1. INFORMATION ABOUT US
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]
You are responsible for operating and integrating the Services in accordance with all Operating Instructions.
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.
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.
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).
3. HOW CAN YOU MAKE A PAYMENT OR TRANSFER TO OR FROM YOUR ACCOUNT?
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.
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.
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.
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.
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.
5. WHAT RESTRICTIONS MIGHT THERE BE ON PAYMENT TRANSACTIONS?
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;
5.2.3. 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.
6.10.1. 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?
7.3. 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.
7.5. 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.
8.3. 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.
8.5. 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?
9.2.2. 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;
9.2.6. 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;
9.2.19. 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.
10. CONSEQUENCES OF SUSPENSION OR TERMINATION
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
10.2.1. cancel any pending Transactions; and
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]
11.3. 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.
11.6. 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
13.1.1. that the details provided when signing up for your OpenPayd Account are in every respect true and accurate;
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;
13.3. 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
14.2. 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.
14.5.2. 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;
14.6.3. 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;
14.8. 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:
14.8.2. 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;
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
15.4. 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.
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").
16.3. 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.
16.6. 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
16.7.1. 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;
16.8. 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
17.2. 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.
17.6. Nothing in this clause shall prevent OpenPayd from:
17.6.3. disclosing to relevant authorities your Information for the purposes of criminal investigation; or
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.
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.
18.4. 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):
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;
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.
19.4. 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.
21. RELATIONSHIP OF THE PARTIES
23. FORCE MAJEURE
24.1.2. to review the integrity, confidentiality and security of Personal Data;
24.1.3. to review your compliance with regulatory requirements;
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.
24.11. 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
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.
29. ENTIRE AGREEMENT
30. DEFINITIONS AND INTERPRETATION
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;
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;
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.
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;
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;
Proprietary Information has the meaning given in clause 16;
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.