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This Longdo Cards Merchant Agreement (the “Agreement”) is entered into by and between Metamedia Technology Co., Ltd. a company under the laws of Thailand with offices at Rm. 407, 4F, Sathorn Square Office Tower, 98 North Sathorn Rd., Silom, Bangrak, Bangkok 10500 Thailand (“Longdo”) and the entity agreeing to these terms (“Merchant”). This Agreement is effective as of the date on which Merchant checks the “I accept the agreement” option (the “Effective Date”). If you are accepting on behalf of Merchant, you represent and warrant that you: (i) have full legal authority to bind Merchant to these terms and conditions; (ii) have read and understood this Agreement; and (iii) agree to this Agreement on behalf of Merchant. If you do not have the legal authority to bind Merchant, please do not check the “I accept the agreement” option below. This Agreement governs Merchant’s access to and use of the Services.

1. Services.

  • 1.1 General. Longdo will provide the Services in accordance with this Agreement and the SLA. Longdo will provide Merchant with an Admin Account to use for administering the End User Accounts and other features of the Services. Merchant shall: (a) administer End User Accounts using the Admin Tools; and (b) determine the Services to be provided to End Users.
  • 1.2 Modifications to the Services. Longdo may make commercially reasonable changes to the Services from time to time. If Longdo makes a material change to the Services, Longdo will inform Merchant via such method as Longdo may elect provided that Merchant has subscribed with Longdo to be informed about such changes.
  • 1.3 Ads.Longdo reserves the right to serve Ads in the free version of Longdo Cards mobile application. Longdo does not serve Ads in the applications of Merchants purchasing the Ultimate plan unless both parties agree otherwise.

2. Data Processing.

  • 2.1 Data Protection Legislation. In this Agreement the terms “personal data”, “processing”, “controller” and “processor” shall have the meanings ascribed to them as followings:
    • (a) "personal data" shall mean any information relating to an identified or identifiable natural person ("data subject"); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;
    • (b) "processing of personal data" ("processing") shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;
    • (c) "controller" shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data;
    • (d) "processor" shall mean a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller;
  • 2.2 Processor. For the purposes of this Agreement and in respect of Merchant Personal Data, the parties agree that Merchant shall be the controller and Longdo shall be a processor. Within the scope of this Agreement, Merchant shall comply with its obligations as a controller and Longdo shall comply with its obligations as a processor under the Data Protection Legislation.
  • 2.3 Scope of Processing. Longdo will process Merchant Personal Data for the purposes of maintaining, improving and providing the Services and in accordance with applicable law. Longdo will process Merchant Personal Data in accordance with Merchant’s Instructions (in particular, in accordance with Clause 1.1) provided that such Instructions are consistent with the Services capabilities and the Longdo Privacy Policy. If Longdo is unable to comply with Merchant’s Instructions because such Instructions conflict with the Agreement and / or the SLA, Longdo will notify Merchant as soon as reasonably practicable.
  • 2.4 Privacy Policy. Merchant will inform End Users that their personal data are processed in accordance with this Agreement and the Longdo Privacy Policy.
  • 2.5 Data Security. Longdo will take and implement appropriate technical and organisational measures to protect Merchant Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access (“Security Measures”).
  • 2.6 Longdo Staff. Longdo will take appropriate steps to ensure compliance with the Security Measures by its employees, contractors and Subcontractors.
  • 2.7 Security Incident . Following the discovery or notification of a Security Incident Longdo will notify Merchant of such Security Incident as soon as reasonably practicable, having regard to the nature of such Security Incident. Longdo will send any applicable notifications regarding a Security Incident to Merchant.
  • 2.8 Security Audit. During the Term, Longdo will maintain its report on Longdo’s systems examining logical security controls, physical security controls, and system availability (“Audit Report”) as related to the Services.
  • 2.9 Data Transfers. During the Term, Longdo shall ensure that Longdo adopts a compliance solution which achieves compliance with the International Safe Harbor Privacy Principles.

3. Merchant Obligations.

  • 3.1 Compliance. Merchant will ensure that Merchant and End Users use the Services in accordance with the Acceptable Use Policy. . Longdo may make new applications, features or functionality available from time to time through the Services, the use of which may be subject to Merchant’s agreement to additional terms. In addition, Longdo will make available other Non-Longdo Cards Products (beyond the Services) available to Merchant and its End Users in accordance with the Non-Longdo Cards Product Terms and the applicable product-specific Longdo terms of service. If Merchant does not wish to enable any of the Non-Longdo Cards Products, Merchant can choose to enable or disable (as the case may be) the Non-Longdo Cards Products (or any of them) at any time through the Admin Tools. Merchant agrees that its use of the APIs is subject to the API Terms of Use.
  • 3.2 Merchant Administration of the Services. Merchant may specify one or more Administrators through the Admin Tools who will have the rights to access Admin Account(s) and to administer the End User Accounts. Merchant is responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorised to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with this Agreement. Merchant acknowledges and agrees that Longdo is not responsible for the internal management or administration of Merchant’s electronic messaging system or messages.
  • 3.3 End User Consent. Merchant’s Administrators have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts through the Admin Tools. Merchant will obtain and maintain all required consents from End Users to allow: (a) such Merchant access, monitoring, use and/or disclosure; and (b) Longdo to provide the Services in accordance with this Agreement.
  • 3.4 Unauthorised Use. Merchant will use its reasonable endeavours to prevent unauthorised use of the Services, and to terminate any unauthorised use. Merchant will promptly notify Longdo of any unauthorised use of, or access to, the Services of which it becomes aware.
  • 3.5 Restrictions on Use. Except to the extent expressly permitted in this Agreement or otherwise agreed by Longdo in writing, Merchant will not, and will use its reasonable endeavours to make sure a third party does not: (a) sell, resell, lease, or the functional equivalent, the Services to a third party; (b) attempt to reverse engineer the Services or any component of the Services except as permitted by law; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for High Risk Activities; or (e) use the Services to store any Merchant Data that is controlled for export under Export Control Laws.
  • 3.6 Third Party Requests. Merchant is responsible for responding to Third Party Requests. Longdo will, to the extent permitted by law and by the terms of the Third Party Request: (a) promptly notify Merchant of its receipt of a Third Party Request; (b) provide Merchant with the information or tools required for Merchant to respond to the Third Party Request. Merchant will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact Longdo only if it cannot reasonably obtain such information itself.

4. Billing, End User Accounts and Payment.

  • 4.1 Billing. Merchant must select either the Flexible Plan or Annual Plan when it orders the Services.
    • a. If Merchant selects Flexible Plan. Longdo will provide Merchant with the monthly rate for the Services when Merchant orders the Services (“Monthly Rate”). Longdo will use the Monthly Rate to calculate, on a pro-rated basis, the total Fees payable by Merchant per day. Any partial day of Services or End User Account validity will be rounded up to a full day for the purposes of calculating Fees. Longdo will bill Merchant the Fees for the Services monthly in arrears where Merchant is on the Flexible Plan.
    • b. If Merchant selects Annual Plan. Longdo will provide the Merchant with the annual rate for the Services when Merchant orders the Services.
  • 4.2 Payment. All payments due are in the currency indicated on the Order Page or invoice (as applicable). Merchant will pay for the Services (whether on the Flexible Plan or the Annual Plan) by one of the methods below, which Merchant shall select when it purchases the Services:
    • a. Credit Card, Debit Card or Direct Debit. Subject Clauses 4.1 a and 4.1 b Merchant shall be required to pay Fees monthly in arrears by either credit card, debit card or direct debit of Merchant’s bank account. Merchant may select which payment method it wishes to use when it purchases the Services but Merchant may choose an alternative payment method via the Admin Tools at any time. Fees are due and payable on or around the first day of each month after the month in which the Services are received and Longdo shall automatically charge Merchant’s credit card or debit card, or debit Merchant’s bank account as applicable. Fees shall be considered immediately overdue if Longdo does not receive such payment within 5 days of attempting to charge Merchant’s credit card or debit card, or debit Merchant’s bank account.
    • b. Bank Transfer. Longdo may, in its absolute discretion, allow Merchant to pay for the Services by bank transfer. If Merchant chooses to pay by bank transfer, Merchant shall pay the Fees within 30 days of the date of the relevant invoice sent by Longdo to Merchant. Fees shall be considered immediately overdue in the event that Merchant fails to pay the Fees within 30 days of the date of the invoice.
    • c. Other Forms of Payment. Longdo may, in its sole discretion, enable Merchant to pay the Fees using other forms of payment which Longdo may make available in the Admin Tools from time to time. Merchant may change its payment method to those made available within the Admin Tools by selected the preferred payment method. These other forms of payment may be subject to additional terms which Merchant may have to accept prior using the additional forms of payment.
  • 4.3 Late Payments. Longdo may charge interest at the rate of 2% per annum above the base rate of Bank of Thailand from time to time, from due date until the date of actual payment, whether before or after judgment, on any Fee for the Services which is overdue. Merchant will be responsible for all reasonable expenses (including legal fees) incurred by Longdo in collecting overdue and unpaid amounts, except where such overdue and unpaid amounts are due to Longdo’s billing inaccuracies.
  • 4.4 Suspension for Non-Payment.
    • a. Automatic Suspension. Merchant will have thirty days to pay Longdo overdue Fees. If Merchant does not pay Longdo overdue Fees within thirty days from the overdue date, Longdo will automatically suspend Merchant’s use of the Services. The duration of this suspension will be until Merchant pays Longdo all outstanding Fees.
    • b. During Suspension. If Merchant is on the Flexible Plan Longdo will stop charging Merchant monthly Fees during Merchant’s suspension for non-payment. If Merchant is on the Annual Plan, Longdo will continue to charge Merchant monthly Fees during Merchant’s suspension for non-payment and Merchant must pay all outstanding Fees in order to resume its use of the Services.
    • c. Termination After Suspension. If any overdue Fees are not paid within 60 days of the overdue date, Longdo may immediately terminate this Agreement on written notice to Merchant (which may be by email).
  • 4.5 Invoice Disputes. Any invoice disputes must be submitted prior to the invoice due date. If the parties determine that certain billing inaccuracies are attributable to Longdo, Longdo will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, Longdo will apply the credit memo amount to the disputed invoice and Merchant will be responsible for paying the resulting net balance due on that invoice.
  • 4.6 Purchase Orders. If Merchant requires a purchase order number on its invoice, Merchant will inform Longdo and Longdo will include such purchase order number on invoices following receipt. If Merchant does not provide a purchase order number, Merchant waives any purchase order requirement and (a) Longdo will invoice Merchant without a purchase order number; and (b) Merchant agrees to pay invoices without a purchase order number referenced. The parties agree that none of the terms and conditions of any purchase order issued by Merchant will apply to or modify this Agreement and that any terms or conditions in such purchase orders are null and void.
  • 4.7 Taxes. Merchant is responsible for any Taxes, and Merchant will pay Longdo for the Services without any reduction for such amounts. If Longdo is obligated to collect or pay Taxes, the Taxes will be invoiced to Merchant, unless Merchant provides Longdo with a valid tax exemption certificate authorized by the appropriate taxing authority. If Merchant is required by law to withhold any Taxes from its payments to Longdo, Merchant must provide Longdo with an official tax receipt or other appropriate documentation to support such payments.

5. Technical Support Services.

  • 5.1 By Merchant. Merchant will, at its own expense, respond to questions and complaints from End Users or third parties relating to Merchant’s or End Users’ use of the Services. Merchant will use its reasonable endeavours to resolve support issues before escalating them to Longdo in accordance with Clause 5.2.
  • 5.2 By Longdo. If Merchant is unable to resolve a support issue in accordance with Clause 5.1, then Merchant may escalate the issue to Longdo in accordance with the TSS Guidelines. Longdo will respond in accordance with the TSS Guidelines.

6. Suspension.

  • 6.1 Of End User Accounts by Longdo. If Longdo becomes aware of an End User Account being used in non-compliance with this Agreement, then Longdo may specifically request that Merchant Suspend the applicable End User Account. If Merchant fails to comply with Longdo’s request to Suspend an End User Account, then Longdo may do so. The Suspension will remain in effect until the applicable End User has remedied the breach which caused the Suspension.
  • 6.2 Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then Longdo may automatically Suspend the impacted End User Accounts. Suspension will be to the minimum extent and of the minimum duration required, in Longdo’s opinion to prevent or terminate the Emergency Security Issue. If Longdo Suspends any End User Account(s) for any reason without prior notice to Merchant, at Merchant’s request, Longdo will provide Merchant the reason for the Suspension as soon as is reasonably practicable.

7. Confidential Information.

  • 7.1 The recipient of any Confidential Information will not disclose that Confidential Information, except to Group Companies, Subcontractors, employees and/or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities may use such Confidential Information only to exercise rights and fulfil obligations under this Agreement, while using reasonable care to protect it. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser, such notice to be sufficient to give the discloser the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.
  • 7.2 Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.

8. Intellectual Property Rights; Brand Features.

  • 8.1 Intellectual Property Rights. Except as expressly stated otherwise in this Agreement, neither party shall acquire any right, title, or interest in any Intellectual Property Rights belonging to the other party, or the other party’s licensors. As between the parties, Merchant owns all Intellectual Property Rights in Merchant Data, and Longdo owns all Intellectual Property Rights in the Services.
  • 8.2 Display of Brand Features. Longdo may display only those Merchant Brand Features authorized by Merchant (such authorization is deemed to be provided by Merchant uploading it’s Brand Features into the Services), and only within designated areas of the Service Pages. Merchant may specify the nature of this use using the Admin Tools. Longdo may also display Longdo Brand Features on the Service Pages to indicate that the Services are provided by Longdo. Neither party may display or use the other party’s Brand Features except as expressly permitted in this Agreement without the other party’s prior written consent. If Merchant wants to display Longdo Brand Features in connection with the Services, Merchant will comply with the Trademark Guidelines.
  • 8.3 Brand Features Limitation. All goodwill arising from the use by Merchant of Longdo’s Brand Features shall belong to Longdo. A party may revoke the other party’s right to use its Brand Features pursuant to this Agreement with written notice at any time on reasonable written notice.
  • 8.4 Publicity. Merchant agrees that Longdo may include Merchant’s name or Brand Features in a list of Longdo customers, online or in promotional materials. Merchant also agrees that Longdo may verbally reference Merchant as a customer of the Longdo products or services that are the subject of this Agreement. This Clause is subject to Clause 8.3.

9. Warranties.

  • 9.1 Warranties. Each party warrants to the other that it will use reasonable care and skill in complying with its obligations under this Agreement.
  • 9.2 Disclaimers. No conditions, warranties or other terms apply to any Services or to any other goods or services supplied by Longdo under this Agreement unless expressly set out in this Agreement. Subject to Clause 13.1(b), no implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description).

10. Term.

  • 10.1 Term. This Agreement will remain in effect for the Term unless it is terminated earlier in accordance with its terms. If Merchant is on the Annual Plan, and unless the parties agree otherwise in writing, End User Accounts purchased during any Services Term after the Effective Date will have a prorated term ending on the last day of that Services Term.
  • 10.2 Renewal under Annual Plan.
    • a. Subject to Clause 10.2 b, if Merchant is on the Annual Plan, the Services and all End User Accounts previously purchased by Merchant shall automatically be switched to the Flexible Plan at the end of the Services Term.
    • b. Subject to Clause 10.2 c, if Merchant is on the Annual Plan and wants to renew the Services and all End User Accounts previously purchased by Merchant and remain on the Annual Plan, then Merchant must change the renewal settings in the Admin Tools to select the Annual Plan before the end of the current Services Term for the Annual Plan has ended and the Services and all previously purchased End User Accounts will renew under the Annual Plan for a Renewal Term.
    • c. Merchant may alter the number of End User Accounts to be renewed by communicating the appropriate number of accounts to be renewed to Longdo via the Admin Tools. Merchant will continue to pay Longdo the then-current Fees for each renewed End User Account unless Merchant and Longdo mutually agree otherwise. If Longdo does not want the Services to renew under the Annual Plan, Longdo will provide Merchant written notice (which may be by email) at least fifteen days prior to the end of the then current Services Term. This notice of non renewal will be effective upon the conclusion of the then current Services Term and the Agreement shall automatically terminate.
  • 10.3 Requesting End User Accounts. Merchant may request End User Accounts by: (i) notifying its designated Longdo Account Manager; or (ii) ordering End User Accounts via the Admin Tools.
  • 10.4 Revising Rates under the Annual Plan. Longdo may revise its rates for the following Services Term by providing Merchant written notice (which may be by email) at least thirty days prior to the start of the following Services Term.
  • 10.5 Revising Rates under the Flexible Plan. Longdo may revise its rates for the Flexible Plan on at least 30 days written notice to Merchant (which may be by email).

11. Termination

  • 11.1 Termination in General.
    • a. Termination for Breach. Either party may suspend performance and/or terminate this Agreement, (including all Order Pages entered into under it) with immediate effect, if the other party: (a) is in material breach of this Agreement where the breach is incapable of remedy; (b) the other party is in material breach of this Agreement two times or more notwithstanding any remedy of such breach; or (c) is in material breach of this Agreement where the breach is capable of remedy and fails to remedy that breach within thirty days after receiving written notice of such breach.
    • b. Termination for Insolvency. Either party may suspend performance and/or terminate this Agreement (including all Order Pages entered into under it) with immediate effect, if: (a) the other party enters into an arrangement or composition with or for the benefit of its creditors, goes into administration, receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business; or (b) any analogous event happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.
  • 11.2 Termination under the Annual Plan. If Merchant is on the Annual Plan it may terminate this Agreement for convenience via the Admin Tools. If prior to the conclusion of the Annual Plan, Merchant terminates this Agreement under this Clause 11.2, or Longdo terminates the Agreement under Clause 4.4 (c) or under Clause 11.1, Merchant shall pay Longdo for the remaining unpaid amount of Merchant’s annual commitment under the Annual Plan using the payment method selected in the Order Page.
  • 11.3 Termination under the Flexible Plan. If Merchant is on the Flexible Plan, Merchant may terminate this Agreement at any time via the Admin Console, and Longdo may terminate this Agreement at any time on written notice to Merchant (which may be by email). If either party terminates this Agreement under this Clause 11.3, or Longdo terminates the Agreement under Clause 4.4(c), Merchant shall pay Longdo any outstanding Fees under the Flexible Plan using the payment method selected in the Order Page.
  • 11.4 4. Change of Control. Either party may terminate this Agreement immediately upon written notice if there is a Change of Control of the other party, other than in the context of an internal restructuring or reorganisation of its Group Companies. In this clause the term "Control" shall mean the possession by any person(s) directly or indirectly of the power to direct or cause the direction of another person and "Change of Control" is to be construed accordingly. The party experiencing such Change of Control will notify the other party in writing of this within 30 days after the Change of Control. If the terminating party has not exercised its right of termination under this clause within 30 days following receipt of notice of the other party’s Change of Control, that right of termination will expire.
  • 11.5 Effects of Termination. If this Agreement (including all Order Pages) terminates, then: (i) the rights granted by one party to the other will cease immediately; (ii) Longdo will provide Merchant access to, and the ability to export, the Merchant Data for a commercially reasonable period of time at Longdo’s then-current rates for the applicable Services; (iii) after a commercially reasonable period of time, Longdo will delete Merchant Data by removing pointers to it on Longdo’s active and replication servers and overwriting it over time; and (iv) upon request each party will promptly use reasonable endeavours to return or destroy all other Confidential Information of the other party.

12. Indemnification.

  • 12.1 If Merchant receives a claim from a third party that either Longdo’s or any Longdo Group Company’s technology used to provide the Services or any Longdo Brand Feature infringe(s) any copyright, trade secret or trade mark of such third party (an “IP Claim”), Merchant will: (a) promptly notify Longdo; (b) provide Longdo with reasonable information, assistance and cooperation in responding to and, where applicable, defending such IP Claim; and (c) give Longdo full control and sole authority over the defence and settlement of such IP Claim. Merchant may appoint its own supervising counsel of its choice at its own expense.
  • 12.2 Provided Merchant complies with Clause 12.1 and subject to Clause 12.3, Longdo will accept full control and sole authority over the defence and settlement of such IP Claim and will indemnify Merchant against all damages and costs awarded for such IP Claim, settlement costs approved in writing by Longdo in relation to such IP Claim, reasonable legal fees necessarily incurred by Merchant in relation to such IP Claim and reasonable costs necessarily incurred by Merchant in complying with Clause 12.1(b).
  • 12.3 Longdo will not have any obligations or liability under this Clause 12 in relation to any IP Claim arising from: (a) use of the Services or Longdo Brand Features in breach of this Agreement, in a modified form or in combination with Third Party Products; and/or (b) any content, information or data provided to Longdo by Merchant, End Users or any other third parties.
  • 12.4 Longdo may (at its sole discretion) suspend Merchant’s use of any Services which are alleged, or believed by Longdo, to infringe any third party’s Intellectual Property Rights, or modify such Services to make them non-infringing. If the foregoing option is not commercially reasonable, Longdo may suspend or terminate Merchant’s use of the impacted Services. If any suspension under this clause continues for more than 30 days, Merchant may, at any time until use of the applicable Services is reinstated, terminate this Agreement immediately upon written notice. If the Services are terminated in accordance with this Clause 12.4, then Longdo will provide a pro-rated refund of the fees actually paid by Merchant applicable for the period following termination of the Services.
  • 12.5 If Longdo receives a claim from a third party that the Merchant Data, and/or Merchant Brand Features infringe any Intellectual Property Rights of such third party (a “Merchant IP Claim”), Longdo will: (a) promptly notify Merchant; (b) provide Merchant with reasonable information, assistance and cooperation in responding to and, where applicable, defending such Merchant IP Claim; and (c) give Merchant full control and sole authority over the defence and settlement of such Merchant IP Claim. Longdo may appoint its own supervising counsel of its choice at its own expense.
  • 12.6 Provided Longdo complies with Clause 12.5, Merchant will accept full control and sole authority over the defence and settlement of such Merchant IP Claim and will indemnify Longdo against all damages and costs awarded for such IP Claim, settlement costs approved in writing by Merchant in relation to such IP Claim, reasonable legal fees necessarily incurred by Longdo in relation to such IP Claim and reasonable costs necessarily incurred by Longdo in complying with Clause 12.5(b).
  • 12.7 This Clause 12 states the parties’ entire liability and exclusive remedy with respect to infringement of a third party’s Intellectual Property Rights.

13. Limitation of Liability.

  • 13.1 Nothing in this Agreement shall exclude or limit either party’s liability for: (a) death or personal injury resulting from the negligence of either party or their servants, agents or employees; (b fraud or fraudulent misrepresentation; (c) breach of any implied condition as to title or quiet enjoyment; or (d) misuse of confidential information.
  • 13.2 Save to the extent that this Agreement expressly states otherwise, nothing in this Agreement shall exclude or limit either party’s liability under Clause 12 (Indemnities).
  • 13.3 Subject to Clauses 13.1 and 13.2, neither party shall be liable under this Agreement (whether in contract, tort or otherwise) for any of the following losses suffered or incurred by the other party (whether or not such losses were within the contemplation of the parties at the date of this Agreement):
    • a. loss of actual or anticipated profits (including loss of profits on contracts);
    • b. loss of anticipated savings;
    • c. loss of business opportunity;
    • d. loss of reputation or damage to goodwill; and
    • e. special, indirect or consequential losses.
  • 13.4 Subject to Clauses 13.1, 13.2 and 13.3, each party's liability under this Agreement (whether in contract, tort (including negligence) or otherwise) for any of the above losses whether in relation to liability arising from any given event or series of connected events, shall be limited to 100% of the total amount paid and payable by Merchant under this Agreement in the 12 months immediately preceding the month in which the event (or first in a series of connected events) occurred.

14. Miscellaneous.

  • 14.1 Notices. Unless otherwise specified in this Agreement, All notices of termination or breach must be in English or Thai, in writing, addressed to the other party’s Legal Department and sent to Merchant’s registered office address (or the address set out on the Order Page) or to cardadmin@mm.co.th (as applicable) or such other address as either party has notified the other in accordance with this Clause 14.1. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable). All other notices must be in English, in writing, addressed to the other party’s primary contact and sent to their then current postal address or email address.
  • 14.2 Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other, except for an assignment to any Group Company where: (i) the assignee has agreed in writing to be bound by the terms of this Agreement; (ii) the assignor has notified the other party of such assignment; and (iii) where Merchant is the assignor, the assignee has passed any relevant credit checks required by Longdo.
  • 14.3 Sub-contracting. Either party may sub-contract its obligations under this Agreement, in whole or in part, without the prior written consent of the other, provided that the sub-contracting party remains fully liable for all such sub-contracted obligations and accepts full liability as between the parties for the actions and/or inactions of its sub-contractors as if such actions and/or inactions were its own.
  • 14.4 Force Majeure. Neither party will be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control.
  • 14.5 Suspension to Comply with Applicable Law. Longdo may (at its sole discretion) suspend the provision of any Services or modify any Services at any time to comply with any applicable law. If any suspension under this clause continues for more than 30 days, Merchant may, at any time until use of the applicable Services is reinstated, terminate this Agreement immediately upon written notice.
  • 14.6 No Waiver. Failure or delay in exercising any right or remedy under this Agreement shall not constitute a waiver of such (or any other) right or remedy.
  • 14.7 Severability. The invalidity, illegality or unenforceability of any term (or part of a term) of this Agreement shall not affect the continuation in force of the remainder of the term (if any) and this Agreement.
  • 14.8 No Agency. Except as expressly stated otherwise, nothing in this Agreement shall create an agency, partnership or joint venture of any kind between the parties.
  • 14.9 No Third-Party Beneficiaries. Except as expressly stated otherwise, nothing in this Agreement shall create or confer any rights or other benefits in favour of any person other than the parties to this Agreement.
  • 14.10 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
  • 14.11 Governing Law. This Agreement and any dispute (contractual or non-contractual) concerning this Agreement or its subject matter or formation (a “Dispute”) is/are governed by Thai law.
  • 14.12 Amendments. Any amendments or modifications to this Agreement may only be effected by: (a) written agreement of both parties; (b) Merchant’s online acceptance of updated terms, amendments or addenda; or (c) Merchant’s continued participation after the terms of this Agreement have been updated by Longdo and notified to Merchant.
  • 14.13 Entire Agreement. Subject to Clause 13.1(b), this Agreement sets out all terms agreed between the parties in relation to its subject matter and supersedes all previous agreements between the parties relating to the same. In entering into this Agreement neither party has relied on any statement, representation or warranty not expressly set out in this Agreement.
  • 14.14 Interpretation of Conflicting Terms. If there is a conflict between this Longdo Cards Merchant Agreement and the terms located at any URL, this Longdo Cards Merchant Agreement will take precedence.
  • 14.15 Export Laws. Merchant will not use the Services to store or transfer any Merchant Data that would be controlled for export under the Export Control Laws. Breach of this clause will be considered a material breach of this Agreement and Longdo may terminate this Agreement (including all Order Pages entered under it) with immediate effect.
  • 14.16 Translations. If this Agreement is translated into any other language and there is any conflict or inconsistency between this Agreement and the translation, this Agreement shall, in respect of the conflict or inconsistency, take precedence.

15. Definitions.

  • 15.1 In this Agreement unless expressly stated otherwise:
    • "Annual Plan" means a Services plan where Merchant commits to purchasing the number of End User Accounts set out in the Order Page for 12 months of Services.
    • "Acceptable Use Policy" means the acceptable use policy as may be updated from time to time for the Services located here: https://www.longdo.com/aup or other such URL as may be provided by Longdo.
    • "Admin Manager" means the Longdo business person working with Merchant regarding Merchant’s purchase of the Services.
    • "Admin Account" means the administrative account provided to Merchant by Longdo for the purpose of administering the End User Accounts. The use of the Admin Account requires a password, which Longdo will provide to Merchant.
    • "Admin Tool" means online tools or APIs, or both, provided by Longdo to Merchant to be used by Merchant in reporting, certain administration functions in connection with Merchant’s administration of the Services for End Users, which may include, among other things, account maintenance and enforcement of Merchant usage policies.
    • "Administrators" mean the Merchant-designated technical personnel who administer the Services for End Users on Merchant’s behalf.
    • "Ads" means online advertisements displayed by Longdo to End Users.
    • "Agreement" means this Longdo Cards Merchant Agreement [or means each Order Page, this Longdo Cards Merchant Agreement and any document referred to in the Order Page and Longdo Cards Merchant Agreement (including the URL Terms).]
    • "APIs" means the Longdo APIs from time to time listed here: https://api.longdo.com/ or other such URL as may be provided by Longdo.
    • "API Terms of Use" means the terms of use as may be updated from time to time located here: https://api.longdo.com/aup or other such URL as may be provided by Longdo.
    • "Audit Report" has the meaning given in Clause 2.8.
    • "Brand Features" means each party’s trade names, trademarks, logos, domain names and other distinctive brand features.
    • "Confidential Information" means information disclosed by one party to the other party under this Agreement that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was lawfully given to the recipient by a third party.
    • "Merchant Data" means data, including email, provided, generated, transmitted or displayed via the Services by Merchant or End Users.
    • "Merchant Personal Data" means the personal data processed by or on behalf of Longdo pursuant to this Agreement.
    • "Data Protection Legislation" means the national provisions adopted pursuant to the EU Directive, in the country in which the Merchant is established.
    • "Emergency Security Issue"means either: (a) an End User’s use of the Services in violation of the Acceptable Use Policy, which could disrupt: (i) the Services; (ii) other End Users’ use of the Services; or (iii) the Longdo network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
    • "End Users" means the individuals Merchant permits to use the Services. “End User Account” means Longdo-hosted accounts provided to End Users through the Services for the purpose of enabling such End Users to use the Service.
    • "EU Directive" means Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data.
    • "Export Control Laws" means all applicable export and re-export control laws and regulations
    • "Fees" means the amounts charged to Merchant by Longdo for the Services.
    • "Flexible Plan" means a Services plan whereby the Merchant shall pay for the Services on a month by month basis with no minimum term commitment.
    • "Longdo Cards Core Services" means the services (e.g. Longdo Cards for Business and Longdo Cards Vault) specified in the Order Page which are more fully described here: https://cards.longdo.com/features, or other such URL as Longdo may provide.
    • "Longdo Privacy Policies" means the privacy notice located at https://www.longdo.com/privacy. Policy or URLs may be updated from time to time by Longdo.
    • "Group Company" means in relation to each of the parties: (a) any parent company of that party; and (b) any corporate body of which that party directly or indirectly has control or which is directly or indirectly controlled by the same person or group of persons as that party.
    • "Help Centre" means the Longdo help centre accessible at https://www.longdo.com/support/ or other such URL as may be provided by Longdo.
    • "High Risk Activities" means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
    • "Intellectual Property Rights" means all copyright, moral rights, patent rights, trade marks, design right, rights in or relating to databases, rights in or relating to confidential information, rights in relation to domain names, and any other intellectual property rights (registered or unregistered) throughout the world.
    • "Initial Services Term" means a period of 12 months beginning on the Service Commencement Date.
    • "Material Subcontractor" means third party suppliers engaged by Longdo (other than a Longdo Group Company) to provide Technical Support Services to Merchant.
    • "Non- Longdo Cards Products" means Longdo products which are not part of the Services, but which may be accessed by End Users using their End User Account login and password.
    • "Notification Email Address" means the email address designated by Merchant to receive email notifications from Longdo. Merchant may change this email address through the Admin Tools.
    • "Order Page" means the online order page Merchant completes in signing up for the Services, and which contains: (i) the Services being ordered; (ii) Fees; (iii) the applicable form of payment; and (iv) the choice of the Annual Plan or Flexible Plan.
    • "Renewal Term" means a renewal term of 12 months.
    • "Security Incident" means accidental or unlawful distribution or accidental loss, alteration, or unauthorised disclosure or access to Merchant Data.
    • "Security Measures" has the meaning given to it in Clause 2.5.
    • "Services"[1] means the Longdo Cards services privided by Longdo which are more fully described here, "https://cards.longdo.com/features", or other such URL as Longdo may provide.
    • "Service Commencement Date" is the date upon which Longdo makes the Services available to Merchant, and will be within one week of Longdo's receipt of a completed Order Page, unless otherwise agreed by the parties.
    • "Service Pages" mean the web pages displaying the Services to End Users.
    • "Services Term" means the Initial Services Term or the relevant Renewal Term; as applicable.
    • "SLA" means the Service Level Agreement located here https://cards.longdo.com/sla, or such other URL as Longdo may provide.
    • "Subcontractor" means Longdo Group Companies, Material Subcontractors and third parties.
    • "Suspend" or "Suspension" means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
    • "Taxes" means any taxes, including sales, use, personal property, value-added, excise, customs fees, import duties or stamp duties or other taxes and duties imposed by governmental agencies of whatever kind and imposed with respect to all transactions under the Agreement, including penalties and interest, but specifically excluding taxes based upon Longdo's net income.
    • "Term" means:
      (1) for the Annual Plan, the Initial Services Term and all Renewal Terms; and
      (2) for the Flexible Plan, the Agreement will remain in effect for as long as Merchant is receiving the Services.
    • "Third Party Products" means any products, software or services not licensed or provided to Merchant by Longdo pursuant to this Agreement.
    • "Third Party Request" means a request from a third party for records relating to an End User’s use of the Services. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure.
    • "Trademark Guidelines" means Longdo's Guidelines for Third Party Use of Longdo Brand Features as maybe updated from time to time located here: https://www.longdo.com/guidelines, or other such URL as may be provided by Longdo.
    • "TSS Guidelines" means Longdo's technical support services guidelines then in effect for the applicable Services. TSS Guidelines are located at the following URLs: https://www.longdo.com/tssg or other such URLs as may be provided by Longdo.
    • "URL Terms" means the Acceptable Use Policy, the SLA and the TSS Guidelines.
  • 15.2 In this Agreement, the words "include" and "including" will not limit the generality of any words preceding them.