Terms and Conditions
TERMS AND CONDITIONS OF USE OF THE KUSHKI PLATFORM
These Terms and Conditions of Use ("T&C’s") constitute a payment acceptance service agreement (“Agreement”) and govern the relationship between the legal or natural person using the Platform (as per further defined) for purposes of selling its products and/or services (“the Client”) and the Kushki Companies (“Kushki”) that are listed herein and those that are incorporated in the future and are part of Kushki. Unless otherwise agreed, the Client shall contract the Services under these T&C’s with the Kushki subsidiary incorporated in the country in which the Client uses the Services, which shall be also subject to the specific terms and conditions by country, that can be accessed as referenced below:
The Client contracts the Services with one or more Kushki Companies, depending on whether it processes its payments in one or more countries where Kushki may have a subsidiary, in such a way that, whether it processes its payments in a sole country, it shall constitute a sole legal relation with the respective Kushki Company. However, if it processes its payments in more than one country where Kushki may have a subsidiary, it creates an independent legal relationship with each Kushki Company in which it processes its payments, having, therefore, varied counterparts.
When affiliating, registering and/or making use of the website, mobile applications, APIs, digital tools and software under Kushki’s ownership (the “Platform”) and/or contracting our Services, the Client agrees in accordance with the scope of this legal agreement. Therefore, the present T&C’s constitute a binding agreement, as well as the total agreement between the Client and Kushki (jointly referred to as the “Parties” or individually as the “Party”.)
In accordance with the above, when entering, making use of the Platform and/or creating an account on the Platform (“Client Account”), the Client expresses and reiterates its consent and acceptance of the present T&C’s.
The terms defined shall be described with the first letter in uppercase and only when they are used with said format is when they shall be interpreted as such. Said definitions will be equally applied in singular or plural.
It will be understood as the entity that acquires or processes payments with Cards that have been authorized by the Brand Holders for that purpose. For the present Agreement's purpose, the acquirer could be Kushki or a third party authorized by the regulators, the Brands or the Applicable Law.“Aggregator Model”:
In this model, the Client may use Kushki’s Services under an aggregation scheme, where funds are collected in a Kushki aggregated account and afterwards, are dispersed on the Client's account or on a third party's account specified by the Client. The chargebacks and reversals are managed through Kushki, unless otherwise agreed with the Client. Under this model, Kushki offsets its commissions, as well as potential Chargebacks and reversals, from the amount to be dispersed periodically to the Client.“Applicable Law”:
It will be the local law applicable to the local entity of Kushki that provides the Services under each Commercial Agreement or Services Agreement, or in its absence, it will be determined pursuant to the rules established in the present T&C’s.“Authority”:
It will be understood as any public or private entity that issues rules, regulations, parameters, or other applicable instructions to services provided by Kushki in the applicable jurisdiction.“Brand Holders”:
It refers to the Card brands (or card schemes) that have their own rules applicable to the acceptance of payments; which the Client acknowledges. The most recognized worldwide are American Express, Diners, Mastercard and Visa. Nonetheless, there are other Card brands that offer the same service.“Cards”:
It refers to all credit, debit and prepaid cards.“Cash–In or On-site collections”:
If applicable, Kushki will provide the cash-in service through different payment networks at its disposal, which could be modified or complemented unilaterally, without the need for the Client’s previous approval. Furthermore, the Provider will be able to modify, unilaterally, the cash-in conditions, including but not limited to rates, conditions, limits, minimum and maximum amounts that may be received through the cash-in service, for which it will be sufficient to notify the Client. Unless otherwise expressly stated, Kushki does not receive cash payments directly or provide services through authorized third parties according to the Applicable Law. Kushki will not be responsible for delays or failures that may occur in the different payment networks or withholdings that are made by third parties or Kushki in accordance with the Applicable Law. Kushki will not be responsible for complying with transfer or payment orders to third parties informed by the Client that correspond to fraudulent operations, and it is the Client’s responsibility to implement all the security measures required for its operation.“Chargeback”:
It will be understood as a mechanism created to dispute those charges applied to a Card that are not recognized by its holder. Among the reasons why the Chargebacks are caused: (i) the Card or payment duplicity, (ii) lack of acknowledging a Transaction, (iii) lack of delivering goods or services, (iv) misleading and dishonest behavior and/or (v) Fraudulent Transactions, among others. Unless otherwise expressly agreed, as a general rule the Client is responsible for the Chargebacks.“Client”:
It will be understood as the merchant, aggregator, or sub-acquirer, accordingly, that contracts the Kushki services for selling goods or providing services to Users and/or sub-affiliate its Related Third Parties.“Commercial Agreement”:
It is the standard Kushki agreement signed by the Client’s proxy or legal representative that is subject to applicable T&C’s.“Dispersion of Funds (Payouts)”:
It refers to the instruction granted by the Client in favor of KUSHKI to pay the amounts collected or transferred by the Client to a bank account that does not belong to the Client. The payout can be made through a transfer-out or Cash-out or other mechanisms that are incorporated into the Platform in the future. Kushki shall provide this service as an agent, that is, following the Client’s instructions and at no point shall receive deposits or accept money from the public. To provide this service, it will be necessary that the Client previously transfers the funds to Kushki or instructs Kushki to use the balance in the Operational Account. If Kushki does not receive instructions for the dispersion, the funds shall be returned to the Client in an appropriate period under the Applicable Law. Kushki will act as a transferor of funds, in accordance with the Client's instructions, as the instructor. Kushki will inform the Client of the process that shall be followed for this purpose. Kushki will not be responsible for delays or failures that may occur at the level of financial entities or third parties that provide fund dispersal services in accordance with the Applicable Law. Kushki will not be responsible for complying with transfer or payment orders to third parties falsely informed by the Client (e.g. wrong bank account number) or that correspond to fraudulent operations, and it is the Client’s responsibility to implement all the security measures required for its operation. In addition, the Client acknowledges that if the third parties to whom Kushki shall disburse the amount are found in any of the restrictive lists, such as OFAC or UN, Kushki will not be responsible for not complying with the dispersion order, or in any case, for the delays that may be generated while these incidents are being clarified.“Fraudulent Transactions”:
it refers to those transactions of which there may be signs of incurring in illegal activities, including activities and operations that are mentioned in the criminal code, money laundering and Terrorism financing regulations and activities established as prohibited by the Applicable Law, Authorities and/or Related Participants, or those transactions that may have an intention or purpose to defraud one of the parties.“Gateway Model”:
In this model, the Client may use Kushki's Services but receive the funds directly on the Client’s account. The Client is the sole responsible party for signing an agreement with the Acquirers and/or processors which will be a separate agreement from the Services Agreement executed with Kushki. This business model is handled through codes directly requested by the Client to the banking or corresponding acquiring entities and processors. The chargebacks and reversals shall be managed by the Client and/or the Acquirer as the case may be. Under this model, Kushki operates as a technological facilitator or Acquirer, as applicable.“Operational Account”:
It will be understood as a group of functionalities related with the operations and use of the Client Account within the Platform, which the Client may access by entering the corresponding user and password credentials thereto to visualize the different information modules and balances accredited to the Client as a result of the processed Transactions in accordance with the T&C’s, Commercial Agreement or Services Agreement, as applicable.“Participant(s)”:
Acquirers, Issuers, Brand Holders, Processors and Aggregators.“Payment Methods”:
It will be understood as the Cards, transfers, on-site collection or “cash in” and other payment methods that may be implemented in the future on the Platform, according to the Applicable Law.“Platform”:
It refers to the web site, mobile applications and digital tools owned by Kushki or its subsidiaries, granted to the Client under a license by virtue of the T&C’s, Commercial Agreements and/or Services Agreements, by which the Client accesses the Services."Related Third Parties":
It refers to the merchant sub-affiliated by the Client that uses the Platform to offer its goods and/or services as permitted by Brand Holders and the Applicable Law.“Services Agreement”:
It refers to the local or regional agreement, other than a Commercial Agreement as defined herein, that may be signed between Kushki and the Client for the Platform’s use to access the Services, including but not limited to Master Services Agreement, Local Services Agreements and Order Forms. In the event of contradiction between the T&C’s and the Services Agreement, the latter shall prevail.“Services”:
It refers to the services, as defined in the Commercial Agreement or the Services Agreement, including present and not-present payment acceptance services, that will be rendered by Kushki to the Client.“Transactions”:
It will be understood as the operation that consists of processing a withdrawal’s request in any form, or a payment request in any form, through any Payment Methods, for the purchase of goods and/or services offered by the Client and/or Related Third Parties to the Users and that are processed using Kushki’s Platform.“Unauthorized Activities”:
It will be understood as Unauthorized Activity any prohibited or illegal activity according to the Applicable Law and including the ones established by (i) the Authorities in the corresponding territory, (ii) the Participants, providers or business with which Kushki maintains a relation for the payment processing and acceptance, (iii) the Brand Holders and/or those activities identified under that category within the Commercial Agreements, Services Agreements, T&C’s and Kushki's policies.“User”:
It will be understood as the end user or consumer that uses the payment solutions provided by Kushki through a Web Site or App to purchase goods or services offered by the Clients or Related Third Parties.
For purposes of this Agreement, (i) “including” or “included” will be understood as “including, but not limited to”, and (ii) the examples are only for illustrative purposes and do not refer particularly to a specific term.
2. PLATFORMS AND SERVICES
These T&C’s describe the rights and responsibilities of the Parties in relation to the Services.
Under the present T&C’s, Kushki grants to the Client, a non-exclusive, temporary, revocable, non-transferable, limited license of an onerous nature for the Platform’s and Service’s used to allow the payment acceptance of the Users and/or Related Third Parties through digital (not-present) or present channels.
2.1 FUNCTIONING OF THE PLATFORM
The Client will make use of the Platform with the purpose of: (i) Creating a Client's Account, (ii) contracting Kushki’s Services, whether in person or through people to whom the Client assigns permits on the Platform. Nevertheless, the Client shall be solely responsible for entering the information and for using the Platform. Therefore, hereby the Client expressly holds harmless Kushki from any responsibility derived from mismanagement or misuse of the information entered on the Platform, including information misuse or leakage regarding personal data and Payment Methods, undertaking to keep Kushki harmless from any action, claim, judgment or procedure of any nature, thus the Client shall pay any expense incurred by Kushki as a consequence of said procedures.
The information entered by the Client on the Platform will be available from mobile or electronic devices that may have an Internet connection.
Notwithstanding the above, it is strictly forbidden that the Client enables any third party to enter and/or make use of the Platform without any previous or express authorization from Kushki. Likewise, it is strictly forbidden to perform any Unauthorized Activity. Any breach of the established above shall be considered as a reason for termination of the Commercial Agreements or Services Agreements and will grant Kushki the power to end the relationship with the Client, without Kushki’s liability and without the need for a judicial or extrajudicial demand for payment. In this case, Kushki will reserve the right to prevent the Client from entering or using the Platform, as well as deleting the information that has been supplied.
The Client undertakes to immediately inform Kushki about any suspicion that its password has been compromised, requesting Kushki the change hereof.
Furthermore, the Client shall cooperate with Kushki in the investigation of the security or risks incidents and suspicious operations of money laundering and financing of terrorism, as well as taking the actions agreed for the resolution of incidents and to minimize the detected risk. If the Client refuses to perform these actions, Kushki will be able to suspend the Services.
2.2 KUSHKI TERMS OF SERVICE
By means of the Platform, the Client may use the Services, using Kushki's API (Application Programming Interface). The Client may find more support information at https://docs.kushki.com, a channel through which the status of the Service, and technical and operational issues of the Service can be reported.
Kushki shall provide the Client with API keys in Test Mode once the corresponding Client verification has been carried out by Kushki, or in Production Mode to activate the account, as appropriate. The Client is responsible for changing the API Keys from Test Mode to Production Mode, once the Client Account has been activated.
The Client is solely responsible for safeguarding the API passwords and keys, in addition to implementing the necessary protocols and security measures to prevent unauthorized access by third parties to the Client Account information.
Kushki may deny the activation of the account in Test or Production Mode, if the Client does not comply with the security requirements established in these T&C's, the information provided is not valid, the Client performs Unauthorized Activities, Fraudulent Transactions are detected or any other cause provided for in these T&C's, in the Commercial Agreement or Service Contract or Kushki's policies.
In case of requiring the blocking or replacement of the API Keys, the Client shall request it from Kushki through the Platform, through the available communications channels.
The Client is solely responsible for the correct use of the Services provided by Kushki. The responsibilities and obligations of the Client include without limitation: (i) configuring the amount that shall be charged to the Users, (ii) making sure of the available Payment Methods that it offers, (iii) considering the expiration dates of the smart links once they are issued, among others.
Without prejudice to what is stated in these T&Cs, as appropriate to each Payment Method, the Services are subject to the following terms:
- Electronic receipt. The Client must generate an electronic receipt for each online transaction or operation carried out by Users through its online sales platform, which shall be generated in accordance with the corresponding banking, commercial, and/or fiscal standards (in the event of invoices) and must contain all the legal requirements applicable to the corresponding territory.
- Equality in conditions of sale of products and/or services. The Client undertakes to respect the applicable rules regarding equal conditions for the sale of products and/or services under the Applicable Law for each Payment Method in all Transactions. In case of non-compliance, the Client shall be solely liable towards the Users.
- Returns and cancellations. For payments made through the different Payment Methods, the following rules apply:
- When derived from transactions, the User requests the cancellation of the Transaction for paid services unrendered or rendered inappropriately or not as agreed, the Client shall formulate a service cancellation note for the actual amount without applying the charge of any commission.
- The cancellation shall be processed the same day the transaction was made. Depending on the time the request is filed, the result of the return may be: (a) Cancellation – void: If the request is made on the same day of the transaction before the cut-off time, depending on the applicable country, the Client shall make the request through the Payment Method by which the transaction was made or through the Platform, in this case the cancellation will be reflected on the same day, or (b) Refund – refund: If the return request is made after the cut-off time, depending on the applicable country, the Client shall request it directly from Kushki through the available support channels and/or by email to email@example.com. The refund process may take up to 45 days to be reflected as a credit note in the Client's account.
- The cut-off times set forth by country to make cancellations will be those informed by Kushki through the Platform.
- Kushki reserves the right not to cancel or refund the amounts or balances corresponding to the sale(s) until the Client has sufficient funds or balances to cover the total amount of the cancellation or refund requested.
- In the case of Card payments, the Client authorizes Kushki to debit from the Client's Operating Account and/or bank account (as defined in the COMMERCIAL COMMISSION, CHARGES, PAYMENT METHOD AND BILLING Section) the amount corresponding to said cancellations and to deposit these amounts in the bank account linked to the card to which the charge was made. Cancellations can only be made up to the amount charged to the card.
- Return or refunds for cancellation of charges. Kushki shall in no case reimburse commissions related to cancellations and/or returns. The refund policies in case of cancellation of charges that the Client has established for the refund of purchases made with cards must be as favorable as the refund policies for purchases made with other forms or Methods of Payment, or in any case, in compliance with the Applicable Law. The Client shall inform or ensure that cardholders and/or account holders are informed of the return or refund policies at the time of purchase of the goods and/or services in the manner established by the Applicable Law.
- Refund of fees for Chargebacks. Kushki shall in no case refund fees related to Chargebacks (as defined in the FRAUDULENT TRANSACTIONS AND CHARGEBACKS section).
- Protection measures. Kushki reserves the right to take the protection measures mentioned in this section, in the event that any of the following cases arise:
- If any statement made by the Client in these T&Cs is false, incorrect or inaccurate;
- If Kushki considers that: 1. The Client is not fulfilling its obligations in accordance with the provisions of these T&Cs. 2. The Client or its subsidiary and/or affiliated companies and/or its Related Third Parties do not provide the goods and/or services that the Users have acquired through the Payment Methods.
- If the Client ceases a significant portion of its operations temporarily or otherwise:
- If, in the opinion of the Kushki risk team, the Client has a high or disproportionate number of disputes, fraud or claims of charges or balances.
- Modify any authorization procedure.
- Modify the frequency of payments.
- Exercise a Chargeback for any transaction disputed by the cardholder.
- Suspend the Agreement without any liability to Kushki.
- Terminate the relationship with the Client and cancel the Client Account immediately without any liability on the part of Kushki and without the need for a judicial declaration.
- Guarantee fund. Subject to the objective analysis of the Kushki risk team, the Client may be required to set up a Reserve or Guarantee to cover Chargebacks, fines, penalties, returns, adjustments or other items. The total amount or the available balance of the Guarantee Fund shall be returned to the Client after (i) 180 days in the case of Mexico or (ii) 120 days for the other countries, after the date on which the respective Transactions were processed or the termination of the Contract, as applicable, and once it is verified that there are no chargebacks, reversals, returns, adjustments, fees, fines or penalties.
If required by Kushki, the Client shall set up a Special Guarantee Fund for a specific Related Third Party The amount of said fund shall be determined by the Client, according to the requirement of the Kushki risk team.
Likewise, the Client accepts that Kushki may increase the Guarantee Fund, if there are increases in transactions, Fraudulent Transactions, Chargebacks, among others, as defined by the Kushki risk team.
In the event that the funds available in the Operating Account are not enough to cover Commissions, Chargebacks, reversals, refunds, fines and penalties, Kushki may deduct them from the Guarantee Fund. Likewise, if the Guarantee Fund is not sufficient, Kushki may discount the amounts of future sales or Operating Accounts of the Client's affiliated companies that they have with Kushki. In any case, Kushki may, without prior notice, offset any monetary obligation that the Client has with Kushki under this Agreement, against the funds that the Client has in his Operating Account. If the obligations are in different currencies, Kushki may convert any of the obligations at a market exchange rate in accordance with the Applicable Law, as part of its payment acceptance activity, for compensation purposes.
Kushki may require other mechanisms to guarantee the fulfillment of the Client's obligations, such as insurance, letters of credit or other applicable mechanisms, which shall be proposed to the Clients under reasonable and objective criteria.
- Client Liability. The Client is solely liable for any guarantee on the product or services purchased by the Users, such as product shipping, their delivery, quality in the provision of services, as well as any other guarantee agreed or promised between the Client and the Users. The Client shall ensure that the data and information provided by the Users is true and reliable. Likewise, the Client shall comply with the consumer protection regulations that are applicable to its Users in each territory. Furthermore, the Client shall be responsible for dealing with all these matters directly with its respective Users, defining its own channels for such purpose.
- Indemnity. The Client hereby releases Kushki from any responsibility, participation or obligation with respect to communications, transactions, interactions, conflicts, litigation, or any form of relationship between the Client or its Related Third Parties and the Users in the acceptance of payments by Payment Methods or payment providers. In this sense, the Client is solely responsible for its interactions and commercial relationship with the Users and undertakes to hold Kushki harmless from any claim arising from this. However, Kushki reserves the right, but not the obligation, to supervise the interactions between the Client and the Users when they are related to or may affect the Services.
- Customer taxes and invoicing. The Client is solely responsible for tax returns, tax receipts, withholding reports, customs matters or the responsibility linked to the contributions that it obtains based on the deposits resulting from its commercial activity. The Client is responsible for hiring external and independent legal advice from Kushki to comply with its applicable tax and legal obligations for the execution of this document and shall keep Kushki harmless for this concept. The Parties declare that at no time Kushki provides advice on customs, exchange or tax matters.
- Transfer of funds abroad. In the event that the Client requests that funds be transferred abroad, and unless expressly agreed in writing to the contrary, Kushki shall make the required arrangements with the foreign exchange market intermediaries for the purchase of foreign currency (if applicable), and shall inform the rate applicable to the Client. The Client accepts that it shall be the only party that assumes the fiscal and exchange risk and the transaction costs. Kushki shall inform the Client about the applicable exchange rate on the respective transactions and shall deliver a copy of the supporting documents of the operation for due control by the Client. All taxes incurred, including the currency outflow tax (ISD in Spanish), when applicable, shall be the exclusive responsibility of the Client.
- Duration. Unless otherwise agreed, this Agreement shall be valid indefinitely.
In the event of a cancellation of a charge that had previously been processed as successful, Kushki shall not be responsible for the damages and/or losses that may be generated as a result. In this sense, the Client shall keep Kushki harmless against any claim arising from said cancellation, which does not have Kushki's gross negligence or willful misconduct as a direct origin.
In addition to the rights of Kushki in accordance with the provisions of the Applicable Law, the protection measures for the purposes of what is established in these T&C’s are the following, which Kushki may carry out with or without prior notice to the Client:
In addition to the foregoing and any right that Kushki has under these T&C's, Kushki is empowered to withhold from the Client the balances due in favor of Kushki (including chargebacks, fines, sanctions, etc.), at any time, under these T&C’s, until the Client has fully settled and/or fulfilled all its obligations and responsibilities with Kushki and/or Participants.
2.3 STATEMENTS AND GENERAL TERMS
To make use of the Platform and/or Kushki Services (as defined in the OPERATION OF THE PLATFORM section) in accordance with these T&C's, the Client must be of legal age and have sufficient legal capacity to accept and give compliance with these T&C's. Kushki does not allow access and/or use of the Platform to minors. Likewise, when making use of the Platform on behalf of a legal entity, the Client states that it has the necessary and sufficient powers to bind its principal under the terms of these T&C's, which have not been revoked to date.
3. MODIFICATIONS AND UPDATES TO THE T&C’s
4. STATEMENT BY KUSHKI
4.1. Kushki companies are incorporated under the Applicable Laws in accordance with the provisions of these T&C's.
4.2. Kushki is not intended to raise funds or receive bank deposits from the public. If agreed, Kushki holds the sums collected in favor of the Client as a payment management mandate.
4.3. When permitted by the Applicable Law and if agreed, Kushki may transfer the sums collected in favor of the Client or third parties at the Client's instruction from the bank or trust accounts it has in each jurisdiction where the Kushki company is incorporated and in which the Customer uses the Services.
4.4. Kushki does not offer or pay any interest or remuneration in relation to the amounts collected on behalf of the Client, if applicable.
4.5. The mandate granted by the Client to Kushki excludes powers to comply with the Client's tax or exchange obligations. The Client is solely responsible for knowing and complying with the applicable law.
4.6. Kushki is not a party to, nor does it have any responsibility for, the sales or service contracts entered between the Client, the Related Third Parties and the Users.
4.7. Kushki does not guarantee the authenticity or legality of the transactions that are processed through its Platform. The risk of fraud due to identity theft of a User, or the illegality of a Transaction due to the activities of the Client and/or the Related Third Parties are entirely assumed by the Client. In any case, Kushki reserves all its rights to suspend or terminate the Services if it is detected that the Platform is being used for any activity contrary to the Applicable Law.
4.8. Kushki makes a payment platform available to the Client so that the Client or its Related Third Parties can market their products or services through electronic commerce sites (e-commerce), applications or physically, in a way that allows Users to pay the price of the goods or services they acquire. For the aforementioned to take place, Kushki's Clients have conferred a mandate so that, in their name and on their behalf, Kushki charges the Users the total amount they pay.
4.9. Kushki processes transactions and makes payment settlements but does not offer banking services. Kushki has all the licenses and authorizations required under the Applicable Law to provide the services agreed in this Agreement.
5.1. CLIENT OBLIGATIONS
5.1.1. To use the Platform in accordance with the provisions of these T&C’s and/or what has been expressly agreed with Kushki.
5.1.2. To comply with the rules of the Brand Holders, Participants and the policies determined by Kushki or another Acquirer in terms of security.
5.1.3. To inform its employees, contractors and/or dependents involved and/or Related Third Parties and to verify compliance with the obligations and requirements established in the Services Agreement and in the rules of the Brand Holders for the correct handling of the Transactions.
5.1.4. If required, the Client shall allow Kushki to properly display the Brand Holders' trademarks on the Client's application or Website, subject to their guidelines and rules.
5.1.5. Unless otherwise provided by law, the Client may not establish minimum amounts of consumption for the acceptance of Cards.
5.1.6. To refrain from redirecting Kushki-provided production credentials to websites or applications other than the one to which they connected initially, unless previously approved by Kushki.
5.1.7. The Client may not sell goods or services through Cards for values higher than those established for sales with other Payment Methods.
5.1.8. The Client undertakes to update and supply at least once a year, and as many times as Kushki reasonably requires, the information and documents in accordance with Kushki's policies and what is established in the DATA CHECK AND VERIFICATION section of these T&C’s. The Client is the sole party responsible for keeping their data up to date.
5.1.9. The Client shall be liable before Kushki or any of the Participants for the actions or omissions of its Related Third Parties.
5.1.10. To operate in accordance with the Applicable Law and comply with the tax, exchange and customs duties derived from the import, export and marketing of the goods or services paid through the Kushki Services.
5.1.11. The Client shall notify Kushki in advance of any change in its operation or imports/exports that may imply that Kushki is responsible for complying with provisions regarding exchange, taxes or other provisions. In any case, the Client shall hold Kushki harmless from any fine or sanction imposed by a corresponding Authority, derived from Kushki's breach of the Applicable Law because of the change of the model by the Client.
5.1.12. To assume the claims presented by its Users in terms of quantity, quality, suitability, safety and delivery of the goods or services sold.
5.1.13. To abide by the regulations, documentation and recommendations that Kushki issues so that its Platform works optimally and safely.
5.2. ADDITIONAL OBLIGATIONS OF THE CLIENT VIS-A-VIS RELATED THIRD PARTIES
If applicable, when offering services to a Related Third Party, the following must be complied with:
5.2.1. The Client shall implement relevant policies and measures related to: (i) Prevention of Money Laundering and Terrorist Financing (AML/TF), (ii) Know Your Customer (“KYC”), (iii) Due Diligence, (iv) Protection of Personal Data and (v) Security Measures to implement or develop on Related Third Parties, Users and their transactions. These policies and measures shall be subject to review by Kushki at any time, for which the Kushki risk, compliance or data privacy and security areas may request modifications in accordance with the Applicable Law, standards established by the Participants or in accordance with the internal policies of Kushki.
5.2.2. The Client shall execute the KYC and/or Due Diligence procedure on the Related Third Parties prior to the affiliation to Kushki. Kushki reserves the right to request the Client: (i) to carry out the KYC and/or Due Diligence procedure on Related Third Parties again and (ii) to provide documents and/or additional information at the request of the risk and/or compliance area of Kushki.
5.2.3. The Client shall guarantee that its Related Third Parties: (i) issue electronic receipts for each transaction carried out through its platform, (ii) respect the prices indicated on its platform, whether for operations in cash, checks or any other payment method; even in the case of special offers, (iii) comply with the information, cancellation and refund requirements in accordance with the Applicable Law and the countries in which it offers its goods and/or services in accordance with the consumer protection regulations, and (iv) comply with the Applicable Law and the regulations of the Brand Owners and Acquirers. The Client shall be responsible for the damages caused and shall hold Kushki harmless if the Related Third Party fails to comply with its obligations set forth herein.
5.2.4. The Client shall be responsible for verifying and guaranteeing that, in no case, the Related Third Parties whose lines of business are not authorized by the Applicable Law or are classified as prohibited or as high-risk businesses by Participants (in which case prior authorization from Kushki shall be required), as established in the List of Prohibited and High-Risk Businesses informed by Kushki, (as updated from time to time) are able to access the Services. The Client acknowledges and agrees that the breach of this obligation may cause irreparable damage to Kushki and shall hold Kushki harmless to the fullest extent permitted by Applicable Law in this regard.
5.2.5. The Client shall supervise and implement security and fraud controls on all Transactions processed through its platform to mitigate fraud and verify that the Related Third Parties comply with the conditions established in these T&C's and the regulations of the Brand Holders, including, but not limited to, AML/TF policies and Applicable Law. The Client shall provide all the support, documentation and information required by Kushki on compliance with the supervision and security controls of all Transactions, to prevent, reverse and/or mitigate any problem identified.
5.2.6. The Client declares that none of its partners, directors, managers, representatives, proxies or employees is a sanctioned person or politically exposed person (PEP), under the terms defined by Kushki's compliance department, who holds public office and/or who are members of the Public Administration. If any of its partners, directors, managers, representatives, proxies or employees become a PEP or are sanctioned during the term of the Services Agreement, the Client shall inform Kushki so that the KYC and Due Diligence can be carried out.
During the affiliation process (onboarding) of a Related Third Party, as well as during the provision of the Services, the Client shall verify and carry out the necessary processes to identify (i) a sanctioned person or a PEP, (ii) those who hold public office and/or who became members of the Public Administration, and thus guarantee the protection of their own reputation, as well as Kushki’s and the other Participants’.
5.2.7. The Client shall use its best efforts to ensure that each Transaction processed on behalf of Related Third Parties is in good faith, and in connection with permitted products or services, to the extent that the value of such transactions is used on the Client's platform.
5.2.8. The Client shall not use and shall make its best efforts to prevent Related Third Parties from using the Platform, directly or indirectly, for any fraudulent or illegal action, or that may interfere in any way with the normal operation of Kushki. The Client shall be responsible for supervising the Transactions of the Related Third Parties to verify compliance with the Applicable Law, the AML/FT policies and the provisions of the Kushki risk and compliance area.
5.2.9. The Client shall notify and provide all the support, documentation and information required by Kushki if any of the Related Third Parties that it affiliates or wishes to affiliate, is under any of the following circumstances:
- If the volume of transactions processed in the last twelve (12) months exceeds the volume or value defined by the Kushki’s risk department or the Brand Holders.
- If the net risk exposure of the Related Third Party exceeds the measure established by the Kushki’s risk department or as determined from time to time.
- If the MCC for the Related Third Party's business activity is on the List of Prohibited and High-Risk Businesses, unless this activity has been priorly approved as permitted by Kushki.
- In any of these cases, Kushki’s risk department reserves the right to request additional documentation and information to determine whether the Client can continue to render or not the Services to such Related Third Parties.
5.2.10. The Client shall be solely responsible for supervising the Related Third Parties and their Transactions, to ensure that the Related Third Parties comply with the provisions of the T&Cs and the Applicable Law. The Client shall make its best efforts to support Kushki in whatever is required and necessary to prevent and control any AML/FT risk or any other fraudulent or criminal activity, as well as for general compliance with the T&Cs and the Applicable Law.
6. CONTRACTING OF SERVICES AND ACCESS TO THE PLATFORM
By accepting these T&Cs, the Client may procure Kushki Services and make use of the Platform, for which the Client shall access the website and create an account (the “Client Account”) by following the instructions within the Platform and providing an email and a password.
Once the Client Account has been created, the Client will be able to access the Platform with its email and password and shall complete its registration by entering the information and/or documentation requested in our database (the "Electronic Registration.")
The administrator of the Client Account will be able to create, edit and delete multiple profiles to use the Client Account (“Profiles”) to access the Services. All activities conducted in and through the Client Account and the Profiles create obligations between Kushki and the Client, and thus the Client will be responsible for the activities that are carried out.
7. PRIVACY AND PROTECTION OF PERSONAL DATA
Kushki will be a data controller or responsible for the treatment of Transactional Data, in accordance with the terms established in the Applicable Law in relation to the protection and processing of personal data.
Transactional Data is understood as any information that is captured in the execution of the transactions carried out on the platform, such as the time of the transaction, the location where it was made, the method of payment that was used, and other related information.
8. AUTHENTICATION AND DATA SECURITY
As authentication elements, the Client will have: (a) an email, and (b) a password. However, Kushki will be able to implement new Client authentication mechanisms, which will be duly notified for its use. With regards to the temporary passwords that will be provided to the Client when creating the Client Account, the Client undertakes to change them the first time they access the Platform. Therefore, by having a new password created by the Client, Kushki is not responsible for their inappropriate use, as Kushki does not know the passwords entered by the Client and/or the Profiles. To change passwords, the Client shall follow the steps specified on the Platform. If the Client does not change the password and access the Platform, the Client releases Kushki from all liability that arises out of its use.
The Client grants its consent and undertakes to comply with the security guidelines established by Kushki in these T&C's that are updated from time to time and/or are communicated by Kushki. Kushki assumes no liability for the incorrect implementation or misuse of security mechanisms by the Client. Kushki will not render the Services if the Client does not implement the necessary procedures and tools to ensure compliance with the necessary security measures, as defined by Kushki’s responsible teams and the industry standards. Kushki will not assume any liability for the incorrect implementation or lack of implementation of the security processes by the Client.
It will be the obligation of both Kushki and the Client, as applicable, to protect all data from: (i) plastic monetary instruments (cards), numerical or alphanumeric references to request payments through the use of cards - whether from national or international Issuing Banks (ii) transfer payments; (iii) cash payments through authorized networks; or (iv) other means of payment enabled on the Platform, or any other information related to cardholders and/or account holders. Unless Kushki is legally required under number 9.2 of section 9. DATA CHECK AND VERIFICATION, any information received during Transactions will not be disclosed, recorded, or otherwise processed.
Considering that Kushki is certified under the Payment Card Industry Data Security Standards ("PCI - DSS" - Payment Card Industry Data Security Standards), the Client must align and comply with such standards, when saving, processing, or transmitting cardholders’ data. The Client will not store CVV2 information at any time. PCI DSS information can be found at the PCI Council Web Page.
If any Participant or the Applicable Law requires the Client to be certified in accordance with the PCI DSS standards, the Client authorizes Kushki to provide support through its current AoC (Attestation of Compliance or Statement of Compliance) and matrix of responsibilities, so that the operation of the Payment Methods to be processed is technically certified. Likewise, the Client grants Kushki its consent to carry out all the activities necessary for the validation of the Client's compliance with the standards and guidelines issued by PCI DSS, in case the Client's certification process for PCI DSS requires it.
In the event of suspicion of unauthorized or illegal use of the Kushki Platform, Kushki may block the transaction.
9. DATA CHECK AND VERIFICATION
When accessing the Platform, using and/or creating a Client Account on the Platform, the Client authorizes Kushki to verify, by itself or by third parties, at any time, the data provided, including but not limited to: credit information, KYC and data related to AML/FT. If the information provided to create and/or use the Client Account is false or inaccurate, Kushki may deny access to the Platform in its sole discretion, as well as remove any content related to the Client.
By using the Platform, the Client accepts its compliance with the following data check and verification policies:
9.1. Verification Kushki may verify the veracity of the information provided by the Client, including data verifications, "Know Your Customer" or "KYC" verifications, and "AML/FT", in accordance with the Applicable Law and/or the guidelines of Kushki. Likewise, it may require additional information as proof of authenticity of the information entered by the Client in the Client Account, as well as other tests that it deems appropriate to verify that all the necessary requirements have been met in accordance with the Applicable Laws regarding money laundering and as per other operating rules and/or regulatory guidelines issued by the Competent Authorities and in which the Participants intervene. For this, the Client undertakes to provide all the information and/or documentation requested by Kushki in accordance with this section (DATA CHECK AND VERIFICATION). The Client also acknowledges and accepts that Kushki, on its own behalf or on behalf of third parties, will be able to audit the Client's Account, at any time, to confirm compliance with its policies. Any audit will be carried out trying to avoid affectations in the regular operations of the Client or Related Third Parties.
9.2. Requirements of the Competent Authorities. The Client expressly authorizes Kushki to share the information provided by the Client to the Authorities and/or Participants, when required, to determine the identity of an individual, including cardholders and/or account holders, in accordance with the provisions of the rules issued by such entities and the Applicable Law.
Except in cases of force majeure or extraordinary circumstances, Kushki will ensure the good and proper functioning of the Platform in accordance with industry standards, to the extent the Client follows the parameters, operational capacity and due computing system requirements, including an adequate Internet connection. Any malfunction of the Platform or any failure generated by causes directly attributable to the Client, User, Internet service providers or third parties will not be Kushki’s responsibility and, therefore, will not be covered by Kushki.
11. COMMERCIAL COMMISSION, CHARGES, PAYMENT METHODS AND BILLING
To access the Platform and use the Services, the Client will pay Kushki a commission for Kushki to carry out the payment transaction processing activities (the “Commission”). Kushki will charge the Commission for the transactions processed, whether authorized or declined, in accordance with the terms agreed with the Client.
For the aggregator model, the commissions will be offset according to the following:
11.1 The amount of the Authorized Transactions on a specific day of operation and before the applicable cut-off time in each jurisdiction, as reported on the Platform will be deposited by Kushki in the registered bank account(s) by the Client within the settlement period agreed with the Client in accordance with the Applicable Law and as per the operation of each Participant or payment provider used to carry out the transaction (including dispersions). The foregoing, provided that the funds accredited to the Client for the payment of a transaction have a completed status in the Operating Account. A successful transaction will be considered completed once Kushki obtains the deposit record of the corresponding transactions by the Participant or payment provider in the Operating Account. The only official means of notification to prove a successful transaction will be through the API.
11.2 The Client accepts and acknowledges that the Commission for the services offered by Kushki will be withheld from the available balance in the Client's Operating Account, when applicable. Kushki will transfer to the Client's bank account the total amount that the Client's Users process, always subtracting the corresponding Commission, therefore, the acceptance of these T&C's corresponds to an express authorization of the Client to make such debit.
11.3 Kushki reserves the right to modify the Commission, for which it shall notify the Client at least 30 days prior to the date on which such modification should become effective, unless the modification is due to (i) a judicial, arbitration, administrative decision or (ii) a change in the commercial conditions between Kushki and the Participants (unless Kushki acts as an Acquirer), in which case the new rates will be in force since Kushki's notification to the Client. In case the Client does not agree with the new rates, the Client will be able to terminate the Agreement earlier without further liability. Kushki will make its reasonable best efforts to notify the Client of any changes in advance.
11.4 Unless otherwise agreed, for fixed fees, the Commission shall be adjusted as of January, according to the consumer price index (IPC, as per its name in Spanish), of the immediately preceding year, or the inflation rate certified by the competent authority in each country, as applicable.
11.5 The Client shall comply with a Minimum Monthly Transaction, (due to its acronym in Spanish, MTM) that generates Commissions for at least USD $1,000 (one thousand US dollars) for Kushki, or its equivalent in local currency, unless otherwise indicated in the Commercial Agreement or Services Agreement. The equivalent in local currency will be informed by Kushki to the Client. If the Client does not reach the MTM, Kushki will charge the difference. The MTM may be modified by Kushki, notifying the Client 30 days beforehand.
11.6 By accepting these T&C's the Client unconditionally and expressly authorizes Kushki to discount, withhold and/or offset payments received in its name and account in the Operating Account and the bank account specified by the Client, without any prior notice or formality, to credit Kushki with the following payment amounts:
- The amount of the Commissions depending on the Service.
- The Value Added Tax, or its equivalent in each country, that shall be paid in relation to any payment.
- Income tax withholdings as determined by the applicable legislation.
- The amount of transactions deposited with subsequent status adjustments or changes (Cancelled, Refunds, Errors);
- The amount of any Chargebacks and the deposits derived from Fraudulent Transactions, including those deposits where there are signs that they derive from possible Fraudulent Transactions.
- Amounts required to create or maintain the guarantee fund in accordance with these T&Cs;
- Amounts required to cover any fine imposed by a Participant, penalty, reversal, refund, Chargeback related to the Services provided by Kushki to the Client.
- MTM amount or the balance; and
- Any other amount that is enforceable under these T&C's and/or the Applicable Law.
11.7 Kushki undertakes to deliver the corresponding invoice for the Commission charged to the Client no later than the first 10 (ten) calendar days of each month, which shall comply with the current tax requirements in the Applicable Law.
11.8 Kushki will have the obligation to transfer the corresponding balance in the Client's Operating Account by means of an interbank transfer to the bank account specified by the Client, except for the balance that has been revoked by any financial institution and/or competent authority, as well as those Chargebacks or Refunds that may be applicable and tax withholdings that shall be applied in accordance with the Applicable Law.
11.9 The Client accepts and acknowledges that all payments processed through the Platform will be settled according to the conditions of each processed Method of Payment.
11.10 In case the amounts provided for in number 11.5 are not paid on time, or if Kushki cannot offset the amounts owed in accordance with the Commercial Agreement, Services Agreement or these T&Cs, the Client will recognize and pay a default interest to Kushki at the maximum rate allowed by applicable law from the date on which Kushki cannot collect those amounts, without the need for a court order.
11.11 If the funds in the Operating Account are insufficient to cover the Commissions, Chargebacks, frauds, claims or other amounts that the Client owes to Kushki under this Agreement, Kushki will give notice to the Client of the amount that shall be transferred to cover the negative balance. The Client shall pay such amount within five (5) calendar days following Kushki’s notice. If the Client does not make the payment within such period, default interests will be recognized at the maximum rate allowed by the Applicable Law as of such date.
The payment conditions for the transactions that are processed under the Gateway model or others will be the agreed in the Commercial Agreement or the Services Agreement signed by the Parties.
12. TECHNICAL SUPPORT
During the term of the relationship with Kushki under these T&Cs, Kushki undertakes to provide technical support and advice to the Client to enable Client to use the Platform. Moreover, Kushki agrees to address any technical failure that prevents or reduces the use of the Platform. In this regard, Kushki agrees to respond to any inquiry or failure report, according to the service levels agreed with the Client after the report is submitted through any channel provided in the Platform. Such report shall contain the date and time, description of the failure, name, e-mail address, and telephone number of the person reporting the failure. Kushki will make its best effort to correct and repair any type of error or failure in the Platform according to applicable service levels. Nevertheless, deadlines may vary according to the type of incident and the level of service set by Kushki for each Client.
13. RIGHTS AND PLATFORM OWNERSHIP
All rights, licenses, titles, and interest over the Platform are and shall remain exclusive property of Kushki. The Platform is protected by Intellectual Property Rights Laws and international treaties. Accordingly, the products and services shall be deemed as subject to copyright laws. Likewise, the Parties hereby acknowledge that the Platform may not be rented, leased, lent, or transferred in any manner whatsoever without prior written authorization of the Platform's rights holder.
These T&C's do not grant the Client the right or license to use the Kushki name and/or any of Kushki's trademarks (whether or not registered before the relevant authority), intellectual property rights, logos, domain names, or any other distinctive brand features. Any remarks, opinions, suggestions, or comments that Client may have regarding the Platform shall be for information purposes only and may or may not be used by Kushki for its benefit in any manner it deems appropriate without generating any obligation with Client.
Pursuant to these T&C's, the Client hereby authorizes Kushki to identify the Client as its client by any means and to use the Client's trademarks, domain names, name or company name solely in connection with these T&C's and the Service provided. Moreover, the Client hereby authorizes the use of its company information and logo in any success story to be developed jointly with Kushki, which will be notified in advance by Kushki's Communications team.
15. CLIENT PROHIBITIONS
It is strictly prohibited to reproduce, modify, alter, distribute any copy, publicly communicate, transform, make changes or any use or exploitation of the Platform other than that authorized hereby by these T&C's, either in whole or in part, by any means. Likewise, it is strictly prohibited to carry out reverse engineering for the purpose of using or altering any of the modules and/or source code and object code of the Platform, without the prior written authorization of Kushki.
All names, logos and trademarks are the property of Kushki, its clients, or content providers and none of such elements may be used for any purpose whatsoever without prior written consent of the owner of such distinctive signs. Unauthorized use of such elements shall be prosecuted under Applicable Law. Moreover, all material contained in the Platform, including but not limited to designs, drawings, computer programs (source code and object code), databases, graphic, audiovisual, photographic material, text, inventions, models, patents, among other intellectual property rights are the sole and exclusive property of Kushki and are protected by copyright laws and international treaties in force.
16. FRAUDULENT TRANSACTIONS AND CHARGEBACKS
16.1. CHARGEBACK PROCEDURE
Kushki complies with applicable national and international regulations on the prevention of transactions with illegal proceeds, including those regulations observed as part of a security strategy, even when not mandated to do so.
Likewise, The Client shall abide by the provisions of these T&C's for processing transactions and shall refrain at all times from carrying out Fraudulent Transactions.
Moreover, The Client is responsible for documenting and responding to chargeback requests and/or cyber fraud that may arise. Kushki at all times shall facilitate the processing service before the corresponding acquiring entities and/or issuer but undertakes NO liability whatsoever for Chargebacks. Therefore, Kushki shall have no obligation whatsoever for payment under this concept. Chargebacks shall be understood as the claims filed by a cardholder before the Issuer for a charge made to his/her Card.
As a general rule, the Client shall be liable for Fraudulent Transactions and/or Chargebacks for up to: (i) 180 business days for Mexico, and (ii) 120 business days for the other countries, following the delivery of product or services to cardholder and/or the effective date of termination of these T&C's and the relationship with the Client. In any event, this term may be adjusted in accordance with Applicable Law or the rules defined by the Participants in each market.
The Client shall be solely responsible for compensating the damages and/or losses that may be caused to cardholders, account holders, Participants, and Issuers for incurring in any Fraudulent Transaction, regardless of any other liability attributable to the Client, its beneficiaries, employees, or any third party for causing or processing such transactions, thereby holding Kushki harmless from any liability arising from the foregoing and agreeing to hold it harmless for any claim arising therefrom. In case that authentication mechanisms are implemented to modify the responsibility of the parties, this shall be expressly defined in the Commercial Agreement or Services Agreement.
The Client authorizes and expressly instructs Kushki not to credit to its Operating Account, and/or transfer to its bank account the equivalent of the amount of the Transactions related to Chargebacks, upon the occurrence of, among others, any of the following events:
- When the Chargeback arises from the unauthorized use of cardholder information or stolen cardholder information, including but not limited to the use of stolen cards.
- When the Transaction is carried out with the unauthorized use of information that is safeguarded by the Client or its Related Third Parties, if applicable.
- When the date, amount, or authorization number contained in the transaction receipt does not match the one provided by Kushki for the relevant Transaction.
- When the transaction receipt presented by the Client or its Related Third Parties contains any data alteration.
- When faced with a cardholder's claim, the Client or the Related Third Parties are unable to prove that they effectively delivered the goods or services resulting from the Transactions.
- In the event of differences in the deposits of the transaction vouchers or in the case of undue or improper payments.
- If the Client does not comply with the processes, measures and security policies agreed by the Parties in this Agreement.
Moreover, The Client hereby authorizes Kushki to share information with Authorities and/or Participants about the Client or its Transactions, provided there are reasonable grounds to determine that the use of the KUSHKI Platform has been for unauthorized or illegal purposes.
16.2. ACTIONS TO DEAL WITH HIGH CHARGEBACKS VOLUMES
In the event that the level of Chargebacks, in terms of volume and value, exceed or, in Kushki's opinion, (i) could potentially exceed the acceptable levels of monthly Chargebacks tolerated by Brand Holders, (ii) or Chargeback rates reach unusual levels, or (iii) Kushki's risk department believes that the Client has not implemented adequate security and fraud controls, Kushki may: (i) require the implementation or additional fraud prevention controls, such as 3DS, or as determined by Kushki's risk department, (ii) or suspend the processing of new Transactions for a particular Related Third-Party until the Client and the Related Third-Party have taken appropriate corrective measures in their respective systems, and Kushki has verified and accepted them and/or until acceptable levels are normalized. Furthermore, The Client shall hold Kushki harmless in any such respect.
17. GROUNDS FOR TERMINATION
This Agreement shall terminate for any of the following causes:
17.1 Mutual agreement of the parties;
17.2 Total or partial breach of any of the obligations agreed upon in this Agreement that affects the development of this Agreement, which is not cured within ten (10) business days following the notice given to the party in breach, or which cannot be cured;
17.3 Unless expressly agreed otherwise, unilaterally, by either party, with at least 30 (thirty) calendar day prior notice to the effective date of termination;
17.4 By the Client, if it does not agree with the new rates unilaterally adjusted by Kushki, that arises out of a change in the commercial conditions with the Participants.
17.5 Kushki may also terminate this Agreement unilaterally and immediately, if so, requested by any Participant. In this event, Kushki and the Client shall attempt to find a solution in good faith and in any case, Kushki shall have no liability whatsoever.
17.6 Kushki may terminate the Agreement at any time, and without further liability, if based on information received it concludes that reputational, legal, compliance, or other risks exist that prevent it from continuing to provide Services to the Client or Related Third Parties.
In the event of early termination, the outstanding obligations of both the Client and Kushki shall survive. This includes, but is not limited to, obligations relating to Chargebacks and debts, Fraudulent Transactions, confidentiality, general duties against liabilities and any other events set forth in these T&C's.
18. SUSPENSION OF THE SERVICE OR AGREEMENT
Without prejudice to the grounds for termination set out in Section 18, Kushki at its sole discretion reserves the right to suspend the Services and/or the Agreement with the Client, or if applicable, a specific Related Third Party, if it determines or has reasonable grounds to consider a breach or future breach of the conditions and obligations set out in these T&Cs, which is not resolved by the Client. In this case, Kushki will follow the following procedure:
18.1 Kushki shall notify the Client of the decision to suspend the Services, and the grounds for non-compliance or possible non-compliance that support that decision.
18.2 Within the term established by Kushki in the communication, the Client shall provide a response to Kushki, describing the corrective actions and the implementation dates.
18.3 Upon receipt of such response, the Parties shall cooperate in good faith to find a prompt solution.
If requested by a Participant, Kushki may suspend the Services without liability, for which a single notification will suffice.
The Client agrees to protect and keep confidential and not to disclose to any third party any Confidential Information (as defined hereinbelow) received from Kushki or obtained from the Platform, its related companies, agents, or representatives or otherwise discovered by the Client in connection with the use of the Platform and/or the Client Account, if any.
For the purposes of these T&C's, "Confidential Information" shall mean all information that is not publicly known and that is used, developed, or obtained by Kushki and/or its related companies, agents, representatives or in any other way, as well as that which is evidently confidential to a technician in the matter, based on previously available information, which may be disclosed only as provided in the T&C's and/or in the Applicable Law. Confidential Information includes but is not limited to: (i) information, procedures, and data obtained and/or developed by Kushki, concerning or relating to Kushki's business or affairs; (ii) products or services; (iii) costs and pricing structures; (iv) analyses; (v) business and accounting methods; (vi) all written, graphic, electromagnetic information, including but not limited to, technical information, source codes, documentation and other artifacts produced and developed by Kushki; (vii) software, including operating systems, applications and programming listings; (viii) organizational charts, manuals and documentation; (ix) all production methods, processes, technology, and trade secrets and market projects; (x) names of shareholders, current or investment partners; and (xi) all other similar and related information, in any form.
Likewise, the Client undertakes to use the Confidential Information only for the purposes of fulfilling its obligations under these T&Cs. To maintain such a confidentiality framework, the Client agrees to take such security measures as it deems necessary and reasonable, including, at a minimum, those it uses to protect its own confidential information. The Client shall adopt the necessary technical and organizational measures to guarantee the security and confidentiality of the Confidential Information, to avoid its modification, adulteration, loss, consultation, or unauthorized use, and that allow detecting deviations, either intentional or not, of Confidential Information, whether the risks come from human action or from the technical means used.
The Client may disclose such Confidential Information solely and exclusively to personnel who need to know such information to fulfill their obligations under the provisions of these T&Cs. Notwithstanding the foregoing, the Client shall remain responsible for the use that its personnel make of the Confidential Information and shall be liable to Kushki for any damage or harm that may arise because of the disclosure of such information. Also, the Client declares to know the penalties incurred by a person for disclosure of secrets, in accordance with the provisions of the Applicable Law.
Hereby the Client undertakes to abide by the provisions contained in this Section, even after the conclusion of the contractual relationship or of any nature with Kushki. The obligation not to disclose any information shall survive for a period of five (5) years following the termination of the contractual relationship or the relationship of any nature with Kushki.
20. DISCLOSURE AND USE OF MESSAGES AND COMMUNICATIONS
The material sent to the Platform by Clients is not confidential, except as expressly stated in the Confidential Information section. Kushki shall not be liable for its subsequent use or disclosure. All communications and other materials (including, but not limited to, unsolicited ideas, suggestions, or materials) sent to the Platform or to Kushki, by any means, shall become the sole and exclusive property of Kushki, and may be used by Kushki for any purpose, including trade, without compensation.
21. KUSHKI DISCLAIMER
Kushki does not warrant or represent that the Client's use of the Platform will be uninterrupted or error-free. The Platform may eventually be unavailable because of technical or technological failures or circumstances beyond Kushki's control. Kushki shall make its best efforts to ensure that in the event of any failure, interruption, or other unforeseen event related to the use of the Platform or Services, it will be resolved promptly and to the Client's satisfaction. However, the Clients, Third Parties, and/or the Users shall not make Kushki liable for or collect any damages or losses caused by such failures.
Kushki does not warrant that the Service will be free from loss, corruption, attack, virus, interference, hacking, entry, or other security alteration; and the Client waives any and all liability to Kushki therewith. In any event, Kushki will endeavor to apply the best industry practices for the provision of the Services.
The information provided by the Client regarding bank accounts must be truthful and accurate. Kushki will only deposit balances to the bank account provided by the Client and shall not be liable if the account information provided is incorrect.
If a payment is not deposited to the Operating Account due to the payment provider or any third-party fault, Kushki shall notify the Client as soon as the incident is detected. Kushki shall not be liable for any time, delays, third party defaults, damages, or losses incurred during this process.
22. AUDIT LAW
Kushki reserves the right to audit the Client. Such audits shall be carried out by Kushki personnel or independent auditors selected by Kushki, who may have access to The Client's premises, personnel, and relevant information and records to verify:
22.1 The Client’s compliance with this Agreement, the rules of the Trademark Holders and the Applicable Law, especially, but not limited to, with respect to AML/TF.
22.2 Compliance with the Due Diligence procedure to be performed on Related Third Parties.
22.3 Compliance with the KYC procedure to be performed on Related Third Parties.
22.4 Compliance with the Client's risk and fraud prevention processes and controls over Related Third Parties.
These T&Cs are effective as of their publication and shall remain in force for as long as there is a relationship between the Parties. The Client hereby agrees that by using the Platform and the Services it accepts these T&Cs and agrees to abide by them.
Any clarification or complaint regarding these T&C's shall be notified by the Client to the Kushki company with which the Client has contracted the Services, through the communication channels provided by Kushki and duly notified to the Client.
Likewise, notifications made by the Client to Kushki shall also be sent to firstname.lastname@example.org
The Client hereby acknowledges that legally required notices and any other information related to the rights and obligations resulting from these T&C's may be sent electronically by Kushki, and that electronic acceptance of the T&C's, Services Agreements, Commercial Agreements, and other agreements shall have the same binding effect as if executed with handwritten signature.
Kushki shall notify the Client through the Platform and/or to the e-mail address registered in the Client Account.
Should the Client breach any of the obligations of these T&C's, as well as of the Applicable Law and/or upon request of the Participant, Kushki may suspend access to the Platform and/or close the Client Account; without prejudice to the legal actions available to Kushki if the Client’s conduct causes any damage to Kushki.
The Client agrees to hold Kushki harmless for any claim, complaint, lawsuit, legal action or proceeding of any kind resulting from its breach and shall indemnify Kushki for all expenses incurred in its defense, including but not limited to attorneys' fees, as well as any type of compensation paid by Kushki.
26. APPLICABLE LAW
Unless otherwise expressly agreed in writing, the following rules shall apply for determining the Applicable Law and the competent Authority or Tribunal in case of dispute resolution:
- In the event that the Client contracts the Services with a single Kushki entity, Applicable Law and Competent Authority shall be that set forth in the country-specific section of the country where the Kushki entity is domiciled and with which the Client has contracted the Services.
- In case the Client contracted the Services with several Kushki entities, the Applicable Law and Competent Authority shall be determined by the country of the domicile of the Kushki entity with which the dispute arises.
- In the event that the Client contracted services with several Kushki entities and there are several disputes arising or not from the same event, the Applicable Law and Competent Authority shall be determined for each dispute by the country of the domicile of the Kushki entity with which the dispute arises.
These T&C’s are governed by the law of the jurisdiction of Kushki's registered offices as indicated in the initial section of these T&C's.
27. DISPUTE RESOLUTION
Unless otherwise expressly agreed in writing, the Parties irrevocably agree that, in the event of a dispute between them by virtue or because of this Agreement, they shall make their best efforts to seek and find a solution through an out-of-court settlement process. If after 30 calendar days from the notice of the beginning of the settlement process, the dispute is not resolved, the Parties freely and voluntarily agree to submit the dispute to the competent courts, in accordance with the Applicable Law.
28. LIMITATION OF LIABILITY
Except as expressly agreed to the contrary, and to the fullest extent permitted by the Applicable Law, Kushki's contractual liability shall be limited to consequential, quantifiable, foreseeable, and effectively proven material damages directly attributable to Kushki's actions or omissions.
The Client agrees that in no case shall Kushki, its shareholders or employees be liable for loss of profit, loss of business opportunities, reputational damages, incidental damages, punitive damages, indirect damages, moral damages, or similar damages.
Kushki shall not be liable for: (i) any information entered into the Platform by the Client and the Users, including personal data and Payment Methods and their use; (ii) any damage caused to Cardholders, Account Holders, Issuers and Brand Holders as a result of a Fraudulent or Irregular Transaction, regardless of any other liability that may be attributable to the Client, its subordinates, employees or any third party for causing or processing such transactions; (iii) the improper implementation or misuse of the security mechanisms and/or the Client's decision to implement only its security and fraud prevention mechanisms, (iv) any review, verification and implementation of the procedure to (a) comply with the AML/TF requirements whencontracting and providing services to third parties, and (b) prevent any activity prohibited by Brand Holders or the Applicable Law. The Client hereby expressly releases Kushki from any liability arising from the foregoing, and shall hold Kushki harmless from any claim, except when the damages caused are directly and exclusively attributed to a Kushki's gross negligence or willful misconduct in respect of Kushki's express obligations under this Agreement.
For this purpose, it is agreed that, if applicable, (i) the Client shall be solely responsible for affiliating Related Third Parties so that Users can access the Services. The Client expressly agrees to hold Kushki and its directors, agents, employees, shareholders and affiliates harmless from any claim, loss, damage, injury, fine, interest and/or expense (including, but not limited to, attorney's fees) resulting from: (a) any damage caused directly or indirectly by the provision of the Client's and/or Related Third Parties’ Services to Users or third parties and/or any violation of the responsibilities and obligations set forth in this Agreement, including, but not limited to, any violation of Kushki's policies in relation to the Services provided to the Client by Kushki, (b) any illegal or inappropriate use of the Services, (c) any infringement to an intellectual or industrial property right, and (e) any violation or breach of the Applicable Law.
The Parties agree that Kushki's liability shall be limited to direct damages and in no case shall these damages exceed the amount paid by the Client for the Services in the last three (3) months before the month when the damage is caused. This limitation of liability shall not apply in cases where damages result directly and exclusively from actions or omissions arising out of Kushki's gross negligence or willful misconduct.
29. ETHICAL CONDUCT AND ANTI-CORRUPTION STANDARDS
The Parties agree to implement internal control mechanisms to prevent acts of corruption in any negotiation. In accordance with the foregoing, the Parties agree not to receive or offer, directly or indirectly, from and to the employees, managers, or subordinates of the other party: (i) amounts of money, (ii) any valuable object, or (iii) any other benefit or profit, in exchange for: (a) performing, (b) omitting, (c) or delaying any act in connection with their duties.
The Parties represent and warrant that they and their officers, employees, directors or, to the best of their knowledge, subcontractors comply with the Applicable Law, especially with anti-corruption regulations and local or international AML/TF regulations, or those modifying, repealing, regulating or developing such regulations, as well as with any domestic and international regulation on prevention of fraud, bribery, corruption, money laundering and terrorism, as applicable. The Parties also represent and warrant that neither they nor their officers, employees, directors or subcontractors are subject to investigations, charges or proceedings for violations of any anti-corruption or AML/TF regulation and that they have not been subject to criminal, disciplinary or contractual sanctions resulting from violations of that kind.
The Parties agree to comply with any anti-corruption law and any law on criminal liability of legal entities, and to actively cooperate in the prevention of the crimes defined therein. The Parties further state that any violation of these laws constitutes a breach of contract, which gives the non-breaching party the exclusive right to terminate the Agreement with cause.
The Parties also agree to inform each other of any notification related to an investigation, procedure, sanction or similar process brought against either Party or any of its officers, employees, directors or subcontractors, within two (2) business days of the date the relevant Party becomes aware of the notification. For this purpose, the Client shall notify Kushki through the reporting channel on KUSHKI website.
30. FUNDING SOURCE DECLARATION.
The Parties state that their income comes from legal activities that are not listed for AML/TF control or managed by a domestic or foreign authority. Therefore, the Parties shall be liable with each other for any damage caused because of this declaration. Based on the foregoing, the inclusion of either Party in the list of the Office of Foreign Assets Control (OFAC) issued by the United States Treasury Department, the United Nations list, the United States list of terrorists, the European Union list of persons classified as terrorists, the European Union list of terrorist organizations and any other restrictive or binding public list on money laundering and terrorist financing matters shall be reasonable cause of termination by either Party.
31. AUTHORIZATION OF CONSULTATION AND REPORTING TO RISK BUREAUS.
To the fullest extent permitted by the Applicable Law, the Client expressly and irrevocably authorizes Kushki to consult and report to any credit bureau, information or central risk agency, all information on its credit behavior, management of bank accounts, credit cards and in general any information related to the performance of its obligations, assets, liabilities and debts, especially the existence of any unpaid past-due debt or inappropriate use of the services derived from the commercial relationship between the Parties. This means that the performance or non-performance of its obligations shall be reflected in such database, which contains all of the data on its financial behavior. By virtue of this authorization, Kushki, its directors, senior management, officers and/or employees are expressly authorized to use such information to analyze potential credit risks, and to use it, transfer it or hand it over to the competent authorities, oversight bodies, credit bureaus and other legal or regulatory institutions or persons authorized to have it. The information reflecting the Client's non-compliance is based on the date the Client pays its due debts, considering the relevant expiration periods.
32. OTHER PROVISIONS
Kushki, at its sole discretion, reserves the right to: (i) modify these T&C's; (ii) follow up and delete the information provided by the visitors of the Platform; and (iii) limit or cancel the availability of the Platform, at any time, without notice and at Kushki's sole discretion. If any term, condition or provision in these T&C’s is held to be illegal, invalid, void or otherwise unenforceable, the validity and enforceability of the other provisions shall not be affected or impaired in any way. This Agreement constitutes all arrangements between the Client and Kushki.
By accepting these T&C's, the Client agrees to comply with all the provisions herein.
I have read, understood, and hereby accept these T&C’s.