Merchant Terms


This Merchant Agreement (the “Agreement”) is made and entered into by and between Omanye Limited, a limited liability company established in England and Wales, under registration number 07154374 the registered office of which is at 4 Markers Lodge, 35 Lower Range Road, Gravesend, DA12 2QS, United Kingdom (“Company”), and [Merchant Name], a [Merchant company type] established in [Country where the Merchant is organised], whose registered office is [Registered Office Address] (“Merchant”).  This Agreement is effective as of the date set forth below on which Company accepts and approves this Agreement (the “Effective Date”).


Company and Merchant may be referred to as a “Party” and collectively as the “Parties” in this Agreement. As used in this Agreement, the singular shall include the plural, and the plural the singular. The masculine and neuter shall each include the masculine, feminine and neuter, as the context of the use requires.


RECITALS:
I.    Merchant hereby represents and warrants to Company that all information provided by Merchant and set forth in the Merchant Application is true, complete and correct in all respects, and fully understands, agrees, and acknowledges that Company is expressly and directly relying on this representation and warranty in agreeing to enter into this Agreement and to provide services hereunder. BY SIGNING THIS AGREEMENT, MERCHANT HEREBY AUTHORIZES COMPANY TO REQUEST AND OBTAIN A CREDIT REPORT AND OTHER INFORMATION WITH RESPECT TO MERCHANT AND, IF REQUIRED, ANY OF ITS LISTED PRINCIPALS, SENIOR MANAGEMENT AND BENEFICIAL OWNERS. 
II.    Company may check the identity of all listed principals, senior management and Beneficial Owners against relevant governmental sanctions list, such as the OFAC list published by the United States of America, and the Office of Financial Sanctions Implementation on HM Treasury of the United Kingdom.
III.    Merchant understands and agrees that the Services provided by Company are for the provision of payment services only, and that Company is not, does not and will not be involved in any manner in the commercial Transaction between Merchant and Merchant’s Customers.
IV.    Merchant agrees it will not, nor will it allow any of its management, staff, agents or representatives of any kind make any representations of any kind to its Customers, prospective customers, any other person, company, law enforcement agency, regulatory agency or any entity that Merchant has any relationship with Company other than that Merchant utilises the Services of Company to process payments from Merchant’s Customers to Merchant under the terms and conditions of this Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Merchant do hereby agree as follows:


1.    Definitions.
As used in this Agreement, the following terms have the following meanings:
a.    "Account" means a Business Account that is provided by Company.
b.    “Account Holder” or “Holder” means an individual or an organization that is rightfully in possession of an Account.
c.    “Account Payment” means the Services which provides the ability for a Customer of Merchant to send funds to the Merchant’s Account as payment for the purchase of Merchant’s products and/or services.
d.    “Beneficial Owner(s)” means any individual or entity owning twenty-five percent (25%) or more of Merchant’s common (voting) stock, and/or has significant responsibility to control, manage, or direct the legal entity
e.    “Business Day(s)” means any day on which Company is open for business, not including any gazetted public holidays and/or bank holidays in the United Kingdom.  Any day in this Agreement not referenced as a Business Day shall mean a calendar day.
f.    "Card Organization" means Visa® Incorporated, Mastercard® International Incorporated, or any other payment card organization, such as American Express® International, Diners Club® International, JCB, China UnionPay and so forth.
g.    “Compliance Violations” means situations where Merchant violates any of the terms and conditions of this Agreement.
h.    “Customer” means an individual or entity who has a commercial relationship with Merchant.
i.    “Identification Documentation” means the KYB documentation that must be provided by Merchant and approved by Company prior to Company allowing Merchant to process its first Transaction.
j.    “Know Your Business” and/or “KYB” means the process by which Company identifies and validates the legal status of Merchant and determines if Company can provide Merchant with a Merchant Account, and allow Merchant to receive funds as a result of valid Transactions.
k.    “Merchant Account” means the Account that is provided to Merchant by Company to allow Merchant to accept payments from its Customers.
l.    "Merchant Account Transfer" means a transaction in which a Merchant makes a secure on-line payment and/or transfers funds from its Merchant Account to any other account of the Merchant, electronically.
m.    “Merchant Bank Account” means the Merchant’s bank account at a registered bank to which Company will transfer Settlement Funds.  
n.    “Merchant Website(s)” means any website owned, sponsored, allowed, provided by, or affiliated with Merchant in any manner on which Merchant’s Products-Services are offered to Customers for sale, use, and/or investment. 
o.    “Programme Marks” means the Omanye names and logos, and any other brands and/or logos that Company may add at any time, as are shown in Attachment H – “Company Programme Marks and Company Brands”.
p.    “Products-Services” means the product and services that Merchant offers to its Customers including, but not limited to purchase of Merchant’s Products and/or Services by credit/debit card or any other payment mechanism approved by Company.
q.    “Remittances Payable” means those funds owed to Merchant by Company for Approved Transactions, less any fees, fines and or penalties.
r.    “Reserve” means funds that are retained by Company in a Company bank account.  No interest will be paid to Merchant on the funds that are held in this bank account.
s.    “Reserve Requirement” means the funds that will be held by Company to mitigate any reasonable risk that the Merchant cannot meet chargeback, refunds and returns requirements.
t.    “Settlement Funds” means the value of funds that Company will pay Merchant on the Settlement Date.
u.    “Settlement Date” means the date on which Company will pay Merchant for Approved Transactions processed by Company.
v.    “Settlement Delay” means the number of days in arrears that Company will pay the Settlement Amount to Merchant.
w.    “Services” means the Merchant Processing and related services provided by Company.
x.    “Transaction(s)” means an exchange or transfer of funds from a Customer to Merchant for the purchase of goods and/or services offered by Merchant to its Customers.
y.    “Ultimate Beneficial Owner(s)” means a person who enjoys the benefits of ownership even though ownership/title to some form of property and/or a company may be in another name.


2.    Merchant Identification - Know Your Business Documentation, Merchant Information and Other General Requirements.
 .    Merchant Identification and Know Your Business (“KYB”) Documentation.  
i.    Merchant must provide, at minimum, the Identification Documentation as shown in Attachment E – “Identification Documentation”.  
ii.    Key of this Identification Documentation is the identity of Beneficial Owners of Merchant.  Without proof of the identity of the Beneficial Owners of Merchant, Merchant will not be approved.
iii.    Company reserves the right in its sole discretion to approve or deny this documentation, and/or to change the Identification Documentation requirements at any time.
iv.    Merchant will not be provided with any reason that Identification Documentation is rejected/disapproved, other than that the Identification Documentation is illegible or must be provided in colour.
v.    Merchant may be provided a conditional approval so that Merchant may commence work on integration with the Company.  However, Merchant must provide and have approved all Identification Documentation within thirty (30) days of Company granting such conditional approval.
vi.    Should Merchant provide any documentation that the Company deems, in its sole discretion, to be counterfeit or fake Merchant will not be approved.  If Merchant has already been given conditional approval prior to this finding by Company, Merchant’s conditional approval will be immediately terminated.
vii.    Merchant understands and accepts that should Merchant provide any documentation identified to be counterfeit or fake Company will report Merchant to relevant authorities, and if ordered, will provide such documentation to the relevant authorities, as is required by relevant law, and/or Company’s licenses.
a.    Identification and Registration of Merchant’s websites.  
 .    Merchant must provide Company with the URLs of any and all Merchant Websites on which Merchant intends to offer its Products-Services to Customers.
i.    Company will validate each URL and provide Merchant with an approval or denial decision on whether Merchant can accept Transactions through that Merchant Website.


1.    Should Company reject/deny a Merchant Website, Company will provide Merchant with the reasons for such rejection/denial.  Merchant may modify such Merchant Website according to Company’s requirements and resubmit such Merchant Website for reconsideration by Company.


2.    Should Merchant offer its Products-Services on any Merchant Website to any Customer or any other entity for which payment can be made by Company’s Services that has not been approved by Company, Merchant will be assessed the Fines and/or Penalties as identified in Attachment F – “Fines and Penalties”.
b.    Disclosure of Products-Services Sold on Merchant’s Registered Websites.
 .    Merchant represents and warrants that the description of its business and the description of Merchant’s Products-Services as provided on Attachment G “Business Description, Products and Services” is true and accurate. 
i.    Should Merchant change, add to, subtract from or in any manner modify its Products-Services as provided on Attachment G “Business Description, Products and Services”, Merchant agrees to notify Company at least five (5) Business Days prior to such change, addition to, subtraction from or in any manner modification of such Products-Services.
ii.    Should Merchant change, add to, subtract from or in any manner modify its Products-Services without notifying Company according to the conditions of Paragraph 2.(c)(ii) above, this Agreement may be terminated by the Company without prior notice to Merchant.  
c.    Other General Requirements.
 .    Remote Offices and Agents.  Should Merchant be organised in one country and have business offices, remote offices, or employ the services of agents in another country, Merchant will be required to provide proof that the business office, remote office or the agent has the legal right to operate in the country where the Merchant is not organised.  
i.    Merchant is explicitly prohibited from making any representations or inferences of any kind to its Customers, prospective customers, any other person, company, law enforcement agency, regulatory agency or any entity that funds paid to Merchant by a Customer for a Transaction are held in Company’s Segregated Account or that such funds are secured by the Financial Conduct Authority of the United Kingdom or any other such authority.
ii.    Merchant must provide Company with a contact name, address and telephone number of an individual within Merchant that has the authority to act in the name of Merchant.


3.    Nature and Term of Engagement. 
 .    Term.  Subject to the termination rights set forth herein, the term of this Agreement shall be three (3) years from the Effective Date; provided, that this Agreement shall be automatically renewed for one (1) year terms, unless either Party gives the other Party written notice of its intention not to renew at least thirty (30) days prior to the last day of the then current term, in which event the last effective date of this Agreement shall be the last day of the then current term.
a.    Termination by Merchant.  As long as Merchant is not in default under this Agreement and has paid Company all fees, costs and other amounts then due to Company, Merchant may terminate this Agreement at any time, with or without cause, on thirty (30) days written notice to Company.  
 .    Once Merchant notifies Company of its intention to terminate this Agreement and close its Account, it may withdraw any remaining funds in its Merchant Account, subject to any Reserve Requirement, by any of the following:


1.    Requesting a wire transfer for the funds remaining in its Merchant Account less a “Wire Issuance Fee” which will be deducted from the Merchant Account. Such Wire Issuance Fee is as is identified in Attachment A – “Fees and Pay Out Schedule”, or


2.    Requesting a paper cheque for any remaining funds in its Merchant Account by providing Company with a photocopy of a government-issued identification document with the signatory to this Agreement's picture on it, and a mailing address.  Upon receipt of those items, Company will issue and mail Merchant a check for the funds remaining in the Merchant's Account less a “Cheque Issuance Fee” which will be deducted from the Merchant Account before such cheque is issued.  Such Cheque Issuance Fee is as is identified in Attachment A – “Fees and Pay Out Schedule”.
b.    Termination by Company.
 .    Company may terminate this Agreement at any time immediately upon notice (whether in writing, by e-mail, fax or otherwise) to Merchant if Company believes, in its sole discretion, that Merchant has engaged, is engaging, or will or may engage, in any activities or omissions to act that: (1) are illegal or potentially illegal; (2) have subjected, are subjecting and/or will or may subject, either Merchant, or Company (including for purpose of this paragraph any of its officers, directors, employees, shareholders or sponsors to a fine or other civil or administrative penalty, review, audit, heightened scrutiny, or change in administrative or legal status; (3) have infringed, are infringing, and/or will or may infringe on the rights of third parties; (4) are, will or may be detrimental to the past, present or future business or reputation of Company; (5) constitute a breach of Merchant’s covenants, representations and warranties, as contained in this Agreement; or (6) if required to do so by  any Card Organisation; or (7) if directed to do so by a governmental agency having authority to do so; or (8) by a court of competent authority having jurisdiction over this Agreement.
c.    Suspension in Lieu of Termination.  In lieu of termination for any of the above reasons, Company shall have the right, but not the obligation, to suspend this Agreement to allow Merchant to remedy the cause of such suspension.  Company may convert such suspension to a termination at any time, for any reason or no reason, in its sole and absolute discretion.


4.    Description of the Company Services and Delivery Commitment.
 .    Company Services. Company will, following provision and approval of Know Your Business documentation, provide Merchant a Merchant Account and allow Merchant to commence utilization of the Company Services as are presently operational to process Transactions.


5.    Merchant Account.
 .    Merchant’s Merchant Account.
 .    Company will establish an Account within Company’s processing bank into which funds from Approved Transactions less Chargeback will be deposited.


i.    Company will remit these Remittances Payable to Merchant on the periodic basis as described in Clause C of this Section. 
a.    Pay-Out of Merchant’s Funds to Merchant’s Bank Account.  
Merchant’s Registered Bank Account. 
i.    Merchant must register its external business bank account with Company.
ii.    Company will authenticate the validity of this registered external bank account.
iii.    Funds from the Merchant’s Account will only be transferred to this Merchant Bank Account.
b.    Pay-Out Schedule.
i.    Merchant Funds will be paid to Merchant on a schedule as documented in this Agreement in Attachment A – “Fees and Pay Out Schedule”
ii.    The Pay-Out Schedule will identify the Settlement Delay.


2.    Availability of Services.
Company shall use all commercially reasonable efforts to maintain its Services in operation twenty-four (24) hours per day, seven (7) days per week and three hundred and sixty-five (365) days per year; provided, however, that Company shall have no liability whatsoever for its failure to provide its Services where such failure results from a cause delineated in Section 19 hereof, and in all other circumstances Company’s liability shall be limited in the manner described in Section 16 hereof.


3.    Fees.
a.    Fee Amounts.  
i.    Merchant shall pay Company the setup fees set forth in Attachment A - “Fees and Pay Out Schedule”
ii.    Merchant agrees that the Fee Schedule included in this Agreement as Attachment A - “Fees and Pay Out Schedule” identifies the Fees that will be charged to Merchant when a Transaction is completed.  These Fees will be deducted from Merchant’s Approved Transactions prior to the value of the Transaction being credited to Merchant’s Merchant Account.  
iii.    Company shall have the right to deduct any funds owed to Company under this Agreement from any account opened by Merchant with Company.
b.    Compliance Review of Features and Fees:  Merchant’s Account and all features within the Account are subject to compliance reviews as mandated by the Company’s risk management policies, the Card Organisations and/or directives of any regulatory agency having jurisdiction over this Agreement. These compliance reviews will address the legality and/or commercial viability of: 
 .    Any or all of the Services that are being supplied to Merchant; and 
i.    the Fees that are being assessed to Merchant for delivery of those features. 
Should a compliance review identify any Service that has to be disabled or any Fees that are to be increased at Company’s sole discretion, the results of the compliance review will be provided to Merchant.  
As a result of the compliance review modifications including, but not limited to the following may be implemented: 
i.    certain features may be disabled due to commercial considerations or as directed by a regulatory agency; 
ii.    Fees may be increased due to commercial considerations; and/or 
iii.    additional Fees charged for increased features to satisfy commercial considerations or to remain in compliance with the rules and regulations promulgated by relevant regulatory or legal entities having jurisdiction over this Agreement, the Company or Merchant.
c.    Compliance Violations:  Should Merchant violate any of the terms and conditions of this Agreement, such violation shall be considered a Compliance Violation.  In the case of a Compliance Violation that is not cured within five (5) days of notice to Merchant by Company, Merchant may be fined according to the schedule-of-fines as provided in Attachment F – “Fines and Penalties”.


4.    Fines and Penalties.
a.    Fines:
i.    Merchant shall be responsible for any fine levied against the Company as a result Company processing Merchant’s Transactions, by any authority having jurisdiction over this Agreement, except for a situation in which the Company has not complied with the rules and regulations of the relevant fining authority or the terms and conditions of this Agreement.


5.    Reserves.
a.    Reserve Amount
i.    Customer expressly authorizes Company to establish a Reserve pursuant to the terms and conditions set forth in this Section 5.  The initial amount of the Reserve (“Initial Reserve Amount”) which shall be established in accordance with the terms and conditions of Attachment D – “Reserves”: 
Upon: 
(1)     the occurrence of a Customer Event of Default; or 
(2)     the provision of notice of termination of this Agreement by any Party hereto, 
Merchant expressly authorizes Company to increase the amount maintained in the Reserve.  Such amount shall be determined by Company, in their sole discretion, but will not exceed the sum of nine (9) months of Chargebacks, plus two (2) months of credits/adjustments, plus the value of any goods and/or services billed in advance of fulfilment, plus the amount of any fees or discounts due to Company, plus the amount of any current or anticipated fees, fines, assessments.  
The calculation for the credits and Chargeback portion of the Reserve Account will be based upon Merchant’s processing history and anticipated risk of loss to Company 
b.    Reserve Account; Security Interest.  
i.    Subject to the conditions described in Section 5.a, if a Reserve is required to receive additional and/or new funding such Reserve Account must be funded immediately, and may be funded by all or any combination of the following: (i) one or more debits to Merchant’s Account; (ii) one or more deductions or off sets to any payments otherwise due to Merchant; (iii) Merchant’s delivery to the Company of a letter of credit; or (iv) if the Company so agrees, Merchant’s pledge to the Company of a freely transferable and negotiable certificate of deposit.  Any such letter of credit or certificate of deposit shall be issued or established by a financial institution reasonably acceptable to the Company and shall be in a form satisfactory to the Company. Within any permissible funding period, the form of the Reserve Account funding may be determined by Merchant. Thereafter, or in the event that the funding is to be immediate, Company will elect in which form(s) the Reserve Account will be funded.  All funds in any Reserve Account will be held by a bank of Company’s sole discretion for the period set forth in Attachment D – “Reserves” after termination of this Agreement or for such longer period of time as is consistent with Company’s liability for Transactions.  
ii.    Merchant’s funds held in a Reserve Account may be held in a commingled Reserve Account for all of the reserve funds of Company’s customers, without involvement of an independent escrow agent.  During the period in which Reserve Funds are held in a Reserve Account, Company agrees to review and recalculate the Reserve Account on a quarterly basis (the “Reserve Account Periodic Review”). Company will notify Merchant of any refunds amounts which may be due, after the Reserve Account Periodic Review. Any Reserve Account refund will be made via credit to the Merchant’s Account, within ten (10) business days after the end of the applicable quarter-end.
iii.    If Merchant’s funds in the Reserve Account are not sufficient to cover the Chargebacks, adjustments, fees and other charges due from Merchant, or if the funds in the Reserve Account have been released, Merchant agrees to promptly pay Company such sums upon request.  In the event of a failure by Merchant to fund the Reserve Account, the Company may fund such Reserve Account in the manner set forth in subsection 5.(b)(i), above.
iv.    To secure Merchant’s obligations to Company under this Agreement Merchant grants to Company a first priority lien and security interest in and to any of Merchant’s funds pertaining to the Transactions contemplated by this Agreement now or hereafter in the possession of Company, whether now or hereafter due or to become due to Merchant from Company.  Any such funds, money or amounts may be commingled with other funds of Company
c.    Reserve Account; Distribution/Payout of Reserves.  
i.    Company will release Reserve Funds to Merchant according to the schedule identified in Attachment D – “Reserves”.


6.    Right to Reverse Transactions. 
Company shall have the right to reverse any Transaction wherein Company determines in good faith that the Transaction was unauthorized, duplicate, wrongful, erroneous, illegal or fraudulent.


7.    Representations and Warranties. 
With Merchant’s full understanding that Company is expressly and directly relying on the following representations and warranties in agreeing to enter into this Agreement and to provide services hereunder, Merchant hereby makes the following representations and warranties to Company: 
d.    Strict Compliance with Laws, Rules and Regulations.  Merchant does, and at all times during the term of this Agreement will, operate its business in strict compliance with all laws and regulations applicable to its business to the highest legal and ethical standards.  Merchant shall not ship any tangible goods to any location, or provide any services of any type, where it would violate an applicable law or regulation to do so in either the shipping location or the ship-to location.
e.    Libel, Intellectual Property, etc.  Merchant's website(s) and products / services being offered for sale do not, and at all times during the term of this Agreement will not contain any material which is libellous, slanderous, defamatory, or which will violate or infringe upon or will otherwise give rise to any adverse claim with respect to any common law or other right of any person or other entity, including, without limitation, patent rights, copyright rights, trademark rights, service mark rights, trade name rights, literary, artistic, and dramatic rights, idea submission rights, privacy rights and all other civil, personal and proprietary rights.
f.    Use of Company’s Services.  Merchant will not during the term of this Agreement use any of Company’s products / services in any manner, or in furtherance of any activity, which constitutes a violation of any law or regulation or which may cause Company to be subject to investigation, prosecution or legal action.
g.    No Reselling Of Accounts.  Merchant will not use its Business Account to market or resell Company Accounts, although it may use its Business Account to create accounts for resellers, Sponsored Account Holders and employees.  
h.    Advice of Counsel.  Merchant has had ample opportunity to consult with an attorney regarding this Agreement, and either did so or voluntarily and intelligently declined to do so.
8.    Confidentiality. 
i.    Confidential Information.  Company and Merchant acknowledge and agree that in the course of fulfilling their obligations hereunder, each Party may have access to information or material that is commercially valuable to both companies and not generally known in the industry (“Confidential Information”). Confidential Information includes but is not limited to: (i) the terms of this agreement; (ii) any and all versions of proprietary computer software and any documentation related thereto; (iii) technical information concerning products and services, including product data and specifications, know-how, formulae, diagrams, flow charts, drawings, source code, object code, program listings, test results, processes, inventions, research projects and product development; (iv) any and all versions of any designs, patents, trademarks or copyrightable works, discoveries, formulae, processes, manufacturing techniques, trade secrets, inventions, improvements, ideas, business plans; (v) information concerning each Party's business, including cost information, profits, sales information, accounting and unpublished financial information, business plans or strategies, markets and marketing methods, Merchant lists and Merchant information, sponsor lists and sponsor information, purchasing techniques, supplier lists and supplier information and advertising strategies; (vi) information concerning employees, including salaries, strengths, weaknesses and skills; (vii) information submitted by each Party's Merchants, suppliers, employees, or co-venturers for study, evaluation or use; or, (viii) any other information not generally known to the public or by actual or potential competitors of Company and/or Merchant, which, if misused or disclosed, could reasonably be expected to adversely affect either Party's business. 
j.    Non-disclosure.  Company and Merchant acknowledge and agree that: (i) all Confidential Information of each Party is the sole and exclusive property of such Party and is regularly used by such Party in the operation and conduct of each of their respective businesses, and that the unauthorized disclosure of Confidential Information would have a material adverse effect on the business, operations and competitive position of the Party whose information was thus disclosed; (ii) neither Party will at any time divulge to any person or entity, orally or in writing, directly or indirectly, in whole or in part, any Confidential Information of the other, without both Parties' explicit prior written consent; (iii) both Parties will receive and maintain all Confidential Information in strictest confidence using reasonable care; (iv) any violation or breach of this Agreement may result in significant and irreparable injury, a remedy at law may be inadequate, and in the event of any such violation or breach, the Parties, in addition to any other relief to which they may be entitled, shall be entitled to temporary and permanent injunctive relief. 
k.    Exception.  Notwithstanding anything in this Agreement to the contrary, neither Party has any duty of non-disclosure with respect to Confidential Information that: (i) was in that Party’s possession or already known to that Party without an obligation to keep it confidential, before such information was disclosed, is publicly available at the time of disclosure or that becomes publicly available after disclosure other than through breach of this Agreement or other wrongful act; (ii) is disclosed by either Party with mutual prior written approval; (iii) is disclosed to either Party by a third party who is not in breach of its own obligation of confidentiality; (iv) either Party develops independently other than through breach of this Agreement; or (v) is required to be disclosed under operation of law, or pursuant to applicable Card Organization, law or court, administrative or governmental order.
l.    Survival.  The provisions of this section shall continue for so long as the either Party remains in possession of Confidential Information and shall survive the termination of this Agreement for any reason.


9.    Card Organization and/or Regulatory Demand.  
If a Card Organization or any governmental and/or regulatory agency, or a court of competent jurisdiction having jurisdiction over the subject matter of this Agreement makes a demand that either Company discontinue or substantially modify its Products-Services, either Party in its sole discretion may terminate this Agreement upon written notice to the other, in which case neither Party shall be deemed to be in default by reason of such termination.
a.    Alternatively, Company may amend or revise this Agreement, its rules, its policies and procedures to comply with such Regulatory Demand.  
b.    Merchant hereby agrees to accept to and abide by all such amendments and revisions within ten (10) days after receipt of such revisions or immediately if required by the Card Organization or a regulatory agency.  However, Merchant may terminate this Agreement upon written notice to Company during that ten (10) day period, and shall not be deemed to be in default by reason of such termination.


10.    Intellectual Property.
Merchant hereby acknowledges and agrees that nothing in this Agreement, or any of the documents or transactions referenced herein, shall be deemed to transfer, assign, grant or license any right, title or interest of any kind in, and that Merchant shall at no time have or acquire any right or claim to, any intellectual property generated, created, produced, purchased, owned by or licensed to Company, including, without limitation, any rights in Company’s trademark or any other service mark, trade dress, photograph, video graphic work, audio ideographic work, text, program or other intellectual property appearing in, on, at or in association with Company or any sponsored site or advertisement thereof. Upon termination of this Agreement for any reason, all right, title and interest in and to Company's intellectual property shall remain with Company, Merchant shall have no right to the use thereof, and Merchant shall immediately cease the use of all such intellectual property in any manner whatsoever. 


11.    Indemnification.  
Notwithstanding anything else contained herein, as material consideration to induce Company to enter into this Agreement, Merchant hereby agrees to indemnify, defend (with counsel reasonably acceptable to Company), protect and hold harmless Company and its officers, directors, shareholders, sponsored entities and persons, employees, agents, representatives and attorneys (collectively “Representatives”) from and against any and all claims, causes of actions, demands, judicial and administrative proceedings, liabilities, forfeitures, errors, damages, costs and expenses (including without limitation, reasonable attorney’s fees and attendant costs and expenses, whether or not suit is filed or proceedings instituted thereon), directly or indirectly arising in connection with this Agreement or the various subject matters hereof, or the performance or non-performance by either Party of its obligations hereunder, or relationships created hereby, or any breach or default in Merchant’s performance of any of its obligations hereunder, or any of Merchant’s partners, shareholders, officers, directors, employees, managers, members, agents, representatives, ssponsors, agents or representatives, whether or not intentional or negligent, and whether or not covered by insurance. Without limiting the foregoing, any reference in this Agreement to indemnification shall be governed by this section.


12.    Liability of Company.  
IN NO EVENT SHALL COMPANY OR ANY PERSONS OR ENTITIES ASSOCIATED THEREWITH BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE SUBJECT MATTERS HEREOF (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION) EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  Because of the extreme difficulty of fixing actual damages for any failure of Company to perform its obligations hereunder or from any failure of Company to perform any obligations imposed by law, Merchant agrees that Company’s entire liability, and Merchant’s exclusive remedy, for any claim for damages against Company and all persons or entities directly or indirectly therewith arising out of this Agreement or the various subject matters hereof, or the performance or non-performance by Company of its obligations hereunder, whether grounded in contract or in tort, shall be limited to liquidated damages in the amount of the fees paid to Company by Merchant in connection with the affected transaction, and no more. The provisions of this paragraph apply even though the loss or damage, irrespective of cause or origin, results directly or indirectly, either from performance or non-performance of obligations imposed by this Agreement.


13.    Disclaimer of Warranty.
COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MERCHANT ACKNOWLEDGES THAT THE SERVICES PROVIDED BY COMPANY HEREUNDER MAY NOT BE UNINTERRUPTED OR ERROR FREE.


14.    Guaranty.
One or more of the officers, directors or principals of Merchant must provide a personal guaranty of Merchant’s obligations hereunder as specified in Attachment B – “Guaranty” to this Agreement. For this purpose, a principal is any officer or director of Merchant and any equity holder holding more than twenty-five percent (25%) of the total outstanding equity interest in Merchant.


15.    Force Majeure.
If Company cannot perform any of its obligations due to events beyond its control, such failure to perform shall not constitute a breach of this Agreement, and the time provided for performing such obligations shall be extended by a period of time equal to the duration of such events. Events beyond Company’s control include, but are not limited to, acts of God, war, civil commotion, labour disputes, equipment failures, strikes, fire, flood, earthquake or other casualty, shortages of labour or material, Card Organizations rules, processing failures beyond its control, bank failures, government regulation or restriction, weather conditions, breaches or failures to perform by third parties, technical problems, including hardware and software crashes and other malfunctions, disruptions on account of or caused by vandalism, theft, phone service outages, Internet disruptions, viruses, and mechanical, power or communications failures. If, after the date of this Agreement, any law, regulation, or ordinance, whether federal, state, or local becomes effective which substantially alters Company’s ability to perform services hereunder, Company shall have the right to terminate this Agreement, with notice, if reasonably possible, effective upon the earlier of (i) the date upon which Company shall be unable to provide its customary services hereunder, or (ii) thirty (30) days following written notice.


16.    Maintenance of Merchant Bank Account.
a.    Maintenance of Account.  At all times during the term of this Agreement, Merchant shall maintain at its own bank a business checking account (the “Merchant Bank Account”) shown on Attachment C – “Electronic Funds Authorization”.
b.    Electronic Funds Authorization.    Attachment C - “Electronic Funds Authorization” specifically authorizes Company to deposit funds from the Merchant’s Merchant Account into the Merchant’s authorized Merchant Bank Account. Company will only deposit funds into this authorized Merchant Bank Account.  Should this Merchant Bank Account become unavailable, Company will not be able to make payments to Company until a new Merchant Bank Account is authorized by a new Attachment C - “Electronic Funds Authorization” and Company has had an opportunity to validate this new Merchant Bank Account.  Funds will be deposited in Merchant’s authorized by Merchant’s Bank Account by bank telegraphic transfer unless Company and Merchant agree other remittance methods in advance.
c.    Balance for Fees and Returns.  Should there ever be any amount of Fees or expense due Company under the Agreement that Company cannot debit against Merchant's Account, then within forty-eight (48) hours of notice from Company of such insufficiency, Merchant shall either replenish the Merchant Account or make other payment arrangements acceptable to Company. 


17.    General Provisions.
a.    Relationship Between Parties.  The Parties to this Agreement are independent contractors and nothing in this Agreement shall make them joint venturers, partners, employees, agents or other representatives of the other Party hereto. Neither Party shall make any representation that suggests otherwise. 
b.    Use of Company Program Marks and Company Brands.  Company hereby grants to Merchant a non-exclusive, revocable, royalty free licence for the duration of this Agreement to use, reproduce and display Company’s Program Marks and Company Brands in accordance with the terms and conditions of this Agreement, and any other instructions issued in writing by Company from time to time.  Merchant shall have the right to use the Company’s Program Marks and Brands on its registered and approved Merchant Website(s) to allow the Company as a payment mechanism.
c.    Assignment.  Merchant may not transfer or assign any of its rights or duties under this Agreement without the prior written consent of Company, which consent Company may withhold or condition at its sole and absolute discretion.  Company may assign all or any of its rights and duties under this Agreement at any time without notice. IN NO EVENT WILL ANY TRANSFER OR ASSIGNMENT RELIEVE MERCHANT OR ANY OF ITS PRINCIPALS OF ANY LIABILITY TO COMPANY UNDER THIS AGREEMENT UNLESS SUCH LIABILITY IS EXPRESSLY WAIVED IN WRITING BY COMPANY.
d.    Notices.  Except where specifically provided for to the contrary, all notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given: (i) if delivered personally; or, (ii) three (3) days after mailed by certified or registered mail, postage prepaid, return receipt requested; or, (iii) upon transmission, if sent by prepaid telegram, telex, email or fax and a receipt of transmission is obtained, in each case addressed to the Party to receive notice, at the address or fax number specified herein, or at such other address or fax number as the Parties may provide from time to time, in the manner prescribed herein for the delivery of notices. Company’s address for receipt of notice is:


The Managing Director
Omanye Ltd
4 Markers Lodge
35 Lower Range Road, 
Gravesend, DA12 2QS, United Kingdom
Merchant’s address for receipt of notice is:
___________________________________________
___________________________________________
___________________________________________
___________________________________________
___________________________________________
e.    Taxes.  Each Party shall report and pay all taxes imposed on its revenues or income by any jurisdiction. If Company is required to pay any such taxes on the revenues or income of Merchant, Merchant shall immediately reimburse Company for the amount of such taxes and all related interest, fines and penalties. If excise, sales or use taxes are imposed, the payment of such taxes shall be Merchant's responsibility. Company shall have the right to collect and pay over taxes in the nature of an excise, sales or use tax on behalf of Merchant if reasonably required to do so by a taxing authority of competent jurisdiction. If Company makes any such payment, Merchant shall immediately reimburse Company for the amount of any such taxes and related fines, penalties and interest. 
f.    Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of England and Wales, without regard to any principles of conflicts of laws thereof.  Venue for any suit or claim arising out of or related hereto, except for allegations that Merchant has infringed or have threatened to infringe Company's intellectual property rights, shall exclusively be in the courts of England and Wales, and by entering into this Agreement Merchant irrevocably consents to the jurisdiction of the courts of England and Wales.  If Company alleges that Merchant has infringed or has threatened to infringe Company's intellectual property rights, then in addition to any other rights and remedies Company may have, Company may seek preliminary or permanent injunctive relief from any court of competent jurisdiction, and any such claims shall be governed by the laws of England and Wales, without regard for any principles or conflicts of laws thereof.  
g.    Claims: Any claim that Merchant seeks to initiate arising out of or related to this Agreement must be brought within one (1) year of the event giving rise to the claim. 
h.    Integration and Amendment.  This Agreement, along with any Attachments or other documents affixed hereto or referred to herein, constitute the entire agreement between the Parties hereto relative to the various subject matters hereof.  Except for the Standard Terms and Conditions, any other rules, regulations or procedures promulgated by third parties and incorporated herein by reference, this Agreement and such Attachments and other documents may be amended, modified or revoked either: (1) by an instrument in writing signed by both Parties; or (2) Company providing not less than fifteen (15) days prior written notice to Merchant.  Upon receipt of a notice of such an amendment or modification, Merchant may by written notice to Company, received by Company at least seven (7) days prior to the date such amendment or modification, terminate this Agreement.  Should Merchant terminate this Agreement pursuant to this Section 17(h), the notice provided pursuant to this Section 17(h) shall be deemed to be sufficient notice of Merchant.  The Parties hereby agree that no prior agreement, understanding or representation pertaining to any matter covered or mentioned in this Agreement shall be effective for any purpose. 
i.    Severability. If any term or provision of this Agreement shall be held invalid or unenforceable to any extent under any applicable law by a court of competent jurisdiction, the remainder of this Agreement will not be affected thereby, and each remaining term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. To the extent that the provisions of such applicable law may be waived, they are hereby waived to the end that this Agreement is deemed to be a valid and binding agreement enforceable in accordance with its terms. 
j.    Waiver.  No waiver by either Party of the breach of any covenant, condition or term of this Agreement shall be construed as a waiver of any preceding or succeeding breach nor shall the acceptance of any fee or other payment during any period in which either Party is in default be deemed to be a waiver of such default. All waivers must be in writing and signed by the waiving Party. 
k.    Attorney’s Fees.  If suit, action or arbitration is brought to enforce or interpret any provision of this Agreement, or the rights or obligations of any Party hereto as they relate to the subject matter of this Agreement, the prevailing Party shall be entitled to recover, as an element of such Party's costs of suit, and not as damages, all reasonable costs and expenses incurred or sustained by such prevailing Party in connection with such suit or action or arbitration, including, without limitation, attorneys’ fees and expenses and court costs. 
l.    Counterparts/Faxed Signatures.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. In the event of any variation or discrepancy between fully executed copies of this Agreement (including any Attachments and riders), Company’s copy shall control. Additionally, this Agreement may be executed by faxed signatures, the delivery of which shall be binding and effective for all purposes. 
m.    Authority.  By executing this Agreement in the space provided below, the person signing this Agreement on behalf of Merchant represents to Company that Merchant’s governing body or person(s): (i) has authorized Merchant to enter into this Agreement and to assume the duties and obligations set forth herein; (ii) has authorized the signatory hereof to execute and deliver this Agreement on behalf of Merchant and to thereby bind Merchant to the terms and conditions hereof; and (iii) Merchant has obtained all necessary, regulatory approvals and certificates to provide any services it intends to offer Merchants. 
n.    Effectiveness of this Agreement.  This Agreement shall not be effective until it has been signed by Company, and Company has received and approved completed supporting required “Know Your Business” documentation from Merchant.  Until then, Merchant’s execution and delivery of this Agreement shall only constitute an offer, contingent on approval by Company.
o.    Survival of Representations and Warranties.  All representations and warranties of Merchant contained herein shall survive the execution and delivery of this Agreement.


18.    Acceptance of and Agreement to Attachments.
Merchant hereby accepts and understands the following Attachments to this Agreement and by initialling in the space provided agrees to the information and/or terms and/or conditions of the Attachment.
    Initial
a.    Attachment A – Fees and Payment Schedule        
b.    Attachment B – Guaranty        
c.    Attachment C - Electronic Funds Authorisation        
d.    Attachment D – Reserves        
e.    Attachment E – Identification Documentation        
f.    Attachment F – Fines and Penalties        
g.    Attachment G - Business Description, Products and Services        
h.    Attachment H – Company Programme Marks and Company Brands        
i.    Attachment I – Website Confirmation        
j.    Attachment J – Declaration of Ultimate Beneficial Owner        
    
IN WITNESS WHEREOF, the Parties have executed this Merchant Agreement effective as of the date set forth below.
For and on behalf of Omanye LTD    For and on behalf of [Merchant Name]
                    
    Signature            Signature
                    
    Printed Name            Printed Name
                    
    Title            Title
                    
    Date Signed            Date Signed
1.    Attachment A – Fees and Payment Schedule

1.    BUSINESS ACCOUNT SET UP FEE: Great Britain Pounds Seven Thousand Five Hundred (£7,500.00).
2.    ONGOING FEES:
(a)    Merchant Service Fee per Approved Transaction:
i.    Four Point One Percent (4.1%) of each Approved Transaction’s Value.
 (c)    Transaction Fees:  
i.    United States Cents Twenty Five ($0.25) per submitted Transaction.
(c)    Other Fees:  
i.    United States Dollars Twenty Five ($25.00) per Chargeback.
The above Merchant Service Fee will be deducted from each Remittance Payment to Merchant.


3.    ADMINISTRATIVE FEES:
(a)    Wire Transfer Fee for Remittance Payments:
i.    United States Dollars Thirty Five ($35.00) per wire transfer.


4.    PAYMENT SCHEDULE:
(a)    Remittance Payments will be made to Merchant on a periodic basis as requested by Merchant.
i.    Remittance Payment amounts shall always allow Company’s retention of the Fees and Reserve Amount.
Merchant’s initials on the relevant Attachment description in Section 18 of this Agreement indicates Merchant understands and agrees to the information, terms and conditions of this Attachment.


2.    Attachment B - Guaranty
The undersigned represents that he/she is the/a(n) [ Title ] of Merchant identified in the foregoing Agreement (the “Agreement”) and this Guaranty is made in favour of Omanye LTD a Limited Liability Company established in the United Kingdom (“Company”), trading as Company. All capitalized terms not defined herein shall have the meanings ascribed to them in the Agreement. 
    The undersigned acknowledges that substantial benefits will accrue to the undersigned, directly or indirectly, under the Agreement. In consideration of such benefits, the undersigned hereby irrevocably and unconditionally guarantees to Company the prompt payment of all amounts payable, if any, to Company under the Agreement, including any amounts payable to Company under the indemnification provisions of the Agreement. The foregoing guaranties are guaranties of payment and not of collection. 
    The undersigned expressly agrees that Company may, in its sole and absolute discretion, without notice to or further assent of the undersigned, and without in any way releasing, affecting or impairing the obligations and liabilities of the undersigned hereunder: (i) waive compliance or any default under the Agreement; (ii) modify, amend or change any provisions of the Agreement, as provided in its terms; (iii) effect any release, compromise or settlement in connection with the Agreement; and (iv) deal in all respects with Merchant as if this Guaranty were not in effect. The obligations of the undersigned under this Guaranty shall be unconditional, irrespective of the genuineness, validity, binding effect or enforceability of the Agreement or any other circumstances which might otherwise constitute a legal or equitable discharge of a surety or guarantor. 
    The undersigned hereby expressly waives: (i) presentment and demand for payment and protest of non-payment; (ii) notice of acceptance of this letter and of presentment, demand and protest; (iii) notice of any default hereunder or under the Agreement; and (iv) all other notices and demands otherwise required by law which the undersigned may lawfully waive. 
Merchant’s initials on the relevant Attachment description in Section 18 of this Agreement indicates Merchant understands and agrees to the information, terms and conditions of this Attachment.

Attachment C - Wire Notification
3.    Attachment C - Electronic Funds Authorisation 

Merchant hereby authorizes Omanye LTD, a Limited Liability Company established in the United Kingdom to initiate electronic credits and/or wire/bank transfers for the purpose of remitting payments to Merchant’s Account specified below. All electronic credits and/or wire/bank transfers will be remitted net of all fees and other charges payable to Company under this Agreement. 
NAME ON ACCOUNT: _____________________________________________
TAX ID NO. ____________________________________________________
BANK NAME: ___________________________________________________
BRANCH: ______________________________________________________
ADDRESS ______________________________________________________
CITY: _________________________________________________________
PROVENCE AND POST CODE: _______________________________________
SWIFT CODE ___________________________________________________
ROUTING NO.___________________________________________________
ACCOUNT NO.: __________________________________________________
This Electronic Funds Authorisation shall remain in full force until ten (10) business days following receipt by Company of written notification from Merchant terminating this Authorization; or until Company has sent Merchant ten (10) Business Days written notice of Company’s termination. Merchant recognizes that without such an authorization, it will be difficult for Company to remit funds in a timely manner. If Company must remit and in a manner other than by electronic means, then additional fees could apply. 
Merchant warrants that it is authorized (as a valid signer on the account described above) to make this authorization to electronically credit the above checking account. 
PLEASE ATTACH PROOF OF ACCOUNT DETAILS FOR VERIFICATION OF ACCOUNT INFORMATION.  
ACCEPTED PROOF IS A CANCELLED CHECK OR A BANK ACCOUNT STATEMENT LESS THAN FOUR (4) MONTHS OLD.  MERCHANT MAY REDACT RELEVANT FINANCIAL INFORMATION FROM THE BANK ACCOUNT STATEMENT.
Merchant’s initials on the relevant Attachment description in Section 18 of this Agreement indicates Merchant understands and agrees to the information, terms and conditions of this Attachment.


Attachment D – Reserves 

1.    Reserve Amount: Ten Thousand United States Dollars ($10,000) (hereinafter the “Reserve Amount”) to be built up by withholding ten percent (10%) of Merchant’s Remittance Payable until the Reserve amount is reached.
2.    Reserve Period: One Hundred Twenty (120) days.
3.    Reserve Release: The Reserve Amount, less any Chargebacks, fines, fees or penalties that occur after termination of processing, will be released to Merchant by One Hundred Twenty (120) days upon termination of this Agreement, or sooner if Chargeback history so warrants.
On an ongoing basis, Company will release Reserves held on Transactions on month “x” on the seventh (7th) month after month “x”.
4.    Reserve Recalculation:  Company reserves the right to recalculate the Reserve Amount based on Merchant’s processing and Chargeback/Returns history.  It is anticipated that this Reserve Amount shall never exceed a Ten Percent (10%) six (6) month’s rolling reserve, as that policy is understood in the payment processing industry.
Merchant’s initials on the relevant Attachment description in Section 18 of this Agreement indicates Merchant understands and agrees to the information, terms and conditions of this Attachment.
Attachment E – Identification Documentation.

Merchant must provide the following information in order to be considered by Company for a Merchant Account.  Actual physical documentation must be provided.
1.    Registered corporate name, and any trading names used, if any;
2.    Certificate of incorporation or equivalent;
3.    Certificate of “Good Standing” if the corporation Registration cannot be found on a Governmental Registrar or is not current.
4.    Memorandum and Articles of Association.
5.    Registered address of the company
6.    Operational / principal trading address if different from the Registered Address.
7.    Operating address in any country different from the Registered Address.
8.    Directors.
9.    Beneficial Owners owning more than Twenty-Five percent (25%) of the voting shares of the company. (Note: Merchant must provide the information noted in Attachment L – Declaration of Ultimate Beneficial Owner (the “Declaration”) and attest to the accuracy of the Declaration by attaching the signature of the person signing this Agreement.)
10.    Principal company officers who have the power of control over the company or power over one third (33.3%) of the voting members of the Board.
11.    A complete description of the nature of the company’s business. 
12.    A complete listing of the Merchant’s Websites on which Company’s Payment Symbol will be placed.  (Note: Merchant must list its Websites on Attachment K – Website Confirmation (the “Confirmation”) and attest to the accuracy of the Confirmation by attaching the signature of the person signing this Agreement.)
13.    Latest annual report and/or management accounts;
14.    The company’s board resolutions identifying the company’s representatives in the relationship with the Company. 
15.    Description of Beneficial Ownership chain if the Ultimate Beneficial Owner is not the Beneficial Owner of the Registered Company.  (Merchant must provide a description of the ownership structure in detail.  The Ultimate Beneficial Owner(s) must be identified):
Merchant’s initials on the relevant Attachment description in Section 18 of this Agreement indicates Merchant understands and agrees to the information, terms and conditions of this Attachment.
Attachment F – Fines and Penalties

1.    Chargeback rate over 0.75%    
First occurrence    £5,000.00
Second occurrence    £10,000.00
Third occurrence    £50,000.00
Next occurrence – Termination
The above fines shall be in addition to any fine that is assessed by a Card Organisation and/or a Bank.
Merchant’s initials on the relevant Attachment description in Section 18 of this Agreement indicates Merchant understands and agrees to the information, terms and conditions of this Attachment.
    
Attachment G - Business Description, Products and Services

Merchant must provide a comprehensive description of its Business which includes: (Please use additional sheets as necessary).
2.    Business Description:
3.    Description of Products Sold:
4.    Description of Services Provided:
5.    Description of Investment Type (if applicable)
6.    Listing of Websites (URL and Website Name
Merchant’s initials on the relevant Attachment description in Section 18 of this Agreement indicates Merchant understands and agrees to the information, terms and conditions of this Attachment.


Attachment H – Company Programme Marks and Company Brands

Omanye LTD

Merchant’s initials on the relevant Attachment description in Section 18 of this Agreement indicates Merchant understands and agrees to the information, terms and conditions of this Attachment.

Attachment I – Website Confirmation

MERCHANT CONFIRMATION 
of the websites to be registered with Company

Details of Merchant (“Merchant”) 

Registration No. : ________________
Merchant Corporate Name: _______________________________________
Country of Incorporation: ________________________________________
Merchant activity: ______________________________________________

I/We, (name) _________________ of (address) ________________,   hereby declare and confirm the following:  

1.    Merchant operates and desires to utilize with Company the following website and/or websites that offers, provides, sells, advertises, offers and/or in any other way offers its goods and/or services to a Company Account Holder: 
Website URL    Operator/Administrator    Domain Owner    Billing/Clearing Provider    Licence

2.    Merchant warrants and represents that the website and/or websites listed above is/are in good standing and disclose to customers the full details about the operator, products and services sold, pricing, terms of delivery, and the name and legal address of the billing/clearing provider if applicable.


I/We, the undersigned, confirm that all information provided in the above confirmation is accurate and reliable. 
Merchant’s initials on the relevant Attachment description in Section 18 of this Agreement indicates Merchant understands and agrees to the information, terms and conditions of this Attachment.

Attachment J – Declaration of Ultimate Beneficial Ownership
Merchant’s initials on the relevant Attachment description in Section 18 of this Agreement indicates Merchant understands and agrees to the information, terms and conditions of this Attachment.