PAYBYME Payment Network
Payment Services
Billing Solutions Cooperation Agreement (“Agreement”)
Version 2.4
by and between
Klon Ödeme Kuruluşu A.Ş., having its registered address at Ord. Prof. Dr. Fahrettin Kerim Gökay Cad. No:31 Euro İş Merkezi A Blok Altunizade 34662 Üsküdar, Istanbul/Turkey, registered with İstanbul Trade Registry under registration number 729412 and having its tax number as Üsküdar/5640562098, (hereinafter referred to as “PAYBYME”)
and
[COMPANY legal name], having its registered address at [street name and number] in [city] in [country] and registered with the [city] Chamber of Commerce under registration number [number], (hereinafter referred to as the “COMPANY”)
dated
[date] (“Signature Date”)
PAYBYME and COMPANY shall be hereinafter referred to individually as a “Party” and collectively as “Parties”.
- SUBJECT OF THE AGREEMENT
1.1. The subject of this Agreement consist of providing the customers of the COMPANY to purchase the products/services that are being rendered or to be rendered by the COMPANY (“Services” or “Products”) during the validity period of this Agreement via the payment infrastructure owned by PAYBYME, in this respect provision of technical infrastructure by PAYBYME in respect of the payment services that enables the COMPANY to collect the amount to be paid in return for the Products, the use of such infrastructure, determination of the rights and obligations of the Parties and resolution of the disputes arising from the Agreement.
1.2. For the issues that have not been regulated under the Agreement, the mandatory rules of the Law on Payment and Securities Reconciliation Services, Payment Services and Electronic Money Institutions numbered 6493, the Regulation on Payment Services and Issuance of Electronic Money and Payment Institutions and Electronic Money Institutions and other related legislation (hereinafter referred to together as the “Legislation”) shall be applicable. In case of lack of a mandatory rule in the Legislation on the related subject, the Parties shall mutually reach an agreement in writing and provide a solution therefor.
1.3. In the event that the provisions regulated under the Agreement contradict with the mandatory rules of the Legislation, the mandatory rules of the related Legislation shall be binding for the Parties, and the provisions of the Agreement shall be assumed to have been modified in accordance with such provisions.
- RIGHTS AND OBLIGATIONS OF THE PARTIES IN RESPECT OF PAYMENT SERVICES
2.1. Definition
The payment services within the scope of this Agreement consist of the value added services such as mobile payments through GSM operators (Direct Carrier Billing), payment with invoices through internet provider (ISP/IP Billing) and/or payment with debit card, credit card or any other provided by the card payment systems via virtual pos (hereinafter referred to together as the “Payment Methods”) and the COMPANY may use the Payment Methods in order for its customers to purchase the paid content of the Products (such as wares for the games, virtual currencies, membership accounts, etc.) depending on the customers’ preferences and within the scope of the rules that have been determined by the GSM operators, banks and other relevant institutions and that from time to time may change.
The COMPANY may use all of the value added Payment Methods or only one or some of them in order for the Products to be sold.
2.2. The Currency to be used for the Payment
2.2.1 The payments to be made within the scope of the Agreement shall be realized by using the currency that has been mutually agreed by the Parties in the Agreement or its annexes.
2.2.2 In the event that the payment is to be made in foreign currency, the selling rate of TCMB (The Central Bank of the Republic of Turkey) in respect of the day in which the payment is being made shall be taken as a basis in the calculation of the payment amount.
2.3. The Right to Put a Hold on the Payment Tool
In case there are doubts of fraudulent or unauthorized use of the payment tool, PAYBYME is entitled to put a hold on the payment tool. In such case, other than for the objective reasons threatening the security PAYBYME shall inform the COMPANY of its reason to put a hold on the payment tool to the extent permitted under the applicable laws (including the Legislation). If the reason for closing the payment tool disappears, PAYBYME shall bring the payment tool into use again or provide a new payment tool.
3.1. PAYBYME hereby agrees to provide COMPANY with the technical infrastructure in order the Services to be sold via the Payment Methods within the scope of this Agreement. To this end, PAYBYME shall cooperate with the banks, GSM operators and/or any other intermediary companies.
3.2. PAYBYME and/or the banks and GSM operators, if needed, has the right to supervise the Product supplied by the COMPANY and/or the content of the channel that the Product is being sold and in case the COMPANY sells illegal, solecistic, prohibited, with high-risk products which were determined by relevant regulatory/supervisor/licensor institutions, Legislation, banks and GSM operators, PAYBYME has the right to stop all system and to promptly terminate this Agreement without any notification and without paying any compensation. In case of such an occurrence, the COMPANY agrees, declares and undertakes that it is the sole responsible party and it shall be under the obligation to compensate PAYBYME’s losses arising from any and all claims including the ones from the third parties promptly and fully in cash upon first request as the direct and single addressee. The COMPANY hereby also agrees, declares and undertakes in advance that in case PAYBYME has been incurred any damages or charges within the scope of this article, PAYBYME has the right to recourse to COMPANY.
3.3. PAYBYME will transfer the amount collected from the customers in respect of the sales performed by using the Payment Methods within the scope of this Agreement to the COMPANY after deducting its own commission in accordance with the income reports provided by either the GSM operators or banks or any and all relevant third parties and it shall not take any responsibility in case the Product is being supplied beforehand yet it is not able to collect the payment. PAYBYME has no obligation in respect of initiating any legal proceeding for the uncollectible amounts and the COMPANY acknowledges this, as well.
3.4. The COMPANY shall notify PAYBYME in written and obtain PAYBYME’s written approval first in respect of any changes to the sales structure relating to the sale of its own Products via the Payment Methods set forth under the Agreement. If due to the structures that have not been approved the banks and/or the GSM operators impose a penalty to PAYBYME, then the COMPANY shall pay such amount immediately fully in cash upon PAYBYME’s first request provided however that PAYBYME’s right to claim for compensation is reserved.
3.5. PAYBYME shall not be liable for the damages and losses incurred by COMPANY and/or third parties due to reasons affecting the collection of the payment from the customers but not arising from PAYBYME such as malfunctions on the infrastructures of banks and/or GSM operators, put of customer’s payment instrument out of service due to unpaid invoice, non-collection of the payment due to insufficient balance or similar reasons and/or similar occasions arising from the customers and/or third parties that causes the customers not to benefit from the Payment Methods. PAYBYME has the right to recourse to the COMPANY for the claims of third parties within the scope of this article.
3.6. PAYBYME has the right to use the logo, commercial name, emblem, trademark and other identification marks owned by the COMPANY for the purpose of promotion and advertisement of the Payment Methods free of charge and without obtaining COMPANY’s approval. The COMPANY shall only use the logos, commercial names and other identification marks of PAYBYME in line with Article 4.9 subject to prior written consent of PAYBYME and the logos and commercial names of the relevant banks and GSM operators shall only be used subject to prior written consent of PAYBYME in the manner as approved and only if they are related to the Payment Methods for the sale of the Products. In case of an occurrence of any losses to be incurred by PAYBYME due to unapproved use within the scope of this article, the COMPANY shall compensate it promptly upon first request and fully in cash.
3.7. In case GSM operators, banks or other third parties that transfer the payment amount from the customers to PAYBYME deducts any amount due to payments that have not been authorized by the customers or for the payments at fault, then PAYBYME is entitled to deduct the same amount from the amount to be paid to the COMPANY subject to the Agreement, as well. In case PAYBYME makes any payment for any amount that have not been authorized by the customers or for the payments at fault, then it has the right to recourse to the COMPANY for such amount.
4. RIGHTS AND OBLIGATIONS OF THE COMPANY
4.1. The COMPANY shall provide accurate and complete information of the content of the channel through which it sells Services via the Payment Methods provided by PAYBYME (e.g. x website, etc.) as well as the qualifications and prices of Services sold through such channels. In addition, COMPANY shall provide any other information on the said channel or the Services to be sold via this channel promptly upon first request of PAYBYME accurately and completely. PAYBYME shall obtain the relevant approvals in respect of such services from the relevant GSM operators and banks and then notify the COMPANY on such.
4.2. Without prior written approval of PAYBYME, the COMPANY shall not use the Payment Methods to be provided by PAYBYME on any channel other than the channels details of which have been notified to PAYBYME in accordance with article 4.1 of the Agreement. The COMPANY shall notify and obtain PAYBYME’s approval in written 30 (thirty) days prior to each of channel or Product change or provision of any new Product. For the avoidance of doubt, such approval shall be asked via e-mail, as well. Unless PAYBYME approves such changes, the COMPANY cannot put such changes into practice. Breach of notification and obtaining approval obligation set forth under this article shall be deemed a material breach of this Agreement by the COMPANY and any and all rights of PAYBYME arising from the Agreement and legislation are reserved.
4.3. The COMPANY hereby agrees, declares, and undertakes that it will inform the customers in respect of any fraud, deceitfulness and other similar problems they may encounter.
4.4. During the course of the activities provided by COMPANY with the help of the provision of Payment Methods by PAYBYME, the COMPANY agrees, declares and undertakes that it shall not make anybody use the Payment Methods in a manner to unconditionally deceive, misguide or trick the customers and/or any and all third parties either negligently or intentionally within or without its knowledge and that it shall not provide benefit for the COMPANY or for any third party by this means. For the avoidance of doubt, within the scope of the provisions set forth hereunder the COMPANY is liable for the behaviors of its employees, directors, consultants, shareholders, sub-contractors, relatives and any and all person who is in relation with the COMPANY.
4.5. The COMPANY is solely responsible for any kind of disputes regarding the Services to be sold via the Payment Methods. The COMPANY agrees and undertakes that it shall be the only addressee and that PAYBYME has no liability in terms of any kind of disputes brought up by the customers and/or third parties (including but not limited to the banks and the GSM operators) regarding the Services or sale of such Services including but not limited to non-transfer of the payment of the Services to the account due to not being able to collect it, objection to the transaction by the customer, reclaim request for the Service by the customer, claim of the customer that the Service is defective, claim regarding the Service that it breaches intellectual property rights of third parties. The COMPANY shall provide all information, document, report, etc. requested for the resolution of such disputes and it shall notify PAYBYME in written on the situation within 5 (five) days at the latest as of the date it has been informed regarding the dispute. Any and all losses to be incurred by PAYBYME within the scope of this article shall be compensated by the COMPANY immediately fully in cash upon first request of PAYBYME.
4.6. The COMPANY agrees and undertakes in advance that it shall be liable for any and all taxation and commercial obligations including but not limited to provision of the Product, transportation and delivery of the Product and issuance of the invoice in respect of the sale price at the time of the transaction without waiting for the collection and transmitting it to the customer which are relating to the sale of Product to be performed by using the Payment Methods and that PAYBYME has no obligations within the scope of this article. PAYBYME shall communicate with the COMPANY regarding any claims, complaints and any other brought up by third parties, institutions and/or agencies with regard to inconvenient activities of the COMPANY within the scope of this article. Any and all losses to be incurred by PAYBYME within the scope of this article shall be compensated by the COMPANY immediately fully in cash upon first request of PAYBYME.
4.7. The COMPANY shall act in line with the rules already established or to be established by the banks, GSM operators and regulatory authorities (MasterCard/Visa, Interbank Card Center, Banking Regulation and Supervision Agency, Information and Communication Technologies Authority, etc.) and other relevant legislation regarding the Payment Methods subject to this Agreement. The COMPANY agrees and declares that PAYBYME is only responsible for the provision of the technical infrastructure for the Payment Methods and for the payment of the COMPANY by means of deducting its own commission in accordance with the income reports provided by either the GSM operators or banks or any and all relevant third parties.
4.8. The COMPANY is under the obligation to inform the customers on the sale price of the Product, payment limits for the Payment Methods, that the payment will be collected from customers’ balances including the VAT and that the customers shall also pay additional charges, if allocable, for purchasing the Product through promotions, advertisements and similar activities to be performed via any and all channels including but not limited to media channels such as television, digital television, internet, radio, open air announcements, electronic or computational medias such as wap, kiosk, mobile phone, satellite, cable, other digital environments, any and all wired or wireless devices regarding the Payment Methods performed during the sale of the Services. The COMPANY is solely responsible for such information to be whole, complete and legible and in accordance with the laws. The COMPANY agrees, declares and undertakes that it shall act in accordance with relevant legislation for any kind of channels including but not limited to the ones mentioned above through which it makes promotions/advertisements/explanations regarding the Products. PAYBYME shall not have any obligation with regard to this.
4.9. Any and all visual, written or oral expressions, logos, images, etc. to be used for the announcements regarding the Payment Methods made whether for advertisement purposes or not and via any and all electronic or computational/analogous broadcasting channels including but not limited to those mentioned in Article 4.8. above (including but not limited to media channels such as television, digital television, internet, radio, open air announcements, electronic or computational medias such as wap, kiosk, mobile phone, satellite, cable, other digital environments, any and all wired or wireless devices) shall be notified to PAYBYME in written at least 10 (ten) business days prior to its publication and a sample of such shall be delivered to PAYBYME and they shall be only used if PAYBYME approves them in written to be used. Within the scope of this article, the COMPANY shall not make any promotions/advertisements, etc. that harms COMPANY’s reputation, dignity. In case PAYBYME does not respond, it shall be deemed as PAYBYME’s disapproval to the promotion/advertisement. The COMPANY shall not use any advertisement material if PAYBYME has not approved them to be used. PAYBYME has the right to reject the approval request for using such visual, written or oral expressions, logos, images, etc. or it has the right to request for changing them. The COMPANY agrees, declares and undertakes that it shall not claim for anything due to PAYBYME’s use of such rights. For the changes to the expressions that PAYBYME has already given consent, the COMPANY shall apply to PAYBYME in written for its approval at least 10 (ten) business days prior to the publication of such change and it shall provide a sample of such change to PAYBYME. COMPANY’s obligation under Article 4.8 and 4.10 shall survive even PAYBYME gives its consent within the scope of this article.
Notwithstanding the foregoing, the COMPANY shall not use PAYBYME’s commercial name, “PayByMe” logo, PAYBYME’s trademarks, www.payby.me domain name or any other identification marks that are owned or used by PAYBYME either for these promotions/announcements or for any other purposes without obtaining PAYBYME’s prior written approval.
4.10. The COMPANY hereby agrees, declares and undertakes in advance that the announcements, advertisements and other statements regarding the Payment Methods made via any kind of channels shall be in compliance with the provisions of Law on the Protection of Consumers numbered 6502, Law on Publications on the Internet and Struggle against the Crimes committed through such Publications numbered 5651 and relevant regulations, Regulation on the Principles and Practice of Commercial Advertisements and Announcements, Regulation on the Consumer Rights in Electronic Communication Sector, Law on Establishment and Broadcasting of Radio and Televisions numbered 6112 and relevant regulations including but not limited to all announcements and communiques of Radio and Television Supreme Council, International Advertisement Practices and Principals (ICC Principles), relevant EU directives, Board of Advertisement’s decisions, laws, Legislation and restrictions determined by the government.
4.11. The COMPANY agrees, declares and undertakes that neither the Products nor the channels through which these Products are being sold breaches the intellectual property rights of any person, these Products or channels are produced or supplied and presented to the customers in accordance with the relevant legislation and it shall be responsible for the defective Products or Products contrary to relevant legislation. The COMPANY shall take all kind of liabilities including without limitation the intellectual property rights of the Products and the channels through which these Products are being sold and the COMPANY agrees, declares and undertakes that it is the sole responsible party and it shall be under the obligation to compensate the losses of PAYBYME arising from any and all claims, actions of third parties promptly and fully in cash upon PAYBYME’s first request.
4.12. PAYBYME owns all kinds of intellectual property rights of the Payment Methods provided to COMPANY under this Agreement. None of the provisions in this Agreement shall be deemed as the transfer of the intellectual property rights owned by PAYBYME to COMPANY.
4.13. The COMPANY shall explicitly express its contact details in order the customers to contact directly with the COMPANY. The COMPANY is under the obligation to inform its customers wholly and correctly on the matters that is mentioned in Article 4.1 such as the Products or the channels through which these are being sold. The COMPANY is solely responsible for any and all claims of the customers within this scope.
4.14. The COMPANY shall inform each of its customers completely that they can purchase Products via the Payment Methods only within the specified limitations; there is the possibility of exceeding such limits and its possible results.
4.15. In case an investigation or proceeding is initiated by GSM operators, banks or any other third party to the detriment of the COMPANY regarding the activities performed by the COMPANY by means of using the Payment Methods hereunder, PAYBYME has the right to retain COMPANY’s payment during such investigation or proceeding earned as of the date of the initiation of the investigation or proceeding until their cessation in favor of the COMPANY to the extent permitted by Legislation. The COMPANY acknowledges this occasion and shall not claim any payment from PAYBYME within the scope of this procedure. In addition, in such case PAYBYME is also entitled to stop the Payment Methods provided under the Agreement. In case the investigation or proceeding results in favor of the COMPANY, the COMPANY shall be entitled to receive its payments retained by PAYBYME and PAYBYME shall continue providing the Payment Methods. For the avoidance of doubt, in case the investigation or proceeding takes more than 3 (three) months, then PAYBYME has the right to unilaterally terminate the Agreement without paying any compensation. In case of such a termination, PAYBYME shall not be liable to pay the retained amount to the COMPANY.
4.16. The COMPANY may only use the Payment Methods and related software in its own business or organization and for the purpose as described in the Agreement.
4.17. If PAYBYME provides updates and upgrades of its Payment Methods and related software, the COMPANY is obliged to install them or have them installed as soon as possible.
4.18. PAYBYME is entitled to introduce technical measures to protect its Payment Methods and related software. If PAYBYME uses technical measures to protect the software, the COMPANY shall not be authorized to remove or avoid this protection.
- INDEMNIFICATION AND PENALTY
5.1. The COMPANY irrevocably agrees, declares and undertakes that in case of breach of any of its obligations set forth hereunder, it shall immediately compensate PAYBYME for any and all losses incurred fully in cash upon PAYBYME’s first request. PAYBYME’s right to recourse to the COMPANY is reserved.
5.2. The COMPANY agrees, declares and undertakes in advance that for each of the breach of this Agreement, it shall immediately pay a penalty amount of 4 – 12 times of last 3 months commission revenue amount which PAYBYME provides payment infrastructure fully in cash upon PAYBYME’s first request. Payment of such penalty amount shall not release the COMPANY from its obligation set forth hereunder.
6.1. PAYBYME shall be entitled to the revenue to be calculated within the scope of revenue sharing method set forth in Annex-II, Annex-III, Annex-IV in return for the provision of the Payment Method’s infrastructure.
6.2. GSM operators, banks or third persons shall share a report with PAYBYME regarding collection amounts of the Products owned by the COMPANY which have been sold via Payment Methods set forth hereunder and collected from the customers. PAYBYME shall structure and share such reports to be prepared by GSM operators, banks or third parties in respect of the collection amounts with the COMPANY. PAYBYME shall transfer COMPANY’s net payment to the bank account of the COMPANY details of which have been set forth in Annex-V after deducting its own payment to be calculated in accordance with Article 6.1 above from such amount as commission at the 15th business day following the day PAYBYME submits the report to the COMPANY.
PAYBYME is not liable within the scope of this article in terms of any delays in the payment to be made to the COMPANY due to reasons attributable to GSM operators, banks or third parties.
6.3. PAYBYME shall issue an invoice to the COMPANY for its own commission within the scope of the revenue sharing method set forth in Annex-II, Annex-III, Annex-IV at the day of reporting as mentioned in Article 6.2 above.
6.4. PAYBYME has the right to amend the revenue sharing method set forth under Annex-II, Annex-III, Annex-IV at any time considering the amendments to be made by GSM operators, banks or other relevant institutions and agencies and such amendments shall be applicable promptly as of the date of the amendment and PAYBYME shall notify such amendment to the COMPANY in written in accordance with the procedure in Article 13 of the Agreement. For the avoidance of doubt, such notification can be made via e-mail, as well and the COMPANY is obliged to send the attachment required to be completed and signed with regard to such amendment within the earliest possible time right after PAYBYME sends it to the COMPANY. Such amendments made by the aforementioned institutions are mandatory and shall be reflected to the COMPANY by PAYBYME. In case the COMPANY objects to or rejects such amendments, then the Parties have the right to promptly terminate the Agreement. In case the COMPANY does not submit its written objection to the amendments within 5 (five) days following PAYBYME’s written notification, it shall be deemed as COMPANY’s approval to the amendments.
6.5. The fees specified in the Agreement are to be calculated based on the reports and collections submitted to PAYBYME by GSM operators and/or banks and PAYBYME shall have no obligation regarding the amounts that cannot be collected by either the banks and/or GSM operators. The COMPANY hereby agrees that PAYBYME has no pursuance or collection obligation with regard thereto.
7. TERM OF THE AGREEMENT
This Agreement shall commence on the Signature Date and shall be effective for a term of 1 (one) year. The Agreement shall be extended for successive 1 (one) year periods with the same terms and conditions, unless either of the Parties terminates the Agreement in writing at least with a thirty (30) days prior notice to the end of the term. For the avoidance of doubt, in case of an occurrence of an extension, PAYBYME has the right to amend Annex-II, Annex-III, Annex-IV pursuant to Article 6.4 above. In such case, PAYBYME shall notify the COMPANY subject to article 13.
- TERMINATION OF THE AGREEMENT
8.1. PAYBYME has the right to promptly terminate the Agreement provided that its right to indemnity is reserved in case the COMPANY breaches any of its obligations set forth hereunder.
8.2. PAYBYME has the right to promptly terminate the Agreement on the grounds of just cause at any time and without any indemnification due to the termination of its agreements with the GSM operators, banks and other financial institutions, GSM operators’ suspension of the payment services based on their right to unilaterally suspend the services.
8.3. PAYBYME has the right to promptly terminate the Agreement in case the COMPANY executes an agreement with another company regarding the Payment Methods during the term of this Agreement, starts working with other companies by an oral/written agreement through itself or its affiliates either directly or indirectly. The right of PAYBYME to claim indemnification for the losses is reserved.
8.4. PAYBYME has the right to immediately terminate the Agreement on the grounds of just cause at any time in case it ascertains that the COMPANY breaches any of its confidentiality obligations arising from the Agreement or that the COMPANY has not taken the required measures in order to secure the confidentiality of the information without paying any indemnification.
8.5. Notwithstanding the above, PAYBYME has the right to unilaterally terminate the Agreement without any reason and without paying any indemnification by a 2 (two) months prior written notice to the COMPANY.
8.6. The COMPANY has the right to unilaterally terminate the Agreement by a 1 (one) month prior written notice to PAYBYME.
8.7. In case the Agreement is terminated within the scope of Article 8, the COMPANY shall promptly cease the use of Payment Methods provided by PAYBYME, stop publishing promotions/advertisements/announcements/explanations, etc. with regard to Payment Methods or PAYBYME from any channels, stop using including but not limited to any and all logos, emblems, commercial names, trademarks, domains or any other identification marks owned by PAYBYME through its own channels, destroy or return to PAYBYME any kind of written/visual material provided by PAYBYME to the COMPANY for the purpose of performance of this Agreement, delete any kind of data of PAYBYME from the computers and/or all kind of virtual environment. In addition, for the annihilation of the information in an electronic environment which is technically impossible to return, the COMPANY shall provide a written confirmation letter to PAYBYME.
If despite of the termination, the COMPANY continues to act incongruent to this article, the COMPANY shall compensate any and all damages incurred by PAYBYME.
For the avoidance of doubt, this article 8.7 shall survive the termination of the Agreement.
9. ASSIGMENT OF THE AGREEMENT
Unless prior written consent from PAYBYME has been obtained, the COMPANY shall not be entitled to transfer its rights and obligations pursuant to this Agreement to third parties. PAYBYME has the right to transfer its obligations arising from this Agreement to a third party at any time provided that it does not harm COMPANY’s rights.
- 10. FORCE MAJEURE
10.1. During the term of this Agreement, the Parties shall not be liable for temporary and perpetual occasions preventing the Parties to perform the duties arising from the Agreement partially or totally which occur beyond the control of the Parties, acts of god, war, fire, flood, strike and quasi force majeure and including but not limited social events officially declared or not such as war, civil war, martial law, embargo, boycott, plundering, riot, civil rebellion, acts of terrorism, and unlawful actions, decisions made by government and/or regulatory agency, obligatory legislative amendments, modifications made by GSM operators and/or banks, faults in internet system and telecom, failures, maintenance and repair works, outages arising from internet service provider and GSM operators, performance obstacles caused by electric cut-outs that may be occurred in telecom, substructure provider and general system.
10.2. The Party exposed to force majeure shall notify the situation to the other Party immediately in writing. The performance of the Parties shall be suspended during the terms of force majeure. The Agreement shall be continued to be in force when force majeure event is over. The obligations of the Party whose rights are not performed also shall be suspended during the terms of force majeure. If force majeure situation continues more than (15) fifteen days, the Parties may evaluate the situation in good faith and make a termination decision jointly or individually.
10.3. None of the Parties shall have the rights to claim for losses due to termination and/or unenforceability of the Agreement or deferment of performance of the acts by the reasons of above mentioned conditions.
- CONFIDENTIALITY
11.1. All kind of financial statement, report, financial and legal information, revenue sharing rates, trade secret or other all kind of information subjected or not to the legal protection and all written and/or oral commercial, fiscal, technical information, clients and market information learned by the Parties from each other during the terms of commercial relationship shall be deemed as “Confidential Information”. The Parties undertake to protect this information in strict confidence, not to release this information to any third parties under no circumstances and not to use it either directly or indirectly other than the commercial relationship purposes between the Parties and not make third parties use the Confidential Information.
11.2. The COMPANY hereby agrees, declares, and undertakes that it will secure the confidentiality and security of sensitive payment data consisting of personal security information relating to payment tools such as password, security question, certificate, encryption key, PIN, card number, expiration date, CVV2 and CVC2 codes that may allow fraud or fictitious transactions to be performed on behalf of the customers in case of capture or any change, take the required measures in this respect and will not store, process, or record any sensitive payment data in its organization other than through communications between terminals and PAYBYME, which are required for the execution of services.
11.3. If the COMPANY experiences any significant security event, including but not limited to any event which could especially endanger the confidentiality of sensitive payment data mentioned above under the Agreement and/or has become aware of such a security event, then the COMPANY will be obliged to notify such event to PAYBYME immediately. Otherwise the COMPANY will be liable for all damages and losses.
11.4. The COMPANY is obliged to conform to all security and confidentiality policies of PAYBYME pursuant to the articles 11.1, 11.2 and 11.3 set forth hereunder.
11.5. If the Agreement is terminated for any reason whatsoever, then the COMPANY will be obliged to return to PAYBYME and/or destroy such Confidential Information that might have been acquired under this Agreement. The COMPANY hereby agrees, declares, and undertakes to submit to PAYBYME a written statement evidencing that the COMPANY has destroyed and/or returned such Confidential Information and that currently it maintains no such confidential information upon request of PAYBYME.
11.6. At any time, PAYBYME has the right to audit whether the COMPANY complies with its obligations under this article, and to ask for submission to it of relevant information and documentation.
11.7. The confidentiality obligations of the Parties shall remain in force in case of termination of this Agreement for any reason.
- SEVERABILITY
If one or more provisions of this Agreement are declared void or are nullified, the remaining provisions of this Agreement shall remain unimpaired. In that event, insofar as is possible, the Parties shall replace the void or nullified provisions by one or more valid provisions, as appropriate, which shall tie in as closely as possible with the Parties’ original intentions.
- AMENDMENTS
13.1. PAYBYME notifies all kinds of modifications in the Agreement to the COMPANY minimum 30 (thirty) days before the modification is put into effect.
13.2. In the notification that will be made pursuant to the article above, the issues shall be included such as the scope and effective date of the modification, the fact that the COMPANY possesses the right to terminate the Agreement up to this date without paying any indemnification, and the fact that the modification will be deemed to have been accepted by the COMPANY in the event that objection is not made within the stipulated period.
13.3. In accordance with the article above, in the event that the COMPANY does not make any objection to the modification in the period stipulated, the modification will be deemed to have been accepted by the COMPANY.
13.4. In cases where the reference exchange rate is applied, the changes that will occur in this respect shall be immediately applicable without making a notification to COMPANY.
13.5. Save for article 13.1 above, any other amendments to the Agreement shall be made only with written amendments to be signed by both Parties.
- NO PARTNERSHIP NO AGENCY
Nothing in this Agreement and no action taken by the Parties pursuant to this Agreement shall constitute, or be deemed to constitute, employer/employee relationship, a partnership, joint venture or other co-operative entity between any of the Parties. Nothing in this Agreement and no action taken by the Parties pursuant to this Agreement shall constitute, or be deemed to constitute, any Party, as the case may be, the agent of any other Party, as the case may be, for any purpose.
15. ENTIRE AGREEMENT
The annexes are an integral part of the Agreement. The Agreement contains all arrangements made at present between the Parties and supersedes any prior correspondence, statements or arrangements between the Parties.
- WAIVER
No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by each Party that is waiving rights or against whom the waiver is claimed. No failure on the part of any Party to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. No waiver of any right, power or remedy or of any breach of any Agreement terms will be deemed to be a waiver of any other right, power or remedy or of any later breach. The failure of any Party to perform its obligations hereunder shall not release any other Party from the performance of its obligations hereunder.
- COUNTERPARTS
This Agreement may be executed and delivered in one or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
- TAXES AND OTHER EXPENSES
Each Party shall equally pay the taxes, charges and duties directly linked to the execution of this Agreement. In case PAYBYME makes any payment on behalf of the COMPANY subject to this article, PAYBYME will invoice such amount to COMPANY.
- NOTIFICATIONS
19.1. All notifications shall be made in writing to the addresses mentioned in the preamble of the Agreement. Each Party shall notify the other regarding any change to such addresses within the earliest possible time. In case such notification is not made, notifications to the addresses mentioned herein shall be deemed to be duly made.
19.2. Save for article 18/3 of Turkish Commercial Code, the Parties may communicate through an electronic environment, via e-mail, facsimile and any other methods in order to expedite the transactions.
19.3. The information and notices to be sent under the Legislation shall be be sent via the methods set forth under articles 19.1 and 19.2 above, if and when required.
- GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement is shall be governed and construed by Turkish law. Any and all disputes arising from this Agreement shall be settled by İstanbul Central (Çağlayan) Courts and İstanbul Central (Çağlayan) Execution Offices.
This Agreement is executed in 2 original copies on the Signing Date.
Annexes:
Annex-I: SERVICE FORM
Annex-II – Annex IV: REVENUE DISTRIBUTION
Annex-V: BANK ACCOUNT INFORMATION
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KLON Ödeme Kuruluşu A.Ş. |
COMPANY |
ANNEX – I
SERVICE FORM
General Information:
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Company Name: |
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Commercial Name: |
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Adress: |
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Phone Number: |
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Fax Number: |
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Tax Registration: |
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Web URL: |
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Partnership Structure: |
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Contact Person (Business): |
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GSM Number: |
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E-mail: |
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Contact Person (Tech.): |
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GSM Number: |
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E-mail: |
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Customer Support Contact Details: |
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Service Information:
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Main Business Area: |
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Service Names: |
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Categories: |
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Pricing Range: |
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Min: |
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Max: |
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COMPANY Bank Account Information
The actual Payout amounts will be paid in the currency/currencies as indicated by the COMPANY and to the corresponding bank accounts as listed below. The currency below to be marked with an * will be used as default currency for Payout amounts due in other currencies.
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* Currency: |
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Name of the bank: |
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City and country of the bank: |
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Account number: |
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Account holder’s name: |
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IBAN number: |
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SWIFT code: |
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Sort code: |
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Currency: |
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Name of the bank: |
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City and country of the bank: |
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Account number: |
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Account holder’s name: |
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IBAN number: |
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SWIFT code: |
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Sort code: |
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Currency: |
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Name of the bank: |
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City and country of the bank: |
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Account number: |
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Account holder’s name: |
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IBAN number: |
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SWIFT code: |
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Sort code: |
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(* Default currency)