Merchant Terms And Conditions

Last updated on May 16, 2013

Any translation of the English version of this Agreement is provided for convenience only and only the English version shall be legally binding.

1. Definitions and Interpretation

1.1. The following terms when used in this Agreement or any document referred to herein shall have the following meaning:

Agreement means this Agreement between OKPAY and the Merchant as amended from time to time including the cover pages and any Schedules;

Business Day means any day other than a Saturday or a Sunday or a public or bank holiday in BVI;

Payment Method shall mean any card payment systems (such as VISA, MasterCard®, JCB or others, including national or local systems), bank payments (such as direct banking systems, direct debit systems or bank transfer systems) or electronic payment systems (electronic money, phone payments, etc);

Confidential Information means any information which is marked as "Confidential" or "Proprietary" or should be reasonably expected to be confidential having regard to the context of disclosure or the nature of the information; without prejudice to the generality of the foregoing, the terms of this Agreement as well as business plans, data, strategies, methods, customer and client lists, technical specifications, transaction data and Customer data shall be deemed confidential;

E-Wallet Payment Service means OKPAY' e-wallet based payment service through which a OKPAY account holder can send funds to a recipient using an e-mail address as the recipient's identifier (regardless of whether this is facilitated through the use of the OKPAY Website or a payments gateway integrated into the Merchant Website or otherwise);

Gateway Service means any OKPAY service using a payment gateway integrated into (but not necessarily hosted on) the Merchant Website for receiving payment instructions from a customer;

Manual means any of the technical manuals applicable to the OKPAY Services are amended from time to time and published on the OKPAY Website, or, in case of a merchant integration through a third party service provider, any third party integration instructions or manuals;

Merchant Account means the Merchant's registered electronic money account (or several such accounts) held with OKPAY in accordance with OKPAY' general Terms of Service;

Wallet means separate OKPAY sub-account used to sort payment activity of a single business or conduct several businesses under one OKPAY account. Each OKPAY wallet is able to hold multiple currencies.

Merchant Website means the website operated by the Merchant (as amended from time to time);

OKPAY Services means any services provided by OKPAY under this Agreement, including the E-Wallet Payment Service, the Gateway Service and any other service as agreed between the parties from time to time;

OKPAY Website means the website operated by OKPAY (as amended from time to time) for the provision of its services, currently accessible at https://www.okpay.com, excluding any external websites to which the website points by way of hyperlink or otherwise;

Regulatory Requirements means any law, statute, regulation, order, judgment, decision, recommendation, rule, policy or guideline passed or issued by parliament, government or any competent court or authority or any payment system (including but not limited to bank payment systems, card payment systems such as Visa, MasterCard, JCB etc, or any other payment, clearing or settlement system or similar arrangement that is being used for providing the services hereunder);

Reserve means such amount or percentage of the balance of the Merchant Account as determined by OKPAY in accordance with section 6 for the purpose of securing claims by OKPAY against the Merchant.

1.2. Headings are for convenience only and shall not affect the construction or interpretation of this Agreement.

1.3. Unless the contrary intention appears, words in the singular include the plural and vice versa; words importing the masculine gender include the feminine and neuter and vice versa; references to persons include bodies corporate, unincorporated associations, partnerships or an authority.

1.4. Any phrase introduced by the term "included", "including", "in particular" or any similar expression will be construed as illustrative only and will not limit the sense of the words preceding that term.

2. Scope

2.1. This Agreement contains the terms for the provision of services as currently described in section 4 and such other services as agreed between the parties from time to time.

2.2. OKPAY' general account terms of service (the Terms of Service), available on the OKPAY Website, shall form a binding part of this Agreement. If (but only to the extent that) any provision of these Standard Merchant Terms and Conditions conflicts with any provision of the Terms of Service, the former shall prevail.

3. Term

3.1. The Agreement commences on the date of signature of this Agreement (if signed by the parties on different dates, the later date) or such other date as specified in this Agreement.

3.2. This Agreement will continue in full force and effect unless and until either party terminates this Agreement by giving notice to the other party in accordance with section 16.

4. Description of Services

4.1. OKPAY' E-Wallet Payment Service and Gateway Service facilitate the execution of payments from a customer to the Merchant. Any payment monies collected from customers and received by OKPAY shall be transferred into the Merchant Account immediately after deduction of any fees due to OKPAY.

4.2. The Merchant is aware that the receipt of a payment into the Merchant Account does not amount to the receipt of cleared funds.

The Merchant remains liable to OKPAY for the full amount of the payment and any fees deducted therefrom (the "Reversal Amount") if the payment is later reversed for any reason. In case of such a payment reversal, OKPAY will first debit the Merchant Account with the Reversal Amount and any applicable third party chargeback or reversal fee. If OKPAY is unable to fully recover the Reversal Amount and the applicable third party chargeback or reversal fee from the Merchant Account (including any monies transferred into it after the payment reversal), it reserves the right to invoice the Merchant for the unrecovered balance.

4.3. OKPAY reserves the right to suspend, at any time and at its sole discretion, the Merchant Account (or certain functionalities thereof such as uploading, receiving, sending and/or withdrawing funds) if transactions are made which OKPAY in its sole discretion deems to be (i) made in breach of this Agreement or (ii) are suspicious with regards to money laundering, terrorism financing, fraud or other illegal activities. OKPAY will make reasonable efforts to inform the Merchant of any measure unless OKPAY is prohibited from doing so by law or under an order from a competent court or authority.

4.4. The Merchant acknowledges and agrees that the OKPAY service operates solely as a payment intermediary and that OKPAY (i) under no circumstances functions as a seller, buyer, dealer, middleman, retailer, auctioneer, supplier, distributor, manufacturer, broker, agent or merchant of any product or service being ordered, obtained or procured by any funds processed through its services; and (ii) makes no representations or warranties and does not ensure the quality, safety or legality of any product or service purchased with funds received through the OKPAY Services.

4.5. The Merchant acknowledges and agrees that any dispute regarding any product or service purchased or procured by any funds requested or received through the OKPAY Services or any transaction involving the OKPAY Services is between the sender and receiver of the funds and/or the supplier and receiver of the goods or services. Any transaction connected with the products and services offered by the Merchant shall only obligate the Merchant. OKPAY shall not be a party to any resulting dispute including but not limited to disputes over performance and liability issues relating to the delivery, quality, quantity or use of the products and services offered by the Merchant. Without applying the liability restrictions contained in section 13, the Merchant shall fully indemnify OKPAY against any claim by third parties relating to the use of the products and services offered and shall reimburse OKPAY in full for the reasonable costs of any legal defense.

5. Obligations

5.1. OKPAY shall make available to the Merchant and its current and prospective customers the OKPAY Services as specified in this Agreement and as further described on the OKPAY Website.

5.2. The Merchant shall open and maintain a Merchant Account by selecting account type as a "seller" (merchant) on the OKPAY Website. As part of the registration process, the Merchant will have to accept the Terms of Service which apply to every OKPAY account.

5.3. The Merchant shall integrate the OKPAY Services into the Merchant Website and operate the same in accordance with the relevant Manuals.

5.4. The Merchant grants OKPAY the right to access the Merchant Website for the purpose of conducting manual checks or automated searches in order to investigate the accuracy of information contained on the Merchant Website in relation to the OKPAY Services, provided that (i) OKPAY shall be under no obligation to conduct such searches or checks and (ii) any such searches shall under no circumstances be deemed an approval of any contents of the Merchant Website.

5.5. In addition to the security requirements set forth in the Terms of Service, the Merchant shall enable the login restriction tools offered in the "Security Center" section of the OKPAY Profile for both the Automated Payment Interface and the Merchant Account login through the OKPAY Website. Recommended protection level is Phone security involving security PIN-codes sent to mobile phone in order to perform any operation or account modification.

The Merchant shall further restrict any login to its Merchant Account to a pair or a range of IP addresses.

5.6. Without prejudice to payments prohibited under the Terms of Service, the Merchant shall not receive payments as consideration for the delivery of tobacco products, prescription or non-prescription drugs, illegal downloads or goods or services infringing intellectual property rights of a third party, or for any other goods or services the offering or provision of which is illegal under applicable law.

5.7. The Merchant shall co-operate with OKPAY to investigate any suspected illegal, fraudulent or improper activity.

5.8. Upon commencement of the Agreement and at any time thereafter for purposes of complying with Regulatory Requirements, the Merchant shall provide OKPAY with such information about its business, corporate structure and constitution, shareholders, partners, members, directors, key employees or, in the case of a trust, its beneficiaries. In particular, the Merchant shall inform OKPAY in writing of any changes to its business model or the goods or services it sells or distributes if such change is or can reasonably expected to be relevant with regards to compliance with Regulatory Requirements. Without applying the liability limits contained in section 13, the Merchant shall indemnify OKPAY against all losses arising out of the Merchant's failure to notify OKPAY of any such changes that are relevant for compliance with Regulatory Requirements applicable to OKPAY or the Merchant.

5.9. The Merchant shall provide its customers with a clear and fair return and refund policy.

The Merchant shall provide and keep up to date return and refund policy information in his Wallet properties Business Practice section to reflect any changes to such policy.

6. Reserve

6.1. For the purposes of establishing a Reserve, OKPAY reserves the right to prevent a certain amount of funds from being withdrawn from the Merchant Account or used for payments to third parties. This shall apply regardless of any termination of this Agreement for as long as funds are held on the Merchant Account. The amount of the Reserve (either expressed as an absolute amount or as a percentage of past payments into the Merchant Account) shall be determined by OKPAY at any time in its sole discretion. OKPAY shall notify the Merchant of the imposition of a Reserve and its amount as well as any increase or reduction of the Reserve without undue delay.

6.2. Without restricting OKPAY' discretion under section 6.1, OKPAY may take into account, amongst others, the following factors when determining the amount of any Reserve:

6.2.1. The Merchant ceases its business or a substantial part thereof;

6.2.2. The Merchant materially alters the nature of its business;

6.2.3. The Merchant's business activities carry a higher than normal risk of chargebacks or other reversals of costumer payments;

6.2.4. The Merchant's overall financial standing;

6.2.5. The Merchant becomes insolvent or is otherwise unable to pay debts as they fall due;

6.2.6. OKPAY receive a disproportionate number of customer complaints, chargebacks or other payment reversals, fines, penalties or other liability related to the Merchant Account; or

6.2.7. OKPAY reasonably believes that the Merchant will not be able to perform its obligations under this Agreement.

6.3. The Merchant agrees to provide OKPAY, upon reasonable request and at the Merchant's expense, with information about its financial and operational status, including the most recent financial statements. The Merchant shall also undertake, at its own expense, any further action (including executing any necessary documents and registering any form of document) reasonably required to establish such form of security as reasonably required by OKPAY.

6.4. If required by OKPAY, the Merchant shall pay such amounts into its Merchant Account as reasonably determined by OKPAY to fund an initial Reserve or to react to unforeseen increased risks of payment reversals that is not covered by the Merchant Account's then current balance.

6.5. Notwithstanding any of the foregoing, where a Merchant incurs a negative balance on his Merchant Account or becomes otherwise liable for the repayment of monies, the Merchant shall be obliged to make good such negative balance or make a corresponding payment to OKPAY within 7 days of OKPAY' request or demand for such payment. In respect of overdue payments, OKPAY has the right to charge interest in the amount of 4% above the base lending rate of Hellenic Bank Public Company Ltd per year (accruing daily).

7. Warranties

Each party warrants and represents to the other party that:

7.1. it has and will maintain all required rights, powers and authorizations to enter into this Agreement and to fulfill its obligations hereunder;

7.2. it will perform its obligations hereunder with reasonable skill and care; and

7.3. it has in place and will maintain adequate facilities (including staff training, internal controls and technical equipment) to comply with its data protection and confidentiality obligations hereunder.

8. Additional Merchant Warranties

The Merchant warrants and represents that:

8.1. the goods and services that are made available to customers comply with applicable law in any jurisdiction in or to which the Merchant is making its goods and services available and that the Merchant has at all times all requisite licenses and permits in place to engage in the advertising and provision of its goods and services.

8.2. it is not receiving funds in connection with any illegal, fraudulent, deceptive or manipulative act or practice and that the Merchant is not sending or receiving funds to or from an illegal source.

9. Fees

9.1. The fees for the OKPAY Services are stated on the Service Fees page. Unless otherwise indicated, fees are quoted in Euro.

9.2. Fees are quoted exclusive of Value Added Tax. In case Value Added Tax or any other sales tax is or become chargeable, OKPAY will add such tax to the amount payable but shall, where required, provide information on the net amount, the amount of tax and the tax rate applied.

9.3. Any fee payable by the Merchant shall be deducted from the Merchant Account balance. If the Merchant Account balance is insufficient, or the Merchant Account balance becomes negative, OKPAY reserves the right to invoice the Merchant for any shortfall.

9.4. The fees are subject to change pursuant to section 10.

9.5. Where OKPAY is unable to deduct any fees or other monies payable by the Merchant from the balance of the Merchant Account OKPAY shall issue an invoice for the amount owed. Invoices are payable within 15 days of the date of the invoice. In case of overdue payments, OKPAY reserves the right to (i) charge interest in the amount of 4% above the base lending rate of Hellenic Bank Public Company Ltd per year (accruing daily); and/or (ii) terminate this Agreement with immediate effect by giving written notice to the Merchant.

10. Change of Terms and Conditions

This Agreement is subject to change from time to time. Changes may be made by mutual agreement between the parties, or by notice from OKPAY to the Merchant under the following procedure:

10.1. OKPAY shall give the Merchant notice of any proposed change to this Agreement (a "Change Notice").

10.2. A Change notice may be given by letter to the current or last known trading address of the Merchant or the Merchant's registered office or by email to any of the emails registered with the Merchant Account.

10.3. The proposed change shall come into effect automatically one month after the date of the Change Notice, unless the Merchant gives written notice to OKPAY that it objects to the proposed changes.

10.4. OKPAY may stipulate in a Change Notice a different time period for the coming into effect of any change provided that such time period may not be less than one month.

10.5. If no objection notice is received by OKPAY within the stipulated time frame, the Merchant is deemed to have accepted the change.

10.6. The Merchant has the right to terminate this Agreement with immediate effect at any time before the change becomes effective.

10.7. Unless the parties agree otherwise, a Merchant's Objection Notice shall be deemed to constitute a notice to terminate this Agreement effective on the date immediately before date on which the proposed change would otherwise come into effect under section 10.3.

11. Taxes

It is the Merchant's responsibility to determine which, if any, taxes apply to the payments received, and to report and remit the correct tax to the appropriate tax authority. OKPAY is not obligated to determine whether taxes apply, and is not responsible to collect, report, or remit any taxes arising from any transaction.

12. Intellectual Property

12.1. For the duration and strictly for the purpose of this Agreement, the parties grant each other a non-exclusive, worldwide, royalty-free, non-transferable license to copy, use and display any logo, trademark, trade name or other intellectual property owned by or licensed to the other party.

12.2. Any use, adaptation or amendment of intellectual property (except for non-material adaptation or amendments necessitated by the use for a particular purpose as contemplated by the parties) shall be subject to prior written approval by the party licensing the intellectual property in question. No party shall use the other party's intellectual property or mention the other party in any public communication without the first party's prior written approval.

12.3. Except as expressly stated, nothing in this Agreement shall grant or be deemed to grant to any party any right, title or interest in any logos, trademarks, trade names or other intellectual property licensed to that party by the other party.

12.4. In using the other party's intellectual property (or intellectual property licensed to that other party by a third party), each party shall follow the other party's reasonable instructions having regard to the purpose of such use under this Agreement and the jurisdiction in which the other party's intellectual property is used. With respect to intellectual property owned or licensed by Payment Methods, the Merchant shall also follow instructions given by the relevant Payment Method. The Merchant shall not use such intellectual property in a way that is or may be detrimental to the business or brand of the relevant Payment Method.

12.5. Each party warrants and represents that it owns or has the right to use and sub-license any intellectual property which it uses or licenses for use to the other party.

12.6. Without prejudice to its right to give instructions under section 12.4, OKPAY reserves the right at any time and in its sole discretion to require the Merchant to stop displaying, distributing or otherwise making use of the intellectual property licensed to the Merchant by OKPAY.

12.7. Each party (the "Indemnifying Party") shall indemnify and hold harmless the other party and its employees and directors (the "Indemnified Party") for and against any and all claims, losses, liabilities, costs expenses or damages (including reasonable legal fees) incurred by reason of any claim, demand, lawsuit or action by a third party (other than an employee or director of the Indemnified Party) resulting from an actual or alleged infringement of any third party intellectual

property right in connection with material provided by the Indemnifying Party.

12.8. The indemnity under section 12.7 shall only be available if the Indemnified Party:

12.8.1. uses reasonable efforts to notify the Indemnifying Party of such claim as early as possible and in writing;

12.8.2. uses reasonable efforts to mitigate the loss or amount of the claim;

12.8.3. refrains from admitting any liability or settling any claim without the prior written consent of the Indemnifying Party; and

12.8.4. provides, at its own cost, reasonable co-operation in the defence or settlement of such claim.

13. Liability

13.1. Neither party shall be liable in contract, tort (including negligence or breach of statutory duty) or otherwise for any indirect or consequential loss or damage of any kind including punitive or exemplary damages or for any loss of profit or loss of contract, loss of goodwill or reputation, loss of opportunity, loss of revenue or third party loss whether foreseeable or otherwise.

13.2. Subject to sections 13.3, 13.4 and 13.5 and any other section explicitly excluding the effect of this section, the aggregate liability of each party in contract, tort, negligence or otherwise arising out of or in connection with this Agreement in any period of 12 months from the commencement date or any anniversary thereof (each a "Contract Year") shall be limited to the lower of (i) EUR 10,000 or (ii) the total amount of fees received by OKPAY from the Merchant in the previous Contract Year (or, in the first Contract Year, the fees received to date).

13.3. Nothing in this Agreement shall operate to exclude or restrict a party's liability

13.3.1. for fraud and fraudulent misrepresentation;

13.3.2. for death or personal injury due to negligence;

13.3.3. for payments pursuant to sections 4.2, 6.5 and 9;

13.3.4. for remittance payments due to the Merchant subject to the provisions of this Agreement;

13.3.5. for willful and malicious misconduct;

13.3.6. for damage to real or tangible personal property;

13.3.7. for a breach of section 14 (Confidentiality) (subject to section 13.6); and

13.3.8. to the extent that such exclusion or restriction is prohibited under applicable law.

13.4. Unless expressly stated otherwise, no indemnity obligation under this Agreement shall be subject to the limitations of liability contained in this section 13.

13.5. In case of a breach by the Merchant of any of the sections 5.3 to 5.8 (inclusive), section 8, or section 12 (with regard to intellectual property licensed to the Merchant under a sub-license granted by any Payment Method):

13.5.1. the liability restrictions of sections 13.1 and 13.2 shall not apply;

13.5.2. the Merchant shall indemnify OKPAY against all third party claims, losses, damages, fines, penalties, arising out of or in connection with such breach; provided always that any contributory negligence on OKPAY' part shall be taken into account so as to reasonably and proportionately reduce the Merchant's liability under this section.

13.6. OKPAY shall not be liable for any of the following:

13.6.1. a hardware, software or internet connection is not functioning properly;

13.6.2. any suspension or refusal to accept payments which OKPAY has reason to believe to be made fraudulently or without proper authorization;

13.6.3. the payment instructions received contain incorrect or improperly formatted information; or

13.6.4. unforeseen circumstances preventing the proper performance despite any reasonable precautions taken by OKPAY. Such circumstances may include, but are not limited to acts of god, power outages, fire, flood, theft, equipment breakdowns, hacking attacks, internal mechanical or systems failures as well as downtimes of the OKPAY website.

14. Confidentiality

14.1. During the term of this Agreement and thereafter, each party shall use and reproduce the other party's Confidential Information only for purposes of this Agreement and only to the extent necessary for such purpose and will restrict disclosure of the other party's Confidential Information to its employees, consultants or independent contractors with a need to know and will not disclose the other party's Confidential Information to any third party without the prior written approval of the other party.

14.2. Notwithstanding the foregoing, it will not be a breach of this Agreement for either party to disclose Confidential Information of the other party if required to do so under law or in a judicial or governmental investigation or proceeding.

14.3. The confidentiality obligations shall not apply to information that (i) is or becomes public knowledge through no action or fault of the other party; (ii) is known to either party without restriction, prior to receipt from the other party under this Agreement, from its own independent sources as evidenced by such party's written records, and which was not acquired, directly or indirectly, from the other party; (iii) either party receives from any third party reasonably known by such receiving party to have a legal right to transmit such information, and not under any obligation to keep such information confidential; or (iv) information independently developed by either party's employees or agents provided that either party can show that those same employees or agents had no access to the Confidential Information received hereunder.

15. Data Protection

15.1. Each party, when acting as data processor, shall process personal data in accordance with Regulatory Requirements.

15.2. Where one party acts as the data processor (the "Data Processor") of personal data processed by the other party as data controller (the "Data Controller"), the Data Processor shall at all times follow the Data Controller's reasonable instructions with regards to the personal data processed.

15.3. In case the Merchant integrates any fast registration gateway functionality as further described in the relevant Manuals in order to facilitate payments by new OKPAY customers, the Merchant shall procure all necessary consents from such customers to process and share with OKPAY any data required to facilitate the use of such fast registration functionality.

16. Termination

16.1. Without prejudice to termination rights under the Terms of Service, OKPAY may terminate this Agreement immediately:

16.1.1. if the Merchant files a petition for bankruptcy, becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or a receiver is appointed for the Merchant or its business, or the Merchant goes into liquidation either voluntarily (otherwise than for reconstruction or amalgamation) or compulsorily;

16.1.2. upon the occurrence of a material breach of this Agreement by the Merchant if such breach is not remedied within five (5) business days after written notice is received by the Merchant identifying the matter or circumstances constituting the material breach; or

16.1.3. if the Merchant violates or fails to comply with any applicable law, regulation or any order by a competent court or government authority.

16.2. The Merchant may terminate this Agreement at any time without reason by giving notice to OKPAY.

16.3. OKPAY may terminate this Agreement at any time without reason by giving one month notice.

16.4. Any termination under the Terms of Service shall be deemed a termination of this Agreement.

17. Assignment, Third Party Rights

17.1. The Merchant may not assign any of its rights under this Agreement to a third party without the prior written consent of OKPAY.

17.2. The Merchant may not out-source the performance of any of its obligations under this Agreement without the prior written consent of OKPAY, such consent not to be unreasonably withheld.

17.3. No person who is not a party to this Agreement shall have rights under the Act 1999 or otherwise to enforce any term of this Agreement.

17.4. In case the Merchant

17.4.1. acquires another existing OKPAY merchant or its business;

17.4.2. is acquired or its business is acquired by another existing OKPAY merchant;

17.4.3. merges with another existing OKPAY merchant; or

17.4.4. enters into a cooperation with another existing OKPAY merchant

the Merchant shall pay, upon OKPAY' notice to the Merchant, either (i) its current fees or (ii) the current fees applicable to the other merchant or (iii) such reasonable combination of its own current fees and the fees payable by the other merchant as determined by OKPAY. OKPAY shall send a notice within one month of the later of (a) completion of the acquisition, merger or cooperation, or (b) OKPAY' gaining knowledge of such acquisition, merger or cooperation. If no notice is sent within this time period, the Merchant shall continue to pay its current fees. In this case the fee change shall apply on the date which is one month after the Merchant's receipt of the notice.

18. Relationship of the parties

The Merchant and OKPAY are independent contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture or agency relationship between them. Neither party has authority to enter into agreements of any kind on behalf of the other.

19. Non-solicitation of employees

The Merchant undertakes that it will not for the term of this Agreement and a period of six months thereafter on its own behalf or on behalf of any person directly or indirectly canvass, solicit or endeavor to entice away from OKPAY or an associated company any person who has at any time during the term of this Agreement been employed or engaged by OKPAY or an associated company.

20. Notices

20.1. Any notice to be given under this Agreement must be given in writing and delivered either by hand, first class prepaid post or other recognized delivery service, or by facsimile. Notwithstanding the foregoing, OKPAY may give notice to the Merchant by sending an email to current email registered with the Merchant Account.

20.2. The parties agree to conduct all communication in relation to this Agreement in English. Where OKPAY sends or accepts communication in another language, this shall be for convenience only and shall not change English as the agreed language of communication for future communications.

21. Choice of law and forum

This Agreement and any legal relationship between the parties arising in connection with it shall be governed by and construed in accordance with the laws of BVI regardless of the venue or jurisdiction in which a dispute is being determined. Each party hereby irrevocably submits to the nonexclusive jurisdiction of the BVI Courts.

22. Waiver

Any waiver of a right under this Agreement shall only be effective if agreed or declared in writing. A delay in exercising a right or the non-exercise of a right shall not be deemed a waiver and shall not prevent a party from exercising that right in the future.

23. Severability

If any part of this Agreement is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable then such part shall be severed from the remainder of the Agreement, which shall continue to be valid and enforceable to the fullest extent permitted by law.

24. Entire Agreement

This Agreement including all Schedules and other documents referred to herein and the Terms of Service and all documents referred to therein, represents the entire agreement of the parties in relation to its subject matter. Each party acknowledges that it has entered into this Agreement in reliance only on the representations, warranties, promises and terms contained in this Agreement and, save as expressly set out in this Agreement, neither party shall have any liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.

25. Variation

Subject to section 18 of the Terms of Service and section 10 above, no variation or amendment to this Agreement shall be effective unless recorded in writing and signed by the duly authorized representatives of both parties.