Terms Of Use EEA Customers

1. INFORMATION ABOUT US

1.1. These Terms of Use are between you and OpenPayd Financial Services Malta Limited, a company incorporated in Malta with company number C75580 with registered address at Level -3, 137 Spinola Road, St.Julians STJ 3011, Malta (“OpenPayd”).

1.2. OpenPayd is authorised as a Financial Institutions licenced to issue electronic and undertake payment services Malta Financial Services Authority (“MFSA”) under the Financial Institutions Act, Chapter 376 of the laws of Malta.

1.3. You can contact us by emailing us at: [email protected]

2. INTRODUCTION

You are responsible for operating and integrating the Services in accordance with all Operating Instructions.

OpenPayd will license OpenPayd's API to you, for use as part of the Services and in accordance with these Terms of Use to enable you to make payments in relation to the ordinary course of your business.

OpenPayd Account

2.1. Under these Terms of Use we‘ll give you an OpenPayd Account, which will be an electronic money account that you can use to:

2.1.1. obtain a virtual international bank account number (“VIBAN”) identifying your account for the purposes of the international banking system. Your VIBAN can be associated with an electronic money account denominated in Euro or other available currency. We will keep you informed as we add new currencies.

2.1.2. make payments to, or receive payments from, other OpenPayd Accounts and bank accounts globally;

2.1.3. store a balance (including any payments that you receive);

2.1.4. convert funds from one currency to another;

2.2. You can view account information, including current and previous payments, and instruct us to make new payments through:

2.2.1. the “OpenPayd Platform at www.OpenPayd.com; or

2.2.2. a third party provider (“TPP”) you‘ve allowed to act on your behalf (e.g. the provider of a website or app that allows you to see information about your different accounts in one place) so long as they‘re permitted by law to provide those services to you.

2.3. If you decide to give your OpenPayd username and password to a TPP to allow them access to your OpenPayd Account, they‘ll be able to see and do anything you can on your account. If, however, we have a good reason not to give such TPP access, we will tell you as soon as we can (unless it would be unlawful to tell you, or we reasonably think that telling you would compromise our security).

2.4. You can fund your OpenPayd Account by:

2.4.1. bank transfer from an account in your name;

2.4.2. bank transfer from an account in the name of a third party according to a valid agreement between you and such third party; or

2.4.3. transfers from other OpenPayd Accounts. Due Diligence

2.5. We are required by law to conduct ongoing monitoring of all our customers and transactions carried out for or with our customers, including you (and your Users or Authorised Contacts), in order to comply with know your customer (KYC) obligations. This includes monitoring instructions and transactions for prevention and detection of financial crime.

2.6. In certain circumstances, we may need to carry out due diligence checks in relation to your corporate documentation and the identity of your directors, shareholders and Authorised Contacts and Users, to help us meet our legal obligations. You will provide us with any and all information and documentation we consider necessary to conduct such checks.

2.7. We will ask you for information when you are applying to open your OpenPayd Account, and may also ask you for information at other times, where it is reasonable for us to do so. You must provide us with accurate and complete information in response.

2.8. You must notify us immediately in writing of any changes in circumstances which might cause the information provided to us to become incomplete or inaccurate. Changes in circumstances can be, but are not limited to changes to: type of business, type of products or services, any dissolution, liquidation, insolvency event; payment flow; licencing, geographic location, company name(s), residence address/registered office, company registration number, address(es) of residence for tax purposes, tax identification number, value added tax registration number, legal entity identifier (LEI), nationality, legal entity type, and any contact details such as telephone, email address(es) and/or any changes in respect of directors, beneficial owners, controlling persons, authorised signatories, Authorised Contacts and Users.

2.9 The provision of the Services is subject to your compliance with the securing of approvals from various third-party entities, including, inter alia, OpenPayd’s Payment Partners, it being agreed that OpenPayd shall use all commercially reasonable efforts to secure said approvals. Notwithstanding the foregoing, you hereby acknowledge that any such approvals may be denied by the aforementioned third-party entities, thereby delaying or preventing the implementation or provision of the Services. Changes to these Terms of Use for customers who are not consumers, micro-enterprises

2.10. This section (“Changes to these Terms of Use for customers who are not consumers, Micro-enterprises”) applies if you are not one of the following:

2.10.1. consumer;

2.10.2. Micro-Enterprise.

2.11. If you’re not a consumer or a Micro-Enterprise, the provisions of these Terms of Use are amended as follows:

2.11.1. the two-month notice period in paragraph 30 of the CBM Directive no.1 does not apply; instead we’ll tell you about a change to these Terms of Use at least two weeks before it takes effect;

2.11.2. you can ask us to refund a Transaction that someone has made from your OpenPayd Account without your permission, so long as you’ve told us (please can you do so via e-mail or phone) about the problem within 60 days of it happening (rather than 13 months under paragraph 47(1) of the CBM Directive no.1);

2.11.3. paragraph 48 and 50 of the CBM Directive no.1 do not apply in so far as we may refuse your request for the refund if:

a) you have acted fraudulently; or

b) you cannot show that you have taken all reasonable steps to keep your OpenPayd platform password secret (other than from a TPP which you've allowed to act on your behalf, so long as the TPP is permitted by law to do so); and

2.11.4. paragraphs 64(1) to 64(5) of the Central Bank of Malta Directive no.1 do not apply in so far as, if we fail to send a payment on time to the right recipient for the right amount, we will only refund the sent amount if we sent it to the wrong recipient (and then only if you tell us about the problem within 60 days of it happening).

2.12. If there is a conflict between a provision in this section “Changes to these Terms of Use for customers who are not consumers, Micro-enterprises” and any other provision in these Terms of Use, the provision in this section will apply.

3. HOW CAN YOU MAKE A PAYMENT OR TRANSFER TO OR FROM YOUR ACCOUNT?

Introduction

3.1. You can load money to your OpenPayd electronic money account, pay money from your account or get a refund of e-money on your account by:

3.1.1. logging in to the OpenPayd platform with your username and password;

3.1.2. an Application Programming Interface (“API”) call;

3.2. We’ll treat your request as being received on the working day we receive funds from you for making the transfer, so long as we receive your instruction before 4pm. Our working days are Monday to Friday, apart from bank holidays, in Malta.

3.3. We shall perform all necessary checks in relation to payments sent to and from an OpenPayd Account to ensure we comply with Applicable laws. We reserve the right to delay or refuse to execute a payment instruction where we have reasonable grounds to believe that such payment may result in OpenPayd breaching its regulatory obligations. Pay-outs

3.4. You can also ask us to make a payment from your OpenPayd Account through a TPP which you’ve allowed to act on your behalf, so long as the TPP is permitted by law to do so.

3.5. After we’re instructed to make a payment from your OpenPayd Account:

3.5.1. if the recipient’s account is also an OpenPayd Account, we’ll immediately send your payment to their account; or

3.5.2. if the recipient’s account is not an OpenPayd Account, we’ll use reasonable efforts to get the money to the recipient’s bank (or other account provider) by the end of the working day after we receive your request for the transfer. The transfer may be delayed if our correspondent banks are unable to execute it on the next working day.

3.6. If you want to cancel a payment, you may do so by logging into the OpenPayd platform as soon as possible after we’ve received your request for the transfer. If you have instructed us to make a currency conversion, you do not have a right to cancel it once we’ve received your request. Pay-ins

3.7. You can also receive transfers from other OpenPayd Accounts and from bank accounts.

3.8. If you receive the transfer from another OpenPayd Account, we will credit the money to your account immediately after it is sent.

3.9. If you receive the transfer from an account not held with us, we will credit the money to your account immediately after we receive it. We may take up to two working days to credit your account if we operate a currency conversion. Currency conversion

3.10. You can send money from, or receive money to, your OpenPayd Account in a different currency from the account. Please note that:

3.10.1. If you send money in a different currency from your account, then we shall convert the amount of the payment you wish to make into the appropriate currency prior to sending the money to the recipient’s account.

3.10.2. If you receive money in a different currency from your account, then the following may occur:

a) In rare occasions, funds may be rejected;

b) If accepted, funds may be converted by one of our Payment Partners whereas this Payment Partner might apply certain charges;

c) Our Payment Partner may contact OpenPayd with a request for instruction, in which case we may contact you with further information.

3.11. In any event, we will apply our standard exchange rate (which may change at any time) and applicable charges for such exchange. All charges will be displayed before you complete a payment. Statements

3.12. Each month that there is activity on your OpenPayd Account, OpenPayd will provide you with a statement in durable medium. OpenPayd will also supply account statements through the OpenPayd Platform where each statement can be downloaded so that it can be stored and reproduced in an unchanged manner. OpenPayd will allow you to opt in or out of receiving statements on any durable medium at any time by updating your preferences on the OpenPayd Platform.

4. WHAT MUST YOU DO TO KEEP YOUR ACCOUNT SAFE?

4.1 You must take all reasonable steps to keep your OpenPayd password secret (except that you can give your OpenPayd username and password to a TPP which is permitted by law to access your OpenPayd Account), in order to prevent unauthorised use of your OpenPayd Account.

4.2 If you think someone else (other than such a TPP) knows your password, you must change it as soon as you reasonably can.

4.3 You must tell us as soon as you can if you think someone may be using your OpenPayd Account without your permission.

4.4 In addition to the security requirements set forth in these Terms of Use, you shall enable the security settings set out in the Operating Instructions.

5. WHAT RESTRICTIONS MIGHT THERE BE ON PAYMENT TRANSACTIONS?

Transaction limits

5.1. You agree that we may apply limits to the amount you are able to spend and send through your OpenPayd Account, and we’ll tell you if we do so. For example, we may apply limits if you ask us to or if we reasonably think it would help manage the risk of fraud in a proportionate way. Stopping a Transaction

5.2. Once you’ve instructed us to make a payment from your OpenPayd Account we’ll send the money unless we reasonably think:

5.2.1. the Transaction would put you over any Transaction limit we introduce;

5.2.2. the Transaction would breach these Terms of Use or Applicable Law;

5.2.3. the Transaction is unauthorised, fraudulent, against our acceptable use policy; or

5.2.4. you may be acting illegally, or it would be against the law for us allow the Transaction.

5.3. Where permitted by law, we will notify you if we’ve stopped a Transaction and, if possible, provide our reasons for doing so, and anything you can do to correct any errors leading to the stoppage.

6. REFUNDS AND REVERSING TRANSACTIONS

6.1. You can ask us to refund a Transaction that someone has made from your OpenPayd Account without your permission, so long as you’ve told us about the problem within thirteen months of it happening.

6.2. However, we may refuse your request for the refund if we can demonstrate that:

6.2.1. you have acted fraudulently; or

6.2.2. the payment was not to pay for a purchase at a distance (e.g. online) and you had intentionally or with gross negligence not taken all reasonable steps to keep your OpenPayd password secret (other than from a TPP which you've allowed to act on your behalf, so long as the TPP is permitted by law to do so) and the payment took place before you told us you thought someone was misusing your account.

6.3. You can also ask us to refund a Transaction if we fail to send a payment to the right recipient and for the right amount, so long as you’ve told us (again, please can you do so via e-mail or phone) about the problem within thirteen months of it happening.

6.4. However, we may refuse your request for the refund if we can show that the recipient’s bank (or other account provider) received the money or that there was a mistake in the recipient’s details which you gave us. (However, if there was a mistake in the account details which you gave us, we’ll still make a reasonable effort to recover the money. If we’re unable to do so, you can make a written request for us to provide you with all the information available to us which is relevant to you in order for you to file a legal claim to recover the money.)

6.5. In any event, if you ask us to, we’ll make efforts to trace any Transactions which have not been made (or not been made properly) and notify you of the outcome. There may be an additional cost imposed by our banking partners to provide this service, which may be passed on to you.

6.6. If we fail to send a Transaction on time, you can contact us to ask the recipient’s bank (or other account provider) to pay the recipient the interest (if applicable) on their account that would have been paid if the transfer you made had arrived on time.

6.7. In addition to your rights above, we’ll refund a Transaction if the law requires us to.

6.8. If you have an electronic money balance in your OpenPayd Account that you haven’t spent, and that you don’t wish to spend, you can cancel some or all of the balance and we’ll send a refund to the preferred payment method associated with your account or to such other account as we may agree with you.

6.9. If you have an electronic money balance in your OpenPayd Account that you haven’t spent for two years or more, we will take reasonable steps to contact you about refunding the balance. If we don’t succeed in contacting you, we may return the money to the last known external account number we have on file for you.

6.10. We will not be responsible to you for any loss or costs which you may incur as a result of us breaking these Terms of Use due to:

6.10.1. abnormal and unforeseeable circumstances outside our reasonable control, which would have been unavoidable despite all efforts to the contrary, which may for example include delays or failures caused by problems with another system or network, mechanical breakdown or data-processing failures; or

6.10.2. us meeting our obligations under European Union or Maltese law.

7. DO YOU HAVE TO PAY ANY FEES?

7.1. The Service Charges charged are subject to the latest Pricing Agreement provided to you by OpenPayd. For Customers who transferred to OpenPayd from SettleGo Solutions Ltd, unless expressly stated otherwise or subsequently updated by OpenPayd in accordance with these Terms of Use, the fees will be the same as agreed in the latest Pricing Agreement agreed between Customer and SettleGo Solutions Ltd.

7.2. Unless stated otherwise, all Service Charges, fees, charges and other payments to be made by you under these Terms of Use are quoted in Euro and are exclusive of VAT and any other relevant taxes, which shall in addition be paid by you.

7.3. OpenPayd reserves the right to vary the Service Charges and/or introduce new charges in addition to the Service Charges at any time in accordance with clause 8.

7.4. You authorise OpenPayd to debit from your Account all Service Charges and any other sums due to OpenPayd under these Terms of Use.

7.5. OpenPayd reserves the right to suspend or limit the Services pending full payment of any outstanding claims, charges, penalties, costs or charges by you.

7.6. In some circumstances another bank or account provider (such as the recipient’s bank, or an intermediary bank involved in enabling a payment to take place to or from your OpenPayd Account) may charge us. We will pass that charge on to you where the law allows us to, and where we do pass such a charge to you we will (if we’re able to) tell you beforehand how much it will be.

8. HOW MIGHT WE CHANGE THESE TERMS OF USE?

8.1. OpenPayd may vary or amend the terms of these Terms of Use. Unless otherwise agreed, any such variation or amendment may be made by notice from OpenPayd to you as follows.

8.2. OpenPayd shall give you notice of any proposed variation or amendment to these Terms of Use (a "Variation Notice") by letter to your registered office or by email to any of the email addresses registered with your OpenPayd Account.

8.3. The proposed variation shall (subject to the following paragraph) come into effect automatically on the date stated in the Variation Notice, such date to be at least two (2) weeks after the date of receipt of the Variation Notice. If you are a Consumer or a Micro-Enterprise, the proposed variation shall come into effect on the date stated in the Variation Notice, such date to be at least two (2) months after the date of receipt of the Variation Notice.

8.4. You have the right to terminate these Terms of Use with immediate effect and without charge at any time after receiving a Variation Notice and before any variation stipulated in the Variation Notice becomes effective by giving OpenPayd written notice making reference to the Variation Notice and this clause.

8.5. Where OpenPayd receives no such objection from you to the proposed variation within the stipulated time frame, you will be deemed to have accepted the change.

9. SUSPENSION AND TERMINATION?

9.1. Either party may terminate these Terms of Use at any time without reason by giving at least two (2) months' prior notice to the other.

9.2. OpenPayd may suspend or terminate these Terms of Use or the Services in whole or in part at any time with immediate effect by giving notice to you if:

9.2.1. You breach any material representation or warranty or are otherwise in material breach of these Terms of Use;

9.2.2. you breach or otherwise fail to comply with any Applicable Laws or material Rules;

9.2.3. OpenPayd has any material concerns over the adequacy of your AML policies and procedures;

9.2.4. there is what OpenPayd reasonably considers to be a disproportionate number of Reversed Transactions at any time;

9.2.5. you are dissolved (other than pursuant to a consolidation, amalgamation or merger, but provided that the company resulting therefrom agrees to be bound by or assume the obligations imposed on you under these Terms of Use);

9.2.6. you institute or have instituted against you, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over you in the jurisdiction of your incorporation or organisation, or the jurisdiction of your head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for your winding-up or liquidation by you or such regulator, supervisor or similar official;

9.2.7. you have a secured party in any jurisdiction take possession of all or substantially all your assets or have a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all of your assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within thirty (30) days thereafter;

9.2.8. any corporate action, legal proceedings or other procedure or step in any jurisdiction is taken in relation to the appointment of a liquidator, provisional liquidator, conservator, receiver, administrative receiver, administrator, trustee, custodian, compulsory manager or other similar officer in respect of you or any of your property or assets or any such officer is actually appointed in respect of you or any of your property or assets;

9.2.9. you make or propose a general assignment, arrangement or composition with or for the benefit of your creditors or by reason of actual or anticipated financial difficulties, commences negotiations with one or more of your creditors (excluding OpenPayd) with a view to rescheduling any of your indebtedness;

9.2.10. you suspend or threaten to suspend making payments on any of your debts or a moratorium is declared in respect of any indebtedness of you;

9.2.11. you become insolvent or is unable to pay your debts or fail, or admit in writing your inability generally to pay your debts as they become due or any step is taken for your liquidation, winding-up, receivership, administration, administrative receivership or dissolution (or anything analogous to the foregoing occurs in any jurisdiction);

9.2.12. anything analogous to any of the foregoing under the Applicable Laws of any jurisdiction occurs in that jurisdiction in relation to you or you take any action in furtherance of, or indicating your consent to, approval of, or acquiescence in, any of the foregoing acts;

9.2.13. you cease, or threaten to cease, to carry on business;

9.2.14. your business or conduct is considered by OpenPayd to be disreputable or capable of damaging OpenPayd's or a Payment System or Payment Partner’s reputation by association;

9.2.15. there is any other change in your circumstances (including a deterioration in or change to your financial position) or in the nature of your business or in the goods and/or services supplied by you to Customers which OpenPayd considers materially adverse to the continuance of the Services;

9.2.16. a change of control, pursuant to an agreement or understanding (whether formal or informal), of you occurs;

9.2.17. OpenPayd is required or requested to suspend or terminate these Terms of Use (or part of it) by any of its Payment Partners.

9.2.18. any guarantee or security granted to OpenPayd by you or a guarantor in connection with these Terms of Use ceases to be enforceable or is withdrawn;

9.2.19. OpenPayd or any OpenPayd Affiliate becomes entitled to terminate any agreement with, or enforce any security from, you or any Affiliate of yours;

9.2.20. Services are suspended or cease to be provided to OpenPayd in whole or in part by a Payment Partner;

9.2.21. a Force Majeure Event continues for more than 3 (three) successive calendar months;

9.2.22. you are not using the Services for your own benefit but rather for the benefit of a third party;

9.2.23. you do not have or no longer have sufficient regulatory licences, consents or permits required for operating your business; or

9.2.24. based on any other information provided or obtained by OpenPayd in relation to you, in OpenPayd's reasonable opinion, OpenPayd deems that you are not suitable to receive the Services.

9.3. Where circumstances entitle OpenPayd to terminate or suspend these Terms of Use in whole or in part, OpenPayd shall not be obliged to do so. If OpenPayd does not on any occasion exercise any right of termination or suspension under these Terms of Use, that shall not have the effect that OpenPayd in general or in the future has waived the exercise of such right or that it approves of your behaviour giving rise to such right or that it waives any claims against you.

10. CONSEQUENCES OF SUSPENSION OR TERMINATION

10.1 On the expiry or termination of these Terms of Use for any reason you shall:

10.1.1. comply with your obligations in respect of Confidential Information as set out in these Terms of Use;

10.1.2. immediately pay OpenPayd all amounts owed by you under these Terms of Use and, for the avoidance of doubt,

10.1.3. immediately cease to use the Services and OpenPayd's Intellectual Property Rights and remove any reference to OpenPayd from your materials and Website(s); and

10.1.4. except as otherwise expressly provided in these Terms of Use and subject to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under these Terms of Use.

10.2. Following termination of these Terms of Use OpenPayd will:

10.2.1. cancel any pending Transactions; and

10.2.2. deduct from the OpenPayd Account all Service Charges, fees and other amounts owed under these Terms of Use and transfer any remaining Reserve or Remittances to a designated bank account.

10.3. The termination of these Terms of Use shall not affect any provisions of these Terms of Use that are expressly or by necessary implication intended to survive such termination.

11. WHAT TO DO IF YOU HAVE A COMPLAINT

11.1. We hope you will not have cause to make a complaint. If you do need to make a complaint about our Services or your OpenPayd Account, please email us at [email protected]

11.2. This clause 11.2 applies if you are a consumer or a Micro-Enterprise either at the Commencement Date or at the time of making a complaint, in which case if you make a complaint to OpenPayd relating to these Terms of Use.

11.3. OpenPayd will try to resolve your complaint by the end of the next Business day.

11.4. If OpenPayd is unable to resolve the complaint by that time, it will write to you promptly to acknowledge the complaint and let you know when to expect OpenPayd's full response. OpenPayd will also let you know the name and contact details of the person or team dealing with its case.

11.5. If the complaint relates to a regulated e-money or payment services provided under these Terms of Use:

11.6. OpenPayd will provide a full response within 15 working days after the day on which OpenPayd received the complaint; or

11.7. in exceptional circumstances, OpenPayd will send a holding response within 15 working days after the day on which OpenPayd received the complaint, indicating the reasons for the delay in answering the complaint and specifying the deadline by which it will send the final response, and then provide a full response within 35 working days after the day on which OpenPayd received the complaint.

11.8. If the complaint relates to another matter not covered by paragraph 11.5 above, OpenPayd will provide a final response within 8 weeks of receiving the complaint.

11.9. If you do not receive a final response within the relevant timeframe set out in paragraph 11.5. and 11.6. above, or you are dissatisfied with OpenPayd's full response, you may be able to refer the matter to the Office of the Arbiter for Financial Services. More information about the Office of the Arbiter for Financial Services, including information about how to make a complaint, is available at https://financialarbiter.org.mt/en/Pages/Home.aspx If you are outside Malta or if you prefer not to deal directly with the Office of the Arbiter for Financial Services, you may be able to submit a claim through the European Online Dispute Resolution Platform (available at http://ec.europa.eu/consumers/odr).

12. AUTHORISED CONTACTS AND USERS

12.1. You shall notify OpenPayd in writing of the names, job titles and contact details of your Authorised Contacts and Users. You may change Authorised Contacts and Users from time to time by providing instructions to OpenPayd.

12.2. You authorise OpenPayd to act upon the instructions given by Users and Authorised Contacts without making further enquiries into the purpose for which the instructions were given, or any circumstances related to the instructions or checking or considering the validity of the instructions. OpenPayd shall have no liability in respect of any loss incurred as a result of any fraudulent, illegal or unauthorised instructions given by any User or Authorised Contact.

12.3. The personalised security features of each User are private and confidential and shall not be shared with any other person. You shall take all necessary measures to ensure that Users are not sharing their login, passwords or credentials.

12.4. You shall be responsible for keeping the Users up to date, including granting, restricting and removing access and amending permission levels for Users as and when required.

13. REPRESENTATIONS AND WARRANTIES

13.1. You represent and warrant both now and throughout these Terms of Use as follows:

13.1.1. that the details provided when signing up for your OpenPayd Account are in every respect true and accurate;

13.1.2. that in giving us instructions and performing your obligations under these Terms of Use:

a) you have power and authority to do so;

b) you will comply with Applicable Law;

c) you are not contracting for the purposes of pure speculation;

d) you consent to our including your full name, address, our reference number and any other details required by law on the payment details to be sent to the recipient’s bank (or equivalent account provider);

13.1.3. all of the Authorized Contacts are able to give us instructions on your behalf;

13.1.4. you are the legal and beneficial owner of any funds held on your OpenPayd Account and that these funds are not and shall not become subject to any charge or other security or encumbrance;

13.1.5. if any funds are being sent from a third party, that you will, upon request, explain to us the nature of the relationship between yourself and the third party and that you will provide us with all of the due diligence documentation we require;

13.1.6. all information supplied to us is true, complete and accurate in all material respects and you will not omit or withhold any information which would render the information so supplied false, incomplete or inaccurate in any material respect;

13.1.7. you will inform us as soon as practicable if any of the information provided becomes untrue or needs to be updated; and

13.1.8. you contract as principal and not as agent; and

13.1.9. you will not receive or transfer funds, or otherwise use the OpenPayd Account(s) or the Services in connection with any illegal, fraudulent or deceptive activity, including for money laundering or terrorist financing;

13.1.10. you have in place and will maintain adequate policies, procedures, systems and controls (including staff training, internal controls and technical equipment) to comply with your data protection, anti-money laundering and confidentiality obligations under these Terms of Use.

13.2. You agree to indemnify us for any losses we might suffer for breach of the warranties contained within these Terms of Use.

13.3. You agree to cooperate with OpenPayd on all compliance and operations related matters and to comply with any anti-money laundering, counter terrorist financing and similar legal and regulatory obligations applicable to OpenPayd.

13.4. You agree to respond to OpenPayd’s urgent requests (as determined by OpenPayd) for:

13.4.1. Information e.g. specific Transaction and beneficiaries, payers or payees and provide all relevant due diligence information and documentation required by OpenPayd; and

13.4.2. Any action that you are required to take in order to comply with Payment System Rules

As soon as possible and no later than two (2) Business Days from the receipt of the request from OpenPayd.

14. LIMITATION AND LIABILITY

14.1. OpenPayd’s sole obligations and liabilities are as stated in these Terms of Use and all other representations (innocent or negligent), conditions, warranties, and terms expressed or implied whether by statute, law or otherwise are hereby excluded to the fullest extent permitted by law.

14.2. Your relationship with a Direct Third-Party Service Provider will be governed by the agreement between You and that Direct Third-Party Service Provider and OpenPayd shall not be liable to You or anyone else for any loss suffered by You, Customers or any third party arising from the provision of services or any other act or omission of a Direct Third Party Service Provider.

14.3. While reasonable efforts have been made to ensure the accuracy, currency and reliability of the content provided through the Services, You acknowledge and agree that all information and Services are provided "as is" and OpenPayd does not guarantee the completeness, accuracy, timeliness or results obtained by You through using the Services.

14.4. Neither party shall 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.

14.5. Nothing in these Terms of Use shall operate to exclude or restrict a party’s liability for:

14.5.1. all sums payable to OpenPayd under the Terms of Use

14.5.2. fraud and fraudulent misrepresentation;

14.5.3. death or personal injury due to negligence;

14.5.4. your liability to pay Reversed Transactions and negative balances;

14.5.5. wilful and malicious misconduct;

14.5.6. any other liability that cannot be excluded by Applicable Law;

14.6. OpenPayd will not be liable for:

14.6.1. hardware, software or internet connection that is outside its control is not functioning properly;

14.6.2. any suspension or refusal to make, receive or otherwise facilitate payments which OpenPayd or a Payment Partner reasonably believes to be made fraudulently, in breach of these Terms of Use or without proper authorisation;

14.6.3. payment instructions containing incorrect or improperly formatted information;

14.6.4. any delay or disruption to the Service caused by you, underlying service providers or market or product limitations;

14.6.5. Any loss arising from or in connection with any action taken or omitted to be taken by OpenPayd or by any third party (including any Payment Partner) in connection with the performance or contemplated performance of these Terms of Use (or any collateral contract) except to the extent the loss is the result of its fraud, wilful default or negligence (where in case of negligence, the limit of liability in clause 14.7 applies).

14.7. Subject to clause 14.5, OpenPayd’s total aggregate liability to you in respect of any and all claims arising in any calendar year, whether in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for any loss arising out of or in connection with the performance or contemplated performance of these Terms of Use (or any collateral contract) will in no event exceed the value of the charges paid and payable by you to OpenPayd during the calendar year in which the relevant claim or claims arose.

14.8. You will indemnify, and keep indemnified, OpenPayd for any losses suffered or incurred as a result of any act or omission by you or your representatives or customers in connection with your use and receipt of the Services, including without limitation, in relation to:

14.8.1. any liability OpenPayd incurs to a Payment Partner, Payment System or regulatory authority arising out of or in connection with any action or inaction by you or your representatives or customers in breach of these Terms of Use or applicable Payment System Rules;

14.8.2. any loss suffered or incurred by OpenPayd arising out of or in connection with any Transactions made on your behalf (or on behalf of your Customers) and/or entered into by you or by OpenPayd as its provider in relation to a Payment System, and for any instructions given or purported to be given by you or your customers or end users to a Payment System;

14.8.3. any loss suffered or incurred by OpenPayd under these Terms of Use arising as a result of:

a) Your breach of any Data Protection Legislation; or

b) You causing OpenPayd to be in breach of any Data Protection Legislation; and

14.8.4. Reversed Transactions and any loss suffered or incurred by OpenPayd as a result of Reversed Transactions; and

14.8.5. any liability OpenPayd incurs to a third party arising out of or in connection with any action or inaction by you or your representatives or Customers in breach by you of your safeguarding requirements.

15. RIGHT OF SET OFF

15.1. OpenPayd may at any time without notice to you, set-off any Fines, claims, costs, charges, penalties, expenses due to OpenPayd against any liability of OpenPayd to you, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under these Terms of Use. If the liabilities to be set-off are expressed in different currencies, OpenPayd may convert either liability at a market rate of exchange it can reasonably obtain for the purpose of the set-off. OpenPayd may also, at any time, without notice to you, set-off any liability of yours (whether such liability is present or future, liquidated or unliquidated, and whether or not such liability arises under these Terms of Use) to OpenPayd against any amount then attributed to you and held in the OpenPayd Account.

15.2. All amounts due under these Terms of Use shall be paid by you to OpenPayd in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by Applicable Laws).

15.3. Any exercise by OpenPayd of its rights under this clause 15 shall be without prejudice to, and shall not limit or affect, any other rights or remedies available to OpenPayd under these Terms of Use or otherwise.

15.4. Notwithstanding any of the foregoing, if you incur a negative balance on your OpenPayd Account or become otherwise liable for the repayment of monies, you shall be immediately obliged to make good such negative balance or make a corresponding payment to OpenPayd following OpenPayd's request or demand for such payment. In respect of overdue payments under this clause 15.4 that are more than seven (7) days overdue, you shall pay interest on the overdue amount at the fixed rate of 2% per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount. OpenPayd may at any time require immediate payment of all or part of such shortfall, together with such interest as is then due.

15.5. OpenPayd reserves the right, at any time, to take debt collection measures including mandating a debt collecting agency or other third parties to assist with the recovery of any amounts due and payable by you to OpenPayd under these Terms of Use, and to recover from you any costs and expenses reasonably incurred in connection with any debt collection or enforcement action.

16. INTELLECTUAL PROPERTY

16.1. OpenPayd or its licensors own all right, title and interest, including all Intellectual Property Rights, in and to the Services or data provided using the Services and all components used in the provision thereof, including without limitation, all software, data, business methods, business processes, website designs, graphics, text, content, API and API instructions and responses, trade names, trade secrets and know-how, and all documentation in relation to the foregoing, used in the provision of the Services ("Proprietary Information").

16.2. Except as expressly stated herein, these Terms of Use do not transfer any right, title or interest in the Services or the Proprietary Information to you or to any third party.

16.3. OpenPayd grants to you a non-exclusive, non-transferable licence to display certain logos and trademarks of OpenPayd as OpenPayd may from time to time designate, on your Website(s).

16.4. You agree to adequately display the promotional sign(s) and any other materials provided by OpenPayd for use on your Website(s) payment pages and to only use names or designs approved in advance by OpenPayd. You shall not use any other material referring to OpenPayd or any other name associated with the Services without OpenPayd's prior written approval.

16.5. You acknowledge that you are prohibited from any use, reproduction, decompilation, reverse engineering, modification or distribution of any Proprietary Information that is not expressly authorised in these Terms of Use except to the extent as may be expressly permitted under Applicable Laws and on prior written notice to OpenPayd. You may not sell, resell, assign or otherwise transfer rights to the Services or any Proprietary Information or enter any part of the software forming part of the Services into any other product or software, without OpenPayd's prior written consent. All Proprietary Information may be used only in connection with the Services and such use must cease immediately upon termination of these Terms of Use.

16.6. You agree that:

16.6.1. you will not sell, license, lease, rent, loan, lend, transmit, network or otherwise distribute or transfer the Services in any manner to third parties; and

16.6.2. you will maintain true and accurate records to enable OpenPayd to ensure your compliance with these Terms of Use. You will permit OpenPayd to have access to all of your records and computer systems and to use software audit tools on your systems that may reasonably be required for the purpose of verifying your compliance with these Terms of Use.

16.7. You undertake throughout the term of these Terms of Use:

16.7.1. not to use OpenPayd's or a Payment System’s Intellectual Property Rights or Services in any way which would or is likely to bring OpenPayd's or a Payment System's reputation into disrepute;

16.7.2. not to cause or permit anything which may damage or endanger OpenPayd's or a Payment System 's Intellectual Property Rights or OpenPayd's or a Payment System's title to them;

16.7.3. to obtain OpenPayd's written consent prior to using or referring to any of OpenPayd's or a Payment System's or Payment Partner’s trademarks, logos, copyrighted materials, business names or other Proprietary Information in any of your materials and Website(s);

16.7.4. to notify OpenPayd of any actual, threatened or suspected infringement of OpenPayd's or a Payment System’s Intellectual Property Rights that you become reasonably aware of;

16.7.5. to take such reasonable action as OpenPayd may direct in relation to such actual, threatened or suspected infringement;

16.7.6. to indemnify OpenPayd for any liability incurred by OpenPayd to third parties for any use of OpenPayd's or a Payment System's Intellectual Property Rights by you otherwise than in accordance with these Terms of Use; and

16.7.7. to acknowledge that any goodwill or reputation for the Services generated by your obligations under these Terms of Use or your use of the Services will belong to OpenPayd and upon termination of these Terms of Use for whatever reason you shall not be entitled to claim recompense or compensation for such enhanced goodwill or reputation.

16.8. The provisions of clause 16.6.2 shall also be for the benefit of any Payment System or Payment Partner applicable and shall also be enforceable by OpenPayd on behalf of itself and on behalf of a Payment System of Payment Partner.

16.9. OpenPayd shall defend, at OpenPayd's expense, any claim (the "IP Claim"), brought against you alleging that the Services infringe an Intellectual Property Right of a third party.

16.10. OpenPayd shall pay all costs and damages awarded or agreed to in settlement of an IP Claim if you:

a) provide OpenPayd with prompt written notice of the IP Claim;

b) make no admissions as to liability, settlement or compromise in relation to the IP Claim without OpenPayd's prior written approval; and

c) provide OpenPayd with reasonable assistance and sole authority to defend or settle the IP Claim.

16.11. If in OpenPayd's reasonable opinion the Services become the subject of an IP Claim, then OpenPayd may obtain for you the right to continue to receive the Services, replace the Services or modify them so that they become non-infringing. If such remedies are not reasonably available (in OpenPayd's opinion), then OpenPayd will cease to provide and you shall cease to receive the Services which are the subject of the IP Claim.

16.12. OpenPayd shall have no liability for any IP Claim resulting from the use of the Services in conjunction with other products or services which were neither supplied by nor combined with the Services by OpenPayd.

17. CONFIDENTIAL INFORMATION

17.1. During the term of these Terms of Use and for five (5) years thereafter, each party agrees to maintain the confidentiality of any Confidential Information of the other party to the same extent that it protects its own Confidential Information and to use such Confidential Information only as permitted under these Terms of Use. Each party agrees to take all reasonable precautions to prevent any unauthorised disclosure or use of the Confidential Information of the other and shall only disclose such Confidential Information to its employees, consultants, agents or contractors with a need to know and who are parties to agreements containing confidentiality undertakings substantially the same as the terms contained in this clause.

17.2. Each receiving party shall make all relevant employees, agents, consultants and contractors aware of the confidential nature of the other party's Confidential Information and these confidentiality provisions and shall take all steps necessary to ensure compliance by its employees, consultants, agents and contractors comply with these provisions.

17.3. The parties agree that if the receiving party commits a breach, or threatens to commit a breach, of these confidentiality provisions, then the disclosing party shall have the right to bring an action for injunctive relief or any other action at law or equity to specifically enforce the terms of this clause, it being acknowledged and agreed that any such breach or threatened breach could cause irreparable injury and that monetary damages would not provide an adequate remedy.

17.4. These Terms of Use shall not apply so as to prevent disclosure of Confidential Information by the receiving party to the extent that such disclosure is required to be made under Applicable Laws or (unless in conflict with Applicable Laws) the Rules:

17.5. You shall not make or send any public announcement, communication or circular concerning these Terms of Use unless it has first obtained OpenPayd's written consent.

17.6. Nothing in this clause shall prevent OpenPayd from:

17.6.1. disclosing any Confidential Information obtained from you to any OpenPayd Affiliate in connection with these Terms of Use, provided that OpenPayd ensures that the relevant OpenPayd Affiliate observes confidentiality undertakings substantially the same as those in this clause;

17.6.2. making or sending a public announcement, communication or circular concerning these Terms of Use, and you hereby permit OpenPayd to display your name and logo in OpenPayd's marketing materials;

17.6.3. disclosing to relevant authorities your Information for the purposes of criminal investigation; or

17.6.4. using data processing techniques, analysis of data, ideas and know-how gained during the performance of these Terms of Use in the furtherance of its normal business to the extent that this does not derive from a disclosure of Confidential Information belonging to any agent or broker (or similar) of you in breach of this clause, or an infringement by OpenPayd of any Intellectual Property Rights of you.

17.7. Each party shall put in place processes and physical and information technology security systems sufficient to protect any Confidential Information in its possession. The foregoing restrictions on use and disclosure shall not apply with respect to Confidential Information that: (i) becomes rightfully known to the receiving party without restriction from a source other than the disclosing party; (ii) is independently developed by the receiving party without use of the Confidential Information and without the participation of individuals who have had access to the Confidential Information, as evidenced by written records; or (iii) is required by Applicable Laws to be used or disclosed.

17.8. Other than as expressly permitted under these Terms of Use, on termination or expiry of these Terms of Use for whatever reason, each party shall forthwith cease to use any Confidential Information of the other and shall return on demand, or at the request of the other destroy or permanently erase, all copies of Confidential Information in its possession or control, save that each party will be permitted to retain Confidential Information for so long as is required by Applicable Laws.

18. DATA PROTECTION

18.1. The terms “controller”, “data subject”, “Member State”, “personal data breach”, “process”, “processing”, “processed”, “processing”, “processor”, “appropriate technical and organisational measures”, “supervisory authority/ies” and “third country transfer” shall have the same meaning as that given to them in the GDPR, and their cognate terms shall be construed accordingly.

18.2. Each Party hereby acknowledges that it generally acts as an independent data controller within the meaning of the Data Protection Legislation in respect of any personal data processed by it in connection with these Terms of Use.

18.3. Each Party shall, at its own expense, ensures and procures that it complies with any and all Data Protection Legislation at all times during the term of these Terms of Use. This clause is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under any Data Protection Legislation.

18.4. Each Party shall, and hereby undertakes, to co-operate with the other Party in good faith and to provide any reasonable assistance which the other Party which the other Party may require in order to comply with applicable Data Protection Legislation.

18.5. Where and strictly to the extent that a Party (the “First Party”) processes personal data on behalf of the other Party (the latter acting as the controller), including (without limitation) (i) the personal data of Customers and/or any prospective customers (ii) any personal data comprised within the Transaction Data or Customer Information, the provisions in this Clause 18.5 shall apply by and between the Parties (for all other cases, this Clause 18.5 shall not apply). In that regard, the First Party shall (acting as a processor):

1. only process such data in accordance with these Terms of Use and on the instructions of the Controller (except where required to process that personal data in terms of Applicable Laws or the Rules, in which cases the First Party shall be entitled to act autonomously);

2. have in place appropriate technical and organisational security measures to protect such personal data against unauthorised or unlawful processing and accidental loss, destruction or damage;

3. ensure that all of its personnel who are given access to such personal data have committed themselves to confidentiality terms or are under an appropriate statutory obligation of confidentiality;

4. be permitted and have the authorisation of the Controller to transfer or otherwise process any such personal data outside the European Economic Area, including by or through any sub-contractor (or sub-processor) engaged by it in accordance with these Terms of Use, provided that any such third country transfer must be made in compliance with any and all applicable Data Protection Legislation, and must be carried out on the basis of an adequacy decision or otherwise made subject to an appropriate safeguard which is recognised in Chapter V of the GDPR for transfers of personal data to third countries or international organisations (Article 44 et seq).

5. taking into account the nature of the processing, assist the Controller within a reasonable timescale with fulfilling its obligation to respond to requests made by data subjects (including Customers or any prospective customers) to exercise any data subject right provided to them under the Data Protection Legislation. Should the Processor receive any such requests directly, Processor will inform the Controller that it has received the request and forthwith forward the request to Controller. Processor will not respond in any other way to such a request, except on the instructions of the Controller;

6. promptly notify the Controller of any event involving an actual compromise of the security, confidentiality or integrity of such personal data, including but not limited to any unauthorised access or use or any loss of such personal data ("Personal Data Security Breach"). The First Party shall also provide the Controller with a description of the Personal Data Security Breach, and to the extent that it has such information, the type of data that was the subject of the Personal Data Security Breach, the identity of each affected person or class of persons, and the cause of the breach, as soon as such information can be collected or otherwise becomes available. Furthermore, it shall be the Controller’s sole responsibility to notify the Personal Data Breach to the applicable data protection authority and, where applicable, communicate the same to the affected data subjects,

7. and in connection with the foregoing, the Controller hereby consents to and authorises the appointment and use of one or more sub-processors by the First Party (as processor) and that same First Party shall: (i) ensure in each case that the sub-processor is bound by data protection obligations no less onerous than those contained in this Clause 19.5 and (ii) provide details of all such sub-processors to the Controller following a written request thereto.

19. INFORMATION SECURITY AND ACCESS TO THE OPENPAYD PLATFORM

19.1. You shall comply at all times with the identification and security policies and procedures (including in your Operating Instructions) provided by OpenPayd to you from time to time, and take all relevant steps required therein to minimise the risk of fraud and have due regard to all recommendations therein. OpenPayd may amend the policies and procedures by notice to you.

19.2. It is your responsibility to keep and treat the OpenPayd Account and Customer Portal log-in name, password and any other credentials and information specific to the OpenPayd Account and Customer Portal confidential and in a safe and secure place. This includes ensuring the ongoing safety and security of the OpenPayd Account and Customer Portal log-in details on any computer or other device used to access the internet.

19.3. You shall ensure that manipulation of data entries in relation to Transactions and personal data of Customers in its business operations, in particular improper use of computers or other devices by staff or unauthorised persons, is not possible, by providing and maintaining appropriate security devices, procedures, methodologies and protocols. Without limiting the forgoing, you shall not, and shall procure that your sub-contractors shall not, use the OpenPayd API or your Portal to obtain or decrypt any information other than that expressly required to perform your obligations under these Terms of Use and acknowledge that you do not require, and shall not obtain, store, decrypt or attempt to decrypt any information that comprises Cardholder Data (as defined in PCI DSS).

19.4. You shall take all reasonable steps to ensure that communication between you and a Customer is exclusively handled using a connection that is secure against data manipulation (e.g. SSL encoding) in accordance with industry standard protection.

20. ASSIGNMENT

20.1. You may not assign, transfer or sub-license any of your rights, duties or obligations under these Terms of Use, in whole or in part, to any person or entity without the prior written consent of OpenPayd.

20.2. OpenPayd may assign any or all of its rights under these Terms of Use to an Affiliate, or to any third party acquiring all or substantially all of the assets of OpenPayd relating to these Terms of Use.

21. RELATIONSHIP OF THE PARTIES

21.1. Nothing in these Terms of Use is intended to or shall operate to create a partnership or joint venture of any kind between the parties.

21.2. Save as expressly provided in these Terms of Use, neither party is authorised to act as agent for the other, and neither party shall have authority to act in the name of or on behalf of or otherwise bind the other in anyway (including through the making of any representation or warranty, the assumption of any obligation or liability or the exercise of any right or power on behalf of the other).

22. NOTICES

22.1. Any notice to be given under these Terms of Use must be given in writing and delivered either by hand, first class prepaid post or other recognised delivery service to the registered office of the other party, or by email to the email address registered with your OpenPayd Account, or as otherwise notified in writing from time to time. Notwithstanding the foregoing, OpenPayd may give notice to you by sending an email to any of the email addresses registered with an OpenPayd Account.

22.2. If you are a consumer or a Micro-Enterprise and must give notice to OpenPayd in relation to any unauthorised use of the OpenPayd Account or an incorrectly executed Transaction, clause 22.1 shall not apply but OpenPayd requests that any such notice be given in writing and delivered either by hand, first class prepaid post or other recognised delivery service to the registered office of OpenPayd or by email as set out in section 1 of these Terms of Use or as otherwise notified in writing from time to time.

22.3. These Terms of Use are concluded in English language and all communications (including any notices or the information being transmitted) shall be in English. In the event that these Terms of Use or any part of them is translated (for any proceedings, for your convenience or otherwise) into any other language, the English language text of these Terms of Use shall prevail.

23. FORCE MAJEURE

23.1. If a party (the "Affected Party") is prevented or hindered in, or delayed from, performing any of its obligations under these Terms of Use (other than a payment obligation) by a Force Majeure Event:

23.1.1. the Affected Party's obligations under these Terms of Use are suspended while the Force Majeure Event continues and to the extent that it is prevented, hindered or delayed;

23.1.2. as soon as reasonably possible after the start of the Force Majeure Event, the Affected Party shall notify the other party in writing of the Force Majeure Event, the date on which the Force Majeure Event started and the effects of the Force Majeure Event on its ability to perform its obligations under these Terms of Use;

23.1.3. the Affected Party shall use its reasonable endeavours to mitigate the effects of the Force Majeure Event on the performance of its obligations under these Terms of Use; and

23.1.4. as soon as reasonably possible after the end of the Force Majeure Event, the Affected Party shall notify the other Party in writing that the Force Majeure Event has ended and resume performance of its obligations under these Terms of Use. 24. AUDIT

24.1. OpenPayd and its regulatory authority shall have the right to audit you at any time during the term of these Terms of Use:

24.1.1. to review your compliance with your obligations under these Terms of Use;

24.1.2. to review the integrity, confidentiality and security of Personal Data;

24.1.3. to review your compliance with regulatory requirements;

24.1.4. to review any records, books of account and other documentation relating directly to these Terms of Use; or

24.1.5. to verify the accuracy of any information provided by you to OpenPayd under these Terms of Use.

24.2. OpenPayd shall, in its sole discretion determine the frequency of audits, providing it shall not audit you more than once in a 6 (six) month period.

24.3. OpenPayd shall provide 10 days advance notice to you in respect of any audit it wishes to conduct, the notice will include the scope, date, time and duration of the audit.

24.4. OpenPayd shall use its reasonable endeavours to ensure that the conduct of the audit does not unreasonably disrupt your business or delay the provision of the Services.

24.5. Subject to OpenPayd’s obligations of confidentiality, you shall on demand provide OpenPayd and any relevant regulatory authority (and/or their agents or representatives) with all reasonable co-operation and assistance in relation to each audit, including:

24.6. all information requested by OpenPayd within the permitted scope of the audit;

24.7. reasonable access to any sites controlled by you and to any equipment used (whether exclusively or non-exclusively) in the performance of the Services; and

24.8. access to your representatives who are involved in the provision of the Services.

24.9. Unless stated otherwise in the Pricing Agreement the parties agree that they shall bear their own respective costs and expenses incurred in complying with their obligations under this clause.

24.10. If an audit identifies that you have failed to perform your obligations under these Terms of Use in any material manner, the parties shall agree and implement a remedial plan.

24.11. Once the remedial plan referred to in the previous clause has been commenced, OpenPayd reserves the right to conduct a further audit to verify that the remedial plan has been effectively executed.

25. GOVERNING LAW AND JURISDICTION

25.1. These Terms of Use and any dispute claim or obligation (whether contractual or non-contractual) arising out of or in connection with these Terms of Use, its subject matter or formation shall be governed by Maltese law.

25.2. The parties irrevocably agree that the Maltese courts shall have non-exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) arising out of or in connection with these Terms of Use, its subject matter or formation.

26. LIMITATION OF CLAIMS

Legal actions initiated by you against us must be filed with the competent courts within twelve (12) months from the date or our action, or omission, giving rise to your claim. Any action brought after the expiry of such term shall be time barred.

27. WAIVER

Any waiver of a right under these Terms of Use 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, subject to Applicable Law.

28. SEVERABILITY

If any part of these Terms of Use 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 Terms of Use, which shall continue to be valid and enforceable to the fullest extent permitted by law.

29. ENTIRE AGREEMENT

29.1. These Terms of Use and the applicable Pricing Agreement, represent the entire agreement of the parties in relation to its subject matter.

29.2. Each party acknowledges and agrees that it has entered into these Terms of Use in reliance only on the representations, warranties, promises and terms contained in these Terms of Use and, save as expressly set out in these Terms of Use, neither party shall have any liability in respect of any other representation, warranty or promise made prior to the date of these Terms of Use unless it was made fraudulently.

30. DEFINITIONS AND INTERPRETATION

30.1. The following terms when used in these Terms of Use or any document referred to herein shall have the following meaning:

Affiliate(s) means any corporation or other business entity directly or indirectly controlling, controlled by or under common control with a party from time to time;

AML means anti-money laundering, counter-terrorist financing and sanctions;

API means application programming interface;

Applicable Laws means all statutes, laws, regulations, orders, rules, directions, judgments, decisions, recommendations, policy, made by a regulatory or other public authority with binding effect in force from time to time, applicable to a party and relevant to these Terms of Use, including those regarding: (a) distance selling agreements; (b) customer information; (c) sale of goods and/or services by the Customer in connection with Transactions; and (d) the execution and performance by the Customer of its obligations under these Terms of Use;

Application Form means the application or order form provided by OpenPayd and completed by the Customer under which the Customer applies for the provision of Services;

Authorised Contacts means the person(s) authorised to discuss the Services as notified to us in writing from time to time.

Business Day means any day other than a Saturday or a Sunday or a public or bank holiday in Malta;

CBM Directive no.1 means the Central Bank of Malta Directive number 1 on Payment Services;

Confidential Information means all confidential information, in whatever form (including written or oral), disclosed by one party to the other, including but not limited to, financial, marketing and personnel information, techniques, processes, trade secrets, know-how, designs, methodologies, schematics, ideas, analyses, statistics, performance information, user documentation, internal documentation, details of planned or current products or services, customer or supplier details, financial records, payment details, Transaction Data, Customer Information, computer records or software, specifications, APIs, models, prototypes, compositions, samples or other information that is or may be either applicable to or related in any way to the business or affairs of such party or which is marked confidential or secret. Confidential Information includes the Customer Operating Instructions, Proprietary Information and the contents of these Terms of Use;

Customer Information means information provided in the Application Form and any other information, documents, Websites and data (relating to you or third parties or otherwise) provided by you to OpenPayd;

Data Protection Legislation means (i) any data protection legislation from time to time in force in Malta, including the Data Protection Act (Cap. 586 of the laws of Malta) and any and all secondary and subsidiary legislation that may be made under the same act, (ii) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “GDPR”) and (iii) all other legislation and regulatory requirements in force from time to time which apply to a Party relating to privacy or processing of personal data.

Fines means any and all fines, levies, costs, expenses, charges, assessments or other liabilities of any nature which the relevant Payment Method Facilitator or the operator or governing body (or similar body) of a Payment Method requires the Customer or OpenPayd to pay or which are otherwise directly or indirectly recovered from OpenPayd by the Payment Method Facilitator or the operator or governing body (or similar body) of a Payment Method at any time and which arise as a result of the Customer's breach of these Terms of Use;

Force Majeure Event means an event which is beyond the reasonable control of a party which may include an act of God, inclement weather, flood, lightening or fire, strike, lock out or labour dispute, industrial action, pandemic, an act or omission of Government, any regulatory body or other competent authority, disease, war, military operations, terrorist activities, civil commotion or riot, or any interruption, failure or defect, or non-operation of OpenPayd's internet and telephone connections or other communication services, except that in relation to any contravention of a requirement imposed on OpenPayd by or under Title IV (Rights and Obligations in relation to the provision and use of payment services) of the CBM Directive no. 1;

Intellectual Property Rights means all contingent and future intellectual property rights including goodwill, reputation, rights in Confidential Information, copyright, compilations, trade marks, logos, service marks, design rights, patents, know-how, trade secrets, inventions, get-up, database rights and any other proprietary rights (in each case whether registered or unregistered) and any applications or registrations for the protection of these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created;

OpenPayd Account means the OpenPayd electronic money account(s) provided by OpenPayd to you, operated and used in accordance with these Terms of Use;

Operating Instructions means any operating instructions, procedures or account user guides, manuals, supplementary guides, notices or other documentation relating to the Services or the API and made available by OpenPayd;

Customer Portal means the user interface made available to the Customer through which the Customer can access OpenPayd Platform functionality including Transaction Data and reporting tools forming part of the Services;

Website(s) means the websites used by you to conduct your business;

MFSA means the Malta Financial Services Authority;

Micro-Enterprise has the meaning given in paragraph 7 of the Central Bank of Malta Directive no.1;

Payment Partner means banks, credit institutions, payment service providers and technical service providers used by OpenPayd to provide the Services;

Payment System means any bank payment, clearing or settlement systems (such as CHAPS, Faster Payments, SEPA, SWIFT) provided to you by OpenPayd;

Payment System Rules means any and all rules, requirements, policies or guideline passed or issued by any Payment System as updated or replaced by the Payment System from time to time;

Pricing Agreement means the agreement executed by you and OpenPayd or its Affiliates documenting the pricing for the provision of the Services as may be updated in accordance with the terms of these Terms of Use;

Proprietary Information has the meaning given in clause 16;

Reversed Transaction means a payment by a Customer that is subsequently reversed due to a refund or chargeback or some other form of revocation provided for under the Rules, the Customer's refund policy or the OpenPayd Account Terms of Use or required under Applicable Laws;

Services means the services provided by OpenPayd to you pursuant to these Terms of Use and any other service as agreed between the parties from time to time:

Service Charges means the charges payable by you to OpenPayd for the provision of the Services by OpenPayd as set out in the Pricing Agreement;

Transaction means any payment to or from your OpenPayd Account, enabled by the Services;

Transaction Data means documents, data and records of any kind relating to a Transaction (including data relating to Customers) and any other information required under the Rules or by OpenPayd for the processing of a Transaction; and

User means a person who has been granted permissions by you to access your OpenPayd Account and/or the OpenPayd Platform

VAT means value added tax imposed by the Value Added Tax Act, Chapter 406 of the laws of Malta and legislation and regulations supplemental thereto and includes any other tax of a similar fiscal nature whether imposed in Malta (instead of or in addition to value added tax) or elsewhere from time to time.