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1 MONEYBOOKERS MERCHANT TERMS AND CONDITIONS Version 61 – 20th

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1 MONEYBOOKERS MERCHANT TERMS AND CONDITIONS Version 61 – 20th Powered By Docstoc
					                                                                MONEYBOOKERS
                                                       MERCHANT TERMS AND CONDITIONS
                                                          Version 6.1 – 20th January 2009


1.     Definitions and Interpretation                                      1.2.   Headings are for convenience only and shall not affect the
                                                                                  construction or interpretation of this Agreement.
1.1.   The following terms when used in this Agreement or any
       document referred to herein shall have the following meaning:       1.3.   Unless the contrary intention appears, words in the singular include
                                                                                  the plural and vice versa; words importing the masculine gender
       Agreement means this Agreement between Moneybookers                        include the feminine and neuter and vice versa; references to
       and the Merchant as amended from time to time including the                persons include bodies corporate, unincorporated associations,
       cover pages and any Schedules;                                             partnerships or an authority.
       Business Day means any day other than a Saturday or a               1.4.   Any phrase introduced by the term "included", "including", "in
       Sunday or a public or bank holiday in England;                             particular" or any similar expression will be construed as illustrative
       Confidential Information means any information which is                    only and will not limit the sense of the words preceding that term.
       marked as “Confidential” or “Proprietary” or should be              2.     Scope
       reasonably expected to be confidential having regard to the
       context of disclosure or the nature of the information; without     2.1.   This Agreement contains the terms for the provision of services as
       prejudice to the generality of the foregoing, the terms of this            currently described in clause 4 and such other services as agreed
       Agreement as well as business plans, data, strategies,                     between the parties from time to time.
       methods, customer and client lists, technical specifications,
       transaction data and Customer data shall be deemed                  2.2.   Moneybookers’ general account terms of use (the “Terms of
       confidential;                                                              Use”), available on the Moneybookers Website, as amended from
                                                                                  time to time in accordance with clause 1.1 of said Terms of Use,
       E-Wallet Payment Service means Moneybookers’ e-wallet                      shall form a binding part of this Agreement. If (but only to the
       based payment service through which a Moneybookers                         extent that) any provision of these Standard Merchant Terms and
       account holder can send funds to a recipient using an e-mail               Conditions conflicts with any provision of the Terms of Use, the
       address as the recipient’s identifier (regardless of whether this          former shall prevail, except for clauses 10 of the Terms of Use.
       is facilitated through the use of the Moneybookers Website or
       a payments gateway integrated into the Merchant Website or          3.     Term
       otherwise);                                                         3.1.   The Agreement commences on the date of signature of this
       Gateway Service means any Moneybookers service using a                     Agreement (if signed by the parties on different dates, the later
       payment gateway integrated into (but not necessarily hosted                date) or such other date as specified in this Agreement.
       on) the Merchant Website for receiving payment instructions         3.2.   Subject to earlier termination under clause 16 or under the Terms
       from a customer;                                                           of Use, this Agreement will continue in full force and effect unless
       Manual means any of the technical manuals applicable to the                and until either party terminates by giving the other party at least 3
       Moneybookers Services, including but not limited to the                    week’s written notice.
       Moneybookers Gateway Manual and the Automated                       4.     Description of Services
       Payments Interface Manual, each as amended from time to
       time and published on the Moneybookers Website;                     4.1.   Moneybookers’ E-Wallet Payment Service and Gateway Service
                                                                                  facilitate the execution of payments from a customer to the
       Merchant Account means the Merchant’s registered                           Merchant. Any payment monies collected from customers and
       electronic money account (or several such accounts) held with              received by Moneybookers shall be transferred into the Merchant
       Moneybookers in accordance with Moneybookers’ general                      Account immediately after deduction of any fees due to
       Terms of Use;                                                              Moneybookers.
       Merchant Website means the website operated by the                  4.2.   The Merchant is aware that the receipt of a payment into the
       Merchant (as amended from time to time);                                   Merchant Account does not amount to the receipt of cleared funds.
       Moneybookers Services means any services provided by                       The Merchant remains liable to Moneybookers for the full amount
       Moneybookers under this Agreement, including the E-Wallet                  of the payment and any fees deducted therefrom (the “Reversal
       Payment Service, the Gateway Service and any other service                 Amount”) if the payment is later reversed for any reason. In case
       as agreed between the parties from time to time;                           of such a payment reversal, Moneybookers will first debit the
                                                                                  Merchant Account with the Reversal Amount and any applicable
       Moneybookers Website means the website operated by                         third party chargeback or reversal fee. If Moneybookers is unable
       Moneybookers (as amended from time to time) for the                        to fully recover the Reversal Amount and the applicable third party
       provision of its services, currently accessible at                         chargeback or reversal fee from the Merchant Account (including
       http://www.moneybookers.com, excluding any external                        any monies transferred into it after the payment reversal), it
       websites to which the website points by way of hyperlink or                reserves the right to invoice the Merchant for the unrecovered
       otherwise;                                                                 balance.
       Regulatory Requirements means any law, statute,                     4.3.   Moneybookers reserves the right to suspend, at any time and at its
       regulation, order, judgement, decision, recommendation, rule,              sole discretion, the Merchant Account (or certain functionalities
       policy or guideline passed or issued by parliament,                        thereof such as uploading, receiving, sending and/or withdrawing
       government or any competent court or authority or any                      funds) if transactions are made which Moneybookers in its sole
       payment system (including but not limited to bank payment                  discretion deems to be (i) made in breach of this Agreement or (ii)
       systems, card payment systems such as Visa, MasterCard,                    are suspicious with regards to money laundering, terrorism
       American Express etc, or any other payment, clearing or                    financing, fraud or other illegal activities. Moneybookers will make
       settlement system or similar arrangement that is being used                reasonable efforts to inform the Merchant of any measure unless
       for providing the services hereunder);                                     Moneybookers is prohibited from doing so by law or under an order
                                                                                  from a competent court or authority.
       Reserve means such amount or percentage of the balance of
       the Merchant Account as determined by Moneybookers in               4.4.   The Merchant acknowledges and agrees that the Moneybookers
       accordance with clause 6 for the purpose of securing claims                service operates solely as a payment intermediary and that
       by Moneybookers against the Merchant.                                      Moneybookers (i) under no circumstances functions as a seller,



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       buyer, dealer, middleman, retailer, auctioneer, supplier,             5.8.     Upon commencement of the Agreement and at any time thereafter
       distributor, manufacturer, broker, agent or merchant of any                    for purposes of complying with Regulatory Requirements, the
       product or service being ordered, obtained or procured by any                  Merchant shall provide Moneybookers with such information about
       funds processed through its services; and (ii) makes no                        its business, corporate structure and constitution, shareholders,
       representations or warranties and does not ensure the quality,                 partners, members, directors, key employees or, in the case of a
       safety or legality of any product or service purchased with                    trust, its beneficiaries. In particular, the Merchant shall inform
       funds received through the Moneybookers Services.                              Moneybookers in writing of any changes to its business model or
                                                                                      the goods or services it sells or distributes if such change is or can
4.5.   The Merchant acknowledges and agrees that any dispute                          reasonably expected to be relevant with regards to compliance
       regarding any product or service purchased or procured by                      with Regulatory Requirements. Without applying the liability limits
       any funds requested or received through the Moneybookers                       contained in clauses 13.1 and 13.2, the Merchant shall indemnify
       Services or any transaction involving the Moneybookers                         Moneybookers against all losses arising out of the Merchant’s
       Services is between the sender and receiver of the funds                       failure to notify Moneybookers of any such changes that are
       and/or the supplier and receiver of the goods or services. Any                 relevant for compliance with Regulatory Requirements applicable
       transaction connected with the products and services offered                   to Moneybookers or the Merchant.
       by the Merchant shall only obligate the Merchant.
       Moneybookers shall not be a party to any resulting dispute            5.9.     The Merchant shall clearly disclose on the Merchant Website its
       including but not limited to disputes over performance and                     refund policies regarding the goods and services it offers to
       liability issues relating to the delivery, quality, quantity or use            customers.
       of the products and services offered by the Merchant. Without
       applying the liability restrictions contained in clauses 13.1 and     5.10. The Merchant shall not charge its customers a processing fee,
       13.2 of the main body of the Agreement, the Merchant shall                  markup or other surcharge for making payments through the
       fully indemnify Moneybookers against any claim by third                     Moneybookers Services.
       parties relating to the use of the products and services offered      5.11. The Merchant shall provide its customers with a clear and fair
       and shall reimburse Moneybookers in full for the costs of any               return and refund policy. Upon request, the Merchant shall provide
       legal defence.                                                              to Moneybookers a copy of its return and refund policy and shall
5.     Obligations                                                                 notify Moneybookers of any subsequent change to such policy.

5.1.   Moneybookers shall make available to the Merchant and its             6.       Reserve
       current and prospective customers the Moneybookers                    6.1.     For the purposes of establishing a Reserve, Moneybookers
       Services as specified in this Agreement and as further                         reserves the right to prevent a certain amount of funds from being
       described on the Moneybookers Website.                                         withdrawn from the Merchant Account or used for payments to
5.2.   The Merchant shall open and maintain a Merchant Account by                     third parties. The amount of the Reserve (either expressed as an
       registering as a merchant on the Moneybookers Website. As                      absolute amount or as a percentage of past payments into the
       part of the registration process, the Merchant will have to                    Merchant Account), shall be determined by Moneybookers at any
       accept the general Terms of Use which apply to every                           time in its sole discretion. Moneybookers shall notify the Merchant
       Moneybookers account. These Terms and conditions shall                         of the imposition of a Reserve and its amount as well as any
       form part of the Agreement as set out in clause 2.2.                           increase or reduction of the Reserve without undue delay.

5.3.   The Merchant shall integrate the Moneybookers Services into           6.2.     Without restricting Moneybookers’ discretion under clause 6.1,
       the Merchant Website and operate the same in accordance                        Moneybookers may take into account, amongst others, the
       with the relevant Manuals, as notified to the Merchant from                    following factors when determining the amount of any Reserve:
       time to time.                                                                6.2.1.   The Merchant ceases its business or a substantial part
5.4.   The Merchant grants Moneybookers the right to access the                              thereof;
       Merchant Website for the purpose of conducting manual                        6.2.2.   The Merchant materially alters the nature of its business;
       checks or automated searches in order to investigate the
       accuracy of information contained on the Merchant Website in                 6.2.3.   The Merchant’s business activities carry a higher than
       relation to the Moneybookers Services, provided that (i)                              normal risk of chargebacks or other reversals of costumer
       Moneybookers shall be under no obligation to conduct such                             payments;
       searches or checks and (ii) any such searches shall under no
       circumstances be deemed an approval of any contents of the                   6.2.4.   The Merchant’s overall financial standing;
       Merchant Website.                                                            6.2.5.   The Merchant becomes insolvent or is otherwise unable to
5.5.   The Merchant shall enable the login restriction tools offered in                      pay debts as they fall due;
       the “Merchant Tools” section of the Moneybookers Website                     6.2.6.   Moneybookers receive a disproportionate number of
       for both the Automated Payment Interface and the Merchant                             customer complaints, chargebacks or other payment
       Account login through the Moneybookers Website. The                                   reversals, fines, penalties or other liability related to the
       Merchant shall further restrict any login to its Merchant                             Merchant Account; or
       Account to only one or a range of IP addresses. If the
       Merchant has registered more than one Merchant Account,                      6.2.7.   Moneybookers reasonably believes that the Merchant will
       the foregoing shall apply to all Merchant Accounts.                                   not be able to perform its obligations under this Agreement.

5.6.   Without prejudice to payments prohibited under the Terms of           6.3.     The Merchant agrees to provide Moneybookers, upon reasonable
       Use, the Merchant shall not receive payments as                                request and at the Merchant’s expense, with information about its
       consideration for the delivery of tobacco products, prescription               financial and operational status, including the most recent financial
       or non-prescription drugs, pornographic content or services,                   statements. The Merchant shall also undertake, at its own
       illegal downloads or goods or services infringing intellectual                 expense, any further action (including executing any necessary
       property rights of a third party, or for any other goods or                    documents and registering any form of document reasonably
       services the offering or provision of which is illegal under                   required to establish such form of security as reasonably required
       applicable law.                                                                by Moneybookers).
5.7.   The Merchant shall co-operate with Moneybookers to                    6.4.     If required by Moneybookers, the Merchant shall pay such
       investigate any suspected illegal, fraudulent or improper                      amounts into its Merchant Account as reasonably determined by
       activity.                                                                      Moneybookers 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.



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6.5.   Notwithstanding any of the foregoing, where a Merchant                   Agreement with immediate effect by giving written notice to the
       incurs a negative balance on his Merchant Account or                     Merchant.
       becomes otherwise liable for the repayment of monies, the
       Merchant shall be obliged to make good such negative               10.   Change of Terms and Conditions
       balance and make a corresponding payment to                              This Agreement is subject to change from time to time. Changes
       Moneybookers within 7 days of Moneybookers written request               may be made by mutual agreement between the parties, or by
       or demand for such payment. In respect of overdue payments,              notice from Moneybookers to the Merchant under the following
       Moneybookers has the right to charge interest in the amount              procedure:
       of 4% above the base lending rate of Lloyds TSB Bank per
       year (accruing daily).                                             10.1. Moneybookers shall give the Merchant notice of any proposed
                                                                                change to this Agreement (a “Change Notice”).
7.     Warranties
                                                                          10.2. A Change notice may be given by letter to the current or last
       Each party warrants and represents to the other party that:              known trading address of the Merchant or the Merchant’s
7.1.   it has and will maintain all required rights, powers and                 registered office or by email to any of the emails registered with the
       authorisations (in the case of Moneybookers the FSA                      Merchant Account.
       authorisation) to enter into this Agreement and to fulfil its      10.3. The proposed change shall come into effect on the 60th day after
       obligations hereunder;                                                   the date of the Change Notice, unless the Merchant gives written
7.2.   it will perform its obligations hereunder with reasonable skill          notice to Moneybookers that it objects to the proposed changes,
       and care; and                                                            provided that such notice is given within 15 days of the date of the
                                                                                Change Notice (an “Objection Notice”).
7.3.   it has in place and will maintain adequate facilities (including
       staff training, internal controls and technical equipment) to      10.4. Unless the parties agree otherwise, a Merchant’s Objection Notice
       comply with its data protection and confidentiality obligations          shall be deemed to constitute a notice to terminate this Agreement
       hereunder.                                                               effective on the date immediately before date on which the
                                                                                proposed change would otherwise come into effect under clause
8.     Additional Merchant Warranties                                           10.3.
       The Merchant warrants and represents that:                         11.   Taxes
8.1.   the goods and/or services that are made available to                     It is the Merchant’s responsibility to determine which, if any, taxes
       customers comply with applicable law in any jurisdiction in or           apply to the payments received, and to report and remit the correct
       to which Merchant is making its goods and/or services                    tax to the appropriate tax authority. Moneybookers is not obligated
       available and that the Merchant has at all times all requisite           to determine whether taxes apply, and is not responsible to collect,
       licences and permits in place to engage in the advertising and           report, or remit any taxes arising from any transaction.
       provision of its goods and/or services.
                                                                          12.   Intellectual Property
8.2.   it is not receiving funds in connection with any illegal,
       fraudulent, deceptive or manipulative act or practice and that     12.1. For the duration and the purpose of this Agreement, the parties
       the Merchant is not sending or receiving funds to or from an             grant each other a non-exclusive, worldwide, royalty-free, non-
       illegal source.                                                          transferable licence to copy, use and display any logo, trademark,
                                                                                trade name or other intellectual property owned by or licensed to
9.     Fees                                                                     the other party.
9.1.   The fees for the Moneybookers Services are as set out in the       12.2. Any use, adaptation or amendment of intellectual property (except
       cover pages or the Fee Schedule. Unless otherwise indicated,             for non-material adaptation or amendments necessitated by the
       fees are quoted in Euro.                                                 use for a particular purpose as contemplated by the parties) shall
                                                                                be subject to prior approval by party licensing the intellectual
9.2.   Unless otherwise stated, a chargeback fee of €25 per                     property in question.
       chargeback of credit or debit card transactions applies,
       regardless of whether the chargeback is subsequently               12.3. Except as expressly stated, nothing in this Agreement shall grant
       challenged or reversed. Unless otherwise stated, a                       or be deemed to grant to any party any right, title or interest in any
       chargeback fee of €7 per chargeback of direct debits applies,            logos, trademarks, trade names or other intellectual property
       regardless of whether the chargeback is subsequently                     licensed to that party by the other party.
       challenged or reversed.
                                                                          12.4. In using the other party’s intellectual property (or intellectual
9.3.   Fees are quoted exclusive of Value Added Tax. In case Value              property licensed to that other party by a third party), each party
       Added Tax or any other sales tax is or become chargeable,                shall follow the other party’s reasonable instructions having regard
       Moneybookers will add such tax to the amount payable but                 to the purpose of such use under this Agreement and the
       shall, where required, provide information on the net amount,            jurisdiction in which the other party’s intellectual property is used.
       the amount of tax and the tax rate applied.
                                                                          12.5. Each party warrants and represents that it owns or has the right to
9.4.   Any fee is payable by the Merchant shall be deducted from                use and sub-licence any intellectual property which it uses or
       the Merchant Account balance. If the Merchant Account                    licenses for use to the other party.
       balance is insufficient, or the Merchant Account balance
       becomes negative, Moneybookers reserves the right to               12.6. Moneybookers reserves the right at any time and in its sole
       invoice the Merchant for any shortfall.                                  discretion to require the Merchant by notice in writing to stop
                                                                                displaying, distributing or otherwise making use of the intellectual
9.5.   The fees are subject to change pursuant to clause 10.                    property licensed to Moneybookers by a third party within two
                                                                                Business Days from the date of such notice.
9.6.   Where Moneybookers is unable to deduct any fees or other
       monies payable by the Merchant from the balance of the             12.7. Without applying the liability restrictions contained in clauses 13.1
       Merchant Account Moneybookers shall issue an invoice for                 and 13.2, each party (the “Indemnifying Party”) shall indemnify
       the amount owed. Invoices are payable within 15 days of the              and hold harmless the other party and its employees and directors
       date of the invoice. In case of overdue payments,                        (the “Indemnified Party”) for and against any and all claims,
       Moneybookers reserves the right to (i) charge interest in the            losses, liabilities, costs expenses or damages (including
       amount of 4% above the base lending rate of Lloyds TSB                   reasonable legal fees) incurred by reason of any claim, demand,
       Bank per year (accruing daily); and/or (ii) terminate this               lawsuit or action by a third party (other than an employee or
                                                                                director of the Indemnified Party) resulting from an actual or



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        alleged infringement of any third party intellectual property             13.6.1. Merchant’s hardware, software or internet connection is not
        right in connection with material provided by the Indemnifying                    functioning properly;
        Party.
                                                                                  13.6.2. any suspension or refusal to accept payments which
12.8. The indemnity under clause 12.7 shall only be available if the                      Moneybookers has reason to believe to be made
      Indemnified Party:                                                                  fraudulently or without proper authorisation;
      12.8.1. uses reasonable efforts to notify the Indemnifying Party            13.6.3. the payment instructions received contain incorrect or
              of such claim as early as possible and in writing;                          improperly formatted information; or
      12.8.2. uses reasonable efforts to mitigate the loss or amount              13.6.4. unforeseen      circumstances   preventing     the    proper
              of the claim;                                                               performance despite any reasonable precautions taken by
                                                                                          Moneybookers. Such circumstances may include, but are
      12.8.3. refrains from admitting any liability or settling any claim                 not limited to acts of god, power outages, fire, flood, theft,
              without the prior written consent of the Indemnifying                       equipment      breakdowns,    hacking    attacks,    internal
              Party; and                                                                  mechanical or systems failures as well as downtimes of the
      12.8.4. provides, at its own cost, reasonable co-operation in the                   Moneybookers website.
              defence or settlement of such claim.                          14.     Confidentiality
13.     Liability                                                           14.1. During the term of this Agreement and thereafter, each party shall
13.1. Neither party shall be liable in contract, tort (including                  use and reproduce the other party’s Confidential Information only
      negligence or breach of statutory duty) or otherwise for any                for purposes of this Agreement and only to the extent necessary
      indirect or consequential loss or damage of any kind including              for such purpose and will restrict disclosure of the other party’s
      punitive or exemplary damages or for any loss of profit or loss             Confidential Information to its employees, consultants or
      of contract, loss of goodwill or reputation, loss of opportunity,           independent contractors with a need to know and will not disclose
      loss of revenue or third party loss whether foreseeable or                  the other party’s Confidential Information to any third party without
      otherwise.                                                                  the prior written approval of the other party.

13.2. Subject to clauses 13.3, 13.4 and 13.5 and any other clause           14.2. Notwithstanding the foregoing, it will not be a breach of this
      explicitly excluding the effect of this clause, the aggregate               Agreement for either party to disclose Confidential Information of
      liability of each party in contract, tort, negligence or otherwise          the other party if required to do so under law or in a judicial or
      arising out of or in connection with this Agreement in any                  governmental investigation or proceeding.
      period of 12 months from the commencement date (each a                14.3. The confidentiality obligations shall not apply to information that (i)
      “Contract Year”) or any anniversary thereof shall be limited to             is or becomes public knowledge through no action or fault of the
      the lower of (i) EUR 10,000 or (ii) the total amount of fees                other party; (ii) is known to either party without restriction, prior to
      received by Moneybookers from the Merchant in the previous                  receipt from the other party under this Agreement, from its own
      Contract Year (or, in the first Contract Year, the fees received            independent sources as evidenced by such party’s written records,
      to date).                                                                   and which was not acquired, directly or indirectly, from the other
13.3. Nothing in this Agreement shall operate to exclude or restrict              party; (iii) either party receives from any third party reasonably
      a party’s liability                                                         known by such receiving party to have a legal right to transmit such
                                                                                  information, and not under any obligation to keep such information
      13.3.1. for fraud and fraudulent misrepresentation;                         confidential; and (iv) information independently developed by either
                                                                                  party’s employees or agents provided that either party can show
      13.3.2. for death or personal injury due to negligence;                     that those same employees or agents had no access to the
      13.3.3. for payments pursuant to clauses 4.2, 6.5 and 9;                    Confidential Information received hereunder.

      13.3.4. for remittance payments due to the Merchant subject to        15.     Data Protection
              the provisions of this Agreement;                                     Each party shall process personal data (as defined in the UK Data
      13.3.5. for wilful and malicious misconduct;                                  Protection Act 1998) in accordance with Regulatory Requirements.

      13.3.6. for damage to real or tangible personal property;             16.     Termination

      13.3.7. for a breach of clause 14 (Confidentiality) (subject to       16.1. Without prejudice to termination rights under the Terms of Use,
              clause 13.6); and                                                   Moneybookers may terminate this Agreement immediately:

      13.3.8. to the extent that such exclusion or restriction is                 16.1.1. if the Merchant files a petition for bankruptcy, becomes
              prohibited under applicable law.                                            insolvent, or makes any arrangement or composition with or
                                                                                          assignment for the benefit of its creditors, or a receiver is
13.4. Unless expressly stated otherwise, no indemnity obligation                          appointed for the Merchant or its business, or the Merchant
      under this Agreement shall be subject to the limitations of                         goes into liquidation either voluntarily (otherwise than for
      liability contained in this clause 13.                                              reconstruction or amalgamation) or compulsorily;
13.5. In case of a breach by the Merchant of any of the clauses 5.3               16.1.2. upon the occurrence of a material breach of this Agreement
      to 5.9 (inclusive) or 8:                                                            by the Merchant if such breach is not remedied within five
                                                                                          (5) business days after written notice is received by the
      13.5.1. the liability restrictions of clauses 13.1 and 13.2 shall                   Merchant identifying the matter or circumstances constituting
              not apply;                                                                  the material breach; or
      13.5.2. the Merchant shall indemnify Moneybookers against all
                                                                                  16.1.3. if the Merchant violates or fails to comply with any applicable
              third party claims, losses, damages, fines, penalties,                      law, regulation or any order by a competent court or
              arising out of or in connection with such breach;                           government authority.
          provided always that any contributory negligence on
                                                                            16.2. Any termination under the Terms of Use shall be deemed a
          Moneybookers’ part shall be taken into account so as to                 termination of this Agreement.
          reasonably and proportionately reduce the Merchant’s
          liability under this clause.                                      17.     Assignment, Third Party Rights
13.6. Moneybookers shall not be liable for any of the following:



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17.1. The Merchant may not assign any of its rights under this                  to the Merchant by sending an email to any of the email addresses
      Agreement to a third party without the prior written consent of           registered with the Merchant Account.
      Moneybookers in its sole discretion.
                                                                          21.   Choice of law and forum
17.2. The Merchant may not out-source the performance of any of
      its obligations under this Agreement without the prior written            This Agreement and any legal relationship between the parties
      consent of Moneybookers, such consent not to be                           arising in connection with it shall be governed by and construed in
      unreasonably withheld.                                                    accordance with the laws of England regardless of the venue or
                                                                                jurisdiction in which a dispute is being determined. Each party
17.3. No person who is not a party to this Agreement shall have                 hereby irrevocably submits to the non-exclusive jurisdiction of the
      rights under the Contracts (Rights of Third Parties) Act 1999             English Courts.
      or otherwise to enforce any term of this Agreement.
                                                                          22.   Waiver
18.   Relationship of the parties
                                                                                Any waiver of a right under this Agreement shall only be effective if
      The Merchant and Moneybookers are independent                             agreed or declared in writing. A delay in exercising a right or the
      contractors under this Agreement, and nothing herein will be              non-exercise of a right shall not be deemed a waiver and shall not
      construed to create a partnership, joint venture or agency                prevent a party from exercising that right in the future (subject to
      relationship between them. Neither party has authority to                 the provisions of the Limitations Act 1980).
      enter into agreements of any kind on behalf of the other.
                                                                          23.   Severability
19.   Non-solicitation of employees
                                                                                If any part of this Agreement is found by a court of competent
      The Merchant undertakes that it will not for the term of this             jurisdiction to be invalid, unlawful or unenforceable then such part
      Agreement and a period of six months thereafter on its own                shall be severed from the remainder of the Agreement, which shall
      behalf or on behalf of any person directly or indirectly                  continue to be valid and enforceable to the fullest extent permitted
      canvass, solicit or endeavour to entice away from                         by law.
      Moneybookers or an Associated Company any person who
      has at any time during the term of this Agreement been              24.   Entire Agreement
      employed or engaged by Moneybookers or an Associated                      This Agreement including all Schedules and other documents
      Company. For the purpose of this section, an ‘Associated                  referred to herein and the Terms of Use and all documents referred
      Company’ means any entity that is controlled by, controls or is           to therein, represents the entire agreement of the parties in relation
      under common control, directly or indirectly, with                        to its subject matter. Each party acknowledges that it has entered
      Moneybookers; and ‘control’ of any entity or party means                  into this Agreement in reliance only on the representations,
      ownership of a majority of the issued shares or voting power              warranties, promises and terms contained in this Agreement and,
      of an entity or party or the power to direct or cause the                 save as expressly set out in this Agreement, neither party shall
      direction of the management and policies of an entity or party,           have any liability in respect of any other representation, warranty or
      whether through ownership of voting securities, by contract or            promise made prior to the date of this Agreement unless it was
      otherwise.                                                                made fraudulently.
20.   Notices                                                             25.   Variation
      Any notice to be given under this Agreement must be given in              Subject to clause 1.1. of the Terms of Use and clause 10 above,
      writing and delivered either by hand, first class prepaid post or         no variation or amendment to this Agreement shall be effective
      other recognised delivery service, or by facsimile.                       unless recorded in writing and signed by the duly authorised
      Notwithstanding the foregoing, Moneybookers may give notice               representatives of both parties.




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