Terms and Conditions (Thailand)

TERMS AND CONDITIONS
1. DEFINITIONS

1.1. In this agreement (the “Agreement”):

“Acquirer” means a financial institution that is authorised by a Payment Scheme provide acquiring services to the Merchant by accepting Transactions from the Merchant on behalf of the Payment Scheme, routing these Transactions to the Payment Scheme or Card Issuers and collecting and settling the resulting funds to the Merchant, whether such acquirer is RDP, and affiliate of RDP or another acquirer.

“Affiliate” means, in relation to any Party, any entity in the same group as that Party, including but not limited to a subsidiary or a holding company of that Party and any direct or indirect subsidiaries of such holding company.

“API” means the application programming interface, a set of routines, protocols and tools used by the Merchant to interface the Merchant’s computer systems to RDP’s computer systems in order for RDP to perform the Services and to allow the Merchant to use the Services

“Applicable Law” means any and all applicable provisions in any jurisdiction, of statutes, laws, rules, codes, treaties, ordinances, directives, directions, injunctions, awards and/or regulations, including that from any court, governmental, intergovernmental, supranational authority or self-regulatory organisation, and including (binding and non-binding) requests, guidelines or decisions from regulators or associations as amended and re-enacted from time to time.

“Business Day” means a day other than a Saturday or a Sunday or a public holiday in Thailand.

“Card Issuer” means a financial institution that issues cards under the authority of the relevant Payment Scheme.

“Chargeback” means a circumstance where a Transaction is disputed by a Customer and charged back on request of the Customer or the Card Issuer pursuant to the relevant Payment Scheme Rules, resulting in a cancellation of a Transaction in respect of which the funds may not yet have been settled to the Merchant, or the funds have already been settled, in which case, the Merchant is required to pay such funds back.

“Confidential Information” means any and all written, oral visual, machine readable or other tangible or intangible form of information (whether patentable or copyrightable or not), data, techniques, plans, strategies, opportunities or trade secrets which is/are not generally available to the public as disclosed or delivered by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) whether before or after the date of this Agreement.

“Customer” means a customer of the Merchant in relation to a payment transaction processed using the Services.

“Customer Data” means Data relating to Customers that (a) the Merchant provides to RDP in connection with the Services and/or (b) RDP generates on the basis of Data as referred to under (a).

“Data” means documents, records and any other data of any kind relating to the transactions.

“Documentation” means the operational instructions, user manuals, help files and other technical information and material, in print, written or electronic form in any media and format, delivered with the API to the Merchant that are intended for use in connection with the Services.

“Fees” means all fees, bank charges and other payments to be made by the Merchant to RDP from time to time.

“Fines” means any and all means any and all fines, charges or other additional payment imposed or assessed by the Payment Schemes, Acquirers or other financial institutions on either the Merchant or RDP in relation to the Agreement (including the provision of the Services hereunder) in connection with an act or omission by the Merchant.

“Further Guidance” means any and all internal or external documents, guidance, policies and
processes outlined or issued by RDP in relation to the Services.

“Merchant Bank Account” has the meaning given to it in Clause 4.3.

“Payment Scheme” means Visa and/or MasterCard (including any local schemes thereof) and/or such other provider of a payment method enabling payments by Customers to Merchants, as approved and notified by RDP to the Merchant in writing.

“Payment Scheme Rules” means any and all applicable rules, regulations, standards and operating guidelines issued by any Payment Scheme, as amended and restated from time to time.

“Payout” means all amounts due to the Merchant from its Transactions, minus any fees, reversals, invalidated payments, Chargebacks, refunds, setoffs, recoupments or other amounts that the Merchant owes to RDP under the Agreement

“Payout Date” means each date when RDP shall submit the payment of the collected funds to the Merchant in accordance with this Agreement.

“Personal Data” means any information that identifies an individual or relates to an identifiable individual or as otherwise defined under Applicable Law.

“Commercial Sheet” means the commercial sheet at the beginning of this Agreement that details the Services, the jurisdictions in which those Services are available and the Fees.

“Refund” means a reversal of a Transaction in whole or in part whereby funds are returned to a Customer on the initiative, instruction or request of the Merchant.

“Service Providers” means third party suppliers of payment services to RDP which are provided by RDP to the Merchant pursuant to this Agreement.

“Services” means the processing, reconciling and reporting of payment transactions, related operations and any other services provided by RDP for the purposes of allowing the Merchant to process Transactions, as set out in this Agreement or other services as otherwise approved and notified by RDP to the Merchant in writing from time to time.

“Systems” means the facilities, hardware, software and processes owned or licensed by RDP to provide the Services to Merchant.

“Trademarks” means any name, logo, brand, trademarks, trade names, service marks, service names, designs, slogans and any other marks identifiable with a Party or a Party’s products or services, whether unregistered, registered or is the subject matter of an application for registration.

“Transaction” means any payment transaction processed by RDP on behalf of the Merchant as part of the Services.

1.2. Unless a contrary indication appears any reference in this Agreement to:

1.2.1. “including” and “include” shall mean including and include “without limitation”;

1.2.2. the singular or plural shall each be deemed to include the other unless the context otherwise indicates; and

1.2.3. a “Clause”, “Appendix”, or “Schedule” is, unless the context otherwise requires, a reference to a Clause in or an Appendix or Schedule to this Agreement.

1.3. Unless expressly provided to the contrary in this Agreement, a person who is not a party has no right to enforce or to enjoy the benefit of any term of this Agreement.

1.4. The terms of this Agreement have been negotiated by the Parties and drafted for the benefit of the Parties. Accordingly, any rule in terms of which an agreement will be interpreted against the Party responsible for the drafting and preparation of the agreement will not apply in the interpretation of this Agreement.

1.5. The headings in this Agreement are intended for convenience of reference and shall not affect its interpretation.

2. RIGHTS AND OBLIGATIONS OF RDP

2.1. RDP will, in consideration for the Fees, provide one or more of the Services with reasonable skill and care, in accordance with and for the duration of this Agreement. Services will be provided in accordance with Applicable Law and Payment Scheme Rules.

2.2. RDP shall take reasonable measures to provide a secure payment system and shall keep its systems used to provide the Services PCI-DSS certified.

2.3. RDP may cancel, suspend or modify one, some or all of the Services without prior notice and with immediate effect if RDP or any Payment Scheme, in its reasonable opinion, considers it necessary or desirable to do so, including in circumstances where a particular payment method is no longer being supported by RDP or the relevant Payment Scheme or where such suspension or modification is required by Applicable Law or Payment Scheme Rules in for such jurisdiction. RDP will notify the Merchant as soon as possible of any such cancellation, suspension or modification.

2.4. This Agreement is contingent upon the satisfactory results of know-your-customer and due diligence procedures that RDP is required to conduct with regards to Merchant. Accordingly, RDP reserves the right to reject Merchant’s account set up or registration and is not obligated to provide Merchant with a written explanation. Merchant acknowledges that if there is any change to any of Merchant’s information submitted to RDP, Merchant shall notify RDP of the same in writing as soon as practically possible.

3. PAYMENT OF FEES AND SETTLEMENT OF FUNDS

3.1. Where RDP performs the settlement of funds for payment transactions processed for the Merchant, RDP shall on each Payout Date remit by direct bank transfer or cheque to the Merchant Bank Account any Payout.

3.2. RDP is entitled to recover the Fees and the sums set out at Clause 3.3 by:

3.2.1. deduction from any Payout;
3.2.2. invoice (in which case such sums will be payable by the Merchant in accordance with the terms of the invoice); and/or
3.2.3. any combination of the above.

3.3. RDP is entitled to recover and withhold:

3.3.1. amounts for any Refunds;
3.3.2. amounts for any Chargebacks and any Fines;
3.3.3. any amounts required to cover any:

i. amounts required by RDP to cover any potential or expected Refunds, Chargebacks, Chargeback Costs, Fines, taxes, levies, GST, withholding taxes or any other liability or potential liability of the Merchant under this Agreement;

ii. any other sums due to RDP or bank charges or amounts incurred by or due to RDP under or in connection with this Agreement

3.4. If the value of the Fees and the sums set out in Clause 3.3 exceed the aggregate value of a Payout on any Payout Date, the remaining shortfall may be deducted (together with interest, if applicable) on the following Payout Date. In addition, RDP reserves the right to require immediate payment of all or part of such shortfall at any time (together with interest, if applicable).

3.5. Where, on any Payout Date, the amount of a Payout would fall below a minimum threshold (as notified by RDP to the Merchant from time to time), that RDP is entitled, but is not required, to defer such Payout to the following Payout Date.

3.6. RDP is entitled to defer any Payout or any other sum due to the Merchant to the extent that RDP, in its absolute discretion, considers necessary or appropriate to protect its ability to recover the Fees and/or the sums set out at Clause 3.3 or any other sums to cover the liability (actual or anticipated) of the Merchant in connection with the Agreement.

3.7. RDP may amend the Fees by providing at least 30 calendar days’ prior written notice. Such change will become effective on the calendar day immediately following the end of this period.

3.8. RDP reserves the right to cancel or suspend the processing of any transaction and any connected transactions that it has reasonable grounds to suspect to be fraudulent or involving other criminal activity or withhold Payout until the satisfactory completion of its investigation.

3.9. The Merchant shall not be entitled to any interest or other compensation in respect of suspension or delay in receiving any Payout.

3.10. Fees are payable by the Merchant to RDP monthly, unless otherwise stated in the Commercial Sheet. RDP shall provide a written invoice to the Merchant, which will be payable within thirty (30) calendar days. An interest of 8% per annum (or the maximum rate as permitted by law) shall be levied for any invoice that remains unpaid beyond its due date. The Merchant will bear all remittance charges when making invoice payments to RDP. Alternatively, for payment in SGD or USD, RDP may send a payment link to Merchant for invoice payment to be made online via credit cards.

4. RIGHTS AND OBLIGATIONS OF THE MERCHANT

4.1. The Merchant shall comply with and not contravene the terms of the Agreement, Applicable Law and applicable Payment Scheme Rules and shall have obtained and maintain all consents, permits, approvals, licences, registrations and waivers necessary or appropriate for carrying on its business. The Merchant shall not act in contravention of or cause RDP to act in contravention of any Payment Scheme Rules to which RDP is subject.

4.2. The Merchant shall only accept payments and/or process Refunds:

4.2.1. from Customers in connection with goods and/or services supplied by the Merchant;

4.2.2. in respect of goods and services which:

a. commonly fall within its business as identified in its request to the RDP for the Services;
b. the Customer would reasonably expect to receive; and
c. in respect of goods or services, the provision of which is in accordance with Applicable Law.

4.2.3. in the case of Refunds, only pay such Refunds to the Customer using the payment method used by the Customer for the original Transaction and ensure the amount of any Refund does not exceed the amount of the initiating Transaction.

4.3. The Merchant shall, at all relevant times, maintain a bank account in its own name, that is acceptable to RDP so that the Merchant can receive Payouts from, and make payments to, RDP (“Merchant Bank Account”). The Merchant represents and warrants that it is authorised to initiate settlements to the Merchant Bank Account, that the Merchant Bank Account is owned by the Merchant and titled in the Merchant’s legal or trade name, and is administered and managed by a financial institution located in the country for which the Transactions are being processed by RDP. The Merchant further undertakes, to the extent the Merchant updates its Merchant Bank Account, to provide RDP with documentary proof demonstrating its compliance with this clause.

4.4. While RDP may provide Documentation, instructions, support or installation guides, the Merchant remains solely responsible for ensuring the correct implementation, installation, integration, security and operation of all systems, equipment, software and telecommunications and use of the Services on its own platform.

4.5. The Merchant shall provide immediate notice of (i) any unauthorised third-party use of the Services; and/or (ii) any event which might lead to such unauthorised use which has come to the Merchant’s attention.

4.6. The Merchant shall take all reasonable steps to assist RDP in handling any claim or query raised by any other third party in relation to the Services.

4.7. The Merchant shall immediately notify RDP of any act, omission or error which does or may likely adversely affect the Merchant’s ability to perform its obligations under this Agreement (including, but not limited to, any material change in the nature or extent of the Merchant’s business).

4.8. The Merchant acknowledges and agrees to abide by and ensure that all equipment and software it uses in connection with the transactions and the storage and/or processing of Data complies with any payment card industry or payment application data security standards of any relevant Payment Scheme as updated from time to time (the “PCI DSS”). The Merchant shall ensure that any of its agents, sub-contractors or any third parties used by it in relation to the transactions is aware of and shall comply with the terms of this clause. Where applicable, the Merchant shall, promptly on request of RDP or Payment Scheme, provide evidence of PCI DSS compliance.

4.9. The Merchant shall immediately notify RDP on becoming aware of any actual or suspected security breach relating to any Data. As soon as reasonably practicable, the Merchant shall identify and remediate the source of such security breach and take any additional steps required by RDP. This Clause shall not prejudice any other remedies available to RDP under this Agreement.

4.10. The Merchant shall comply with any additional security, authentication, risk control or other requirements imposed by RDP or a Payment Scheme, including but not limited to, where that Merchant is, in the opinion of RDP and/or the Payment Scheme, engaged in high-risk activities.

4.11. The Merchant shall not engage in any practice prohibited by any of the Payment Scheme Rules unless permitted by Applicable Law. In particular:

4.11.1. the Merchant must not engage in any practice that discriminates against or discourages the use of a card in favour of any other acceptance brand, including the levying of surcharges, or the imposition of minimum or maximum transaction amounts; and

4.11.2. the Merchant must not submit to RDP any transaction that represents the refinancing or transfer of an existing Customer obligation that is deemed to be uncollectible or arises from the dishonour of a Customer’s personal check.

5. CHARGEBACKS

5.1. Where RDP performs the settlement of funds for payment transactions processed for the Merchant, the Merchant acknowledges and agrees that in certain circumstances Card Issuers, Payment Schemes, Acquirers or other financial institutions may (i) refuse to settle a transaction or (ii) debit from or oblige RDP to pay back the Chargeback amount on behalf of a Merchant.

5.2. The Merchant agrees that it may be required to reimburse RDP for Chargebacks where the Merchant has accepted payment in respect of the relevant transaction (even if the Merchant is under no legal liability for the supply or performance of the goods or services concerned). Where applicable, the Merchant must respond to cardholder disputes and handle Chargebacks in accordance with Payment Scheme Rules.

5.3. All Chargebacks shall correspond to the whole or part of the settlement value of the original transaction or, if applicable, at the option of RDP, to an amount converted to the settlement currency from the currency of the Chargeback by the Card Issuer, Acquirer, Payment Scheme or other financial institution to RDP at the rate of exchange quoted by RDP for settlement purposes on the day the Chargeback is processed.

5.4. Where a Chargeback occurs, the RDP shall immediately be entitled to recover from the Merchant:

5.4.1. the full amount of the relevant Chargeback; and
5.4.2. any other costs, expenses, liabilities or Fines incurred as a result of or in connection with such Chargeback (“Chargeback Costs”).

5.5. A Chargeback represents an immediate liability from the Merchant to RDP.

5.6. RDP shall not be obliged to investigate the validity of any Chargeback by any Card Issuer, Payment Scheme, Acquirer, or other financial institution, whose decision shall be final and binding in respect of any Chargeback.

5.7. As Chargebacks may arise a considerable period after the date of the relevant transaction, RDP shall remain entitled to recover Chargebacks and Chargeback Costs from the Merchant in respect of all Chargebacks, even after the termination of the contractual relationship between the Merchant and RDP.

5.8. RDP may immediately pass on and recover from the Merchant any Fines or further charges incurred as a result of or in connection with Chargeback Costs and/or terminate this Agreement and the Services provided hereunder if RDP in its sole opinion considers that the total value of Refunds and/or Chargebacks is unreasonable.

5.9. It is the Merchant’s responsibility to prove to RDP’s satisfaction (or that of the relevant Card Issuer, Acquirer or other financial institution) that the debit of a Customer’s account was authorised by such Customer.

5.10. The Merchant agrees to process returns of, and provide refunds and adjustments for, products sold and/or payments collected through its merchant site in accordance with the Agreement, the acquiring banks instructions and payment scheme/card association rules. The Merchant understands that all Refunds must be routed through the same acquiring bank payment gateway through which the transaction was made. In the event that the Merchant initiates Refunds through any other mode, the Merchant shall be fully liable for all Chargebacks raised in respect of the transaction refunded.

5.11. The Merchant agrees and confirms that it shall remain solely liable after the termination of the Agreement for all Chargebacks, Refunds, penalties, loss, damages and/or costs incurred by RDP, acquiring banks, Payment Schemes and/or Customers and for all claims and proceedings arising against RDP and/or an acquiring bank with respect to the Agreement.

6. SET-OFF

6.1. RDP may, without notice, set off any debts or liabilities due from the Merchant or Merchant’s Affiliates to RDP or any of its Affiliates under the Agreement against any debts or liabilities owed by RDP or any of its Affiliates to the Merchant or Merchant’s Affiliates, regardless of the place of payment or currency of either obligation. If the obligations are in different currencies, then RDP may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

6.2. The right applies whether or not the relevant debts or liabilities are matured and whether those debts or liabilities are present, future, actual, contingent, potential, liquidated and/or unliquidated. For these purposes, RDP may value future, contingent, potential and/or unliquidated items.

6.3. The exercise by RDP of any of its rights under this clause shall be without prejudice to any other rights or remedies (including but not limited to set-off) to which RDP or its Affiliates are otherwise entitled (by operation of law, contract, or otherwise).

7. FRAUD PREVENTION

7.1. RDP may offer or require the Merchant to accept certain fraud prevention services (“Fraud Prevention Services”). Where the Merchant receives any Fraud Prevention Services, it will comply with any additional terms governing those Fraud Prevention Services.

7.2. The Merchant acknowledges and agrees that the processing of transactions and/or the making of Payments may be delayed and/or suspended in case RDP or any of its Affiliates has a reasonable suspicion that a transaction may be fraudulent or may involve other criminal activity.

7.3. The Merchant must not submit any transaction that the Merchant either knows is, or should have known was, illegal. For the avoidance of doubt, for the purposes of this Clause 7.3 the Merchant is deemed to be responsible for the conduct of its employees, agents and representatives.

7.4. The Merchant shall at all times provide RDP with reasonable assistance on request for the prevention and detection of fraud or other criminal activity in respect of any Transactions.

8. REPRESENTATIONS AND WARRANTIES

8.1. Each Party represents and warrants to the other Party as follows:

8.1.1. It is a company duly incorporated, organised and/or authorised and in good standing under the laws of the state, region or country of its organisation.

8.1.2. It has full capacity, power and authority to abide by this Agreement and to exercise its rights and perform its obligations hereunder.

8.1.3. All corporate action required to enter into this Agreement by it and the exercise by it of its rights and the performance by it of its obligations under this Agreement has been duly taken.

8.1.4. This Agreement is valid, binding and enforceable against it in accordance with its terms and no provision of this Agreement is in conflict with any of its obligations under its constitutional documents, Applicable Law or any other document, charter or agreement to which it is subject.

8.2. The Merchant represents and warrants to RDP as follows:

8.2.1. The Merchant will use the Services in good faith, in accordance with the terms of this Agreement and in accordance with Applicable Law, Payment Scheme Rules and Further Guidance. In particular, the Merchant will not use the Services in a manner that could result in a violation of anti-money laundering, counter terrorist financing and similar legal and regulatory obligations.

8.2.2. The Merchant shall comply with any technical specifications made available by RDP, which RDP reserves the right to modify at any time.

8.2.3. RDP is and will not be part of, nor be made to participate in sales and procurement contracts executed between the Merchant and its Customers. The Merchant shall comply with consumer obligations, data privacy obligations, tax obligations, exchange obligations or any other obligations under Applicable Law. The Merchant is responsible for acknowledging and complying with the legislation in force and applicable to its activity in the countries where it operates and uses the Services.

8.2.4. The Merchant’s products and/or services do not infringe on or violate the intellectual property rights of any third party and will not contain any content which violates any applicable law, regulation or third party right.

8.2.5. all information provided by the Merchant to RDP is true and accurate in all respects and not misleading in any respect

9. INFORMATION

9.1. The Merchant shall at all times promptly provide to RDP such information with each Transaction as RDP may reasonably require for the provision of the Services, including (but not limited to), any information needed for fraud checks, reporting obligations or other obligations (including financial obligations) concerning the Merchant imposed by the Agreement, any Payment Scheme Rule and/or Applicable Law. The Merchant shall also disclose to RDP such information as RDP may reasonably require to comply with its customer due diligence, reporting, record-keeping and other obligations under any applicable law, its subsidiary legislations, as well as all applicable notices and guidelines issued by the Bank of Thailand.

9.2. The Merchant shall immediately notify RDP of any material change in such information, including any material change in the financial position of the Merchant for the duration of the provision of the Services.

9.3. RDP may retain such information as long as it may be required by Applicable Law, any Payment Scheme rules, or agreed with RDP (whichever is longer).

9.4. Subject to Applicable Law, RDP may use information, collect information and share information with its Affiliates, Card Issuers, Acquirers, Payment Schemes, credit reference agencies, fraud prevention agencies and crime enforcement authorities to the extent RDP may reasonably consider this necessary or appropriate for the provision of the Services and/or compliance with this Agreement, Applicable Law, Payment Scheme Rules and Further Guidance.

9.5. The Merchant acknowledges and agrees that:

9.5.1. Payment Schemes to which RDP disclose information may (i) maintain databases (which may be available to third parties including Card Issuers, regulators and other authorities) containing information regarding the conduct of Transactions by merchants; and/or (ii) categorise undesirable conduct of merchants; and

9.5.2. if any of the Services or this Agreement are/is terminated pursuant to Clause 17, relevant Payment Schemes may, subject to Applicable Law, be notified and may retain such information in accordance with their normal practice.

9.6. RDP shall have no liability to the Merchant for any inaccuracy in the information provided to any third parties pursuant to this Clause 9, provided it acted in good faith.

10. DATA MANAGEMENT AND PROTECTION

10.1. The Merchant shall abide by all Applicable Law (including but not limited to the Thailand Personal Data Protection Act), and its contractual and other obligations to its Customers, in providing Customer Data to RDP and processing Customer Data through the use of the Services.

10.2. RDP may use and disclose Customer Data, in accordance with Applicable Law, for the following purposes: (a) providing, improving and developing the Services; (b) market research and trend analysis; (c) taking steps to prevent, detect or prosecute fraud and other offences and/or to comply with Applicable Law; and (d) other purposes authorised by the Merchant in this Agreement or otherwise in writing. RDP may also take steps to derive anonymised Customer Data from identifiable Customer Data, and may use and disclose anonymised Customer Data, for any lawful purposes, in accordance with Applicable Law.

10.3. The Merchant shall provide such information and offer such choices to, and obtain such consents from, its Customers as are reasonably required to enable RDP to use and disclose the Customer Data as set out in Clause 10.2 in accordance with Applicable Law. Where a required consent to (or failure to exercise an opt-out from) use of Customer Data for any of the purposes specified in Clause 10.2 cannot be made a condition to processing a transaction under Applicable Law, the Merchant shall (i) nonetheless use reasonable endeavours to facilitate Customer choices allowing such use and disclosure; and (ii) promptly notify RDP in writing of any required consent which is withheld or subsequently withdrawn and any opt-out choice which is exercised.

10.4. The Merchant shall abide by any current and enforceable payment card industry data security standards of the relevant Payment Schemes.

10.5. Customer Data may be processed by RDP either locally in the jurisdiction where the Merchant operates and/or in another jurisdiction where RDP approved third-party service providers provide(s) Services to the extent this is deemed necessary and as permitted by and in accordance with Applicable Law.

10.6. The Merchant acknowledges and agrees that RDP may be required to disclose the Personal Data of its officers, employees, and directors to financial institutions, banks, payment schemes and any other payment institution that RDP partners with in order to provide its Services to the Merchant. The Merchant represents and warrants that in providing such Personal Data to RDP, that such Personal Data has been legally obtained and all necessary consents have been obtain in accordance with Applicable Law. The Merchant further acknowledges and accepts that all personal data or information will be processed in accordance with RDP’s data and privacy notice.

10.7. Notwithstanding anything to the contrary, the Merchant agrees to indemnify and at all times hereafter to keep RDP, and its Affiliates, officers, employees and agents (each an “Indemnified Party”) indemnified against any and all losses, damages, actions, proceedings ,costs, claims, demands, liabilities (including full legal costs on a solicitor and own client basis) which may be suffered by the Indemnified Party or asserted against the Indemnified Party by any person or entity (including the Merchant and its agent(s)) whatsoever, in respect of any matter or event whatsoever arising out of, in the course of, by reason of or in respect of:

10.7.1. any breach of any of the provisions in this Clause 10; and/or,

10.7.2. any action or omission by the Merchant, that causes RDP, and/or their related corporations to be in breach of the Thailand Personal Data Protection Act or any Applicable Law.

10.8. The Parties acknowledge and agree that between the Parties and in connection with RDP’s provision of the Services, RDP shall process Customer Data in the capacity of a data intermediary (or such equivalent term under any Applicable Law) for and on behalf of the Merchant, and the Merchant remains at all times the organisation primarily responsible for the Customer Data.

11. INTELLECTUAL PROPERTY

11.1. All intellectual property rights relating to the Services are owned by and vest exclusively in RDP and its Affiliates (or RDP’s Service Providers, as the case may be) (the “Intellectual Property”). The information given by the Merchant to its Customers concerning the Services does not create any intellectual property or other right on the part of the Merchant or the Customer over the Services or their functionalities, or, without limitation, over the trademarks, trade names, goodwill, domain names, websites, computer software (source or object code), data, logos, images, copyrighted materials, patents, inventions, know how, or any other information, owned by RDP, its Affiliates, and/or their Service Providers, suppliers or subcontractors.

11.2. The Merchant shall comply with any and all relevant Payment Scheme Rules relating to the trademarks, data, logos, images, copyrighted materials or any other protected intellectual property of such Payment Scheme (“Marks”).

11.3. Any use of a Mark by the Merchant in advertising, acceptance decals, or signs, must be in accordance with any Payment Scheme Rules, including the Payment Scheme’s reproduction, usage, and artwork standards, as may be in effect from time to time.

11.4. Any use or display of a Mark by the Merchant will terminate effectively with the termination of this Agreement or upon notification to the Merchant by the relevant Payment Scheme to discontinue such use or display.

11.5. Notwithstanding the above, the Merchant gives RDP the right to use its name or company name, and also to mention its business activity, in any promotions or advertising concerning the Services, regardless of the type of advertising or media used.

11.6. RDP grants to Merchant a limited, non-exclusive, non-transferrable and non-assignable licence and right to use the Trademarks, API and Documentation as may be provided by RDP or RDP’s Service Providers only for the following purposes:

11.6.1. installation and usage of the API solely in conformity with any requirements set out in the Documentation, for Merchant to use the Services and in compliance with the terms of this Agreement;

11.6.2. use of RDP’s Trademarks to promote the Services and in accordance with guidelines and instructions as may be issued by RDP to Merchant from time to time.

11.7. Merchant agrees not to: (i) use, reproduce, distribute or permit others to use, reproduce or distribute any Intellectual Property for any purpose other than as permitted under this Agreement; (ii) make any Intellectual Property available to unauthorised third parties; or (iii) directly or indirectly, modify, reverse engineer, decompile, disassemble or derive source code from any Intellectual Property.

11.8. Merchant acknowledges and agrees that there may be no adequate remedy at law for Merchant’s breach of Merchant’s obligations under this Clause 11 and that any breach will entitle the respective owner to take appropriate legal or equitable relief, in addition to whatever other remedies which may be available at law or equity.

12. CONFIDENTIALITY

12.1. During the term of this Agreement and for two years from the date that this Agreement is terminated, the Receiving Party may not use Confidential Information for a purpose other than the performance of its obligations under this Agreement. In particular, the Receiving Party may not disclose Confidential Information to a person except with the prior written consent of the Disclosing Party or in accordance with the provisions of this Clause 12.

12.2. During the term of this Agreement the Receiving Party may disclose Confidential Information to any of its directors, other officers, employees, agents, Affiliates, delegates, sub-contractors and Customers on a strict need-to-know basis to the extent that disclosure is necessary or desirable for the purposes of this Agreement. The Receiving Party shall ensure that any such recipient is made aware of and complies with the Receiving Party’s obligations of confidentiality under this Agreement as if such recipient was a Party to this Agreement.

12.3. Clauses 12.1 and 12.2 do not apply to Confidential Information:

12.3.1. which is at the date of this Agreement, or at any time after that date, becomes publicly known other than by the Receiving Party’s or other recipient’s breach of this Agreement;

12.3.2. which can be shown by the Receiving Party to the Disclosing Party’s satisfaction to have been known by the Receiving Party before disclosure by the Disclosing Party to the Receiving Party; or

12.3.3. to the extent disclosure is required by Applicable Law provided that in these circumstances the Receiving Party shall advise the Disclosing Party of the same prior to such disclosure, in order for the Disclosing Party to take whatever steps it deems necessary to protect its interest in this regard.

12.4. If the Receiving Party receives a notice from a governmental authority or faces legal action to disclose Confidential Information received under this Agreement, then the Receiving Party shall promptly, if not prohibited by law/notice/governmental authority, notify the Disclosing Party of the same such that the Disclosing Party may have the opportunity to intercede, obtain protective order and contest such disclosure and, upon request, shall cooperate with the Disclosing Party in contesting such a disclosure. Further, the Parties agree that in the event the Receiving Party is required to disclose the Confidential Information pursuant to the legal action, notice, order, it shall not disclose any Confidential Information in excess of the legal requirement and to any other person.

13. LIMITATION OF LIABILITY

13.1. Except as set out in this Agreement or prescribed by law, all conditions, warranties and representations, expressed or implied by (i) statute, (ii) applicable laws or (iii) otherwise, in relation to the Services are excluded.

13.2. RDP will not be liable to the Merchant under any circumstance, whether for negligence, breach of contract, misrepresentation or otherwise, for:

13.2.1. loss or damage which is incurred by the Merchant as a result of:

a. third-party claims;
b. viruses, malicious or disruptive codes, power cuts or service interruptions or other IT or hardware or software problems or faults;
c. decisions by any relevant court, regulatory or other authority or the operation of Applicable Law; and/or
d. loss of profit, goodwill, business opportunity or anticipated saving suffered by the Merchant;

13.2.2. indirect, consequential, punitive, exemplary or similar loss or damage (including damage to reputation) suffered by the Merchant; and/or

13.2.3. loss or damage which may be the consequence, wholly or partially, of a breach by the Merchant of this Agreement.

13.3. The entire liability of RDP under or in connection with this Agreement whether for negligence, breach of contract, misrepresentation or otherwise, is limited, in respect of each event or series of connected events, to the total Fees paid by the Merchant under this Agreement to RDP during the twelve (12) month period immediately preceding the event that gave rise to the claim.

13.4. RDP may, in the course of providing the Services, provide certain add-ons to the Services, including but not limited to the InstanLive platform. In providing the aforementioned add-on(s), RDP shall not be liable to the Merchant for any loss or damage incurred as a result of any disruption or outages to the add-ons arising from or caused by any third party or related to any connectivity with such third parties.

13.5. Nothing in this Agreement shall operate to exclude or restrict the liability of either Party for death or personal injury or for any other liability matter which cannot be lawfully excluded or limited.

13.6. Notwithstanding any provision to the contrary, in relation to any obligations that RDP may have under Applicable Law, RDP shall not be liable if abnormal and unforeseeable circumstances beyond their control prevent them from fulfilling its obligations under this Agreement.

14. INDEMNITY

14.1. The Merchant indemnifies and keeps indemnified RDP, and its Affiliates, officers, employees and agents (each an “Indemnified Party”), against each loss, liability or cost (including, without limitation, that incurred defending or settling a claim alleging such a liability), which they may incur as a result of:

14.1.1. any breach of the terms of this Agreement, improper use of the Services, violation of Applicable Law or Payment Scheme Rules, conduct categorised as undesirable by any Payment Scheme, or violation of the rights of any third party, by the Merchant, any of its Affiliates or any person acting on its behalf; and/or

14.1.2. processing of Customer Data by an Indemnified Party as may reasonably be necessary to provide the Services.

14.2. Nothing in this Clause 14 restricts or limits the general obligation at law for an Indemnified Party to take reasonable efforts to mitigate losses.

15. SECURITY

15.1. RDP may require that the Merchant provides (or procures the provision of) security in such form and over such assets as RDP shall require to secure the performance of the Merchant’s actual, contingent or potential obligations under this Agreement or otherwise in connection with the Services. Such security may take the form of collateral (including in the form of retained Payouts), a cash deposit, a rolling reserve, a guarantee or an indemnity. RDP reserves the right to unilaterally call for an increase to the level of security held.

15.2. RDP may require that any security provided be supplemented or replaced at any time.

15.3. At the time of termination of this Agreement, RDP may retain such amount, interest free, from the security (if any) and any Payout as may be determined by RDP to cover Chargeback risk, Refund risk or any potential loss, damages, penalties and/or costs that may be incurred by RDP. In the event that such retained amount is not sufficient to cover all outstanding amounts of the Merchant post termination of this Agreement, the Merchant shall ensure that it pays RDP all pending amounts within 10 (ten) Business Days of receiving the demand notice and shall at all times keep RDP indemnified in this respect.

16. INSPECTION

16.1. The Merchant shall permit the authorised representatives of RDP, the Acquirers, and or any relevant regulatory/governmental authority, to carry out physical inspections of the place(s) of business or other facilities of the Merchant to verify if the Merchant is in compliance with its obligations hereunder.

16.2. If the Merchant refuses such inspection or provides inaccurate, untrue, or incomplete information, or fails to comply with the terms and conditions of this Agreement, RDP reserves the right to suspend or terminate the Services with immediate effect.

16A. MERCHANT NON-SOLICITATION
Without RDP’s prior written consent (which consent may be withheld in RDP’s sole and absolute discretion), the Merchant shall not knowingly cause or permit any of its employees, agents, principals, affiliates, subsidiaries or any other person or entity (i) to solicit or provide services that compete with RDP’s Services to any merchant that has been accepted by RDP; (ii) to solicit or otherwise cause or encourage any merchant that has been accepted by RDP to terminate its participation in any of RDP’s services; or (iii) to solicit or market services to any merchant that is already provided any of RDP’s services by RDP, whether or not such are provided in relation to this Agreement. This section shall apply during the term of this Agreement and for two (2) years after any termination, cancellation or expiration of this Agreement.

17. TERM AND TERMINATION

17.1. Unless otherwise agreed this Agreement has an initial term of five years (“Initial Term”) unless terminated or suspended as provided for in the Agreement. Unless either Party gives written notice to terminate the Agreement (not later than 60 days prior to the end of the Initial Term or any successive periods) this Agreement is automatically renewed for successive two-year periods.

17.2. A Party (“Initiating Party”) may terminate this Agreement with immediate effect by written notice to the other Party (“Breaching Party”) if any of the following events take place or is expected to take place:

17.2.1. the Breaching Party is in material breach (whether or not a repudiatory breach) of an obligation under this Agreement and, if the breach is capable of remedy, the Breaching Party has failed to remedy that breach within 30 days after receipt of written notice of the breach;

17.2.2. the Breaching Party has passed a resolution for its winding up or a court of competent jurisdiction has made an order for the Breaching Party’s winding up or dissolution;

17.2.3. an administration order has been made in relation to the Breaching Party or a receiver, or an encumbrancer has been appointed to take possession of or sell assets of the Breaching Party;

17.2.4. the Breaching Party has made an arrangement or composition with its creditors generally or has made an application to a court of competent jurisdiction for protection from its creditors generally; or

17.2.5. any other procedure having similar effect to the above is initiated.

17.3. RDP may suspend or terminate this Agreement by written notice to the Merchant with immediate effect if RDP is of the opinion that any of the following events have taken place or are expected to take place:

17.3.1. the Merchant ceases to carry on business;

17.3.2. the Merchant merges with any other person or in any other way changes the persons who have the ability to direct, guide or otherwise influence its affairs;

17.3.3. RDP is unable to recover the Fees or other sums set out at Clause 3.3 for any reason, or considers that the total value of Refunds and/or Chargebacks is unreasonable;

17.3.4. RDP determines that continuing to provide the Services to the Merchant represents increased risk of loss or liability or risk to reputation to RDP or any of its Affiliates;

17.3.5. the Merchant engages in any trading practices or other activity which might give rise to fraud or any other criminal activity or suspicion of fraud or any other criminal activity;

17.3.6. security granted by the Merchant under this Agreement ceases to be sufficient, enforceable or available;

17.3.7. any claim or action in connection with this Agreement or the Services hereunder is threatened or commenced by either Party;

17.3.8. the Merchant breaches any Payment Scheme Rules;

17.3.9. a Payment Scheme Rule would, if the Agreement is not suspended or terminated, be broken by either the Merchant or RDP;

17.3.10. the Merchant’s conduct or Merchant’s products or services violate Applicable Law, is potentially fraudulent or linked to any fraudulent activity, or pose a security, infringement or any other legal threat to RDP, or the Merchant has breached any of its obligations with regard to Confidentiality or Intellectual Property rights as set out in Agreement; or

17.3.11. RDP is required or requested by any Payment Scheme, Acquirer or other financial institution to suspend or terminate this Agreement or RDP is subject to Fines from any Payment Scheme, other financial institution or any other third party arising from the provision of the Services.

17.4. A Payment Scheme may limit, suspend or terminate this Agreement and/or any part of the Services provided hereunder by notice to the Merchant with immediate effect if that Payment Scheme, in its absolute discretion, so decides.

17.5. Termination of this Agreement, does not affect a Party’s accrued rights and obligations at the date of termination.

17.6. Each Party’s further rights and obligations shall cease immediately on termination except that clauses 3.2, 3.3, 4.1, 4.6, 4.9, 5, 6, 9.3, 9.4, 9.5, 9.6, 10.7, 11, 12, 13, 14, 15.3, 16A and those Clauses, the survival of which is necessary for the interpretation or enforcement of this Agreement, shall survive termination of this Agreement, and shall continue in full force and effect.

17.7. If a Service is terminated for any reason, the Merchant will pay all Fees payable up to the termination date.

17.8. The Merchant may also terminate this Agreement if termination is due to RDP’s revision in Fees pursuant to clause 3.7.

17.9. Upon termination or expiration of this Agreement, (a) each party shall immediately discontinue any use of the other party’s Intellectual Property, Trademarks, products and services; (b) each party agrees not to act in any way that may damage the reputation of the other party or the other party’s products or services; (c) Merchant shall uninstall and cease all use of the API and Documentation; and (d) each party shall, within thirty (30) days of a written request from the other party, return or destroy any and all Confidential Information of the other party, save for any Confidential Information that is required to be retained pursuant to any Applicable Law or Payment Scheme Rules.

18. TRANSFER AND ASSIGNMENT

18.1. Parties may not assign, transfer or purport to assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), except that RDP may assign, transfer or purport to assign or transfer any of its rights or obligations under this Agreement to any of its Affiliates without the prior written consent of the Merchant.

19. FORCE MAJEURE

19.1. Neither RDP nor the Merchant shall be in breach of this Agreement or liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control (such affected party, the “Affected Party” and such event, a “Force Majeure Event”). In such circumstances the Affected Party shall be entitled to a reasonable extension of the time for performing such obligations.

19.2. 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 details and effect of the Force Majeure Event. As soon as reasonably possible after the end of the Force Majeure Event the Affected Party shall resume performance of its obligations under this Agreement.

19.3. The Affected Party shall make all reasonable efforts to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Agreement.

20. NOTICES

20.1. Except for the service of proceedings, a notice under or in connection with this Agreement (a “Notice”):

20.1.1. shall be in writing; and

20.1.2. may be delivered personally or sent by electronic mail or first-class post, or pre-paid recorded delivery (and air mail if overseas), to the Party due to receive the Notice at its address set out at the beginning of this Agreement or to another address specified by that Party by not less than seven days’ written notice to the other Party.

20.2. Unless there is evidence that it was received earlier or later a Notice is deemed given:

20.2.1. if sent by electronic mail, the next Business Day assuming that no notification of failure to deliver the electronic mail was received by the sending party;

20.2.2. if sent by post, except registered post, two Business Days after posting it;

20.2.3. if sent by registered post, six Business Days after posting it.

21. RELATIONSHIP BETWEEN THE PARTIES

21.1. The relationship between RDP and the Merchant is on a principal-to- principal basis. Nothing contained herein shall be deemed to create any association, partnership, joint venture or relationship of principal and agent or master and servant, or employer and employee between the Parties hereto or any Affiliates or subsidiaries thereof or to provide either Party with the right, power or authority, whether express or implied to create any such duty or obligation on behalf of the other Party

22. MISCELLANEOUS

22.1. RDP may revise the provisions in this Agreement or introduce additional provisions to this Agreement at any time and from time to time. RDP shall notify the Merchant of any revision or addition to the Agreement in accordance with Clause 20 at least 30 calendar days’ notice before the date such revision or addition is to become effective. The Merchant shall notify RDP in writing of any objection to any amendments within the notice period. Unless the Merchant notifies RDP that it is unable to agree to such a revision, each such revision or addition shall be binding on the Merchant from the effective date of that revision or addition.

22.2. If any provision in this Agreement becomes illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.

22.3. Should RDP fail or delay in exercising any right or remedy under this Agreement, such failure or delay shall not constitute a waiver of that right or remedy. A waiver is only effective if made in writing in accordance with Clause 20 of this Agreement. A waiver is only effective in respect of the particular circumstances for which it is given.

23. GOVERNING LAW AND DISPUTE RESOLUTION

23.1. This Agreement shall be construed and governed by the laws of Thailand.

23.2. In the event of a dispute arising out of or in connection with this Agreement that cannot be resolved through friendly consultation, the parties agree to first submit to the Thailand Arbitration Centre (“THAC”) for resolution by mediation in accordance with the Mediation Procedure for the time being in force. Each party to the mediation must be represented by a senior executive with authority to negotiate and settle the dispute. Unless otherwise agreed by the parties, the mediator(s) will be appointed by THAC. The mediation will take place in Thailand in the English language. The parties agree to participate in the mediation in good faith and undertake to abide by the terms of any settlement reached.

23.3. If a mediation settlement is not possible within a reasonable period, any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination shall be referred to and finally resolved by arbitration shall be referred to and finally resolved by arbitration administered by THAC in accordance with the Arbitration Rules of THAC for the time being in force, which rules are deemed to be incorporated by reference in this clause.

23.4. The seat of the arbitration shall be Thailand.

23.5. The Tribunal shall consist of one (1) arbitrator.

23.6. The language of the arbitration shall be English.