Version 10 18-05-2015 Page 1 of 9 General Terms and Conditions Buckaroo Payment Services Buckaroo B.V. is an internet billing and payment provider that makes various Payment Services available to Merchants for online Transactions. These General Terms and Conditions outline the conditions on the basis of which the Merchant can purchase Payment Services and can obtain access to the Payment Engine and the Buckaroo Payment Plaza of Buckaroo. 1. Definitions In these "General Terms and Conditions" the following is understood as: Agreement: Available Balance: Book Balance: BPP: Buckaroo: Customer: Customers Account: Fees: Financial Institution: Foundation: Group: Merchant: NUDD: Parties: Payment Engine: Payment Method Owner: Payment Services: Peak Hours: Rolling Reserve: Transaction: Transaction Data: The agreement concluded by and between the Parties, including possible schedules, related to the Payment Services. The part of the Book Balance available to the Merchant. Balance on the Customers Account in the name of the Merchant. Buckaroo Payment Plaza, the back office system of Buckaroo for the management of the Transactions and funds with the thereto pertaining software, infrastructure, support, reports, downloads and manuals. Buckaroo B.V., having its registered office in Beilen, registered in the Trade Register under number 04060983. Customer (potential customer) of the Merchant who wishes to conclude and/or concludes an online Transaction with the Merchant. The bank account with the Book Balance managed by the Foundation. The fees payable to Buckaroo by the Merchant. A financial institution for the management of funds selected by Buckaroo, the Foundation, the Merchant and/or the Customer. The Stichting Derdengelden Buckaroo, having its registered office in Utrecht, registered in the Trade Register under number 30231762, acting as the independent custodian of customers funds and Customers Accounts. The group of companies within the meaning of article 24b of Book 2 of the Dutch Civil Code of which Buckaroo is part. The (legal) person, acting in the course of a profession and/or business, who concludes an Agreement with Buckaroo for the purchase of Payment Services. Notification Undue Direct Debit. Buckaroo and the Merchant. System, including software, infrastructure and manuals of Buckaroo or its licensors, for the processing of Transactions and the thereto pertaining data traffic. Entity (entities) that is (are) the owner of a payment method (e.g. Currence ideal B.V., i.e. the owner of ideal). The services offered to the Merchant by Buckaroo, including Pay Later, Ukash and Pay Safe Card, gift cards and loyalty, credit cards + 3-D Secure, emaestro, single / recurrent direct debit, Giropay, ideal, online giro, transfer, PayPal and Buckaroo Subscription Services, and/or all other services offered by Buckaroo, e.g. digital checkouts, collection services, whether or not in the form of a batch payment, and credit management, whether or not in association with entities from the Group. Monday up to and including Sunday between 09:00 o clock and 21:00 o clock. The part of the Book Balance blocked for a certain period by the Foundation at the request of Buckaroo. Payment order of the Customer that is processed with the help of the Payment Engine. Data regarding a Transaction.
Version 10 18-05-2015 Page 2 of 9 2. Applicability of the General Terms and Conditions 2.1 These General Terms and Conditions are applicable to any and all offers, legal relationships and Agreements in the course of which Buckaroo supplies Payment Services to the Merchant. 2.2 The applicability of purchasing or other terms and conditions of the Merchant is expressly excluded. 2.3 Should any provision of these General Terms and Conditions be invalid or cancelled then the other provisions of these General Terms and Conditions shall remain in full force and effect. 2.4 Changes of these General Terms and Conditions are only valid if they have expressly been accepted by Buckaroo in writing. 2.5 Buckaroo is entitled to change these General Terms and Conditions in consideration of a term of three (3) months. If the Merchant does not agree with these changes then the Merchant can in derogation from article 3.2 terminate the Agreement within thirty (30) days after the notification at the date when the changed General Terms and Conditions would take effect. 2.6 If one or more provisions of these General Terms and Conditions are in breach of the provisions set forth in the Agreement then the provisions of the Agreement shall prevail. 2.7 Where these General Terms and Conditions refer to in writing or written then this is understood to also include communication by email, unless compulsorily prescribed otherwise. 3. Commencement, Term and Termination of the Agreement 3.1 Buckaroo uses an acceptance policy as from time to time published on the website of Buckaroo. The Agreement is only concluded after the express written acceptance of a request by Buckaroo or signature of the Agreement by Buckaroo and the Merchant. The conclusion of the Agreement also requires the acceptance of the Merchant by the relevant Financial Institution and the Payment Method Owner. Payments to the Merchant shall only be made after all documents required within the framework of the Dutch Money Laundering and Terrorist Financing (Prevention) Act (Wet ter voorkoming van witwassen en financiering van terrorisme) and the Dutch Financial Supervision Act (Wet op het financieel toezicht) have been received and approved by Buckaroo. Should the provisions regarding client acceptance set forth in the Dutch Money Laundering and Terrorist Financing (Prevention) Act and the Dutch Financial Supervision Act not be complied with within two weeks after connection then Buckaroo shall, without stating reasons, terminate the agreement with the Merchant and Buckaroo shall make an effort to repay the payments possibly received for the Merchant. To the extent that the assessment in pursuance of the Dutch Money Laundering and Terrorist Financing (Prevention) Act and the Dutch Financial Supervision Act is delayed due to circumstances that cannot be blamed on the Merchant then Buckaroo can always extend the aforementioned time limit by a period of two weeks. 3.2 The term of the initial contract period depends on the commencement date of the Agreement. If the Agreement commences in the period from 1 January up to and including 30 June then the initial contract period runs up to and including 31 December of the same year. If the Agreement commences in the period from 1 July up to and including 31 December then the initial contract term runs up to and including 31 December of the subsequent year. After expiry of the initial contract term the Agreement is each time automatically renewed by one calendar year unless a Party gives written notice of termination of the Agreement prior to expiry of the initial or a renewed contract period in consideration of a notice period of one (1) month prior to the first following renewal. Termination before the end of the term is not possible. 3.3 Each Party is without prejudice to the provisions set forth in article 8.6 entitled to fully or partly dissolve the Agreement after prior written notice of default in which the other Party is given a reasonable time limit to properly comply with its obligations on account of the Agreement, if the other Party still fails to comply with obligations within the imposed reasonable time limit. 3.4 Without prejudice to the provisions set forth elsewhere in these General Terms and Conditions Buckaroo can fully or partly dissolve the Agreement in writing without notice of default and with immediate effect if: 3.4.1 the Merchant is granted whether or not provisional suspension of payment or the Merchant is declared insolvent or a corresponding petition is filed; 3.4.2 the company of the Merchant is liquidated or terminated other than for the benefit of a restructuring or merger of companies;
Version 10 18-05-2015 Page 3 of 9 3.4.3 the Merchant is a natural person, in case of a guardianship order, an administration order or death of the Merchant; 3.4.4 the Merchant offers goods and/or services of which the existence, offer, marketing, possession or use is punishable, at least in breach of applicable legislation and regulations; 3.4.5 the Merchant acts in breach of the acceptance policy pursued by Buckaroo; 3.4.6 the image and/or the trademark of Buckaroo are or threaten to be prejudiced due to acts or omissions of the Merchant. 3.5 If at the time of the dissolution as intended in article 3.3 or 3.4 the Merchant has already received performances for the implementation of the Agreement then these performances and the thereto pertaining obligation to pay a possible Fee cannot be undone. Fees that Buckaroo billed prior to the dissolution in connection with that which it has already properly performed or delivered for the implementation of the Agreement shall remain payable in full in consideration of the provisions set forth in the previous sentence and immediately fall due at the time of the dissolution. 3.6 At the time of termination of the Agreement Buckaroo shall complete outstanding Transactions. If the Merchant is liable to pay a Fee for these Transactions then this Fee shall be set off against the amount that may be payable on account of the Transaction. To the extent that this amount is not sufficient or that setoff cannot take place the Merchant shall be liable to forthwith pay the Fee and the Fee immediately falls due. 3.7 In case of termination of the Agreement, on any ground whatsoever, the right of the Merchant to use the Payment Engine and the BPP expires by operation of law. 4. Transactions 4.1 After conclusion of the Agreement Buckaroo connects the Merchant to the Payment Engine and the BPP. 4.2 Transactions are processed by Buckaroo via the Payment Engine. The flows of money associated with the Transactions can moreover take place via the Customers Account or not. Buckaroo acts as the: a) Processor: if the flows of money do not take place via the Customers Account and are offered directly to the Financial Institution or are paid directly into the bank account of the Merchant by the Financial Institution; and as the b) Collector: if the flows of money take place via the Customers Account. 4.3 The Merchant acknowledges that Buckaroo is not a party to the legal relationship between the Merchant and the Customer (and shall never create this impression vis-à-vis the Customer). Buckaroo only acts as intermediary for the processing of the Transactions. 4.4 Buckaroo neither has an effect on the information that is sent by Financial Institutions and Payment Method Owners within the framework of the processing of Transactions. 4.5 The Merchant shall always immediately and diligently check all performed Transactions on possible inaccuracies. If the Merchant detects inaccuracies in respect of the Transactions, the Payment Engine and/or the BPP then the Merchant shall forthwith inform Buckaroo accordingly in writing. 4.6 If the Merchant received undue funds from Buckaroo or the Foundation then the Merchant shall forthwith, however in any case on corresponding demand of Buckaroo or the Foundation, repay these funds to the Customers Account. 4.7 Buckaroo can reject the processing of a Transaction if: - the contract for a Transaction contains incorrect, incomplete and/or unclear data or has otherwise been presented incorrectly; - a precautionary or executory attachment imposed on the payment account of the Merchant and/or the Customer prevents the performance of the Transaction; - the payment account of the Merchant and/or the Customer has been blocked for other reasons; - the Available Balance is insufficient; - there is well-founded fear that the Transaction affects the Rolling Reserve; - there is a suspicion that the Merchant or the Customer is involved in fraudulent acts and/or there is question of abuse of the Payment Engine and/or the BPP; - the performance of the Transaction is otherwise in breach of legislation and/or regulations; and/or - other urgent and well-founded reasons oppose the same.
Version 10 18-05-2015 Page 4 of 9 4.8 Buckaroo can, possibly at the request of Financial Institutions, Payment Method Owners and/or official authorities, impose further requirements on the use of the Payment Engine and the BPP. This includes, inter alia, the establishment of limits in terms of the number, the type, the level and the scope of Transactions (e.g. minimum and maximum amounts, currency and the number of Transactions per time unit). Buckaroo is entitled to change these requirements and shall in connection therewith observe an announcement term of one (1) month. If the Merchant does not agree with the change(s) announced by Buckaroo then the Merchant and Buckaroo shall be entitled to terminate the Agreement by written notice within two (2) weeks after the announcement at the date that the changes would take effect. 4.9 To absorb future refunds, charge backs, reversals and NUDDs and to avoid a debit balance Buckaroo is entitled to, for reasons of its own, establish a Rolling Reserve. 5. Management and maintenance 5.1 Buckaroo is entitled to temporarily decommission the Payment Engine and the BPP for the benefit of the management and maintenance. Buckaroo does not accept any liability for the possible adverse consequences that a temporary decommissioning could bring about for the Merchant. 5.2 The Merchant shall be informed about the decommissioning of the Payment Engine and the BPP by Buckaroo in advance to the extent that this can within reason be requested of Buckaroo and exclusively to the extent that the decommissioning has considerable consequences for the Merchant. Buckaroo pursues to perform the maintenance of the Payment Engine and the BPP as much as possible outside of the Peak Hours. 6. The Foundation 6.1 The Foundation acts as a custodian of the customers funds and as a manager of the Customers Account designated by Buckaroo. 6.2 When performing its duties the Foundation observes the necessary diligence and takes, to the best of its ability, the justified interests of the Merchant and the Customer into account. 6.3 Buckaroo and the Foundation are joint and several creditor (article 16 of Book 6 of the Dutch Civil Code) with regard to the Fees and are expressly authorised to deduct the Fees from the Book Balance of the Merchant. Where required, the Merchant hereby authorises the Foundation to collect any and all Fees on behalf of Buckaroo. 7. Obligations of the Merchant 7.1 Buckaroo only supplies the Payment Services to Merchants and Customers. A Merchant cannot allow third parties to use the Payment Services of Buckaroo unless this has expressly been permitted in pursuance of the Agreement. If a third party wishes to make use of the Payment Services then a Merchant shall refer said third party to Buckaroo. 7.2 The Merchant shall always follow all reasonable regulations and instructions of Buckaroo regarding the Payment Engine and the BPP. The Merchant shall also always provide the data or information useful or necessary for the proper implementation of the Agreement and lend all its cooperation in a timely fashion. The Merchant shall moreover see to it that the information supplied and/or to be supplied by the same is correct, complete and has been obtained and/or processed in a lawful manner. The Merchant shall also see to it that the Transactions have been or are concluded in accordance with the applicable legislation and regulations. 7.3 The Merchant warrants that it is entitled to the domain name / domain names of the website(s) via which the Transactions are performed. 7.4 The Merchant shall keep a business payment account at a Financial Institution in the countries where it offers its products and/or services. Moreover it shall in any case keep a payment account at a Financial Institution in a EU Member State. The Merchant commits to keep these payment accounts for at least six (6) months after termination of the Agreement. 7.5 The Merchant is fully responsible for the connection of its website to the Payment Engine and the BPP. The Merchant is familiar with the risks associated with the use of the internet, email and/or Payment Services. The Merchant is and remains responsible for the security and the operation of its own website.
Version 10 18-05-2015 Page 5 of 9 7.6 The Merchant is not allowed to disrupt the normal operation of the Payment Engine and the BPP or to violate the integrity of the same. The Merchant is neither allowed to limit or otherwise affect the access to the Payment Engine and the BPP. 7.7 The Merchant warrants that: - it does not offer goods and/or services of which the existence, offer, marketing, possession and/or use is punishable, in breach of applicable legislation and regulations and/or in breach of the acceptance policy pursued by Buckaroo; - it complies with its obligations vis-à-vis the Customer; - it refrains from activities that can prejudice the reputation and/or the trademark of Buckaroo. 7.8 The Merchant shall not have a debit balance on its Book Balance. Should this situation yet occur then the Merchant must immediately settle the debit balance and the Foundation obtains an immediately claimable claim vis-à-vis the Merchant for the amount of this debit balance plus the statutory commercial interest. 7.9 The Merchant has a well-documented and properly functioning complaints procedure for Customers. 7.10 The Merchant commits to forthwith communicate relevant changes in the business details to Buckaroo. Business details are understood as, inter alia, changes in the registration with the Chamber of Commerce, contact details, relocation details, etc. 8. Fees 8.1 The Fees for the Payment Services consist of once-only connection costs, monthly subscription costs and other recurrent costs and other Fees. 8.2 Buckaroo charges the connection costs after the conclusion of the Agreement. 8.3 Buckaroo always charges the monthly subscription costs and other recurrent costs to the Merchant one (1) month in advance. 8.4 Payment of the other Fees takes place, where possible, by immediately setting off the payable Fees against the Book Balance of the Merchant at the time that the relevant Fee is charged. 8.5 If the aforementioned setoff is not (completely) possible as the Book Balance is insufficient then the Foundation shall proceed with direct debit collection in order to supplement the Book Balance to the required amount and yet proceed with the setoff. The Merchant hereby already grants the Foundation, as the occasion arises, authorisation for said direct debit collection. 8.6 To the extent that (even after direct debit collection) it remains impossible to set the Fees off against the Book Balance of the Merchant, the Merchant receives an invoice for the still payable Fees. The Merchant must provide for payment of this invoice by supplementing its Book Balance with the amount of the invoice within seven (7) days after the date of the invoice. If the Merchant does not supplement its Book Balance within this time limit then the Merchant is in default without any further notice of default being required and liable to pay the statutory commercial interest on the outstanding amount as well as extrajudicial collection costs in conformity with the graduated scale for extrajudicial collection costs (ECC) (staffel buitengerechtelijke incassokosten (BIK)) as applicable pursuant to the Dutch Extrajudicial Collection Costs (Standards) Act and the thereto pertaining Dutch Extrajudicial Collection Costs (Fees) Decree (Wet normering buitengerechtelijke incassokosten en het bijbehorende Besluit buitengerechtelijke incassokosten). The fee for the extrajudicial collection costs is calculated as a percentage of the amount that is payable by the Merchant. In this respect it is noted that the minimum amount on account of extrajudicial collection costs amounts to EUR 40.00 and the maximum amount to EUR 6,775.00. Buckaroo can then, after a written notice, also (temporarily) block the access to the Payment Engine and/or fully or partly dissolve the Agreement. 8.7 Via the BPP the Merchant can consult overviews of charged and offset Fees. 8.8 Buckaroo and the Foundation are entitled to set the (claimable) Fees off against (claimable) counterclaims of the Merchant vis-à-vis Buckaroo respectively the Foundation. The latter regardless of the currency of the Fees and the counterclaims. 8.9 If after blocking of the Payment Engine in accordance with the Agreement this blocking is lifted then the costs for said blocking are charged to the Merchant.
Version 10 18-05-2015 Page 6 of 9 8.10 All costs, taxes and/or duties that are related to commitments entered into by Buckaroo with Financial Institutions for the benefit of the Merchant are at the expense of the Merchant, unless stipulated otherwise in writing or prescribed otherwise by mandatory statutory provisions. 8.11 If a Financial Institution charges NUDD costs to Buckaroo then these costs are passed on to the Merchant by Buckaroo. 8.12 Should Buckaroo be involved in a seizure, dispute or proceedings between Merchant and a third party, then Merchant shall reimburse all costs arising therefrom to Buckaroo (e.g. legal fees). 8.13 If multiple Merchants jointly make use of one and the same connection to the Payment Engine then these Merchants are jointly and severally committed and liable vis-à-vis Buckaroo for Fees related to said connection and for all other obligations vis-à-vis Buckaroo. 8.14 On corresponding request of Buckaroo the Merchant shall provide sufficient security for compliance with its obligations on account of the Agreement by establishing a right of pledge (first in priority) on its accounts receivable portfolio. The Merchant shall not impose further conditions on this. 8.15 Buckaroo is entitled to annually adjust the applicable recurrent payable Fees in writing in consideration of a term of at least one (1) month. If the Merchant does not wish to agree with this kind of adjustment then the Merchant shall be entitled to terminate the Agreement within ten (10) days after the notification at the date when the adjustment would take effect. 8.16 The administration of Buckaroo and/or the Foundation serves as complete evidence vis-à-vis the Merchant. In case of doubt about the content of an email message the content of the email message sent and/or received by Buckaroo and/or the Foundation shall be decisive. 9. Liability and indemnification 9.1 Buckaroo aims at the adequate operation of the Payment Engine and the BPP and pursues maximum availability. Buckaroo takes all within reason required measures in order to best guarantee the security of the Payment Engine and the BPP. Part hereof is the secured storage of the Transaction Data. Buckaroo complies, to the best of its ability, with the security requirements of the Payment Card Industry. 9.2 Buckaroo can, however, not guarantee that the Payment Engine and the BPP are always available or that all Transactions are processed error-free. Buckaroo makes the Payment Engine and the BPP available to the Merchant as is. Buckaroo shall equally never be responsible for the continuing offer, the availability and/or the proper operation of the payment methods and other services of Payment Method Owners and/or Financial Institutions, barring to the extent that due to a cause imputable to Buckaroo the continuing offer, the availability and/or the proper operation thereof are (temporarily) interrupted. 9.3 The total liability of Buckaroo on account of an imputable shortcoming to comply with the Agreement is limited to compensation for the direct damages up to at most the amount of the stipulated Fees over the year preceding the loss-causing occurrence (excluding VAT) up to a maximum of 50,000.00 per claim or, in case of a series of claims with one and the same cause, up to a maximum of 100,000.00 per series. If Buckaroo is liable for any failing, incorrect and/or late performance of Transactions then the amount for which Buckaroo is liable shall be limited to the loss of interest up to a maximum of 225.00 per event. In no instance whatsoever shall the total compensation for direct damages exceed 500,000.00 per calendar year. 9.4 Direct damages is exclusively understood as: 9.4.1 reasonable costs that the Merchant would need to incur in order to have the performance of Buckaroo comply with the Agreement; 9.4.2 reasonable costs incurred for the establishment of the cause and the scope of the damages to the extent that the establishment is related to direct damages within the meaning of these terms and conditions; 9.4.3 reasonable costs incurred for the prevention or limitation of damages to the extent that the Merchant demonstrates that these costs resulted in limitation of direct damages within the meaning of these General Terms and Conditions. 9.5 The liability of Buckaroo for damages due to death or bodily harm or on account of material damage to goods shall in total never exceed 1,000,000.00 (one million Euros).
Version 10 18-05-2015 Page 7 of 9 9.6 Liability of Buckaroo for indirect damages, consequential damages, lost profit, lost savings, reduced goodwill, losses due to business interruptions, damages resulting from claims of buyers of the Merchant, mutilation and loss of data, damages related to the use of goods, materials or software of third parties prescribed to Buckaroo by the Merchant, damages related to the reliance on suppliers prescribed to Buckaroo by the Merchant and all other forms of damages other than those mentioned in the other paragraphs of this article 9, on any account whatsoever, is excluded. 9.7 Limitations of liability expire if and to the extent that the damages are the result of intent or intentional recklessness of Buckaroo or its managers. 9.8 Unless determined otherwise there shall only be question of liability of Buckaroo on account of an imputable shortcoming to comply with an Agreement if the Merchant forthwith and properly gives Buckaroo written notice of default in the course of which a reasonable time limit for remedy of the shortcoming is provided and Buckaroo still imputably fails to comply with its obligations. The notice of default must contain a description of the shortcoming that is as detailed as possible in order that Buckaroo is able to react adequately. 9.9 The provisions set forth in this article are also applicable for the benefit of all (legal) persons that Buckaroo relies on for the implementation of the Agreement. 9.10 Condition for the occurrence of any right to compensation is always that the Merchant reports the damages to Buckaroo in writing as soon as possible after the occurrence thereof, however at the latest within one (1) month after the Merchant has become familiar with the damages and/or should within reason have become familiar with the damages. 9.11 The Merchant indemnifies Buckaroo against any and all claims, on any account whatsoever, of Financial Institutions, Payment Method Owners, official authorities, Customers and/or other third parties deriving from any act and/or omission of the Merchant, including its Customers and third parties relied on by the same, and shall compensate and indemnify Buckaroo for and against all associated costs (including the costs of legal assistance) that Buckaroo shall within reason need to incur if they are addressed by a Customer and/or another third party in connection with any act and/or omission of the Merchant. 10. Force majeure 10.1 The Parties are not liable in case of force majeure. 10.2 There shall also be question of force majeure on the part of Buckaroo and the Foundation when suppliers, including internet providers, Payment Method Owners and Financial Institutions, do (imputably) not comply with their obligations. If new and/or changed legislation and/or regulations oppose the performance of Transactions then this shall also be qualified as force majeure on the part of Buckaroo. 10.3 When the situation of force majeure has lasted for more than ninety (90) days then the Parties are entitled to dissolve the Agreement in writing. That which has already been performed pursuant to the Agreement is then settled proportionately without the Parties being liable to pay each other anything back and forth. 11. Intellectual property 11.1 Any and all intellectual and industrial property rights in respect of the Payment Engine, the BPP as well as the other software, websites, data files, equipment or other materials like analyses, designs, documentation, reports, offers, manuals, as well as preparatory material for the same, are exclusively vested in Buckaroo or its licensors. 11.2 The Merchant exclusively acquires the non-transferable, non-exclusive right to use the Payment Engine and the BPP for internal purposes, within the framework of the purchased Payment Services, all as further expressly allocated by Agreement and by law. It is not allowed to grant a sub-licence to a third party. Nothing in the Agreement aims to accomplish a transfer of rights, unless expressly stipulated otherwise. 11.3 Buckaroo reserves the right to change the Payment Engine and the BPP at any time and to change the functionalities and/or features of the Payment Engine and the BPP. To the extent that this kind of adjustment implies an essential adverse change in the services of Buckaroo for the Merchant then the Merchant shall be entitled to terminate the Agreement in writing with immediate effect without being liable to pay any compensation.
Version 10 18-05-2015 Page 8 of 9 11.4 Buckaroo is entitled to impose further restrictions on the number of users that use the Payment Engine and/or the BPP and/or the number of servers and/or workstations on which the Payment Engine and the BPP run. Buckaroo is entitled to check this. 11.5 In case of a breach of the restrictions outlined in the previous paragraph Buckaroo shall be entitled to yet supply the missing user rights and to charge the relevant Fees with retroactive effect. 11.6 Buckaroo is entitled to use the (trade) name and the logo / trademark of the Merchant for reference purposes and to use the same in its advertising expressions. 12. Confidentiality 12.1 The Parties commit vis-à-vis each other to observe confidentiality with regard to all data and all information related to each other s organisation, business operations, financial matters, information about Transactions, pin codes, passwords and services traceable to the Merchant in the broadest sense of the word that come into their possession during the implementation of the Agreement, including the existence of the mutual relationship between the Parties. 12.2 The foregoing applies barring to the extent that these General Terms and Conditions determine otherwise; in case of a statutory obligation to disclose; in case disclosure is ordered by a competent authority; or if the relevant information is already available in the public domain through no fault of the other Party. 13. Personal data 13.1 During the implementation of the Agreement the Parties process personal data of Customers. Each Party qualifies as the controller of these personal data to the extent that the Party processes the same for its own purposes and with its own means. The Parties have both a joint and a differentiated responsibility. The joint responsibility regards the processing acts that are carried out for the joint purposes, e.g. the accomplishment of Transactions via the Payment Services. For other processing acts the Parties have a differentiated responsibility in the sense that each Party is responsible for these processing acts independently of the other Party. For instance, Buckaroo shall independently be responsible for using, sharing and anonymising personal data for services including the performance of fraud checks and credit management services. 13.2 Each Party warrants that it shall process the personal data of Customers in accordance with the Dutch Personal Data Protection Act (Wet bescherming persoonsgegevens) and possible other applicable regulations with regard to the processing of personal data. 13.3 Each Party shall take appropriate technical and organisational (security) measures in order to protect the personal data against loss or any form of unlawful processing, in accordance with the Dutch Personal Data Protection Act and possible other applicable regulations with regard to the processing of personal data and guidelines issued by relevant authorities. 13.4 As the Merchant is the party who has the first and direct contact with the Customers the Merchant shall supply all required information about the proposed processing of the personal data, the responsibilities for the same and the purposes thereof. When it comes to the data processing by Buckaroo and the entities within the Group Buckaroo shall, if so desired provide the Merchant with information texts and the Merchant shall follow possible further reasonable instructions of Buckaroo in connection therewith. 13.5 Buckaroo shall retain the Transaction Data as prescribed by the applicable legislation and regulations. Transaction Data are established such by Buckaroo that they can, in any case, be consulted by the Merchant during a period of one (1) year after establishment. 14. Takeover of personnel and non-competition 14.1 During the term of the Agreement as also during one (1) year after termination of the Agreement the Merchant commits not to, either directly or indirectly, hire employees of Buckaroo or to have the same perform any duties for the Merchant. 14.2 During the term of the Agreement as also up to one (1) year after termination of the Agreement the Merchant commits not to, without prior written consent of Buckaroo, offer payment services in the Netherlands or to have a share and/or participate in the same, either directly or indirectly. During this
Version 10 18-05-2015 Page 9 of 9 period the Merchant moreover refrains from, either directly or indirectly, canvassing and/or approaching customers of Buckaroo with regard to payment services. 14.3 The Merchant shall see to it that companies affiliated with the same shall also comply with the aforementioned obligations. 14.4 If the Merchant breaches one or more of the obligations laid down in this article then the Merchant forfeits an immediately claimable penalty to Buckaroo of 5,000.00 for each day that the breach continues up to a maximum of 500,000.00. 15. Closing provisions 15.1 For the implementation of the Agreement Buckaroo can rely on services of third parties. 15.2 The applicability of the Vienna Sales Convention (Weens Koopverdrag) is excluded. 15.3 Dutch law is applicable to each and every Agreement, including the conclusion and the implementation thereof. 15.4 All disputes that may arise as a result of an Agreement shall exclusively be brought to the cognisance of the competent court in the district of Utrecht. 15.5 These General Terms and Conditions were drawn up in the Dutch language and in the English language. In case of a difference or discrepancy between the Dutch text and the English text of these General Terms and Conditions the General Terms and Conditions drawn up in the Dutch language shall prevail.