Legal & Privacy

Terms and Conditions

 

 

1. Definition

The following definitions are used in these General Terms and Conditions:

1.1 Affiliated Deduction: the act of YabandPay’s deduction of a certain amount from the YabandPay Wallet balance of an Affiliated User;

1.2 Affiliated User: a user of the Services that (i) belongs to the same group (as defined in article 2:24b of the Dutch Civil Code) as the Client; or (ii) shares one or more ultimate beneficiary owners with the Client;

1.3 Agreement: any agreement entered into by YabandPay with a Client via whatever means and in whatever form;

1.4. Available Balance: the amount of the YabandPay Wallet balance minus the amount of the Deposit;

1.5. Balance Deduction: the act of YabandPay’s deduction of a certain amount from (i) the YabandPay Wallet balance of the Client or (ii) the YabandPay Wallet balance of the Client’s Affiliated User(s);

1.6. Buyer: a Person that transfers funds to the Client due to (i) purchase of the Client’s products and/or services, or (ii) other reasons;

1.7. Chargeback: (request for) cancellation of transfer of funds by the Buyer or a Payment Method Provider and restitution of the transferred funds to the Buyer or the Payment Method Provider, which may be executed without the Client’s approval or consent;

1.8. Clause: a clause of these General Terms and Conditions;

1.9. Client: a Person that registers an account with YabandPay via YabandPay’s website or otherwise has a contractual relationship with YabandPay for the purpose of using any Service;

1.10. Client Bank Account: a bank account of or designated/controlled by the Client for the purpose of receiving or transferring funds;

1.11. Confidential Information: any data, documents and/or information regarding the (business and/or other aspects of) YabandPay obtained by the Client in the course the any Agreement, the confidential nature of which (i) has been explicitly or implicitly indicated to the Client or (ii) should be reasonably known to the Client, including but not limited to: special/favorable rates of Fees communicated by YabandPay to the Client via whatever means, source codes and any other information regarding the technology used by YabandPay for the provision of Services, financial figures, business information etc;

1.12. Deposit: a certain part of a Client’s YabandPay Wallet balance that has been blocked (meaning that the Client does not have disposal of the balance of this blocked part), for the purpose of covering possible liabilities and/or outstanding financial obligations of the Client towards YabandPay;

1.13. Fee: fees owed by the Client to YabandPay in exchange for the Services, including but not limited to transaction commissions, monthly subscription fees and one-off connection fees etc.;

1.14. Foundation: Stichting Derdengelden YabandPay (YabandPay Third Party Funds Foundation), a foundation incorporated under the laws of the Netherlands and registered with the Dutch trade register under number 87807688, affiliated to YabandPay as a third-party entity safeguarding the funds received on behalf of the Client and as such also supervised by the De Nederlandsche Bank (DNB);

1.15. Foundation Bank Account: the bank account of the Foundation;

1.16. General Terms and Conditions: these general terms and conditions of Yabandpay B.V.;

1.17. KYC: abbreviation for “Know Your Customer”, referring to the legal obligation of and the activities taken by a financial institution to investigate and verify client’s identity and business activities etc., including identifying the ultimate beneficial owner(s) of the client and monitoring the sources of funds etc.;

1.18. Objection Period: has the meaning ascribed thereto in Clause 5.10;

1.19. Parameter: a parameter set by YabandPay for the purpose of identifying possible fraud and/or abnormal or suspicious use of the Services (for example, the maximum amount per Transaction, the maximum total number or volume of Transactions within a certain period of time), the details of which shall be kept confidential and will not be disclosed to the Client;

1.20. Party: a party to an Agreement;

1.21. Pay Out: has the meaning ascribed thereto in Clause 5.2;

1.22. Payment Method: a method of enabling transfer of funds from the Buyer to the Client, such as iDEAL, Bancontact, Klarna, UnionPay, WeChat Pay, Alipay, Visa, Mastercard etc.;

1.23. Payment Method Provider: a Person that provides one or more Payment Method services, which may be a financial institution, or every possible intermediary between YabandPay and financial institutions, including the owners of payment products and brands (such as Currence, Visa, MasterCard, and American Express), their acquirers, as well as the networks they use for the transmission and processing of transactions, judicial or government authorities;

1.24. Person: a natural person, legal entity (rechtspersoon), government institution and/or any other organization with or without legal personality;

1.25. Premium Package: a package of Services for which the Client shall pay a monthly fee;

1.26. Refund: reverse of an earlier executed Transaction that leads to restitution of funds by the Client to the Buyer, not including Chargebacks;

1.27. Settlement: has the meaning ascribed thereto in Clause 5.2;

1.28. Service: any service provided by YabandPay;

1.29. Store: a store at which the Client wishes to make Payment Methods available through YabandPay to its Buyers, including but not limited to websites (at online shops), applications, physical shops etc.;

1.30. Transaction: a payment instruction initiated by the Buyer or the Client;

1.31. YabandPay: Yabandpay B.V., a company incorporated under the laws of the Netherlands and registered with the Dutch trade register under number 85678988, being a Payment Institution licensed (Firm Reference R188633) and regulated by the De Nederlandsche Bank (DNB);

1.32. YabandPay Account: the account registered by the Client with YabandPay;

1.33. YabandPay Wallet: a virtual/digital wallet with a balance allocated by YabandPay to the Client in accordance with the relevant provisions of the these General Terms and Conditions and the applicable terms of any Agreement, which balance is the Client’s Available Balance plus the Deposit; and

1.34. YabandPay Portal: the closed environment of YabandPay’s Website where the Client can – after logging in – manage his/her/its YabandPay Account, YabandPay Wallet, select package of Services and manage other relevant aspects related to the Services.

 

2. Applicability

2.1 These General Terms and Conditions shall apply to (i) all of YabandPay’s offers and acceptance; (ii) all Services; and (iii) all Agreements.

2.2 In the event of any conflict between the provisions of these General Terms and Conditions on the one hand and (i) an Agreement, (ii) an offer or acceptance made by YabandPay, or (iii) conditions (such as rates etc.) applicable to certain packages or Services as indicated in the YabandPay Portal or via other means communicated by YabandPay to the Client on the other hand, the latter (i.e.: what is listed under (i), (ii) and (iii) of this Clause) shall prevail.

2.3 YabandPay may amend these General Terms and Conditions unilaterally from time to time. Any amendment shall become effective seven calendar days after YabandPay notifies the Client of such amendment in writing. 

 

3. Formation and duration of Agreement

3.1 An agreement is concluded between YabandPay and the Client as soon as the Client successfully registers an account via the website of YabandPay, unless YabandPay expressly agrees to conclude an Agreement via other means. After the aforementioned registration of the Client’s account and without prejudice to any other ways via which the contents of any Agreement can be changed, the contents of the Agreement may be changed during the existence of the Agreement from time to time as the Client selects or changes the desired package or Services via the YabandPay Portal. The applicable conditions (such as the applicable rates) as indicated in the YabandPay Portal or otherwise communicated by YabandPay to the Client shall apply to such changes as soon as the Client selects a certain package or Service or otherwise indicates the intention to effectuate such changes.

3.2 Except the situation as described in Clause 3.3, an Agreement is entered into for an indefinite period of time and each Party may terminate the Agreement in writing without cause provided that a notice period of thirty calendar days shall be observed.

3.3 If a Client subscribes to a Premium Package, the Agreement will be immediately converted into an Agreement for a fixed term of one year. For example, if a Client subscribes to a Premium Package on 15 October 2023, the last day of the one-year term of the Agreement will be 14 October 2024. Upon expiration of each one-year term of the Agreement, the Agreement will be automatically extended for another period of one year, unless (i) either Party terminates the Agreement in writing; and (ii) the termination notice reaches the other Party at least ninety calendar days before the end of the current term of the Agreement.

3.4 When terminating his/her/its subscription to a Premium Package in accordance with Clause 3.3, a Client may choose to continue using the Services after the end of the Premium Package subscription. In that case the Agreement will be automatically converted into an Agreement for an indefinite period of time, to which the termination rules of Clause 3.2 shall apply.

3.5 In one or more of the following situations, YabandPay may – at its sole discretion and without prejudice to any other statutory and/or contractual rights – take one or more of the following actions with immediate effect: (i) suspend any part of or the entire Services (including but not limited to suspending Transactions not yet executed, postponing Settlements etc.) for any duration that YabandPay deems appropriate, (ii) block the Client’s access to the YabandPay Portal for any duration that YabandPay deems appropriate, (iii) reverse Transactions that have already been executed; (iv) close the Client’s YabandPay Account, (v) freeze the balance/funds of or intended for the Client held in the Foundation Bank Account for any duration that YabandPay deems appropriate; and/or (v) terminate any Agreement, all without prior notice of default and/or being liable for any damage or any other negative consequences caused by any action taken by YabandPay in accordance with this Clause:

a. bankruptcy or suspension of payment of the Client has been requested or granted, or if YabandPay has reasonable grounds to believe that bankruptcy or suspension of payment of the Client is impending;

b. there is – according to YabandPay’s sole assessment – reasonable indication that the Client might not entirely fulfil its obligations under any Agreement;

c. according to YabandPay’s sole assessment based on reasonable indications, the Client has – by way of (among other things) his/her/its (ab)use of the Services – damaged or threatens to damage YabandPay’s reputation, image or business interests;

d. according to YabandPay’s sole assessment based on (among other things) certain Parameters, there is reasonable indication of abnormal or suspicious use made by or via the Client of the Services;

e. the Client substantially changes his/her/its activities without informing YabandPay in writing beforehand or without YabandPay’s approval of such changes;

f. there is – according to YabandPay’s sole assessment – reasonable indication that (i) the Client uses the Services not for him/her/itself but for another Person and/or (ii) there is any other inappropriate, suspicious or unlawful use of the Services made by or via the Client;

g. YabandPay has to do so in order to comply with one or more applicable laws and/or regulations;

h. one or more Payment Method Providers request YabandPay to do so; and/or

i. the Client fails to fulfill any of the obligations (in whole or in part) as mentioned in Clauses 4.1, 4,2, 4.5, 4.7, 4.9, 4.10, 4.11, 4.12, 6.1 and 7.2.

3.6 If any Agreement is terminated by YabandPay in accordance with Clause 3.5, all Fees and any other payment obligations of the Client towards YabandPay will become due and payable (opeisbaar) immediately upon termination. As from the moment of termination, the Client shall no longer have access to the YabandPay Portal. If Refunds and/or other matters need to be arranged after the aforementioned termination, YabandPay may charge fees for such matters at rates to be set by YabandPay.

 

4. Client’s responsibilities

4.1 The Client acknowledges that YabandPay is a financial institution subject to government supervision and as such must comply with various laws and regulations (in particular anti-money laundry and anti-fraud laws and regulations). Some of the key legal obligations of YabandPay in this regard include (i) performing a KYC that meets all legal requirements; and (ii) constantly monitoring the Client’s use of the Services to identify possible fraud and/or any other unlawful activities. Given the foregoing, the Client shall fully cooperate with YabandPay and provide full, unconditional and prompt assistance at YabandPay’s first request in order to ensure full compliance with the applicable laws and regulations (in particular, anti-money laundry and anti-fraud laws and regulations). The Client hereby guarantees all of the following:

a. At the first request of YabandPay, the Client will (i) provide/update any and all documents and information and (ii) provide any other assistance in connection with the KYC, including but not limited to documents and information for the purpose of identifying the ultimate beneficial owner(s) (as defined by the relevant laws and regulations) of the Client.

b. The Client will inform YabandPay of the following changes in writing and provide all the relevant documents immediately and in any event no later than three calendar days after the relevant change(s) has/have taken place: (i) change(s) to any document and/or information that has been provided to YabandPay in connection with the KYC or other matters; (ii) change(s) that affect(s) the Client’s business scope and/or risk profile; and (iii) change(s) that affect(s) the Client’s financial stability and/or solvability (including but not limited to an expected request for bankruptcy and/or suspension of payment).

c. At the first request of YabandPay, the Client will provide/update any and all documents and information regarding the Client’s business activities, sources of funds being processed under the Services, contracts based on which Transactions are executed or other similar evidence for – among other things – the verification of the lawfulness of the Transactions etc.

d. At the first request of YabandPay, the Client will provide full, unconditional and prompt assistance to enable YabandPay to verify the Client’s compliance with (i) all applicable laws and regulations and (ii) the provisions of these General Terms and Conditions and any Agreement.

e. At the first request of YabandPay, the Client will provide any other assistance not specifically mentioned in this Clause or any Agreement that YabandPay deems necessary for it to comply with all the applicable laws and regulations and/or to provide the Services.

f. All the documents and information provided by the Client to YabandPay is true, accurate and not misleading.

g. The Client will at all times follow all the rules set and/or instructions given by the relevant government authorities and/or YabandPay, which means – among other things – that the Client will not (i) use the Services for any illegal activity/purpose, (ii) use the Services to receive, pay or otherwise transfer funds on behalf or for the benefit of any Person other than the Client him/her/itself; and/or (iii) otherwise abuse the Services.

4.2 The Client acknowledges that YabandPay acts as an intermediary in payment processes and as such is dependent on – amongst others – the services rendered by the relevant Payment Method Providers. This meant that – among other things – in order for YabandPay to provide Services to the Client, the Client must meet all the requirements and follow all the rules set by the relevant Payment Method Providers, including but not limited to obtaining the Payment Method Providers’ approval for the Client to receive funds transmitted via the relevant Payment Method (the Client acknowledges explicitly to be aware that such approval may be withdrawn by the Payment Method Providers at any time, in which case YabandPay will – without being liable for any damage or other negative consequence – no longer be able to render Services that are dependent on the relevant Payment Methods). Given the foregoing, the Client hereby guarantees all of the following:

a. At YabandPay’s first request, the Client will (i) provide/update any and all documents and information and (ii) provide any other assistance in order to make sure that the Client meets all the requirements set by the relevant Payment Method Providers (e.g.: in order to register the relevant information of the Client with the relevant Payment Method Providers and to obtain the Payment Method Providers’ acceptance of the Client).

b. The Client will at all times comply with all the rules set by the relevant Payment Method Providers that are applicable to the Client, which means – among other things – that the Client will not use the Services to conduct any activity that is not allowed under the rules of the relevant Payment Method Provider(s).

c. At YabandPay’s first request, the Client will provide any and all assistance to enable YabandPay and/or the Payment Method Provider(s) to verify the Client’s compliance with the rules set by the Payment Method Provider(s).

d. The Client will not conduct any activity or use the Services in any manner that may damage the reputation, brand and/or other business interests of YabandPay and/or any Payment Method Provider.

4.3 The Client acknowledges to be aware that (i) funds intended to be ultimately received by the Client will be first received and temporarily kept in the Foundation Bank Account, which is held at a financial institution with a license under the applicable laws and regulations; and (ii) the Client can take out insurance against any payment risk of the Foundation.

4.4 The Client authorizes YabandPay and the Foundation to (i) receive – on behalf of the Client – funds transmitted via the relevant Payment Methods that are intended to be ultimately received by the Client; (ii) to provide all necessary documents and/or information regarding the Client, his/her/its business and other details/aspects to the Payment Method Providers in connection with what is mentioned under (i) of this Clause; and (iii) to perform any and all actions on behalf of the Client that YabandPay and/or the Foundation deems necessary in order to successfully achieve what is mentioned under (i) of this Clause.

4.5 When accepting credit card Transactions on his/her/its own domain, the Client must be PCIDSS compliant and provide proof of this to YabandPay. Furthermore, the Client guarantees that it will meet any other technical and/or legal requirements that are necessary for YabandPay to provide Services to the Client.

4.6 The Client acknowledges that (i) it is possible that he/she/it will – after obtaining YabandPay’s approval to render Services to the Client – open new Stores and/or engage in new business activities; (ii) YabandPay’s prior approval for renderings Services to the Client does not mean automatic approval for the Client’s new Stores and/or business activities; (iii) the Client is responsible for reporting new Stores and/or business activities to YabandPay; and (iv) YabandPay is at all times entitled to reject a new Store and/or new business activity.

4.7 The following rules apply in case of Chargeback:

a. At YabandPay’s first request, the Client must provide (i) all relevant documents and information related to the Chargeback and/or the underlying business transaction related to the Chargeback, and (ii) full and unconditional cooperation and assistance as may be requested by YabandPay and/or the Payment Method Providers(s) in order to – among other things – investigate the Buyer’s entitlement to the Chargeback and/or the details of the underlying business transaction with which the Chargeback is concerned.

b. YabandPay is entitled to – without the Client’s approval or consent – comply with a Chargeback request and to execute a Chargeback without being liable to the Client for any damage or other negative consequences, if the Client does not fully comply with any of the obligations as mentioned in paragraph a of this Clause within seven calendar days after being requested to do so.

c. The Client bears all risks and all costs in connection with any Chargeback. If any amount received on the Foundation Bank Account is transferred back to the Buyer or the Payment Method Provider(s) by way of Chargeback while such amount has already been made available by YabandPay to the Client or has been transferred from the Foundation Bank Account to a Client Bank Account, YabandPay has an immediately due and payable (opeisbaar) claim against the Client equal to the Chargeback amount plus the related costs, irrespective whether the Agreement has ended. In such case the Client must immediately restitute the Chargeback amount and pay the related costs to YabandPay and YabandPay is entitled to exercise all statutory and contractual rights to regain the Chargeback amount and to obtain the related costs.

4.8 The Client bears all risks and all costs in connection with any Refund. In case any funds need to be transferred back to the Buyer or the Payment Method Provider(s), the Fees that have already been charged in connection with the processing of the original payment by the Buyer to the Client will not be restituted to the Client, unless YabandPay explicitly agrees otherwise.

4.9 Without prejudice to any other statutory and/or contractual rights of YabandPay, the Client shall fully compensate all damage, loss, costs and other negative consequences suffered/incurred by YabandPay due to the Client’s violation of and/or non-compliance with – among other things – (i) any applicable law and/or regulation, (ii) any rule set by any Payment Method Provider, (iii) any provision of these General Terms and Conditions and/or (iv) any provision of any Agreement.

4.10 If YabandPay is confronted with a claim and/or penalty initiated/imposed by any government authority, Payment Method Provider, Buyer or any other Person or is otherwise involved in a dispute with one or more of the aforementioned parties due to a reason (allegedly) attributable to the Client, the Client must – at YabandPay’s first request and at his/her/its own costs – provide any and all assistance to help YabandPay adequately and efficiently handle and/or defend itself against such claim and/or penalty.

4.11 The Client shall fulfill all payment obligations towards YabandPay (including but not limited to the payment of invoiced Fees) within the payment term (betalingstermijn) set by YabandPay. All payment terms set by YabandPay (including but not limited to the payment terms as indicated in YabandPay’s invoices) are final, meaning that the Client will be automatically in default (in verzuim) as soon as such payment terms have expired and without the need for YabandPay to send any notice of default (ingebrekestelling).

4.12 From the moment the Client is in default, YabandPay will be entitled to charge eighty euros delayed payment collection administration fee as well as statutory commercial interest (wettelijke handelsrente) over the outstanding amounts. The Client shall also reimburse YabandPay all costs (whether judicial, extra judicial or arbitration related costs) in relation to the collection of any outstanding amounts owed by the Client to YabandPay, with a minimum of 15% of the outstanding amounts. Judicial and arbitration related costs shall be reimbursed by the Client in full instead of being limited to the litigation or arbitration costs awarded by the court or the arbitration institute, if the Client loses the lawsuit or the arbitration proceedings in whole or in part.

4.13 The Client may notify YabandPay in writing of any objection to an invoice of YabandPay within the payment term indicated in the relevant invoice and must provide reasonable details in writing to support the objection(s). Upon expiration of the payment term as mentioned in the first sentence of this Clause, the right to raise objections to an invoice of YabandPay shall be extinguished (vervallen), in which case the accuracy and validity of the invoice can no longer be challenged in or out of court.

4.14 The Client is not allowed to exercise any right of set off (verrekening) and/or suspension (opschorting) vis-à-vis YabandPay. To the furthest extent allowed by law, the Client hereby waives the right to rescind (ontbinden) or nullify (vernietigen) these General Terms and Conditions and/or any Agreement in whole or in part and guarantees that he/she/it will not otherwise seek to render any provision of these General Terms and Conditions and/or any Agreement invalid and/or unenforceable.

 

5. YabandPay’s responsibilities

5.1 YabandPay will only commence Services after (i) the KYC has been completed to YabandPay’s satisfaction; and (ii) the Client has been accepted/approved by the relevant Payment Method Providers.

5.2 Funds intended for the Client shall be deemed to have been made available to the Client as soon as the amount of such funds has been added to the Client’s YabandPay Wallet balance (the act of adding such amount to the Client’s YabandPay Wallet balance is also called “Settlement”) irrespective whether the corresponding funds have actually been transferred from the Foundation Bank Account to the Client Bank Account. The Client may determine when the funds corresponding to his/her/its Available Balance will be actually transferred from the Foundation Bank Account to a Client Bank Account (the act of transferring such funds from the Foundation Bank Account to a Client Bank Account is also called “Pay Out”). Fees will be applicable if the amount of Pay Out is under a threshold as set by YabandPay.

5.3 Acting solely as an intermediary in payment processes, YabandPay will – after deducting the applicable Fees and any other relevant amounts pursuant to any applicable legal requirements and/or contractual arrangements – make funds intended for the Client available to the Client only after such funds have been actually received on the Foundation Bank Account. If YabandPay has for whatever reason made any funds available to the Client or if any funds have been transferred from the Foundation Bank Account to a Client Bank Account without such funds having been actually received on the Foundation Bank Account, the Client must restitute such funds to YabandPay at YabandPay’s first request and must compensate YabandPay for any related costs. In such case, YabandPay will be entitled to – without prejudice to any other statutory and/or contractual rights – do one or more of the following at YabandPay’s sole discretion: (i) deduct part of or the entire amount of such funds plus the related costs from the Client’s YabandPay Wallet balance without the Client’s prior approval or consent; and/or (ii) deduct part of or the entire amount of such funds plus the related costs by way of Affiliated Deduction without the prior approval or consent of the Client or the relevant Affiliated User. Also in case the Client owes any money to YabandPay on whatever ground or if YabandPay has any claim against the Client on whatever ground, YabandPay is entitled to – without prejudice to any other statutory and/or contractual rights and at YabandPay’s sole discretion – obtain the relevant amount by way of Balance Deduction without the prior approval or consent of the Client or the Client’s Affiliated User(s). By accepting these General Terms and Conditions or entering into any Agreement, the Client provides YabandPay with full and unconditional authorization to – in case any Affiliated User of the Client owes any money to YabandPay or if YabandPay has any claim against any of the Client’s Affiliated Users – deduct the relevant amount from the Client’s YabandPay Wallet balance without the Client’s approval or consent.

5.4 YabandPay will not execute a payment instruction (for example, Pay Out or Refund) given by a Client without incurring any liability of whatever nature, if the Client’s Available Balance is lower than the amount of the payment instruction. YabandPay may refuse to execute a payment instruction if the payment instruction contains inaccurate, incomplete or unclear information. For the avoidance of any possible doubt, it is the Client that is solely responsible for the accuracy, correctness and completeness of any and all payment instructions. All the risks of and damage caused by inaccurate, incorrect or incomplete payment instructions shall be solely borne by the Client. Neither YabandPay nor the Foundation has any obligation to verify the accuracy, correctness and/or completeness of any payment instruction given by whichever Person.

5.5 If currencies need to be converted in connection with the provision of Services or any other aspects related to any Agreement, the Client authorizes YabandPay to make such conversion without the Client’s prior approval or consent based on an exchange rate determined by YabandPay in light of the situation of the foreign exchange market.

5.6 With respect to any Transaction, Chargeback, Refund, Settlement, Pay Out and/or any administrative aspects related to the Services and/or any Agreement, the data recorded by or on behalf of YabandPay constitute full and binding evidence between the Parties.

5.7 If YabandPay is unable to fulfil any of its obligation under the Agreement on time or properly due to a circumstance that cannot be attributed to YabandPay (such as, for example, failure or rejection of any Payment Method Providers or any other third parties to provide services that are necessary for YabandPay to provide its Services, power outage, measures taken by public authorities, military conflicts, employment disputes, strikes, illness of YabandPay’s employees, fire, pandemics, epidemics, natural disasters, embargoes, sanctions, malfunction of telecommunication networks, unauthorized penetration in and/or unauthorized use of any systems and/or networks on which the provision of Services is dependent etc.), such obligation will be suspended without YabandPay being liable to any damage or negative consequences.

5.8 Except in the case of intent or gross negligence (opzet of grove schuld) on its part, YabandPay shall not be liable to the Client for (and never be obliged to compensate) any direct or indirect/consequential damage, loss, costs and/or any other negative consequences arising out of or in connection with (the performance of) any Agreement or any collateral contract (whether on the basis of contract, tort or otherwise), including but not limited to loss of income, loss of profits, loss of data, loss of interest (rente), missed business opportunities, loss due to business interruption and/or any other indirect/consequential loss or damage of whatever nature. If YabandPay would be – for whatever reason – liable to the Client or any other Person for any damage, loss, costs and/or any other negative consequences under any Agreement or on the basis of tort or other grounds, the maximum aggregate liability of YabandPay for all claims of a Client or any other Person shall under all circumstances be limited to the lower of the following amounts: (i) the Fees (excluding VAT) actually received from the Client in the ninety calendar days after the commencement of the Services; or (ii) ten thousand euros. Without prejudice to the preceding sentence of this Clause, the maximum aggregate liability of YabandPay towards any Client or any other Person shall under all circumstances be limited to two thousand euros per each calendar year. The Client’s right to (i) hold YabandPay liable for any damage, loss or any other negative consequences, (ii) submit any claim to YabandPay and/or (iii) take any legal action against YabandPay will be extinguished (vervallen) per the earlier of the following dates: (i) sixty calendar days after the Client has become aware or should have reasonably become aware of the incident that may lead to any liability on the part of YabandPay; or (ii) ninety calendar days after the occurrence of the incident (upon which the Client’s intended claim or legal action is/would be based) that may lead to any liability on the part of YabandPay.

5.9 The Client explicitly agrees that YabandPay may at all times at its sole discretion and without the Client’s prior approval or consent: (i) set up a Deposit with an amount that YabandPay deems appropriate or adjust a Deposit that has already been set up with an amount that YabandPay deems appropriate, in order to cover the financial risks in connection with the Client’s (possible) non-performance of his/her/its obligations under any Agreement; (ii) wholly or partially outsource the performance of any Agreement to a third party at YabandPay’s choice; and (iii) wholly or partially transfer its rights and/or obligations under any Agreement to a third party at YabandPay’ choice.

5.10 YabandPay has the right to unilaterally adjust the (rates of the) Fees. If the adjustment concerns an increase in the (rates of the) Fees, YabandPay will – at least thirty calendar days before the increase takes effect – inform the Client of such adjustment via e-mail, the YabandPay Portal or otherwise. If the Client does not agree to the increase, he/she/it may – within thirty calendar days after the intended increase has been communicated to the Client in accordance with the preceding sentence of this Clause (the “Objection Period”) – terminate the Agreement in writing as per the date on which the increase will take effect. Without the Client’s written notification of termination being received by YabandPay within the Objection Period, the increase in the (rate of the) Fees will take effect as per the date as initially set by YabandPay. 

 

6. Confidentiality

6.1 Both during the existence and after the end of any Agreement, the Client shall – and shall make sure that any Person working for or on behalf of the Client on whatever ground shall – (i) keep all Confidential Information strictly confidential; (ii) take sufficient technical and organizational measures to protect such Confidential Information; and (iii) not disclose such Confidential Information to any other Person unless legally required to do so.

 

7. Privacy/GDPR

7.1 YabandPay processes personal data during the provision of Services and makes all reasonable efforts to comply with the relevant laws and regulations for the protection of personal data and/or privacy. In YabandPay’s privacy policy it is explained what personal data YabandPay processes, for what purposes such personal data are processed as well as other aspects related to privacy/personal data protection. Notwithstanding the foregoing, YabandPay cannot guarantee that unauthorized Persons will never be able to breach or circumvent the measures taken by YabandPay and/or use personal/payment data under YabandPay’s control for malicious purposes. The Client understands and accepts such risks and will not hold YabandPay liable in whatever manner if such risks materialize.

7.2 The Client undertakes that he/she/it complies with all applicable laws and regulations regarding the protection of personal data and privacy. The Client shall inform YabandPay in writing of any (suspected) breach of personal data at the Client’s organization and provide the relevant details as may be requested by YabandPay, the relevant Payment Method Providers and/or government authorities as soon as possible but in any event no later than two calendar days after discovery of such (suspected) breach. YabandPay, the relevant Payment Method Providers and government authorities may request addition information and/or data in response to the aforementioned (suspected) breach, in which case the Client shall provide full, prompt and unconditional assistance at YabandPay’s first request.

 

8. Intellectual property

8.1 All intellectual property rights relating to the Services and the underlying technologies, the YabandPay Portal, YabandPay’s website and any drawing, design or document provided by YabandPay to the Client vest in YabandPay and its suppliers.

8.2 Unless otherwise explicitly agreed by YabandPay, the Client merely acquires a non-exclusive and non-transferable right of use with respect to the intellectual property rights mentioned in the preceding Clause for the duration of the relevant Agreement. 

 

9. Miscellaneous

9.1 The following interpretation rules apply to these General Terms and Conditions and any Agreement:

a. references to “in writing” or “written” shall – unless otherwise specifically indicated – also include communication via emails, instant messaging (e.g. Whatsapp, WeChat etc.), text messaging (Dutch term: sms), announcement/statement via YabandPay’s website or the YabandPay Portal or communication via other similar digital means;

b. unless the context requires otherwise, the singular includes the plural and vice versa, and each gender includes the other gender;

c. references to “include” and “including” shall mean “include without limitation” or “including without limitation”; and

d. the headings are included for reference only and shall not affect the interpretation of these General Terms and Conditions and/or any Agreement.

9.2 If (any part of) any provision of these General Terms and Conditions or any Agreement is or becomes invalid or unenforceable, this shall not affect the validity of the remaining provisions. The Client agrees that in the aforementioned situation, YabandPay may draw up and apply a legally valid provision (to which the Client shall be bound) that – to the greatest extent possible – has a similar effect as the invalid or unenforceable provision.

9.3 YabandPay may set off (verrekenen) any payment obligation that it may have towards the Client with any payment obligation that the Client has towards YabandPay, irrespective of the currency in which the relevant payment obligations are denominated.

9.4 All provisions in these General Terms and Conditions and/or any Agreement for the benefit of YabandPay (including but not limited to Clauses 5.7 and 5.8) may also be invoked by the Foundation as if the Foundation were also a Party. This Clause is an irrevocable and gratuitously made third-party clause within the meaning of article 6:253 paragraph 4 of the Dutch Civil Code (onherroepelijk derdenbeding om niet).

9.5 All provisions of (i) these General Terms and Conditions and (ii) any Agreement that, in order to be effective, must remain in force after termination of the General Terms and Conditions and/or the relevant Agreement, will remain in force after termination of the General Terms and Conditions and/or any Agreement.

9.6 If the Client fails to fulfill any of the obligations (in whole or in part) as mentioned in Clauses 4.1, 4.2, 4.7, 4.10, 6.1 and 7.2, the Client will owe YabandPay an immediately payable penalty of three thousand euros for each violation, as well as an amount of three hundred euros for each day, including part days, that the violation continues, without the need for a further demand, a default notice or recourse to a court of law. None of the foregoing will prejudice the other legal remedies available to YabandPay such as demanding fulfilment of the aforesaid obligations and the right of YabandPay to claim full damage compensation in addition to penalty payments.

9.7 These General Terms and Conditions and any Agreement are governed exclusively by the laws of the Netherlands.

9.8 All disputes arising in connection with (i) these General Terms and Conditions, (ii) any Agreement and/or (iii) the provision of Services will in the first instance be exclusively submitted to the District Court of The Hague (Rechtbank Den Haag). However, if the Client’s domicile (woonplaats) or centre of activities is outside the Netherlands, YabandPay may opt to submit the dispute(s) as mentioned in the previous sentence to the Netherlands Arbitration Institute (NAI) or its successor in accordance with the arbitration rules of the NAI or the applicable arbitration rules of the NAI’s successor, it being understood that the arbitration rules in force when the request for arbitration is submitted shall apply. The arbitral tribunal shall be composed of one arbitrator. The place of arbitration shall be The Hague. The arbitration language shall be English. The arbitration award is final and binding upon YabandPay and the Client.