Terms of Use

This is an agreement between Thunderxpay US, Inc. (“Thunderxpay”) and the business (“User”) accepting these terms of use through the Site, or by other means acceptable to Thunderxpay.

Depending on where you are located, and whether you are a User that is a Payor or a Payee, “Thunderxpay” will refer to one of the following, as indicated at the time of your acceptance of these terms of use:

Thunderxpay US, Inc., a Delaware company, having its registered agent’s address at 3500 South Dupont Highway, Dover, Delaware, USA 19901;

These terms of use (the “Agreement”) cover User use of Thunderxpay Services. Capitalized terms are defined in the Glossary at the end or elsewhere below.

Thunderxpay Services are a data transfer and storage service only and do not include financial transactions. All financial transactions are between User and its Payments Provider and are governed pursuant to separate Payments Provider Agreements between User and its Payments Provider to which Thunderxpay is not a party.

Thunderxpay Services
1. Thunderxpay will provide secure data transmission and data processing for multiple business-to-business payment methods under this Agreement (the “Thunderxpay Services”).
User Account
1. Thunderxpay shall grant User a unique digital Account to access the Thunderxpay Services and a record of Transactions. Thunderxpay shall provide User with access codes for the Account. User shall not disclose such codes or permit any third party to use them. User has full responsibility for use of its Account and its access codes. User will be given preferences in the Account. User is exclusively responsible for those selections, even if they contain errors on the part of the User or cause losses to the User. Except as required to deliver the Thunderxpay Services or as required by law, Thunderxpay will not grant any third-party access to the User’s Account.
2. The Thunderxpay Services may allow for the User to create more than one Account. Each Account and the use thereof shall be governed pursuant to this Agreement.
Regulatory Disclosure
1. Thunderxpay is not a bank, provider of prepaid access, emoney issuer, payment institution, Card issuer or money transmitter. Thunderxpay does not take possession or control of User funds that constitute Payment Transactions. Instead, Thunderxpay collects, stores and discloses Data as a service to the User hereunder. Thunderxpay Services are integrated with third party Payments Providers with whom User may have independent agreements by which Payment Transactions may occur, at the discretion of User.
2. Notwithstanding the foregoing, Thunderxpay operates pursuant to an anti-money laundering program and will monitor User Account activity and Transactions for compliance with such policy.
Intellectual Property
1. The Thunderxpay Services are protected by copyright, trade secret and other Intellectual Property Rights. Thunderxpay owns the title, copyright and other worldwide Intellectual Property Rights in the Thunderxpay Services. Nothing in this Agreement grants User any right, title or interest in the Thunderxpay Services or other software or Intellectual Property Rights of Thunderxpay. All Intellectual Property Rights relating to the Thunderxpay Services and all elements thereof shall be and shall remain the property of Thunderxpay. User shall make no copies of the Thunderxpay Services for any purpose whatsoever. Thunderxpay reserves all rights not expressly granted to User in this Agreement. User shall access Thunderxpay Services only through the Site or such other means as Thunderxpay shall expressly enable. User shall not remove any trademarks or other notices from the Thunderxpay Services. User shall not sell, modify, distribute, prepare derivative programs of, or grant to any third party the right to use the Thunderxpay Services in any manner.
Security
1. User shall operate its business in a manner that provides security for Data. User shall maintain User’s System in a manner that adheres to customary security standards and those required by its Third Party Servicers or by Thunderxpay, from time to time. Thunderxpay is not liable for the security, operation or failure of User or Third Party Servicer systems.
Prohibited Activities
1. Thunderxpay Services cannot be used for absolutely any purpose.
2. User shall use the Thunderxpay Services for only good faith business Transactions for its own business purposes and not on behalf of third parties. User shall not use the Thunderxpay Services to, directly or indirectly, assist in any activity that is illegal in the U.S., the jurisdiction of User or its Customers or in any other any Prohibited Activity (all of which are listed below in the Glossary). User shall not use services of a third party that are similar or competitive with the Thunderxpay Services.
Prohibited Users
1. Thunderxpay Services are not offered to absolutely everyone.
2. The following Persons are prohibited from using the Thunderxpay Services: (i) Persons who appear on the United States Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN), other similar lists or who are nationals or residents of Cuba, Iran, North Korea, Sudan, or Syria; (ii) Persons who are less than 18 years of age; (iii) Persons who are not residents or located in the Territory; and (iv) Persons, or their Affiliates who have been subject to an Account termination with cause.

User Data Transactions
1. Thunderxpay shall provide data Transactions in order to assist User in initiating Payment Transactions with their Payments Providers, including Card Issuing, Card Load, Card Spend and Card Processing, each as discussed below in section 11.
2. User can initiate Transactions through their Account. In each Transaction, Data is sent to, from or between User, Thunderxpay, a Customer, a Payments Provider or other Third Party Servicer. User is exclusively responsible for the accuracy and completeness of Data and instructions that it provides to Thunderxpay.
3. User shall review Transactions and its Account frequently and immediately notify Thunderxpay of any irregularities or suspected unauthorized activity. User shall, for its part, collect only data that is necessary for Transactions, as determined by Thunderxpay. User collection, storage and disclosure of information shall be in accordance with Applicable Laws, its own privacy policy and agreements.
4. User shall review Transactions and its Account frequently and immediately notify Thunderxpay of any irregularities or suspected unauthorized activity. User shall, for its part, collect only data that is necessary for Transactions, as determined by thunderxpay. User collection, storage and disclosure of information shall be in accordance with Applicable Laws, its own privacy policy and agreements.
5. User Data in the Thunderxpay Services shall be administered in compliance with Thunderxpay’s privacy policy. User accepts the terms of the thunderxpay privacy policy.

Thunderxpay Integrations
1. Thunderxpay Services are integrated with one or more Issuers and Acquirers, as indicated in the Account. Issuers and Acquirers are Third Party Servicers of User, as per User preferences indicated in the Account, and the corresponding Third Party Servicer Agreements.
2. Thunderxpay Services are integrated with one or more Issuers and Acquirers, as indicated in the Account. Issuers and Acquirers are Third Party Servicers of User, as per User preferences indicated in the Account, and the corresponding Third Party Servicer Agreements.
3. User is responsible to obtain all necessary privacy consents under Applicable Law for Thunderxpay to collect, use and disclose such User Data under this Agreement.
Contract Formation Service
1. User can view and accept agreement for a Card to be issued to the User by an Issuer, or other agreements, through the Account (the “Contract Formation Service”).
2. In the Contract Formation Service, Thunderxpay will present Third Party Servicer Agreements to User for acceptance. User shall diligently review and make a copy or download a copy of each such agreement before accepting them. Where the User indicates their acceptance of a Third Party Servicer Agreement through the Account, the User is instructingThunderxpay
3. to make an electronic record of that acceptance on behalf of the User or the Third Party Servicer and deliver it to the Third Party Servicer via a Transaction. A Third Party Servicer may decline to provide services to User, or amend or suspend such services, even if User has accepted their Third Party Servicer Agreement through the Account and Thunderxpay shall not be liable for such decision. The User’s status as a client of a Third Party Servicer may be ‘pending’ or otherwise in suspense, at the discretion of such Third Party Servicer.
4. User acknowledges that Thunderxpay is not a party to Third Party Servicer Agreements (e.g. Issuer agreements or Acquirer agreements) and Thunderxpay makes no representation and assumes no liability for the legal effectiveness of any Contract Formation Service Transaction, related signature or Third Party Servicer Agreement, all of which is the exclusive responsibility of the User. User shall not make any claim versus Thunderxpay for any default or wrongdoing by a Third Party Servicer even if the Third Party Servicer Agreement was formed using the Contract Formation Service.
5. The Contract Formation Service may be used, at the discretion of Third Party Servicers and User, to amend pre-existing Third Party Servicer Agreements. For example, a Payee may amend its Acquirer agreement. In such cases, Thunderxpay will not provide User with access to the underlying Third Party Servicer Agreement being amended; User shall look only to the Third Party Servicer for such documentation.
6. User shall not deny having accepted Third Party Servicer Agreement terms that it has accepted through the Contract Formation Service in its Account. Third Party Services shall be third party beneficiaries under this section.
7. Thunderxpay may collect certain know-your-customer and anti-money laundering information concerning User on behalf of the Third Party Servicer. If User declines to provide such information, Thunderxpay or the Third Party Servicer may decline to offer its services to User.

Payment Transactions
1. For each Payment Transaction there is a payor (“Payor”) and a payee (“Payee”). User can be either a Payor or a Payee, but never both for a given Payment Transaction. Subject to User preferences and Thunderxpay compatibility with a given Payments Provider, as indicated in the Account, Thunderxpay Services data Transactions may result in Payments Provider receiving Data concerning the following Payment Transactions:
  
  Card Issuing: Using the Contract Formation Service, Payor accepts cardholder terms with an Issuer for a Card issued to Payor;
  
  Card Load: On Payor Transaction instructions, Issuer debits the Payor User Deposit Account funds and credits them to a (i) Card Account or (ii) a Payor Card, as per terms the Payments Provider Agreement between Payor and Issuer ;
  
  Card Spend: On Payor Transaction instructions, coupled with compatible Payee Transaction instructions, Thunderxpay to delivers the Payor Card information to a Payee or their Payments Provider, so that Payee can process a Payment Transaction on the Card. As per Payor instructions, some Card spend Transactions result in a Payee accepting the Card of the Payor where the Payee is not a party to this Agreement; such Transactions shall not alter the obligations of Payor or Thunderxpay with respect to each other under this Agreement; or
  
  Card Processing: On Payee Transaction instructions, Thunderxpay delivers the Payor Card information to the Payments Provider of Payee so that the Payments Provider can process a Payment Transaction on the Card. The Payments Provide Agreement of Payee with its Acquirer will determine the precise amount, if any, that will be settled to Payee as a result of a Card Transaction. Such amount will vary, amongst other reasons, as a result of the exchange rate applicable to the Transaction, if any, which will vary from time to time.
2. Thunderxpay shall receive and deliver Payment instructions with respect to Payment Transactions on either an individual basis or on a recurring basis (the latter being “Recurring Transactions”). Recurring Transactions, will result in Thunderxpay delivering multiple instructions for Payment Transactions that may each be identical or may be in varying amounts, all as per instructions received by Payor, Payee and the corresponding Payments Providers, as the case may be. User shall review all Recurring Transaction instructions carefully and shall immediately inform Thunderxpay if it wishes to terminate any such instructions.
3. Vis-à-vis its Payments Providers and other Third Party Servicers, User appoints Thunderxpay as its agent to deliver Transaction Data. Thunderxpay is not, however, party to any Payments Transactions nor related Third Party Servicer Agreements. Thunderxpay never takes possession or control of Payment Transaction funds; they are in the possession and control of the applicable Payments Provider of the User.
4. Thunderxpay may add or remove Payment Transaction integrations, at its discretion, as indicated on the Sire or in the Account from time to time.
User Relationships
1. Thunderxpay is not party to the commercial relationships that necessitates Transactions or Payment Transactions. Thunderxpay has no liability for the products or services sold, provided, purchased or procured by User or Customer (each such product or service, being “Product”).
Fees
1. We do no charge a fee for Thunderxpay Services. The consideration given by User in exchange for the Thunderxpay Services is the User’s acceptance of this Agreement and submission of Transactions. Where a fee is charged by an Issuer for a Card, Thunderxpay shall pay such fee, provided that Thunderxpay reserves the right to instruct Payee’s Acquirer for the Card deduct the amount of such fee from Card Processing Payment Transactions on such Card and deliver the same to Thunderxpay.
2. Please refer to Payments Provider Agreements for fees charged by Payments Providers. Where indicated in User Account disclosure, Thunderxpay may cause User to receive cash back as an incentive compensation in consideration of use of Thunderxpay Services that will vary from one Transaction to another and at the discretion of Thunderxpay (such payments being “Cash Back”).
User Representations
1. User hereby warrants and covenants to Thunderxpay that:
  1. Duly Constituted. The User is a business or carries on an organized economic activity for profit or otherwise and, if it is not an individual acting in a business capacity, it is duly constituted under the laws of its constituting jurisdiction. Further, the User has legal capacity to enter into this Agreement and perform its obligations hereunder. The User is registered as a business in every jurisdiction where it carries on business and such registration is required;
  2. Duly authorized. User has the necessary corporate power and authority to execute this Agreement and to perform its or his obligations hereunder. Such execution and performance by the User does not require any action or consent of, any registration with, or notification to, any person, or any action or consent under any laws or regulations which the User is subject;
  3. Notice of Defects. User will immediately advise Thunderxpay and User’s customers in writing of defects in the Product or any claim or threatened claim against it in relation to the Product;
  4. Compliance with Applicable Laws. The Product conforms to all Applicable Laws in the jurisdictions where Thunderxpay, User and its customers are located. User will conduct its business affairs in an ethical manner and in accordance with the terms and intent of this Agreement, and in compliance with all Applicable Laws and regulations, including but not limited to all laws and regulations applicable in each jurisdiction where the Product is sold. User shall not use the Thunderxpay Services to sell or promote or otherwise facilitate any Prohibited Activities. User will not use the Thunderxpay Services to assist in the illegal import or export of goods or services;
  5. Solely for Business Purposes. User shall use the Thunderxpay Services exclusively for business purposes or in the course of carrying on an organized economic activity, whether for profit or otherwise;
  6. Opportunity to Consult Counsel. User has had the opportunity to consult legal counsel for the purpose of reviewing and obtaining advice as to the terms hereof;
  7. Taxes on Product. To the extent that User is responsible for collecting taxes from its customers for the sale of Product, then such responsibility shall be solely that of the User;
Term and Termination
1. Term and Termination. The term of this Agreement begins when User accepts it and ends when either party terminates it. User can terminate this Agreement by closing their Account. Thunderxpay can terminate this Agreement by closing the User’s Account or by notice to the User at any time for any reason or for no reason.
2. Procedure upon Termination. Upon any termination of this Agreement, User shall no longer be entitled to use the Account or any other part of the Thunderxpay Services. Termination of this Agreement shall not relieve the User of its obligations to settle any liabilities to Thunderxpay that accrued before or after termination. User shall bear the whole of its costs associated with any termination, including but not limited to finding a substitute supplier of services similar to those of Thunderxpay. For up to thirty (30) days following termination, Thunderxpay shall permit User to download from the Account User Data stored therein in a format prescribed by Thunderxpay. Thunderxpay reserves the right to permanently delete all data related to User Transaction Data and other User information in Thunderxpay Services within thirty (30) days of termination of this Agreement.
3. Discontinuance. Thunderxpay reserves the right to modify or discontinue the Thunderxpay Services at any time.
Confidentiality
1. Each party acknowledges that it may directly or indirectly disclose Confidential Information to the other party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each party agrees to treat such Confidential Information with the same degree of care and security as it treats its most confidential information, but in no event with less than a reasonable degree of care. Each party may disclose such Confidential Information to employees and agents who require such knowledge to perform services under this Agreement provided such employees and agents have agreed to abide by the confidentiality provisions set forth herein. Except as otherwise contemplated by this Agreement, neither party shall disclose the Confidential Information of the other party to any third party without the prior written consent of the disclosing party, and the duty of confidentiality created by this section shall survive any termination of the Agreement.
2. For the purposes of this Agreement, “Confidential Information” means all proprietary, secret or confidential information or data relating to either party and its Affiliates, operations, employees, products or services, clients or customers. Confidential Information, to be such, must be of a nature that it is reasonably expected to be kept confidential. Confidential Information shall include customer lists, cardholder account numbers, pricing information, computer access codes, instruction and/or procedural manuals, software, APIs, Data, and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by law. Thunderxpay Data includes, without limitation, pricing hereunder, the terms of this Agreement, all information provided to User concerning or through the Thunderxpay Services and information concerning integrations of Thunderxpay Services. Thunderxpay shall have the right to collect and use anonymized User Data to improve its services and for fraud and risk screening. Without limitation, Thunderxpay Data shall be Confidential Information of Thunderxpay
3. . Notwithstanding the foregoing,Thunderxpay
4. can disclose User Confidential Information to Third Party Servicers and other third parties as necessary to provide theThunderxpay
5. Services and for such Third Party Servicers to provide their services.
Indemnification
1. In addition to the other indemnifications included herein, User shall defend, indemnify and hold harmless the Thunderxpay Indemnified Parties, their assigns, and successors-in-interest from and against any and all third-party liability, damages, losses, claims, demands, actions, causes of action and costs (including attorneys’ fees and expenses) arising out of or resulting from (i) User’s failure to comply with its obligations under this Agreement; (ii) User’s performance under this Agreement including, without limitation, performance, non-performance, or defect in performance, any statement, misstatement, representation or misrepresentation made by User or any representative of User; (iii) the alleged or actual negligent or willful acts or omissions of User, User’s agents and/or employees; (iv) Product and any taxes or other liabilities related thereto; (v) statements, claims, representations or warranties made by User or User’s agents and/or employees, relating to the Products or any other matter; (vi) User’s operation of its business; (vii) activity in the User’s Account; (viii) any claim by any Payments Providers, Third Party Servicer or other third party with respect to User; (ix) any costs related to Thunderxpay response to a subpoena related to User or any of its Customers; (x) any termination or suspension of Thunderxpay Services; and (xi) any liability on the part of Company for User failing to perform under a Third Party Servicer Agreement.
2. In some instances, Thunderxpay has undertaken, for the benefit of Payees or other third parties, to guarantee performance by Users who are Payors. Where Thunderxpay has given such a guarantee and a User, who is a Payor, fails to fulfill their obligations vis-à-vis the Payee, such Payor/User shall indemnify and hold Thunderxpay harmless for Thunderxpay’s liabilities under its guarantee, provided, however, that the Payor/User shall not be liable for more than the face-value of the amounts that it had agreed to pay the Payor.

LIMITATION OF LIABILITY
1. THE THUNDERXPAY SERVICES ARE PROVIDED ON AN “AS-IS”, “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THUNDERXPAY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE THUNDERXPAY SERVICES WILL BE INTERRUPTION OR ERROR FREE.
2. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THUNDERXPAY, ITS SUPPLIERS, AGENTS AND LICENSORS, SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO USER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF THUNDERXPAY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EXCEPT AS REQUIRED BY LAW, IN NO EVENT SHALL THUNDERXPAY’S LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO THE USER, OR ANY THIRD PARTY, IN ANY WAY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT EXCEED ONE HUNDRED UNITED STATES DOLLARS.
3. Thunderxpay shall use its commercially reasonable efforts to perform its obligations hereunder, however, Thunderxpay, its Affiliates, agents or licensors shall not be liable for any loss resulting from the activities of User, nor from any erroneous statements or errors in transmission, nor for any loss resulting from any delay, interruption or failure to perform hereunder due to any circumstances beyond Thunderxpay’s reasonable control including, without limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, sabotage, accident, embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment. Thunderxpay’s obligations hereunder shall be suspended during any of the foregoing circumstances, which suspension shall not be a cause for termination of this Agreement by User.
General
1. Notices. All notices under this Agreement shall be delivered by email. Notices to the User shall be delivered to the email last indicated as current in the Account. Notices to Thunderxpay shall be sent to thunderxpay@thunderxpay.com. Notices shall be deemed received within two (2) business days of the sending thereof.
2. Electronic Communication. User agrees that Thunderxpay may provide agreements and disclosures related to Thunderxpay Services to you electronically (via email, on the Site or in the Account) instead of in paper form. During the term that User maintains an Account with Thunderxpay, User shall provide Thunderxpay with and maintain a valid email address for information that will be delivered by email and User shall promptly notify Thunderxpay of any change in email address. User understands that Thunderxpay’s ability to provide User information by email is dependent upon the maintenance of a valid email address. For information that will only be provided via the Site or the Account, such as periodic Transaction histories, it is User’s responsibility to check the Account for current information.
3. Independent Contractor. Neither party has any right to create any obligations on the part of the other party, without the other’s prior written consent. Nothing in this Agreement or the course of dealing of the parties shall be construed to constitute the parties hereto as partners, joint ventures or as agents or employees of one another or as authorizing either party to obligate the other in any manner.
4. On-Line or Written Formation of Contract. By acceptance of the terms hereof on-line by User or by execution of a written acceptance of the terms hereof by User, this Agreement together with any supplemental agreements and appendixes constitute the entire validly legally binding agreement between the parties pertaining to the subject matter contained herein and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. No waiver of any of the provisions in this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
5. Amendments to this Agreement. From time to time Thunderxpay will post amendments or revisions to this Agreement on the Site, by e-mail or through the Account. Thunderxpay will provide notice of these amendments or revisions to User through the Site, by e-mail or through the Account. Such amendments share take effect thirty (30) days following being posted to the Site or the Account or such shorter time as may be necessary to comply with Applicable Law or Payment Network rules. Other than as provided in this section, this Agreement may not be amended except by express consent of both parties through the Site or by such other means as Thunderxpay may reasonably prescribe. Notwithstanding the foregoing, Thunderxpay reserves the right, without any prior notice or consent, to change the method of access to Thunderxpay Services or the Account. In the event of an emergency, Thunderxpay reserves the right to suspend access the Thunderxpay Services.
6. Complaints. All complaints concerning Thunderxpay Services should be addressed to the contact information posted for Thunderxpay on the Site or within the Account and Thunderxpay shall respond to each of them within thirty (30) days.
7. Non-Disparagement. Neither party will publish negative statements concerning the other party during the Term of this Agreement. User shall not use the names, logos or marks of Thunderxpay other than as expressly permitted by Thunderxpay in writing.
8. Assignment. None of User or any of its successors may assign this Agreement, or any rights hereunder, directly or by operation of Applicable Law, without the prior written consent of Thunderxpay which consent may be withheld for any reason, at Thunderxpay’s sole discretion. Thunderxpay may assign any of its rights or obligations hereunder without prior notice to or consent of User. Thunderxpay reserves the right to perform some of all of its obligations under this Agreement through subcontractors.
9. Successors. This Agreement and the provisions hereof shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
10. Enforcement. The User shall be liable for and shall reimburse Thunderxpay for any and all reasonable attorneys’ fees and other costs and expenses paid or incurred by Thunderxpay in the enforcement of this Agreement, or in collecting any amounts due from User hereunder, or resulting from any breach of any of the terms or conditions of this Agreement by User. User shall also be responsible for any and all costs, fees or expenses of Thunderxpay in relation to or arising from responding to third party requests for Data or User information by third parties including but not limited to subpoenas or court orders for the same.
11. Remedies. All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.
12. Severability. If any provision of this Agreement is held invalid or unenforceable by an arbitrator, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.
13. Governing Law. This Agreement shall be governed exclusively pursuant to the laws of the State of New York, without giving effect to its conflicts of laws rules.
14. Arbitration and Waiver of Jury Trial. Any dispute arising out of this Agreement will be settled, exclusively, by binding arbitration in English by one (1) arbitrator who is a practicing New York attorney, in New York, New York, to be administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules. The parties each waive the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration or any other representative proceeding with respect to this Agreement; and EACH PARTY REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
15. Whole Agreement. References to “this Agreement” include any Account preferences, Agreement schedules, supplementary agreements, addendum, appendixes and amendments and any other agreements, schedules appendixes and amendments promulgated by Thunderxpay and furnished to User from time to time. This Agreement replaces any earlier versions hereof appearing on the Site or otherwise.
16. Interpretation. The division of this Agreement into sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. In this Agreement, words importing the singular number include the plural and vice versa; words importing gender include all genders; and words importing persons include individuals, sole proprietors, partnerships, corporations, trusts, other entities and unincorporated associations.
17. Survival. The following Sections shall survive termination of this Agreement: 3 Intellectual Property Rights in Services, 5 Security, 6 Prohibited Activities, 7 Prohibited Users, 14 User Representations, 15 Term and Termination, 16 Confidentiality, 17 Indemnification, 18 Limitation of Liability, 19 General and 20 No termination of this Agreement shall affect agreements formed through the Contract Formation Service.
Glossary
1. The following defined terms are used in this Agreement:
2. “Account” means an account made available by Thunderxpay to a User through which User can transmit instructions or receive information in relation to the Thunderxpay Services;
3. “Acquirer” means an acquiring bank or payment processor acting as a Payments Provider to a User who is a Payee on terms with that Payee;
4. “Affiliate” means, in relation to a Person, another Person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Person, or a Person’s principal partners, shareholders, or owners of some other ownership interest.
5. “API” means application programming interface;
6. “Applicable Laws” shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal bylaws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction;
7. “Application” means the paper or online application completed by User when applying for the Thunderxpay Services all of which is incorporated herein by reference;
8. “Card” means a Payment Network branded electronic or physical payment card that could be a debit card or credit card the issuance or use of which is compatible with the Thunderxpay Services;
9. “Card Account” or “Balance” means an account at Issuer where Payor can deposit funds that are to be later loaded on a Card, as per Payor instructions, pursuant to the Payments Provider Agreement (which is the Issuer’s cardholder agreement for the Card) between Payor and Issuer;
10. “Customer” means a client, supplier or other business relation of the User;
11. “Data” means User Data, Thunderxpay Data or both;
12. “Effective Date” means the date on which User electronically accepts this Agreement online or executes a written acceptance of the terms hereof.
13. “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
14. “Issuer” means a member of a Payment Network licensed to issue payment Cards that are compatible with such Payment Network;
15. “MasterCard” means MasterCard International, Incorporated;
16. “Thunderxpay Data” means information supplied to or from the Thunderxpay Services provided to or from User, a Payment Service Provider, a Third Party Servicer or
17. Thunderxpay
18. , through the Account or otherwise;
19. “Thunderxpay Services” is defined in section 1;
20. “Thunderxpay” has the meaning set out in the preamble of this Agreement;
21. “Payee” has the meaning set out in section 11. In this Agreement, any reference to Payee shall be to a User that is also a Payee;
22. “Payment Network” means Visa U.S.A., Inc., Visa International, Inc., MasterCard International, Inc., and any other credit or debit card issuing company;
23. “Payment Network” means Visa, MasterCard and such other payment networks whose members or licensees issue Cards;
24. “Payments Provider Agreement” means an agreement between User and a Payments Provider concerning the supply of Payment Services;
25. “Payments Provider” means a third party which is also party to a Payments Provider Agreement with User and is acting in that capacity;
26. “Payment Services” means the services of Payments Providers pursuant to Payments Provider Agreements, which might, at the discretion of User and the Payments Provider, include Card issuing, payment processing, emoney issuing, or other payment and related services;
27. “Payment Transaction” means a transaction involving the payment of funds, load of a Card, spending of funds on a Card or other User funds by way of User using a Payment Service Provider;
28. “Payor” has the meaning set out in section 11. In this Agreement, any reference to Payor shall be to a User that is also a Payor;
29. “Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, other forms of entity, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives thereof, acting in such capacity;
30. “Product” is defined in section 12;
31. “Rules” means the rules and regulations of Payment Networks, such as they may be from time to time;
32. “Site” means https://thunderxpay.com/ or such other site as Thunderxpay may use to supply the Thunderxpay Services;
33. “Territory” those jurisdictions where the Thunderxpay Services are not prohibited, as indicated herein or on the Site, from time to time;
34. “Third Party Servicer Agreement” means an agreement between User and a Third Party Servicer for the supply of Third Party Services to User;
35. “Third Party Servicer” means a third party retained by User to provide services to User which may or may not be integrated with the Thunderxpay Services. Each Payments Provider is a Third Party Servicer. A Customer could be, at the discretion of User, a Third Party Servicer;
36. “Third Party Services” means services of Third Party Servicers provided to User under a Third Party Servicer Agreement;
37. “Transaction” means information transmitted or attempted to be transmitted by way of the thunderxpay Services to from or between User, a Payments Provider another Third Party Servicer or thunderxpay;
38. “User Deposit Account” means a bank or other payment account of the User designated by the User in the Application or the Account that is acceptable to thunderxpay;
39. “User Site” means the web site(s) used by the User to solicit or service its customers;
40. “User” means a Person that has accepted this Agreement with thunderxpay for thunderxpay Services;
41. “Visa” shall mean VISA USA Incorporated or one of its Affiliates, licensees or licensors.
42. “Prohibited Activity” means the operation of or the direct or indirect facilitation of any of the following: any act that is illegal in the United States or in the jurisdiction where the person carrying out the activity is resident, domiciled or located;
  - Betting, including lottery tickets, casino gaming chips, off-track betting, memberships on gambling-related internet sites and wagers at races;
  - Bill payment services;
  - Credit counseling or repair agencies;
  - Credit protection or identity theft protection services;
  - Virtual currency, crypto currency, digital currency;
  - Direct marketing or subscription offers;
  - Inbound or outbound telemarketing businesses including lead generation businesses;
  - Internet, mail or telephone order pharmacies or pharmacy referral services;
  - Items that encourage, promote, facilitate or instruct others to engage in illegal activity;
  - Items that may be counterfeit including, but not limited to: designer handbags, clothing and accessories, and consumer electronics;
  - Items that may infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction;
  - Items that promote hate, violence, racial intolerance, or the financial exploitation of a crime;
  - Items that promote, support or glorify acts of violence or harm towards self or others;
  - Live animals;
  - Payment aggregators;
  - Purchase, sale or promotion of drugs, alcohol, or drug paraphernalia, or items that may represent these uses;
  - Unregulated sales of money-orders or foreign currency;
  - Using the Thunderxpay
  - Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation and other proprietary rights and data collection and privacy;
  - Using the thunderxpay Services in a manner that thunderxpay or any Payment Network reasonably believes to be an abuse of the payment card system or a violation of Rules;
  - Using the thunderxpay Services in any manner that could damage, disable, overburden, or impair Thunderxpay
  - including without limitation, using the services in an automated manner;
  - Using the thunderxpay Services in violation of the terms of this Agreement, as reasonably determined by thunderxpay;
  - Using the thunderxpay Services that in any way assists User or others in the violation of any law, statute or ordinance;
  - Using the thunderxpay Services to collect payments that support pyramid or ponzi schemes, matrix programs, other “business opportunity” schemes or certain multi-level marketing programs;
  - Using the thunderxpay Services to control an account that is linked to another account that has engaged in any of the foregoing activities;
  - Using the thunderxpay Services to defame, harass, abuse, threaten or defraud others, or collect, or attempt to collect, personal information about users, registered recipients, or third parties without their consent;
  - Using the thunderxpay Services to intentionally interfere with another user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code;
  - Using the thunderxpay Services to make unsolicited offers, advertisements, proposals, or to send junk mail or spam to others;
  - Using the thunderxpay Services to send or receive what thunderxpay considers to be funds for something that may have resulted from fraud or other illegal behavior;
  - Using the thunderxpay Services while impersonating any person or entity or falsely claiming an affiliation with any person or entity;
  - Or weapons including replicas and collectible items;
  - Wire transfer money orders;

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