MERCHANT SERVICES 

Skrill Merchant Terms and Conditions

Version 8.3 – 1st December 2014

1. Definitions

a) Acceptable Use Policy means Skrill’s policy with respect to prohibited and restricted goods and services;

b) Agreement means the Merchant Terms and Conditions which shall form a binding Agreement between Skrill and the Merchant, including the Annexes and Schedules;

c) Acquirer means a third party financial institution facilitating the processing of credit card transactions;

d) Business Day means any day other than a Saturday or a Sunday or a national or a bank holiday in the United States;

e) Card or Payment Scheme Card or Payment Scheme shall mean any card payment systems (such as VISA, MasterCard®, American Express or others, including national or local systems) or bank payment scheme (such as direct banking systems, direct debit systems or bank transfer systems);

f) Confidential Information means any information which is marked as “Confidential” or “Proprietary” or should be reasonably expected to be confidential having regard to the context of disclosure or the nature of the information; without prejudice to the generality of the foregoing, the terms of this Agreement as well as business plans, data, strategies, methods, customer and client lists, technical specifications, transaction data and Customer data shall be deemed confidential, whether provided prior to or after the date of this Agreement;

g) E-Wallet Payment Service means Skrill's e-wallet based payment service through which a Skrill account holder can send funds to a recipient using an e-mail address as the recipient's identifier (regardless of whether this is facilitated through the use of the Skrill Website or a payments gateway integrated into the Merchant Website or otherwise);

h) Gateway Service means any Skrill service using a payment gateway integrated into (but not necessarily hosted on) the Merchant Website for receiving payment instructions from a customer;

i) Manual means any of the technical manuals applicable to the Skrill Services, including but not limited to the Skrill Gateway Manual and the Automated Payments Interface Manual, each as amended from time to time and published on the Skrill Website, or, in case of a merchant integration through a third party service provider, any third party integration instructions or manuals;

j) Merchant Account means the Merchant’s registered electronic account held with Skrill in accordance with Skrill’s User Profile Terms and Conditions;

k) Merchant Website(s) means the website(s) operated by the Merchant (as amended from time to time);

l) Skrill Services means any services provided by Skrill under this Agreement including the E-Wallet Payment Service, the Gateway Service and all services described in detail in Section 4 hereunder;

m) Skrill Website means the website operated by Skrill (as amended from time to time) for the provision of its services, currently accessible at www.Skrill.com, excluding any external websites to which the website points by way of hyperlink or otherwise;

n) Regulatory Requirements means any law, statute, regulation, order, judgment, decision, recommendation, rule, policy or guidance passed or issued by Congress, any state banking department, government or any competent court or authority or any payment system (including but not limited to bank payment systems, card payment systems such as Visa, MasterCard, American Express, Discover, etc., or any other payment, clearing or settlement system or similar arrangement that is being used for providing the services hereunder);

o) Reserve means such amount or percentage of the balance of the Merchant Account as determined by Skrill in accordance with Section 6 for the purpose of securing claims by Skrill against the Merchant.

1.1. Headings are for convenience only and shall not affect the construction or interpretation of this Agreement.

2. Scope

2.1. This Agreement contains the terms for the provision of services as currently described in Section 4 and such other Services as agreed between the parties from time to time.

2.2. Skrill’s User Profile Terms and Conditions (the “User Profile Terms and Conditions”), available on the Skrill Website, as amended from time to time, shall form a binding part of this Agreement. If (but only to the extent that) any provision of these Standard Merchant Terms and Conditions conflicts with any provision of the User Profile Terms and Conditions, the former shall prevail, except for Section 6 (“Sending/Receiving Payments through Skrill”) of the User Profile Terms and Conditions.

2.3. Applicable acquirer terms shall form a binding part of this Agreement, in accordance with Section 5.11 of this Agreement.

3. Term

3.1. The Agreement commences on the date of acceptance of this Agreement (“Effective Date”).

3.2. Subject to earlier termination under Section 16, this Agreement will continue in full force and effect unless and until either party terminates by giving the other party at least thirty (30) days’ written notice or otherwise in accordance with this Agreement.

4. Services

4.1. Skrill’s E-Wallet Payment Service and Gateway Service facilitate the execution of payments from a customer to the Merchant. Any payment monies collected from customers and received by Skrill shall be transferred into the Merchant Account immediately after deduction of any fees due to Skrill.

4.2. The Merchant is aware that the receipt of a payment into the Merchant Account does not amount to the receipt of cleared funds. The Merchant remains liable to Skrill for the full amount of the payment and any fees deducted therefrom (the “Reversal Amount”) if the payment is later reversed for any reason. In case of such payment reversal, Skrill will first debit the Merchant Account with the Reversal Amount and any applicable third party chargeback or reversal fee. If Merchant Account has a negative or insufficient balance, Skrill reserves the right to deduct amounts owed to Skrill from funds subsequently added to or received in the Merchant Account.

4.3. Skrill reserves the right to suspend, at any time and at its sole discretion, the Merchant Account (or certain functionalities thereof such as uploading, receiving, sending and/or withdrawing funds) if transactions are made which Skrill in its sole discretion deems to be (i) made in breach of this Agreement or (ii) are suspicious with regards to money laundering, terrorism financing, fraud or other illegal activities. Skrill will make reasonable efforts to inform the Merchant of any measure unless Skrill is prohibited from doing so by law or under an order from a competent court or authority. Merchant hereby acknowledges and agrees that if there is reasonable suspicion that Merchant’s Account is used to facilitate fraudulent activities, Skrill shall have the right, at its own discretion and without notice to immediately suspend Merchant’s Account.

4.4. The Merchant acknowledges and agrees that the Skrill service operates solely as a payment intermediary and that Skrill (i) under no circumstances functions as a seller, buyer, dealer, middleman, retailer, auctioneer, supplier, distributor, manufacturer, broker, agent or merchant of any product or service being ordered, obtained or procured by any funds processed through its services; (ii) makes no representations or warranties and does not ensure the quality, safety or legality of any product or service purchased with funds received through the Skrill Services.

4.5. The Merchant acknowledges and agrees that any dispute regarding any product or service purchased or procured by any funds requested or received through the Skrill Services or any transaction involving the Skrill Services is between the sender and receiver of the funds and/or the supplier and receiver of the goods or services. Any transaction connected with the products and services offered by the Merchant shall only obligate the Merchant. Skrill shall not be a party to any resulting dispute including but not limited to disputes over performance and liability issues relating to the delivery, quality, quantity, legality or use of the products and services offered by the Merchant. Without applying the liability restrictions contained in Sections 13.1 and 13.2, the Merchant shall fully indemnify Skrill against any claim by third parties relating to the use of the products and services offered and shall reimburse Skrill in full for all legal and attorney fees, which Skrill may accrue in the course of such legal defense.

4.6. Skrill shall provide to the Merchant online access to Merchant’s account on a 24/7 basis detailing all payments received or made on behalf of the Merchant.

5. Parties Obligations

5.1. Skrill shall make available to the Merchant and its current and prospective customers the Skrill Services as specified in this Agreement and as further described on the Skrill Website. Merchant acknowledges and agrees that all debit or credit card funded transactions from sender’s Skrill Account are processed as “card not present” transactions as described in the Card Payment Schemes.

5.2. Merchant shall open and maintain a Merchant Account by registering as a merchant on the Skrill Website. As part of the registration process, the Merchant will have to accept the User Profile Terms and Conditions, which apply to every Skrill account. These Terms and conditions shall form part of the Agreement as set out in Section 2.2. Skrill reserves the right to make any inquiries it considers necessary at its sole discretion to verify Merchant’s identity. This may require collecting Merchant’s Ultimate Beneficial Owners’ (UBO) identity information, such as name, address, date of birth, social security number, Merchant’s taxpayer identification number and other information that would allow Skrill to reasonably identify Merchant and its UBOs. In addition, Skrill reserves the right to ask Merchant to verify his/her email address, financial instruments, order a credit report or verify Merchant’s information against third party databases or other sources reasonably selected by Skrill at its sole discretion. Merchant acknowledges and agrees that Skrill may limit, suspend or close Merchant’s account in the event Skrill is unable to verify Merchant’s information.

5.3. Merchant shall integrate the Skrill Services into the Merchant Website and operate the same in accordance with the relevant Manuals, as applicable.

5.4. Merchant grants Skrill the right to access the Merchant Website for the purpose of conducting manual checks or automated searches in order to investigate the accuracy of information contained on the Merchant Website in relation to the Skrill Services, provided that (i) Skrill shall be under no obligation to conduct such searches or checks and (ii) any such searches shall under no circumstances be deemed an approval of any contents of the Merchant Website.

5.5. Merchant shall enable the login restriction tools offered in the “Merchant Tools” section of the Skrill Website for both the Automated Payment Interface and the Merchant Account login through the Skrill Website. The Merchant shall further restrict any login to its Merchant Account to only one or a range of IP addresses. If the Merchant has registered more than one Merchant Account, the foregoing shall apply to all Merchant Accounts.

5.6. Without prejudice to payments prohibited under the User Profile Terms and Conditions, Merchant shall not receive payments as consideration for the delivery of any goods or services the offering or provision of which is illegal under applicable law or Skrill Acceptable Use Policy specified in Section 8.9.1 herein.

5.7. The Merchant shall co-operate with Skrill to investigate any suspected illegal, fraudulent or improper activity.

5.8. Upon commencement of the Agreement and at any time thereafter for purposes of complying with Regulatory Requirements, Merchant shall provide Skrill with such information about its business, corporate structure and constitution, shareholders, partners, members, directors, key employees or, in the case of a trust, its beneficiaries. In particular, the Merchant shall inform Skrill in writing of any material changes to its business model or the goods or services it sells or distributes if such change is or can reasonably expected to be relevant with regards to compliance with Regulatory Requirements. Without applying the liability limits contained in Sections 13.1 and 13.2, the Merchant shall indemnify Skrill against all losses arising out of the Merchant’s failure to notify Skrill of any such changes that are relevant for compliance with Regulatory Requirements applicable to Skrill or the Merchant.

5.9. The Merchant shall not charge its customers a processing fee, markup or other surcharge for making payments through the Skrill Services.

5.10. The Merchant shall provide its customers with a clear and fair return and refund policy. Upon request, the Merchant shall provide to Skrill a copy of its return and refund policy and shall notify Skrill of any subsequent change to such policy. Failure to provide such timely notification to Skrill may result in suspension of the Merchant Account.

5.11. Merchant may also be subject to additional Terms and Conditions of the acquiring institution (“Acquirer Terms and Conditions”) if Merchant’s total annual credit card processing volume is expected to exceed One Hundred Thousand Dollars ($100,000) of uncombined Visa or MasterCard transactions in any 12-month period. The acceptance of this Agreement shall be deemed an acceptance of the Acquirer Terms and Conditions. Merchant may receive a copy of the Acquirer Terms and Conditions upon request.

6. Reserve

6.1. For the purposes of establishing a Reserve, Skrill reserves the right to prevent a certain amount of funds from being withdrawn from the Merchant Account or used for payments to third parties. This shall apply regardless of any termination of this Agreement for as long as funds are held on the Merchant Account. The amount of the Reserve (either expressed as an absolute amount or as a percentage of past payments into the Merchant Account) shall be determined by Skrill at any time in its sole discretion.

6.2. Without restricting Skrill’s discretion under Section 6.1, Skrill may take into account, amongst others, the following factors when determining the amount of any Reserve:
6.2.1. The Merchant ceases its business or a substantial part thereof;
6.2.2. The Merchant materially alters the nature of its business;
6.2.3. The Merchant’s business activities carry a higher than normal risk of chargebacks or other reversals of costumer payments;
6.2.4. The Merchant’s overall financial standing;
6.2.5. The Merchant becomes insolvent or is otherwise unable to pay debts as they fall due;
6.2.6. Skrill receive a disproportionate number of customer complaints, chargebacks or other payment reversals, fines, penalties or other liability related to the Merchant Account; or
6.2.7. Skrill reasonably believes that the Merchant will not be able to perform its obligations under this Agreement.

6.3. The Merchant agrees to provide Skrill, upon request and at the Merchant’s expense, with information about its financial and operational status, including the most recent financial statements. The Merchant shall also undertake, at its own expense, any further action reasonably requested by Skrill (including executing any necessary documents and registering any form of document reasonably required to establish such form of security as reasonably required by Skrill).

6.4. If required by Skrill, the Merchant shall pay such amounts into its Merchant Account as reasonably determined by Skrill to fund an initial Reserve or to react to unforeseen increased risks of payment reversals that is not covered by the Merchant Account’s then current balance. Notwithstanding any of the foregoing, where a Merchant incurs a negative balance on his Merchant Account or becomes otherwise liable for the repayment of monies, the Merchant shall be obliged to make good such negative balance or make a corresponding payment to Skrill within 7 days of Skrill’s request or demand for such payment. In respect of overdue payments, Skrill has the right to charge interest thereon imposed daily at an annual rate equal to the Prime Rate published in The Wall Street Journal plus four percent (4%) per annum.

7. Warranties.

Each Party hereby acknowledges and agrees that:

7.1. it has and will maintain all required business and professional licenses, powers and authorizations to enter into this Agreement and to fulfill its obligations hereunder;

7.2. it will perform its obligations hereunder with reasonable skill and care; and

7.3. it has in place and will maintain adequate facilities (including staff training, internal controls and technical equipment) to comply with its data protection and confidentiality obligations hereunder.

8. Additional Merchant Warranties.

Merchant hereby acknowledges and agrees that:

8.1. the goods and services that are made available to customers comply with applicable law in any jurisdiction in or to which the Merchant is making its goods and services available and that the Merchant has at all times all requisite licenses and permits in place to engage in the advertising and provision of its goods and services.

8.2. it is not receiving funds in connection with any illegal, fraudulent, deceptive or manipulative act or practice and that the Merchant is not sending or receiving funds to or from an illegal source.

8.3. conducts and advertises its service in accordance with applicable law in each jurisdiction in which it or its customers are located, in which its services are available or in which it directly or indirectly advertises its services.

8.4. it prohibits customers from using its service where such services are prohibited by various applicable laws and regulations.

8.5. it will fund its Merchant Account only with funds directly originating from a bank account located in the United States.

8.6. is not allowed to process payments on behalf of or for the benefit of any third party, including but not limited to companies within its corporate group, without Skrill’s prior written consent.

8.7. if Merchant leaves funds in the Merchant Account as a balance for a substantial period of time and Skrill and/or Account Bank is unable to contact Merchant, the funds may be required to be turned over to state authorities under applicable escheat laws.

8.8. Merchant acknowledges, that
(i) Skrill is not a bank;
(ii) funds in the process of transmission from a sending Skrill Customer to a receiving Customer or Merchant through the Skrill Payment Service are not deposits of Skrill, the Account Bank or any financial institution;
(iii) funds in the process of transmission are not insured by the FDIC or any other government agency;
(iv) Skrill does not act as an agent, trustee, fiduciary or escrow holder with respect to funds in the process of transmission between Merchant and Merchant’s Customers or in connection with the funds balances on deposit with the Account Bank;
(v) Merchant grants to Skrill a security interest and a lean on the funds in Merchant Account;
(vi) Skrill does not pay interest on Merchant’s fund balances during transmission; and
(vii) Skrill reviews certain potentially high-risk transactions and in certain cases may place a hold on the payment and contact Merchant for additional information. 8.9. Acceptable Use Policy. Actions by Skrill.

8.9.1. It is strictly prohibited or restricted to send payments in order to pay for and/or receive payments as consideration for the delivery of:

• Unlawful Internet Gambling

• Sweepstakes;

• One-time raffles for substantial prizes (such as cars, yachts or houses);

• Illegal Substances and Products (such as drugs, controlled substances, human organs, firearms, explosives, and weapons including swords and knives);

• Internet pharmacies or businesses that advertise to/for online drug stores; • Drug paraphernalia;

• Any product or serviced used to circumvent copyright laws of card brand rules; • Counterfeit and replica products;

• Any business that refuses to obtain the relevant goods or services until after the customer pays for them (such as drop-shippers);

• Any business that does not maintain sufficient inventory to meeting sales or whose fulfillment house lacks the resources to promptly fill orders;

• Illegal multi-level marketing (MLM) or pyramid schemes (such as Ponzi schemes, matrix programs, get rich quick schemes, high-yield investment programs, etc.); • Rebate-based businesses;

• Airlines or cruise lines or any travel agent selling tickets for such;

• Alcoholic beverages;

• Online Tobacco products;

• Electronic cigarettes (e-cigs);

• Government IDs and licences;

• Essay writing services;

• Freight forwarding and forwarding agents;

• Adult related and pornographic material including but not limited to websites selling videos/pictures and or DVDs of such;

• Escort services;

• Collection agencies;

• Credit repair, debt elimination or reduction services;

• Distressed property sales and marketing; • Timeshare resales, rentals and related marketing;

• Mortgage/loan debt modifications;

• Pay day loans;

• Purchases of travel money or quasi-cash;

• Card not present discount membership and buying clubs;

• Prepaid access cards, SIM cards or pre-paid debit cards;

• Fortune-telling, dream interpretation, astrological or spiritual services and sites that may also offer ‘potions’ or ‘magic’ products;

• Matrimonial services and/or mail-order brides/grooms;

• Materials which incite violence, hatred or racism or which are considered obscene;

• Businesses that employ cold-calling tactics, pressure sales or unsolicited outbound telemarketing;

• Sale of “power levelling” services for video games;

• “Buying fans” and related business models;

• Extended warranty companies;

• Bail bond services or bankruptcy lawyers;

• Dietary supplements or any product with unproven or doubtful efficacy (including but not limited to weight-loss, colon cleanse, muscle building, anti-aging, male enhancement, etc.);

• Pawn shops;

• File hosting and sharing services and resellers of such (“cyberlockers”);

• Third party processing and payment aggregators;

• Any business listed under the terminated merchant file by the card brands;

• Any business with excessive fraud or chargebacks;

• Any goods, products, services or distributions prohibited by any applicable law enforcement agency;

• Any business currently in bankruptcy;

• Any business selling goods or services deemed by Skrill USA, Inc. to lack value or that have questionable quality;

• Any business that represents unacceptable reputational risk to Skrill USA, Inc. or its brands.

8.9.2. Additionally, Skrill cannot condone the trade of items or support of organizations that promote hate, violence, or racial intolerance. Therefore, Skrill will judiciously disallow organizations that promote or glorify hatred, violence, or racial intolerance from using Skrill to receive payments. Furthermore, such organizations may not be listed on any website of Skrill customers, nor may any of Skrill customers' websites advertise or support such organizations.

8.9.3. If Skrill, in its sole discretion, believes that Merchant may have engaged in any prohibited or restricted activities, Skrill may take various actions to protect other Customers or Merchants, other third parties, Skrill or the Merchant from reversals, chargebacks, claims, fees, fines, penalties and any other liability. The actions Skrill may take include but are not limited to the following:

• Suspend, limit or close Merchant’s access to Merchant Account or the Skrill Services

• Refuse to provide the Skrill Services to Merchant in the future; • Hold Merchant Balance for up to 180 Days if reasonably needed to protect against the risk of liability or if Merchant has violated the Acceptable Use Policy outlined in this Section;

• Skrill may take legal action against Merchant; and

• If Merchant violates the Acceptable Use Policy, then in addition to the above actions Merchant will be liable to Skrill for the amount of Skrill’s damages caused by such violation of the Acceptable Use Policy. Merchant hereby acknowledges and agrees that Two Thousand Five Hundred Dollars ($2,500.00) per violation of the Acceptable Use Policy is presently a reasonable minimum estimate of Skrill’s actual damages considering all currently existing circumstances, including the relationship of the sum to the range of harm to Skrill that reasonably could be anticipated because, due to the nature of the violations of the Acceptable Use Policy, actual damages would be impractical or extremely difficult to calculate. Skrill may deduct such damages directly from any existing balance in the offending Merchant Account or any other Account controlled by Merchant.

8.9.4. Skrill, in its sole discretion, may take various actions including, but not limited to, placing a hold, suspending or applying other limitation on Merchant Account or the funds in it and/or releasing any or all of funds in the event it receives notice of a court order or other legal process that restricts the use of or access to funds in Merchant Account or requires their release. In event not prohibited by the court order or other legal process, Skrill shall notify the Merchant of any limitation placed on the Merchant Account. Merchant hereby acknowledges and agrees that any court order or legal process received by Skrill regarding Merchant Account supersedes any notice obligation Skrill has undertaken or agreed to under this Agreement and that Skrill is under no obligation to contest or appeal from any such order or process. Merchant further acknowledges and agrees that any limitations on Merchant Account which Skrill may place in order to comply with a court order or legal process shall be governed by this court order or legal process and may be maintained longer than 180 days and Skrill reserves the right to decide in its sole discretion the appropriate scope of a hold and/or limitation to assure compliance with a court order or other legal process.

8.9.5. Additionally, in the event Skrill receives notice of a garnishment or equivalent legal process directing the restraint of funds in Merchant Account or directing payment of funds from Merchant Account to the court or another third party, Skrill may limit Merchant Account and hold the funds in it for up to 180 days, and may disburse funds from Merchant Account, as needed, for the purpose of resolving any claim, chargeback or reversal.

8.9.6. Merchant acknowledges that Skrill’s decision to take certain actions, including limiting access to Merchant Account by placing holds or imposing limitations, may be based on confidential criteria that are essential to Skrill’s risk and the security of other Merchant Accounts and the Skrill system and Skrill is under no obligation to disclose the details of its risk management or security procedures to Merchant.

8.10. Skrill reserves the right to amend the Acceptable Use Policy without notice and in its sole discretion by publishing any updates of this Section on the Skrill website and the relevant Section of the User Profile Terms and Conditions and such amended term will become effective immediately upon publication.

8.11. The Merchant shall indemnify Skrill and its directors, officers, employees, shareholders, agents and representatives against any loss arising out of or in connection with the Merchant’s breach of any provision of this Section.

9. Fees

9.1. The fees for the Skrill Services are as set out in the Fee Schedule. Unless otherwise indicated, fees are quoted in US Dollar.

9.2. Unless otherwise stated, a chargeback fee of $20 per chargeback of credit or debit card transactions and $20 per chargeback of direct debits applies, regardless of whether the chargeback is subsequently challenged or reversed.

9.3. Fees are quoted exclusive of added tax. In case added tax or any other sales tax is or become chargeable, Skrill will notify the Merchant as soon as reasonably practicable and Skrill will add such tax to the amount payable but shall, where required, provide information on the net amount, the amount of tax and the tax rate applied.

9.4. Any fee is payable by the Merchant shall be deducted from the Merchant Account balance. If the Merchant Account balance is insufficient, or the Merchant Account balance becomes negative, Skrill reserves the right to invoice the Merchant for any shortfall.

9.5. The fees are subject to change pursuant to Section 10.

9.6. Where Skrill is unable to deduct any fees or other monies payable by the Merchant from the balance of the Merchant Account Skrill shall issue an invoice for the amount owed. Invoices are payable within 15 days of the date of the invoice. In case of overdue payments, Skrill reserves the right to (i) charge interest thereon imposed daily at an annual rate equal to the Prime Rate published in The Wall Street Journal plus four percent (4%) per annum; and/or (ii) terminate this Agreement with immediate effect by giving written notice to the Merchant.

10. Change of Terms and Conditions This Agreement is subject to change from time to time. Changes may be made by mutual agreement between the parties or by notice from Skrill to the Merchant under the following procedure:

10.1. Skrill shall give the Merchant notice of any proposed substantial change to this Agreement (a “Change Notice”).

10.2. A Change notice may be given by letter to the current or last known business address of the Merchant or by email to any of the emails registered with the Merchant Account.

10.3. The proposed change shall come into effect on the thirtieth (30th) day after the date of the Change Notice, unless the Merchant gives written notice to Skrill that it objects to the proposed changes, provided that such notice is given within 15 days of the date of the Change Notice (an “Objection Notice”).

10.4. Unless the parties agree otherwise, a Merchant’s Objection Notice shall be deemed to constitute a notice to terminate this Agreement effective on the date immediately before date on which the proposed change would otherwise come into effect under Section

10.3.

11. Taxes.

11.1. It is the Merchant’s responsibility to determine which, if any, taxes apply to the payments received, and to report and remit the correct tax to the appropriate tax authority. Skrill is not obligated to determine whether taxes apply, and is not responsible to collect, report, or remit any taxes arising from any transaction.

11.2. Merchant acknowledges and agrees that Skrill will report to the Internal Revenue Service the total amount of payments received by Merchant in all Merchant Accounts each calendar year if Merchant receives (i) more than $20,000 in payments for goods and services and (ii) receives more than 200 payments for goods and services in the same calendar year.

12. Intellectual Property

12.1. For the duration and the purpose of this Agreement, the parties grant each other a non-exclusive, worldwide, royalty-free, non-transferable license to copy, use and display any logo, trademark, trade name or other intellectual property owned by or licensed to the other party.

12.2. Any use, adaptation or amendment of intellectual property (except for non-material adaptation or amendments necessitated by the use for a particular purpose as contemplated by the parties) shall be subject to prior approval by party licensing the intellectual property in question. No party shall use the other party’s intellectual property or mention the other party in any public communication without the first party.

12.3. Except as expressly stated, nothing in this Agreement shall grant or be deemed to grant to any party any right, title or interest in any logos, trademarks, trade names or other intellectual property licensed to that party by the other party.

12.4. In using the other party’s intellectual property (or intellectual property licensed to that other party by a third party), each party shall follow the other party’s reasonable instructions having regard to the purpose of such use under this Agreement and the jurisdiction in which the other party’s intellectual property is used.

12.5. Each party warrants and represents that it owns or has the right to use and sub-license any intellectual property, which it uses or licenses for use to the other party.

12.6. Without prejudice to its right to give instructions under Section

12.4, Skrill reserves the right at any time and in its sole discretion to require the Merchant to stop displaying, distributing or otherwise making use of the intellectual property licensed to Merchant by Skrill.

12.7. While applying the liability restrictions contained in Sections 13.1 and 13.2, each party (the “Indemnifying Party”) shall indemnify and hold harmless the other party and its employees and directors (the “Indemnified Party”) for and against any and all claims, losses, liabilities, costs expenses or damages (including reasonable legal fees) incurred by reason of any claim, demand, lawsuit or action by a third party (other than an employee or director of the Indemnified Party) resulting from an actual or alleged infringement of any third party intellectual property right in connection with material provided by the Indemnifying Party.

12.8. The indemnity under Section 12.7 shall only be available if the Indemnified Party:
12.8.1. uses reasonable efforts to notify the Indemnifying Party of such claim as early as possible and in writing;
12.8.2. uses reasonable efforts to mitigate the loss or amount of the claim;
12.8.3. refrains from admitting any liability or settling any claim without the prior written consent of the Indemnifying Party; and
12.8.4. provides, at its own cost, reasonable co-operation in the defense or settlement of such claim.

13. Liability

13.1. Skrill shall not be liable in contract, tort (including negligence or breach of statutory duty) or otherwise for any indirect or consequential loss or damage of any kind including punitive or exemplary damages or for any loss of profit or loss of contract, loss of goodwill or reputation, loss of opportunity, loss of revenue or third party loss whether foreseeable or otherwise.

13.2. Subject to Sections 13.3 and 13.4 and any other Section explicitly excluding the effect of this Section, the aggregate liability of Skrill in contract, tort, negligence or otherwise arising out of or in connection with this Agreement in any period of 12 months from the commencement date or any anniversary thereof (each a “Contract Year”) shall be limited to the lower of (i) USD 10,000 or (ii) the total amount of fees received by Skrill from the Merchant in the previous Contract Year (or, in the first Contract Year, the fees received to date).

13.3. Nothing in this Agreement shall operate to exclude or restrict a party's liability
13.3.1. for fraud and fraudulent misrepresentation;
13.3.2. for death or personal injury due to negligence;
13.3.3. for payments pursuant to Sections 4.2, 6.4, 8 and 9;
13.3.4. for willful and malicious misconduct;
13.3.5. for damage to real or tangible personal property;
13.3.6. for a breach of Section 14 (Confidentiality) (subject to Section 13.5); and
13.3.7. to the extent that such exclusion or restriction is prohibited under applicable law.
13.4. In case of a breach by the Merchant of any of the Sections 5.3 to 5.8 (inclusive) or 8:
13.4.1. the Merchant shall indemnify Skrill against all third party claims, losses, damages, fines, penalties, arising out of or in connection with such breach;
13.5. Skrill shall not be liable for any of the following:
13.5.1. a hardware, software or internet connection is not functioning properly; 13.5.2. any suspension or refusal to accept payments which Skrill has reason to believe to be made fraudulently or without proper authorization;
13.5.3. the payment instructions received contain incorrect or improperly formatted information; or
13.5.4. force majeure: for unforeseen circumstances preventing the proper performance despite any reasonable precautions taken by Skrill. Such circumstances may include, but are not limited to acts of god, power outages, fire, flood, theft, equipment breakdowns, hacking attacks, internal mechanical or systems failures as well as downtimes of the Skrill website.

14. Confidentiality

 14.1. During the term of this Agreement and thereafter, each party shall use and reproduce the other party’s Confidential Information only for purposes of this Agreement and only to the extent necessary for such purpose and will restrict disclosure of the other party’s Confidential Information to its employees, consultants or independent contractors with a need to know and will not disclose the other party’s Confidential Information to any third party without the prior written approval of the other party.

14.2. Notwithstanding the foregoing, it will not be a breach of this Agreement for either party to disclose Confidential Information of the other party if required to do so under law or in a judicial or governmental investigation or proceeding.

14.3. The confidentiality obligations shall not apply to information that (i) is or becomes public knowledge through no action or fault of the other party; (ii) is known to either party without restriction, prior to receipt from the other party under this Agreement, from its own independent sources as evidenced by such party’s written records, and which was not acquired, directly or indirectly, from the other party; (iii) either party receives from any third party reasonably known by such receiving party to have a legal right to transmit such information, and not under any obligation to keep such information confidential; or (iv) information independently developed by either party’s employees or agents provided that either party can show that those same employees or agents had no access to the Confidential Information received hereunder.

15. Data Protection

15.1. Each party, when acting as data processor, shall process personal data in accordance with Regulatory Requirements.

15.2. Where one party acts as the data processor (the “Data Processor”) of personal data processed by the other party as data controller (the “Data Controller”), the Data Processor shall at all times follow the Data Controller’s reasonable instructions with regards to the personal data processed.

15.3. In some instances Merchant may receive information about another Customer or Merchant; in such instance, Merchant shall keep such information confidential and only use it in connection with the Skrill service. Merchant may not disclose information about other Customers or Merchants to any third parties, including for marketing or other unauthorized uses, except if expressly authorized by the owner of the information.

16. Termination

16.1. Without prejudice to termination rights under the User Profile Terms and Conditions, either party may at any time terminate this Agreement immediately:
16.1.1. if the other party files a petition for bankruptcy, becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or a receiver is appointed for the Merchant or its business, or the other party goes into liquidation either voluntarily (otherwise than for reconstruction or amalgamation) or compulsorily;
16.1.2. upon the occurrence of a material breach of this Agreement by the other party if such breach is not remedied within five (5) business days after written notice is received by the other party identifying the matter or circumstances constituting the material breach;
16.1.3. if the other party violates or fails to comply with any applicable law, regulation or any order by a competent court or government authority; or
16.2. Any termination under the User Profile Terms and Conditions shall be deemed a termination of this Agreement.
16.3. Upon termination:
16.3.1. each party shall immediately cease using any Confidential Information of the other
16.3.2. each party shall return to the other any and all of such other's materials to which such other has a proprietary right and that are in the former's possession and/or in the possession of the former's agents, servants and employees;
16.3.3. all sums payable to Merchant under this Agreement shall become due within 180 days of termination.
16.4. Merchant may not close its Merchant Account to evade an investigation and should Merchant attempt to close the Merchant Account during an investigation, Skrill may hold Merchant’s balance for up to 180 days in order to protect Skrill, its affiliates or third parties against the risk of reversals, chargebacks, claims, fees, fines, penalties and other liability. Merchant acknowledges and agrees that Merchant will remain liable for all obligations related to Merchant Account even after the Merchant Account is closed.

17. Assignment, Third Party Rights

17.3. Merchant may not assign any of its rights under this Agreement to a third party without the prior written consent of Skrill.

17.4. The Merchant may not out-source the performance of any of its obligations under this Agreement without the prior written consent of Skrill. Skrill may assign any and all rights under this Agreement without notice.

18. Relationship of the parties. The Merchant and Skrill are independent contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture or agency relationship between them. Neither party has authority to enter into agreements of any kind on behalf of the other.

19. Notices. Any notice to be given under this Agreement must be given in writing and delivered either by hand, certified mail or other recognized delivery service, or by facsimile. Notwithstanding the foregoing, Skrill may give notice to the Merchant by sending an email to any of the email addresses registered with the Merchant Account.

20. Choice of law and forum. This Agreement and any legal relationship between the parties arising in connection with it shall be governed by and construed in accordance with the laws of New York State regardless of the venue or jurisdiction in which a dispute is being determined. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the New York Courts.

21. Waiver. Any waiver of a right under this Agreement shall only be effective if agreed or declared in writing. A delay in exercising a right or the non-exercise of a right shall not be deemed a waiver and shall not prevent a party from exercising that right in the future.

22. Severability. If any part of this Agreement is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable then such part shall be severed from the remainder of the Agreement, which shall continue to be valid and enforceable to the fullest extent permitted by law.

23. Entire Agreement. This Agreement including all Annexes and Schedules referred to herein and the User Profile Terms and Conditions and all documents referred to therein, represents the entire agreement of the parties in relation to its subject matter. Each party acknowledges that it has entered into this Agreement in reliance only on the representations, warranties, promises and terms contained in this Agreement and, save as expressly set out in this Agreement, neither party shall have any liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.

24. Variation. Subject to Section 10 above, no variation or amendment to this Agreement shall be effective unless recorded in writing and signed by the duly authorized representatives of both parties.