Merchant Terms of Use

Introduction

These Merchant Terms of Use (the “Terms”) govern the use of the products, services or any other features, technologies or functionalities related to merchant payment acceptance services (the “Acceptance Services”) provided by AFIPAY (“AFIPAY”, “we”, “our”, or “us”) through AFIPAY’s website, API or through any other means to you (“Merchant”, “you” or “your”). By using the Acceptance Services, you accept these Terms and agree to be bound by them, confirm that you have read, understood, and accepted all of the provisions contained herein, including, without limitation, Governing Law; Arbitration; Waiver of Class Action.

1. Our Services

AFIPAY is a blockchain/cryptocurrency payment processor that enables you to accept cryptocurrencies as a payment method in exchange for goods or services you sell to your customers (“Shoppers”).

AFIPAY is not a cryptocurrency exchange, nor does it provide cryptocurrency custody as part of the Acceptance Services. The Acceptance Services are only available to businesses that sell products or services and registered charitable organizations that accept donations.

By using the Acceptance Services, you authorize AFIPAY to act as your agent and to take any and all actions that we think are necessary or desirable to provide the Acceptance Services and to comply with applicable laws and regulations. Payment by a Shopper to AFIPAY is considered the same as payment made directly to you and limits the Shopper’s outstanding obligations to the extent of the payment.

2. Contracting Entity and Regulatory Compliance

2.1 Contracting Entity

The Terms applies and are related to Alphacom SP. z o.o. Registered address: Hoża 86 / 210, 00-682 Warsaw, Poland, company registration number: 529520780.

2.2 Our Regulatory Compliance

ALP Labs Sp. z o.o. is subject to applicable Polish and EU laws and regulations, which includes the Polish Act on the Prevention of Money Laundering and Terrorism Financing of March, 01 2018.

3. Representations and Warranties

You represent and warrant that:

• The individual accepting these terms on behalf of the Merchant is of the age of majority, and has all necessary power, capacity and authority to bind the Merchant hereto;
• You have all necessary right, power, authority and ability to enter into and fulfill your obligations under these Terms and your use of the Acceptance Services;
• Your business entity is duly organized, validly exists, is in good standing under the laws of the state and country of its formation, and is duly qualified and in good standing in each jurisdiction in which the conduct of its business requires it to so qualify;
• Your use of the Acceptance Services will not contravene any applicable international, federal, state or local laws or regulations, including tax laws and regulations;
• You ensure that your use of the Acceptance Services does and at all times will comply with all applicable anti-money laundering/anti-terrorist funding compliance laws and regulations, including, without limitation, all OFAC-administered sanctions programs and any other sanctions programs that may apply to you based on the jurisdiction(s) in which you operate your business and serve your customers;
• Your use of the Acceptance Services will violate neither these Terms nor any other applicable terms of use; and
• All information that you have provided to us, and may from time to time provide to us, is and shall continue to be true and complete, and shall be timely updated and corrected to maintain its status as true and complete.

4. Your Merchant Account (“Account”)

4.1 Account Opening and Registration

ALP Labs Sp. z o.o is a regulated financial services business and a licensed money transmitter in Poland. As such, we are required to collect certain information from Merchants to comply with anti-money laundering and anti-terrorist funding laws and regulations. Therefore, as part of establishing a AFIPAY Merchant Account, at a minimum you will be asked to submit business-related information such as name, mailing address, physical address, phone number, email address, information relating to the ultimate beneficial owner(s) or the individual(s) having significant control over the business such as tax identification number and government-issued identification, legal name, fictitious name (i.e. DBA name), company website, bank account details to be used for settlement of transactions made using the Acceptance Services, the nature of your expected transactions, and your field of industry. You may be asked to submit additional information and/or documents to enable us to verify your identity and assess business risk, such as entity formation documentation, compliance program documentation, and information regarding your Shoppers.

The information you provide at the time of opening the Account must be accurate and complete, and you must inform us within ten (10) business days of any changes to such information. AFIPAY has the right to reject your Account registration, to later close your Account, or to restrict the provision of the Acceptance Services to you if you do not provide and maintain accurate, complete and satisfactory information.

4.2 Transaction Processing Limits

AFIPAY imposes daily and annual transaction processing volume limits per Account. If you wish to increase your limit, you will be required to apply for an upgrade from your Account dashboard (“Dashboard”) and provide us with documentation necessary to qualify for that upgrade. Depending on the upgrade request, you may be required to provide additional information and documentation. Requests will not be approved until all required documentation has been reviewed and the accuracy and authenticity of the information has been confirmed.

4.3 Shopper Verification

Your Shoppers may be required to complete a verification process at the time of payment, depending on the amount of the transaction, as part of our AML/ATF compliance obligations. This process is known as creating a “AFIPAY ID”.

4.4 Prohibited Use and Business

4.4.1 Prohibited Use

In connection with your use of the Acceptance Services, and your interactions with other users and third parties, you agree you will not engage in the following Prohibited Uses. This list is non-exhaustive and we reserve the right to modify it at any time. It is within our sole discretion to determine whether an activity falls into one of these categories. If you are uncertain as to whether or not your use of the Acceptance Services involves a Prohibited Use or have questions about how these requirements apply to you, please contact us at https://support.afipay.io.

Unlawful Activity: Actions which violate, or would assist in violation of, any law, statute, ordinance, or regulation, including applicable sanctions programs including but not limited to the U.S. Department of Treasury's Office of Foreign Assets Control ("OFAC") or which would involve proceeds of any unlawful activity; activity which would publish, distribute or disseminate any unlawful material or information.

• Abusive Activity: Actions which impose an unreasonable or disproportionately large load on our infrastructure, or detrimentally interfere with, intercept, or expropriate any system, data, or information; transmit or upload any material to our computer systems, networks or sites that contain viruses, trojan horses, worms, or any other harmful or deleterious programs; attempt to gain unauthorized access to our computer systems, networks or sites or our other customers’ Accounts, computer systems or networks connected to us, through any other means; interfere with another individual's or entity's access to or use of the Acceptance Services; use information of another party to access or use our computer systems, networks or sites, except in the case of specific Merchants which are specifically authorized by a user to access such user's Account and information; transfer your Account access or rights to your Account to a third party, unless by operation of law or with the express written permission of AFIPAY; or harvest or otherwise collect information from our computer systems, networks or sites about others, including without limitation email addresses, without proper consent.
• Abusive Actions Against Others: Actions which defame, abuse, extort, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as, but not limited to, rights of privacy, publicity and intellectual property) of others; incite, threaten, facilitate, promote, or encourage hateful or violent acts against others.
• Fraud: Actions which operate to defraud us, our users, or any other person; provide any false, inaccurate, or misleading information to us.
• Intellectual property infringement: Transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the law, including but not limited to sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder; use of any AFIPAY intellectual property, name, or logo, including use of AFIPAY trade or service marks, without express consent from AFIPAY or in a manner that otherwise harms AFIPAY or any AFIPAY brand; any action that implies an untrue endorsement by or affiliation with AFIPAY.

4.5 Restricted Business

If you engage in any of the following categories of businesses, business practices, and items for sale, you will only be allowed to transact as expressly authorized by us and may be required to agree to additional conditions, make supplemental representations and warranties, complete enhanced onboarding procedures, and operate subject to restrictions. This list is non-exhaustive and we reserve the right to modify it at any time. It is within our sole discretion to determine whether an activity falls into one of these categories. If you are uncertain as to whether or not your use of the Acceptance Services involves a Restricted Business, or have questions about how these requirements apply to you, please contact us at https://support.AFIPAY.io.

• Charitable organizations;
• Religious/spiritual organizations;
• Money Services Business as defined by FinCEN of the United States Department of the Treasury;
• e-Wallets;
• Foreign and currency exchange services;
• Sale or trade of cryptocurrencies;
• Transactions associated with purchases of annuities or lottery contracts, lay-away systems, banking, offshore banking, transactions to finance, investing, investment related products; and
• Transactions involving gambling or any activity requiring an entry fee and a prize, including but not limited to casino games, sports betting, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, and sweepstakes, if you and your Shoppers are located exclusively in jurisdictions where such activities are permitted by law.

4.6 Guarding Your Password

You will choose a password when registering for your Account. You are responsible for maintaining the confidentiality of your password and Account access credentials. You are fully responsible for all activities that occur with the use of your password or Account. Please notify us immediately if you become aware of any unauthorized use of your password or Account or any other breach of your security which may compromise your password or Account. You may not allow third parties or unauthorized users to use your Account. We will not be liable for any loss that you may incur as a result of someone else using your password or Account, either with or without your knowledge. You may notify AFIPAY of a security breach regarding your password or Account by emailing [email protected]

4.7 Records

4.7.1 Our Obligations

Pursuant to applicable laws and regulations, AFIPAY is required to maintain records of all documentation and information related to your Account for the duration that your Account is active and after your Account is closed.

4.7.2 Your Obligations

Pursuant to applicable laws and regulations, you are required to maintain all records needed to fulfill orders for goods or services and provide post-sale support to your Shoppers. If the sale of an item requires a government registration of the sale, you are responsible for such registration.

4.7.3 Request for Documentation and Right to Inspect Records

AFIPAY or its auditors, an appropriate regulator, or other relevant competent authority may request to obtain and inspect certain of your business records with reasonable advance notice or immediately if required by law, a regulator, or other relevant authority. If you refuse such a request, we reserve the right to suspend or terminate your Account.

4.7.4 Information Sharing

You hereby authorize us to share information about you, your Account and Account activity with law enforcement, regulators and government agencies. We hereby also authorize you to share information about us and our Acceptance Services to you with law enforcement, regulators and government agencies.

4.8 Account Suspension and Closure

4.8.1 Your Right to Close Your Account

You may close your Account anytime. You will still be obligated to us for any fees incurred, if applicable, before the closure, and we will remit to you funds not yet paid to you and associated with pre-closure sales. If your Account balance is below our documented minimum transfer amount, you may be responsible for any applicable transaction fees that may be incurred in the funds transfer.

4.8.2 Our Right to Decline, Suspend, or Close Your Account

We reserve the right to decline to provide our Acceptance Services to you or immediately suspend or close your Account, without notice, if we learn or reasonably suspect, in our sole discretion, that you will use or have used your Account to engage in unlawful or improper activity in violation of applicable laws or regulations, these Terms, and/or our other applicable terms of use, including but not limited to a violation of Section 4.4, Prohibited Use and Business, or Section 4.5, Restricted Business. We reserve the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, sanctions programs, legal process or governmental request.

Additionally, if your Account does not have a paid transaction for more than twelve consecutive months, we reserve the right to suspend the Account and automatically disable processing capabilities. You will receive information about the process to reactivate the Account.

AFIPAY also reserves the right to terminate accounts which receive excessive Shopper complaints.

4.8.3 Effect of Account Closure

If your Account is closed for any reason, you agree: (a) to continue to be bound by surviving portions of these Terms, (b) to immediately stop using the Acceptance Services, (c) that the license provided under these Terms shall end, (d) to remove from your website, apps and marketing materials and will discontinue using any AFIPAY service marks, logos or other branding, (e) that we will retain certain information and Account data as required under applicable laws and regulations, and (f) that we shall not be liable to you or any third party for termination of access to the Acceptance Services, closure of an Account, or retention of information or Account data.

5. Your Use of Third-Party Services

In using the AFIPAY website or the Acceptance Services, you may separately be offered additional services, products or promotions by third parties. If you decide to use any of these third-party services, you do so at your own risk and are solely responsible for reviewing, understanding and complying with the associated terms and conditions. We expressly disclaim any liability for third-party services and are not responsible for the performance of third-party services or servicers.

6. Security and Wallet Security

6.1 Security

We have implemented security measures designed to protect information from accidental loss and from unauthorized access, use, alteration or disclosure. Our security measures include risk assessments and controls for the following: application and system access, system and application development and maintenance, acceptable use, data classification, incident response, disaster recovery and business continuity, and security training. We cannot guarantee that unauthorized persons will never gain access to your information, and you acknowledge that you provide your information at your own risk, except as otherwise provided by applicable law. If we reasonably suspect or we become aware of a breach of our security measures that may have impacted you, your Account or your information, we will provide you with notice within 72 hours of gaining such suspicion or becoming aware of such breach. Such notice will be provided to your email address included in your Merchant profile.

6.2 Digital Wallet Security

Shoppers sending cryptocurrency payments and Merchants receiving settlements in cryptocurrency need to have a digital wallet. A digital wallet is a piece of software enabling a user to store encrypted private keys, used to sign transactions to access funds. A custodial digital wallet constitutes an account where third parties serve as financial intermediaries or custodians of a user’s cryptocurrencies. A custodial wallet provider stores the user’s private keys and thus has control over the user’s funds. A non-custodial digital wallet does not constitute an account where third parties serve as financial intermediaries or custodians of a user’s cryptocurrencies. A non-custodial wallet provider administers only the technical platform to store a user’s private keys, but has no control over or access to the private keys, and therefore no control over or access to the user’s funds.

Shoppers and Merchants may use any cryptocurrency wallet to store their funds, including the AFIPAY wallet. AFIPAY does not endorse or vouch for the quality or security of any third-party wallets. The wallet owner is solely responsible for safekeeping passwords and private keys used to access their wallet, as well as maintaining the security protocols and updates on devices used to download and use their wallet. If a Shopper or Merchant chooses to use the AFIPAY wallet, they do so subject to the AFIPAY Wallet Terms of Use.

AFIPAY is not responsible for, and cannot assist with recovery of, a loss of cryptocurrency funds incurred by a Merchant or Shopper if a wallet is compromised, for example due to loss of or unauthorized access to private keys, accidental sharing of a backup, a bug in the user’s device or the wallet software, or a malicious attack on the wallet software.

In the event your account balance gets settled to a wallet that becomes compromised or inaccessible, or in the event a Shopper’s wallet becomes compromised or inaccessible, it is up to you to decide how to handle any inquiries or potential claims. AFIPAY does not get involved in resolving such issues.

7. Privacy and Data Protection

Our Privacy Notice, is available at AFIPAY.io/about/privacy, and is incorporated by reference into these Terms.

8. Ownership and Use of Services and Intellectual Property

8.1 Our Ownership of the Services and AFIPAY Website

You agree and acknowledge that we own all right, title, and interest in the Acceptance Services, the associated software, technology tools and content, the AFIPAY service marks and logos, the AFIPAY website, the content displayed on the website, and other materials produced by AFIPAY (collectively, “AFIPAY IP”). You are only permitted to use the Acceptance Services and AFIPAY IP to offer the Acceptance Services to your Shoppers, according to these Terms. We grant you a personal, limited, revocable, non-exclusive and non-transferable license to use AFIPAY IP. You shall not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, modify or timeshare AFIPAY IP or any portion thereof, or use AFIPAY IP as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. You shall not prepare any derivative work based on AFIPAY IP, nor shall you translate, reverse engineer, decompile or disassemble AFIPAY IP.

9. Advertising and Marketing

With your prior written approval, we may publish your corporate name, URL, artwork, text, logo, case studies, and other publicly available information about your business ("Content") in AFIPAY‘s promotional materials, marketing channels and business directory. A third party may use AFIPAY‘s publicly available Content and tailor the data to create entries for directories or other channels, and the data listed on third-party directories or channels will be subject to separate third-party terms of use. We may also request a testimonial or quote in the form of a blog post, promotional material, press release, or interview, and/or a reference. You have no obligation to provide Content, a testimonial, quote or reference. Upon mutual agreement, you and AFIPAY may engage in a separate marketing campaign.

You represent and warrant to us that you have the right to provide the Content to us, and that the use, copying, modification and publication of the Content by us: (a) will not infringe, violate or misappropriate any third-party copyright, patent, trade secret or other proprietary rights, (b) will not infringe any rights of publicity or privacy, and (c) will not be defamatory or otherwise violate any law

10. Invoices

10.1 Invoice Generation and Competitive Exchange Rate Guarantee for Your Shopper

In order to accept a cryptocurrency payment, you need to create a payment request (“Invoice”) using the Acceptance Services, based on the amount you want to collect in your settlement currency, such as U.S. Dollars or Euros, or in any of the supported cryptocurrencies. AFIPAY's hosted invoice user interface must be displayed to the Shopper during checkout.

10.2 Invoice Completion

An Invoice is considered “complete” by us if it has been fully paid by the Shopper, the corresponding transaction has reached our required number of block confirmations, and the payment has been credited to your Account ledger.

The number of confirmations required for a transaction depends on several factors, including the blockchain being used and our internal analysis of risk. We employ risk mitigation techniques to detect fraudulent payments, such as payments that are at risk of never receiving the required number of block confirmations. However, these measures do not completely eliminate the risk associated with unconfirmed payments.

A confirmed Invoice means that payment has been made and the required block confirmations have occurred, such that the transaction has passed our risk validation measures, but it still needs to be credited to your Account ledger.

You have the option to inform your Shopper that you have accepted the Invoice as paid before AFIPAY deems the Invoice completed, e.g. an Invoice payment that is not confirmed. AFIPAY is not liable for settling Invoices which are not considered fully paid and complete. In other words, if you accept a payment before it is credited by us to your Account ledger, we are not required to settle to you if we determine that the payment was fraudulent or otherwise invalid. Your Dashboard will display the current status for each payment (i.e., “paid”, “confirmed”, “complete”, “overpaid”, “underpaid”, “refunded”, or “invalid”). Payments that may be fraudulent will be identified in the Dashboard as invalid, which reflects that they have failed to achieve any block confirmations in the applicable blockchain. The failure to achieve block confirmations could also occur for reasons other than fraud (e.g. the payment was sent with insufficient miner fees).

10.3 AFIPAY Supported Cryptocurrencies

AFIPAY may add new cryptocurrencies to the Services. Additional cryptocurrencies will be added to the Services on an opt-out basis, such that they will be enabled by default unless you instruct AFIPAY to disable them. In addition, there may be circumstances that cause AFIPAY to decide to remove a particular cryptocurrency as a payment option.

10.4 Payment Exceptions

In certain situations when an Invoice is underpaid or overpaid, it will result in a “payment exception”. Shoppers will automatically receive a notification via email and/or SMS messaging from AFIPAY in order to claim the underpayment or overpayment, as described below. AFIPAY incurs miner fees to refund a payment.

10.4.1 Underpayments

Underpayments occur when a Shopper sends insufficient funds to fully pay an Invoice. Underpayments cannot fulfill an Invoice in full or part, and the underpayment is not credited to your Account. AFIPAY will notify the Shopper of the underpayment by email and/or SMS message and such notification will enable the Shopper to request a refund for the partial payment. The Shopper may also request a refund of the underpayment directly from the Invoice. To complete the transaction, the Shopper will need to generate a new Invoice by restarting the checkout process. The new Invoice will provide the Shopper with a new payment amount based on the then-current exchange rate and a new time window in which to complete the payment.

10.4.2 Overpayments

Overpayments occur when a Shopper sends funds in excess of the amount needed to fulfill the Invoice. In such cases, the Invoice passes through the state of being paid in full and is marked as an overpayment. Once the Invoice status is set to "complete", the funds needed to fully pay the Invoice are applied to your Account. However, the excess funds are not applied. AFIPAY will send a notification by email and/or SMS message to the Shopper enabling the Shopper to request a refund for the excess funds. The Shopper also has the ability to request a refund of the excess funds directly from the Invoice.

10.4.3 Orphan Payments

“Orphan payments” occur when a transaction is received outside the time window referenced in Section 10.1, Invoice Generation and Competitive Exchange Rate Guarantee. Any payments sent to the expired Invoice will show up in AFIPAY’s system as an orphan payment. Orphan payments also occur when a user sends cryptocurrency to one of our wallet addresses without a connection to an Invoice. AFIPAY cannot automatically associate orphan payments with an Invoice, merchant, Shopper email or SMS capable phone number. For more information or to resolve orphaned payments, either you or the Shopper will need to reach out to our support team (https://support.AFIPAY.io) with required information. Orphan payments are failed payments, and cannot be applied to an Invoice. If an orphan payment occurs, the Shopper will need to generate a new Invoice and restart the checkout process.

11. Fees

11.1 Definitions

Miner Fees

Cryptocurrency transactions typically incur miner fees. These fees are automatically created by cryptocurrency wallets in order to broadcast a transaction on a given blockchain network. These fees are paid to cryptocurrency miners (and their operators) that process transactions and maintain the respective network.

Miner fees are variable depending on network conditions and the desired confirmation speed for the transaction. If a cryptocurrency network gets congested, the minimum required miner fee will be higher to ensure the transaction can be reliably processed on the network. Using a lower-than-average miner fee can put a transaction at risk of slow confirmation or no confirmation at all.

AFIPAY Network Costs

AFIPAY network costs are additional fees incurred by AFIPAY in aggregating received payments and settling such payments to merchants. Network costs are based upon the miner fees that AFIPAY incurs in providing its Services. Therefore, if miner fees rise, network costs also rise.

11.2 AFIPAY Processing Fees

We charge you a processing fee for each Invoice successfully processed through your Account. These fees are deducted from your Account ledger balances (net settlements). AFIPAY’s processing fee is listed for each Invoice in your Dashboard and in the API output. We reserve the right to change our processing fee. We will provide not less than thirty (30) days’ advance notice of such a change, and your continued use of the Acceptance Services following the period of advance notice of the fee change constitutes your acceptance of such change.

12. Indemnification

You agree to indemnify AFIPAY, its affiliated and related entities, and any of its officers, directors, employees and agents from and against any claims, costs, losses, liabilities, damages, expenses and judgments of any and every kind (including, without limitation, costs, expenses, and reasonable attorneys’ fees) arising out of, relating to, or incurred in connection with any claim, complaint, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises or relates to any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms.

13. No Warranties

EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, WE PROVIDE THE ACCEPTANCE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YOUR USE OF THE ACCEPTANCE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE PROVIDE THE ACCEPTANCE SERVICES WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT). WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE ACCEPTANCE SERVICES (AND OUR WEBSITE): WILL OPERATE ERROR-FREE OR THAT DEFECTS OR ERRORS WILL BE CORRECTED; WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE, UNINTERRUPTED OR SECURE AT ANY PARTICULAR TIME OR LOCATION; ARE FREE FROM VIRUSES OR OTHER HARMFUL CONTENT. WE DO NOT ENDORSE, WARRANT, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE OFFERED OR ADVERTISED BY A THIRD PARTY THROUGH THE ACCEPTANCE SERVICES OR THROUGH OUR WEBSITE, AND WE WILL NOT BE A PARTY TO NOR MONITOR ANY INTERACTIONS BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

14. Limitation of Liability

EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR ANY LOSS, THEFT, DISAPPEARANCE, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST DATA OR OTHER INTANGIBLE LOSSES THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE ACCEPTANCE SERVICES, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT WE KNEW THAT SUCH DAMAGE MAY HAVE BEEN INCURRED. FOR CUSTOMERS CONTRACTING WITH ALP LABS SP Z O O., WHILE THIS LIMITATION OF LIABILITY DISCLAIMS LOST PROFITS AND OTHER INDIRECT DAMAGES, ALP LABS SP Z O O DOES NOT OTHERWISE EXCLUDE ITS LIABILITY FOR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING, VIRUS TRANSMISSION OR OTHER UNAUTHORIZED ACCESS OR USE OF THE ACCEPTANCE SERVICES, YOUR ACCOUNT, OR ANY INFORMATION CONTAINED THEREIN.

IN NO EVENT WILL OUR LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THE ACCEPTANCE SERVICES OR THESE TERMS EXCEED THE FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE ACCEPTANCE SERVICES DURING THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

15. Miscellaneous

15.1 Taxes

You are solely responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with the use of the Acceptance Services. You also are solely responsible for collecting, withholding, reporting, and remitting correct taxes to the appropriate tax authorities. We are not obligated to nor will we determine whether taxes apply, nor calculate, collect, report, or remit any taxes to any tax authorities arising from any transaction.

15.2 Assignment

You may not transfer or assign these Terms or any rights granted by these Terms. You agree and acknowledge that we may assign or transfer these Terms.

15.3 Severability

Should any provision of the Terms be determined to be invalid or unenforceable under any law, regulation, or court order, such determination will not affect the validity or enforceability of any other provision of the Terms.

15.4 Waivers

A party’s failure to assert any right or provision in the Terms shall not constitute a waiver of such right or provision, and no waiver of any term shall be deemed a further or continuing waiver of such or other term.

15.5 Entire Agreement

The Terms, including other of AFIPAY’s terms referenced herein, represents the entire understanding between you and us. Headings are included for convenience only and shall not be considered in interpreting the Terms.

15.6 Updates to Terms

We may make changes to these Terms from time to time, and if we do, we will notify you by revising the date at the top of the Terms. We will provide email or similar notification if material changes are made to these Terms. Unless otherwise noted, the amended Terms will be effective immediately, and your continued use of our Services will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.

15.7 Force Majeure

Neither party will be liable for delays in processing or other non-performance caused by such events as fires, telecommunications, utility, or power failures, equipment failures, labor strife, riots, war, non-performance of our vendors or suppliers, acts of God, pandemics, or other causes over which the respective party has no reasonable control; provided that the party has procedures reasonably suited to avoid the effects of such acts.

15.8 Confidentiality

A party’s “Confidential Information” is defined as any information of the disclosing party, which: (a) if disclosed in a tangible form is marked as “Confidential” or “Proprietary” or if not so marked, should be reasonably understood by the receiving party from the context of disclosure or from the information itself, to be confidential; (b) if disclosed orally or visually is declared to be confidential or, if not so declared, should be reasonably understood by the receiving party from the context of disclosure or from the information itself to be confidential; or (c) is designated as Confidential Information in these Terms. Confidential Information shall include without limitation, information accessed via the BitPay API, technical specifications and processes of each party, and all Merchant data. Each party shall hold the other party’s Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than solely as required and necessary to perform its obligations under these Terms. Such restrictions shall not apply to Confidential Information that: (a) is known by the recipient prior to the date of disclosure by the disclosing party; (b) becomes publicly known through no act or fault of the recipient; (c) is received by recipient from a third party without a restriction on disclosure or use; or (d) is independently developed by recipient without reference to or knowledge of the Confidential Information.

Notwithstanding the foregoing, a party may share Confidential Information with an affiliate in the event that the other party requests services from such affiliate and such affiliate shall be bound by this Section. In the event Confidential Information is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, the party subject to such requirement shall promptly notify the disclosing party upon learning of the existence or likely existence of such requirement and shall use reasonable efforts to avoid such disclosure and, if necessary, use reasonable efforts to obtain confidential treatment or protective order covering any disclosed Confidential Information. The parties’ respective obligations to maintain the confidentiality of information disclosed hereunder shall survive the expiration or termination of these Terms or until such time as such information becomes public information through no fault of the receiving party.

15.9 Survival

The provisions of Sections 3 (Representations and Warranties), 4.8.3 (Effect of Account Closure), 6 (Security and Wallet Security), 7 (Privacy), 8 (Ownership and Use of Services and Intellectual Property), 9 (Advertising and Marketing), 10.5 (Delayed Settlement), 15 (Indemnification), 16 (No Warranties), 17 (Limitation of Liability), and 18 (Miscellaneous) shall survive the termination of these Terms.

15.10 No Joint Venture or Agency

Nothing in this Agreement is intended to, or shall be deemed to, establish any joint venture between the Parties, and other than the limited agency established in Section 1, nothing is intended to establish either Party as an agent of the other.