the processing of personal data are bound by appropriate confidentiality obligations.

(d)  keep a record of the processing it carries out and ensure the same is accurate.

(e)  comply promptly with any lawful request from the Client requesting access to, copies of, or the amendment, transfer or deletion of the Personal Data to the extent the same is necessary to allow the Client to fulfil its own obligations under the Data Protection Law, including the Client's obligations arising in respect of a request from a data subject.

(f)   notify the Client promptly if it receives any complaint, notice or communication (whether from a data subject, competent supervisory authority or otherwise) relating to the processing, the personal data or to either party's compliance with the Data Protection Law as it or they relate to this Agreement, and provide the Client with reasonable co-operation, information and other assistance in relation to any such complaint, notice or communication.

(g)  notify the Client promptly if, in its opinion, an instruction from the Client infringes any Data Protection Law (provided always that the Client acknowledges that it remains solely responsible for obtaining independent legal advice regarding the legality of its instructions) or Nuvei is subject to legal requirements that would make it unlawful or otherwise impossible for Nuvei to act according to the Client's instructions or to comply with Data Protection Law.

(h)  ensure in each case that prior to the processing of any personal data by any sub-processor, terms equivalent to the terms set out in this Data Protection Schedule are included in a written contract between Nuvei and any sub-processor engaged in the processing of the personal data.

(i)   subject always to the requirement of sub-clause 3.7(h) regarding a written contract, the Client hereby gives its prior written authorization to the appointment by Nuvei of each of the sub-processors or categories of sub-processors (as the case may be) who will process personal data listed in Part 2 of the Appendix to this Data Protection Schedule, and to the extent this authorization is in respect of a category of sub-processors, Nuvei shall inform the Client of any intended changes concerning the addition or replacement of other categories of sub-processors.

(j)   only transfer the personal data outside of the European Economic Area or the UK (as applicable) if it has fulfilled one of the following conditions:

I.    the Personal Data is transferred to a country approved by the European Commission or the UK (as appliable) as providing an adequate level of protection for Personal Data,

II.    the transfer is made pursuant to European Commission or UK-approved (as appliable) standard contractual clauses for the transfer of Personal Data

III.    or other appropriate legal data transfer mechanisms are used.

The transfer of personal data may take place worldwide subject to the aforementioned arrangements. If the legal means by which adequate protection for the transfer is achieved ceases to be valid, Nuvei will work with the Client to put in place an alternative solution. The Client acknowledges that Nuvei may disclose the data to any applicable Acquirer, APMP, Card Scheme and their respective sub-processors, (including sub-processors located outside the United Kingdom or EEA and such other entities to which it may be reasonably necessary to disclose and transfer personal data including the competent regulatory authority, law enforcement authorities and anti-terrorism or organized crime agencies to whom it is necessary to disclose data.

(k)  inform the Client promptly (and in any event within one business day of becoming aware of such an event) if any personal data processed under this Agreement is lost or destroyed or becomes damaged, corrupted, or unusable or is otherwise subject to unauthorized or unlawful processing including unauthorized or unlawful access or disclosure.

(l)   inform the Client promptly (and in any event within five (5) business days) if it receives a request from a data subject for access to that person’s personal data and shall:

I.    promptly provide the Client with reasonable co-operation and assistance in relation to such request; and

II. not disclose the personal data to any data subject (or to any third party) other than at the request of the Client or as otherwise required under this Agreement.

(m) provide reasonable assistance to the Client in responding to requests from data subjects and in assisting the Client to comply with its obligations under Data Protection Law with respect to security, breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators.

(n)  delete or return that personal data to the Client at the end of the duration of the processing as referred to in the Appendix, and at that time delete or destroy existing copies, subject to the requirements of any legal obligation arising from EU Member State law to which Nuvei is subject, which require continued storage of the End User Personal Data, (including, but not limited to obligations arising from measures aimed at combatting money laundering and the financing of terrorism).

(o)  subject to commercial and confidentiality requirements Nuvei shall make available to the Client soft copy of independent third-party auditors reports and certificates (e.g., PCI-DSS certificate, ISO 27001 certificate) which evidence inter alia Nuvei’s compliance with its obligations under this Schedule. Where the Parties agree that there are relevant components which are not covered under the aforementioned reports and certificates and are necessary for Nuvei to demonstrate compliance with its obligations under this Schedule, these shall be subject to audits, including inspections, conducted by the Client or an independent third-party auditor engaged by the Client. The following requirements apply to any audit:

I.    the Client must give a minimum thirty (30) days’ notice of its intention to audit;

II. the Client may exercise the right to audit no more than once in any calendar year;

III. commencement of the audit shall be subject to agreement with Nuvei of a scope of work for the audit at least ten (10) days in advance;

IV. Nuvei may restrict access to certain parts of its facilities and certain records where such restriction is necessary for commercial and/or client confidentiality;

V.    an audit shall not include items and components which have been reviewed by independent third-party auditors reports and certificates as provided by Nuvei (e.g., PCI-DSS certificate, ISO 27001 certificate);

VI. the right to audit does not include the right to inspect, copy or otherwise remove any records, other than those that relate specifically and exclusively to the Client;

VII. any independent auditor will be required to sign such non-disclosure agreement as is reasonably required by Nuvei prior to the audit; and

VIII. the Client shall compensate Nuvei for its reasonable costs (including for the time of its personnel, other than the client relationship manager) incurred in supporting any audit.

Appendix to the Data Protection Schedule Part 1 – Description of the processing‍

Part 2 – Authorized sub-processors and categories of sub-processor

‍

SCHEDULE 6 – CONFIDENTIALITY

WHEREAS, the Parties, for the purposes of performing under the Agreement, may have exchanged and wish to further exchange certain information; and

WHEREAS, each Party has agreed that any and all Confidential Information (as defined below) of the other Party shall be kept confidential and treated by it in accordance with the terms of this Schedule.

NOW THEREFORE, in consideration of the exchange of Confidential Information, the Parties agree as follows:

1. Definitions and Interpretation. For the purposes of this Schedule:

1.1.    “Confidential Information” shall mean all non-public, confidential or proprietary information disclosed before, on or after the Effective Date, by or on behalf of the Disclosing Party to the Receiving Party or its Permitted Disclosees, in any form, whether or not identified as “confidential,” including: (a) all information concerning the past, present, and future business affairs of the Disclosing Party, its Affiliates, and their customers, suppliers, and any other third parties, including, without limitation, information concerning finances, customers, suppliers, products, services, organizational structure, internal practices, forecasts, sales, financial results, financial records, budgets, and business, marketing, development, sales, and other commercial strategies; (b) any inventions, ideas, methods, discoveries, trade secrets, know-how, patent applications and any other intellectual property rights, in each case whether registered or not; (c) all designs, specifications, models documentation, components, software, hardware, techniques, source code, network, security architecture, product information, reports and documentation, inventions, know-how, trade secrets, structural, scientific, technical, intellectual, algorithmic, pricing data, market reports and other business affairs, object codes, images, icons, audio-visual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing; (d) any third-party confidential information included with, or incorporated in, any information provided by the Disclosing Party to the Receiving Party or its Permitted Disclosees, including in the case of Nuvei information of financial institutions, acquirers, banks, alternative payment methods providers and/or card schemes included in Nuvei’s disclosures or offerings; and (e) all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials prepared by or for the Receiving Party or its Permitted Disclosees that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.

1.2. “Disclosing Party” shall mean the Party disclosing the Confidential Information.

1.3.    “Permitted Disclosees” shall mean the Receiving Party’s Affiliates, and the Receiving Party’s and its Affiliates’ respective officers, directors, employees, advisers, agents, suppliers or service providers to whom disclosure of Confidential Information is necessary strictly for the Purpose.

1.4. “Purpose” shall mean the performance of the Agreement by the Party.

1.5. “Receiving Party” shall mean the Party receiving the Confidential Information.

1.6.    All other capitalized terms that are used in this Schedule but are not specifically defined in this Clause 1, shall have the meaning ascribed to them in the Agreement.

2. Confidentiality and Use. The Receiving Party shall and shall procure that its Permitted Disclosees shall:

2.1.    protect, keep and treat the Confidential Information of the Disclosing Party in strict confidence and with at least the same degree of care as it (or any third party to which it discloses the Confidential Information) would use to protect its own Confidential Information, but in no event with less than a reasonable degree of care;

2.2.    unless with prior written consent of the Disclosing Party, not disclose any Confidential Information of the Disclosing Party, whether directly or indirectly, to any person other than the Permitted Disclosees who (a) have been informed of its confidential nature, (b) are subject to confidentiality obligations, or under a general duty of confidence, to the Receiving Party that are no less onerous than the terms and conditions of this Schedule 6, and (c) need to know the Confidential Information for the Purpose.

2.3.    not use or exploit the Disclosing Party’s Confidential Information in any way except in the manner and to the extent necessary for the Purpose;

2.4.    not reverse engineer, disassemble, decompile, or design around the Disclosing Party's proprietary services, products, and/or confidential intellectual property;

2.5.    not copy, reduce to writing or otherwise record the Confidential Information of the Disclosing Party, in whole or in part, except to the extent necessary for the Purpose; any such copies reductions to writing or records shall be the property of the Disclosing Party or, as the case may be, the Disclosing Party’s licensors and clearly identify them as proprietors; and

2.6.    promptly notify the Disclosing Party of any actual or suspected unauthorized use or disclosure of Confidential Information of the Disclosing Party, of which the Receiving Party becomes aware.

3.     Disclosure by Nuvei. Notwithstanding the above, the Client hereby authorizes Nuvei and Nuvei shall have a right to use any information and documents Nuvei receives under this Agreement or otherwise obtains in connection with this Agreement or in performing the Services, including the know-your-customer information, as required by Nuvei: (i) in order to provide the Services and perform its undertakings under this Agreement, Applicable Law and the Rules; (ii) in review of the Client’s compliance with the provisions of this Agreement; (iii) use in fraud prevention program for the purpose of assisting in identifying merchants involved in, amongst other things, fraud or suspected fraud, insolvency, breach of agreement and such matter which would assist Nuvei in efforts to prevent fraud; (iv) as requested by respective Service Provider or by any competent authority (all of which shall have the same right to use the Client’s Confidential Information); or (v) for the purpose of disclosure to law enforcement bodies where fraud or other criminal activity are suspected. The aforementioned authorization shall accordingly also apply to disclosure and transfer to the following third parties: (i) Nuvei’s partners, service providers, Affiliates as well as appropriate third parties and offices with which Nuvei may validate the information provided by the Client; (ii) any Service Provider; (iii) any third party to which Nuvei assigns, novates or transfers its rights and/or responsibilities under this Agreement (or considers doing any of the aforementioned); or (iv) the Client’s agent/reseller (where applicable).

4.     Exclusions. The Confidential Information shall not include information that: (a) was known to the Receiving Party or its Permitted Disclosees at the time of its disclosure hereunder; (b) is, was or becomes available to the Receiving Party on a non-confidential basis from a third party, provided that such third party is not or was not prohibited from disclosing such Confidential Information by any obligation or duty of confidentiality to the Disclosing Party; (c) was or is independently developed by the Receiving Party or its Permitted Disclosees, without reference to or use of the Confidential Information or other breach of this Schedule 6, as established by documentary evidence; (d) at the time of disclosure is or thereafter becomes publicly known, other than through a breach of this Schedule 6 by the Receiving Party or its Permitted Disclosees; or (e) the Parties agree in writing that the information is not confidential.

5. Mandatory Disclosure. Subject to the provisions of this clause 5, the Receiving Party or its Permitted Disclosees may disclose the Confidential Information to the minimum extent required by (a) an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction; (b) the rules of any listing authority or stock exchange on which its shares or those of any of its Affiliates are listed or traded; or (c) the laws or regulations of any country to which its affairs or those of any of its Affiliates are subject. Before making any such disclosure the Receiving Party shall and shall procure that its Permitted Disclosees shall to the extent permitted by law give the Disclosing Party as much written notice as possible as well as reasonable assistance so that the Disclosing Party may at its sole expense oppose such disclosure or seek a protective order or other limitations on disclosure. Where notice of such disclosure is not prohibited and is given in accordance with this clause 5, the Receiving Party shall take into account the reasonable requests of the Disclosing Party in relation to the content of this disclosure. If the Receiving Party is unable to inform the Disclosing Party before Confidential Information is disclosed pursuant to this clause 5, it shall, to the extent permitted by law, inform the Disclosing Party of the full circumstances of the disclosure and the information that has been disclosed as soon as reasonably practicable after such disclosure has been made. Notwithstanding any provision of this Schedule 6 to the contrary, the Receiving Party shall continue to treat any Confidential Information of the Disclosing Party disclosed under this clause 5 as confidential.

6.     Disclosures in Ordinary Course of Business. Notwithstanding any other provision of this Schedule 6, no prior notice or other action shall be required in respect of any disclosure made to any regulatory authority, banking, financial, accounting, securities or similar supervisory authority exercising its routine supervisory or audit functions, provided that such disclosure is made in the ordinary course and is not specific to the Disclosing Party, the Confidential Information or the Purpose.

7.     Remedies. The Receiving Party understands that any breach of this Schedule 6 may cause immediate and irreparable harm to the Disclosing Party which monetary damages may not adequately remedy. Accordingly, in addition to any other right or remedy that each party may have, the Disclosing Party shall be entitled to seek equitable relief, including injunctive relief and specific performance, in the event of a breach or threatened breach of this Schedule 6.

8.     Destruction or Return. Upon termination or expiry of the Agreement, at the Disclosing Party’s written request, the Receiving Party shall and shall procure that its Permitted Disclosees shall, promptly return to the Disclosing Party or destroy all copies of the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party and its Permitted Disclosees may retain copies of Confidential Information in accordance with its and their respective bona fide internal record retention policies for legal, compliance or regulatory purposes, and copies of computer records and files containing Confidential Information that have been created pursuant to automatic electronic archiving and back-up procedures until such computer records and files have been deleted in the ordinary course. The Receiving Party and its Permitted Disclosees shall continue to be bound by the terms and conditions of this Schedule with respect to such retained Confidential Information.

9.     Reservation of Rights. Each Party reserves all rights in its Confidential Information. The disclosure of Confidential Information by the Disclosing Party does not give the Receiving Party or any other person any express or implied license or other right in respect of any Confidential Information or in any proprietary product, trademark, copyright, patent, or other right owned or controlled by the Disclosing Party beyond the rights expressly set out in the Agreement.

10.   No Representations or Warranties. Unless explicitly provided otherwise under the Agreement, the Confidential Information is provided “as is” and without any representation or warranty, expressed or implied, as to its accuracy or completeness. The Disclosing Party shall not be liable hereunder to the Receiving Party or any of its Permitted Disclosees in relation to or as a result of any of their use of any of the Confidential Information or any errors therein or omissions therefrom.

11.   No Other Obligation. The disclosure of Confidential Information by the parties shall not form any offer by, or representation or warranty on the part of, that party to enter into any further agreement with the other party (other than the Agreement).

12.   No partnership or agency. Nothing in this Schedule is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorize any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

13.   Entire Agreement. The parties agree that this Schedule constitutes the entire agreement between them with respect to the subject matter herein and supersedes any prior agreements, representations or promises of any kind, whether written, oral, express or implied, between the parties with respect to such subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) with respect to such subject matter that is not set out in this Schedule.

14.   Term. The provisions of this Schedule 6 shall survive the termination or expiry of the Agreement.

SCHEDULE 7 – RESERVED

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SCHEDULE 8 – E-MONEY PAYMENT SERVICES TERMS AND CONDITIONS

These e-money payment services terms and conditions (“E-money Terms”) together with the Agreement and any other applicable schedule(s) apply to the E-Money Services.

1.     Definitions and interpretation

1.1.   Unless otherwise set out in this Schedule, the definitions set out in the Agreement shall have the same meaning when used in this Schedule.

1.2.   The following definitions apply in this Schedule:

“E-money” means electronically, including magnetically, stored monetary value as represented by a claim of the Client on Nuvei, which is issued by Nuvei on receipt of funds from the Client for the purpose of making payment transactions and which is accepted by persons other than the Nuvei and not excluded by regulation 3 of the Electronic Money Regulations 2011, or any equivalent regulations in Gibraltar, as amended from time to time;

“E-money Account” means a payment account with a store of E-Money operated by Nuvei held in the name of the Client in order to perform Payment Transfers.

“Payment Order” means an instruction given by the Client to Nuvei to execute a Payment Transfer. “Payment Transfer” means a payment transaction executed by Nuvei following a Payment Order.

“E-Money Services” mean one or more of the following services provided by Nuvei to the Client subject to these E-money Terms and the Agreement (i) opening and operation of the E-money Account; (ii) issuing and redemption of E-money and placing it on the E-money Account;

(iii) executing Payment Transfers to and from the E-money Accounts.

2. E-money Account

2.1.   The E-money in the E-money Account belongs to the Client. No person other than the Client has any rights in relation to the E-Money held in an E-money Account, except in cases of succession or assignment in accordance with clause 14.9 of the Agreement. The Client may not assign or transfer the E-money Account to a third party or otherwise grant any third party a legal or equitable interest in it.

2.2.   E-money held on the E-money Account is not a deposit. Nuvei does not pay any interest on E-money held in the E-money Account.

2.3.   Nuvei may provide the Client with security credentials to access the E-Money Account. The Client must take all reasonable steps to keep these security credentials safe at all times and never disclose them to a third party. The Client must follow any instructions in relation to security that Nuvei may give, from time to time.

2.4.   Nuvei may block or suspend the E-Money Account in the event Nuvei suspects fraudulent use or any other illegal activity, is required by Applicable Law to do so or on reasonable grounds relating to security. 

3.     Funding the E-money Account

3.1.   Remittances will not be paid directly to the Payment Account. Nuvei will pay Remittances to the E-Money Account in accordance with Schedule 2, paragraph 5 (Payment of Remittances) of the Agreement. Upon receipt of the Remittance, Nuvei will issue an equivalent amount of E-Money to the Client and store these funds in the E-Money Account.

3.2.   Nuvei will not issue any E-Money until it has received the Remittance. 

4.     Payment Transfers

4.1.   The Client may use the E-Money in their E-Money Account to make Payment Transfers to other E-Money accounts issued by Nuvei held by other Nuvei clients. The Client must not transact in excess of the balance of E-Money held in the E-Money Account.

4.2.   A Payment Transfer will be regarded as authorized by the Client where the E-money Account has been accessed using the security credentials issued to the Client used to access the E-Money Account.

4.3.   Once the Client has submitted a Payment Order, Nuvei will execute the Payment Order in accordance with the Client’s instructions and deduct the value of the Payment Transfer and applicable fees from the balance of E-Money held on the E-money Account. A Payment Transfer may not be stopped or revoked. Nuvei will not be responsible for the Client’s entering incorrect information in the Payment Order; however, Nuvei will make reasonable efforts to recover the funds, upon the Client’s request.

4.4.   Nuvei may suspend the processing of any Payment Transfer where Nuvei reasonably believes that the Payment Transfer may be fraudulent or involves any criminal activity, until the satisfactory completion of any investigation.

4.5.   Nuvei shall not be responsible for the safety, legality, quality or fitness for purpose or any other aspect of any goods and/or services purchased using the E-money Account. 

5.     Unauthorized and incorrectly executed transactions

5.1.   Nuvei and the Client have agreed that a different time period applies for the purposes of regulation 74(1) of the Payment Services Regulations 2017, or any equivalent regulations in Gibraltar, as amended from time to time.

5.2.   Nuvei will not reimburse the Client (i) in respect of an incorrectly executed Payment Transfer, if Nuvei can prove that Nuvei executed the Payment Transfer in accordance with the Payment Order submitted by the Client; (ii) in respect of an unauthorized Payment Transfer, if Nuvei reasonably suspects that (a) the Client acted fraudulently or (b) the Client failed to keep their security credentials used to access the E-Money Account, E- money Account safe or to take reasonable steps to prevent their misuse; or (iii) in respect of an incorrectly executed or unauthorized payment, if the Client does not notify Nuvei without undue delay and, in any event, no later than 1 month of the debit date of the incorrectly executed or unauthorized payment. 

6.     Redemption

6.1.   Upon receipt of a Remittance and subsequent issuance of E-Money in accordance with paragraph 3 of these E-Money Terms, the balance of the E-Money will be redeemed to the Client’s nominated third-party bank account.

6.2.   The Client acknowledges that regulations 41 and 42 of the Electronic Money Regulations 2011 or any equivalent regulations in Gibraltar, as amended from time to time, do not apply to this Agreement.

6.3.   E-Money held on the E-Money Account may be redeemed for up to six years following termination of the Agreement.

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Copyright © Nuvei. All rights reserved. These General Terms and Conditions are protected by copyright and may not be reproduced, copied, or distributed, in whole or in part, without Nuvei’s prior written consent.

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