DalPay Retail Supplier AgreementRevised and Effective as of January 1, 2013
PLEASE READ THIS ENTIRE DALPAY RETAIL SUPPLIER AGREEMENT (THE "AGREEMENT") CAREFULLY, AS IT FORMS A LEGALLY BINDING AGREEMENT BETWEEN THE PERSON, ORGANIZATION OR ENTITY ENTERING INTO THIS AGREEMENT AND WHO IS SHOWN AS THE "SUPPLIER" IN THE DALPAY SELLER MENU ("You") AND SNORRASON HOLDINGS EHF OR ONE OF ITS OPERATING COMPANIES ("DalPay Retail" or "We") (each, a "Party," and together, the "Parties"). Please print a copy of this Agreement for Your records.
To be a DalPay Retail supplier whose Items will be resold by DalPay Retail to Customers through the DalPay Retail Site and/or shopping cart facilities, You must first agree to the terms and conditions in this Agreement. If You do not accept this Agreement, then DalPay Retail will not resell Your Items and You may not use DalPay Retail's Services. Your electronic acceptance of this Agreement constitutes an offer to DalPay Retail. BY ACCEPTING THIS AGREEMENT BELOW, THE PERSON ELECTRONICALLY ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE/SHE HAS THE AUTHORITY TO BIND YOU TO THIS AGREEMENT. The commencement of DalPay Retail's performance of its obligations hereunder shall constitute DalPay Retail's acceptance of this Agreement, and upon commencement of such performance this Agreement shall form a binding agreement between the parties. You also agree to these terms (or the current terms then in force) each time You log into Your Seller Menu account and use DalPay Retail's Services.
BY LISTING PRODUCTS AND/OR SERVICES FOR SALE THROUGH DALPAY RETAIL AND USING DALPAY RETAIL'S SERVICES YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ALL DOCUMENTS, REGULATIONS, POLICIES, AND PROCEDURES INCORPORATED HEREIN BY REFERENCE.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
The following capitalized terms in this Agreement are defined below. Other terms defined in the body of this Agreement will have the meanings given where defined.
A. "DalPay Retail Site" means DalPay Retail's web site, found at www.dalpay.is (and at other addresses from time to time), through which DalPay Retail will be the seller and merchant of record for sales of Items to Customers.
B. "Customer" means any person, organization or entity that visits the DalPay Retail Site, through which that person, organization or entity may choose to purchase Items from DalPay Retail.
C. "Items", "Product", or "Products" means the products and/or services You will sell to DalPay Retail for resale by DalPay Retail to Customers through the DalPay Retail Site, that DalPay Retail agrees to resell.
D. "Transaction", or "Customer Transaction" means a sale of an Item made by DalPay Retail to a Customer be it a one-off sale or a pre-authorized recurring sale.
E. "Pricing Details" means the financial terms of Your relationship with DalPay Retail (including the retail margin earned by DalPay Retail, and any fees charged by DalPay Retail), which is available at the following Supplier Fee Schedule URL: http://www.dalpay.is/en/supplier-fee-schedule (or other locations from time to time) and which is hereby incorporated by reference.
F. "Suggested Retail Price" means the price that You input into the DalPay Retail system as the recommended selling price of the Items. For the avoidance of doubt, while You may provide suggested retail prices for Items, DalPay Retail is solely responsible for setting the retail price at which Items are resold to Customers by DalPay Retail, which may reflect the Suggested Retail Price at DalPay Retail's discretion.
G. "Services" refers to services provided to You as a retailer of Your products by DalPay Retail, primarily served online from the DalPay Retail Site through the DalPay Retail seller menu ("Seller Menu").
H. "Account Profile" refers to details about your business including geographical address and ownership information that are completed online within the Seller Menu to allow you to start selling, and then later signed and sent to DalPay Retail in order for Purchase Payments to be sent to you.
I. "Purchase Payment" refers to the purchase payment comprising each completed sales transaction delivered to a Customer during a Pay Period, being the Sales Price of the Items resold by DalPay Retail less i) the Retail Margin for that sales transaction, ii) any Other Fees, and iii) any Reserve Amounts.
J. "Other Fees" refers to Dispute Charges, Fees for Sending Purchase Payment to Supplier, Supplier Error Fees, and other fees that may be listed from time to time on the Pricing Details schedule.
K. "Reserve Amount" or "Reserve Account" refers to a percentage of total gross sales held back by DalPay Retail or its acquiring banks to protect against serious risks associated with non-delivered goods or services, pre-paid fees for future services to be performed, or similar risks.
L. "Pay Period" refers to either one week, or one month's worth of sales. Each week making up the Pay Period runs from Sunday to Sunday (with all of the week's orders up to midnight GMT on the Sunday being included. DalPay Retail settles two weeks in arrears (please refer to the Operating Regulations).
M. "Settlement Day" refers to the banking day when Your Purchase Payment is initiated at DalPay Retail's bank(s).
N. "Release Level" refers to a per account limit set from time to time that is used to decide if a regular settlement of DalPay Retail's Purchase Payment to You should be initiated for the appropriate Pay Period.
O. "Primary Email Address" refers to the email address set in Your online Account Profile at the DalPay Seller Menu and which is used amongst other things for sending notices to You as explained in Section 12 B (Notices).
P. "Your" or "Yours" refer to things that You own, and the rights or obligations applicable to You as set forth in this Agreement.
Q. "Your Site(s)" means one or more online Web sites and/or auction or social media pages You operate to solicit retail sales of Your Items, and which will provide links to the DalPay Retail Site for Customers to engage in retail transactions with DalPay Retail.
2. ACCEPTANCE, EFFECTIVE DATE AND AMENDMENT
A. Effective Date and Incorporation of Documents, Policies and Procedures. This Agreement becomes effective when You accept it by electronic signature, or sign a printed copy of this agreement ("Effective Date"). In the event that there is a difference in dates between the date You accepted by electronic signature, and a printed paper copy of this Agreement signed by both parties, the Effective Date is the earliest date that the Agreement was agreed to by either method.
The operating regulations of DalPay Retail ("Operating Regulations"), the Operating Regulations supplier fee schedule ("Supplier Fee Schedule") the information gathered by DalPay Retail from Supplier in the online registration process ("Sign Up Form"), the list of Products that may not be marketed via DalPay Retail ("Prohibited Items List"), the list of Products that are subject to a higher Transaction Fee ("Restricted Items List") and such other documents, regulations, policies, and procedures DalPay Retail requires Supplier to conform to, are all incorporated into and become a part of the Agreement by this reference.
B. Supplier Accounts. After You agree to be bound by this Agreement and complete the Sign Up Form, DalPay Retail will establish an account for You ("Account" or "Primary Account"). Supplier may establish more than one Account for the Products it offers for sale ("Additional Account(s)") in order to support different charging and settlement currencies, or for the other operational reasons. This Agreement shall be binding upon the Primary Account and all Additional Account(s). Both Primary Accounts and Additional Accounts ("Accounts") shall be governed by this Agreement.
C. Underwriting. Supplier authorizes DalPay Retail to obtain a credit history or credit report ("Credit Reports") regarding Supplier and the owners and directors of Supplier through a credit reporting agency chosen by DalPay Retail. Supplier and the owners and directors of Supplier authorize DalPay Retail to obtain and use such Credit Reports from time to time for the purpose of evaluating the creditworthiness of Supplier throughout the term of this Agreement.
DalPay Retail may establish an Account for Supplier upon receipt of the Sign Up Form and prior to the verification of Supplier's identity or determination of Supplier's creditworthiness. If DalPay Retail determines that there is insufficient information to verify the identity and/or physical address of Supplier or DalPay Retail determines that the creditworthiness of Supplier is unsatisfactory, DalPay Retail may terminate this Agreement without notice. In the alternative, and at the sole discretion of DalPay Retail, DalPay Retail may request that Supplier provide additional information or fulfill additional requirements to provide security to DalPay Retail, including without limitation, the execution of a personal guaranty.
3. CONDITIONS OF USING DALPAY RETAIL
A. Internet Business. DalPay Retail provides an Internet-based marketplace for products and services ("Products") obtained from Suppliers and offered for resale via the Internet. It operates from the DalPay Retail Site and/or other locations from time to time, and is an online retailer and provider of online checkout services.
B. Real Time Purchases. DalPay Retail purchases Products from Suppliers for the sole purpose of immediate resale to persons who make a decision to buy Products of a Supplier on DalPay Retail's Site ("Customers") rather than directly from Supplier's website. DalPay Retail's Site provides access for Customers to Products of all Suppliers in an online distribution centre for tangible or digital products and services ("Shopping Centre") and allows Customers to purchase the Products from DalPay Retail by using such electronic payment methods that DalPay Retail accepts from time to time, allows a Customer to obtain a refund for a Product previously purchased, and allows a Customer to exchange a Product previously purchased (individually and collectively, "Transaction").
C. Services. In addition to the purchase of Products from Supplier for immediate resale to Customers, DalPay Retail processes all Transactions using an encrypted network infrastructure certified to the highest level of industry security standards including the Payment Card Industry Data Security Standard ("PCI DSS"), made available via the processing platform of its merchant service providers such as DalPay Internet Billing (collectively, "Services").
D. Service Usage Requirements. As may be modified from time to time by the Operating Regulations, to keep Your Accounts active and in good standing You must:
(a) login to Your Account(s) at least once within the first thirty (30) days of Account establishment and complete Your Account Profile as per Section 7 (B) regarding Supplier Identification,
(b) login to Your Account(s) at least once every ninety (90) days,
(c) have a Customer sale debit or credit transaction attempt (be it accepted or declined) at least once every ninety (90) days.
E. Force Majeure. DalPay Retail assumes no liability for disruptions in service or improper operation of its equipment or software for any reason, including, without limitation, vandalism, theft, phone service outages, Internet disruptions, human error, extreme or severe weather conditions, or any other causes commonly referred to as "Acts of God".
F. Disclaimer. At the request of DalPay Retail, Supplier shall include in its website a prominently displayed disclaimer of any implied warranties, including without limitation, the warranty of non-infringement, the implied warranties of merchantability and fitness for a particular purpose, and disclaimer of liability for the use of goods supplied, or services performed by Supplier, on behalf of DalPay Retail as authorized retailer. The lack of display of such a notice shall not affect Your or DalPay Retail's liabilities under this Agreement.
G. Certain Warranties Not Permitted. Supplier agrees it will not provide, offer, or advertise a "lifetime warranty," "lifetime guarantee," or any other guarantee for a period of more than one-hundred and eighty (180) days without the express written consent of DalPay Retail.
H. Adequate Inventory. Supplier shall maintain sufficient inventory to fulfill purchases by DalPay Retail for resale to Customers in a timely manner. Supplier shall not rely on the existence of a particular Transaction to obtain funds or credit to enable Supplier to obtain the Product necessary to complete the Transaction.
I. License. To enable DalPay Retail to use the information You supply to DalPay Retail, including without limitation, the images, trademarks, trade names and logos found on Your website(s), without violating any rights You might have in the information and the images, trademarks, trade names and logos found on Your website, You agree to grant, and hereby do grant, DalPay Retail a royalty free, worldwide, nonexclusive, perpetual and irrevocable license to exercise the copyright, publicity and database rights, and to sublicense such rights through multiple tiers of sublicensees, that You have in such information, images, trademarks, trade names and logos, in any media now known or not currently known, with respect to the information, images trademarks, trade names and logos. This is intended to ensure that We may publish details of supplied products both to our own Shopping Centre and to partner websites from time to time as may be required for marketing purposes according to this Agreement.
4. ACCEPTANCE OF LIMITATIONS IN SERVICE
A. Limitations on Sale of Products. DalPay Retail may prohibit the sale of Products in its Prohibited Items List. Supplier further understands and agrees that DalPay Retail may amend the Prohibited Items List, from time to time, at its sole discretion, without prior notice.
B. Limitations on Customer Transactions. DalPay Retail may impose limits on sales of Products and refuse to process Transactions for specific Customers for any reason, at its sole discretion.
C. Limitations on Services. DalPay Retail may: (1) limit or restrict sales to a minimum Product price; (2) impose limits on the amount or number of purchases which may be charged to the credit or debit card of a Customer during any time period; (3) request additional validation information from Customers, such as signed contracts and/or receipts or authorization forms; (4) refuse to accept orders from Customers with a prior history of questionable charges; or (5) impose certain limits or restrictions on Transactions; or (6) institute Reserve Amounts on specific Accounts as per Section 6. C., either temporarily or permanently, which are more restrictive than limits placed on Accounts of other Suppliers.
D. No Liability. DalPay Retail shall not be liable to Supplier for any losses, expenses, or damages Supplier sustains, including claims for lost profits, resulting from or related to DalPay Retail's imposition of limits on Transactions or Reserve Amounts, for any reason.
5. SUPPLIER'S WARRANTIES AND REPRESENTATIONS
Supplier makes the following representations and warrants that at all times during the term of this Agreement such representations shall be true and accurate:
A. Contractual Capacity. Supplier has the power and authority to carry on its business as it is conducted, is duly authorized to enter into this Agreement and that no other authorizations, consents or approvals are required in connection with the validity and enforceability of this Agreement or the execution, delivery and performance of this Agreement by Supplier.
B. Truthful Information. All information and data Supplier provides to DalPay Retail, or for which it engages a third party to provide to DalPay Retail is complete, truthful, accurate, valid, the lawful property of the Supplier, and Supplier has the right to communicate such information.
C. Verification. All email, domain, URL, secure instant messenger, geographical address, and telephone information provided by Supplier is complete and correct.
D. Intellectual Property Ownership. Supplier owns or otherwise has the full right, authority, and license to use and disseminate (1) all information, data, graphics, text, video, music, or other intellectual property which forms a part of its website, or which is used by Supplier in its advertising and promotional efforts, and (2) the Items it supplies to DalPay Retail (or to potential Customers).
E. Authority to Conduct Business. Supplier is legally authorized to sell any Item it offers and Supplier has obtained all necessary regulatory approvals and certificates (hereafter, "Certificates"). Supplier will provide DalPay Retail any copies of Certificates immediately upon Supplier's receipt of such a request by DalPay Retail.
F. Compliance with Laws and Regulations. Supplier is in compliance with all applicable national, federal, state, or local laws, rules, regulations, requirements and/or other standards established by any governmental authority having jurisdiction to control such activities, including without limitation but only as applicable, any national, state or local consumer protection agencies. General controlling law is the Icelandic Act No. 46/2000 on Door-to-Door Sales and Distance Contracts (incorporating the relevant provisions of Directive 97/7/EC "the Distance Selling Directive").
G. Compliance with Industry Security Standards. Supplier is in compliance with the regulations of applicable card associations regarding the sale of Products over the Internet or other transactions where the credit or debit card utilized for the purchase is not present, which are in effect prior to the Effective Date of this Agreement, or which become effective during the term of this Agreement, and Supplier is in compliance with the security standards applicable to their business, including but not limited to, the PCI DSS at all times.
Supplier makes commercially reasonable efforts to protect all personally identifiable customer information, according to industry security standards and applicable law.
Upon receipt of a current and correctly completed PCI DSS Self-Assessment Questionnaire and Attestation of Compliance, DalPay Retail may at its sole discretion permit Supplier to enter certain additional information associated with a Customer's order to allow its completion with DalPay Retail. Such information collected by telephone may include without limitation primary account number, expiration date, and the card verification value/card security code (collectively, "Cardholder Data"). Supplier will not solicit, collect, store, or disclose this Cardholder Data except as specified under the Security Guidelines specified by DalPay Retail in its Operating Regulations for Mail Order/Telephone Orders, and which mandates strict adherence to PCI DSS-compliant standards of care in handing Cardholder Data prior to authorization of the sale, and in particular to the handling of sensitive authentication data. Supplier's failure to comply with these Security Guidelines may result in fines and/or penalties being levied by DalPay Retail against Supplier because of Supplier's actions.
6. FEES AND TRANSACTION PAYMENTS
A. Continuing Payments for Services. Supplier agrees to pay DalPay Retail all Transaction fees and other amounts required by this Agreement, including without limitation those set forth in the Operating Regulations, when due.
B. Transaction Payments. Contingent upon the purchase by a Customer of a Product offered by Supplier, in accordance with the terms hereof, DalPay Retail will pay Supplier for the purchase of Products resold by DalPay Retail, in accordance with the terms set forth in the Operating Regulations.
C. Reserve Account. DalPay Retail may retain a portion of the proceeds of Transactions, to establish and maintain a Reserve Account as set forth in the Operating Regulations. Any Reserve Amount held in such Reserve Account is subject to a possessory pledge (possessory lien) according to Article 22 of the Icelandic Act No. 75/1997 on Contractual Liens. Any funds held in a Reserve Account for whatever reason shall accrue no interest, or any other earnings to Supplier.
7. ONLINE ACCOUNT PROFILE AND SUPPORTING DOCUMENTS
A. Account Compliance Charge. Supplier agrees that DalPay Retail may require an "Account Compliance Charge," made using Your personal or company credit or debit card, for each Account as described in the Operating Regulations, to fulfill DalPay Retail's obligations in identifying You to permit remote account opening. Payment of any Account Compliance Charge shall be made immediately upon the establishment of an Account. When Supplier brings to DalPay Retail at least one Customer who makes an accepted purchase from DalPay Retail; after that time the Account Compliance Charge will be refunded to the payment method used by the Supplier to pay for the Account Compliance Charge (or as a credit towards the balance within the Supplier Account if that is not technically possible).
B. Supplier Identification. To ensure that DalPay Retail knows the identity of Supplier and is paying the appropriate party for Product purchases, Supplier must, within thirty (30) days of opening an Account, ensure that the legal name of Supplier set within the Account(s), is the same as the name of the person or entity that is to be the payee receiving Purchase Payments, and if sales through the Account have commenced, have sent to DalPay Retail a signed Account Profile and any required supporting documents (such as a copy of Your government issued identification; Driver's License, Passport or National Identity Card). If Supplier does not fulfill such requirement, DalPay Retail may, at its sole discretion, suspend Supplier's Account, or terminate this Agreement.
C. Receipt of Identifying Documents. DalPay Retail shall only settle to a bank account, in Your name or registered doing business as/trading name if You are a sole trader/proprietor and will not settle funds until a paper copy of the signed Account Profile (and supporting documents) has been received. Such documents should be sent to the designated DalPay Retail office by trackable courier service only (EMS, FedEx, DHL, UPS, TNT, etc.) where progress and delivery of the documents can be tracked; Your Account Profile and supporting documents contain sensitive private information, and being able to track their progress and final receipt at our offices is important.
If You are operating via an incorporated company for Your Site(s) We will initiate bank wires in that company name. Supporting documents for the person(s) who manage(s) the company (and exercise signing power for the settlement bank account) will be required including a copy of government issued identification for that person (or persons). In addition We will require a copy of the government issued identification for any other natural person (or persons) who ultimately own or control the company through direct or indirect ownership of a 25% or more share in the company, or control 25% or more of the voting rights, or are deemed to exercise control by other means, of the company.
DalPay Retail complies with the applicable requirements of the Icelandic Act on Measures Against Money Laundering and Terrorist Financing 2006 as amended (incorporating the relevant provisions of Directive 2005/60/EC).
D. Account Changes. In the event that Supplier requires a change of settlement bank account, or that other details have changed regarding the Account, a freshly signed Account Profile and as applicable, new supporting documents, must be provided to DalPay Retail, either as a paper copy or as a good quality colour scan uploaded securely to the Seller Menu’s document upload facility, as may be required.
We don't like more than three bank account changes per year unless there is a good reason. Changes to settlement bank accounts require five (5) days notice to allow for processing of updated Account Profiles and any new supporting documents, as explained in the Operating Regulations.
This Agreement shall remain in effect from the Effective Date until:
DalPay Retail or Supplier issues a "Notice of Cancellation" as set forth in Section 10 (C) of this Agreement,
The Agreement is terminated as otherwise provided in Section 10.
A. Obligation to Pay Own Taxes. Supplier is responsible for registration and filing regarding, and the payment of, all taxes applicable to the conduct of its business, including but not limited to, excise, sales, and value added taxes on sales transactions.
B. Supplier's Obligation to Pay Taxes Resulting from DalPay Retail Services. The parties agree that if additional taxes in the nature of an excise, sales, or use tax are imposed in connection with DalPay Retail's Services and paid by DalPay Retail on behalf of the Supplier, Supplier shall be liable to DalPay Retail in an amount equal to the amount of such tax payment made by DalPay Retail. Supplier authorizes DalPay Retail to collect and pay over taxes in the nature of an excise, sales, or use tax on behalf of Supplier or on account of DalPay Retail's sale of Products if reasonably required to do so by any jurisdiction's taxing authority having jurisdiction thereof. DalPay Retail shall have the right to recover from Supplier the amount of any such taxes, related penalties and interest paid by DalPay Retail with its own funds. Supplier shall also pay DalPay Retail for any related expenses incurred by DalPay Retail, including reasonable attorney's fees, in its collection of any amounts due from Supplier.
C. Obligation to Repay DalPay Retail. Supplier agrees that if DalPay Retail pays any taxes that result from the resale of Supplier's Products, Supplier will immediately reimburse DalPay Retail an amount equal to such taxes paid by DalPay Retail and all related interest, fines, and/or penalties.
A. By Supplier. Supplier may terminate this Agreement, and any associated Accounts with DalPay Retail at any time upon providing a notice of its intent to terminate at least five (5) days prior to the desired date of termination.
B. By DalPay Retail. DalPay Retail may terminate this Agreement, and Supplier's associated Accounts at any time for any reason. DalPay Retail may suspend Supplier's access to DalPay Retail's Site, Seller Menu, and/or Services, immediately and without notice if Supplier is in breach of any of its obligations hereunder and then terminate this Agreement and Supplier's access to DalPay Retail's Services, or DalPay Retail may terminate this Agreement and Supplier's access to DalPay Retail's Services immediately and without notice if Supplier is in breach of any of its obligations hereunder. If the termination is at the convenience of DalPay Retail, and not immediate and without notice, DalPay Retail shall endevour to provide Supplier with notice seven (7) days in advance of the date of termination.
C. Notice of Cancellation. If a party to the Agreement intends to terminate the Agreement, it must send a notice to the other party of its intent to terminate ("Notice of Cancellation"). The Notice of Cancellation shall contain the date upon which the termination shall become effective and shall be delivered in accordance with Section 20 of this Agreement. Provided, however, that in the event DalPay Retail determines it is necessary to immediately terminate the Agreement, DalPay Retail may provide notice to Supplier via voice or secure instant message, followed by delivery of a Notice of Cancellation as required in Section 20. Such termination shall be effective as of the time of the voice message, or secure instant message to Supplier.
D. Payments/Obligations to be Completed After Termination. Upon termination of this Agreement, any outstanding and unpaid fees and charges of Supplier to DalPay Retail shall become immediately due and payable.
DalPay Retail may at termination of the Agreement and at its sole discretion, hold back all then due Purchase Payments including any existing Reserve Amounts for a period of up to one-hundred and eighty (180) days ("Holdback") in order to cover additional financial risks related to Disputes, Refunds or Returns of Products supplied by Supplier that extend beyond the time of termination of the Agreement. If the majority of funds are the result of purchases from DalPay Retail using American Express cards, or from yearly subscriptions then the Holdback period may be up to one (1) year.
Such Holdback may be necessary in order to protect DalPay Retail from serious risks associated with Suppliers who are for example, going out of business or declaring bankruptcy, or may have claims for non-delivered goods/services, and/or pre-paid yearly fees lodged against them. Any Holdback funds retained for this period will be used by DalPay Retail to pay for any outstanding Disputes, Refunds or Returns of Products supplied by Supplier and/or related card association fines that are necessary for this period of financial risk to DalPay Retail after termination of this Agreement. The remainder of the Holdback monies will be returned after that period has elapsed.
In the event DalPay Retail is holding funds related to Account at the termination of the Agreement and it is later determined that such funds should be sent to Supplier, the Supplier legal name and address, email, and other details, as set in the Account Profile on the date of termination, will be used to try to contact supplier regarding any funds that are being held for Supplier. Any changes to the settlement bank account are subject to the requirements of 7 (D). If DalPay Retail is unable to complete the payment of funds to Supplier (or as applicable their official receiver or trustee in bankruptcy), after a period of attempting to contact the Supplier, of not less than one (1) year, the funds will be subject to the applicable laws regarding escheat of unclaimed property. Should there be no laws applicable regarding escheat of the unclaimed account balance, the funds shall be donated to a charity (or charities) of DalPay Retail's choice.
E. Survival. Upon Termination of this Agreement, the provisions of Sections 6 (C), 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21 and 22 shall survive such Termination.
11. DISCLAIMER OF WARRANTIES
SUPPLIER UNDERSTANDS AND AGREES THAT DALPAY RETAIL IS PROVIDING ITS SERVICES TO SUPPLIER "AS IS" AND THAT DALPAY RETAIL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED. THIS EXCLUSION APPLIES, WITHOUT LIMITATION, TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY OF NON-INFRINGEMENT.
12. LIMITATION OF LIABILITY
SUPPLIER ASSUMES ALL LIABILITY FOR ITS USE OF DALPAY RETAIL'S SERVICES.
DALPAY RETAIL SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, DALPAY RETAIL SITE, THE SERVICES, THE INABILITY TO USE THE SERVICES, OR THOSE RESULTING FROM ANY PRODUCTS PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
IN NO EVENT SHALL SUPPLIER BE ENTITLED TO RECOVER DAMAGES FROM DALPAY RETAIL THAT EXCEED THE SUM OF FEES RETAINED BY DALPAY RETAIL UNDER THIS AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES.
DALPAY RETAIL ASSUMES NO LIABILITY FOR SUPPLIER'S FAILURE TO PERFORM IN ACCORDANCE WITH THIS AGREEMENT OR ANY RESULTS CAUSED BY ACTS, OMISSIONS OR NEGLIGENCE OF THE SUPPLIER, A SUBCONTRACTOR OR AN AGENT OF SUPPLIER OR AN EMPLOYEE OF ANY ONE TO THEM, NOR SHALL DALPAY RETAIL HAVE ANY LIABILITY FOR CLAIMS OF THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, CLAIMS OF THIRD PARTIES ARISING OUT OF OR RESULTING FROM, OR IN CONNECTION WITH, SUPPLIER'S PRODUCTS, SERVICES, MESSAGES, PROGRAMS, CALLER CONTRACTS, PROMOTIONS, ADVERTISING, INFRINGEMENT OR ANY CLAIM FOR LIBEL OR SLANDER OR FOR VIOLATION OF COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS.
13. CHOICE OF LAW JURISDICTION AND VENUE
This Agreement shall be governed by and interpreted under the laws of the Republic of Iceland, without reference to its conflict of law principles. You agree that any claim or suit arising out of or related to this Agreement must be brought exclusively in the courts of the Republic of Iceland (subject to the paragraphs below regarding mediation and arbitration).
A. Mediation. If there are any disputes or conflicts related to or arising out of this Agreement, You and DalPay Retail shall first use reasonable means to resolve the conflict prior to starting any arbitration, lawsuit, or other litigation. Such means shall include negotiation between management personnel capable of resolving the conflicts.
B. Arbitration. Notwithstanding anything herein to the contrary, You agree that any claim or dispute regarding the Agreement, shall be resolved exclusively and finally by binding arbitration, administered by the Commercial Arbitration Court of the Iceland Chamber of Commerce and conducted under its rules.
The arbitration will be conducted in Reykjavik, Iceland in front of a single arbitrator selected by the agreement of You and DalPay Retail. If You and DalPay Retail are unable to agree upon an arbitrator, the arbitrator shall be selected by the Commercial Arbitration Court of the Iceland Chamber of Commerce.
The arbitration shall be limited to the dispute involving You and no claim or dispute of any other DalPay Retail Client or person shall be included or joined in the arbitration. Unless otherwise ruled by the arbitrator, You and DalPay Retail shall equally share the expenses of conducting the arbitration. Any arbitration brought under this provision shall be governed by the relevant Icelandic law.
You understand that You might have had a right to litigate disputes through a court of competent jurisdiction and You have expressly and knowingly waived that right and agreed to resolve any claim or dispute through binding arbitration. Notwithstanding the fact that You and DalPay Retail have agreed to settle claims and disputes exclusively through binding arbitration, in the event there is a claim or dispute with regard to the intellectual property of DalPay Retail, including without limitation, trade secrets and software code, DalPay Retail may immediately proceed to a court of competent jurisdiction to obtain equitable relief, You agreeing that there would be no adequate remedy at law under arbitration for DalPay Retail for such a claim.
14. ENFORCEMENT ACTIVITIES
A. Lawful Use. The Website and Services of DalPay Retail may be used only for lawful purposes and in a lawful manner. Supplier agrees to comply with all applicable laws and regulations. Supplier may not register under a false name, mask the true identity of Supplier or the Products it offers to the public, or use an invalid or unauthorized credit or debit card, or invalid or unauthorized bank account information. Supplier may not impersonate any participant or use another participant's information. Such fraudulent conduct may be reported to law enforcement by DalPay Retail, and DalPay Retail may cooperate in an investigation by law enforcement if compelling evidence of such conduct is presented to DalPay Retail.
B. Investigation. DalPay Retail has the right, but not the obligation, to monitor any activity and content associated with its Site and Services. DalPay Retail may investigate any reported violation of its policies or complaints and take any reasonable action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of materials related to Supplier on DalPay Retail's Site. DalPay Retail reserves the right to request the removal or editing of any content that violates this Agreement or is otherwise objectionable and violates the spirit of this Agreement. As part of the investigation into content that may violate this Agreement, Supplier hereby consents that DalPay Retail representatives may examine Supplier's website(s) including through the use of automated tools that allow DalPay Retail or its representatives to visit Supplier's website incognito.
C. Disclosure of Information.
(a) You agree that DalPay Retail may share aggregated details from Your Account statements, and such minimal Personal Information as is required to identify You to a specific agent or affiliate if You were referred to DalPay Retail by said agent or affiliate, subject to the restrictions of the Partner Agreement signed with said agent or affiliate, for the purpose of compensating said agent or affiliate for bringing Your Account(s) to DalPay Retail.
(b) DalPay Retail may use or disclose Personal Information without Your consent in certain circumstances:
If We are required by law or by an order or requirement of a court, or by court rules concerning the production of records;
If We have reasonable grounds to believe that use or disclosure is necessary to protect the rights, privacy, property, or safety of our users or others;
If We have reasonable grounds to believe that the information relates to a breach of agreement or violation of the law that has been, is being, or is about to be committed;
If it is necessary for fraud protection, risk reduction, or the establishment of amounts or collection of monies owed to us;
If it is necessary to enforce or apply our Operating Regulations and other agreements, to pursue remedies, or to limit damages to DalPay Retail;
In these circumstances DalPay Retail may access and disclose the information it considers necessary or appropriate, including but not limited to user contact details, IP address and traffic information, usage history, communications with Supplier and/or Customers, and posted content.
When We are required or permitted to disclose information without consent, We will not disclose more information than is necessary to fulfill the disclosure purpose. We do not like or support unlawful and unreasonable "fishing expeditions" by governmental agencies (or individuals) without a court order.
D. Suspension of Account. In the event DalPay Retail determines that Supplier is in breach of this Agreement, DalPay Retail may suspend activity on the Account(s), until Supplier cures the breach of this Agreement, or until DalPay Retail terminates this Agreement.
15. PRIVACY AND SECURITY
B. Commitment to Privacy. Unless otherwise authorized by DalPay Retail in writing, Supplier agrees not to use any information regarding Customers except for the purpose of entering into and completing Transactions. Suppliers agree not to use Customer information for purposes of solicitation, advertising, unsolicited electronic communication including spamming by email or instant message, harassment, invasion of privacy, or conduct which may be otherwise deemed to be objectionable conduct. As explained in the Operating Regulations, inappropriate communication by Supplier with a Customer may result in suspension of the Supplier's Account(s) or termination of this Agreement by DalPay Retail.
C. Commitment to Industry Security Standards. DalPay Retail will at all times while this Agreement is in effect, and thereafter as required, take responsibility for the security of cardholder information and data in its possession during storage, processing and transmission of said data, and will maintain reasonable and expected compliance with the Payment Card Industry Data Security Standard (PCI DSS) and other relevant industry security standards. DalPay Retail's merchant service providers are classified as "service providers" under Requirement 12.8 of the PCI DSS and DalPay Retail makes commercially reasonable efforts to ensure that its service providers have performed the necessary steps to validate their compliance with the PCI DSS.
16. COPYRIGHT ISSUES
A. Copyright Notice. DalPay Retail's Site is subject to the protection of the copyright laws of the Republic of Iceland. No part of DalPay Retail's Site may be reproduced without the prior written permission of DalPay Retail, other than the content that is permitted according to this Agreement as explained in the Operating Regulations.
B. Notices of Alleged Copyright Infringement. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible on the DalPay Retail Site or through the Services, you may notify us according to the requirements of Article 15 of the Icelandic Act No. 30/2002 on Electronic Commerce and other Electronic Services. If you wish us to respond you must provide us with the following information (and we will pass it on to the allegedly infringing party as appropriate):
A physical signature of a person authorized to act on behalf of the owner of an exclusive right that is being infringed;
Identification of the copyrighted work claimed to have been infringed;
Identification of the material that is allegedly infringing (URL(s) for example);
The complaining party's address, telephone number and email address;
A signed statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, agent, or under fair use; and
A signed statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The above information must be submitted as a written notification as explained in the Operating Regulations.
In the event that Supplier fails to perform any duty, obligation, or provision contained in this Agreement ("Default"), Supplier agrees to pay to DalPay Retail any damages, expenses, and costs, whether directly or indirectly caused, including reasonable attorney's fees incurred by DalPay Retail due to Supplier's Default.
18. AMENDMENTS AND MODIFICATIONS
A. DalPay Retail's Right to Amend or Modify Agreement. DalPay Retail may amend or modify this Agreement and any such amendment or modification will be binding on Supplier when posted to DalPay Retail's Site. Continued use of DalPay Retail's Services after such posting occurs shall be deemed to be an acceptance of all terms in the amended/modified Agreement. Supplier accepts the responsibility of a continuing review of the content of DalPay Retail's Site to determine whether any amendments have occurred.
B. Other Amendments/Modifications. Suppliers may communicate any proposed modifications or amendments to this Agreement to DalPay Retail at the mailing address provided in Section 20. However, such changes or amendments will only become effective if agreed upon by DalPay Retail, at its sole discretion, in writing.
Supplier. Supplier agrees to indemnify and hold DalPay Retail, its employees, officers, agents, shareholders and directors harmless from any and all claims, losses, damages, costs, expenses (including attorney's fees), fines, penalties regardless of whether the same are actual, direct, indirect, special, incidental, consequential, or punitive ("Damages") resulting from or in connection with this Agreement or incurred as a result of, or related to, the causes set forth below:
Supplier's breach of any warranty or representation;
Supplier's violation of any applicable law, rule, or regulation;
Intellectual property infringement claims related to the Supplier's site or service;
Supplier's reckless or willful misconduct;
Claims of third parties arising out of or resulting from, or in connection with Supplier's products, services, messages, programs, caller contracts, promotions, advertising, infringement or any claim for libel or slander.
DalPay Retail. In no event will DalPay Retail be liable to indemnify any party for any Damages arising directly or indirectly from any use of this Internet resource, or DalPay Retail's Service(s), even if DalPay Retail is expressly advised of the possibility of such damages.
A. Addressed to:
(a) DalPay Retail;
To the Accounts Department by support ticket, raised from the Account(s) within the Seller Menu.
To the last geographical address provided to DalPay Retail by Supplier as set in the Account Profile.
To both the last Primary Email Address and Emergency Email Address provided to DalPay Retail by Supplier as set in the Account Profile.
B. Method of Delivery and Date of Receipt. Any written notice under this Agreement from DalPay Retail to Supplier (or vice versa), shall be deemed given and delivered upon the earlier of: (a) actual receipt; or (b) five days after being deposited in the Icelandic mail, postage prepaid, and addressed to the party to whom the notice is being sent as set forth in Section 20 (A); or (c) one (1) business day after being sent by electronic communication as explained in 20 (A).
C. Notice of New Address. Either party may communicate a change in its geographical mailing address by notifying the other party in accordance with Section 20 (B) in writing.
The headings herein are inserted as a matter of convenience only and do not define, limit, or describe the scope of this Agreement or the intent of the provisions hereof.
22. SEVERABILITY OF PROVISIONS
Each provision of this Agreement shall be considered severable; and if, for any reason, any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid.
23. INTELLECTUAL PROPERTY
Except for the rights expressly granted herein, this Agreement does not transfer any intellectual property or technology of DalPay Retail to Supplier and all rights, title and interest in such intellectual Should such and technology, whether developed, licensed or owned by DalPay Retail shall remain with DalPay Retail. Supplier agrees that Supplier will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets of DalPay Retail.
24. AGREEMENT, RELATIONSHIP OF PARTIES
Supplier agrees to be bound by any electronic affirmation, assent or agreement transmitted through DalPay Retail's Site. Supplier represents and warrants that Supplier has the authority to agree to this Agreement. Supplier agrees that any decision or action to click on an "I Agree", "I Consent", or other similarly worded "button" or entry field using a mouse, keystroke or other computer device ("Agreement Using Digital Signature"), will indicate Supplier's agreement and will be legally binding and enforceable and the legal equivalent of Supplier's handwritten signature.
Supplier acknowledges (a) that Supplier has read and understood this Agreement; (b) that even if Supplier has consented to this Agreement by Agreement Using Digital Signature, Supplier agrees to provide a printed copy of this Agreement containing handwritten signature(s) if DalPay may also so require it; and (c) that this Agreement constitutes the entire agreement between DalPay Retail and Supplier and governs Supplier's use of the Services, superseding any prior agreements between Supplier and DalPay Retail pertaining to the Services.
The relationship between DalPay Retail and Supplier shall be that of independent contractors. Neither party will be considered an agent, employee, joint venturer, or partner of the other, unless otherwise specifically provided herein.
You agree that You are not a consumer within the meaning of the European Payment Service Directive (2007/64/EC), as transposed into Icelandic law by the Act on Payment Services, No. 120/2011, and the parties agree that the articles and subparagraphs from which non-consumer users may opt out will not apply in whole or part, and that this Agreement is not a framework contract.
This Supplier Agreement was last revised on January 1, 2013.
v.2013.01.01Snorrason Holdings ehf DBA DalPay Retail
Iceland. Registered Number: 570305-0180
(Icelandic Enterprise Registrar)
Snorrason Holdings Establishment