WEIXIN PAYMENT CROSS-BORDER ACQUIRING SERVICE AGREEMENT
MERCHANT: ( Merchant’s name as appeared in the Application Form) (hereinafter referred to as 「Merchant」);
TENPAY: HOI ON TECHNOLOGY LIMITED AS AN AUTHORIZED INSTITUTION OF TENPAY PAYMENT TECHNOLOGY CO. LTD. (hereinafter referred to as 「Tenpay」).
- Tenpay, a leading payment platform launched by Tencent, is dedicated to provide efficient and professional cross-border online and offline payment service to global e-commerce users;
- Merchant is willing to accept Weixin Payment Cross-border Acquiring Service provided by Tenpay for online and offline trading of goods or services;
- Under Weixin Payment Cross-border Acquiring Service, a User may use RMB currency to purchase the Products sold by Merchant in foreign currencies through Weixin Payment Service, and Merchant may receive corresponding transaction funds of the Products from Tenpay.
The Parties enter into this Agreement based on the principles of equality and free will.
Unless otherwise specified, the following terms herein shall be defined as follows:
1.1 Application Form: means the application form signed by Merchant requesting wechat or weixin payment services.
1.2 Weixin: means the cross-platform messenger tool supports single-user and multi-user participation, transmission of voice, short message, video, image and text, and other instant messaging services, and is composed of relationship chain development tools, convenience tools, Weixin Public Accounts, open platforms and other software systems and services.
1.3 Weixin Public Platform: means the internet technology service platform provided to Merchant, which is used to release information and for Merchant to communicate and interact with its customers.
1.4 Weixin Public Account: means the account registered by Merchant at the Weixin Public Platform, which is used to log in the Weixin Public Platform.
1.5 Weixin Payment Service: means the third-party payment system and funds transferring services provided by Tenpay via Weixin, including online and offline Weixin payment.
1.6 Weixin Payment Cross-border Acquiring Service: means Tenpay as Weixin Payment Service acquirer offers Merchant acquiring services to retail and service businesses allowing Merchant use Weixin Payment Service, and provides funds settlement service to Merchant allowing Merchant receive the corresponding currency of purchase price for goods and services.
1.7 User/Customer: means a buyer who purchases products or services by using the Weixin Payment Service.
1.8 Weixin Payment Merchant Account: means the account allocated to Merchant by the payment system of Tenpay, which is used to store the identification and transaction information of Merchant, so as to process the transaction instructions of Merchant. It is allowing Merchant to enquiry or calculation of pre-payments, trade receivables and payables. Merchant Account will be directly bundled with the legitimate bank account provided by Merchant.
1.9 Weixin Payment Merchant Platform (hereinafter referred to as Merchant Platform): means a software system for Merchant that is developed and maintained by Tenpay (URL: http:/pay.weixin.qq.com). Merchant may use relevant functions available in such system, such as managing its Weixin Payment Merchant Account and conducting marketing and promoting activities. The scope of services available on Merchant Platform is subject to change from time to time according to the actual needs of Tenpay.
1.10 Merchant Platform Login Account: means the account assigned to Merchant for the purposes of enabling Merchant to login to Merchant Platform and manage and conduct operations in its Merchant Account. If Merchant’s application for Merchant Account is successful, Tenpay will send an email to Merchant’s email address provided in this Agreement, and provide Merchant with Merchant Platform Login Account and the initial password. Merchant can change the aforesaid initial password on Merchant Platform, set up multiple related login accounts and corresponding passwords according to its own needs, and stipulate its operation permission rules so as to manage and conduct operations in its Merchant Account.
1.11 Safety Certificate: means a secure document applied by Merchant with its Merchant Account and issued by Tenpay, containing the identity information of Merchant and Weixin Payment Cross-border Service system authority (including account enquiries, transfer funds or chargeback, etc.). Merchant may make Safety Certificate as digital signature to verify electronic instruction with Tenpay.
1.12 Acquiring Device: means the device with communication function, which installed by Merchant and can be used to scanning or to displaying QR Code or Barcode, it can be used to interacting with financial transaction information and the exchange information according to the payment order, including online payment and offline payment.
1.13 Business Day: means a day (other than a Saturday, Sunday or public holiday) on which Tenpay are open for general business.
1.14 Relevant Country: including the country and region where Merchant is registered, the country and region where Merchant business activities are involved, and the People’s Republic of China.
II. CONTENTS OF SERVICE
2.1 Tenpay provides Customer with Weixin Payment Service, when Customer willing to purchase goods or services from Merchant, Customer can complete the payment transaction through Weixin Payment. Weixin Payment Cross-border Acquiring Service provides following payment scenarios to Merchant to apply for one or more. However, the actual payment services provided to Merchant are granted at the discretion of Tenpay.
- In-App Web-based Payment: means one of the Weixin Payment services used by Weixin users under the Weixin Public Account while the goods or services are displayed through Weixin Public Platform.
- In-APP Payment: means Merchant may embed a store inside its official app (application) to display goods and services, while Weixin user interacts with the app to purchases through Weixin Payment service.
- QUICKPAY: Merchant initiates the Weixin Payment Service by scanning the QR code on Users』 devices, while the goods or services are displayed in Merchant’s offline store.
- QR Code Payment：means that Users initiate the Weixin Payment Service by scanning the QR codes provided by Merchant.
2.2 Weixin Payment Cross-border Acquiring Service can only be used for goods or services which are submitted by Merchant to and approved by Tenpay, and each order shall not exceed the amount limit provided by TenPay.
2.3 Merchant understands and agrees that TenPay is entitled to adjust Merchant’s transaction amount limit in accordance with the types of goods or services operated by Merchant and the risk profile of Merchant’s business activities.
III. SECURITY CLAUSE
3.1 Safekeeping of Password, Personal Identification Number (PIN) and Safety Certificate
3.1.1 Merchant shall take effective measures to properly keep its Password, Personal Identification Number (PIN) and Safety Certificate provided by Tenpay, and shall not provide them for use by or disclose to any party in any manner whatsoever. Merchant Account is a valid proof for Tenpay to confirm the identity of Merchant. Merchant shall be solely responsible for all operation under Merchant Account.
3.1.2 Merchant shall be responsible for managing and maintaining the Password, PIN and the Safety Certificate of Merchant Account. The password set by Merchant should not be too simple to avoid any illegal use by any party. Merchant shall maintain effective technical protection for the device keeping the Safety Certificate to ensure that it is safely kept and used. Merchant shall take initiative to renew or extend the term of the Safety Certificate with Tenpay before its expiry.
3.2 Notification of leak of Password, PIN and the Safety Certificate
3.2.1 If Merchant has leaked the Password, PIN and the Safety Certificate or such Password, PIN and the Safety Certificate are subject to unauthorized use such as being stolen or assumed etc., Merchant shall immediately report to Tenpay.
3.2.2 Upon receipt of formal notification of leak from Merchant, Tenpay is entitled to, after verifying the identity information of Merchant remain available, proceed with the procedures for formal notification of leak for Merchant. The formal notification of leak shall take effect upon the time at which Tenpay expressly notifies Merchant by email that 「the formal notification of leak has taken effect」. Merchant shall be liable for consequences of all operation under Merchant Account before the formal notification of leak has taken effect. The account payment function of Merchant Account will be suspended after the formal notification of leak has taken effect, but account receivables (if any) can still be remitted into such account.
3.3 Effective Means for Submission or Cancellation of Notification of Leak
Upon notification of leak and cancellation of notification of leak, the Parties shall communicate with each other by email address specified in the Application Form. Merchant acknowledges that, in order to avoid any malicious notification of leak or cancellation of notification of leak, Tenpay only recognizes the notification of leak through effective means mentioned above.
3.4 System Security
The Parties shall ensure the security of their respective computer systems and the related procedures, and undertake that their respective computer systems and the related procedures are free from 「trapdoor」, 「logic bomb」, 「data theft」 and any software may threaten the system security of the other party.
IV. RIGHTS AND OBLIGATIONS OF MERCHANT
4.1 Merchant shall honestly and truthfully provide information on the qualifications of Merchant to Tenpay, including but without limitation to basic information on business and operation, business license (or an identification documentation issued by a competent administrative certifying that the company is legally registered in accordance with the laws of its place of registration), ICP(Internet Content Provider) License, identification of the contact person or authorized representative, the letter of settlement bank account information, corporate e-mail address (other than personal e-mail account), etc. Moreover, if Merchant is engaged in the business which needs to obtain special license in accordance with the laws or regulations of relevant country or region where Merchant located, Merchant should also provide the relevant qualification documents.
4.2 Merchant is responsible for the set-up of its own hardware platform and assume the relevant equipment expenses and communication expenses. Merchant shall properly develop, debug, operate and maintain its own computer system and ensure the security of its own system. Merchant shall clarify to TenPay the specific requirements of each Party’s transmission protocol, security mechanism, hardware requirements, physical connection and other technical details. Merchant shall adopt the technologies recognized by TenPay to ensure the security, stability and practicability of the cooperation between the Parties, and shall not use any equipment or human resources that might adversely affect the information security, and shall ensure the security and confidentiality in the transmission process of payment information data.
4.3 Merchant shall not leak or transfer the interface technology, security protocol or certificate provided by TenPay to a third party for any purposes outside the scope of this Agreement, or pass off other parties』 transaction as its own transaction to settle accounts with TenPay.
4.4 Merchant shall keep the log-in names and passwords for Weixin Public Account and Weixin Payment Merchant Account properly. All actions of the Weixin Public Account and Weixin Payment Merchant Account are deemed as those of Merchant.
4.5 Merchant undertakes that Weixin Payment Service to be made is based on real transaction, namely that Merchant needs to provide sufficient evidence to prove the existence of transaction relationship between the users and Merchant.
4.6 Merchant shall ensure the legitimacy, authenticity, accuracy and completeness of the order information. When accepting orders from users, Merchant shall record, including but not limited to, the name and mobile phone number of the user, and the product name, product number, price per unit, total price charged and delivery information of the product ordered.
4.7 Merchant shall properly keep the relevant transaction data and proof, including but not limited to the order and the relevant receipt signed by the customer when accepting the goods for at least five years following the date on which the transaction takes place.
4.8 Merchant undertakes and warrants that it will categorize the Weixin Payment Merchant Account or Weixin Payment Cross-border Acquiring Service provided by TenPay into 「physical goods + real name」, 「flight ticket and 3C」 and 「virtual products」 respectively (「physical goods + real name」 means the physical goods which require logistics delivery, or goods or services which require recording and verifying the true identity of the purchaser upon purchase; 「flight ticket and 3C」 means flight ticket, computer, communication and consumer electronics; and 「virtual products」 means non-physical goods and services that do not record the true identity of the purchaser, nor require logistics delivery). Goods or services under different categories shall not be mixed with using Weixin Payment Merchant Account.
4.9 Merchant shall not actively engage in or assist the cardholder to engage in illegal credit card cash-out, money laundering, split transaction and other illegal business practices, or engage in false application, skimming, malicious close-down and other serious risk activities, otherwise TenPay is entitled to suspend or terminate the provision of the service under this Agreement and report Merchant’s information to the People’s Bank of China, the Ministry of Public Security and the relevant regulatory authorities.
4.10 If Merchant changes its address, suspends its business, or changes its domain name or contact number and other Merchant information, it shall notify TenPay in advance. TenPay are entitled to suspend the service according to specific circumstances, and all complaints and disputes resulting from the failure to give timely notice shall be assumed by Merchant.
4.11 Merchant is responsible for the development, procurement and installation of Acquiring Device, bear the resulting equipment cost and communication cost, and ensure the safety of Acquiring Device system. Merchant should strictly take accredited technical certification with authority and Tenpay’s recognition to ensure the safety and confidentiality of information during the data transmission process payment by Acquiring Device, avoid using equipment or human resources may impede the security and confidentiality, requirements of acquiring equipment installation include:
- Acquiring Device position should be stable, safe and easy to operate;
- Acquiring Device should avoid direct sunlight, high temperature, damp or near the strong magnetic field;
- power supply, communication lines should be consistent with the Acquiring Device application;
- other conditions required for normal use of acquiring equipment.
If the installation conditions do not meet the above requirements, which result in Merchant cannot provide Weixin Payment Cross-border Acquiring Service, it will be Merchant’s responsibility, Tenpay is not responsible for the result.
4.12 Merchant shall use the Acquiring Device within the scope of the Agreement. Without Tenpay’s written consent, Merchant shall not to transfer, rental, lend, mortgage, pledge, lien or in any other way to dispose of the Acquiring Device. Merchant shall not transfer the Acquiring Device arbitrarily or move it to the other place of business or exchange between different cashier, otherwise, Merchant shall take responsibility on any directly economic losses incurred to Customers and Tenpay.
4.13 Merchant shall paste, display, hang and maintain 「Weixin Payment」 logo accepted identifying in a prominent position of the Acquiring Device, business place or official website. Merchant shall not to use 「Weixin Payment」, 「Tenpay」 and related business logos and trademarks for any other purposes.
4.14 Merchant shall only use the Acquiring Device and the acquiring bank settlement account for the purpose in accordance with the Agreement, and shall not engaged in or assist others for any commercial fraud or illegal activities.
4.15 Merchant shall not to charge Customers any additional fee, or provide lower service for using Weixin Payment Service
4.16 Merchant guarantee not to use the Weixin Payment Cross-border Acquiring Service beyond Merchants』 business scope registered with Tenpay respectively.
4.17 Merchant shall not reprint, copy, cut out or tamper with the contents on the website of TenPay or produce derivative products in relation to such contents without the written authorization from TenPay. Without the prior written authorization from Tenpay, Merchant shall not display the link Weixin Payment shell-window or produce derivative products in relation to such contents in any website or APP.
4.18 All trademarks, product names and company names or logos used in the website of TenPay are property of TenPay or that of their respective owners. No permission is given by us in respect of the use of any such trademarks, get-up, product names, company names, logos or titles and such use may constitute an infringement of the holder’s rights.
V. RIGHTS AND OBLIGATIONS OF TENPAY
5.1 Tenpay is responsible for the development, operation and management of Weixin Payment Cross-broader Service Platform. Details of the Terms and Conditions of Weixin Payment Cross-broader Service Platform are set out on the website of Tenpay. Except as otherwise provided by the Law, Tenpay is entitled to add, decrease or otherwise change any of Terms and Conditions of Weixin Payment Cross-broader Service Platform from time to time. When the relevant changes to these Terms and Conditions, Tenpay will give reasonable time to public announcement on the website of Tenpay unless such changes are not within Tenpay’s control. If Merchant does not notify Tenpay with opposing opinion in writing and cease to use service provided by Tenpay prior to the expiration of such announcement, it shall be deemed to have agreed to such changes or amendment.
5.2 Tenpay is responsible for the construction, operation and administration of the online transaction inquiry system and inquiry interface of Weixin Payment Cross-border Acquiring Service, providing Merchant with Merchant transaction information management and inquiry services.
5.3 After this Agreement takes effect, Tenpay shall provide Merchant Account and Safety Certificate services to Merchant.
5.4 TenPay only provides Merchant with Weixin Payment Cross-border Acquiring Service. Any disputes between Merchant and users or other entities shall be handled solely by Merchant and shall have no relation with TenPay.
5.5 TenPay is entitled to regularly or irregularly review the business types of Merchant. TenPay is entitled to suspend or terminate the provision of the service if Merchant engages in any business activity that does not conform to the provisions of this Agreement or those of the relevant State laws and regulations.
5.6 Where Merchant has not generated any transaction amount by Weixin Payment Cross-border Acquiring Service for ninety consecutive days, TenPay is entitled to terminate this Agreement without assuming any legal responsibility.
5.7 If Merchant applies to open a Weixin Public Account, it shall be deemed as authorizing the Weixin Public Platform to issue relevant transaction instructions to TenPay. TenPay is entitled to carry out payment operations based on the instructions issued by Weixin Public Platform, and all disputes and legal responsibilities arising therefrom shall be assumed solely by Merchant and shall have no relation with TenPay.
5.8 TenPay can directly deduct the relevant amount from the Weixin Payment Merchant Account, to which Merchant shall have no objection, where 1) Merchant fails to make relevant payment to TenPay in accordance with the provisions of this Agreement; or 2) Merchant’s breach of this Agreement causes losses to TenPay or other entities.
5.9 Merchant who uses this service shall be deemed as authorizing TenPay to collect and use in a reasonable manner any information or data generated during Merchant’s use of Weixin Payment Cross-border Acquiring Service, including but not limited to identity information, account information, transaction information. In order to better the service, Tenpany is entitled to apply the abovementioned information or data to the business development and products improvement.
6.1 Tenpay shall be entitled to require Merchant to pay the deposit as stated in the Application Form.
6.2 Merchant shall pay the prescribed deposit for the business within ten(10) working days after signing of the Application Form, the deposit should be deposited in the specified account designated by Tenpay.
6.3 TenPay are entitled to adjust the amount limit of the bond to be paid by Merchant on the basis of state of operation, changes in business and actual payment status, and notify Merchant via e-mail to furnish the amount of the deposit. If Merchant fails to furnish the amount of the deposit within five working days after receiving the notice, TenPay will be entitled to suspend the provision of the service to Merchant; if Merchant fails to furnish the amount of the deposit within thirty days after receiving such notice, TenPay may unilaterally terminate this contract without assuming any legal responsibilities.
6.4 During the term of this Agreement, if Merchant does not breach the Agreement and that no complaint or transaction dispute is lodged by a third party against Merchant within one (1) year after this Agreement has been terminated, Tenpay shall refund the deposit to Merchant without interest.
6.5 If Merchant is in violation of the State laws, regulations, policies or orders, or if Merchant is in breach of its undertakings to the users or its agreement with TenPay, which results in damages to the users or TenPay, TenPay is entitled to directly draw the deposit paid by Merchant to compensate the users or Tenpay for any losses. Where the deposit is insufficient for compensation, TenPay may directly deduct from Merchant’s amount to be settled; where the deposit is still insufficient for compensation, they can continue to claim for compensation against Merchant.
VII. SERVICE FEES AND SETTLEMENT OF TRANSACTION
7.1 Handling Fees (Tax Included)
7.1.1 Merchant agrees to pay the Weixin Payment Cross-border Acquiring Service Handling Fees.
7.1.2 Weixin Payment Cross-border Acquiring Service Handling Fees shall be a sum equal to each transaction amount completed by Merchant under its Merchant Account multiplied by Charge Rate as stated in the Application Form for Weixin Payment Cross-border Acquiring Service.
7.1.3 Tenpay shall be entitled to debit directly the abovementioned Weixin Payment Cross-border Acquiring Service Handling Fees from each transaction amount under Merchant Account.
7.1.4 If there is policy adjustment in relation to this Agreement from the People’s Bank of China, relevant regulatory authorities or cooperation institutions or there is any change in law or regulation which may impact on performance of this Agreement, Tenpay is entitled to unilaterally adjust the Charge Rate for Weixin Payment Cross-border Acquiring Service and shall notify Merchant by notice via email. Merchant acknowledges and agrees that if Merchant have not raised written objections to the adjusted Charge Rate for Weixin Payment Cross-border Acquiring Service within five working days after receiving the said notice from Tenpay, the adjusted Charge Rate will apply.
7.1.5 The Parties acknowledges and agrees that with respect to the settlement of fee rate, they recognize the minor discrepancies that might arise from rounding down or up to two decimal places.
7.2 Settlement of Transaction
7.2.1 Merchant’s account number for the settlement of transaction is the bank card account number of the same name that Merchant submitted when applying for this service. If the transaction amount cannot be timely settled to the bank card account number submitted by Merchant due to reasons attributable to Merchant or the bank, TenPay will not assume any responsibilities.
7.2.2 If Merchant changes its settlement account number or the settlement requires authorization, it shall enter into a supplementary agreement with TenPay. The additional costs or losses incurred as a result of Merchant’s change of account number or designated payee without timely notifying TenPay shall be borne by Merchant.
7.2.3 If Merchant’s settlement amount does not reach the threshold in the relevant settlement period of time, TenPay will not make transfer for such settlement, and Merchant’s settlement amount for such period will be accumulated to the next settlement period.
7.2.4 After deducting the relevant handling fees, TenPay will transfer the transaction amount to the account of Merchant based on a settlement period of T+3 working days, which is subject to the specific settlement period verified by and recorded in the TenPay system.
7.2.5 Merchant acknowledges and agrees that the actual time of receipt of payment time is subject to operation and period of settlement of the intermediary banking system. The actual time of receipt of payment for those Merchants who use DBS bank accounts for receipt of money will usually receive the transaction amount on the 5th day while those who use other bank accounts for receipt of payment will receive the transaction amount on the 6th day or later depending on how fast the relevant banks are processing cross bank remittance.
7.2.6 Tenpay are entitled to adjust the settlement period on the basis of situations such as Merchant’s state of operation, adjustment of business and actually payment status and also in accordance of rules as amended by Tenpay from time to time.
7.2.7 In the event of inconsistency between the reconciliation data of Merchant and those of TenPay, the data of TenPay shall prevail.
7.2.8 The Handling Fee of Transfer shall be shared between the Parties, means that the Handling Fee for transfer of settlement payment receivables by Merchant from the PRC banks to a foreign bank shall be borne by Tenpay, and all other charges such as the costs of intermediary banks or receiving banks shall be borne by Merchant.
VIII. REFUND PROVISIONS
8.1 Merchant shall not refund to Customers directly in any ways, otherwise, the resulting disputes and risk are borne by Merchant accordingly. 8.2 Refund arising from the transactions of Merchant will be handled in accordance with the following provisions:
- When making a request to TenPay for refund, Merchant shall have sufficient deposit for the refund in its account. TenPay will complete the refund by directly deducting the refund amount from the account of Merchant.
- If the refund cannot be deducted as a result of the insufficient balance of unsettled funds, Merchant shall make refund request to Tenpay again until the amount of unsettled funds are sufficient to be deducted.
- Refund period shall be ninety (90) calendar days.
- Tenpay does not charge for transaction handling fees. However, if the intermediary bank requires Tenpay to pay for the relevant fees, such fees shall be borne solely by Merchant, and Tenpay may pay such fees in advance for Merchant and then deduct from the unsettled funds.
9.1 For any inquiry notices and requests for orders from Tenpay, Merchant shall reply and provide the original receipts and relevant transaction record to Tenpay via e-mail within three(3) working days after receiving such notice from Tenpay.
9.2 Merchant shall assist Tenpay in handling properly in relation to Users』 complaints on payment service, and coordinate to implement suggestions put forward by Tenpay.
X. CONFIDENTIALITY OBLIGATIONS
10.1 Unless otherwise provided herein, neither Party shall disclose to any third party the contents of this Agreement, the users』 personal information, the customers』 payment information, and the interface technology, security protocol and certificate without the written consent of the other Parties.
10.2 The Parties shall keep confidential the trade secret and know-how obtained during the performance of this Agreement. TenPay are entitled to disclose the relevant business information of Merchant in any of the following situations:
- the People’s Bank of China, or the China Banking Regulatory Commission, the China Securities Regulatory Commission, the China Insurance Regulatory Commission or other financial industry regulatory authorities require TenPay to provide the relevant business information of Merchant; or
- the public security authority, the People’s Court, the People’s Procuratorate or competent administrative authorities require TenPay to provide the relevant business information of Merchant; or
- where the Recipient is ordered by a court of competent jurisdiction to do so or there is a statutory or other legal obligation to do so or should the circumstance require for the purpose of carrying business; or
- the customer complains about Merchant and requests TenPay to provide the relevant business information of Merchant.
- The business information referred to herein includes but is not limited to the transaction order number, transaction proof, flow of funds and other transaction information between Merchant and the customers.
10.3 The Parties warrant that its employees and agents shall fulfill the confidentiality obligation provided in this clause.
10.4 In addition, Merchant recognizes that Tenpay is part of a group of multiple legal entities and that it may be necessary for Tenpay to provide the Confidential Information to its Affiliates (as defined below). For this purpose, Merchant agrees (both as the Disclosing Party and as the Receiving Party hereunder) that:
- Tenpay may disclose the Confidential Information to its Affiliates but only to the extent that such Affiliate has a need to know for the purpose of carrying out the aforementioned Purpose; and
- disclosure by or to an Affiliate of Tenpay shall be deemed to be a disclosure by or to Tenpay itself; and
- Tenpay shall be responsible for the observance and proper performance by all of its Affiliates of the terms and conditions of this Agreement; and
- Tenpay may disclose Confidential Information to its subcontractors but only to the extent that such subcontractor has a need to know for the purpose of carrying out the aforementioned Purpose and provided that such subcontractor accepts confidentiality obligations at least as restrictive as those contained in this Agreement.
For the purpose of this Agreement, 「Affiliate」 shall mean any entity directly or indirectly Controlling, Controlled by or under common Control with Tenpay Payment Technology Co., Ltd. 「Control」, including related terms such as 「Controls」, 「Controlling」, 「Controlled by」 or 「under common Control with」, means the possession, now or hereafter, directly or indirectly, of the power to direct or cause the direction of the management and policies of the controlled entity, whether through the ownership of voting securities, by contractual arrangements or otherwise, and without limiting the generality of the foregoing, such ability shall be deemed to exist when any entity holds or controls voting proxies with respect to at least fifty percent (50%) of the outstanding voting securities or other ownership interests of the controlled entity.
10.5 The aforesaid confidentiality obligation shall survive the termination of this Agreement.
XI. LIABILITY FOR BREACH OF CONTRACT
11.1 Any Party’s breach of the obligations provided in this Agreement constitutes a breach of contract.
11.2 TenPay are entitled to unilaterally terminate this Agreement and require Merchant to assume the liability for compensation where Merchant:
- is directly or indirectly involved in any fraud;
- cannot conduct normal operations due to deteriorated operating and financial situations;
- operates in violation of the relevant rules, and refuses to make corrections after being pointed out;
- unreasonably rejects or intentionally delays the query and inspection requests of TenPay;
- is in bankruptcy proceedings, is dissolved, or its business license is revoked;
- engages in counterfeit card transactions or malicious defaults of payment;
- commits any act that harms the interest of TenPay;
- breaches this Agreement, or engages in illegal business by using services provided by TenPay;
- involves in risk events or abnormal transactions in TenPay’s judgment.
XII. FORCE MAJEURE
12.1 Force majeure means an event that is unforeseeable, unavoidable, insurmountable and beyond the reasonable control of the affected party. If any event of force majeure affects the performance of this Agreement, the affecting party shall immediately notify the other party with written notice. According to the force majeure’s impact on the performance of this Agreement, the Parties shall determine whether to release this Agreement, exempt the performance responsibility in part, or delay the performance. In the event that a Party fails to perform the Agreement due to force majeure, it shall promptly take measures to prevent further loss, and promptly notify the other Party in writing to mitigate the loss that may cause to the other Party; otherwise, such Party shall indemnify the other Party against further loss incurred.
12.2 In addition, considering the special nature of the Internet, the Parties may be exempted from liabilities in any of the following situations that resulted in TenPay failure to perform its obligations under this Agreement, including but not limited to:
- hacker attacks, and the invasion or outbreak of computer virus;
- that the computer system is damaged, paralyzed or unable to be used normally and results in the loss of information or records, and that TenPay is unable to provide the services under this Agreement;
- significant impact resulted from the telecom department’s technology adjustments；
- termination of service due to government regulations; and
- other reasons that are not attributable to the Parties.
12.3 Any Party that encounters the aforementioned force majeure events shall notify the other Parties of such event in writing via email immediately. The Parties shall then decide whether to continue the performance of this Agreement in accordance with the degree of the impact that such event has on the performance of the Agreement.
XIII. RISK ALERT AND SPECIAL PROVISIONS
13.1 The Parties are fully aware of the current situation that 「the Chinese domestic e-commerce environment is not yet mature, and the e-commerce legislation and the credit system is imperfect」 and risks of conducting e-commerce business. The Parties undertake to take reasonable risk prevention measures to avoid or minimize the risks.
13.2 Merchant shall ensure to strictly comply with the mandatory laws, regulations and policies of the People’s Bank of China and Merchant’s country and region relevant to the card business. Merchant shall not involve in false trading, cash advance, and money laundering and any other illegal activities.
XIV. DISPUTE RESOLUTION AND APPLICABLE LAW
14.1 This Agreement shall be governed by and interpreted in accordance with the laws of the Hong Kong Special Administrative Region of the People’s Republic of China.
XV. TERM, AUTOMATIC RENEWAL AND EARLY TERMINATION
15.1 The Agreement shall be for a term of one(1) year.
15.2 In the event that the Parties fail to request in writing for termination of this Agreement one(1) month prior to the first and subsequent expiration of this Agreement, this Agreement shall be deemed to be extended for one(1) year automatically subject to no limitation.
15.3 Based on their respective operation needs, the Parties are entitled to the early termination of this Agreement without assuming any legal responsibilities. Where the early termination of the Agreement is required, the Party who proposes to do so shall notify the other Parties in writing or via email one month in advance.
15.4 The clauses with respect to the deposit, refund and confidentiality shall survive the cancellation or termination of this Agreement, and the Parties shall continue to perform accordingly.
16.1 Any addition or amendment to the Agreement shall be made only in writing after being signed or sealed by the Parties.
16.2 Unless otherwise agreed by the Parties, all notices hereunder shall be given by email. All notices and communications shall be sent to the emails set forth in the Application Form.