Trustly Merchant Terms & Conditions
Effective from: September 1, 2025
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
These Terms and Conditions (these “Terms”) govern your access to and use of the services provided by Trustly, Inc., a Delaware corporation (“Trustly”). These Terms, together with any executed Statement of Work (each an “SOW”), and all schedules, exhibits, addenda, and attachments thereto, collectively constitute the entire agreement (this “Agreement”) between Trustly and you, the undersigned merchant (“Merchant,” “you,” or “your”). Each of Trustly and Merchant may be referred to herein individually as a “Party” and together as the “Parties.”
The specific Services to be provided under this Agreement are detailed in the applicable SOW(s). By signing an SOW that references these Terms and Conditions, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement, including all applicable SOW(s) and any other policies, exhibits, addenda, or agreements referenced herein. If you do not agree to these Terms and Conditions or any applicable SOW, you may not access or use the Services.
This Agreement is effective as of the date of the last signature on the initial SOW executed by the Parties for the Services (the “Effective Date”).
1. Definitions
1.1 “Affiliate” means, with respect to a Party, any other business entity, whether current or in the future, that directly or through one or more intermediaries, controls or is controlled by or is under common control with such Party. One entity is deemed to control the other if it: (a) directly or indirectly owns more than fifty (50%) of the equity of the other entity; (b) controls more than fifty percent (50%) of the voting rights of the entity; or (c) has the ability to effectively direct the actions of the other entity, including through majority member of that entity’s Board of Directors (or similar body of personnel controlling the entity).
1.2 “Applicable Law(s)” means all applicable local, state, national and foreign laws, tax authorities, ordinances and orders, treaties and regulations, including without limitation, those related to gaming, wagering, sports wagering, e-sports, online casino, fantasy sports, horse racing, financial services and banking regulations and legislation, including, but not limited to the NACHA rules and Data Privacy Laws.
1.3 “Business Days” means each Monday, Tuesday, Wednesday, Thursday, and Friday, other than days when banks are authorized or required to be closed in the United States. For the sake of clarity, references to “day” or “days” not capitalized herein shall mean and refer to calendar days.
1.4 “Confidential Information” means any and all non-public or proprietary information, whether oral, written, graphic, electronic, or in any other form, that is related to a Party or to third parties to whom a Party owes a duty of confidentiality, and which is is (a) disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”); and (b) identified as confidential or proprietary at the time of disclosure, or, given the nature of the information or the circumstances surrounding its disclosure, would reasonably be understood to be confidential.
(a) Without limiting the foregoing, Confidential Information includes, but is not limited to, trade secrets, business plans, financial information, marketing plans, product roadmaps, technical information, know-how, designs, specifications, software, source code, object code, algorithms, customer lists, pricing, employee information, Personal Information, Trustly Confidential Information, Financial Institution Confidential Information, the terms and conditions of this Agreement, and the circumstances under which such Confidential Information has been made available to the Receiving Party.
(b) Notwithstanding the above, Confidential Information shall not include information which: (i) the Disclosing Party expressly agrees in writing is free of any nondisclosure obligations; (ii) prior to or at the time of disclosure to the Receiving Party was known to the Receiving Party (as evidenced by documentation in the Receiving Party’s possession) free of any nondisclosure obligations; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information (as evidenced by documentation in the Receiving Party’s possession); (iv) is lawfully received by the Receiving Party, free of any nondisclosure obligations, from a third party having the right to so furnish such information; (v) is or becomes generally available to the public without any breach of this Agreement or unauthorized disclosure by the Receiving Party; or (vi) is aggregated End User Data or data regarding use of the Services that does not contain any Personal Information.
1.5 “Consent” means an End User’s informed authorization for the use, storage, disclosure, collection, access, processing, and sharing of End User Data by the Parties in accordance with the Terms of Use and Privacy Policy. The Parties acknowledge that such Consent is legally binding and complies with Applicable Law regarding the use, storage, disclosure, collection, access, processing, and sharing described in the Consent.
1.6 “Consumer” means a natural person however identified, including by any unique identifier.
1.7 “Data Access API” means an API which an applicable Financial Institution has published as a means to provide access to End User Data and with which Trustly has established a direct integration, in accordance with the requirements of the Financial Institution.
1.8 “Data Privacy Laws” means those laws related to data privacy, international communications, and the collection, transmission, and storage of technical or personal data, including Personal Information, including but not limited to the California Consumer PrivacyAct of 2018 (“CCPA”).
1.9 “Documentation” means, with regard to the Transaction Services, any reports, summaries, manuals, implementation guides, integration requirements, or other documentation related to the functionality of the Transaction Services provided or made available to Merchant by Trustly.
1.10 “End User” means individuals or entities that use or access the Transaction Services.
1.11 “End User Data” means all electronic data regarding End Users, including Personal Information, (a) submitted to the Transaction Services by End Users, (b) retrieved from End Users’ Financial Institution by Trustly via the Transaction Services (c) retrieved from End Users’ Financial Institution by Trustly when such Financial Institution makes End User Data available via a Data Access API (“Data Provider”), or (d) provided to Merchant by Trustly, or conversely, in connection with the Transaction Services.
1.12 “Entry” means an ACH Transaction submitted by an Originator for processing and settlement via the Transaction Services and further defined in the NACHA Rules.
1.13 “Fees” means the fees set forth and described in an applicable SOW.
1.14 “Financial Institution Confidential Information” means, with regard to a Data Access API, and without limitation: (a) the applicable Financial Institution Platform(s) and any and all information or documentation related to the Financial Institution Platform(s), including, without limitation, such Financial Institution’s APIs, file layouts or formats, security controls, or protocols used by such Financial Institution in connection with the applicable Financial Institution Platform or any of such Financial Institution’s software applications, systems or networks; (b) other technical information or documentation pertaining to an applicable Financial Institution Platform or any of such Financial Institution’s software applications, systems or networks; (c) passwords, access credentials, tokens, security or encryption keys, digital certificates, software programs or other information, devices or materials used in connection with an applicable Financial Institution Platform or used to gain access to, or to receive data from or exchange data with, any of a Financial Institution’s software applications, systems or networks; (d) other technical, trade secret or business information including, without limitation, information pertaining to the Financial Institution’s products, services, business, financial affairs, technology or product plans, that, with respect to all of the foregoing, is disclosed to either Party or any representative or is otherwise obtained by either Party or any representative in any form (including, without limitation, in oral, written or electronic form) and in any media; and (e) any Financial Institution-provided hyperlinks and accompanying content.
1.15 “Financial Institution” means a person or corporation subject to supervision by any state or Federal bank supervisory authority.
1.16 “Financial Institution Platform” means, with regards to a Data Access API, all computer equipment and software owned, licensed or operated by, or operated on behalf of such Financial Institution and associated APIs, through which the End User Data is made available to Trustly.
1.17 “Originating Depository Financial Institution” or “ODFI” means, in an ACH Transaction, the Financial Institution which receives the Entry and transmits the Entry to its ACH Operator for transmittal to a Receiving Depository Financial Institution for debit or credit to the a Consumer’s or Originator’s bank account, as these terms are further defined in the NACHA Rules.
1.18 “Originator” means and is another way to refer to Merchant and refers to its role in using the Transaction Services, as defined in the NACHA Rules.
1.19 “Personal Information” means non-public or personally identifiable information, or as otherwise defined, in applicable Data Privacy Laws, including Section 1798.140 of the CCPA or any other applicable statute.
1.20 “Privacy Policy” means those terms as may be found at https://us.trustly.com/privacy-policy and which may be updated from time to time at the sole discretion of Trustly.
1.21 “Professional Services” means the onboarding and/or on-demand support services as set forth in this Agreement or an applicable SOW
1.22 “Receiving Depository Financial Institution” or “RDFI” means, in an ACH Transaction, the Financial Institution which receives the Entry directly or indirectly from its ACH Operator for debit or credit to the accounts of its customers.
1.23 “Regulator” means any government authority, department, agency, or any judicial, administrative, or regulatory (including self-regulation) organization having authority, oversight, jurisdiction, or similar power of any of the Parties or any of their Affiliates in any national, federal, state, provincial, or local jurisdiction, and “Regulatory” means a reference to such Regulator and/or such Regulator’s authority.
1.24 “Returned Transactions” shall have the meaning given to that term in the applicable SOW.
1.25 “Service Level Agreement” means the Trustly service level and support obligations as may be found at https://us.trustly.com/service-level-agreement.
1.26 “Services” means the services provided by Trustly to Merchant pursuant to one or more applicable SOW (as defined below) to this Agreement, including the Transaction Services and/or Professional Services.
1.27 “Terms of Use” means those terms as may be found at https://us.trustly.com/terms-of-use and which may be updated from time to time at the sole discretion of Trustly.
1.28 “Transaction” means an electronic funds transfer or data transfer between an End User and Merchant, including all attempted transactions, processed by Trustly pursuant to this Agreement.
1.29 “Transaction Services” means the applicable Transaction services performed by Trustly pursuant to this Agreement and further described in an applicable SOW to this Agreement, including any Processing Services, if applicable, which enable Merchant to receive payments from End Users for goods and/or services provided by Merchant.
1.30 “Trustly Confidential Information” means the Confidential Information of Trustly, including (a) technical information or documentation pertaining to (b) the Trustly Technology, and (c) Trustly’s use of any Financial Institution Platform in connection with Trustly’s software applications, systems or networks; (d) passwords, access credentials, tokens, security or encryption keys, digital certificates, software programs or other information, devices or materials used by in connection with any Financial Institution Platform or used to gain access to, or to receive data from or exchange data with, any of Trustly’ software applications, systems or networks; (e) other technical, trade secret or business information including, without limitation, information pertaining to Trustly’s products, services, including the Services, business, financial affairs, technology or product plans, that, with respect to all of the foregoing, is disclosed to the Merchant or is otherwise obtained by Merchant in any form (including, without limitation, in oral, written or electronic form) and in any media; (f) information related to Trusty's merchants and such merchants’ proprietary information, and (g) any Trustly-provided hyperlinks and accompanying content
1.31 “Third Party Processor” means Trustly’s ODFI and/or a third party ACH Processor utilized by Trustly to provide processing, or settlement, (collectively, the “Processing Services”), as applicable.
1.32 “Trustly Technology” means and includes (a) the Transaction Services; (b) all computer equipment and software owned, licensed, or operated by or on behalf of Trustly through which End User Data may be made available to Merchant and may be accessed by Trustly, (c) the Trustly name, Trustly logo, Trustly domain names, “Online Banking” and/or “Pay with Online Banking” acceptance tagline, any and all “Trustly powered by …” or “Powered by Trustly” product name(s), the product names associated with the Transaction Services and other trademarks; (d) certain audio and visual information, documents, software and other works of authorship; and (e) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information.
2. Services
2.1 Description of Services. Each Service will be described in an individual SOW. Each SOW is subject to the terms and conditions of this Agreement. In the event of any conflict between the terms of this Agreement and an SOW, the terms of this Agreement governs. Trustly has the sole right to determine the method, details, and means of performing the Services. Trustly may engage third parties or subcontractors in its sole discretion to provide certain components or portions of the Services.
2.2 Upgrades. Trustly may, in its sole discretion, revise, upgrade, modify, replace or reconfigure the Services at any time, including, without limitation removing certain features, functions, services and/or software (each an “Upgrade”); provided that no such Upgrade shall materially reduce the functionality or availability of the Services and that Trustly shall provide prior written notice if any such Upgrade requires any modifications, alterations or additional development by Merchant. Notwithstanding the above, upon ninety (90) days prior written notice, Trustly may withdraw a product, service or software from the market, unless a shorter period is required by Applicable Law or a Regulator.
2.3 Acceptance. Services provided by Trustly pursuant to an SOW will be deemed accepted as of the delivery date of such Services set forth in the applicable SOW. If no delivery date is set forth in the applicable SOW, then the Services provided by Trustly will be deemed accepted by Merchant on the date of the first End User transaction in Merchant’s production environment (“Go-Live” and “Acceptance”).
2.4 Procurement Requirements. Merchant shall be solely responsible for obtaining and maintaining all hardware and operating software necessary to deliver its services to its end users and to connect its end users to the Transaction Services. Merchant is responsible for (a) procuring and maintaining the network connections that connect the Merchant network to the Transaction Services, including but not limited to “browser” software that supports protocols used by Trustly, including Secure Socket Layer (SSL) protocol or other protocols accepted by Trustly, and (b) following logon procedures for services that support such protocols. Merchant understands that the hardware, operating software, computer networks, and telecommunications obtained, maintained, and used by Merchant to deliver its services to end users and to connect end users to the Transaction Services are not owned or operated by Trustly and thus Trustly is not responsible for notifying Merchant of any upgrades, fixes, enhancements or modifications to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by Trustly. Trustly assumes no responsibility for the reliability or performance of any connections described in this Section 2.4.
3. Use of the Transaction Services
3.1 Legal Compliance. In connection with the Transaction Services, Merchant, and Merchant’s end user terms of use, privacy policy and data security policies, shall comply with all Applicable Laws, and all export laws and regulations of the United States and other applicable jurisdictions in using the Transaction Services and obtain any permits, licenses and authorizations required for such compliance.
3.2 Merchant Due Diligence. Information pertaining to Merchant and Merchant’s business activities, including the information identified in Section 5.4 below may be requested as part of the due diligence review performed by Trustly prior to providing the Services to Merchant, and Trustly shall have no obligation to provide the Services, or any portion of the Services, to Merchant unless and until (a) Merchant has provided all documentation reasonably requested by Trustly to complete such due diligence review; and (b) Trustly has completed to its satisfaction any and all required due diligence reviews of Merchant.
3.3 Suspension. Trustly may suspend the Transaction Services or any Transaction (a) in the event of any circumstance that gives rise to Trustly’s right to terminate the Agreement or any SOW, as set forth in Sections 11.2, 11.3, or in an applicable SOW below; (b) if Trustly determines that questionable activity has occurred with respect to Transactions processed for Merchant via the Transaction Services, including, without limitation, excessive Returned Transactions; or (c) if required by Applicable Law or the ODFI.
3.4 FCRA Compliance. Merchant certifies that it has a legitimate business need for the information provided via the Services with respect to a Transaction. Merchant certifies that the information provided via the Services will only be used for permissible purposes under the Fair Credit Reporting Act (“FCRA”), will not be used for employment purposes, and will not be used for any purpose other than the one Transaction between Merchant and an End User which was submitted for Services and for which the information was provided. Neither Merchant nor any of its agents or employees will disclose the results of any inquiry made about a Transaction submitted for Services, except to the End User about whom such inquiry is made. If Merchant rejects any Transaction (in whole or in part) because of the information obtained via the Services, Merchant shall provide the End User all information regarding such Transaction and the reasons for rejection as required by applicable legal requirements.
4. Ownership, License and Restrictions
4.1 Ownership. Merchant acknowledges that in providing the Transaction Services, Trustly utilizes the Trustly Technology. As between Trustly and Merchant, Trustly reserves all rights, title and interest, including intellectual property rights, in and to the Trustly Technology, and except as expressly set forth herein, no right, title or interest, including intellectual property rights, therein are granted to Merchant. Merchant shall promptly notify Trustly of any actual or threatened misappropriation or infringement of Trustly’s proprietary rights that comes to Merchant’s attention. Merchant will not undertake any action, including without limitation the application, prosecution, registration or enforcement of an intellectual property right, that will in any way preclude Trustly from continuing to develop, use or commercialize the Transaction Services or the functions, methods, routines or algorithms performed in such proprietary property or any updates thereto, and nothing will be construed in this Agreement to impair, preclude or prohibit Trustly from doing so.
4.2 Access and Use Right. Subject to the terms and conditions of this Agreement, Trustly hereby grants Merchant a personal, non-exclusive, non-transferable (except as set forth in Section 12.8), right during the Term only for the limited and specified business purpose to access and use the Transaction Services as described in an applicable SOW for Merchant’s internal business purposes in support of End Users.
4.3 Trademark License. Subject to Merchant’s acceptance and compliance with the terms and conditions of this Agreement, Merchant is hereby granted, during the Term a limited, nonexclusive, non-assignable (except as set forth in Section 12.8), royalty free right and license to display and use the logos, trade names, trademarks, and service marks of Trustly (“Trustly Marks”) for the sole purpose of carrying out its obligations under this Agreement, subject to the following conditions: (a) Merchant shall keep intact any proprietary notices of Trustly; (b) it shall comply with Trustly’s trademark use guidelines, as may be provided by Trustly from time to time; (c) it acknowledges that all goodwill generated through its use of the Trustly Marks will inure to the benefit of Trustly; (d) it hereby assigns and agrees to assign to Trustly any and all goodwill generated through its use of the Trustly Marks, without any payment or other consideration to it, and further agrees to take all actions necessary to effect such assignment; and (e) upon termination of this Agreement, it shall cease using the Trustly Marks.
5. Data Use Requirements
5.1 End User Data. Trustly will require that all End User’s provide express Consent to use the Transaction Services, and each Party will obtain End User’s express and informed Consent to use, store, disclose, collect, access, process and share End User Data as required to perform the Transaction Services. The Transaction Services are performed based upon the End User’s Consent to Trustly’s then-current Terms of Use and Privacy Policy. Merchant agrees that it shall not use, store, disclose, collect, access, process or share End User Data in a manner inconsistent with the End User Consent obtained by Trustly in connection with the Transaction Services. Merchant acknowledges that End Users own the End User Data retrieved from End Users’ Financial Institutions in connection with the Transaction Services and that the use, storage, disclosure, collection, access, processing, and sharing of all End User Data is subject to the Terms of Use and Privacy Policy.
5.2 Data Use; Analytics. Merchant agrees that Trustly owns all right, title and interest to the data or other information residing on its systems relating to a Transaction or an End User in connection with the Transaction Services provided under this Agreement, subject to Applicable Laws.
5.3 Data Security. The data and related materials provided to Trustly by Merchant will be maintained by Trustly in accordance with its data security policy. Trustly acknowledges and agrees that it is solely responsible for complying with its data security policy and for protecting End User Data received from Merchant under this Agreement. The data and related materials provided to Merchant by Trustly will be maintained by Merchant in accordance with its data security policy. Merchant acknowledges and agrees that it is solely responsible for complying with its data security policy and for protecting End User Data received from Trustly under this Agreement.
5.4 Information Requests. Merchant will provide such financial or other information of Merchant which is reasonably requested by Trustly, including information as may be required by an ODFI, Data Provider, or the CCPA, to perform credit risk, security, qualification, and other reviews related to providing the Transaction Services or the financial condition of Merchant. Merchant agrees to provide the requested information within fifteen (15) days of Trustly’s written request.
5.5 Audits. Upon request by Trustly, Merchant hereby authorizes Trustly to enter Merchant’s business premises upon two (2) Business Days’ written notice during regular business hours for the purpose of ensuring that Merchant is in compliance with this Agreement and the CCPA. Merchant specifically authorizes Trustly to perform an audit of Merchant’s operational controls, risk management practices, staffing and the need for training and ongoing support and information technology infrastructure. Regarding an audit of CCPA obligations, Merchant hereby acknowledges and agrees that Trustly has the right to take reasonable and appropriate steps to ensure that Merchant uses the Personal Information it collected pursuant to this Agreement in a manner compliant with the CCPA. Reasonable and appropriate steps may include ongoing manual reviews and automated scans of the Merchant’s system and regular internal or third-party assessments, audits, or other technical and operational testing at least once every twelve (12) months. Trustly shall bear all costs and expenses incurred in connection with any such audit. Merchant hereby acknowledges and agrees that Trustly shall have the right to mandate specific, reasonable internal controls at Merchant’s location(s) and Merchant shall comply with any such mandate. In addition, Merchant hereby agrees to allow Trustly to review available reports of independent audits performed at the Merchant’s location related to information technology, the Transaction Services, and any associated operational processes. Merchant agrees that if requested by Trustly not more often than once per calendar year, Merchant will complete a self-assessment of Merchant’s operations, management, staff, systems, internal controls, training, and risk management practices that would otherwise be reviewed by Trustly in an audit of Merchant. Merchant will provide to Trustly a copy of either their SAS-70 audit or other independent audit annually.
5.6 Request by Consumer. Merchant agrees that any direct request to the Merchant by a Consumer made pursuant to the CCPA shall comply with the CCPA in responding to such request and provide a copy of the request (and any other information necessary to comply with such request) to Trustly as soon as reasonably practicable.
5.7 Compliance with CCPA; Notice of Non-Compliance. Merchant agrees that it shall comply at all times with its obligations under all applicable sections of the CCPA. Merchant further agrees that it will notify Trustly if it makes a determination that it can no longer meet its obligations under the CCPA. Merchant acknowledges and agrees that, upon notice, Trustly may take reasonable and appropriate steps to stop and remediate unauthorized use of an end user’s Personal Information by requiring that the Merchant provides documentation that verifies it no longer retains or uses the Personal Information of Consumers that have made a valid request to delete with the Merchant.
6. Confidentiality
6.1 Confidential Information. Notwithstanding anything to the contrary herein, the Transaction Services, Trustly Technology, End User Data and the terms and conditions (but not the existence) of this Agreement, shall be deemed to be the Confidential Information of Trustly. Notwithstanding anything to the contrary set forth in this Section 6, each Party shall have the right to share the existence and nature of this Agreement with potential investors or acquirers, or with such Party’s attorneys, accountants, bankers, or other professional advisors in connection with a merger, acquisition, corporate reorganization, consolidation, or sale of all or substantially all of its assets.
6.2 Nondisclosure. The Receiving Party of Confidential Information shall (a) disclose such Confidential Information to only those directors, officers, employees, consultants, contractors and subcontractors of Receiving Party (b) whose duties justify their need to know such information, (c) who have been clearly informed and obligated in writing to maintain the confidential, proprietary and/or trade secret status of such Confidential Information, and (d) who have a “need to know” Confidential Information (and are only provided access to the Confidential Information extent necessary to satisfy such “need to know”).
6.3 Nonuse. The Receiving Party of Confidential Information shall: (a) use, retain, or disclose such Confidential Information only for (b) the specific business purposes set forth in this Agreement, (c) internal use to build or improve the quality of its services it is providing (provided that the Receiving Party does not use the Confidential Information to perform services on behalf of another person), and/or to (d) prevent, detect, or investigate data security incidents or protect against malicious, deceptive, fraudulent or illegal activity. The Receiving Party shall not contract with a third party to provide cross-context behavioral advertising, where a Consumer is targeted based on the Consumer’s Personal Information obtained from the Consumer’s activity across businesses, distinctly-branded websites, applications, or services, other than the business, distinctly-branded website, application, or service with which the Consumer intentionally interacts. The Receiving Party shall not combine the Personal Information of opted-out Consumers that the Receiving Party receives with Personal Information received from, or on behalf of, another person, persons, or from collection from its own interaction with Consumers. The Receiving Party shall not sell or share Personal Information it collects pursuant to this Agreement. The Receiving Party shall ensure that any third parties to whom Confidential Information is disclosed are subject to confidentiality terms in writing at least as stringent as those provided in this Section 6.
6.4 Duty of Care. The Receiving Party shall (a) treat such information as strictly confidential, (b) shall use the same care to prevent disclosure of such information as Receiving Party uses with respect to its own confidential and proprietary information, which shall not be less than the care a reasonable person would use under similar circumstances, and (c) maintain and follow security practices and procedures that are sufficient to safeguard the Disclosing Party’s Confidential Information from: (i) unauthorized disclosure, access, use or modification; (ii) misappropriation, theft, destruction, or loss; or (iii) the inability to account for Confidential information. Without limiting the generality of the foregoing, the Receiving Party will only use or reproduce the Disclosing Party’s Confidential Information to the extent necessary to enable the Receiving Party to fulfill its obligations or exercise its rights under the Agreement and to provide the Services. Each Party will ensure that each of its personnel is bound to uphold the obligations of confidentiality set forth in the Agreement. Notwithstanding the foregoing, each Party may disclose Confidential Information to the extent that such disclosure is permitted or required by applicable federal, state or local law, Regulatory, court order, or other legal process, provided the Receiving Party has given the Disclosing Party prior written notice of any required disclosure and, to the extent reasonably possible, has given the Disclosing Party an opportunity to contest such required disclosure at the Disclosing Party’s expense. In addition, Trustly shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, and perpetual license to use or incorporate into the Transaction Services, without restriction, any suggestions, enhancement requests, recommendations or other feedback provided by Merchant, including by End Users, relating to the Transaction Services.
6.5 Removal from Premises. The Receiving Party will not remove or transmit the Disclosing Party’s Confidential Information from the Receiving Party’s premises without, in each case, obtaining the Disclosing Party’s express prior written consent. If a Disclosing Party’s Confidential Information must leave the Receiving Party’s premises (through the mail, magnetic tape, line transmission or any other communication media) in order for the Receiving Party to fulfill its obligations under the Agreement, the Receiving Party will use, and will cause its personnel to use, the highest degree of care to safeguard the Disclosing Party’s Confidential Information from intrusion, tampering, theft, loss, and breaches of confidentiality.
6.6 Confidentiality Period. Each Party’s obligation under this Section 6 shall continue for a period of five (5) years from the date of termination of this Agreement.
6.7 As between the Disclosing Party and the Receiving Party, the Confidential Information shall at all times belong solely and exclusively to the Disclosing Party
7. Fees
7.1 Fees. Merchant shall pay Trustly the Fees for the Services, together with any expenses incurred by Trustly in connection with performance of the Services, strictly in accordance with the terms and conditions set forth in a duly executed SOW.
7.2 Taxes and Other Charges. Merchant shall be responsible for all sales, use, excise, services and other similar taxes, levies and charges not otherwise included in the Fees (other than taxes based, in whole or in part, on the net income, profits or employees of Trustly) imposed by Applicable Law on the provision of the Transaction Services to Merchant hereunder and upon receipt of an invoice for such taxes, levies and charges. If Trustly is required to pay any such taxes, levies or charges in connection with its provision of the Transaction Services (other than taxes based, in whole or in part, on the net income, profits or employees of Trustly) under this Agreement, Merchant shall promptly reimburse Trustly therefor or pay such amount directly to the applicable governmental authority as provided by Applicable Law.
7.3 Late Payments; Disputes. If any Fees payable are not paid within the period set forth on in an applicable SOW, or within thirty (30) days from the date of an invoice should in an applicable SOW, not include a payment period, Merchant shall pay to Trustly interest on the amount outstanding from the date due until payment is made, at the rate of the lesser of 1.5% per month or the maximum interest rate payable by law. If Merchant believes, in good faith, that the amount of any Fees set forth in an invoice or statement is not correct, it may dispute such amount by providing prompt written notice to Trustly, which notice shall describe in reasonable detail the basis for such dispute, and shall be delivered no later than fifteen (15) days after the date of the invoice or statement giving rise to the dispute. Trustly and Merchant shall work together in good faith to resolve any disputes in the amount of the Fees; provided that the amount of all Fees shall be deemed final if such written notice is not received within fifteen (15) days of the date of any invoice or statement from Trustly detailing such Fees.
8. Warranty and Disclaimer
8.1 Limited Warranty. Trustly warrants that the Transaction Services, when used as permitted under this Agreement, will conform in all material respects to the Documentation provided. Trustly shall have no obligation with respect to any warranty claim unless notified in writing of such claim within thirty (30) days of the first instance of any material functionality problem. The warranty set forth in this Section 8.1 is made to and for the benefit of Merchant only. Such warranty shall only apply if the Transaction Services have been utilized in accordance with the Documentation, this Agreement, and Applicable Law.
8.2 Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES PROVIDED ABOVE, THE TRANSACTION SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE BEING PROVIDED “AS IS”, “WITH ALL FAULTS”, WITHOUT ANY WARRANTY OF ANY KIND, AND TRUSTLY HEREBY DISCLAIMS FOR ITSELF AND ANY DATA PROVIDERS, ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NEITHER TRUSTLY NOR ANY DATA PROVIDER MAKE ANY WARRANTY, AND PROVIDES NO ASSURANCE, THAT THE TRANSACTION SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE OR THAT THE TRANSACTION SERVICES WILL MEET MERCHANT’S REQUIREMENTS, MEET CERTIFICATION REQUIREMENTS OF ANY REGULATORY OR LICENSING AGENCY OR THAT ALL ERRORS IN THE TRANSACTION SERVICES AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE TRANSACTION SERVICES AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS AND MERCHANT’S LOCAL NETWORK AND EQUIPMENT) WILL BE AVAILABLE AND FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MERCHANT ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTY PROVIDED ABOVE.
9. Indemnity and Exceptions
9.1 Trustly Indemnity. Trustly shall at its expense defend or, at its option, settle any third party claim or action against Merchant to the extent such claim or action is based on an allegation that the use of the Transaction Services by Merchant in accordance with this Agreement infringes a U.S. copyright, patent or trademark, or misappropriates a trade secret recognized as such under the Uniform Trade Secret Law and Trustly shall pay, subject to the limitations set forth below, those damages and costs finally awarded against Merchant in such claim or action which are specifically attributable to such allegation. If the Transaction Services are, or in Trustly’s opinion are likely to become, the subject of such an allegation of infringement or misappropriation, then Merchant shall permit Trustly, at its option and expense, either to (a) procure for Merchant the right to continue using the Transaction Services, (b) replace or modify the Transaction Services with services of equivalent functionality so that they become non-infringing and do not include any misappropriated trade secrets, or (c) terminate this Agreement and refund to Merchant all prepaid and unused Fees, if any. THE FOREGOING STATES THE ENTIRE LIABILITY OF TRUSTLY AND MERCHANT’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
9.2 Exceptions. Trustly shall have no liability to Merchant under Section 9.1 or otherwise for any claim or action alleging infringement or misappropriation that arises from (a) any use of the Transaction Services not in accordance with this Agreement or in a manner other than as specified by Trustly; (b) Trustly’s compliance with Merchant’s specifications or instructions; (c) Merchant’s continuation of an allegedly infringing activity after being notified thereof; or (d) any use of the Transaction Services in combination with other products, equipment, devices, software, systems or data not supplied by Trustly (including without limitation any software or services produced by Merchant for use with the Transaction Services) to the extent such claim is directed against such combination.
9.3 Merchant Indemnity. Merchant shall at its expense defend, or at its option, settle any third party claim or action against Trustly, to the extent that such claim or action is based on (a) an infringement or misappropriation action or claim against Trustly which is based on any of the circumstances or conduct described in the preceding Section 9.2 (b) damages, losses, settlements, penalties, fines, liabilities and cost related to data breach, security incident or unauthorized use of Trustly’s systems or otherwise involving End User Data accessed by or in the possession of Merchant, (c) Merchant’s breach of any of its representations, warranties, and obligations under this Agreement, (d) Merchant’s negligence or failure to comply with Applicable Law, or (e) Merchant’s use of any third party gateway or gateway services, and, in each case, Merchant shall pay those damages and costs finally awarded against Trustly in connection with such action or claim.
9.4 Indemnification Procedure. If a claim for indemnification may be made under this Section 9, the Party to be indemnified hereunder (the “Indemnified Party”) will give the Party providing the indemnity (the “Indemnifying Party”) prompt written notice of the claim (provided, however, that any delay in notification will not relieve the Indemnifying Party of its obligations under this Agreement except to the extent that the delay materially prejudices the Indemnifying Party) and cooperate reasonably with the Indemnifying Party, at the Indemnifying Party’s expense, in connection with the defense and settlement of the claim. The Indemnifying Party will, at its own expense, to the extent legally possible, have sole control of the defense or settlement of the claim; provided, however, that in settling any claim, the Indemnifying Party will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by or the imposition of any liability upon the Indemnified Party without the prior written approval of the Indemnified Party. The Indemnified Party will have the right to participate fully, at its own expense and with counsel of its own choosing, in the defense of any claim.
10. Limitation of Liability
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, AND SUBJECT TO SECTIONS 8.2 AND 9 HEREIN: (A) TRUSTLY’S, AND ITS AFFILIATES’, VENDORS’, SUPPLIERS’, THIRD PARTY PROCESSORS’, AND LICENSORS’ AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE LESSER OF (i) $1,000,000.00 OR (ii) THE AGGREGATE FEES PAID OR PAYABLE BY MERCHANT TO TRUSTLY UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM; (B) NEITHER TRUSTLY NOR ITS AFFILIATES, VENDORS, SUPPLIERS DATA PROVIDERS, THIRD PARTY PROCESSORS OR LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, PUNITIVE AND/OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), EVEN IF TRUSTLY OR ANY OF ITS AFFILIATES, VENDORS, SUPPLIERS, DATA PROVIDERS, THIRD PARTY PROCESSORS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) TRUSTLY, AND ITS AFFILIATES, VENDORS, SUPPLIERS, DATA PROVIDERS, THIRD PARTY PROCESSORS AND LICENSORS SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT. THE FOREGOING STATES THE ENTIRE LIABILITY OF TRUSTLY AND ITS AFFILIATES, VENDORS, SUPPLIERS, DATA PROVIDERS, THIRD PARTY PROCESSORS AND LICENSORS WITH REGARD TO THIS AGREEMENT AND THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT. THE LIMITATIONS OF LIABILITY CONTAINED IN SECTIONS 8.2 AND 9 ABOVE AND THIS SECTION 10 ARE A FUNDAMENTAL PART OF THE BASIS OF TRUSTLY’S BARGAIN HEREUNDER, AND TRUSTLY WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS WILL APPLY ONLY TO THE EXTENT NOT PROHIBITED BY LAW.
11. Term and Termination
11.1 Term. The term of this Agreement shall start on the Effective Date and remain in effect unless terminated by either Party or until the expiration or termination of all SOWs (the “Term”). Termination of this Agreement automatically terminates all active SOWs.
11.2 Termination. Either Party shall have the right to terminate this Agreement or any SOW under this Agreement, upon written notice, if any of the following circumstances occur: (a) the other Party’s breach of its obligations hereunder and such breach continues for a period of thirty (30) days after receipt by the breaching party of written notice from the non-breaching party specifying such default; or (b) the Transaction Services are suspended or discontinued as a result of a third party action and such suspension or discontinuation is expected to continue for two (2) months or greater; or (c) after one (1) year from the Effective Date for any reason with ninety (90) days written notice to the other party.
11.3 Termination by Trustly. Trustly shall have the right to terminate this Agreement, or any SOW under this Agreement, upon written notice if any of the following circumstances occur: (a) a material change to any Applicable Law to which Trustly is required to comply, (b) a material increase in the fees Trustly is required to pay to provide the Transaction Services, makes it commercially impracticable for Trustly to continue to provide the Transaction Services; (c) Merchant violates the NACHA Rules or Trustly’s Terms of Use or Privacy Policy; (d) a change in Trustly’s underwriting or risk requirements, or a change in Merchant’s business that violates Trustly’s underwriting or risk requirements, causes Trustly to be unable to provide the Transaction Services to the Merchant, or (e) Merchant does not timely respond to requests for information as set forth in Section 5.4..
11.4 Termination by Merchant. Merchant shall have the right to terminate any SOW under this Agreement or this Agreement upon written notice without cause within thirty (30) days of the effective date of the fee increase described in an applicable SOW.
11.5 Effect of Termination. In the event of termination by either Party for any reason, all accrued Fees and other payments shall become immediately due and payable by Merchant and any prepaid Fees which have not yet become due and payable shall be refunded to Merchant.
11.6 Survival. Notwithstanding anything to the contrary contained in this Agreement, Sections 1 (Definitions), 4.1 (Ownership), 6 (Confidentiality), 8.2 (Disclaimer), 9 (Indemnity and Exceptions), 10 (Limitation of Liability), 11 (Term and Termination), 12 (General), and Merchant’s obligation to use, store, disclose, and process End User Data subject to the Terms of Use and Privacy Policy shall survive any termination of this Agreement.
12. General
12.1 Trustly Affiliates. Trustly is part of a group of companies (“Trustly Affiliated Companies”) which are all under the common control of Trustly Holding AB, a Swedish limited liability company. Depending upon the needs of Merchant, Trustly may utilize the services of one or more Trustly Affiliated Companies to perform or deliver certain of the Services. Except as specifically set forth in this Agreement, Merchant shall not have any obligation to any Trustly Affiliated Company; (a) the use of any Trustly Affiliated Company shall not release Trustly from its obligations hereunder or under any SOW; and (b) Trustly shall be solely responsible for all payments to any Trustly Affiliated Company performing Services on behalf of Merchant under this Agreement.
12.2 Service Level and Support. Trustly’s service level and support obligations are set forth in the Service Level Agreement and apply only if Merchant is current with its payment of the Fees for the Term (as defined in Section 11.1). If Trustly’s service and support fail to achieve the levels set forth in the Service Level Agreement, other than as a result of a third party action outside of the reasonable control of Trustly, then Merchant will be entitled, as its sole and exclusive remedy, to the credit set forth in such Service Level Agreement. Any additional support services provided by Trustly in connection with matters that are not classified as service errors in the Service Level Agreement will be provided to Merchant on a time and materials basis as Professional Services upon the mutual agreement of the Parties in writing.
12.3 Marketing. Trustly may publicly disclose Merchant’s name when included in a list of Trustly customers. Subject to Merchant’s approval, which will not be unreasonably withheld, Trustly may issue a press release concerning this Agreement or publish a case study describing Merchant’s realized benefits of using the Trustly Services, and post such press release on Trustly’s website. Merchant agrees to provide a quote for the press release and/or case study and to promptly review drafts. Merchant agrees that, upon Trustly’s reasonable request, it may be designated as a “reference account” for Trustly, and that Trustly may use Merchant’s name and logo in Trustly’s marketing and communications materials. In addition, Trustly may request, upon Merchant’s approval, which will not be unreasonably withheld, Merchant’s participation as a “co-presenter” for an agreed upon Trustly event (i.e., webinar, panel, fireside chat, etc.).
12.4 Integration. This Agreement is the final and complete agreement between the Parties relating to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter. Any term or condition in any order, confirmation or other document furnished by either Party or in any oral communication from either Party before or after the Effective Date which is in any way inconsistent with or in addition to the terms and conditions set forth in this Agreement is hereby expressly rejected.
12.5 Governing Law and Venue. This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the State of California without regard to conflict of laws principles that would require the application of the laws of any other jurisdiction. Merchant hereby acknowledges and agrees that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Francisco County, California and the Parties hereby irrevocably consent to the personal jurisdiction and venue therein.
12.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, such provision shall be enforced to the maximum extent possible and the remaining provisions hereof shall be unaffected and remain in full force and effect.
12.7 Modification. Any modification, amendment, supplement, or other change to this Agreement must be in writing and signed by duly authorized representatives of Trustly and Merchant. As used herein, the term “Agreement” shall include any such future modifications, amendments, supplements or other changes hereto.
12.8 Non-assignable. Except as otherwise set forth herein, no right or obligation of either Party under this Agreement shall be assigned, delegated or otherwise transferred, whether by agreement, operation of law or otherwise, without the express prior written consent of the other Party, except to an entity who acquires all or substantially all of the assets or business of a Party, whether by sale, merger or otherwise. Any attempt to otherwise assign, delegate or transfer any of such Party’s rights or obligations hereunder, without such consent, shall be void. Subject to the preceding sentence, this Agreement shall bind both Parties and their permitted successors and assigns
12.9 Third Party Beneficiaries. If a Third Party Processor provides Processing Services hereunder, the Third Party Processor is an intended third party beneficiary of this Agreement and shall have the right to enforce the terms of this Agreement which relate to the provision of the Processing Services directly against Merchant; provided that such enforcement rights shall not be subject to any counterclaim, defense, or other offset that Merchant may have against Trustly.
12.10 Waivers. All waivers must be in writing. The failure of either Party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, shall not be deemed to be a waiver for the future of such provision or right, and no waiver of any provision or right shall affect the right of the waiving Party to enforce any other provision or right herein.
12.11 Remedies. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently and shall not be deemed exclusive except as provided in Sections 8.2, 9.1, and 12.2. If any legal action is brought to enforce any obligations hereunder, the prevailing Party shall be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.
12.12 Force Majeure. Neither Party will be responsible for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including without limitation, delays or errors in clearing or processing Transactions caused by the ACH network or Federal Reserve system, acts or omissions of court, government or military authority, acts of God, shortages of materials, transportation delays, internet malfunction, electrical power failure, telecommunications or utility failures, fires, floods, labor disturbances, riots or wars, hosting or similar services outages or denial of service, including a Financial Institution’s denial of service.
12.13 Construction. The headings and subheadings contained herein shall not be considered a part of this Agreement.
12.14 Notices. All notices, requests, demands and other communications hereunder shall be effective if in writing and delivered personally or sent by electronic mail, facsimile, Federal Express or other priority delivery service, or by certified or registered mail, postage prepaid, to the applicable Party at such Party’s address(es) indicated on the signature page of this Agreement. Unless otherwise specified herein, such notices or other communications shall be deemed effective (a) on the date delivered, if delivered personally, (b) two (2) Business Days after being sent, if sent by Federal Express or other priority delivery service, (c) one (1) Business Day after being sent, if sent by electronic mail or facsimile with confirmation of receipt, and (d) five (5) Business Days after being sent, if sent by registered or certified mail. Either Party may specify another address by giving notice as provided in this Section 12.14 to the other Party.
12.15 Relationship of Parties. Nothing contained in this Agreement shall be construed to constitute either Party hereto as the partner, joint venturer, employee, agent or other representative of the other Party hereto.
12.16 Relationship Management. Each of the Parties agrees to appoint and keep in place during the term of this Agreement one or more relationship managers who will be the central point of contact for all matters arising under this Agreement, including customer service matters, and have overall responsibility for the facilitation of the performance of the obligations of each Party contemplated hereby (“Relationship Manager”). In the event a dispute arises between the Parties under this Agreement or a Party’s performance hereunder, the matter shall first be escalated to the Party’s Relationship Manager in an attempt to settle such dispute through consultation and negotiation in good faith and a spirit of mutual cooperation. Except where prevented from doing so by the matter in dispute, the Parties agree to continue performing their obligations under this Agreement while any good faith dispute is being resolved unless and until such obligations are terminated by the termination or expiration of this Agreement.
12.17 Responsibility for Subcontractors. Merchant remains fully responsible for obligations, services, and functions performed by its subcontractors under this Agreement to the same extent as if such obligations, services, and functions were performed by Merchant’s employees, and for the purposes of this Agreement such work will be deemed work performed by the Merchant. Trustly reserves the right to require the replacement of any subcontractor found by Trustly to be unacceptable.
12.18 Dispute Resolution. In the event a dispute arises between the Parties under this Agreement or a Party’s performance hereunder, the matter shall first be escalated to the Party’s Relationship Manager in an attempt to settle such dispute through consultation and negotiation in good faith and a spirit of mutual cooperation. Thereafter, each Party agrees that before it or any employee, agent or representative of the Party files a claim or suit with a federal or state agency or court or other public forum, it shall provide thirty (30) days’ prior written notice to the other Party and that, within such thirty (30) day period (or longer if extended by mutual agreement of the Parties), authorized representatives of the Parties shall meet at least once in a good faith effort to resolve the perceived dispute.
