MERCHANT TERMS AND CONDITIONS
The SpicePay cryptocurrency payment processing platform (hereinafter: “Platform”).
By registering as a merchant on the Platform you acknowledge that you have read these terms and conditions (hereinafter: “Terms and Conditions”) as well as the SpicePay User Agreement and accepted them wholly and without reservation.
1.1. In these Terms and Conditions, the following definitions apply:
Cryptocurrency: medium of exchange, created and stored electronically in the blockchain, using encryption techniques to control the creation of monetary units and to verify the transfer of funds. Bitcoin is the best known example.
Blockchain: digitized, decentralized, public ledger of all cryptocurrency transactions. Constantly growing as ‘completed’ blocks are recorded and added to it in chronological order, it allows market participants to keep track of digital currency transactions without central record keeping.
Merchant: you, being a natural or legal person using the Services in the course of your company activity, craft or professional activity, in order to accept cryptocurrency as a method of payment for the sale of goods and/or services you provide. Insofar as you are a natural person, you warrant that you are at least 18 years of age and legally competent to enter into binding agreements and that you do not in any way qualify as a consumer when using the Services. Insofar as you represent a legal person, you warrant that you have the necessary legal competence and powers of representation to accept these Terms and Conditions on behalf of your organization.
Plugin: a small piece of software provided by SpicePay as part of the Services that you can integrate into your own website or platform, which allows your clients to make payments in cryptocurrency directly to your Wallet.
Services: the software, tools and services provided by SpicePay that allow you, the merchant, to accept cryptocurrency as a method of payment for the goods and/or services you sell and/or provide, and to store, track, transfer and manage cryptocurrency through your SpicePay Account
SpicePay Account: your personalized space on the Platform, to which you gain access by using your personal username and password, and through which you can manage your use of the Services, including modifying your personal or corporate information and managing your Wallet.
Wallet: a specific piece of software provided by SpicePay as part of the Services that stores the information necessary to keep track of your cryptocurrency holdings and transactions, which is accessible through your SpicePay Account.
1.2. Where possible given the context, singular words shall be interpreted as also including the plural and vice versa.
1.3. The language for all communications relating to and commitments stemming from these Terms and Conditions shall be English. SpicePay may at its own discretion decide to respond to your communications in another language where you indicate preference for such other language, but SpicePay shall by no means be obliged to do so.
Any translation of this Agreement is provided for your convenience. The meanings of terms, conditions and representations herein are subject to definitions and interpretations in the English language. Any translation provided may not accurately represent the information in the original English.
1.4. By accepting these Terms and Conditions you acknowledge that SpicePay has provided you with all information necessary to correctly gauge the scope and content of the Services and of your and SpicePay’s commitments under the agreement for the provision of the Services (hereinafter: “Agreement”).
1.5. You acknowledge and accept that any terms and conditions, including but not limited to conditions of quotation and acceptance you may have, do not apply and that the whole of the contractual relationship between you and SpicePay is governed by these Terms and Conditions of the SpicePay User Agreement found on the Website.
1.6. We may amend or modify this Agreement at any time by posting a revised User Agreement on the SpicePay Site and such changes or modifications shall be effective at such time. By continuing to access or use the SpicePay Services after we have posted a revised Agreement, you agree to be bound by the modified Agreement. In the event that you do not agree to be bound by the modified Agreement, you must cancel your SpicePay Account in the manner described in Section 13.2. below and otherwise cease accessing or using the SpicePay Services.
1.7. You agree that all electronic data regarding transactions and Wallet status as well as all electronic documents and information gathered through system loggings shall have the same probative value as paper documents and that those can be used as evidence in court or other judicial or arbitral proceedings.
2. SPICEPAYS SERVICES
2.2. SpicePay shall use its best efforts to provide the Services in accordance with these Terms and Conditions. SpicePay reserves the right, however, to modify, update, amend or make unavailable in whole or in part the Services without incurring any charge or obligation to pay compensation in order to handle changes in the global blockchain system, comply with (changing) legal obligations or to prevent or stop any illegal or unauthorized activity.
2.3. By using the SpicePay Services, you agree that SpicePay may provide you with any notices or other communications about your SpicePay Account and the SpicePay Services electronically: (a) via email (in each case to the address that you provide), SMS message, or telephone call (in each case to the phone number that you provide), or (b) by posting to the SpicePay Site. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. If you do not wish to receive notices or other communications electronically, we will be unable to support your SpicePay Account and your SpicePay Account will be cancelled in accordance with Section 13.
2.4. For each conversion, i.e. the withdrawal of cryptocurrency into fiat currency, you accept that you are selling digital content the value of which is subject to market fluctuations. The Conversion Rate of the cryptocurrencies we support at a particular moment of a transaction is based on the Kraken platform exchange rates and shall be clearly indicated on the Platform.
3. REGISTRATION AND SPICEPAY ACCOUNT
3.1. To use the Services, you must first register on the Platform by creating a Merchant Account. You will be asked to provide certain personal information during the registration process. Through your personal account you have access to an overview of your transactions and you can withdraw your cryptocurrency funds. As a Merchant you can also integrate certain aspects of the Services into your own online sales platform by making use of our Plugins and application programming interface (API), thereby allowing your customers to pay with cryptocurrency – Bitcoin, Litecoin, Bitcoin Cash, Ethereum and more cryptocurrencies to come. Cryptocurrency payments received can be automatically or manually exchanged for fiat currencies. You may find all information related to the Services on the SpicePay website https://www.spicepay.com (hereinafter: “Website”).
3.2. In order to use the SpicePay Services, you may be required to provide SpicePay with certain personal information, including, but not limited to, your full name, your business’s name and address, telephone number, company website and e-mail address. SpicePay may also require you to answer certain questions or take actions in order to verify your identity, provide the SpicePay Services to you, or comply with applicable law.
In submitting this or any other personal information as may be required, you verify that the information is accurate and authentic, and you agree to update SpicePay if any information changes.
You hereby authorize SpicePay to, directly or through third parties, (i) make any inquiries we consider necessary to verify your identity and/or account information, and (ii) request and obtain any consumer report or similar information relating to you and to take action we reasonably deem necessary based on the results of such inquiries and reports, and hereby authorize any and all third parties to which such inquiries or requests may be directed to fully respond to such inquiries or requests.
You warrant and undertake that all information you provide during the registration process is truthful, complete, accurate and up to date. If any of your personal or corporate details change, you will duly update them via the appropriate menu in your SpicePay Account or by contacting customer support.
3.3. Your login credentials to gain access to your SpicePay Account are strictly personal. You are not allowed to divulge them to a third party. Any violation of the confidentiality of your login credentials shall be considered a material breach of these Terms and Conditions, and SpicePay shall have the right to block access to or terminate your SpicePay Account.
3.4. All communication between you and SpicePay will take place using the e-mail address you provide during the registration process. If you for any reason change your e-mail address, you are required to update it by contacting the SpicePay customer support.
4. INTEGRATING OUR PLUGINS INTO YOUR WEBSHOP OR E-COMMERCE PLATFORM
4.1. The Plugins are provided to you “as is” and as a “best efforts”-commitment only. Providing any of our Services subject to service levels shall require a separate agreement with SpicePay, for which you should contact SpicePay.
4.2. The necessary technical documentation to integrate the Plugins shall be made available on the Website. SpicePay cannot be held to effectuate compatibility between the Plugin and your own website or platform. If you are in need of more support or special modifications to the Plugins, you are required to contact SpicePay. You are not allowed to alter or adapt the Plugins in any way other that what is needed for normal use as outlined in the technical documentation made available by SpicePay.
4.3. SpicePay does not guarantee the permanent availability of the Services, its Plugins or software, nor the permanent accessibility to its systems and software via its API. SpicePay may decide, at its own discretion and without your prior approval, to make its systems and software unavailable for performing maintenance, upgrades, the addition or removal of new features or for the temporary or permanent cancellation of the whole or part of the Services.
If the cause for the unavailability or inaccessibility is unexpected or generally beyond the control of SpicePay, SpicePay is not obliged to inform you of the unavailability or inaccessibility beforehand. If the unavailability or inaccessibility is scheduled, SpicePay shall inform you beforehand in a timely manner, and no later than three (3) days before the day when the unavailability or inaccessibility occurs.
4.4. You warrant that you have all the necessary skills, knowhow, qualifications and experience to a) establish a connection and ensure compatibility with the SpicePay API and b) use this access to SpicePay’s software and systems in a prudent manner in accordance with industry best practice. You shall minimally ensure that you have adequate security measures and safety procedures in place to guarantee the integrity, continuity, confidentiality and safety of the Services. You warrant and undertake to report immediately any security incident relating to the Services, to try and mitigate any adverse effects, and to collaborate in good faith with SpicePay to ensure the continuity of the Services.
4.5. You acknowledge that SpicePay may at all times decide to prevent you from accessing its systems if and when such access can reasonably be considered a threat in any way to the security or proper functioning of SpicePay’s systems, software or Services. SpicePay will notify you immediately that access has been blocked and will inform you of the reasons for blocking.
You shall then have ten (10) days to remedy the situation which gave rise to the blocking and inform SpicePay of the measures taken. If SpicePay considers the measures adequate, access shall be restored promptly.
If no adequate remedy has been provided after ten (10) days, SpicePay shall send a second notification reminding you of the blocking and the need for an adequate remedy. You shall then have another period of ten (10) days to remedy the situation and inform SpicePay of the measures taken. If after this second period no adequate remedy has been provided, SpicePay shall have the right to terminate your SpicePay Account.
5. USE OF SPICEPAY WEBSITE
5.1. Although we intend to provide accurate and timely information on the SpicePay Site, the SpicePay Site (including, without limitation, the Content) may not always be entirely accurate, complete or current and may also include technical inaccuracies or typographical errors. In an effort to continue to provide you with as complete and accurate information as possible, information may be changed or updated from time to time without notice, including without limitation, information regarding our policies, products and services. Accordingly, you should verify all information before relying on it, and all decisions based on information contained on the SpicePay Site are your sole responsibility and we shall have no liability for such decisions.
5.2. From time to time, the SpicePay Site may contain references or links to third-party materials (including without limitation websites) not controlled by us. We provide such information and links as a convenience to you. Such links should not be considered endorsements of these sites or any content, products or information offered on such sites and such reference does not imply our recommendation, approval, affiliation, or sponsorship of that respective property, product, service, or process. You acknowledge and agree that we are not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked to the SpicePay Site, including without limitation content, property, goods or services available on the linked sites.
5.3. We shall not bear any liability, whatsoever, for any damage or interruptions caused by any computer viruses, spyware, scareware, Trojan horses, worms or other malware that may affect your computer or other equipment, or any phishing, spoofing or other attack. We advise the regular use of a reputable and readily available virus screening and prevention software. You should also be aware that SMS and email services are vulnerable to spoofing and phishing attacks and should use care in reviewing messages purporting to originate from SpicePay. Always log into your SpicePay Account through the SpicePay Site to review any transactions or required actions if you have any uncertainty regarding the authenticity of any communication or notice.
5.4. You can use your SpicePay Account to establish a customizable payment page (“Payment Page”) which will allow others to easily send cryptocurrency payments to your Wallet. You may establish and customize your Payment Page through your SpicePay Account settings, which will allow you to establish a user handle and associated Payments Page URL, upload a photo, and provide a short description. In establishing your Payment Page and uploading or adding any text, photo, or other material, you agree that you will not (i) post misleading materials or misappropriate the identity of another person or entity, (ii) post any copyrighted material which you are not authorized to post, or (iii) post any profane, unlawful, or offensive materials. SpicePay, in its sole discretion, may disable your Payment Page and take other action in accordance with this Agreement if we believe you are in violation of the foregoing or abusing this service. SpicePay may reclaim user handles associated with dormant SpicePay Accounts.
6. ACCEPTING CRYPTOCURRENCY PAYMENTS
6.1. As a Merchant you are responsible for indicating to your clients the price of your goods and/or services in the cryptocurrency of your choice, including any fees, costs, taxes, charges and other expenses to be borne by your clients.
You shall bear all responsibility for the taxes, levies, customs charges, costs and other expenses associated with the sale of your goods and/or services. SpicePay shall never be responsible for informing you of the applicability of such taxes, levies, charges, costs and expenses, and cannot be held to compensate or indemnify you for them.
6.2. You shall inform your clients that all payments made in cryptocurrency are final and cannot be reversed. All of your clients’ claims regarding unauthorized debit of their cryptocurrency wallet, material errors (e.g. double payments or wrong amount), wrongful delivery, defective goods and/or services, volatility in the price of the cryptocurrency or fraud shall be your responsibility, unless such debit, error or fraud was a direct result of a serious fault or gross negligence on the part of SpicePay.
6.3. By accepting cryptocurrency payments through use of our Plugins and API, you accept that your clients can wholly and finally fulfill their debts to you for the goods and/or services you provide by transferring the correct amount of cryptocurrency to your Wallet.
6.4. You understand that no contractual relationship will arise between SpicePay and your clients out of your use of the Services. You will therefore be solely responsible for any and all consumer protection regulations that may apply in your relationship with your clients.
6.5. You acknowledge and agree that SpicePay can in no event be held responsible for any surge or fall in the value of any cryptocurrency. Any and all risk of such volatility of the value of the cryptocurrency shall be borne by you.
6.6. SpicePay has no obligation to identify the client making payments to you as Merchant, nor the obligation to verify any identity offered. However, SpicePay has the right to request that you collect from your clients, in an electronic format, certain identity information as well as the necessary documents and materials allowing for the verification of that identity, so that SpicePay may fulfill any current and future compliance obligations (e.g. under anti-money laundering and counter-terrorism financing legislation) it may be confronted with. You warrant and undertake to fulfill such request in good faith and within the timeframe indicated by SpicePay.
You acknowledge and accept that SpicePay shall have the right to request additional information regarding certain individuals if competent authorities require such information. In such event you shall refrain from notifying the respective individual that such a request was made. Any violation of this clause shall be considered a material breach of these Terms and Conditions.
6.7. As Merchant you can choose to convert your cryptocurrency automatically in one of the currencies indicated on the Platform. The conversion shall take place at the then applicable exchange rates of the Kraken platform. SpicePay reserves the right, however, to disable the automatic conversion option at its own discretion and revert it back to manual conversion and withdrawal. You will be notified of such reversal via the Platform.
6.8. SpicePay securely stores 100% of all bitcoin associated with your SpicePay Wallet in a combination of online and offline storage. As a result, it may be necessary for SpicePay to retrieve this information from offline storage in order to facilitate a bitcoin transaction in accordance with your instructions, which may delay the initiation or crediting of such bitcoin transaction for 48 hours or more. As a user of the SpicePay Services, you accept the risk that a bitcoin transaction facilitated by SpicePay may be delayed and you agree not to hold SpicePay responsible for any damages or injury arising out of or related to such delay. See Section 14 for a further description of our limited liability.
7.1. SpicePay shall not charge any fee on the cryptocurrency payment transactions made by your clients to you for a trial period of thirty (30) days, starting the day of your registration. After these thirty (30) days, the total price for the Services shall be one (1) percent of the value of each payment in cryptocurrency made by your clients to your Wallet. SpicePay shall have the right to collect the fee immediately upon execution of the transaction. You accept that third party payment providers may also charge you fees when you sell cryptocurrency for the local currency of your choice.
7.2. You agree to renegotiate these pricing terms in good faith after a period of thirty (30) days starting on the date the first payment by a client of yours was made on which SpicePay charged the one (1) percent fee mentioned in the previous clause.
8. INTELLECTUAL PROPERTY
8.1. SpicePay grants you a non-exclusive, non-transferable and non-sublicensable right to use the API, Plugins, technical documentation and other assets encumbered with intellectual property rights of SpicePay as needed for the provision of the Services and for the duration of the Agreement only
8.2. Having regard to the provisions of the preceding paragraph, you shall not copy, analyze, decompile, make public, distribute, transfer to third parties, or change any content encumbered with intellectual property rights of SpicePay unless expressly permitted by SpicePay.
8.3. Each use made by you of any material protected by intellectual property rights or other rights of third parties, happens on your own full and sole responsibility, and you shall indemnify and hold SpicePay harmless against any possible legal action of third parties with regard to violation of its rights. You acknowledge and accept that SpicePay exercises no power of control nor any advisory powers with regard to any rights held by third parties.
8.4. Any usage of SpicePay’s registered trademarks, its logos, products and imagery must be approved by SpicePay in writing beforehand. Nevertheless, you and SpicePay grant each other the right, for the duration of the Agreement only, to use each other’s trademarks and logos in commercial communications and on their websites to make public the collaboration between you and SpicePay. Any such usage must ensure that it is clear that you and SpicePay are two separate entities. SpicePay will equally have the right to publish a description of the main characteristics of your activities and/or services on its website.
9. PROTECTION OF PERSONAL DATA
9.1. You as Merchant acknowledge and agree to be solely responsible of all personal data of your clients that is being transferred and processed by SpicePay as part of the Services. For any request made under the aforementioned clause, you warrant and undertake to process the information only insofar as needed to strictly comply with the instructions given by SpicePay and not to transfer the information to any other party nor any other country without explicit written permission from SpicePay.
9.3. Where SpicePay processes personal data on your behalf, it warrants and undertakes only to process personal data:
upon your explicit instructions, i.e. only as needed to provide the Services;
with respect for the confidentiality of the data;
in a manner in which SpicePay can assist you to accommodate all legitimate requests from your clients with regard to the processing of their data.
9.4. SpicePay warrants and undertakes to return all personal data processed on your behalf back to you upon termination of the Agreement or to destroy them, according to your preference.
10.1. SpicePay shall keep confidential any information marked as confidential by you or considered to be confidential by its nature (e.g. the personal and transactional information listed in your SpicePay Account). The marking of information as confidential must always have a written deposition. Both you and SpicePay shall keep confidential all information which pertains to the technical, organizational or procedural aspects of the other’s systems and business processes, unless:
the party to whom the information belongs expressly stipulates otherwise; or
such information needs to be communicated to subcontractors or third parties for the performance of the commitments under this Agreement and the party to whom the information belongs has been duly informed in advance of this need to communicate.
10.2. If and when a governmental or judicial competent authority requires confidential information, then you and SpicePay will first confer with one another prior to any disclosure, which in any case will be limited to the minimal divulgation of information in order to comply with the governmental or judicial order.
10.3. Any violation of clauses 10.1. and 10.2. shall be considered a material breach.
11. LEGAL COMPLIANCE
11.1. Pursuant to economic sanctions programs, SpicePay is prohibited from providing services or entering into relationships with certain individuals, entities and countires. In the event that SpicePay is required to block assets associated with your SpicePay Account in accordance with a government sanctions program, SpicePay may (i) deactivate or cancel your SpicePay Wallet or block your activity, (ii) transfer bitcoin from your SpicePay Wallet to an originating source or to an account specified by authorities, or (iii) require you to transfer your bitcoin out of your SpicePay wallet within a certain period of time.
SpicePay is not responsible for any losses, whether direct or indirect, that you may incur as a result of our complying with applicable law, the guidance or direction of any regulatory authority or government agency, or any writ of attachment, lien, levy, subpoena, warrant or other legal order.
11.2. SpicePay complies with strict KYC and AML policies made available on the Website.
12. RESTRICTED ACTIVITIES
12.1. In connection with your use of the SpicePay Services, and your interactions with third parties you will not:
Violate or assist any party in violating any law, statute, ordinance, regulation or any rule of any self-regulatory or similar organization of which you are or are required to be a member (for example, those laws, rules, or regulations governing financial services, controlled substances, unlawful gambling, endangered animals or consumer protections);
Partake in a transaction which involves the proceeds of any unlawful activity
Defraud or attempt to defraud SpicePay or other parties;
Infringe upon SpicePay’s or any third party’s copyright, patent, trademark, or intellectual property rights;
Provide false, inaccurate or misleading information;
Take any action that imposes an unreasonable or disproportionately large load on our infrastructure, or detrimentally interfere with, intercept, or expropriate any system, data, or information;
Interfere with another individual’s or entity’s access to or use of any of the SpicePay Services;
Defame, abuse, 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;
Publish, distribute or disseminate any unlawful material or information;
Transmit or upload any material to the SpicePay Site that contains viruses, Trojan horses, worms, or any other harmful or deleterious programs;
Harvest or otherwise collect information from the SpicePay Site about others, including without limitation email addresses, without proper consent;
Act as a payment intermediary or aggregator or otherwise resell any of the SpicePay Services, unless expressly authorized by SpicePay in writing;
Transfer any rights granted to you under this Agreement;
Use the SpicePay Account information of another party to access or use the SpicePay Site, except in the case of specific Merchants and/or applications which are specifically authorized by a user to access such user’s SpicePay Account and information;
Otherwise attempt to gain unauthorized access to the SpicePay Site, other SpicePay Accounts, computer systems or networks connected to the SpicePay Site, through password mining or any other means; or
Engage in transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the law.
We reserve the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request.
13. TERM, SUSPENSION AND TERMINATION
13.1. The Agreement starts when you register on the SpicePay Platform as a Merchant and shall be of indefinite duration.
13.2. You and SpicePay may both end this Agreement at any time without notice or prior recourse to a judge or incurring a charge, by sending an e-mail or by visiting the Account Settings page on the SpicePay Site (you must be logged in to access this page). If any transaction is in a pending state at the time your SpicePay Account is cancelled or suspended, such transaction may be cancelled and/or refunded as appropriate. You may not cancel your SpicePay Account to evade an investigation or avoid paying any amounts otherwise due to SpicePay. Upon cancellation of your SpicePay Account, you authorize SpicePay to cancel or suspend pending transactions and hold the funds associated with such transactions until SpicePay is certain that funding reversal windows are complete. In the event that you or SpicePay terminates this Agreement or your access to the SpicePay Services, or deactivates or cancels your SpicePay Account, you will remain liable for all amounts due hereunder. In the event that a technical problem causes system outage or Account errors, SpicePay may temporarily suspend access to your Account until the problem is resolved.
13.3. SpicePay may: (a) suspend or terminate your access to any or all of the SpicePay Services, and (b) deactivate or cancel your SpicePay Account as required by a valid subpoena or court order, or if SpicePay reasonably suspects you of using your SpicePay Account in furtherance of illegal activity, or if you take any action that SpicePay deems as circumventing SpicePay controls, including, but not limited to, opening multiple SpicePay Accounts or abusing promotions which SpicePay may offer from time to time. You will be permitted to transfer bitcoin associated with your SpicePay Wallet for ninety (90) days after Account deactivation or cancellation unless such transfer is otherwise prohibited (i) under the law, or (ii) by a valid subpoena or court order.
13.4. Upon termination of the Agreement for whatever reason, you and SpicePay shall cease to use each other’s intellectual property and shall return or destroy all confidential information and personal data of the other. Upon termination, you will be asked to provide an address where any remaining bitcoin in your Wallet may be transferred to. If no such address is provided within thirty (30) days, the control of your Wallet as well as the ownership of the remaining cryptocurrency will automatically transfer to SpicePay.
14.1. You must notify SpicePay as soon as possible and at the latest within five (5) days after the occurrence of damages which are a direct result of your use of the Services and you must take all necessary steps to limit the impact of these damages. In your correspondence, you must give us information sufficient to identify you, your SpicePay Account, and the transaction on which you believe an error occurred. Belatedly communicated damages are in no event eligible for compensation.
14.2. SpicePay can only be held liable for its own fraud, serious fault or gross negligence in the execution of its commitments under these Terms and Conditions where it causes direct, proven damages to you, and this to the maximum amount paid by you during three (3) months preceding the discovery of the damages, and in any case limited to the insurance coverage available at the moment a settlement has been reached or the moment a judgement takes effect.
14.3. SpicePay shall never be liable, not even in case of serious fault or gross negligence, for indirect damages, including consequential damages, financial or commercial damages, loss of profit or income, lost opportunities, lost savings, damage due to business discontinuity, reputational damage and damage from legal proceedings initiated by third parties against you.
14.4. SpicePay shall never be liable for the partial, temporary or permanent delay or any impediment of the execution of its obligations resulting from the Agreement if such is the consequence of force majeure. Force majeure shall be understood at least as: war, terrorism, natural disasters or other phenomena, fire, floods, storms, heavy rains or other precipitation, extreme weather conditions, occupation, strikes, illness or death of administrators, employees or subcontractors and their relatives, government measures, defaults or force majeure of subcontractors, electrical faults and technical failures.
14.5. EXCEPT FOR CLAIMS FOR INJUNCTIVE OR EQUITABLE RELIEF OR CLAIMS REGARDING INTELLECTUAL PROPERTY RIGHTS (WHICH MAY BE BROUGHT IN ANY COMPETENT COURT WITHOUT THE POSTING OF A BOND), ANY DISPUTE ARISING UNDER THIS AGREEMENT SHALL BE FINALLY SETTLED ON AN INDIVIDUAL BASIS IN ACCORDANCE WITH THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND SPICEPAY HEREBY EXPRESSLY WAIVE TRIAL BY JURY. THE ARBITRATION SHALL TAKE PLACE IN THE NETHERLANS, IN THE ENGLISH LANGUAGE AND THE ARBITRAL DECISION MAY BE ENFORCED IN ANY COURT. AT YOUR REQUEST, HEARINGS MAY BE CONDUCTED IN PERSON OR BY TELEPHONE AND THE ARBITRATOR MAY PROVIDE FOR SUBMITTING AND DETERMINING MOTIONS ON BRIEFS, WITHOUT ORAL HEARINGS. THE PREVAILING PARTY IN ANY ACTION OR PROCEEDING TO ENFORCE THIS AGREEMENT SHALL BE ENTITLED TO COSTS AND ATTORNEYS’ FEES. ADDITIONALLY, YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
14.6. You shall be held to indemnify and hold SpicePay, its affiliates, trade partners and subcontractors as well as their officers, directors, employees and representatives harmless from any claim or demand arising out of or related to (i) your (material) breach of this Agreement, (ii) your use of the Services, (iii) your non-compliance with any applicable legal or regulatory obligation and (iv) your violation of any third party’s rights.
15.1. IN NO EVENT SHALL SPICEPAY, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SPICEPAY SITE, THE SPICEPAY SERVICES, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). Some states do not allow the exclusion or limitation of incidental or consequential damages so the above limitation or exclusion may not apply to you. THE LIABILITY OF SPICEPAY, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE LOWER OF (A) THE ACTUAL AMOUNT OF DIRECT DAMAGES; OR (B) FEES PAID TO SPICEPAY BY YOU IN THE PRECEDING THREE (3) MONTHS.
15.2. THE SPICEPAY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESSED, IMPLIED OR STATUTORY. SPICEPAY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SPICEPAY DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO ANY PART OF THE SPICEPAY SERVICES, AND OPERATION OF THE SPICEPAY SITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. SPICEPAY WILL MAKE REASONABLE EFFORTS TO ENSURE THAT REQUESTS FOR ELECTRONIC DEBITS AND CREDITS INVOLVING THE BANKING SYSTEM ARE PROCESSED IN A TIMELY MANNER BUT SPICEPAY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE AMOUNT OF TIME NEEDED TO COMPLETE PROCESSING BECAUSE THE SPICEPAY SERVICES ARE DEPENDENT UPON MANY FACTORS OUTSIDE OF OUR CONTROL, SUCH AS DELAYS IN THE BANKING SYSTEM. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. This paragraph gives you specific legal rights and you may also have other legal rights that vary from state to state.
15.3. None of the provisions of these Terms and Conditions shall be interpreted as indicating the intent to form a company, association or joint venture between you and SpicePay.
15.4. You shall not have the right to transfer or assign any of your rights and obligations under this Agreement to a third-party without prior written permission of SpicePay. SpicePay reserves the right, however, to transfer or assign the whole or part this Agreement to a third party without your prior permission.
15.5. In the event that SpicePay is acquired by or merged with a third-party entity, we reserve the right, in any of these circumstances, to transfer or assign the information we have collected from you as part of such merger, acquisition, sale, or other change of control.
15.6. Whenever possible, the provisions of these Terms and Conditions shall be interpreted in such a manner as to be valid and enforceable under the applicable law. However, if one or more provisions of these Terms and Conditions are found to be invalid, illegal or unenforceable, in whole or in part, the remainder of that provision and of these Terms and Conditions shall remain in full force and effect as if such invalid, illegal or unenforceable provision had never been contained herein. Moreover, in such an event, SpicePay shall amend the invalid, illegal or unenforceable provision(s) or any part thereof and/or agree on a new provision, in such a way as to reflect insofar as possible the purpose of the invalid, illegal or unenforceable provision(s).
15.7. Any failure or delay by SpicePay in exercising any right under this Agreement, any single or partial exercise of any right under this Agreement, or any partial reaction or absence of reaction by SpicePay in the event of violation by you of one or more provisions of this Agreement, shall not operate or be interpreted as a waiver (either express or implied, in whole or in part) of SpicePay’s rights under this Agreement or under said provision(s), nor shall it preclude any further exercise of any such rights. Any waiver of a right must be express and in writing. If there has been an expressly written waiver of a right following a specific failure by SpicePay, this waiver cannot be invoked by you in favor of a new failure, similar to the prior one, or in favor of any other kind of failure.
15.8. You agree to try and solve any dispute regarding this Agreement through negotiations. Should negotiations fail, then all disputes concerning the validity, interpretation, enforcement, performance and termination of this Agreement shall be submitted to the exclusive jurisdiction of the competent courts of The Netherlands.
15.9. All issues, questions and disputes concerning the validity, interpretation, enforcement, performance and termination of this Agreement shall be governed by and construed in accordance with Dutch law, and no effect shall be given to any other choice-of-law or conflict-of-laws rules or provisions (Dutch, foreign or international, including the UN Convention on the Sale of Goods (if applicable)), that would cause the laws of any other jurisdiction to be applicable.
15.10. SpicePay shall not be liable for delays, failure in performance or interruption of service which result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to, any delay or failure due to any act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.
15.11. All provisions of this Agreement, which by their nature extend beyond the expiration or termination of this Agreement, shall survive the termination or expiration of this Agreement.
15.12. Section headings in this Agreement are for convenience only, and shall not govern the meaning or interpretation of any provision of this Agreement.
15.13. This Agreement sets forth the entire understanding and agreement between you and SpicePay as to the subject matter hereof, and supersedes any and all prior discussions, agreements and understandings of any kind (including without limitation any prior versions of this Agreement), and every nature between and among you and SpicePay.