Terms & Conditions

INVALID PAYMENTS AND OTHER LIABILITIES

The Second Party acknowledges and agrees that the First Party and each of its Affiliates shall not be liable or responsible in any respect, and that the Second Party shall be liable for all Losses incurred by the First Party arising out of:

any over-payment, payment error, refund or other invalid payment caused by the Second Party or its End-Users (collectively, "Invalid Payment")
any error, default, negligence, misconduct or fraud by the Second Party, employees, directors, officers, representatives of the Second Party or anyone acting on behalf of the Second Party; and/or
any Losses incurred by the First Party in respect of a failure by the Second Party to comply with terms of the Services Agreement or these Conditions.

In the event of an Invalid Payment or other liability as provided above, the First Party may deduct the amounts due to it from the balance in the Dashboard of the Second Party immediately and without objection or refusal by the Second Party, or (where the balance in the Top-Up Account of the Second Party is less than the sum of the value of any Invalidated Payment(s) and/or other costs or liabilities incurred in accordance with this Condition 7), the First Party shall issue a written notice to the Second Party for any reimbursement in respect of such Invalidated Payment(s) and/or such other costs or liabilities, and the Second Party shall make such reimbursement within seven (7) calendar days of receipt of such notice. Provided always that any delay or failure by the First Party to make such deduction shall not constitute or be construed as a waiver of any or all of the First Party’s rights in relation to such Losses to which it is entitled to.

SECURITY AND FRAUD

The Second Party represents and warrants that, at all times while the Service Agreement is in effect, the Second Party shall maintain and adhere to all reasonable security measures to protect the Second Party Computer Systems and the data contained therein from unauthorized control, tampering, or any other unauthorized access and comply with all applicable laws, rules and regulations and (where applicable) card company rules, including, without limitation, the Payment Card Industry Data Security Standard. For the purposes of this Condition 5.1, "Second Party Computer Systems" shall mean the computer systems operated by or on behalf of the Second Party that capture or store End-User data or that transmit End-User data to the First Party.
Unless caused solely by the First Party's gross negligence, fraud or willful or deliberate act, the Second Party shall be responsible for all Losses incurred when there has been a compromise of username or password of the Second Party or any other unauthorized use or modification of the account of the Second Party on the First Party’s platform. Each of the First Party and its Affiliates does not and will not insure the Second Party against any Losses caused by fraud. Further, the Second Party acknowledges and agrees to fully reimburse the First Party for any direct or indirect Losses incurred by the First Party in respect of the use of lost or stolen credentials or accounts of the Second Party, unless such credential or accounts have been lost or stolen solely through the gross negligence, fraud or willful and deliberate act of the First Party.
The First Party may assist the Second Party with any investigations with law enforcement to recover lost funds. However, where the First Party agrees to facilitate the Second Party in such investigations, the First Party shall not be liable to the Second Party, or responsible for any financial or non-financial (whether direct or indirect) Losses or any other consequences of such fraud.
The onus is on the Second Party to review all security controls provided or suggested by the First Party and to determine if such security controls are sufficient or appropriate for its purposes and, where appropriate, independently implement other security procedures and controls not provided by the First Party. The First Party does not represent, warrant or guarantee that the Second Party or any End-User will never become victims of fraud.
The Second Party agrees that it will immediately provide evidence of its compliance with Condition 5.1 to the First Party upon the request of the First Party. Failure to provide evidence of such compliance to the satisfaction of the First Party may result in the suspension of Services or termination of the Services Agreement.
The First Party may provide the Second Party with subjective data regarding the possibility or likelihood that a transaction may be fraudulent, which will require action or review by the Second Party. The First Party may also incorporate action or inaction against the Second Party into any future subjective scoring when identifying future potential fraud. However, the Second Party acknowledges and agrees that it is solely responsible for any action(s) that it may choose to take (or otherwise) in relation to such data, and for providing inaccurate or incorrect information to the First Party. The First Party does not represent, warrant or guarantee that such subjective data will be accurate in detecting fraud in all instances, and shall not be liable for any Losses incurred in respect of any fraudulent transaction undetected by the subjective data provided to the Second Party.
The First Party may provide or suggest best practices for implementation to help prevent losses and ensure the smoothest experience. Second Party agrees to review all the best practices that the First Party suggests and choose those that are appropriate for the Second Party’s business, and independently implement other security procedures and control not provided by the First Party.

LICENSE AND INTELLECTUAL PROPERTY

Subject to the terms of these Conditions, the First Party hereby grants to Second Party and the Second Party hereby accepts from the First Party a personal, limited, non-exclusive, non-transferable license and right to use the First Party's API and accompanying Services Documentation for the following purposes:

install and use the API on as many machines as reasonably necessary (which machines are and shall be maintained in facilities owned, occupied, or leased by the Second Party) to use the Services for the purpose of conducting transactions with the End-Users;
use the accompanying Services Documentation solely for the purpose of using the APIs and Services; and
create any necessary number of copies of the API and Services Documentation, with all copyright notices intact, for archival purposes only.

Subject to the terms of these Conditions, the First Party hereby grants the Second Party a limited, non-exclusive, non-transferable royalty-free license to use the First Party's trademarks and service marks (collectively the "Advertising Materials"; provided that the Second Party agrees to change, at the Second Party's expense, any Advertising Materials which the First Party, in its sole judgment, determines to be inaccurate, objectionable, misleading, or a misuse of the First Party's trademarks and/or service marks. The Second Party, upon written demand by the First Party, shall immediately cease the use of any Advertising Materials that the First Party deems to be in violation of this Clause 9.2. Notwithstanding any provision in these Conditions to the contrary, such license shall be revoked immediately and automatically upon termination of the Services Agreement. The Second Party will not add to, delete from, or modify any Advertising Materials, Services Documentation or forms provided by the First Party without the prior written consent of the First Party.
The Second Party acknowledges and agrees that except for the rights and licenses expressly granted to the Second Party in these Conditions, as between the Second Party and the First Party, the First Party shall retain all right, title and interest in and to the Services, APIs, Services Documentation, and any derivatives of the foregoing (the "First Party IP"); and, nothing contained in the Services Agreement or these Conditions shall be construed as conferring upon the Second Party by implication, operation of law, estoppel, or otherwise, any other license or right. The Second Party shall not: (i) use, reproduce, distribute, or permit others to use, reproduce, or distribute any of the First Party IP for any purpose other than as specified in these Conditions; (ii) make the First Party IP available to unauthorized third parties; (iii) rent, electronically distribute, timeshare, or market the First Party IP by interactive cable, remote processing services, service bureau or otherwise; or, (iv) directly or indirectly modify, reverse engineer, decompile, disassemble, or derive source code from any of the First Party IP.
The Second Party acknowledges and agrees to give the First Party permission to use the Second Party’s name, logo, trademark on the First Party’s website for any lawful purposes including marketing purposes.

REPRESENTATIONS AND WARRANTIES

The First Party's representations and warranties shall be as follows:

The Services and APIs provided to the Second Party hereunder will conform to the specifications set forth in the applicable Services Documentation, as may be amended from time to time at the First Party's sole and absolute discretion, and in the Service Agreement.
The First Party further represents and warrants that the First Party will maintain compliance with all applicable laws, rules and regulations and (where applicable) card company rules governing the security of End-User data, including, without limitation, the Payment Card Industry Data Security Standard.
The preceding warranties will not apply if: (i) any products, services, or deliverables provided hereunder are used in material variation with the Services Agreement, these Conditions or the applicable documentation; (ii) any products, services, or deliverables licensed hereunder or any part thereof have been modified without the prior written consent of the First Party; or, (iii) a defect in any products, services, or deliverables provided hereunder has been caused by any of the Second Party's malfunctioning equipment or third party software.
In the event that the Second Party discovers that any products, services, or deliverables are not in conformance with the representations and warranties set forth in Condition 7.1(a) and Condition 7.1(b) and reports such non-conformity to the First Party, the First Party will, at the First Party's discretion, (i) exercise commercially reasonable efforts to correct the non-conformity at no additional charge to the Second Party, or (ii) refund the fees paid for the non-conforming products, services, or deliverables during the ninety (90) day period preceding the Second Party's notification to the First Party of such non-conformity. The remedy stated in this paragraph constitutes the Second Party's sole and exclusive remedy and the First Party's entire liability under Condition 7.1(a) and Condition 7.1(b).
The First Party represents and warrants that it will not use or disclose unique, non-public End-User data submitted by the Second Party except as reasonably necessary (i) to provide the Services to the Second Party hereunder, (ii) where applicable, to provide fraud screen services generally without disclosing personally identifiable End-User information, or, (iii) as otherwise permitted or required by law.

The Second Party's representations and warranties shall be as follows:

The Second Party represents and warrants that: (i) it has all necessary right, power and ability to execute the Services Agreement and to perform its obligations thereof (including but not limited to these Conditions); (ii) no authorization or approval from any third party is required in connection with the Second Party's execution, delivery or performance of the Services Agreement; (iii) the Services Agreement constitutes a legal, valid and binding obligation, enforceable against the Second Party in accordance with its terms, and does not breach any other agreement to which the Second Party is bound; (iv) its use of the Services is solely for the purpose of legitimate transactions and business activities in compliance with all applicable laws, rules and regulations and (v) it does and will comply with all applicable laws, rules and regulations.
The Second Party further represents and warrants that its installation, configuration, and use of the Services and the APIs shall conform to the specifications set forth in the applicable Services Documentation and the terms of the Services Agreement and in particular (where applicable) the specifications set forth in the services documentation or any other terms and conditions by any of the third-party licensors of the First Party, as shall be stipulated by the First Party and which are incorporated herein by this reference.
The Second Party further represents and warrants that, prior to transmitting End-User information to the First Party, it will provide all reasonably necessary disclosures and/or obtain all reasonably necessary consents from each End-User regarding the intended disclosures and uses of the End-User data.
The Second Party further represents and warrants that (i) it has all necessary rights and authorizations to sell or distribute products or services for which the Second Party is using the Services, (ii) the Second Party does and will comply with all applicable laws and regulations as related to its use of the Services, and (iii) none of its products infringe or violate the Intellectual Property rights of any third party and does not and will not contain any content which violates any applicable law, regulation or third party right.
The Second Party represents and warrants that it complies with all applicable laws and restrictions and that none of its products or services are exported or imported from and that it has not engaged in and is not now engaging in any dealings with (i) any country or any person, national or company belonging to any country to which the U.N impose product embargo and/or international sanction list such as US Consolidated Sanction, OFAC Specially Designated Nationals,EU Financial Sanctions, UK Financial Sanctions, Interpol Wanted List, and other applicable sanction list (ii) any country or any person, national or company that is on the FATF blacklist.
The Second Party further represents and warrants that it has not engaged in and is not now engaging in any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any "government official" (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; and the Second Party is conducting its business in compliance with the applicable anti-corruption anti-bribery laws.
The Second Party represents and warrants that the operations of the Second Party are and have been conducted at all times in compliance with applicable financial record keeping and reporting requirements and anti-money laundering and counter-terrorism financing laws and regulations in the Republic of the Philippines and all other jurisdictions in which the Second Party conducts business or operations, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency or proceeding by or before any court or governmental agency (collectively, "Anti-Money Laundering Laws") and no action or suit or proceeding with respect to Anti-Money Laundering Laws involving the Second Party is pending before any court or governmental agency, authority or body or any arbitrator.
The Second Party represents and warrants that any goods or services that is sold or rendered by the Second Party and its Merchants to end-users shall be delivered or rendered accordingly based on its promises to the end-user and that the Second Party shall not hold the First Party and its Affiliates responsible nor liable for its relationship with end-user.

RESTRICTED ACTIVITIES

The Second Party acknowledges that the First Party is thus prohibited to engage in or provide services in activities prohibited under Philippine laws including Unlawful Activities as such term is defined under the Anti-Money Laundering Act of 2001, as amended, and its Revised Implementing Rules and Regulations (“Restricted Activities”). The list of Restricted Activities may change from time to time due to changes in regulations. Thus, the Second Party acknowledges that the First Party may unilaterally change, revise or modify the list of Restricted Activities below without prior notification to the Second Party. The list below is representative but not exhaustive. If the Second Party is not certain as to whether its business is classified as a Restricted Activities, or has questions about how these requirements apply, please contact us.
The Second Party legally acknowledges and confirms its consent or agrees that it will not use the Service to accept or disburse payment in connection with any of the Restricted Activities including but not limited to:

Restricted Activities

Acts penalized under Secs. 4, 5, 6, 8, 9, 10, 11, 12,13, 14, 15 and 16 of Republic Act No. 9165, otherwise known as the “Comprehensive Dangerous Drugs Act of 2002”, as amended by Republic Act No. 10640;
Acts penalized Section 3 paragraphs b, c, e, g, h and i of Republic Act No. 3019, as amended, otherwise known as the “Anti-Graft and Corrupt Practices Act”;
“Plunder” under Republic Act No. 7080, as amended;
“Robbery” and “Extortion” under Articles 294, 295, 296, 299, 300, 301 and 302 of the Revised Penal Code, as amended;
“Jueteng” and “Masiao” punished as illegal gambling under Presidential Decree No. 1602;
“Piracy on the High Seas” under the Revised Penal Code, as amended, and Presidential Decree No. 532:
“Qualified Theft” under Article 310 of the Revised Penal Code, as amended;
“Swindling” under Article 315 and “Other Forms of Swindling” under Article 316 of the Revised Penal Code, as amended;
“Smuggling” under Republic Act No. 455, and Republic Act No. 1937, as amended, otherwise known as the “Tariff and Customs Code of the Philippines”;
Violations under Republic Act No. 8792, otherwise known as the “Electronic Commerce Act of 2000”;
“Hijacking” and other violations under Republic Act No. 6235, otherwise known as the “Anti-Hijacking Law”; “Destructive Arson”; and “Murder”, as defined under the Revised Penal Code, as amended;
“Terrorism” and “Conspiracy to Commit Terrorism” as defined and penalized under Sections 3 and 4 of Republic Act No. 9372;
“Financing of Terrorism” under Section 4 and offenses punishable under Sections 5, 6, 7 and 8 of Republic Act No. 10168, otherwise known as the “Terrorism Financing Prevention and Suppression Act of 2012”;
“Bribery” under Articles 210, 211 and 211-A of the Revised Penal Code, as amended, and “Corruption of Public Officers” under Article 212 of the Revised Penal Code, as amended;
“Frauds and Illegal Exactions and Transactions” under Articles 213, 214, 215 and 216 of the Revised Penal Code, as amended;
“Malversation of Public Funds and Property” under Articles 217 and 222 of the Revised Penal Code, as amended;
“Forgeries” and “Counterfeiting” under Articles 163, 166, 167, 168, 169 and 176 of the Revised Penal Code, as amended;
Violations of Sections 4 to 6 of Republic Act No. 9208, otherwise known as the “Anti-Trafficking in Persons Act of 2003, as amended”;
Violations of Sections 78 to 79 of Chapter IV of Presidential Decree No. 705, otherwise known as the “Revised Forestry Code of the Philippines, as amended”;
Violations of Sections 86 to 106 of Chapter IV of Republic Act No. 8550, otherwise known as the “Philippine Fisheries Code of 1998”;
Violations of Sections 101 to 107, and 110 of Republic Act No. 7942, otherwise known as the “Philippine Mining Act of 1995”;
Violations of Section 27(c), (e), (f), (g) and (i) of Republic Act No. 9147, otherwise known as the “Wildlife Resources Conservation and Protection Act”;
Violations of Section 7(b) of Republic Act No. 9072, otherwise known as the “National Caves and Cave Resources Management Protection Act”;
Violation of Republic Act No. 6539, otherwise known as the “Anti-Carnapping Act of 2002, as amended”;
Violation of Sections 1, 3, and 5 of Presidential Decree No. 1866, as amended, otherwise known as the decree “Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or Disposition of Firearms, Ammunition or Explosives”;
Violation of Presidential Decree No. 1612, otherwise known as the “Anti-Fencing Law”;
Violation of Section 6 of Republic Act No. 8042, otherwise known as the “Migrant Workers and Overseas Filipinos Act of 1995, as amended”;
Violation of Republic Act No. 8293, otherwise known as the “Intellectual Property Code of the Philippines, as amended”;
Violation of Section 4 of Republic Act No. 9995, otherwise known as the “Anti-Photo and Video Voyeurism Act of 2009”;
Violation of Section 4 of Republic Act No. 9775, otherwise known as the “Anti-Child Pornography Act of 2009”;
Violations of Sections 5, 7, 8, 9, 10 (c), (d) and (e), 11, 12 and 14 of Republic Act No. 7610, otherwise known as the “Special Protection of Children Against Abuse, Exploitation and Discrimination”;
Fraudulent practices and other violations under Republic Act No. 8799, otherwise known as the “Securities Regulation Code of 2000”;
Felonies or offenses of a nature similar to the aforementioned unlawful activities that are punishable under the laws of other countries.

DISCLAIMERS

Except as expressly set forth in the Services Agreement or these Conditions, the products and services provided hereunder are provided "as is" with all faults and without any representations or warranties. The entire risk as to satisfactory quality, performance, accuracy, and effort is with the Second Party. This disclaimer of warranty extends to the End-User and users of the End-User's products and services, is in lieu of all warranties and conditions whether express, implied, or statutory, and the First Party hereby specifically excludes, to the fullest extent permitted by law, any representations, conditions or warranties, express or implied, regarding any of its products or services, including the implied warranties of merchantability, fitness for particular purpose, title, and non-infringement with respect to the products and services, and any implied warranties arising from the course of dealing or course of performance.
The Second Party acknowledges that the First Party is regulated by the Bangko Sentral ng Pilipinas. To such extent recognized and allowed under existing regulations, each of the First Party and its Affiliates is not responsible for the action or inaction of any third party, including but not limited to (a) the operation of the websites of internet service providers ("ISPs"), banks, financial processors, or other financial institutions, (b) the availability or the operation of the operating systems of ISPs, banks, financial processors or other financial institutions, and shall not be liable for any direct or indirect financial or non-financial Losses or any other consequences suffered or incurred by the Second Party in respect of any errors, omissions, failure, delay or breakdown of any ISPs, banks, financial processors or financial institutions.
The Second Party acknowledges and affirms that the First Party shall not be responsible for recognizing any particular purchase, sale, donation, order, or other transaction (each a "Transaction") with respect whether it is accurate or correct, or typical for the business of the Second Party. The Second Party shall be solely responsible for recognizing whether a Transaction initiated by an End-User is erroneous or suspicious (including, but not limited to, unusual or large purchases, or an atypical request for delivery to a foreign country). The Second Party acknowledges and agrees that it shall make reasonable checks on Transactions which appear suspicious and/or erroneous and, if necessary, contact an End-User in relation to such suspicious or erroneous Transaction before fulfilling or completing the Transaction. The Second Party is solely responsible for any Losses directly or indirectly incurred due to erroneous or fraudulent Transactions in connection with its use of the Services, and the First Party shall not have any responsibility or liability in respect of the same whatsoever.
The Second Party shall only use the Services for legitimate transactions with its End-Users. The Second Party shall be responsible for its relationship with its End-Users, and the First Party and its Affiliates shall not be responsible or liable in any manner whatsoever for the products or services publicized or sold by the Second Party, or purchased by the End-Users from the Second Party using the Services; or if the Second Party accepts donations, for the Second Party’s communication to its End-Users of the intended use of such donations. The Second Party acknowledges and affirms that it is solely responsible for the nature and quality of the products or services provided by it, and for delivery, support, refunds, returns, and for any other ancillary services provided by it to its End-Users, and that the First Party and its Affiliates shall not have any responsibility or liability in respect of the same whatsoever. The First Party reserves the right to terminate the Services and the Services Agreement immediately upon reasonable suspicion that the Second Party is engaged in any illegitimate transaction(s) with its End-Users and/or illegitimate business and shall not be responsible or liable for any Losses incurred in respect thereof or in connection therewith by any person (including, without limitation, the Second Party and/or any End-User) whatsoever.
The Second Party understands and agrees (i) that neither the First Party nor its third-party licensors can guarantee the accuracy of tax rates obtained from taxing authorities, and, (ii) that the Second Party bears the ultimate responsibility for the proper payment of taxes applicable to Second Party's sale of its products or services.
For the avoidance of doubt, the First Party does not make any representation, warranty or guarantee in respect of the quality, authenticity, fitness, nor any other statement in relation to the nature whatsoever, of the goods or services delivered or rendered by the Second Party, and shall not be responsible or liable for any claims in respect thereof or in connection therewith by any person (including, without limitation, any End-User) whatsoever.

INDEMNIFICATION AND LIABILITY

First Party Indemnity: The First Party shall defend, hold harmless and indemnify, at its expense, the Second Party, its affiliates and each of their respective officers, directors, employees, and the successors and assigns of the foregoing (each, a "Second Party Indemnified Party") against any third party legal cause of action, claim, suit, proceeding or regulatory action brought against the Second Party Indemnified Party and any related Losses (including reasonable fees and expenses of legal and other advisers, court costs and other dispute resolution costs) suffered or incurred by the Second Party Indemnified Party, to the extent that such cause of action is based upon a claim that any services or products of the First Party infringe a copyright, patent, trade secret, or other intellectual property rights of a third party. Should any of the First Party's products or services become, or in the First Party's reasonable opinion is highly likely to become, the subject of a claim of intellectual property infringement, the First Party may, at its option: (i) obtain the right for the Second Party and its Customers to continue using the products or services; (ii) replace or modify the First Party’s products and services so it is no longer infringing or reduces the likelihood that it will be determined to be infringing; or (iii) if neither of the foregoing options is commercially reasonable, terminate the Service Agreement.
Second Party Indemnity: The Second Party shall defend, hold harmless and indemnify, at its own expense, the First Party, its affiliates and each of their respective directors, officers, employees and representatives, and the successors and assigns of the foregoing (each, a "First Party Indemnified Party") against any third party legal cause of action, claim, suit, proceeding or regulatory action brought against the First Party Indemnified Party and any related Losses, damages, liability, costs and expenses (including reasonable fees and expenses of legal and other advisers, court costs and other dispute resolution costs) suffered or incurred by the First Party Indemnified Party, to the extent that such cause of action is based on or arising from (i) any services or products of the Second Party that infringe a copyright, patent, trade secret, or other intellectual property rights of a third party; (ii) a breach by the Second Party of any of the terms, conditions, representations and warranties set forth in the Services Agreement and these Conditions; or (iii) the Second Party's or an End-User's use of the Services that are inconsistent with any of the terms of the Services Agreement or these Conditions or that violate any data protection laws, Network Rules, or any other applicable law, rule or regulation.
The Party from whom indemnification is being sought (the "Indemnifying Party") will indemnify the Party seeking indemnification (the "Indemnified Party") from a claim provided that the Indemnified Party notifies the Indemnifying Party in writing promptly and in any event not later than three (3) business days after the Indemnified Party becomes aware of such claim (provided that the failure to so notify shall not affect the Indemnified Party's rights to indemnification hereunder unless, and then only to the extent that, the Indemnifying Party has been actually prejudiced thereby). The Indemnifying Party may not agree to any settlement that involves injunctive or equitable relief affecting the Indemnified Party or admission of liability by the Indemnified Party without obtaining the Indemnified Party's prior written consent.
The First Party shall have no liability to the Second Party for any claim based on:

any and all Losses incurred by the Second Party in respect of the products or services of the First Party which have been modified by parties other than the First Party;
any and all Losses incurred by the Second Party in respect of the Second Party's use of the First Party's products or services in conjunction with data where use of such data gave rise to an infringement claim;
any and all Losses incurred by the Second Party in respect of any failure of the Second Party to install upgrades or patches provided by the First Party where such upgrade or patch would have avoided such Losses;
any and all Losses incurred by the Second Party in respect of the Second Party's use of the First Party's products or services in a manner inconsistent with the Services Documentation provided with such products or services;
the Second Party's use of the First Party's products or services with software or hardware not authorized by the First Party, where use with such other software or hardware gave rise to the Losses incurred by the Second Party,
any and all Losses incurred by the Second Party in relation to any absence of any license or permit in respect of the business activities and operations of the Second Party;
any and all Losses incurred by the Second Party in relation to any claim related to any infringement of any intellectual property committed by the Second Party; and
any other Losses, fines, penalties, claims (including, inter alia, legal and professional adviser costs), and damages suffered or incurred by the Second Party as a result of any tort (including, inter alia, negligence and misrepresentation), breach of statutory duty, fraud, fraudulent misrepresentation, wilful damage to property or person or any other wilful or unlawful misconduct, in each case, attributable to or caused by the Second Party or any of his employees, directors, officers, representatives, agents or affiliates.
failure to comply with Condition 5.7, in which the Second Party disables or fail to properly follow best practice suggestions by the First Party which will increase the likelihood of fraud, losses and other similar occurrences, unless such losses result from the First party’s willful or intentional actions.
failure to comply with Condition 7.2 (h), in which the Second Party and/or its Merchants purposefully or negligently fails to send or render goods or services as promised to the end-user.

Under no circumstances (i) shall the First Party nor any of its third-party licensors be liable to the Second Party for indirect, incidental, consequential, special or exemplary damages or Losses suffered or incurred (even if the First Party or any of its third-party licensors have been advised of the possibility of such damages and regardless whether each of them knew or had reason to know of the possibility of the loss, injury or damage in question), such as, but not limited to, loss of revenue, profits, goodwill or business, anticipated savings, loss of reputation, costs of delay, costs of lost or damaged data or documentation, or such party's liabilities to third parties of any nature arising from any source; nor (ii) shall the entire liability of the First Party or any of its third-party licensors to the Second Party with respect to the Services Agreement or any subject matter thereof, these Conditions or the Services under any contract, tort, negligence, strict liability or other legal or equitable theory, exceed the fees paid or payable to the First Party by the Second Party under the Services Agreement or (in the case of a dispute involving a third-party licensor of the First Party) the fees paid or payable to such third-party licensor during the six (6) -month period immediately prior to the date the cause of action arose.
The exclusions and limitations of this Condition 12 do not apply to obligations hereunder regarding indemnification for infringement of third party intellectual property rights by the Second Party or for liability arising from the bodily injury or death of a person by any Party.

CONFIDENTIAL INFORMATION

Each Party (the "Receiving Party") hereby agrees (i) to hold the other Party's (the "Disclosing Party") Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third party except as is strictly necessary to provide or use the Services, (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, and (iv) that any employee or third party given access to any such Confidential Information must have a legitimate "need to know" and shall be bound in writing to comply with the Receiving Party's confidentiality obligations, whether generally or specific to the Services Agreement or these Conditions.
Except as otherwise provided in the Services Agreement or these Conditions, within thirty (30) calendar days of termination of the Services Agreement, the Receiving Party shall destroy all materials that constitute Confidential Information and/or Intellectual Property of the Disclosing Party and provide to the Disclosing Party written certification signed by an authorized officer or representative of the Receiving Party that all such information was so destroyed. Notwithstanding the foregoing, each party may retain Confidential Information that is (i) stored on archival or back-up files or (ii) required for compliance with applicable law, card company rules or its obligations pursuant to the Services Agreement (including these Conditions), provided that such party continues to maintain confidentiality of such Confidential Information pursuant to the terms of the Services Agreement and these Conditions.
Notwithstanding any provision in the Services Agreement or these Conditions to the contrary, each Party may disclose Confidential Information of the other Party to the extent it is required to be disclosed pursuant to a valid order or requirement of a governmental agency or court of competent jurisdiction, provided that the owner of the Confidential Information shall be given reasonable notice of the pendency of such an order or requirement and the opportunity to contest it.
For the avoidance of doubt and notwithstanding the foregoing, either Party shall be entitled to disclose the existence of the relationship formed hereunder between the First Party and the Second Party and may include the name, trade name, trademark, or symbol of the other Party in its publicity materials without the prior written consent of the other Party.

MISCELLANEOUS

The Parties shall perform all of their duties under the Services Agreement (including these Conditions) as independent contractors. Nothing in the Services Agreement shall be construed to give either Party the power to direct or control the daily activities of the other Party, or to constitute the Parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint capital venturers, co-owners, or otherwise as participants in a joint undertaking. The Parties understand and agree that, except as specifically provided in the Services Agreement, neither Party grants the other Party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other Party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other Party, or to transfer, release, or waive any right, title, or interest of such other Party.
In performing any of the Services under the Services Agreement and these Conditions, from time to time, to the extent permitted under the law, Second Party hereby agrees to authorize First Party, at First Party's sole discretion, to delegate any of its duties and obligations hereunder to any of its Affiliates and/or trusted third party. For the avoidance of doubt, should the First Party chooses to exercise its rights in Condition 15.2, the First Party shall not be considered in breach of Conditions 11 for failure or delay in notifying the Second Party of such intention.

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