“Affiliate” means with respect to any Party, any Person that directly or indirectly (e.g. through any number of successive tiers), controls (eg a parent organization), is controlled by (e.g. a subsidiary organization) or is under common control with (e.g. a brother/sister organization) such Party.
“Approved Merchant” means a Merchant that was referred to VIVA PAYMENTS by the Reseller Partner during the Term, was not an existing customer of VIVA PAYMENTS as of the date Reseller referred such Merchant to VIVA PAYMENTS, has been approved by VIVA PAYMENTS, has entered into the VIVA PAYMENTS Merchant Service Agreement with VIVA PAYMENTS, has been registered as professional user and has activated a Viva Wallet Account, has completed successfully the Onboarding and KYC Process and has completed one successful Transaction.
“Acquiring Services” means payment services provided by VIVA PAYMENTS for the settlement of card present and card not present transactions that the Reseller Partner resells to Merchants.
“Card Terminal Reseller Fee” means the margin of the percentage of the Card Terminal Selling Price / “Pay Monthly” programme, as approved by VIVA PAYMENTS and presented in https://www.vivawallet.com/uk/card-terminals/
“Gross Margin” means the value per Transaction calculated by subtracting from the Merchant Service Charge per Transaction the Interchange Fee per Transaction, the International Card Schemes Cost per Transaction and the operational cost of VIVA PAYMENTS for the provision of Acquiring Services per Transaction.
“Interchange Fee” means a fee paid for each transaction directly or indirectly (i.e. through a third party) between the issuer and the acquirer involved in a card-based payment transaction.
“Interchange Plus Fee” means the Interchange Fee plus the cost of the International Card Schemes plus the fixed operational cost of VIVA PAYMENTS,
“International Card Schemes Cost” means any charge imposed by the International Card Schemes to the Acquirer per Transaction, not including the Interchange Fee.
“List” means the list that the Reseller Partner submits to VIVA PAYMENTS with the interested Merchants proposed by the Reseller Partner.
“Merchant” any person that performs activities that fall within the scope of professional/business activity.
“Merchant Service Charge” is the fee charged by VIVA PAYMENTS to the Merchant for the provision of Acquiring Services.
“Onboarding and Know your Customer (KYC) Process” means the procedure that VIVA PAYMENTS follows for the purpose of verification and identification its clients according to applicable AML legislation, as described under on the VIVA PAYMENTS Site.
“VIVA PAYMENTS Merchant Service Agreement” means an agreement by and between VIVA PAYMENTS and a Merchant regarding one or more of VIVA PAYMENTS Services.
“VIVA PAYMENTS Services” means the VIVA PAYMENTS services and solutions as more fully described on the VIVA PAYMENTS Site.
“VIVA PAYMENTS Site” means https://www.vivawallet.com/en-us/business/terms
“VIVA WALLET” or “VIVA WALLET Account” means the professional payment account held in VIVA PAYMENTS by the Merchant as described in VIVA PAYMENTS Site.
“Payment Rules” means rules promulgated from time to time by the International Card Schemes such as Visa and MasterCard including, but not limited to, the Payment Card Industry Data Security Standards (PCI DSS), Visa Cardholder Information Security Program (CISP), MasterCard’s Site Data Protection Program (SDP).
“Professional User” means any User-Merchant making use of the VIVA PAYMENT Services to perform transactions that fall within the scope of the User’s professional/ business activity.
“Proposed Reseller Partner” means a partner that was referred to VIVA PAYMENTS by the Reseller Partner during the Term, was not an existing partner of VIVA PAYMENTS as of the date Reseller referred such partner to VIVA PAYMENTS, has been approved by VIVA PAYMENT and has entered into the VIVA PAYMENTS ACQUIRING AND ISSUING SERVICES RESELLER PARTNER AGREEMENT.
“Proposed Reseller Partner Fee” means the fee payable to the Reseller Partner by VIVA PAYMENTS for the provision of services under this Agreement.
“Proprietary Right” means any patent, copyright, rights in Trademarks, trade secret rights, moral rights or other intellectual property or proprietary right arising under the laws of any jurisdiction.
“Reseller Partner Fee” means the fee payable to the Reseller Partner by VIVA PAYMENTS for the provision of services under this Agreement.
“Region” means the countries/territories that the Reseller Partner shall provide the services under this Agreement,
“Transaction” means any card present or card not present payment credited to Merchant’s VIVA WALLET Account by utilizing VIVA PAYMENTS Acquiring Services in the context of the Merchant’s professional/ business activity.
1.1 Reseller Partner appointment
1.1.1 The Reseller Partner is appointed as a non-exclusive reseller of VIVA PAYMENTS Acquiring and Issuing Services to the Merchants. In connection with such appointment, the Reseller Partner hereby is granted with a non exclusive, non transferable right to market and promote Acquiring and Issuing Services to Merchants established or operating throughout the Region on behalf of VIVA PAYMENTS, identify interested Merchants for Acquiring and Issuing Services and refer such Merchants to VIVA PAYMENTS for potential enrollment in one or more Acquiring and Issuing Services, pursuant to the procedure defined under the term 2.1 below. The Reseller Partner has the right to negotiate the financial terms with the interested Merchants on behalf of VIVA PAYMENTS on the basis of which the latter shall directly provide Acquiring and Issuing Services to them, within the pricing policy of VIVA PAYMENTS as notified by the latter. Specifically, the Reseller Partner shall refer at least five merchants per category MCC that will enable VIVA PAYMENTS to test the readiness of the “VIVA WALLET POS Terminals”, within three (3) months from this Agreement.
1.1.2 The Reseller Partner shall propose to VIVA PAYMENTS at least one large retailer for the purpose of utilizing VIVA PAYMENTS Acquiring services and installing “VIVA WALLET POS Terminals” throughout the retailer’s stores and/or branches, within three (3) months from this Agreement.
1.1.3. The Reseller Partner shall proceed to promotion of POS terminals on behalf of VIVA PAYMENTS to the Merchants, for the facilitation of the provision of the Acquiring Services. The POS card terminals are available for purchase or rent directly from the e-shop of VivaWallet and/ or through VivaWallet and can be activated upon registration of the Merchant as a Professional User for the creation of a Viva Wallet Account, in accordance with the procedure described herein.
18.104.22.168. In this context, the Reseller Partner shall assist the Merchant on the installation process of POS on behalf of VIVA PAYMENTS. It is noted that the promotion of POS terminals is part of this Agreement and the Reseller Partner.
1.4. Τhe Reseller Partner shall proceed to introduction of other Reseller Partners (“Proposed Reseller Partner”) to enter into a respective agreement with VIVA PAYMENTS.
The Reseller Partner will notify in writing VIVA PAYMENTS for each Proposed Reseller Partner. Upon approval of the Proposed Reseller Partner and execution of an agreement between VIVA PAYMENTS and the Proposed Reseller Partner, the Reseller Partner will be notified by VIVA PAYMENTS accordingly in writing and will be paid with a fee by VIVA PAYMENTS, as described under term 4 of this Agreement (“Proposed Reseller Partner Fee”).
1.2 No delegation
The Reseller Partner shall not delegate performance of any of its obligations under this Agreement without VIVA PAYMENTS’s prior written consent. Notwithstanding the foregoing, the rights, duties and/or obligations of the Reseller Partner under this Agreement may be exercised and/or performed by the Reseller Partner. The Reseller Partner will be responsible for the exercise and performance of its rights, duties and obligations taken by its personnel. The Reseller Partner shall ensure that all authorized persons performing such obligations are properly qualified and experienced to perform the same.
2. RESELLER OBLIGATIONS
2.1 The Reseller Partner shall draft list of Merchants identified as potential clients of VIVA PAYMENTS including their full data (Merchant’s name, Tax Registration No, Address, Activity) and submit the list to VIVA PAYMENTS, (hereinafter the “List”), on a quarterly basis. VIVA PAYMENTS shall inform the Reseller Partner within a period of two weeks whether it approves the cooperation with the Merchants included in the List. It is explicitly agreed that VIVA PAYMENTS is entitled to reject at its sole discretion and without any justification, any Merchants of the submitted List.
2.2 The Reseller Partner acknowledges that acceptance and activation of a Merchant by VIVA PAYMENTS for the provision of Acquiring and Issuing Services is subject to conclusion by Merchants: a) of the VIVA PAYMENTS Services Agreement by accepting its terms published in VIVA PAYMENTS Site; b) registration as a Professional User; c) activation of the Viva Wallet Account; and d) completion of the Onboarding and KYC Process.
2.3 The Reseller Partner shall use its best efforts to refer to VIVA PAYMENTS and facilitate orders from interested Merchants by a) submitting the List and any other reasonable information that may be required by VIVA PAYMENTS, according to the instructions of VIVA PAYMENTS, and b) upon approval of the Merchants by VIVA PAYMENTS, providing assistance, as provided for in 2.6 below, to the Merchant for enrollment process on www.vivawallet.com for the creation and activation of Viva Wallet Account,. Reseller Partner’s failure to timely and properly complete all of the obligations listed above, may in VIVA PAYMENTS’s discretion result in VIVA PAYMENTS assuming sole responsibility with respect to such Merchant which would thereby relieve VIVA PAYMENTS from any obligation to pay any fees to Reseller Partner.
2.4 The Reseller Partner will be entitled to a fee during the term of the present Agreement, under the terms herein, only if the following prerequisites are fulfilled cumulatively: a) submission of the List to VIVA PAYMENTS as described under 2.1 and 2.3 above, b) approval of the Merchant by VIVA PAYMENTS, c) successful cooperation between VIVA PAYMENTS and the Merchant pursuant to the terms of 2.2 above and (d) the Approved Merchant performs one (1) successful Transaction within one month from activation of the Viva Wallet Account. After the completion of the above steps, VIVA PAYMENTS shall inform the Reseller Partner respectively.
2.5 The Reseller Partner shall stay current with respect to information concerning the Acquiring and Issuing Services including but not limited to attending sales support training programs which may be offered by VIVA PAYMENTS, by any designated means (electronic or physical).
2.6 The Reseller Partner shall accurately describe VIVA PAYMENTS, the Acquiring and Issuing Services provided, and the complete functionality of Viva Wallet to each Merchant, according to the instructions of VIVA PAYMENTS provided during the training process and during the term of the present agreement. Without limiting the generality of the foregoing, the Reseller Partner will make no representation, warranty or description regarding the performance, functional characteristics or other aspects of VIVA PAYMENTS’s services and Acquiring and Issuing Services that is beyond those stated in VIVA PAYMENTS then current and officially approved marketing and promotional materials for the applicable Acquiring and Issuing Services. The Reseller Partner is not authorized to and will not make any representation or warranty on behalf of VIVA PAYMENTS unless VIVA PAYMENTS may expressly consent to it in writing.
2.7. The Reseller Partner shall assist the Merchant approved by VIVA PAYMENTS in the process of registering to Viva Wallet and enrolling in VIVA PAYMENT Services, through the VIVA PAYMENTS site and filling in the necessary data and will facilitate the Onboarding and Know your Customer (KYC) Process.
2.8 The Reseller Partner has the right to negotiate the price with the approved by VIVA PAYMENTS Merchants according to the terms above under 2.1 – 2.4, and agree on behalf of VIVA PAYMENTS the Merchant Service Charge fee that the latter is entitled to receive by the Merchant for the provision of Acquiring and Issuing Services in writing and notify the fee and the relevant communication with the Merchant to VIVA PAYMENTS. In any case, the Merchant Service Charge to be agreed between the Reseller Partner and the Merchant shall not be lower than the Interchange Fee as charged per transaction, plus the cost of the International Card Schemes as charged per transaction as defined above VIVA PAYMENTS retains the right to publish fixed Merchant Service Charges to its Site for the provision of Acquiring and Issuing Services, irrespective of the Merchant Service Charge agreed between the Reseller Partner and the Merchant and also retains the right to promote special commercial packages. The Reseller Partner is not restricted by these published Merchant Service Charges, during the negotiations with any Merchant. In case that VIVA PAYMENTS amend the published Merchant Service Charges due to market conditions, VIVA PAYMENTS shall inform the Reseller Partner accordingly for his knowledge. In any case VIVA PAYMENTS has the right to reduce the Merchant Service Charge paid by the Approved Merchant as agreed with the Reseller Partner, due to applicable legislative provisions, or due to the activation of specific pricing packages, or due to market conditions or competition conditions and shall notify the Reseller Partner accordingly.
2.9 The Reseller Partner will comply with (i) all laws, policies, guidelines, regulations, ordinances, rules applicable to the Reseller Partner, its business or the transactions, and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof and (ii) Payment Rules, current policies, procedures and guidelines of VIVA PAYMENTS governing the Acquiring Services.
2.10 The Reseller Partner covenants that it and each of its owners, directors, employees and every other person working on its behalf, have not been and will not be in connection with the services contemplated by this Agreement or in connection with any other business transactions involving VIVA PAYMENTS, make, offer or promise to make any payment or transfer anything of value, directly or indirectly to: (a) any governmental official or government employee, (b) any political party, official of a political party or candidate, (c) an intermediary for payment to any of the foregoing, (d) any other person or entity if such payment or transfer would have the purpose or effect of public or commercial bribery, acceptance or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business for itself or on behalf of VIVA PAYMENTS.
2.11 The Reseller Partner shall not directly or indirectly engage in any business activity that (a) induces or attempts to induce, directly or indirectly, any Approved Merchant to modify or terminate such Approved Merchant’s business association with VIVA PAYMENTS, or (b) interferes with, disrupts or attempts to disrupt any present business relationship, contractual or otherwise, between VIVA PAYMENTS and any Approved Merchant, client, supplier, consultant, agent or employee of VIVA PAYMENTS.
3. VIVA PAYMENTS OBLIGATIONS
3.1 Upon VIVA PAYMENTS receipt from the Reseller Partner of all information that is required for the potential Merchant, VIVA PAYMENTS shall inform within a reasonable period the Reseller Partner on the approval of the Merchant at first place and on the successful cooperation with the Merchant at second place as described under the term 2.2. above.
3.2 VIVA PAYMENTS shall bill Approved Merchants for the Acquiring and Issuing Services based on the MSC agreed between the Reseller Partner and the Merchant, as notified to VIVA PAYMENTS. Billing procedure shall be in accordance with the electronic terms of VIVA PAYMENTS published at www.vivawallet.com and as accepted by the Merchant.
3.3 During the respective term of the VIVA PAYMENTS Merchant Service agreement, if the Approved Merchant is current in payment of all fees owing to VIVA PAYMENTS and is otherwise not in default under the VIVA PAYMENTS Agreement, VIVA PAYMENTS shall provide customer service to such Approved Merchant, via the means available in the relevant Region.
3.4 VIVA PAYMENTS will provide reasonable technical assistance to the Reseller Partner as may be necessary and appropriate to assist the Reseller Partner in effectively carrying out its obligations under the present Agreement, if needed.
3.5 Subject to the terms hereof, VIVA PAYMENTS will use commercially reasonable efforts to provide Acquiring Services to Approved Merchants and maintain the same in an uninterrupted and error-free fashion consistent with its practices in effect as of the effective date, provided that the applicable Approved Merchant is not in default of its obligations to VIVA PAYMENTS under the VIVA PAYMENTS Services Agreement. VIVA PAYMENTS may in its sole discretion, refuse to provide the Acquiring Services to any Approved Merchant.
4. FEES AND PAYMENT TERMS
4.1. The Parties agree that as regards the Approved Merchants that have a successful cooperation with VIVA PAYMENTS according to the term 2.4 herein by using their Tax Registration Number as identification tool, VIVA PAYMENTS shall pay to the Reseller Partner a fee (hereinafter “Reseller Partner Fee”) as described here, into the VIVA WALLET Account held in the name of the latter. The Reseller Partner Fee is calculated based on Transactions settled for Approved Merchants on a daily basis, and is invoiced on a monthly basis.
4.2 The Reseller Partner agrees and accepts that VIVA PAYMENTS will calculate the Reseller Partner’s Fee based on actual successful Transactions settled for each Approved Merchant, as these data shall be displayed in the books of VIVA PAYMENTS kept in the context of the VIVA WALLET Account held by the Approved Merchant.
4.3 The Reseller Partner Fee shall be paid to the Reseller Partner by VIVA PAYMENTS for as long as the Approved Merchant is a registered client of VIVA PAYMENTS based on the Tax Registration Number of the Approved Merchant (registered in VIVA PAYMENTS) as an identification tool, and for as long as the present agreement is in force.
4.4 The payment of the Reseller Partner’s fee will be made on a daily basis. Within fifteen (15) days from the end of each month, VIVA PAYMENTS shall send to the Reseller Partner the final settlement of the previous monthly period including a calculation of the paid Reseller Partner’s Fee. Upon receipt of this statement, the Reseller Partner shall issue an invoice in the name of VIVA PAYMENTS. Any objections of the Reseller Partner regarding the paid fees shall be raised within five working days from the receipt of the above statement, otherwise the paid fees will be considered as irrevocably accepted. Any Reseller Partner Fees related to Transactions that are subsequently and irrevocably disputed (chargebacks) will be deducted from the Fees to be paid to the Reseller Partner.
4.5 If the contractual relationship with the Approved Merchant is terminated by VIVA PAYMENTS due to confirmed fraudulent transactions accepted/committed by him, VIVA PAYMENTS shall have the right to reverse all the fees / commissions paid to the Reseller Partner regarding that Approved Merchant during the last 6 calendar months prior to the termination of the contractual relationship.
5. REPRESENTATIONS AND WARRANTIES
5.1 Each party represents and warrants to the other that (a) it has full power and legal right to execute and deliver this Agreement and to perform its obligations under this Agreement, (b) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with tis terms and (c) it has all right, title or interest, or valid license to use its respective Trademarks or logos or advertising material, and that its grant of rights associated therewith do not violate any Proprietary Rights of any third party.
5.2 The Reseller Partner represents and warrants to VIVA PAYMENTS that (a) will conduct its business at all times in a manner that reflects favorably on the goodwill and reputation of VIVA PAYMENTS and will not engage in any illegal or unethical business practices, (b) all representations and statements made by the Reseller Partner in this Agreement or in any other document relating hereto by the Reseller Partner or on its behalf, are true, accurate and complete in all material respects and (c) has not entered into any oral or written contract or negotiations with any third party which would limit the effectiveness of this Agreement, nor is it aware of any claims or actions which may limit the effectiveness of this Agreement.
5.3 The Parties are independent contractors and nothing in this Agreement shall make them joint ventures, partners employees, agents or other representatives of the other Party. Neither Party shall make any representation that suggests otherwise. The Reseller Partner is exclusively responsible for the payment of salary and any other benefits and taxes of its personnel.
5.4 Each Party is fully and jointly liable towards the other party for any infringement or violation of the obligations, terms and conditions of the present agreement and the applicable legislation in force committed by its personnel. Each Party is obliged to inform its personnel for the terms of the present agreement and for the applicable legislation.
6. TERM AND TERMINATION
6.1 This agreement is agreed of indefinite term and it becomes effective on the date of acceptance of these Terms, and may be terminated upon termination notice as per this term 6.2.
6.2 The Present agreement may be terminated:
(i) at any time by either Party upon prior written notice of thirty (30) days, or
(ii) immediately by either upon the occurrence of a material breach of the present agreement by the other party that remains uncured for a period of thirty (30) days after the breaching party receives written notice describing the breach in reasonable detail from the non-breaching party; or
(iii) immediately by either Party in the event of termination of the activity of the other Party for any reason, bankruptcy or liquidation or other related process or
(iv) immediately by VIVA PAYMENTS in the event that a competitor or a prospective competitor of VIVA PAYMENTS or any of its affiliates, acquires power or ability, directly or indirectly, to exercise any controlling influence over the Reseller Partner or Reseller Partner’s management, operations or policies, or
(v) immediately in the occurrence of any Force Majeure event, if such event is immediately notified to the other party and continues for more than twenty (20) days that makes impossible for the other party to execute or properly discharge of its obligation under this Agreement, or
(vi) immediately by VIVA PAYMENTS, if VIVA PAYMENTS determines, in its sole discretion, that Reseller Partner’s business are detrimental to the achievement of VIVA PAYMENTS’s business objectives, or
(vii) immediately upon written notice by VIVA PAYMENTS, if VIVA PAYMENTS has reasons to believe that there is an alleged or actual violation by the Reseller Partner of any laws, policies, guidelines, regulations, ordinances, VIVA PAYMENTS’s instructions, and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof.
6.3 Each party should inform the other Party promptly in case any of the events under the par. (ii), (iii), (iv), (v), (vi), (vii) occurred.
7. EFFECTS OF TERMINATION
7.1 Any termination as provided in articles 6.2 (i) and 6.2 (vi) shall permit the Reseller Partner to receive for a period of twenty four (24) months after the termination of the agreement, the recurring Reseller Partner’s Fee corresponding to the contracts established by the Reseller Partner during his collaboration with VIVA. After this twenty four (24) month period, VIVA will cease paying Reseller Partner Fee without any prior notice.
7.2 Any termination as provided in article 6.2 (ii) above shall be without prejudice to the non-breaching party’s right to seek damages for such breach.
7.3 Upon termination of this Agreement for any reason:
(i) the parties will enter a wind down phase in which the parties will cooperate to achieve an orderly and gradual cessation (in whatever Term remains) of the services provided by the Reseller Partner pursuant to this Agreement, (ii) the Reseller Partner shall promptly return to VIVA PAYMENTS all equipment, documentation and materials supplied by VIVA PAYMENTS, (iii) VIVA PAYMENTS may in its sole discretion continue to provide Acquiring Services to the Approved Merchants, (iv) VIVA PAYMENTS shall pay any fee due to the Reseller Partner for the services provided by the latter until the termination date and (v) Reseller Partner’s right to earn the Reseller Partner’s Fee by VIVA PAYMENTS shall terminate, without prejudice to the cases under 7.1 above.
7.4 Any termination of this Agreement (howsoever occasioned) will not affect any accrued rights or liabilities of either party up to termination date nor will it affect the coming into force or the continuance in force of any provision on this Agreement which is expressly intended to come into or continue in force on or after such termination.
8.1 Each party that receives information (the Receiving Party) from the other party (Disclosing Party) agrees to use reasonable best efforts to protect all non -public information and know-how of the Disclosing Party that is either designated as proprietary and/or confidential or that, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and / or confidential and in any event, to take precautions at least as great as those taken to protect its own confidential information of a similar nature. “Confidential Information” refers to any information related to each Party, which is, without limitation, either (i) technical information, including, without limitation, patent, copyright, trade secret, and other proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products and services of each Party, or (ii) non-technical information relating to each party’s products, including, without limitation, pricing, margins, merchandising plans and strategies, finances, financial and accounting data and information, suppliers, customers, customer lists, purchasing data, sales and marketing plans, future business plans and any other information which is proprietary and confidential to the Parties. Each Party agrees that the terms and conditions of this Agreement and any other information exchanged in the context of the present cooperation will be Confidential Information, provided that each Party may disclose the terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary course of its business.
8.2 The Parties shall keep the Confidential Information, received pursuant to this Agreement, whether or not in written form, secret and confidential and not disclose, disseminate or use any of it to any person other than the its Affiliate’s directors, officers, employees, contractors, advisers and eventual partners acting with each party in the frame of a joint venture or being its subcontractor, and who need to know the same for the purposes of the execution of the present agreement;
8.3 Each Party shall notify the other Party if disclosure of confidential information is necessary to comply with the requirements of any law, government order, regulation or legal process prior to such disclosure. Each Party shall keep the confidential information, relating to the other party and any copies thereof secure and in such a way so as to prevent unauthorized access by any third party subject to point 8.2, nor make any copies of it or reproduce it in any form save as reasonably required for the purposes of the execution of the Agreement.
8.4 Each Party shall at their own expense on receipt of a written demand from the other Party or automatically after the termination of the present agreement:
(i) return all written Confidential Information provided to it (as recipient) or its subcontractors which is in their possession or under its custody and control without keeping any copies thereof;
(ii) destroy all analyses, compilations, notes, studies, memoranda or other documents prepared or provided by the other party (as provider) or its advisers to the extent that the same contain, reflect or derive from Confidential Information; For this purpose, each party shall have systems that ensure the permanent deletion and destroy.
8.5 The Confidential Information shall remain the property of each Disclosing Party and its disclosure shall not confer on the Receiving Party any rights (including intellectual property rights) titles and interests over the Confidential Information whatsoever beyond those contained in this Agreement.
8.6 The foregoing restrictions will not apply to any information that: (a) the Receiving Party can document it had in its possession prior to disclosure by the Disclosing Party, (b) was in or entered the public domain through no fault of the Receiving Party, (c) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality, (d) is required to be disclosed by governmental or judicial order, requested in response to legal or governmental inquiries, or disclosed in connection with judicial and/or arbitral proceedings between the Parties, in which case the Party so requested shall give the other Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment or (e ) the Receiving Party can document was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party.
8.7 Each Party acknowledges that breach of this provision by it may result in irreparable harm to the other Party and shall survive for indefinite time following termination of the present Agreement.
The Reseller Partner shall not assign this Agreement or any rights hereunder without the prior written consent of VIVA PAYMENTS. Subject to the foregoing, this Agreement will be binding upon, enforceable by and inure to the benefit of the Parties and their respective successors and assigns.
10. LIABILITY – INDEMNIFICATION
10.1 The Reseller Partner shall indemnify and hold VIVA PAYMENTS, its affiliates and any other officers, directors, agents and employees harmless from and against any action, claim or suit brought against VIVA PAYMENTS or its affiliates, including any losses, damages, costs and expenses (actual damage) arising from or out of any breach or alleged breach by the Reseller Partner of any representation, warranty or other obligation of the Reseller Partner under this Agreement or any alleged or actual violation by the Reseller Partner of any laws, policies, guidelines, regulations, ordinances, VIVA PAYMENTS Rules, rules and/or orders of any governmental authority or regulatory body. In the event the Reseller Partner causes fines and/or penalties or claims by a third party to be charged to VIVA PAYMENTS for violation of the Reseller Partner of the above, the Reseller Partner agrees to immediately reimburse VIVA PAYMENTS for said fines and penalties and claims.
10.2 VIVA PAYMENTS shall defend, indemnify and hold the Reseller Partner, its affiliates and any of their officers, directors, agents and employees harmless from and against any claim or suit brought against Reseller Partner by a third party, including any and all losses, damages, costs and expenses (actual damage) arising from such claim or suit arising out of any breach or alleged breach by VIVA PAYMENTS of any representation, warranty or obligation of VIVA PAYMENTS set herein or any alleged or actual violation by VIVA PAYMENTS of any laws, policies, guidelines, regulations, ordinances, rules and/or orders of any governmental authority or regulatory body. In the event VIVA PAYMENTS causes fines and/or penalties or claims by a third party to be charged to the Reseller Partner for violation of VIVA PAYMENTS of the above, VIVA PAYMENTS agrees to immediately reimburse the Reseller Partner for said fines and penalties and claims.
11. INTELLECTUAL PROPERTY
11.1 The Parties agree that VIVA PAYMENTS or its Affiliates owns and retains all right, title and interest in and to the VIVA Marks, their sites, all content and documentation furnished to the Reseller Partner by VIVA PAYMENTS hereunder. No title or ownership of any of the foregoing is granted or otherwise transferred to the Reseller Partner or any other entity or person under this Agreement. The Reseller Partner shall not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the VIVA PAYMENT Services or related technology.
11.2 The Parties agree that the Reseller Partner owns and retails all right, title and interest in and to the Reseller Partner’s Marks and the Reseller Partner reserves all rights in the foregoing.
11.3 Each Party hereby grants to the other party the right to use, reproduce, publish, perform and display its Trademarks in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to Acquiring and VIVA PAYMENT Services. The Reseller Partner will not use, reproduce, publish, perform and display other party’s Trademarks in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to the Acquiring Services or otherwise without VIVA PAYMENTS’s written consent, which consent shall not be unreasonably withheld. Each Party shall strictly comply with all standards with respect to the other Party’s Trademarks contained herein or which may be furnished by such Party from time to time. All uses of the other Party’s Trademarks shall inure to the benefit of the Party owning such Trademark. Neither Party shall create a combination mark consisting of one or more Trademarks of each Party. Either Party may update or change the list of Trademarks usable by the other Party hereunder at any time by written notice to the other Party.
12. OWNESHIP AND USE OF DATA
To the extent permissible and in compliance with applicable law, and as between the Parties, VIVA PAYMENTS shall retain full ownership of all data submitted by the Reseller Partner and/or Merchant in connection with Merchant’s enrollment for and use of the Acquiring Services and hosted or stored on VIVA PAYMENTS’ servers, including but not limited to: name, mailing & shipping address, email address, phone number, tax registration number, whereas the Reseller Partner shall not store or collect any data at all from potential or Approved Merchants.
In any case, the Parties agree to comply with the applicable legislation for the protection of any personal data, use such data only as necessary to perform their rights and obligations hereunder as described here.
E 13. NOTICES
13.1 All notices to VIVA PAYMENTS shall be given electronically, or by post, in the following addresses:
Address: West Wing, Ashton House, Silbury Boulevard, Milton Keynes, Buckinghamshire MK9 2AH UK
14. GOVERNING LAW – JURISDICTION
This agreement and performance under it will be interpreted, construed and enforced in all respects, in accordance with the UK Law. The Reseller Partner hereby irrevocably consents to the jurisdiction of Courts of London, with respect to any action, claim or proceeding arising out of or related to this Agreement.
15. GENERAL PROVISIONS
15.1. VIVA PAYMENTS shall upon its sole discretion and according to its commercial policy from time to time amend the above accordingly and publish any amendment on its official website.
15.2 If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement.
15.2 The failure of any Party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect.
15.3 Neither Party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any act of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions of a third party, infiltration or disruption of the Acquiring Services by a third party by any means, including without limitation, DDoS attacks, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay the VIVA PAYMENTS services, or other catastrophes or any other occurrences which are beyond such parties’ reasonable control (each a “Force Majeure Event”), provided that the Party delayed will provide the other Party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event.
15.4 The words and phrases used herein shall have the meaning generally understood in the payment processing industry. This Agreement shall be construed in accordance with its fair meaning and not for or against either Party on account of which Party drafted this Agreement.
15.5 This Agreement sets forth the entire understanding and agreement of the Parties, is binding for the parties and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Agreement.