(f) Virtual Card Interchange Fees. Unless otherwise set out in an applicable Order Form, and where applicable, we will either credit you the Virtual Card Interchange Fees or invoice you for the difference between your Fee listed in the applicable Order Form and the Virtual Card Interchange Fees. For the avoidance of doubt, we will invoice you for the Virtual Card Interchange Fees associated with any Purchases subsequently Accepted for Refund and returned to you via your PSP. 

4.3 Set Off, Debit, and Invoice. We may: (i) set off against any amounts we owe you under each Order Form all amounts you owe us under such Order Form (including the Fee, any Refund Amounts, Customer Payments, Unauthorized Capture Amounts, Virtual Card Interchange Fees, as applicable), (ii) debit your bank account for the amounts owed to us under each Order Form in accordance with any applicable Debit Authorization, (iii) collect or set off amounts owed to us under an applicable Order Form from funds that we hold in Reserve under such Order Form, or (iv) invoice you for any amounts you owe us under any Order Form (including the Fee, any Refund Amounts, Customer Payments, Unauthorized Capture Amounts, Virtual Card Interchange Fees, as applicable) and any amounts for which we are unsuccessful in debiting your account pursuant to any Debit Authorization.

4.4 Taxes

• (i) Taxes on Merchant Sales. You have sole responsibility and liability for determining, collecting and remitting all Taxes that apply to your sales of products and services and any payments received or made in connection with your use of the Services, and we are not liable for any such obligations. In the event a Tax Authority assesses any such of your Taxes on us, you agree to indemnify us against such Taxes and any related expenses or costs.
• (ii) Taxes on Afterpay Fees. Fees payable by you to us pursuant to this Agreement are exclusive of any Taxes. You agree to pay any Taxes (other than our income Taxes) imposed in connection with the Fees or your use of the Services, unless you provide us with documentation required under Applicable Law to establish such Taxes are not required to be charged. Any such Taxes will be calculated by us, and presented to you as required under Applicable Law, for payment to us.
• (iii) Withholding Taxes. If we are required under Applicable Law to withhold any Taxes, we may deduct such Taxes from any amounts otherwise owed to you and must remit such Taxes to the appropriate Tax Authority. Any withheld amounts will be treated as having been paid for all purposes hereunder and we will not increase any payment to you. 
• (iv) Tax Reporting. We may be obligated under Applicable Law to report certain information to you and/or Tax Authorities (“Tax Reporting Information”) hereunder. You agree to provide us with the necessary Tax related information and forms to complete any applicable Tax Reporting Information or as otherwise reasonably necessary, and to recertify such information as required by Applicable Law. We will report to the applicable Tax Authority the Tax Reporting Information to the extent required by Applicable Law.

5. Obligations in Respect of Returns and Refunds

• 5.1 Returns and Refunds. Your policies and Customer agreements must comply with Applicable Law. You must (i) consider and process any Customer’s request for Return in good faith and in accordance with your policies, and (ii) not treat Purchases differently than any other purchases with respect to accepting Goods for a Refund, exchange, repair or store credit.
• 5.2 General Requirements. Subject to this Section 5, if you accept Goods for Refund (“Accepted for Refund”), then any Refund Amount due in relation to the Return is owed by you to us and not the Customer; and must be refunded via the payment method used for the associated Purchase. 
• (i) Direct API Integration. Within three (3) Business Days of your receipt of returned Goods, as you define receipt under your internal policies and in accordance with Applicable Law, you must inform us of the Return and the Refund Amount via the Merchant Hub or the associated API. We reserve the right to hold you liable for the Purchase Amount associated with the Goods Accepted for Refund if they are refunded via another tender type. When you agree to provide a Customer with a Refund, you will be liable to us for the Refund Amount on the applicable Payment Date, and we may recover those sums in accordance with Section 4 (or, where we have not yet paid the Purchase Amount to you, by deducting the Refund Amount from the Purchase Amount relating to those Goods). We will then cancel any applicable future payments due by the Customer to us and refund to the Customer any applicable amounts paid to us. 
• (ii) Virtual Card. Within three (3) Business Days of your receipt of returned Goods, as you define receipt under your internal policies and in accordance with Applicable Law, you must process a refund to the applicable Virtual Card of the associated Purchase(s). All Purchases made using a Virtual Card that are Accepted for Refund (in whole or in part) must be refunded via the same applicable Virtual Card. Unless we direct you to do so, we will not accept or process a Refund Amount processed via the Merchant Hub or Direct API Integration for Purchases made using a Virtual Card. We reserve the right to hold you liable for the Refund Amounts associated with the Goods Accepted for Refund if they are refunded via any payment method or processed via any method except for the applicable Virtual Card (“Non-Card Refunds”). When you agree to provide a Customer with a Refund, you will be liable to us for the Refund Amount. We will then cancel any future payments due by such Customer to us and/or refund to such Customer any amounts paid to us. If you process a refund amount to a Virtual Card that has no associated Purchase, we reserve the right to hold you liable for any disputed amounts raised by a Customer in relation to such Refund (each an “Unauthorized Refund”).

5.3 Processing of Refunds. We have no liability to you for Returns processed more than one hundred and twenty (120) days after the date on which Approval Confirmation was provided or for Returns processed more than sixty (60) days after the termination of the applicable Order Form. You must deal directly with the Customer with respect to such Returns and associated Refunds and process such Refunds via another tender type. Without limiting this Section, any assistance we may provide to you to effect payments to Customers for any Refunds for such Goods, including providing assistance outside of the time period as stated in this Section, is at our sole discretion. For the avoidance of doubt, our rights under Section 4.3 of the Scheme Rules continue in relation to Customer Payments, and all Refunds approved by you, after termination.

6. Confidentiality and Data Protection

• 6.1 Except as permitted or required to fulfill its obligations pursuant to this Agreement, neither Party may use or disclose any of the other Party’s Confidential Information.
• 6.2 Each Party may disclose the Confidential Information of the other Party: (i) when required to do so by Applicable Law or at the request of any regulatory authority of competent jurisdiction or registered stock exchange offering either Party’s securities; (ii) to a director, officer, employee, agent, contractor, professional adviser, investor or financing source (or potential investor or financing source), or Affiliate of the first Party whose duties reasonably require such disclosure. With respect to Confidential Information of ours provided to you, you may use such information solely to facilitate a Purchase. With respect to Confidential Information of yours provided in connection with a specific Purchase, we may use such information regarding a specific Purchase to process the specific transaction, to service Customer accounts, or as otherwise provided under an applicable Afterpay Group Affiliate’s privacy policies in each applicable jurisdiction. 
• 6.3 Each Party must (i) take all reasonable steps to ensure that no Confidential Information of the other Party is used, directly or indirectly, in any way that is detrimental or adverse to the other Party; (ii) ensure that each person to whom any Confidential Information of the other Party must be, or has been, disclosed does not use or disclose such Confidential Information except as consistent with these confidentiality commitments; and (iii) take steps no less rigorous than those which it takes with respect of its own Confidential Information to prevent unauthorized use, disclosure, loss of, access to, or damage to the Confidential Information of the other Party in its possession or under its control.
• 6.4 PCI-DSS Compliance. We will maintain compliance with the applicable version of the PCI-DSS standard as set out by the PCI-DSS Council.
• 6.5 Data Protection. You and we will, when performing under this Agreement, adhere to the obligations in the Data Protection Schedule. If there is any conflict between the terms in this Agreement and the Data Protection Schedule, the Data Protection Schedule takes precedence. 

7. Intellectual Property

• 7.1 Except as expressly provided herein, nothing in this Agreement confers to either Party, or any of its Affiliates, any right of ownership in any Intellectual Property of the other Party. 
• 7.2 Our Intellectual Property. We grant to you a non-exclusive, non-transferable, non-sublicensable, revocable, limited license, during the term and in the region of each Order Form, to use the Afterpay Group Intellectual Property solely in connection with your use of the Services and/or to the extent authorized by the Afterpay Group in writing. You agree that you will not use any Afterpay Group Intellectual Property in marketing or promotional materials on your Website(s) or Store(s) or in any public announcement or press release without prior written approval from the Afterpay Group. You must not copy, duplicate, reverse engineer, modify, amend, alter, or supply to any third-party, or use for any other purpose any Afterpay Group Intellectual Property without our express prior written consent. All rights, title, and interest to any Afterpay Group Intellectual Property, including, amongst others, modifications, enhancements, improvements, updates, additions, derivative works, and related material, before, during, and after the termination of this Agreement and/or applicable Order Form, continue to vest in the Afterpay Group. If you acquire any rights, titles, or interests in the Afterpay Group Intellectual Property, by operation of law or otherwise, you hereby irrevocably assign such rights to the Afterpay Group. On expiration or termination of an Order Form or this Agreement or any amendment to remove your right to offer the Services online or in Store(s), you must, in accordance with such expiration, termination, or amendment, as applicable, and as soon as reasonably practicable: (a) permanently delete all copies of the Afterpay Group Software in your possession or control; and (b) discontinue the use or display of any Afterpay Group Intellectual Property. 
• 7.3 Your Intellectual Property. You grant the Afterpay Group a royalty-free, non-exclusive, non-transferable, sublicensable, revocable, limited license, during the term of each Order Form, to use your legal name, trade name, and Intellectual Property for the Services in all applicable jurisdictions for which you execute an Order Form. You retain all of your Intellectual Property rights in such items. On expiration or termination of this Agreement or an Order Form or amendment removing our right to display your Intellectual Property, as applicable: (a) all licensed rights conveyed by you to the Afterpay Group cease and all such rights revert to you; and (b) we will discontinue the use or display of your Intellectual Property in accordance with such expiration, termination or amendment as soon as reasonably practicable. You permit the Afterpay Group to use your Intellectual Property, images and details of your Website(s), including for the purpose of hyperlinking, promotion, and referrals, in any: (i) marketing materials; (ii) social media posts, advertising, and messages; (iii) websites, mobile and web applications; (iv) push marketing emails; (v) public announcements; (vi) press releases, (vii) directory listings, and (viii) any other marketing or promotional activities agreed in writing. You further agree that we may share, re-post, and otherwise use any images and other content you include on your social media accounts or pages on our websites, social media accounts, and pages without your consent, and without any payment to you provided we credit you as the source of such image or content or include any other statement of attribution that you reasonably require, and promptly remove, or alter, such image or content at your written request. You agree to obtain on our behalf any third-party consents or licenses required to enable us to use such images and details as contemplated by this Agreement, without attribution and charge to us. If requested by you, we will, as soon as reasonably practicable, remove your Intellectual Property, images, or details of your Website(s) from marketing material, or modify any images used in our directory listings. 
• 7.4 Feedback. If you, your agents, or contractors provide any feedback, including identifying potential errors or improvements, to us with respect to any aspect of a Service (“Feedback”), you assign to us all right, title, and interest in and to the Feedback, and we are free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment, or restriction, including to improve the Service or create other products and services. We will treat any Feedback as non-confidential and non-proprietary. 

8. Suspension

• 8.1 Unless prohibited by Applicable Law, we may suspend your access to any part of the Services (including your ability to process Refunds) and withhold Purchase Amounts that may be payable to you, by written notice if: 
• (i) you have breached, or we reasonably believe you have breached, any provision of this Agreement; 
• (ii) we are unable to verify your ownership or are prohibited from doing business with you under Applicable Law; 
• (iii) to protect our systems or the Services against harm, including fraud or malicious activity; 
• b you are subject to an Insolvency Event (wherever suspension is permitted by Applicable Law); 
• (v) we are unsuccessful in debiting your account under any Debit Authorization provided by you; 
• (vi) we reasonably believe that continuing to process transactions is in breach of Applicable Law or our internal policies or procedures; or 
• (vii) we are required to do so by Applicable Law, court order, or regulatory authority. 

8.2 Any suspension will remain effective until the reason for the suspension has been remedied to our reasonable satisfaction. Without limiting your other obligations under this Agreement, while any suspension is effective, you must comply with all reasonable directions that we give regarding your display of the applicable Gateway and use of the Afterpay Group Intellectual Property.

9. Termination

• 9.1 Any Party to an Order Form may terminate it immediately by giving the other Party written notice if: 
• (i) the other Party materially breaches any provision of this Agreement, and either such breach is incapable of remedy, or the other Party has failed to remedy such breach within fourteen (14) days of receiving written notice of breach; 
• (ii) the other Party engages in any fraudulent activity or conduct; 
• (iii) the other Party is unable to perform its obligations as a result of a Force Majeure event, and such event continues for a period of thirty (30) days; or
• (iv) the other Party experiences an Insolvency Event (where termination is permitted by Applicable Law).

9.2 In addition, we may terminate an Order Form, in whole or in part, immediately upon written notice if: 

• (i) we reasonably believe that you have breached your representations and warranties as set out in your Supplementary Terms on a repeated basis; 
• (ii) you are offering for sale or selling Restricted Goods through your Website or in Stores without prior written approval from us; 
• (iii) the Monthly Default Rate is 4% or higher; 
• (iv) we are unable to verify your new ownership or we are prohibited from doing business with your new owner under Applicable Law; 
• (v) we are required to do so if required by Applicable Law, court order or regulatory authority; 
• (vi) we are unsuccessful in debiting your account pursuant to any Debit Authorization and any such default remains uncured for more than five (5) Business Days; 
• (vii) we cease providing any part of the Services in any geographic region; or
• (viii) the cause for our suspension of your access to the Services pursuant to Section 8 is not cured for a period of fourteen (14) days

9.3 Termination of an Order Form does not affect the ongoing term of any other, then-current, Order Form unless specified otherwise in the applicable Order Form. 

9.4 Consequences of Termination. Termination of an Order Form does not affect any right or obligation which arose under this Agreement before such termination and does not prejudice the Parties’ other rights and remedies. Upon termination of an Order Form, all rights and licenses granted to the Parties to such Order Form under this Agreement will terminate immediately, except as otherwise expressly provided in this Agreement. Without limiting the other provisions of this Agreement, Sections 4.1(iv), 4.3, 5.3, 6, and 11 of these Scheme Rules, Sections 3.2 of Service Schedule 1, any terms relating to warranties, liability and indemnities in your Supplementary Terms, and such other terms identified in this Agreement or which by their nature are required to survive termination of an Order Form, will survive termination of the applicable Order Form.

10. Mutual Representations and Warranties. Each Party makes the following representations and warranties to the other:

• 10.1 It is duly qualified and licensed to do business in all jurisdictions in which it operates, has full power and authority to enter into and perform its obligations under this Agreement, and, once an Order Form is duly executed by an authorized representative of that Party, this Agreement constitutes legal, valid, and binding obligations enforceable against such Party;
• 10.2 To the best of its knowledge, the consummation of the Services and the obligations and rights described in this Agreement do not result in the material breach of any contract to which it is currently a party; and
• 10.3 It is not insolvent, in bankruptcy proceedings, in receivership, or engaged in, or threatened with, any litigation or arbitration or other legal proceedings or investigations of any kind, including regulatory enforcement, which would have an adverse effect on its ability to perform its obligations under this Agreement. 

11. Disputes. For the avoidance of doubt, no action, suit, arbitration, or other proceeding may be commenced unless and until the Parties have attempted to resolve a dispute pursuant to this Agreement utilizing commercially reasonable efforts within fourteen (14) days from the date of written notice of a dispute from the disputing Party to the other Party. The immediately preceding sentence does not limit the Parties’ ability to immediately seek injunctive relief. In the event disputes pursuant to this Agreement cannot be resolved pursuant to this Section, the disputes provisions set out in an Order Form apply to disputes relating to the region covered by such Order Form.

12. Notices. Unless otherwise specified in this Agreement, any notices to any other Party, including any notice of a change of address, must be in writing in English and will be effective, as follows: (i) if to us: once sent by electronic mail to [email protected] copying [email protected] (or an email address otherwise notified to you by us); and (ii) if to you, once posted in the Merchant Portal or sent by electronic mail to the address or email address you provide through the Merchant Portal, at our election. 

13. Relationship of the Parties. Nothing in this Agreement is construed to create a relationship of partnership, agency, or joint venture between the Parties or any relationship other than independent parties contracting for services. Neither Party has any authority to enter into any contract or create any obligation or liability on behalf of the other Party. Nothing herein is interpreted to limit us from offering the same or similar services to other parties.

14. Miscellaneous 

• (i) No Waiver or Amendment. No failure or delay to exercise any right, power, or remedy or partial exercise thereof under this Agreement operates as a waiver or preclude any other or further exercise thereof. Except as set out in Section 2 of the Scheme Rules, this Agreement may not be amended or waived except by an instrument in writing signed by the party against whom any such amendment or waiver is sought. 
• (ii) Construction. The headings of the sections of this Agreement are inserted for convenience only and do not affect the meaning or interpretation of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party will not be used in the construction or interpretation of this Agreement. Except where the context otherwise requires, the word “or” is used in this Agreement to mean the inclusive meaning (i.e., “and/or”). Reference to “including” is not construed in any way to limit the scope of the term that it references but construed to mean “including, but not limited to”. 
• (iii) Severability. If any portion of this Agreement is determined to be invalid or unenforceable, the remaining portions of this Agreement are not affected and are binding upon the Parties and are enforceable, as though said invalid or unenforceable portions were not contained in this Agreement.
• (iv) Transfers or Assignments. You may not transfer or assign any rights you may have under this Agreement without our prior written consent, not to be unreasonably withheld. We may transfer or assign this Agreement, and any right under the Agreement in whole or in part, to any Affiliate or any third party, and we will notify you in advance of such a transfer or assignment.
• (v) Counterparts; Electronic Signatures. Any Order Form may be executed in one or more counterparts, each of which is deemed an original, but all of which together constitute one and the same Order Form. Electronic signatures of the Parties included in an Order Form and delivered by electronic mail in portable document format form or any other electronic means to preserve the original graphic and pictorial appearance of the document are deemed to constitute original signatures and have the same force and effect as physical delivery of the paper document bearing an original signature.
• (vi) Third-Party Beneficiaries. Except as may be expressly provided, no provision of this Agreement is interpreted to create any third-party beneficiary rights or any other rights of any kind in any person or entity other than the Parties hereto.

2. United Kingdom Clauses. The following clauses also apply to a Merchant entity that has signed an Order Form for the United Kingdom.

• (i) UK Bribery and Corruption. Each Party must comply with all Applicable Laws relating to anti-bribery and anti-corruption including the UK’s Bribery Act 2010 (“Relevant Requirements”) and have, maintain, monitor, and enforce throughout all Service Terms its own policies and procedures to prevent any of its associated persons from committing an offence under any Relevant Requirements (with the terms “adequate procedures” and “associated persons” having the meanings set out in the UK’s Bribery Act 2010). 
• (ii) UK Financial Promotions. 
• (A) To the extent any content, materials, documentation, or information you (or those acting on your behalf) produce in connection with the activities anticipated under this Agreement would constitute a financial promotion under section 21 of the UK’s Financial Services and Markets Act 2000 (“FSMA”) (“Regulated Materials”), you will (and will procure that any persons acting on your behalf will): 
• (i) comply with our marketing usage rules and use our approved assets without modification as available at https://www.clearpay.co.uk/en-GB/for-retailers/resources/marketing (as updated from time to time by Afterpay) (“Marketing Rules”). The Marketing Rules have been approved from a financial promotions’ perspective under FSMA by an authorised person (as defined in FSMA); or 
• (ii) where the Regulated Materials do not comply with the Marketing Rules then (a) prior to any use by or disclosure of any Regulated Materials, provide such Regulated Materials to us to procure any relevant approvals that may be required from a financial promotions perspective under FSMA from an authorised person; and (b) not use or disclose such Regulated Materials unless and until we have notified you in writing that the relevant Regulated Materials have been approved for publication as required from a financial promotions perspective under FSMA. 
• (B) You will fully cooperate with us and comply with all requests from us in relation to the Regulated Materials, which may include monitoring Regulated Materials to identify if there are any risks that the Regulated Materials are not compliant with FSMA requirements for the lifetime of the Regulated Materials and providing data on the status of the Regulated Materials. Further, you will (and will procure that any persons acting on your behalf will) comply with our instructions and directions promptly (and in any event before any deadlines set by any authorised person and/or the UK Financial Conduct Authority) in respect of any amendments that need to be made to any Regulated Materials or to withdraw the Regulated Materials so as to ensure that such Regulated Materials are compliant with FSMA and the UK Financial Conduct Authority’s rules in relation to the publication of financial promotions, for the lifetime of the Regulated Materials. The details of the relevant authorised person engaged by Afterpay are set out in the Marketing Rules, however the identity of the authorised person may change at Afterpay’s sole discretion in accordance with Applicable Laws.
• (iii) Cooperation. You agree to fully and promptly cooperate and provide reasonable assistance to Afterpay in respect of all requests or enquiries from regulatory bodies or authorities (including the UK Financial Conduct Authority) including requests for information and the UK Financial Conduct Authority investigations arising out of or related to the Extended Repayment Feature and Afterpay Services.
• (iv) Distance Selling. Where a Customer cancels the purchase of Goods in accordance with the UK’s Consumer Contracts (Information, Cancellation, and Additional Charges) Regulations 2013, the Goods are deemed to have been Accepted for Refund by you pursuant to Section 5. 
• (v) Clearpay. You acknowledge, and agree, that the use of the trademark “Afterpay” must not be used in the United Kingdom, and you must only make reference to the trademark “Clearpay”. 

16. Australia Clause. This clause also applies to a Merchant entity(ies) that has signed an Order Form for Australia. Under the AU BNPL Code, we are required to ensure that our merchants meet certain minimum standards. Without limiting any other obligations in this Agreement, you must: (i) act lawfully, fairly, and ethically in your dealings with Customers; (ii) communicate clearly when dealing with Customers and in marketing and advertising material that relates to us or the Extended Repayment Feature; (iii) have appropriate process and controls in place to safeguard the confidentiality of Customer information; (iv) respond to Customer complaints in a timely manner; and (v) provide Customers with clear and up front information about the Extended Repayment Feature, fees, and charges in a format that is accessible to Customers. You must also ensure that your employees and agents are aware of and are trained to meet these minimum standards.

17. Definitions. Capitalized terms in this Agreement not otherwise defined above have the following meanings: