Sunrate Card Terms and Conditions
Use of the Services
1.1 SUNRATE agrees to make the Services available to the Customer provided that the provision of Services is permitted by the applicable Card Association Rules and Applicable Law.
1.2 The Customer shall:
a) provide SUNRATE assistance and co-operation as SUNRATE reasonably requests in relation to SUNRATE’s performance of this Agreement;
b) ensure that its systems meet the minimum specifications as detailed by SUNRATE from time to time and are in good working order and suitable for use with the Platform;
c) comply with any request for information made by SUNRATE for compliance or operational purposes.
Authorised Users
2.1 In order to register for SUNRATE Platform on behalf of a business or commercial entity, the Customer must be legally authorised to agree to the Agreement under the entity's formation documents, as well as under Applicable Law.
2.2 The Customer remains liable for any unauthorised use of the Services (including, without limitation, the Platform and EPIs) by any Authorised User.
2.3 SUNRATE is authorised to take instruction from any Authorised User with apparent authority to act on behalf of the Customer.
Information Required from the Customer
3.1 This Agreement is subject to and conditional upon SUNRATE successfully completing ‘know your business’ customer due diligence and regulatory required anti-money laundering and other compliance checks on the Customer. For these purposes the Customer must promptly provide SUNRATE with the information requested to enable SUNRATE to identify the Customer and its Authorised Users and comply with Applicable Law and applicable Card Association Rules. SUNRATE may also ask for additional information at its discretion. SUNRATE may verify the information provided by Customer against publicly available records and/or third party commercially available databases and customer due diligence services.
3.2 The Customer shall inform SUNRATE promptly of any changes in the information and documents previously provided. SUNRATE shall keep records of such information and documents in accordance with Applicable Law and applicable Card Association Rules. SUNRATE will periodically review the information and documents held and request Customer to confirm that it remains accurate or update its information and documents, as applicable.
3.3 In the event that the Customer (or an Authorised User) knows or suspects the compromise of, loss, theft or possible unauthorised use of the Customer Account, a Funding Account Balance or an EPI, the Customer must notify SUNRATE without delay by following the instructions for such notifications in the Platform or otherwise notified by SUNRATE to the Customer from time to time in writing.
Customer Account Creation, Funding and Use
4.1 Provided that the Customer has met SUNRATE’s eligibility requirements, SUNRATE will allocate a Customer Account to the Customer in the Platform and provide the Customer with a unique Customer ID, log in details and password authorising access by the Customer to the Platform and enabling the Customer to activate its Customer Account online. The Customer shall properly maintain the security of the Customer ID, log in details, EPI related information (e.g., CVV security code) and password. The Customer shall be solely responsible for any loss arising from the misappropriation of such Customer ID, log in details, EPI related information or password. The Customer shall indemnify and hold SUNRATE or any SUNRATE’s employee, director, officer or its Affiliates harmless from and against any and all claims, actions, liabilities, damages, losses and expenses as a result of the misappropriation of such information.
4.2 The Services are to be made available on a pre-funding basis.
Customer may complete a Funding Account Load by transferring funds from the Customer Bank Account to the relevant Pay-In Account and using the Customer’s ID as the reference for the transfer (“Funding Payment”). SUNRATE will update the Funding Account Balance after the Funding Payment is cleared.
4.3 All EPIs which are loaded from Funding Account Balances shall be payment instruments issued by SUNRATE and no deductions are made from the amount of funds received as reflected in the Funding Account Balance when amounts are loaded from the Funding Account Balance to an EPI.
4.4 The Customer may not make a funds transfer from any account other than the Customer Bank Account. If it does so, the Customer acknowledges SUNRATE may be unable to update the Customer’s Funding Account Balance or may be delayed in doing so while the account is verified or the Funding Payment may be returned to the source from which it was received. In no circumstances shall the Customer allow for funds to be transferred from any account which is not owned by the Customer, in the event that such a transfer takes place SUNRATE shall be entitled to return the funds back to the original source and shall have no further liability to the Customer in connection with such action.
4.5 In the event the relevant Funding Account Balance is insufficient to meet the liabilities arising from Transactions, Fees owed by the Customer and/or Payment Obligations associated with EPI Requests then SUNRATE may:
a) refuse to issue further EPIs; and/or
b) take the required funds from other Funding Account Balances in the Customer Account and where such funds are in a currency other than that of the liabilities owed, SUNRATE shall be entitled to convert such currency as necessary at an exchange rate determined by SUNRATE; and/or
c) suspend the ability to make Transactions;
in each case without advance notice to the Customer and without incurring any liability to the Customer and until such time sufficient Funding Payments have been transferred (where applicable).
4.6 SUNRATE may take such reasonable steps as SUNRATE considers necessary, at its sole discretion, in order to minimise any potential or actual losses arising from the Customer’s inability to maintain Funding Payments at the required levels.
4.7 Funding Payments may be used to satisfy any Fees and when received shall first be applied to any outstanding Fees or other amounts owing by the Customer to SUNRATE and then to the Funding Account Balance. SUNRATE may, in its sole discretion take such action as may be reasonably necessary to recover amounts from the Customer which are outstanding.
4.8 The Customer is not entitled to any interest payments whatsoever, without limiting the foregoing, this means no interest is payable on Funding Account Balances or amounts on Loaded EPIs.
4.9 The Customer may elect to enrol in or use additional ancillary products or features that are offered by SUNRATE or approved vendors from time to time that are not part of SUNRATE’s core services. Customer understands that additional terms of use for such products or features, including any associated fees may apply and will be provided to Customer prior to enrolment.
EPI Instruments and Payment Services
5.1 Subject to the terms of this Agreement the Customer may use EPIs to enter into Transactions and SUNRATE shall execute Customer's Transactions.
5.2 This Agreement is for the provision of a commercial card-based payment facility and as such, the Customer agrees that it will only enter into Transactions for the purchase of products and services for the Customer’s business or commercial purposes and not for personal, family or household purposes.
5.3 An EPI is only capable as a form of payment to Suppliers who are merchants authorised to accept such payment instruments for ‘card not present’ transactions or otherwise able to accept EPIs under the corresponding Card Network.
5.4 When the Customer or an Authorised User submits an EPI Request, the Customer requests SUNRATE to issue an EPI in the amount of the EPI Request to discharge a Payment Obligation, or multiple Payment Obligations. Provided that the Customer has deposited sufficient funds to the relevant Pay-In Account in accordance with provision 4 for the amount of the Payment Obligation associated with the EPI Request, SUNRATE shall Load the EPI. At this time Customer authorises the use of funds from the relevant Funding Account Balance to load the SUNRATE EPI and thereafter to satisfy SUNRATE's settlement obligation to the corresponding Card Network in an amount corresponding to such EPI Request and to settle any additional amounts for the associated Payment Obligation.
5.5 Upon submission of the EPI Request by Customer, SUNRATE shall proceed to payment completion in accordance with provision 5.6 provided that the Customer has sufficient funds in the relevant Funding Account Balance to enable Loading of the required EPI. In the event that Customer has insufficient funds in the relevant Funding Account Balance at the time of Loading when looking at all funds held in the relevant Funding Account Balance and all outstanding requested EPIs that are to be Loaded that day, SUNRATE reserves the right to cancel any such EPIs equal to or exceeding the funding insufficiency. SUNRATE will notify Customer of such cancellation and not proceed to payment completion in accordance with provision 5.6. Customer will need to remit sufficient funds and submit (a) new EPI Request(s).
5.6 At the Customer’s option, to be exercised via the Platform, a Loaded EPI shall be (subject always to provision 6.3) (a) provided to the Customer by SUNRATE for the Customer to present it to its Supplier for payment; or (b) at the Customer’s request, SUNRATE shall present the EPI to the Customer’s Supplier for payment.
5.7 If the option in 5.6(b) is exercised, once the relevant payment information has been submitted to SUNRATE using the Platform, specific data relating to the relevant Transaction (for example, the payment amount and details of the relevant EPI) may be sent to the relevant Supplier using the agreed method of communication. For option 5.6(a) the Customer is responsible for providing the EPI and relevant data to the Supplier for payment.
5.8 Upon receipt of the payment information, the Supplier may use such information for the purposes of completing the relevant Transaction using its usual third party Supplier equipment for processing transactions (payments to the Supplier being made in accordance with the Supplier’s agreement with their Merchant Acquirer).
EPI Conditions
6.1 Each EPI requested (a) is valid for a maximum value in a specific currency; (b) will have an expiry date; and (c) will have a CVV security code.
6.2 SUNRATE may impose certain merchant category, transaction category, geographical, currency or maximum value limitations and limits etc. on an EPI, in order to comply with legal or regulatory requirements, applicable Card Association Rules and secure business practice (e.g., anti-money laundering and anti-fraud measures) (the “Restrictions”). Those Restrictions applying from the Effective Date shall be set out in the Fees and Restrictions section of SUNRATE EPI Payment Service Agreement. However, SUNRATE reserves the right to change these particular payment restrictions and impose new ones, in its absolute discretion, without notice and to the extent required to meet regulatory obligations and Card Association Rules. Without prejudice to the foregoing sentences, SUNRATE shall endeavour to provide the Customer with prior notice of new or changed payment restrictions where possible.
6.3 The Customer is responsible for the security and use of the EPI once provided to the Customer by SUNRATE, at the Customer’s request, provided to a Supplier by SUNRATE for payment.
6.4 The Customer agrees that by it (or its Authorised User) presenting an EPI or requesting SUNRATE to present an EPI (with or without any applicable security codes, devices or features) to a Supplier for use in respect of a Transaction, the Customer shall be deemed to have authorised that Transaction.
6.5 Once a Transaction has been Authorised, it cannot be changed or cancelled.
6.6 EPIs shall not be used for any illegal purpose or in a manner prohibited by Applicable Law and any Transactions which would be unlawful if they were to be entered into by the Customer are prohibited.
Withdrawal of Funds
7.1 The Customer may withdraw all or a portion of the Funding Account Balance at any time by written request to SUNRATE provided that the funds are not allocated to a Loaded EPI that has been Authorised (that is, all funds held in the Funding Account Balance but not yet loaded onto EPIs can be withdrawn). When SUNRATE processes the request, SUNRATE may require the Customer to provide a written confirmation from an authorised officer and documentation to confirm that the authorised officer has the Customer’s authority to make such a request. All withdrawals will be made in the same currency as the funds that the Customer paid in to the Pay-In Account(s), by electronic bank transfer to the Customer Bank Account(s). SUNRATE may request (a) validation from the banking institution where the Customer Bank Account is held that such bank account is held for the Customer and the Customer hereby consents that the banking institution may provide that information; and/or (b) that the Customer provides additional information about the Customer as required by SUNRATE’s banking partners where the Pay-In Account(s) are held and the Customer agrees that it shall provide such information.
7.2 Against the withdrawal amount SUNRATE may set off any amounts representing outstanding undisputed unpaid SUNRATE invoices and accrued interest (if any) and, in respect of Services supplied to the date of withdrawal but for which no invoice has been submitted, SUNRATE may submit an invoice, which shall be payable immediately on receipt.
Unauthorised Transactions and Chargebacks
8.1 Except as set out in provision 8.2 below and where a Chargeback is achievable under and in accordance with the Chargeback Section of the Operations Manual and applicable Card Association Rules, the Customer will be liable to SUNRATE for all use of the Platform and its Customer Account which is carried out in the Customer’s name using the Customer’s credentials and any access to the Customer Account enabled thereby. Misuse by an Authorised User does not constitute unauthorised use or an Unauthorised Transaction.
8.2 If a Supplier submits a settlement request on an EPI to applicable Card Association (i.e., processes an EPI Transaction for payment) that exceeds the limits of the associated EPI Request, SUNRATE may send the Customer an email notifying the Customer of such action (“Rejected Transactions” or “RT(s)”). By the end of the Business Day which follows the day of receipt of such notification (the “Objection Period”), the Customer must respond to confirm that: (a) the RT is approved and ensure the relevant Funding Account Balance is sufficiently funded with the excess amount required to fund the Transaction; or (b) respond to confirm that the RT is not approved. If (i) a “not approved” response is received; or (ii) an “approved” response is received but the required funding is not received; or (iii) if no response is received, in each case within the Objection Period, SUNRATE shall chargeback the excess amount immediately upon expiry of the Objection Period and shall be entitled to retain the Chargeback because the Customer will be liable to SUNRATE for the excess amount required to fund the Transaction.
8.3 A Customer may only dispute a Transaction as an Unauthorised Transaction or an otherwise incorrectly executed Transaction under and in accordance with the Chargeback Section of the Operations Manual.
8.4 The Customer shall adhere to any documentation requests or arbitration requirements of Card Association in connection with the dispute and must pay SUNRATE the Chargeback Processing Fee on demand. For the avoidance of doubt, the Chargeback Processing Fee is charged on a per Transaction basis, so if one EPI is used to pay for multiple Transactions, then multiple Chargeback Processing Fees will apply.
8.5 SUNRATE reserves the right to instruct the Customer to directly contact the Supplier to obtain details so that SUNRATE may process the Chargeback.
8.6 If the Chargeback is successful, (subject to as set out in provision 8.2) the amount received by SUNRATE from the Supplier’s Merchant Acquirer via Card Association shall be refunded to the Customer’s relevant Funding Account Balance less the Chargeback Processing Fee and any fees charged to SUNRATE by Card Association. If the Chargeback is not successful, the Customer shall still be liable to pay SUNRATE the Chargeback Processing Fee and any fees charged to SUNRATE by Card Association. If under applicable Card Association Rules the Chargeback is reversed (for instance, as the result of a second submission, also referred to as re-presentment), the amount refunded and any fees associated by the reversal shall be immediately due and payable by the Customer to SUNRATE and SUNRATE may deduct such amounts from the Customer’s Funding Account Balance.
8.7 SUNRATE’s ability to obtain any amounts to refund to the Customer as a Chargeback is subject always to applicable Card Association Rules.
Foreign Currency Functionality
9.1 The Customer may use Card Association’s foreign exchange embedded functionality in respect of EPIs. To do so, the Customer may fund the Pay-In Account in one currency and request an EPI in the same currency. If the Customer uses the EPI issued in one currency to settle a Transaction in a different currency (which must be a currency permitted by the corresponding Card Association Rules), the Customer shall be liable for: (a) the Cross-Currency Fee; (b) any Third Party Fees; and (c) any difference between the fixed value of the EPI in the currency in which it is issued and the value of the Transaction based on the currency in which the Transaction is settled, determined by Card Association’s foreign exchange rate on the day of settlement.
Opening Access to Third Party Providers (TPPs)
10.1 A TPP is a third party service provider that’s authorised, with the Customer’s express agreement, to access the Customer’s online accounts which the Customer can use to view consolidated information about the Customer’s finances (this may include information about accounts the Customer holds with SUNRATE and other banks). For the avoidance of doubt the Customer may not give payment instructions through a TPP.
10.2 SUNRATE will include terms that make it clear to the Customer that they can use TPPs if the Customer wants to. The Customer should check from the information the TPP gives the Customer that the TPP is properly authorised.
10.3 SUNRATE may deny a TPP access the Customer’s account if SUNRATE is concerned about unauthorised or fraudulent access by that TPP. Unless it would compromise SUNRATE’s reasonable security measures or otherwise be unlawful, SUNRATE will tell the Customer if SUNRATE does this, and why, in the way SUNRATE thinks most appropriate. If the Customer uses a TPP, the Customer must continue to tell SUNRATE about any payments on the Customer Account that the Customer thinks may be incorrect or unauthorised. Please note that SUNRATE will restore TPP access to the account once the reasons for denying access no longer justify such denial of access.
Fees and Other Liabilities of Customer
11.1 The Customer agrees to pay when all indebtedness, obligations and liabilities that arise whatsoever pursuant to this Agreement are due, including, without limitation:
a) the Fees as summarised in the Fees and Restrictions section of SUNRATE EPI Payment Service Agreement and the Fees as displayed on SUNRATE Platform; and
b) any and all costs (including reasonable legal fees) SUNRATE incurs in enforcing any rights in this Agreement before and after judgment and on an indemnity basis.
11.2 SUNRATE shall invoice the Customer for all sums due, on a monthly basis, in arrears and the invoice shall be payable within fifteen (15) days of receipt of the invoice.
11.3 If payment of an SUNRATE invoice is not made within fifteen (15) days of the date of the invoice, SUNRATE may charge interest on such sum from the due date for payment at 6% per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
11.4 Without prejudice to any other right or remedy that SUNRATE may have, if the Customer is in default of payment, SUNRATE may suspend the Customer’s access to the Platform until payment has been made in full.
11.5 Unless otherwise agreed, the Customer shall be responsible for all Taxes required by law to be paid in connection with the Agreement. If the Customer is required by law to deduct Tax from any sums due to SUNRATE then the Customer shall pay such Tax and any additional amounts as are necessary to ensure that the net amounts received by SUNRATE after all such payments are equal to the amounts to which SUNRATE is otherwise entitled under the Agreement as if such Tax was not applicable.
11.6 SUNRATE reserves the right to increase or introduce new Fees on one (1) month’s notice to the Customer including Third Party Fees, which shall be levied on a pass through basis as incurred.
11.7 It is expressly agreed by both parties that in the event of any change in industry standard or any ruling, legislation, regulation, other Applicable Law, applicable Card Association Rules or any other change which relates to the charges connected in any way with the use of card-based payment instruments, SUNRATE shall have the right to vary the provisions of this Agreement (including but not limited to any financial terms and other commercial terms) absolutely in order to ensure that performance of this Agreement remains commercially viable for SUNRATE as decided by SUNRATE in its sole discretion. Such variation shall be Mandatory Change in accordance with provision 22.1.
Reporting
12.1 SUNRATE shall provide to the Customer such data relating to each Transaction made by the Customer using an EPI as is transmitted to it by Suppliers.
12.2 SUNRATE shall not be liable in connection with the accuracy or completeness of any reports, data services or other information services provided to the Customer due to an error or omission in the data supplied by the accepting Suppliers.
12.3 SUNRATE shall not be liable for any inaccuracy in reporting, unless such inaccuracy is solely caused by SUNRATE’s fraud, gross negligence or wilful default in preparing such reports.
Use of Services by Group Companies and/or Other Affiliates
13.1 SUNRATE may, at its sole discretion, agree that the Services are to be provided to certain subsidiaries and/or Affiliates of the Customer.
13.2 The Customer acknowledges that in order for such subsidiaries and/or Affiliates of the Customer to use the Services, such subsidiaries and/or Affiliates may be requested to provide additional documents and enter into additional agreements. In particular, prior to the provision of Services to any subsidiaries and/or Affiliates of the Customer, each such subsidiary and/or Affiliate shall be required to acknowledge their agreement to the terms of this Agreement in writing through the completion of the appropriate form. SUNRATE shall only share information provided by a subsidiary or Affiliate of Customer with the Customer, and shall not share such information with other subsidiaries or Affiliates of the Customer to whom the Services are or are to be provided.
13.3 The Customer irrevocably, absolutely and unconditionally guarantees payment of all amounts due under this Agreement to SUNRATE from its subsidiaries and/or Affiliates. SUNRATE shall not be required to initiate any action against, nor exhaust any remedies with respect to any subsidiary or Affiliate of the Customer prior to making a demand of payment upon the Customer.
Service Levels and Liability
14.1 During the Term, SUNRATE shall perform its obligations set out in this Agreement with reasonable skill, care and diligence, and in compliance with Applicable Law.
14.2 EPIs and the Platform are provided on an ‘as is’ basis and SUNRATE disclaims any implied warranties of merchantability and that EPIs as provided hereunder are fit for Customer’s particular purpose(s).
14.3 SUNRATE shall endeavour to make the Platform available 24 hours a day, 7 days a week. SUNRATE shall not be liable to the Customer in the event that the Platform is not so available but shall endeavour to restore access to the Platform as soon as reasonably practicable.
14.4 In the event that SUNRATE needs to restrict access to the Platform for the purposes of scheduled maintenance, SUNRATE shall endeavour to provide advance notice of such unavailability of the Platform to the Customer.
14.5 SUNRATE uses state of the art cyber security protections in relation to the Platform, however SUNRATE cannot guarantee the security of information held or published by SUNRATE and shall not be liable to the Customer for any losses incurred by the Customer as a result of data corruption, data loss or unauthorised access to the Platform.
14.6 Nothing in this Agreement shall operate to limit or exclude either party’s liability with respect to fraud or fraudulent misrepresentation or for death or personal injury resulting from negligence, in either case whether committed by that party or its employees, agents or subcontractors.
14.7 Subject to provision14.6 and without prejudice to the other sub-provisions of this provision14, neither party shall be liable (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) for:
a) loss or fraud caused by or arising from the act or omission of the other party or that other party’s employees, agents or subcontractors;
b) special, incidental, indirect or consequential loss or damage of any type whatsoever;
c) any claims for loss or damage resulting from loss of use, loss of data, loss of profits, loss of goodwill, loss of business arising out of or in connection with this Agreement or loss or damage suffered by the other party as a result of a third party claim in each case whether such loss or damages are direct or indirect, regardless of whether such loss or damages were foreseeable or the relevant party had been advised or otherwise aware of the possibility of such loss or damage in advance.
14.8 If the Customer’s instructions (including, without limitation) to request an EPI are incomplete or incorrect, SUNRATE may not be able to provide the Services and shall not be liable whatsoever or be in default for any delay or failures in performance.
14.9 If either party is notified by a regulatory, judicial or governmental authority that any aspect of the Services provided by SUNRATE or this Agreement does not comply with any Applicable Law, then the affected party shall give the other party prompt notice of the non-compliance. Following notice, the affected Services will be suspended and the failure to perform those Services will not be deemed a breach of this Agreement so long as the affected party is unable to perform due to the notice given by that regulatory, judicial or governmental authority.In addition, if performance of this Agreement would constitute, in SUNRATE’s sole opinion, a violation by SUNRATE or Card Association of any Applicable Law and/or applicable Card Association Rules then: (a) SUNRATE shall not be required to perform any of its obligations under this Agreement and shall have no liability whatsoever or be in default for any delay or failures in performance; and (b) may terminate this Agreement at any time with immediate effect.
14.10 To the maximum extent permitted by law, SUNRATE will not be liable to the Customer for any loss, claim, damage, cost or liability which the Customer or any person claiming through the Customer may suffer arising directly or indirectly out of the Customer’s use of the Services (including, without limitation, for fraud perpetrated by a third party). The exclusion of liability in this provision is intended to apply to the fullest extent permitted by Applicable Law. Where Applicable Law implies any term, condition or warranty which cannot be excluded, limited or modified, the term, condition or warranty will apply only to the extent it cannot be excluded, limited or modified. SUNRATE’s liability for any breach of such term, condition or warranty to the extent it can be limited is limited at SUNRATE’s option to supplying the relevant Services again, or the refund of any fees derived by SUNRATE from the provision of the Services subject of the Customer’s claim.
14.11 SUNRATE shall not be held in any way responsible, in the event that a Supplier does not accept an EPI presented for the payment of a Transaction.
14.12 Without prejudice to the other provisions of this provision 14, SUNRATE’s total aggregate liability under or in connection with this Agreement in any calendar year whether arising in tort (including negligence), breach of statutory duty, contract or otherwise for all types of loss and damage shall be limited to USD 0.5 million. The financial limit in this provision shall not apply to payments properly due under this Agreement.
Force Majeure
15.1 Subject to provision15.2, in no event shall either party be liable to the other party for any failure or delay in performance wholly or in part due to causes or circumstances beyond its reasonable control and without its fault or negligence including, but not limited to the following: (a) acts of God, lightning strikes, earthquakes, epidemic, plague, tsunami, floods, typhoons, tornadoes, cyclones, storms, explosions, fires and any natural disaster or calamity; (b) any law or government order, rule, regulation or direction, or any action taken by a government or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary license or consent; (c) acts of war, invasion, armed conflict, cessation of diplomatic relations, imposition of sanctions, acts of public enemies, rebellion, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; (d) strikes, labour disputes, industrial actions and lockouts; and (e) computer hacking or viruses and unforeseen equipment or communications interruption or fault; (collectively “Force Majeure”).
15.2 A party’s failure to perform its obligations under this Agreement due to Force Majeure events will not be considered breach if the party has made best endeavours to:
(i) comply with its obligations;
(ii) avoid an interruption of its performance; and
(iii) resume its performance.
15.3 The party claiming a failure or delay in performance under this Agreement due to Force Majeure must promptly notify the other party in writing. In the event that any such Force Majeure failure or delay continues for a period of more than ten (10) Business Days, the other party may, upon written notice to the defaulting party, have the option of terminating this Agreement without incurring additional liability.
Intellectual Property
16.1 During the Term of this Agreement and subject to the Customer’s compliance with this Agreement, SUNRATE hereby grants the Customer a license to access and use (a) EPIs to discharge Payment Obligations as set forth in this Agreement; (b) the Platform to utilise EPIs and administer its Customer Account and (c) at SUNRATE’s discretion, the API to request EPIs. To the extent any documentation and/or tools are provided to the Customer by SUNRATE to support the Customer’s use of EPIs, the Platform and/or the API, the Customer is granted a license to use, copy and distribute such documentation and/or tools solely to support the Customer’s access to and use of EPIs, the Platform and the API.
16.2 The Customer may not rent, lease or lend any of these foregoing rights granted to the Customer to any third party, including any of the Customer’s Affiliates, without the express written permission of SUNRATE.
16.3 The Customer may not alter any copyright, trademark, or patent in the Platform or in any documentation and/or tools associated therewith or modify any of the foregoing.
16.4 Except for the licenses expressly granted in this provision 16, SUNRATE retains all right, title and interest in and to EPIs, the Platform and all intellectual property rights therein. The Customer is not authorised to alter, modify, copy, edit, format, create derivative works of, or otherwise use any materials, content, or technology provided under this Agreement except as explicitly provided in this Agreement or approved in advance in writing by SUNRATE. SUNRATE reserves all rights not expressly granted to the Customer under this Agreement and retains ownership of all copyright, trademarks, advertising and promotional material and other intellectual property rights in relation to and subsisting in the EPI, the Platform and the API.
Covenants
17.1 Each party represents and warrants that this Agreement constitutes the legal, valid, binding, and enforceable agreement of that party, and its execution and performance of this Agreement:
a) does not constitute a breach of any agreement of a party with any third party, or of any duty arising in law or equity:
b) does not violate any Applicable Law;
c) is within that party's corporate powers; and
d) has been authorised by all necessary corporate action of the party.
17.2 The Customer agrees to provide any evidence of corporate (or other organisational) existence and authorisation that SUNRATE may reasonably request.
17.3 The Customer shall provide SUNRATE with advance written notice of:
a) any change in the Customer’s legal structure or legal name;
b) any consolidation, merger or sale of a substantial part of the Customer’s assets; or
c) any change of control of the Customer.
17.4 SUNRATE reserves the right to make any necessary amendments to this Agreement based upon changes made by the Customer as referred to in provision 17.3 above.
Confidentiality
18.1 All information furnished by either party in connection with this Agreement will be kept confidential (and will be used by the other party only in connection with this Agreement), except to the extent that such information:
(a) is already lawfully known when received;
(b) is or becomes lawfully obtainable from other sources; or
(c) is required by Applicable Law to be disclosed, provided that notice of such disclosure has been given (when legally permissible) by the party proposing to make such disclosure, which notice, when practicable, shall be given sufficiently in advance of the proposed disclosure to permit the other party to take legal action to prevent the disclosure.
18.2 Nothing in this section or this Agreement prohibits SUNRATE from providing any information to its Affiliates or third-party servicers in connection with the operation and maintenance of the Services provided to the Customer pursuant to this Agreement, and the Customer expressly agrees to these disclosures and use of information, provided that such Affiliates and third party servicers agree to maintain the information confidentially and not disclose it to any other persons without the Customer’s authorisation.
18.3 The Customer agrees and understands that information relating to Transactions may be provided to Suppliers who have accepted an EPI as payment for a Customer Payment Obligation.
Measures
19.1 SUNRATE may suspend or cease the Customer’s access to EPIs and/or the Platform in its sole discretion and specifically in the event that: : (a) on reasonable grounds relating to the security of the Platform or the suspected unauthorised or fraudulent use of the Customer Account, Funding Account Balances or EPIs; (b) if the Customer has not submitted an EPI Request in any six (6) month period; (c) if SUNRATE suspects that the Customer’s use of EPIs and/or the Platform breaches or may breach applicable Card Association Rules and/or any Applicable Law; (d)if the Customer’s use of EPIs and/or the Platform is improper (e) if the Customer is in breach of this Agreement, while such breach remains unremedied; (f) if Card Association instructs or requests SUNRATE to withhold access to the EPIs and/or the Platform by the Customer or SUNRATE ceases providing EPIs; or (g) if any legal, governmental or judicial authority instructs SUNRATE to withhold access to EPIs and/or the Platform.
19.2 SUNRATE may increase the Fees within reasonable limits in its sole discretion in the following event with immediate effect in the Platform: (a) on reasonable grounds relating to the compliance or operation of the Platform; (b) if the Customer’s use of EPIs and/or the Platform is improper; (c) the number of abnormal Transactions reaches or exceeds 1% of the number of total Transactions, or the amount of abnormal Transactions reaches or exceeds 1% of the amount of total Transactions.
19.3 For the Customers that are duly registered under the laws of the People's Republic of China (for the purpose of this Agreement, excluding the Hong Kong Special Administrative Region, Macau Special Administrative Region and Taiwan, hereinafter “China”) and engaged in cross-border e-commerce business, the Services are limited to payment and settlement of the expenses incurred outside China on storage, logistics, taxation, etc. by such Customers for exporting goods outside China during their cross-border e-commerce business. Otherwise, SUNRATE is entitled to refuse to provide Services and unilaterally terminate this Agreement.
Term and Termination
20.1 The Term of this Agreement is as provided for in the SUNRATE EPI Payment Service Agreement.
20.2 The Customer may terminate this Agreement in whole or in part with immediate effect by providing a written notice to SUNRATE if (a) SUNRATE has breached its material obligations under this Agreement and failed to remedy that breach within forty-five (45) days of receiving notice from the Customer requiring it to do so; or (b) the Customer does not agree to the changes to this Agreement made by SUNRATE under provision 11.6 or 11.7.
20.3 Without limiting any other rights SUNRATE may have, SUNRATE may terminate this Agreement in whole or in part by providing a written notice to the Customer if the Customer has breached its material obligations under this Agreement and failed to remedy that breach within fifteen (15) days of receipt of such written notice requiring the Customer to do so. Furthermore, SUNRATE may terminate this Agreement if the Customer’s access to the Platform has been suspended in accordance with provision 19 for three (3) successive months.
20.4 Either party may terminate this Agreement with immediate effect by notifying the other party if there is an Insolvency Event in relation to the other party.
20.5 On termination of this Agreement:
a) Provided that SUNRATE receives complete written instructions from an authorised officer, including complete Customer Bank Account details, the relevant Funding Account Balances shall be returned to the Customer within thirty (30) days of termination (unless repayment is prohibited by order of any governmental authority, or by Applicable Law) less any amounts set off to satisfy amounts set out in provision 20.5(d) and any subsequent refunds received by SUNRATE will be returned to the Customer, if any.
b) All refunds processed after termination will be made in the same currency as received from Card Association, by electronic bank transfer to the relevant Customer Bank Account. SUNRATE may request (i) validation from the banking institution where the Customer Bank Account is held that such bank account is held for the Customer and the Customer hereby consents that the banking institution may provide that information; and/or (ii) that the Customer provides additional information about the Customer as required by SUNRATE banking partners where the Pay-In Account(s) are held and the Customer agrees that it shall provide such information.
c) The accrued rights and remedies of each party are not affected.
d) The Customer must pay SUNRATE outstanding undisputed unpaid invoices and accrued interest (if any) and, in respect of Services supplied to the date of termination or expiry but for which no invoice has been submitted, SUNRATE may submit an invoice, which shall be payable immediately on receipt.
e) The Customer must immediately cease use of the EPI and the Platform.
f) Each party must return and/or destroy upon written request from the other party all Confidential Information of the other party in its possession. The provisions for return or destruction shall not apply to copies of electronically communicated Confidential Information made as a matter of routine information technology back-up and to Confidential Information or copies of it that must be stored by the receiving party or its advisers according to provisions of Applicable Law, provided that this Confidential Information or copies of it shall be subject to continuing obligations of confidentiality under this Agreement; but no further use shall be permitted as from the date of the request.
g) Provisions 7, 8.1, 11, 14.6 to 14.10, 16 and 18 shall survive the termination or expiry of this Agreement.
Severability and Waivers
21.1 If any portion of this Agreement is held to be invalid, the remaining portions shall remain in full force and effect and shall continue to be binding upon the parties.
21.2 Failure of either party to exercise any of its rights under this Agreement in a particular instance shall not be construed as a waiver of those rights or any other rights for any other purpose.
Amendments
22.1 In the event that there is a change in Applicable Law or to Card Association Rules deemed by SUNRATE, in its sole opinion, to be material to the provision of the Services or give rise to the need to amend the terms of this Agreement (“Mandatory Changes”), SUNRATE may amend this Agreement in order to take account of such Mandatory Changes, and the amended Agreement will be published within the Platform.
Assignment
23.1 The Customer may not assign this Agreement or any interest, payment or rights under this Agreement for any reason, without SUNRATE’s prior written consent.
23.2 The Customer agrees that SUNRATE may, in its sole discretion, assign this Agreement, transfer any of its rights and obligations under this Agreement, or delegate any duty of performance under this Agreement to an appropriately authorised person without further notice.
Language
24.1 All communications relating to the Services, whether in oral or in writing, may be conducted in Chinese or English. Communication in Chinese is for convenience only and English is the agreed language for communication.
Governing Law and Jurisdiction
25.1 This Agreement and all non-contractual or other obligations arising out of or in connection with it are governed by laws of Singapore, regardless of conflict of laws. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force. The seat of the arbitration shall be Singapore. The Tribunal shall consist of three (3) arbitrators. The language of the arbitration shall be English.
Definitions
In this Agreement:
“Affiliate” means an entity Controlled by, Controlling, or under common Control with a Party.
“Agreement” means the SUNRATE EPI Payment Service Agreement, the Terms and Conditions and the SUNRATE Privacy Policy together.
“API” means application programming interface as may be provided to the Customer by SUNRATE to facilitate Customer access to the Platform.
“Applicable Law” means any law, rule, regulation, regulatory policy, code of practice, guideline or requirement which is in force from time to time.
“Authorised” means, in relation to an EPI, an EPI Transaction that has been authorised by Card Association according to applicable Card Association Rules or otherwise as deemed appropriate by that Card Association and “Authorisation” shall mean the process by which a Transaction is Authorsied.
“Authorised User” means the Customer and those officers, employees or other representatives of the Customer authorised to use the Services (including without limitation, the Platform and EPIs) for and on behalf of the Customer.
“Business Day” means a day (not being a Saturday, Sunday or public holiday) when clearing banks are open for business in Singapore.
“Card Profile” means a set of parameters against which EPIs are issued to the Customer. The Customer may have multiple Card Profiles operating under the Customer Account.
“Card Association” means, for the purpose of this Agreement, Mastercard International, Inc. or its successor and/or Visa Inc. or its successor.
“Card Association Cross-Currency Fee” means the fee levied on a Transaction when currency conversion occurs or when the currency used as settlement differs from the currency of the EPI issued to the Customer at its request as set out in the Fees and Restrictions section.
“Card Association Rules” means all rules, policies, operating procedures, guidelines, bulletins and manuals of Card Network applying to the issuance, use and/or acceptance of a card-based payment instrument issued pursuant to Card Network, as they may be amended or replaced from time to time.
“Card Network” means the card-based payment system operated by Card Association which services and permits member organisations to issue card-based payment instruments or acquire transactions made with card-based payment instruments which are branded by or otherwise associated with the brand of Card Association.
“Chargeback” means a refund of a Transaction after the Customer (or SUNRATE on its behalf) successfully disputes the Transaction as permitted by applicable Card Association Rules and under and in accordance with the Chargeback Section of the Operations Manual.
“Chargeback Section of the Operations Manual” means the section of the document provided by SUNRATE which may be revised by SUNRATE from time-to-time summarising applicable Card Association Rules regarding Chargebacks and stipulating the process to be followed to obtain a Chargeback in the circumstances permitted by applicable Card Association Rules.
“Chargeback Processing Fee” means the fee specified in the Fees and Restrictions section as the Chargeback Processing Fee and being the fee SUNRATE charges for administering a Chargeback and other assistance provided to the Customer in relation to a Chargeback.
“Customer Account” means the Customer’s account maintained with SUNRATE for Customers to use the Platform and request EPIs.
“Customer Bank Account” means the Customer’s bank account(s) from which it will make Funding Account Loads and which is accepted by SUNRATE following written notification by the Customer.
“Confidential Information” means the information which must be kept confidential in accordance with provision 18.
“Control” means the power to direct, manage, oversee and/or restrict the affairs, business or assets of an entity.
“Effective Date” has the meaning given in the SUNRATE EPI Payment Service Agreement.
“EPI” means an electronic payment instrument consisting of (amongst other things) a unique 16-digit account number issued by SUNRATE in accordance with this Agreement which uses Card Network and may be used by the Customer as set out in this Agreement for the purpose of a Transaction.
“EPI Request” means a request by the Customer for an EPI for a specified value in a specified currency to discharge a Payment Obligation(s).
“Fees” means the fees payable by the Customer to SUNRATE under this Agreement for the Services, such fees are summarised in the Fees and Restrictions Section and are subject to increases and/or adjustment from time to time in accordance with provision 11.6, 11.7 and 19.2.
“Fees and Restrictions” means the section of the SUNRATE EPI Payment Service Agreement headed “Fees and Restrictions” which sets out the Fees payable by the Customer to SUNRATE under this Agreement and any initial Restrictions applicable to use of EPIs by the Customer.
“Force Majeure” has the meaning given to it in provision 15.
“Funding Account Balance” means the actual balance of funds in a particular currency which are available for use in connection with the Customer Account.
“Funding Account Load” means the transfer of funds to a Pay-In Account which results in a corresponding increase in the Funding Account Balance denominated in the same currency as the funds transferred.
“Funding Payment” has the meaning given to it in provision 4.2.
“Insolvency Event” means in relation to a party: (a) that party is or is presumed or deemed to be unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness; (b) any point in time where the value of the assets of that party is less than its liabilities (taking into account contingent and prospective liabilities); (c) a moratorium is declared in respect of any indebtedness of that party; (d) any corporate action, legal proceedings or other procedure or step is taken in relation to: (i) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration, judicial management, provisional supervision or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of that party; (ii) a composition or arrangement with any creditor of that party, or an assignment for the benefit of creditors generally of that party or a class of such creditors; and (iii) the appointment of a liquidator, receiver, trustee, judicial manager, administrator, administrative receiver, compulsory manager, provisional supervisor or other similar officer in respect of that party; or any analogous procedure or step is taken in any jurisdiction.
“Load” means in relation to an EPI, loading an EPI with funds from a Funding Account Balance in the amount of the applicable EPI Request so that the EPI is capable of being Authorised to make a Transaction up to the requested amount (and which has not already been Authorised) and is available to be presented to the relevant Supplier. “Loading” and “Loaded” shall have corresponding meanings.
“MCC” means merchant category code as set by Card Association.
“Merchant Acquirer” means a bank or financial institution that processes payments made with card-based payment instruments on behalf of a Supplier allowing Suppliers to accept card-based payments from the card-issuers within a Card Association.
“Pay-In Account” means the account(s) held by SUNRATE which are segregated accounts of various currencies into which Customer may deposit funds for use in connection with the Services in the currency in which the relevant Pay-In Account is denominated. The definition may also (as the context requires) refer to the safeguard account(s) to which SUNRATE may subsequently transfer Customer funds to comply with requirements of Applicable Law.
“Payment Obligation” means an obligation of the Customer to pay a Supplier plus any Third Party Fees and any Card Association Cross-Currency Fee which will be incurred to effect the relevant payment to the Supplier using an EPI denominated in the currency specified by the Customer.
“Platform” means the system operated by SUNRATE through which SUNRATE issues EPIs and permits Customers to manage their Customer Accounts.
“Rejected Transaction” or “RT” has the meaning given in provision 8.2.
“Restrictions” has the meaning given in provision 6.2.
“Services” has the meaning given to it in the section headed “Services” in the SUNRATE EPI Payment Service Agreement.
“SUNRATE EPI Payment Service Agreement” means the front page(s) of the Agreement entitled as such.
“Supplier” means a merchant authorised to accept Card Association branded payment instruments for ‘card not present’ transactions or otherwise able to accept EPIs under the Card Network.
“Term” means the term specified in the section of the SUNRATE EPI Payment Service Agreement headed “Effective Date and Term”.
“Terms and Conditions” means the terms and conditions of the Agreement entitled as such.
“Tax” means any taxes, imposts, duties and charges, including, without limitation VAT and any other tax imposed by Applicable Law including, without limitation, goods and services taxes, and/or any other equivalent sales or use tax imposed in any jurisdiction at the rate from time to time imposed, as well as any taxes imposed by governmental entities for the provision of payments services such as bank account debit taxes, transaction taxes, similar government imposed fees or other statutory taxes.
“Third Party Fees” means any incidental fees, charges and costs outside SUNRATE’s control arising from the Customer’s use of the Platform and EPI to discharge Payment Obligations, including, without limitation, ‘merchant fees’ charged for using an EPI by the merchant or the merchant’s bank (whether directly or under Card Association Rules), charges related to financial institution and government fees, charges and taxes.
“Transaction” means the use of an EPI, issued to the Customer in accordance with this Agreement, to discharge a Payment Obligation to a Supplier.
“Unauthorised Transaction” means a Transaction made by any person other than the Customer (or an Authorised User) without the consent of the Customer. The headings in this Agreement do not affect its interpretation.