Terms and Conditions
TERMS AND CONDITIONS OF
THE PAYMENT SYSTEM AGREEMENT
Updated on 03.28.2022
These terms and conditions of the Payment System Agreement (“Terms and Conditions”) contain the terms of the agreement entered by and between, APOLOPAG FACILITADORA DE PAGAMENTOS INTERNACIONAIS LTDA, a company organized and existing under the laws of Brazil, with head office at Rua Piratininga, 808, sobreloja 01, Novo Centro, na cidade de Maringá, Estado do Paraná, CEP n° 87013-100, enrolled with the National Corporate Taxpayers Register of the Ministry of Finance (“CNPJ/MF”) under nº 37.687.481/0001-65 hereinafter referred to solely as (“APOLOPAG”), and the CONTRACTOR, duly identified and qualified in the Cover Page, hereinafter referred to solely as (“Contractor”);
APOLOPAG and the Contractor are hereinafter collective referred to as (“Parties”) or, individually, as (“Party”).
WHEREAS:
1) APOLOPAG renders payment services for internet based and/or mobile companies enabling on-line sale of products, services or Digital Products through eligible payment methods, which are processed by a payment system;
2) The Contractor is an internet-based and/or mobile company which develops the activities described in the Cover Page (“Contractor’s Activities”), all of which are made available to the Final Users; and
3) The Contractor intends to contract APOLOPAG to render such payment services, which will allow the Final User to on-line purchase of the Contractor’s products, services or Digital Products.
By executing the Cover Page (“Cover Page”) the Contractor fully agrees: (i) with these Terms and Conditions, whose terms the Contractor received, analyzed, and agreed upon; (ii) with the laws and regulations applicable at any time to the Brazilian Payment Services Market (Mercado Brasileiro de Serviços de Pagamento); (iii) to comply with all the obligations provided herein; and (iv) to contract APOLOPAG on the terms set forth below. APOLOPAG reserves the right to unilaterally modify these Terms and Conditions at any time by posting an amended version on APOLOPAG’s website. APOLOPAG will notify the Contractor at least 30 (thirty) days in advance from posting the amended version on its website. Any new amended version of these Terms and Conditions will come into force as soon as posted on APOLOPAG’s website.
1. DEFINITIONS
1.1 The following terms when used in these Terms and Conditions, in the Cover Page, or in any document referred to herein shall have the following meaning:
1.1.1 “Agreement” means the agreement between the Parties which is formed by these Terms and Conditions and the Cover Page executed by and between APOLOPAG and the Contractor;
1.1.2 “Business Day” means any day other than Saturday, Sunday, or a public or bank holiday in Brazil, in São Paulo or in the jurisdiction of the Contractor;
1.1.3 “Confidential Information” means any information that (i) is marked as “Confidential” or should be reasonably expected to be confidential; including these Terms and Conditions and the Cover Page as well as all the Parties’ information; and (ii) any negotiations pertaining hereto. Notwithstanding the foregoing, “Confidential Information” shall not include information that (i) is generally known to the public at the time of disclosure; (ii) is known to APOLOPAG or to the Contractor prior to the execution of the Cover Page; (iii) becomes known to APOLOPAG or to the Contractor through disclosure by sources other than APOLOPAG or the Contractor who has the legal right to disclose such information and are not bound by a confidentiality agreement; or (iv) is independently developed by APOLOPAG or the Contractor;
1.1.4 “Contractor’s Activities” is/are the group of business activities and/or products, services and Digital Products made available by the Contractor to the Final User (including any and all software thereto) set forth in any and all Cover Page(s), all of which is/are developed by the Contractor, or is/are explored by the Contractor;
1.1.5 “Contractor’s Wallet” is a formal record of the Transactions arising from the Payment System where the Contractor can daily check the balance of its digital wallet in a real-time basis on the logged area of the Payment System;
1.1.6 “Cover Page” means the Cover Page(s) hereto, in which the Contractor is identified and qualified, as well as the Contractor’s Activities, with the applicable fees, costs, Taxes and any other additional commercial conditions;
1.1.7 “Digital Products” means intangible goods that exist in digital form and that can be obtained through e-mail or downloaded online from the Contractor’s website;
1.1.8 “Final User” means the person that consumes the Contractor’s products, services or Digital Products;
1.1.9“Gross Revenue” means all the amounts made available by the Final Users as payment of the purchase of Contractor’s products, services and Digital Products, before any deductions (such as Taxes and APOLOPAG’s fees);
1.1.10 “Mark” means the respective Party’s name and any one or more trademarks, logos, service marks, and/or copyrighted artwork or graphics related to the Party’s activities;
1.1.11 “Payment Scheme” means bank payment schemes (such as direct banking systems, direct debit systems or bank transfer systems, including national or local systems);
1.1.12 “Payment System” means APOLOPAG’s digital account based payment system through which the Final User will be able to acquire or purchase the Contractor’s products, services or Digital Products;
1.1.13 “Person” means an individual, a body corporate, an association, a partnership, a trust or any other entity or organization;
1.1.14 “Tax” means any tax, charge, contribution, fee, levy, duty or other assessment of a similar nature, or other tax or governmental fee of any kind whatsoever, imposed or required to be withheld by any tax authority, including interest, additions to tax or penalties, applicable or related thereto, whether disputed or not, for which a Party is liable;
1.1.15 “Transaction” means any transaction between the Contractor and a the Final User by which the Final user acquires or purchases the Contractor’s products, services or Digital Products; and
1.1.16“Withdrawal Operation” means any and all operation where the Contractor withdraw the funds available on the Contractor’s Wallet originated from the Transactions made between the Final Users and the Contractor, deducted the applicable Taxes and APOLOPAG´s commission.
1.2. Headings are for convenience only and shall not affect the construction or interpretation of these Terms and Conditions and of the Cover Page.
1.3. Unless the contrary intention appears, words in the singular include the plural and vice versa; words in the masculine gender include the feminine, neuter and vice versa.
1.4. The Parties agree that the Contractor and APOLOPAG may modify these Terms and Conditions by mutual agreement pursuant to the provisions of the Cover Page. In the case there is any conflict between the Sections of these Terms and Conditions and the Cover Page, the provisions of the Cover Page shall prevail and the conflict shall be resolved in accordance with the following order of precedence: (i) first, the provisions of the Cover Page; and (ii) subsequently, the provisions of these Terms and Conditions.
2. DESCRIPTION OF SERVICES
2.1. APOLOPAG will render payment services to the Contractor allowing the Final Users to purchase the Contractor’s products, services or Digital Products through bank deposits, banking billet, credit card and other eligible payment methods.
2.1.1 APOLOPAG services also encompasses the rendering of capture, routing, transmission, storage, conciliation and anti-fraud services, which are integrated on the Payment System.
2.1.2 APOLOPAG services comprises the maintenance of real-time basis records of the Transactions made by the Final User.
2.1.3 APOLOPAG will make the conciliation of funds received through bank deposits, banking billet, credit cards and other eligible payment methods on the Payment System to maintain correct record of the Final User’s Transaction and funds on the Contractor’s Wallet.
2.2. The Contractor will be able to withdraw any funds originated from Transactions, which will be deposited on the Contractor’s Wallet (“Withdrawal Operations”), and APOLOPAG shall make them available to the Contractor, after deducting the applicable Taxes and the Transaction Fee, in the Contractor’s bank account informed on the Cover Page in up to 7 (seven) Business Days after the Withdrawal Operation, provided that the Contractor has timely delivered to APOLOPAG all documents and/or information required by APOLOPAG to Contractor in order to meet any compliance requirement necessary to effect the Withdrawal Operation properly.
3. PAYMENT AND REMUNERATION FEES
3.1. The Contractor shall pay APOLOPAG a fixed fee of BRL 250.00 (Two hundred and fifty Brazilian reais) (the “Withdrawal Fee”) for each and every Withdrawal Operation made by the Contractor on the Payment System, irrespective of the amount withdrawn (which in no event shall be less than BRL 250.00 (Two hundred and fifty Brazilian Reais) or the frequency of Withdrawal Operations.
3.2. The Contractor agrees that the amount corresponding to the Withdrawal Fee and to any Tax applicable to such withdrawal will be withheld by APOLOPAG in each Withdrawal, including the cost of Exchange charged by the bank.
3.3. The Contractor shall also pay to APOLOPAG the transaction fee (APOLOPAG ´s commission) specified on the Cover Page (“Transaction Fee”) plus 4% (four percent) applicable to any Transaction concluded by Final Users on the Payment System, remittance, and USDT conversion. The Transaction Fee is compounded of a fixed rate and/or of a variable rate calculated upon the global volume of all Transactions as provided in the Cover Page. The Transaction fee shall be deducted from the amount originated on the Transactions received by the Contractor through the Payment System.
3.4. On the last Business Day of each calendar month, APOLOPAG shall invoice the Contractor the amounts corresponding to the total Withdrawal Fee deducted from Withdrawal Operations and/or the total Transaction Fee deducted from Transactions in that particular month.
3.5. APOLOPAG shall give the Contractor full access to the Contractor’s Wallet while the Agreement is in full force and effect. APOLOPAG undertakes that the following information must be indicated and displayed in a clear and easy manner in the Payment System: (a) the amount of Gross Revenue; (b) the currency of each component of the Gross Revenues; (c) the net amount on the Contractor’s Wallet after deducting the Withdrawal Fee and the Transaction Fee; and (d) the appropriate document(s) required to be issued by the Contractor.
3.6. The settlement shall occur on a weekly basis or on such other basis agreed in writing by both parties, transfer all the funds in the Agent’s Accounts to Contractor’s designated bank account.
4. APOLOPAG’S OBLIGATIONS AND RESPONSIBILITIES
4.1. During the term of the Agreement, APOLOPAG shall provide the services pursuant to these Terms and Conditions in order to enable the conclusion of the Transactions made by the Final Users.
4.2. APOLOPAG shall render the services provided in these Terms and Conditions in such a manner that Transaction are completed, if not blocked by the anti-fraud system. If a Transaction fails to be concluded as a result of an act exclusively attributable to APOLOPAG, APOLOPAG shall be responsible for such failure. Nonetheless, APOLOPAG shall not be responsible for a failure if the Transaction is not completed due to an act, fact or situation not exclusively attributed to APOLOPAG, such as a failure or instability in the Contractor’s system or website or in any other Person’s system or website or an act perpetrated by any Person or the Contractor’s employee, representative or agent. In that case, APOLOPAG shall not be responsible for any amounts related to such Transactions or for any damages borne by the Contractor.
4.3. APOLOPAG shall not be liable for any failures, interruptions or delays in the fulfilment of its obligations arising from a fortuitous event or force major in accordance with Article 393 of the Brazilian Civil Code, including, but not limited to, governmental acts, limitations imposed by the government, interruption in the provision of services such as electricity supply, telecommunications services, internet networks), disasters, strikes, disturbances of public order and other events of the same nature.
4.4. APOLOPAG shall also be responsible for providing the Contractor with the necessary online support to allow the correct performance of the Payment System. For this purpose, APOLOPAG shall reply all questions sent by the Contractor by e-mail within 7 (seven) Business Days, counting from the date that that question is presented to APOLOPAG.
4.5. APOLOPAG acknowledges the following responsibilities:
(i) assist the Contractor to connect the Contractor’s system to the Payment System, when applicable;
(ii) take all reasonable steps to prevent fraudulent Transactions; and
(iii) notify the Contractor in the event any Confidential Information becomes unduly available to any Person.
4.6. APOLOPAG shall maintain for a minimum of 5 (five) years, or greater period if required by any law or regulation, accurate and complete record of the Transactions, fees charged and collected by APOLOPAG, and data of the Final User.
4.7. The Contractor shall have a maximum of 5 (ffive) days, from the date of the occurrence of each particular Transaction, to indicate any divergence regarding the amounts paid by the Final User and the amounts debited on the Contractor’s Wallet or to contradict the amount debited on the Contractor’s Wallet. At the end of such period, if the Contractor does not make a claim appointing the mentioned divergence or contradiction, APOLOPAG is automatic and definitive discharged in respect of such values and no more claims will be further accepted regarding these Transactions.
5. CONTRACTOR’S OBLIGATIONS AND RESPONSIBILITIES
5.1 The Contractor undertakes full and exclusive responsibility for its Activity and content, and for the copyright regularity of the Contractor’s Activities. The Contractor undertakes not to make Transactions in segments of activities other than those informed in the Cover Page. Any change in the activity of the Contractor shall be informed to APOLOPAG that will arrange the appropriate modifications in the Cover Page. Such change may cause APOLOPAG to start new commercial negotiations with the Contractor.
5.2 Except as provided for in these Terms and Conditions, the Contractor is solely responsible for all activities related to the development, production, delivery, updating and/or promotion of the Contractor’s Activities, including all information used in the Contractor’s Activities, and all fees, costs, Taxes, or other expenses related to such activities, including if applicable, the fulfilment of any Final User’s orders.
5.3 The Contractor shall be fully responsible for chargeback, refund and each and every claim originated from or related to the Contractor’s Activities. The Contractor shall keep APOLOPAG free and exempt from any and all harm and burden, obligation or responsibility arising from the Contractor’s Activities, pursuant to the terms and conditions set forth in the Indemnification Section herein. The Contractor must indemnify Apolopag of any claim received by Apolopag including Legal Fees to solve the claims or consultancy fees.
5.4 The Contractor agrees and declares that APOLOPAG is not responsible or has any direct commercial or regulatory relationship with its operation. Accordingly, any penalty for breach of the Contractor´s operation that ends up reaching APOLOPAG must be fully assumed by the Contractor, exempting APOLOPAG and reimbursing it for any financial burden.
5.5 The Contractor agrees that APOLOPAG may request additional information regarding the Contractor’s Activities or the Contractor’s system to verify the Contractor’s compliance with the representations and warranties and obligations undertaken in these Terms and Conditions. The Contractor agrees to cooperate with, and provide complete, accurate, and timely information as requested by APOLOPAG. APOLOPAG may hold any payment due to the Contractor until the Contractor verification is completed, for 7 (seven) days, provided that the information mentioned is duly provided by the Contractor, which may include copies of the Contractor’s business license, articles of incorporation, tax information requirements and authentication of business owner(s) or Director(s) identity, and/or other documentation required to meet: (a) know-Your-Customer (“KYC”) banking mandates; (b) Anti-Money-Laundering (“AML”) legislation; or (c) any other information or document with similar purpose to comply with any law and regulation.
5.6 The Contractor shall not offer to the Final User any Contractor’s Activities that fails to comply with any domestic, foreign or international law, rule, regulation or other restriction or any fiduciary or contractual relationship applicable to the Contractor or the Contractor’s Activities. The Contractor shall not itself and shall not knowingly cause or knowingly permit any Person to: sell, upload, post, publish, transmit, reproduce or distribute in any way any goods, services or data that (a) can be considered illegal or that may be felonious or that may put any of the Parties herein in jeopardize before the authorities of their countries; (b) contains a software virus or any other computer code, files or programs that interrupt, destroy or limit the functionality of any other computer software or hardware or telecommunications equipment; or (c) infringes any patent, trademark, trade secret, copyright, proprietary right of any third party.
5.7 If, by any reason, APOLOPAG suspects that the Contractor’s Activities may be unlawful, illegal or fraudulent, APOLOPAG shall be entitled to suspend the services set forth in these Terms and Conditions and in the Cover Page and provide the Contractor with a written notice presenting reasonably justification for such suspension. In such case, APOLOPAG will also be able to immediately terminate these Terms and Conditions and the Cover Page and retain any value due to the Contractor as a result of such unlawful, illegal or fraudulent activity.
5.8 If APOLOPAG detects a substantial increase of the number of fraudulent Transactions subject to chargeback, APOLOPAG shall be entitled to suspend the services set forth in these Terms and Conditions and in the Cover Page and provide the Contractor with a written notice presenting reasonably justification for such suspension. In such case, APOLOPAG may also immediately terminate these Terms and Conditions and the Cover Page.
5.9 The Contractor must comply with APOLOPAG AML rules sending the user’s ID and proof of income if the user’s transactions exceed USD 10K (10,000.00) (ten thousand dollars) monthly or USD 20K (20,000.00) (twenty thousand dollars) semiannually.
5.10 The contractor undertakes that amounts exceeding USD 10K (10,000.00) (ten thousand dollars)per transaction will not be accepted. If, nevertheless, such a transfer occurs. The Contractor is aware transactions that exceed USD 10K (10,000.00) (ten thousand dollars) may be blocked by bank institutions.
5.11 If APOLOPAG requests any documents from users, the Contractor will have 5 (five) business days to send the documents requested, or the user will be blocked until the documentation is send.
5.12 APOLOPAG is able to block immediately all the users that do not send the documentation described in clauses 5.9 and 5.10 without prior notice.
5.13 If APOLOPAG suspects there is any user breaking AML rules, the user may be immediately blocked.
5.14 The Contractor declares that on his platform the minimum age of 18 years old and he has tools capable of curbing and/or preventing users that don’t have the minimum age.
5.15 The Contractor must send some data information to make available the services provided by Apolopag. The data requested is CPF, birthday date, email and name. Other data can be requested by Apolopag upon prior notice.
6. TAX
6.1. The Contractor shall be fully and sole responsible for all Taxes, which may now or hereafter be imposed by Brazilian law and regulation on the Transactions or on the Contractor’s Activities.
6.2. In no event or circumstance, APOLOPAG shall be held liable for the Taxes mentioned above, and, if APOLOPAG is required to pay any Taxes related to the Contractor’s activities hereunder or in the event of the creation of new Taxes or the increase of Tax rates levied on the Transaction, on the Contractor’s Activities or on the exchange contract executed by any financial institution as set forth above, the Contractor shall reimburse APOLOPAG for such Taxes within 5 (five) Business Days from the date the notice hereunder is received. If the Contractor fails to reimburse APOLOPAG within the aforementioned period of time, APOLOPAG is authorized hereby to deduct such Taxes from any amount due to the Contractor.
6.3. In the event of the creation of new Taxes or the increase of Tax rates levied on the services rendered, the Parties shall negotiate in good faith the modification of APOLOPAG’s remuneration fee for the services rendered. If the Parties fail to reach an agreement regarding the modification of APOLOPAG’s remuneration fee, the obligations provided in these Terms and Conditions and on the Cover Page may be terminated, without any charges or penalties.
7. CONTRACTOR ACKNOWLEDGMENTS
7.1. The Contractor acknowledges and agrees that:
(i) APOLOPAG operates solely as a payment intermediary, and: (a) under no circumstances function as a seller, buyer, dealer, middleman, retailer, auctioneer, supplier, distributor, manufacturer, broker, agent or hirer of the Contractor’s product, service or Digital Products; and (b) makes no representations or warranties and does not ensure the quality, safety or legality of any Contractor’s products, services or Digital Products;
(ii) APOLOPAG reserves the right to suspend, at any time and at its sole discretion, but with reasonable notification in advance, or if this is not practicable, immediately afterwards, the Payment System, inter alia, for auditing purposes; and
(iii) APOLOPAG is hereby authorized to hinder or stop, at its sole discretion, any Transaction it deems to be (a) made in breach of these Terms and Conditions or in breach of the security requirements of the Contractor; or (b) suspicious, unauthorized or fraudulent, including without limitation, characterized as money laundering, terrorism financing, fraud or other illegal activities.
8. INTELLECTUAL PROPERTY
8.1. All title or interest to any intellectual property right: (i) existing prior to the execution of these Terms and Conditions shall remain vested in the Party that owned it immediately prior to the execution of these Terms and Conditions; and (ii) developed independently by a Party outside the scope of the services provided in these Terms and Conditions, shall remain the property of the Party who developed it.
8.2. The Contractor is the legitimate bearer of all necessary intellectual and property rights from the software, the game, or the products, services or the Digital Products and of any content that comprises the Contractor’s Activities under the terms hereof, including, but not limited to rights, trade mark rights and copyrights in anyway related to the Contractor’s Activities. The Contractor shall keep APOLOPAG free and exempted from all and any harm, demand, loss and responsibility arising from the representation and warranties herein.
8.3. Title to and ownership of the Contractor’s Activities remain with the Contractor. The Contractor retains the right to, without limitation, use, copy, modify and distribute the Contractor’s Activities.
8.4. Each Party shall have no rights in the Marks of the other Party. Neither Party shall modify the other Party’s Marks and shall indicate that the Contractor’s Marks, and any trademarks, logos or service marks of third parties, are owned by their respective owners. Each Party may monitor the usage of the Marks by the other Party.
8.5. Except as expressly set forth herein, nothing in these Terms and Conditions is intended to grant any right to either Party under any patent, copyright, trade secret or other intellectual property right, nor shall these Terms and Conditions grant either Party any right or title regarding the other Party’s Confidential Information.
9. REPRESENTATIONS AND WARRANTIES
9.1. Each Party hereby represents and warrants that:
(i) neither the execution, delivery, and performance of the obligations set forth in These Terms and Conditions and in the Cover Page nor the consummation by the Parties of the obligations contemplated hereby will conflict with, violate, or result in a breach of any of the terms, conditions, or provisions of any law, regulation or order of any court or governmental authority, domestic or foreign, or any arbitrator, applicable to such Party nor with the provisions of any material agreement or instrument to which such Party is a party or by which such Party is or may be bound or to which any of such Party’s material properties or assets are subject;
(ii) is the legitimate bearer of all necessary intellectual property rights from the software, the game, or the products, services or the Digital Products and of any content that comprises its activities under the terms hereof, including, but not limited to rights, trade mark rights and copyrights in anyway related to such Party’s activities; and
(iii) each Party is undertaking the obligations set forth in these Terms and Conditions based upon its own inquiries, investigation and analysis, and the exercise by such Party of its rights and the performance of the services set forth in these Terms and Conditions will be based upon its own inquiries, investigation, analysis, and expertise.
10. INDEMNIFICATION
10.1. Each Party agrees to indemnify and hold the other Party and/or its representatives and officers harmless from and against all losses, liabilities, damages and expenses resulting from and/or arising out of: (a) any failure to comply with obligations undertaken pursuant to these Terms and Conditions; (b) any breach of warranty, covenant or agreement made by the Party under these Terms and Conditions; (c) an employees’ negligence in connection with Transactions or otherwise arising from the Contractor’s Activities to Final Users whose payment will go through the Payment System; and (d) any third party indemnifications the Contractor is obligated to make as a result of the Final User’s actions (including indemnification of any association or card issuing bank) if it causes any losses, liabilities, damages or expenses to APOLOPAG.
10.2. APOLOPAG’s cumulative liability before the Contractor for all losses, claims, suits, controversies, breaches or damages for any cause whatsoever (including those arising out of or related to these Terms and Conditions) and regardless of the form of action or legal theory and whether or not arising in contract or tort shall not exceed, in any event, 1,000,000.00 BRL (One million of Brazilian Reais).
10.3. In the case of a liability event that reaches or may reach one Party (“Indemnified Party”), the other Party (“Indemnifying Party”) shall (a) take steps to hold the Indemnified Party, its legal representatives and officers harmless, and (b) to promptly effect payment or provide a guarantee or deposit in sufficient money, with the competent administrative or judicial authority, so that the Indemnified Party, its legal representatives and officers, in no way will suffer any restrictions of property or registration, or, will become prevented or restricted in the right to contract with any third party.
10.4. In the case of a liability event against the Indemnified Party and/or its legal representatives and offices, the Indemnifying Party shall also be responsible for all expenses that the Indemnified Party, its legal representatives and officer may incur in defending their interests, having the Indemnified Party the right to deduct such expenses of any amounts due from the Indemnifying Party.
10.5. In the event the Indemnified Party is individually brought into court for any event caused by the Indemnifying Party or related to the Indemnifying Party’s activities, the Indemnifying Party hereby agrees to spontaneously assume sole responsibility as defendant, committing itself in any case to providing information and support to the Indemnified Party and assist it in the determination of the facts of such lawsuit.
10.6. The Indemnified Party, its legal representatives and officers shall be entitled to the right of subrogation against the Indemnifying Party for any and all amounts they disburse for events of the Indemnifying Party’s liability.
10.7. The Indemnifying Party shall be liable, under the terms of the law, before the Indemnified Party and third parties, for the acts of its representatives, employees, directors and agents, even if they do not or are not directly related to the services rendered hereby.
10.8. If the Indemnifying Party does not act in accordance with this Section 10 and, without prejudice to the other sanctions, the Indemnified Party may use the funds of the Indemnifying Party to settle the lawsuits or litigations installed.
11. DISCLAIMER OF WARRANTIES
11.1. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, THE SERVICES PROVIDED BY APOLOPAG IN ACCORDANCE WITH THESE TERMS AND CONDITIONS (INCLUDING ALL CONTENT, SOFTWARE, MATERIALS AND INFORMATION ACCESSED BY ANY MEANS THEREOF) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE PARTIES DISCLAIM ALL OTHER EXPRESS WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THEIR RESPECTIVE PRODUCTS, SERVICES OR SYSTEMS (1) WILL MEET THE REQUIREMENTS OF THE OTHER PARTY, (2) OPERATE IN COMBINATION WITH THE OTHER PARTY’S HARDWARE, SOFTWARE, SYSTEMS OR DATA, (3) WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE OR THAT ANY INTERRUPTION OR ERROR WILL BE CORRECTED IN A TIMELY MANNER. THE PARTIES FURTHER DISCLAIM ALL IMPLIED WARRANTIES WITH RESPECT TO THEIR RESPECTIVE PRODUCTS, SERVICES OR SYSTEMS INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, COMPANY ABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APOLOPAG MAKES NO WARRANTIES AS TO THE LEGALITY OR SUITABILITY OF A FINAL USER USE OR ACCESS THE CONTRACTOR’S ACTIVITIES, THE ABILITY OF A FINAL USER TO PAY FOR THE CONTRACTOR’S ACTIVITIES OR THE ADEQUACY OR TIMING OF APOLOPAG’S RESPONSE.
12. TERM
12.1. The Cover Page and these Terms and Conditions shall come into force on the date the Contractor executes the Cover Page and shall continue in full force and effect until any Party terminates it by giving a prior written notice to the other Party as provided in Section 13.
13. TERMINATION
13.1. The Cover Page and these Terms and Conditions may be terminated, by Apolopag without prior notice.
13.2. The Cover Page and these Terms and Conditions may be immediately terminated by either Party, upon notification to the other Party, in the following cases:
1.1.1. if any Party provides the other Party with written notice of a breach of any obligation set forth herein, and the infringing Party fails to remedy such breach or implement a corrective plan of action regarding such breach acceptable to the other Party within 10 (ten) Business Days after delivery of the aforementioned notice;
1.1.2. in the case of unpaid debt due by one Party to the other Party for more than 60 (sixty) days;
1.1.3. in the event of bankruptcy, judicial or extra-judicial petition for insolvency (recuperação judicial) of the other Party; and
1.1.4. in the cases set forth in Sections 5.6, 5.7 and 6.3.
13.3. Terminated the Agreement, the following rules shall apply unless the Parties, by mutual agreement, decide in writing differently:
1.1.1. APOLOPAG shall interrupt the services;
1.1.2. The Contractor will, in a reasonable timeframe, gain possession of the data and information APOLOPAG possesses regarding the Contractor and the Final User;
1.1.3. If requested by the Contractor, APOLOPAG shall perform, to the extent mutually agreed by both Parties, the services that are necessary to avoid damages to the Contractor; and
1.1.4. Each respective Party shall be liable for any and all outstanding fees and payments due to the other Party.
13.4. Notwithstanding any notice of termination under these Terms and Conditions, the Parties shall maintain all the records and registrations of the Transactions concluded 2 (two) years after such termination.
13.5. Except as otherwise set forth in these Terms and Conditions, the provisions of Sections 6, 10 and 14 shall survive for a period of 10 (ten) years after the termination of the Agreement.
14. CONFIDENTIAL INFORMATION
14.1. During the term in which the obligation pursuant to these Terms and Conditions are in full force and effect, each Party hereto may disclose (“Disclosing Party”) to the other Party (“Receiving Party”) Confidential Information in connection with these Terms and Conditions or the performance of the services and obligations set forth herein.
14.2. Each Receiving Party: (i) shall hold the Disclosing Party’s Confidential Information in strictest secrecy; (ii) shall not disclose it to any Person, except prior written consent of the Disclosing Party; (iii) shall use it solely for purposes of performing the obligations and the services set forth in these Terms and Conditions; and (iv) shall, upon the Disclosing Party’s request, either promptly deliver all such Confidential Information that is in written, electronic or other form, including copies and summaries, or, at the Disclosing Party’s option, destroy such Confidential Information and provide the Disclosing Party certification of such destruction.
15. GOVERNING LAW AND DISPUTE RESOLUTION
15.1. These Terms and Conditions and the Cover Page shall be governed by and construed in accordance with the laws of the Federal Republic of Brazil.
15.2. The jurisdiction of the State Court District of Maringá/PR is elected to resolve any doubts in the application of this contract, with the express waiver of any other that may exist.
16. FORCE MAJEURE OR ACT OF GOD
16.1. Neither party shall be liable for any delay or default in the performance of its obligations under this Agreement caused by circumstances beyond the control and without the fault or negligence of such party, including but not restricted to acts of God, acts of the public enemy, perils of navigation, fire, hostilities, war (declared or undeclared), hijack, blockade, labour, disturbance, strikes, riots, armed robbery, insurrections, civil commotion, earthquakes, accidents or other causes beyond the party’s control and in any of the events mentioned above, the parties shall, for the duration of such event, be relieved of any such obligation under this agreement as is affected by the said event provided that:
a. Notwithstanding such event, both parties shall use their best endeavours to fulfil their obligations under this agreement as affected by the event;
b. The provisions of this Agreement shall remain in force with regard to all other obligations under this Agreement which are not affected but such event; and
c. Both parties shall resume their full obligations under this agreement upon the end of such event.
17. AMENDMENTS
17.1. The Cover Page may be amended by the Parties only upon mutual written agreement.
18. MISCELLANEOUS
18.1. These Terms and Conditions and the Cover Page constitutes the entire agreement and understanding between the Parties and supersedes all other prior communications or understandings between the Parties.
18.2. Each provision of these Terms and Conditions and the provision of the Cover Page will be interpreted as to be effective and valid under applicable law. If, for any reason a court of competent jurisdiction, finds any provision of these Terms and Conditions or the Cover Page, or portion thereof, to be invalid or unenforceable, such provision shall be enforced to the maximum extent permissible by law so as to affect the intent of these Terms and Conditions and the Cover Page, and the remainder of these Terms and Conditions and the Cover Page shall continue in full force and effect. The Parties further agree that in the event such invalid or unenforceable portion is an essential part of these Terms and Conditions and the Cover Page, they will immediately begin negotiations for a replacement.
18.3. The failure of a Party to assert any of its rights under these Terms and Conditions and the Cover Page, including the right to terminate them in the event of breach or default by the other Party, will not be deemed to constitute a waiver by that Party of its right to enforce each and every provision of these Terms and Conditions and the Cover Page in accordance with its terms.
18.4. Each Party shall take full and sole responsibility for the integral compliance of all legislation governing the legal businesses and, without limitation, the intellectual property, labor, criminal, social security and civil responsibility of each Party, as well as not allow any of their own or their respective directors, managers, employees, representatives, or agents to promise, authorize or make any payment, donation or conecssio, directly or indirectly, to any government official or any third party that may constitute a violation of an applicable law, including here the US Law against corrupt practices abroad (FCPA), to ensure compliance with all applicable anti-bribery and anti-corruption legislation.
18.5. Any notice or communication required or permitted to be given by any provision of these Terms and Conditions shall be in writing and shall be deemed to have been delivered, given, and received for all purposes: (i) if delivered personally to the Person or to an officer of the Person to whom the same is directed, or (ii) when the same is actually received, if sent either by e-mail, courier, certified mail, postage and charges prepaid or any other electronic tool widely accepted, addressed as follows, or to such other address as one Party may from time to time specify by the other Party: (x) if to APOLOPAG to the address set forth herein; and (y) if to the Contractor to the address set forth in the Cover Page.
18.6. APOLOPAG will be able to subcontract any of the services set forth in these Terms and Conditions without notice or approval by the Contractor.
18.7. No relationship whether of employment or partnership is established or should be established, between the Contractor and APOLOPAG or their employees, agents, director or third parties performing services set forth herein or vice-versa. Each Party is individually responsible for its obligations, encumbrance and Taxes imposed by any law and legislation regarding labor and social security’s responsibilities, or any other area of law.
18.8. No agency, partnership, joint venture or employment relationship is created between APOLOPAG and the Contractor by way of these Terms and Conditions. In performing their respective obligations hereunder, the Parties are, and will be, independent. Neither Party will bind, or attempt to bind, the other Party to any contract or the performance of any obligation, and neither Party will represent to any third party that it has any right to enter into any binding obligation on the other Party’s behalf.
18.9. Rights and obligations established hereof shall bind the Parties and their respective successors in irrevocable and inalterable basis.
18.10. These Terms and Conditions and the Cover Page are written in the English language only.
19. ENTIRE AGREEMENT
19.1. This Agreement contains the entire understanding between the parties hereto with respect to the subject matter and supersedes any and all prior agreements, understandings and arrangements, whether written or oral. The Annexes shall form an integral part thereof it being understood that in the event of any conflicts or inconsistencies between the Agreement and the Annexes, the Agreement shall prevail.