Last updated 11 September, 2024

1.     General

a. These Payment Services Terms are hereby incorporated into and made a part of the Hapana Customer General Terms and Conditions (https://hapana.com/legal/brand-agreement-terms-and-conditions-us) (the “General Terms”) if any Payment Services are provided to Customer or any Location under an SOW and/or the General Terms and continue until termination of the Payment Services in accordance with these Payment Services Terms. Any term not otherwise defined herein has the definition set forth in the General Terms.

b.   In these Payment Services Terms:

“Activity” means any action submitted by or on behalf of Customer or any Location using the Payment Services, including any communication of data or information about Transactions (including any charges or fees), refunds, adjustments, the handling of disputes (including chargebacks) or other relevant features of the Payment Services;

"Agreement” means, as applicable, Customer’s Agreement with Hapana (as defined in the General Terms and including these Payment Services Terms) and/or any applicable Location Agreement.

“Applicable Stripe Terms Table” means the table attached as Annexure 1 to these Payment Services Terms setting out the applicable Stripe entity, Stripe Services Agreement and Stripe Privacy Policy as determined based on the geographic location of the Customer or the relevant Location.

“Stripe” means the relevant Stripe entity as determined based on the geographic location of the Customer and/or the relevant Location as set out in the Applicable Stripe Terms Table.

“Stripe Privacy Policy” means the applicable Stripe privacy policy (including any terms and conditions incorporated by reference therein) as determined based on the geographic location of the Customer and/or the relevant Location as set out in the Applicable Stripe Terms Table, which is referenced and linked in the Stripe Services Agreement.

“Stripe Services Agreement” means the applicable:

i. Stripe terms and conditions (including any services agreement or connected account agreement) as determined based on the geographic location of the Customer and/or the relevant Location as set out in the Applicable Stripe Terms Table;

ii. the Stripe Privacy Policy;

iii. any other terms and conditions that are referenced, or incorporated into, any of the above;

iv. any other terms and conditions that are required by Stripe in connection with using the Payment Services from time to time; and

v. each as updated by Stripe from time to time.

“Transaction” means any purchase, sale, donation, order or other transaction processed using the Payment Services.

‍

2. Provision of Payment Services

‍

a. Hapana reserves the right to change the provider of the Payment Services and these Payment Services Terms at any time in its sole discretion and with the Customer acting reasonably, subject to the terms and conditions of its agreement with the provider of the Payment Services. The Customer must agree to this change subject to ensuring the commercial considerations do not put the Customer in a worse off position.

b. Subject to Customer’s compliance in full with the terms of the Agreement, including these Payment Services Terms, and (2) each Location’s compliance in full with the terms of the relevant Location Agreement, Hapana agrees to arrange for the provision of the Payment Services by Stripe on the terms and conditions of the Agreement, including these Payment Services Terms, and the Stripe Services Agreement.

c. Customer and each Location acknowledges and agrees that, notwithstanding any provision in the Agreement to the contrary:

i. the Payment Services are provided directly by Stripe and its related bodies corporate via an integration through the Online Delivery Platform and that Hapana’s only obligations with respect to the Payment Services under the Agreement are (1) to maintain an agreement with Stripe to allow Stripe to provide the Payment Services in accordance with the Agreement (including these Payment Services Terms) and the Stripe Services Agreement and (2) maintain such integration;

ii. Hapana is not providing the Payment Services to Customer or any Location;

iii. Customer and each Location have agreed to the Stripe Services Agreement, which has created a direct, binding contractual relationship with Stripe with respect to the Payment Services;

iv. Hapana is not a party to the Stripe Services Agreement; and

v. Hapana does not provide any warranties, representations or guarantees, and has no liability to Customer or any Location, with respect to:

1. the provision of the Payment Services;

2. Stripe, its obligations or the performance of the Stripe Services Agreement; or

3. the security or integrity of any data or information (including Customer Data) that is provided to Stripe by Hapana or by Customer or any Location.

vi. the terms and conditions in these Payment Services Terms are reasonable and required in order for Hapana to provide Customer or the applicable Location with the ability to access and use the Payment Services in accordance with this Agreement and to protect Hapana’s legitimate business interests.

d. Customer and each Location acknowledges and agrees that Customer’s and any Location’s receipt and use of the Payment Services will be subject to these Payment Services Terms and the terms and conditions of the Stripe Services Agreement and Customer and each Location must comply (at their own cost) with these Payment Services Terms and the terms and conditions of the Stripe Services Agreement. Customer further acknowledges that it has reviewed these Payment Services Terms and the Stripe Services Agreement.  

e. Customer represents and warrants that the person that has signed the Agreement on behalf of Customer is of suitable age and is authorized to bind Customer.

f. Customer acknowledges that Hapana can deny access to services with a Location until the Location has reviewed and agrees to comply with and be bound by, these Payment Services Terms and the terms and conditions of the Stripe Services Agreement (including that Stripe is directly providing the Payment Services) prior to receiving or using the Payment Services.

g. Customer warrants to Hapana that it has all consents from each Location that are necessary in order for the Payment Services to be provided in accordance with the Agreement (including these Payment Services Terms) and the Stripe Services Agreement, including to allow Hapana or Stripe to deduct any necessary amounts from Transactions processed in relation to such Location and remitting such amounts to Customer, Hapana or Stripe, as applicable.

h. Before using the Payment Services, Customer and each Location must register with Stripe and create an account in accordance with the Stripe Services Agreement.

i. Customer and each Location hereby authorizes and permits Hapana to:

i. access Customer’s and such Location’s (respectively) account with Stripe and any data (as necessary to allow Stripe to provide the Payment Services and to allow Hapana to arrange for such provision);

ii. create and manage Transactions with Customer’s or such Location’s (respectively) clients; and

iii. deduct amounts (for example, fees for using of the Services or fees owed by such Location to Customer) from funds payable to Customer or such Location from Transactions occurring in connection with the Payment Services.

j. Customer and each Location acknowledge and agree that Hapana will continue to have access to Customer’s and such Location’s account with Stripe and will be authorized to perform any relevant functions described in the Stripe Services Agreement as long as Customer or such Location (respectively) are accessing and/or receiving the Payment Services in connection with the Agreement.  

k. Customer and each Location hereby authorize and permit Stripe to share data with Hapana (as necessary to allow Stripe to provide the Payment Services and to allow Hapana to arrange for such provision) and acknowledge and agree that Stripe will continue to be authorized to share such data as long as Customer or such Location (respectively) are accessing and/or receiving the Payment Services in connection with the Agreement.

l. Customer and each Location agree to provide Hapana with all information (including any personal information) requested by Hapana in connection with the Payment Services (including any information requested on behalf of Stripe) and irrevocably and unconditionally consent and agree that Hapana may share such information with Stripe for the purposes of providing the Payment Services. Customer and each Location must ensure that all such information must be accurate and complete. Customer and each Location must provide all notices to and obtain all necessary rights and consents from the applicable individuals sufficient to enable Hapana and Stripe to lawfully collect, use, retain and disclose the Personal Information in the way that this Agreement, the relevant Location Agreement and the Stripe Services Agreement describe. Customer and each Location warrant and represent that it has all necessary permissions, approvals and consents and has all required notices in place to provide any such information.

m. Customer and each Location acknowledge and agree that Hapana and/or Stripe may refuse to create an account or otherwise limit the functionality of the Payment Services unless and until Customer and/or the applicable Location has provided all information to the satisfaction of Hapana or Stripe in accordance with these Payment Services Terms

‍

3. Fees for Payment Services

‍

a. Customer and each Location are responsible for any charges, penalties, chargebacks, fines or other amounts that may arise as a result of or in connection with the receipt and use of the Payment Services by Customer or such Location, including any such amounts imposed or requested by Stripe or any third party. In the event Customer or any Location becomes aware of any such charges, penalties, chargebacks, fines or other amounts, it must immediately notify Hapana in writing. Customer and each Location must indemnify and hold harmless Hapana for any such charges, penalties, chargebacks, fines or other amounts.

b. Customer and each Location hereby authorizes and expressly permits Hapana and/or Stripe to collect any fees (including any fees related to Payment Services) or other amounts owed to Hapana or Stripe under the Agreement, the relevant Location Agreement or the Stripe Services Agreement directly from (i) any amounts processed; or (ii) any accounts used, by Customer or any Location in the course of utilizing the Payment Services.

c. Customer and each Location acknowledges and agrees that the fees charged by Hapana in connection with the Payment Services includes fees charged by Stripe to Hapana. If Stripe increases its fees in relation to the Payment Services, Hapana may increase the fees payable for the Payment Services accordingly by providing no less than 7 days’ written notice to Customer.

d. Hapana is not responsible for independently assessing or verifying the collection or deduction of any amounts hereunder. If Customer or the Location disputes the collection or deduction by Hapana of any amount in accordance with these Payment Services Terms, Customer or the Location (as applicable) must contact the Customer or Stripe (as the case may be) to resolve such dispute.

e. Hapana may require an owner or principal associated with any Location to sign a personal guarantee in favor of Hapana or Stripe in relation to the Payment Services, including if required by Stripe.

f. Hapana may require (including if required by Stripe) Location to place funds in reserve or to impose conditions on the release of funds in relation to the Payment Services.

g. If a reserve is payable by Customer or any Location, Hapana will provide Customer or the relevant Location with notice of the amount, timing, and conditions upon which the funds in the reserve will be released to Customer or the relevant Location.

h. Customer and each Location represents and warrants to Hapana that any bank account provided by Customer or any Location to Hapana in relation to the Payment Services is (i) located in the same country in which the Customer and/or such Location is domiciled;; and (ii) owned or controlled by Customer or the relevant Location, as applicable.

‍

4. Assistance and Compliance with Stripe Services Agreement

‍

a. Customer and each Location acknowledges and agrees that Hapana may enforce or exercise Stripe’s rights under the Agreement and the Stripe Services Agreement.

b. Customer and each Location must do all things as may be notified by Hapana to Customer and each Location from time to time that are required (as determined by Hapana in its sole discretion) in order for Hapana to comply with its obligations under its agreement with Stripe and to allow for the Payment Services to be provided under the Agreement in accordance with its terms and conditions (including these Payment Services Terms).

c. Customer and each Location hereby authorizes and permits Hapana to receive any necessary notices or forms (including tax invoices) from Stripe in connection with the Payment Services and to provide such notices or forms to Customer or such Location and that Stripe is not required to provide such notices or forms directly to Customer or such Location.  

d. Customer and each Location acknowledge and agree that Stripe may amend the Stripe Services Agreement at any time upon notice to Hapana, Customer and/or such Location (which notice may be provided through email, the relevant account with Stripe, any Stripe dashboard or the Stripe website) and that any such changes will be binding on Customer and such Location seven (7) days after such amendment is made (or a longer period if required by applicable Law). If Customer or any Location does not accept any such amendment, it must notify Stripe and Hapana and immediately cease using the Payment Services. By continuing to use the Payment Services, Customer and each Location agree that it is consenting to any such amendments. Customer and each Location further acknowledge and agree that if Stripe makes any such amendments, then Hapana may be required to (and is entitled) to make any amendments to these Payment Services Terms that are required as a result of such amendments by Stripe.  

‍

5. Use of Payment Services

‍

a. Customer and each Location acknowledge and agree that, as between Hapana, on the one hand, and Customer and each Location, on the other hand, Customer and each Location are solely responsible for:

i. any Activity initiated by or on behalf of Customer or such Location (respectively), using its credentials (including any logins, passwords or API keys);

ii. providing support to any client of Customer or any Location (respectively) regarding:

1. a Transaction; and

2. the products, services, support, returns, refunds, and any other matter related to Customer’s or any Location’s business activities.

b. Customer and each Location represent and warrant that it will not use or knowingly permit the use of the Payment Services in a manner that is fraudulent, unlawful, deceitful or abusive.

c. Customer and each Location agree that it is responsible and liable for all Activity on its accounts with Stripe (respectively), whether initiated by it or not (including any Transaction, and any Disputes, Refunds, Reversals, Claims or Fines (as such terms are defined in the Stripe Services Agreement) associated with such Activity) and use of the Payment Services in a manner that is prohibited by the Agreement (including these Payment Services Terms) and/or the Stripe Services Agreement). Customer and each Location are directly liable to Hapana and Stripe for any of the foregoing, and either Stripe or Hapana may debit these amounts from Customer’s or such Location’s (respectively) account with Stripe.  

d. Customer and each Location acknowledge and agree that where Stripe or Hapana incur any losses based on unauthorized Activity initiated by Customer or such Location (or any of their employees or agents), Customer or such Location (respectively) will be financially liable for such losses and that Stripe or Hapana may (i) deduct such loses from Customer’s or such Location’s account with Stripe or (ii) require Customer or such Location (respectively) to immediately pay such losses.

e. Without prejudice to Customer’s and each Location’s obligations under the Agreement and under the Stripe Services Agreement, Customer and each Location must obey all Laws applicable to its use of the Payment Services and to any Transactions. Customer and any Location must not use the Payment Services to facilitate illegal Transactions or to permit others to use the Payment Services for non-commercial, personal or household purposes.

f. Customer and each Location acknowledges and agrees that Hapana or Stripe may respond to and comply with any legal process it believes to be valid, including by delivering or holding funds or data as required by such legal process. Where permitted by Law, Hapana or Stripe will notify Customer of such legal process. Hapana is not responsible for, and Customer and each Location hereby releases and indemnifies Hapana from, any loss or claim incurred by Customer or any Location arising from Hapana or Stripe’s compliance with any legal process in accordance with this clause.

g. Customer and each Location must not, other than as required by the Stripe Services Agreement, grant or assign to any third party any lien on or interest in funds that may be owed under the Agreement and/or the Stripe Services Agreement until the funds are deposited into Customer’s or the Location’s account (as applicable).

h. Customer and each Location acknowledges and agrees that supply of the Payment Services under the Agreement is subject to the network rules as set out in the Stripe Services Agreement, including such rules provided by Visa, MasterCard, American Express, and Westpac, Cross River Bank, PNC Bank or Wells Fargo Bank (as applicable).

i. Customer and each Location must ensure that it does not use the Payment Services in violation of the Stripe Services Agreement or for any activity that is expressly prohibited by the Stripe Services Agreement (including any activities that are listed on the “Restricted Businesses List” set out in the Stripe Services Agreement) or to export the Payment Services to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List, or any other restricted list.

j. Hapana or Stripe may from time to time notify Customer and the Locations of an update to the Stripe Services Agreement (which may require an update to these Payment Services Terms).

k. Customer and each Location is responsible for filing any Tax Information Report (as that term is defined in the Stripe Services Agreement) in connection with the Payment Services.

l. If Customer or any Location is using the Stripe Tax Services (as defined in the Stripe Services Agreement), Customer and each such Location acknowledge and agree that Customer or Location (as applicable) remains fully responsible for, and Stripe and Hapana disclaim all liability with respect to:

i. its fulfilment of its obligations under Law, including with respect to Taxes (as defined in the Stripe Services Agreement),and  neither Hapana nor Stripe represent or warrant that the Stripe Tax Services will enable the it to fulfill its obligations under any applicable Law;

ii. verifying the effect of any tax Law interpretations upon which the data and reporting Customer or the Location receives through the Stripe Tax Services are based

iii. the accuracy of the Tax calculations the Stripe Tax Services generate, and its obligation to pay any fine, penalty or other sanction imposed by a Governmental Authority (as defined in the Stripe Services Agreement) as a result of these Tax calculations; and

iv. its action, or failure to act, as result of any directions or recommendations it receives related to the Stripe Tax Services.

m. Customer and each Location indemnifies each of Hapana and Stripe from all Taxes and related interest, penalties and fees (if any) imposed on Hapana, Stripe or their respective Affiliates as a result of:

i. Its failure to file any Tax Information Report (as defined in the Stripe Services Agreement); or

ii. the provision of the Payment Services under the Stripe Services Agreement.

n. If Customer or any Location is using the Stripe Terminal Services (as defined in the Stripe Services Agreement), Customer and each such Location acknowledge and agree:

i. to the maximum extent permitted by Law, Stripe and Hapana will not be liable to the Customer or such Location for losses, damages or costs arising out of or relating to the use of a Stripe Terminal Product (as defined in the Stripe Services Agreement) with intermittent, limited or no internet connectivity, including a failure to successfully complete a Transaction (for example, a client swipes a payment card while the Stripe Terminal Product is in “offline” mode, the client departs the place where the Stripe Terminal Product is located, and afterwards an error processing the Transaction occurs or the Transaction is declined for any reason when the Stripe Terminal Product is taken off “offline” mode);

ii. Hapana or Stripe may from time to time provide Customer notice of an update to the Stripe Terminal Services. Such notice will stipulate whether such update is mandatory, optional or discretionary. Customer must install (and must ensure that each Location installs) each mandatory update in relation to the Payment Services by the date or within the time period specified in the relevant notice or, if no time or date is specified, withing 30 days of issuing of the notice by Hapana or Stripe;

iii. if the Location reproduces any part of the Terminal Services Software in accordance with the Stripe Services Agreement, the Location must not reproduce, alter or otherwise deal with any part of the Online Subscription Based Services or the Online Delivery Platform; and

iv. neither Hapana or Stripe will be obligated to provide services or support for any Stripe Terminal Services that rely on a version of the Terminal Services Software (as that term is defined in the Stripe Services Agreement) or Stripe Terminal Product that has not been updated by Customer or the Location (as applicable) in accordance with clause 5.n.ii of these Payment Services Terms.  

‍

6. Information and Data

‍

a. In connection with the Payment Services:

i. Customer and each Location must ensure (and are solely responsible for) the accuracy and completeness of all data and information that it provides to Stripe or Hapana in connection with any onboarding process or any provisioning of an account with Stripe in connection with the Payment Services;

ii. Customer and each Location hereby authorizes and permits Hapana and/or Stripe to retrieve information about Customer and each Location (including personal information) from service providers including credit and information bureaus;

iii. Hapana and/or Stripe may send documents to tax authorities for Transactions processed using the Payment Services, including as required by applicable Law. Customer and each Location acknowledge that Hapana and/or Stripe may be required to file periodic informational returns with taxing authorities in relation to Customer’s or any Location’s use of the Payment Services; and

iv. Customer and each Location hereby authorize and permit Hapana and/or Stripe to use any Customer Data to:

1. provide the Payment Services to Customer and the Location, as the case may be;

2. mitigate and detect fraud and avoid financial loss, or other harm to users, Customer, any Location and Stripe;

3. analyze, develop and improve its products, systems, and tools;

4. develop and operate Stripe’s fraud and verification model for the purposes of identifying fraud; and

5. deliver such Customer Data to Stripe to facilitate the provision of the Payment Services or otherwise in relation to the Stripe Services Agreement;

v. Customer and each Location hereby agree to cooperate with Hapana and Stripe to reduce the risk of fraud or other misuse of the Payment Services, including by providing relevant information to Hapana and Stripe.

vi. Customer and each Location hereby authorize Hapana to deliver Customer Data to Stripe to facilitate the provision of the Payment Services or otherwise in relation to the Stripe Services Agreement, and Customer and Location agree not to withdraw such authorization during the Term; and

vii. Customer and each Location must notify Stripe and Hapana where it becomes aware that any of Customer’s or such Location’s data is accessed or disclosed without permission.

b. Customer and each Location must promptly notify Hapana of any changes affecting Customer or such Location (as applicable), the nature of its business activities, its tax affairs, its representative, beneficial owners, principals or any other pertinent information. Customer must immediately notify Hapana if:

i. it experiences or anticipates experiencing a change of control;

ii. it experiences or anticipates experiencing a material change in its business or financial condition, including if it experiences or is likely to be insolvent;

iii. the regulatory status of the business for which you are using the Payment Services changes, including if it becomes subject, or no longer subject, to regulatory oversight; or

iv. any regulatory body has notified it that it or its business is the subject of investigative action.

c. Customer and each Location warrant and represent that it has all necessary permissions, approvals and consents and has all required notices in place to provide any and all information or data that it provides to Hapana, Stripe and/or any of their affiliates, agents or contractors in connection with these Payment Services Terms or the provision, receipt or use of the Payment Services in order to allow Hapana and Stripe to handle, use, process and transfer such information and data in accordance with the terms and conditions of the Agreement, including these Payment Services Terms.

d. If Hapana or Stripe believes that a compromise of data has occurred on the systems of Hapana, Customer or any Location, Hapana or Stripe may require Customer and each Location to permit an approved third-party auditor to audit the security of Customer’s and each Location’s systems and facilities. Customer and each Location must fully cooperate with all auditor requests for information or assistance. As between Hapana, on the one hand, and Customer and the Locations, on the other hand, Customer and the Locations are responsible for all costs and expenses associated with these audits.

‍

7. Transactions

‍

a. Customer is solely responsible for any losses it (or its Locations) incurs due to:

i. erroneous or fraudulent Transactions in connection with its use of the Payment Services;

ii. lost or stolen payment credentials or accounts being used to purchase products or services from Customer or any Location; or

iii. any error with any Transaction (including any failure to successfully complete a Transaction) arising out of or relating to Customer’s or any Location’s intermittent, limited or defective internet connection, including any Transactions processed in “offline” mode using a Stripe Terminal Product (as that term is defined in the Stripe Services Agreement)..

b. Customer and each Location acknowledges and agrees that Hapana may issue a reversal of any payment made in relation to a Transaction if requested by Stripe if such payment is made in breach of the Stripe Services Agreement (as determined by Stripe in accordance with the Stripe Services Agreement). Customer and each Location agrees that Hapana is not responsible for, and indemnifies and releases Hapana from, any loss or claim arising out of or in connection with any reversal processed by Hapana in accordance with this clause.

c. Customer and each Location must notify Hapana of any error with any Transaction within 30 days of Customer or such Location becoming aware of such error. If Customer or such Location fails to notify Hapana of such an error within this timeframe, Customer or such Location waives its right to make any claim against Hapana or Stripe in relation to the relevant Transaction error.

d. Hapana or Stripe may terminate, refuse, condition or suspend performance of any of the Payment Services, including the processing of any Transactions, if it reasonably believes:

i. Customer or the relevant Location is in breach of the Agreement, including these Payment Services Terms, or the Stripe Services Agreement (or any relevant Stripe policies);

ii. Customer’s or the relevant Location’s activities are listed on the “Restricted Businesses List” set out in the Stripe Services Agreement or otherwise reflect negatively on the brand or reputation of Stripe, Hapana or any of their providers, partners, suppliers or other persons involved in the provision of the Payment Services; or

iii. it or Stripe has obtained conflicting information regarding ownership, control or activity of an account used by Customer or a Location in connection with the Payment Services;

iv. it is required to do so in accordance with an applicable Law or order of a court of competent jurisdiction of governmental authority, without needing to determine whether such Law or order is validly issued or enforceable against Customer or Location (as the case may be);

v. the account with Stripe used by Customer or the relevant Location in the course of utilizing the Payment Services has a negative balance;

vi. Customer or any Location (as applicable) does not do all things required to implement the Payment Services in accordance with Hapana’s or Stripe’s requirements;

vii. Customer or any Location is engaged in a business, trading practice or activity that presents an unacceptable risk to Hapana or Stripe;

viii. Customer or any Location’s use of the Payment Services:

1. is or may be harmful to Hapana, Stripe or any third party;

2. presents a level of credit risk that Stripe deems unacceptable;

3. increases, or may increase, the rate of fraud that Stripe observes; or

4. degrades, or may degrade, the security, stability or reliability of the Payment Services or any of Hapana’s or Stripe’s systems; or

ix. the performance of such Payment Services:

1. may violate the Agreement, including these Payment Services Terms;

2. may cause Customer or any Location to breach the Stripe Services Agreement, including any Transaction limits imposed in relation to Customer’s or such Location’s account with Stripe; or

3. may cause Hapana or Stripe to breach the agreement between Hapana and Stripe.

e. In the event that the account with Stripe used by Customer or the relevant Location in the course of utilizing the Payment Services has a negative balance, Hapana may charge to Customer a negative balance fee of $100.00 per instance.

f. Customer and each Location must maintain appropriate records of all Transactions for a period of at least five (5) years from the date of the relevant Transaction.

‍

8. Termination of the Payment Services

‍

a. Hapana may terminate these Payment Services Terms with respect to Customer or any Location if:

i. Customer or such Location (as applicable) materially breaches these Payment Services Terms, and if such breach is capable of being cured, Customer or such Location fails to cure such breach within 10 days of being notified of the breach; or

ii. Hapana suspends the Payment Services in accordance with clause 7.d of these Payment Services Terms and does not reinstate the Payment Services within 30 days.

b. These Payment Services Terms will terminate immediately upon the termination of the Agreement.  

c. These Payment Services Terms will terminate immediately if Stripe terminates any relevant agreement with Hapana for any reason.

d. These Payment Services Terms will terminate immediately with respect to Customer and any relevant Location:

i. upon termination of the Stripe Services Agreement with Customer or such Location (as applicable) for any reason; or

ii. if Customer’s or such Location’s (as applicable) is closed for any reason or Customer or such Location otherwise fails to maintain a user account as required by the Stripe Services Agreement.

iii. A Location’s right to use the Payment Services will terminate immediately if the applicable Location Agreement is terminated.

‍

9. Effects of Termination of the Payment Services

‍

Upon termination of the Payment Services Terms in accordance with clause 8 of these Payment Services Terms:

a. Customer and each relevant Location must assist Hapana and Stripe to complete all pending Transactions;

b. Customer and each relevant Location must cease lodging, and Stripe will stop processing, any new Transactions through the Payment Services;

c. the provision of the Payment Services (including any relevant licenses from Stripe) will cease; and

d. Stripe may (but has no obligation to) delete all Customer Data provided by Hapana or Customer or any relevant Location to Stripe in connection with the Payment Services and stored on the servers of Stripe within 10 days of such termination.

‍

10. Indemnities and Limitations

‍

a. Without prejudice to Customer’s and each Location’s obligations arising under the Agreement, Customer and each Location must indemnify and hold harmless Hapana and Stripe from any loss or claim arising out of:

i. Customer’s or any Location’s breach of these Payment Service Terms or any corresponding terms in the relevant Location Agreement;;

ii. Customer’s or any Location’s breach of, or failure to enter into (in a binding manner)  or the Stripe Services Agreement

iii. any dispute between Customer or such Location and Stripe (including any disputes arising from use of Customer’s or such Location’s data or an Activity by Customer or such Location (respectively) or its employees or agents);

iv. any Activity, where initiated by Customer or such Location (including any Transaction, or any Disputes, Refunds, Reversals, Claims or Fines (as those terms are defined in the Stripe Services Agreement)) associated with such Activity and use of the Payment Services in a manner that is prohibited by the Agreement (including these Payment Services Terms) and the Stripe Services Agreement);

v. for any taxes and any related interest, penalties and fees in connection with the Payment Services, including any such taxes, related interest, penalties and fees arising as a result of a failure to timely file a Tax Information Report;

vi. any inaccurate or incomplete information provided to Stripe or Hapana as part of the onboarding process. Customer and each Location are directly liable to Hapana and Stripe for any of the foregoing, and either Stripe or Hapana may debit these amounts from Customer’s or such Location’s (respectively) account with Stripe; and/or

vii. any use of the Payment Services in a manner that is illegal or inconsistent with the Agreement (including these Payment Services Terms) and/or the Stripe Services Agreement.

b. Without prejudice to Customer’s obligations arising under the Agreement, Customer and each Location must indemnify and hold harmless Hapana and Stripe from any loss or claim arising out of:

i. Customer’s or such Location’s breach of the warranty given in clause 2.e of these Payment Services Terms; and

ii. Customer’s or such Location’s breach of clause 2.f of these Payment Services Terms.

c. Without limiting any other provision of the Agreement, Customer and each Location acknowledge and agree:

i. that the Payment Services are provided on an “as is” “as available” basis, without any warranties, express, implied or statutory;

ii. the cumulative, aggregate liability with respect to the Payment Services of Hapana and Stripe and their respective employees, agents, providers, partners, suppliers or other persons involved in the provision of the Payment Services is limited to direct damages and in all events will not exceed in the aggregate the greater of (1) the total amount of fees paid by Customer or the relevant Location to Hapana for the Payment Services during the three (3) month period immediately preceding the event giving rise to the claim for liability, and (2) USD $500;

iii. in no event will Hapana or Stripe or their respective employees, agents, providers, partners, suppliers or other persons involved in the provision of the Payment Services:

1. be liable for any lost profits, or any indirect, punitive, incidental, special, consequential, or exemplary damages arising out of, in connection with, or relating to the Payment Services, these Payment Services Terms or the Stripe Services Agreement, including the use of, inability to use, or unavailability of the Payment Services; or

2. have any liability or responsibility for (a) personal injury or property damage, of any nature whatsoever, resulting from use of the Payment Services, (b) damage, loss or injury resulting from hacking, tampering or other unauthorized access to, or use of, the Payment Services, including any unauthorized access to or use of third-party services used in connection with the Payment Services and/or any personal information stored therein; (c) interruption or cessation of the Payment Services, (d) software bugs, viruses, trojan horses or other harmful code that may be transmitted to or through the Payment Services; (e) errors, inaccuracies or omissions of information, or any damage or losses incurred as a result of errors, inaccuracies or omissions, resulting from the use of the Payment Services; (f) information that is transmitted using the Payment Services that is defamatory, offensive or illegal; and/or (g) conduct of any third party; and

d. This clause 10 applies to the maximum extent permitted by law, applies during and after the Term, and applies regardless of the legal or equitable theory on which the claim is based, including contract, tort (including negligence, product liability or otherwise), strict liability or any other basis. The limitations apply even if these losses, damages or costs are foreseeable, and even if any party has been advised of the possibility of such damage.

‍

1.     General

a. These Payment Services Terms are hereby incorporated into and made a part of the Hapana Customer General Terms and Conditions (https://hapana.com/legal/brand-agreement-terms-and-conditions-us) (the “General Terms”) if any Payment Services are provided to Customer or any Location under an SOW and/or the General Terms and continue until termination of the Payment Services in accordance with these Payment Services Terms. Any term not otherwise defined herein has the definition set forth in the General Terms.

b.   In these Payment Services Terms:

“Activity” means any action submitted by or on behalf of Customer or any Location using the Payment Services, including any communication of data or information about Transactions (including any charges or fees), refunds, adjustments, the handling of disputes (including chargebacks) or other relevant features of the Payment Services;

"Agreement” means, as applicable, Customer’s Agreement with Hapana (as defined in the General Terms and including these Payment Services Terms) and/or any applicable Location Agreement.

“Applicable Stripe Terms Table” means the table attached as Annexure 1 to these Payment Services Terms setting out the applicable Stripe entity, Stripe Services Agreement and Stripe Privacy Policy as determined based on the geographic location of the Customer or the relevant Location.

“Stripe” means the relevant Stripe entity as determined based on the geographic location of the Customer and/or the relevant Location as set out in the Applicable Stripe Terms Table.

“Stripe Privacy Policy” means the applicable Stripe privacy policy (including any terms and conditions incorporated by reference therein) as determined based on the geographic location of the Customer and/or the relevant Location as set out in the Applicable Stripe Terms Table, which is referenced and linked in the Stripe Services Agreement.

“Stripe Services Agreement” means the applicable:

i. Stripe terms and conditions (including any services agreement or connected account agreement) as determined based on the geographic location of the Customer and/or the relevant Location as set out in the Applicable Stripe Terms Table;

ii. the Stripe Privacy Policy;

iii. any other terms and conditions that are referenced, or incorporated into, any of the above;

iv. any other terms and conditions that are required by Stripe in connection with using the Payment Services from time to time; and

v. each as updated by Stripe from time to time.

“Transaction” means any purchase, sale, donation, order or other transaction processed using the Payment Services.

‍

2. Provision of Payment Services

‍

a. Hapana reserves the right to change the provider of the Payment Services and these Payment Services Terms at any time in its sole discretion, subject to the terms and conditions of its agreement with the provider of the Payment Services.

b. Subject to Customer’s compliance in full with the terms of the Agreement, including these Payment Services Terms, and (2) each Location’s compliance in full with the terms of the relevant Location Agreement, Hapana agrees to arrange for the provision of the Payment Services by Stripe on the terms and conditions of the Agreement, including these Payment Services Terms, and the Stripe Services Agreement.

c. Customer and each Location acknowledges and agrees that, notwithstanding any provision in the Agreement to the contrary:

i. the Payment Services are provided directly by Stripe and its related bodies corporate via an integration through the Online Delivery Platform and that Hapana’s only obligations with respect to the Payment Services under the Agreement are (1) to maintain an agreement with Stripe to allow Stripe to provide the Payment Services in accordance with the Agreement (including these Payment Services Terms) and the Stripe Services Agreement and (2) maintain such integration;

ii. Hapana is not providing the Payment Services to Customer or any Location;

iii. Customer and each Location have agreed to the Stripe Services Agreement, which has created a direct, binding contractual relationship with Stripe with respect to the Payment Services;

iv. Hapana is not a party to the Stripe Services Agreement; and

v. Hapana does not provide any warranties, representations or guarantees, and has no liability to Customer or any Location, with respect to:

1. the provision of the Payment Services;

2. Stripe, its obligations or the performance of the Stripe Services Agreement; or

3. the security or integrity of any data or information (including Customer Data) that is provided to Stripe by Hapana or by Customer or any Location.

vi. the terms and conditions in these Payment Services Terms are reasonable and required in order for Hapana to provide Customer or the applicable Location with the ability to access and use the Payment Services in accordance with this Agreement and to protect Hapana’s legitimate business interests.

d. Customer and each Location acknowledges and agrees that Customer’s and any Location’s receipt and use of the Payment Services will be subject to these Payment Services Terms and the terms and conditions of the Stripe Services Agreement and Customer and each Location must comply (at their own cost) with these Payment Services Terms and the terms and conditions of the Stripe Services Agreement. Customer further acknowledges that it has reviewed these Payment Services Terms and the Stripe Services Agreement.  

e. Customer represents and warrants that the person that has signed the Agreement on behalf of Customer is of suitable age and is authorized to bind Customer.

f. Customer must ensure and procure that each Location is aware of, has reviewed and agrees to comply with and be bound by, these Payment Services Terms and the terms and conditions of the Stripe Services Agreement (including that Stripe is directly providing the Payment Services) prior to receiving or using the Payment Services. Customer must have clear evidence of this acknowledgment and agreement from each Location, must provide such evidence to Hapana upon request and must ensure that such acknowledgment and agreement is sufficient under applicable Law (including that any person that authorizes the acknowledgement and agreed on behalf of a Location is of suitable age and is authorized to bind such Location).

g. Customer warrants to Hapana that it has all consents from each Location that are necessary in order for the Payment Services to be provided in accordance with the Agreement (including these Payment Services Terms) and the Stripe Services Agreement, including to allow Hapana or Stripe to deduct any necessary amounts from Transactions processed in relation to such Location and remitting such amounts to Customer, Hapana or Stripe, as applicable.

h. Before using the Payment Services, Customer and each Location must register with Stripe and create an account in accordance with the Stripe Services Agreement.

i. Customer and each Location hereby authorizes and permits Hapana to:

i. access Customer’s and such Location’s (respectively) account with Stripe and any data (as necessary to allow Stripe to provide the Payment Services and to allow Hapana to arrange for such provision);

ii. create and manage Transactions with Customer’s or such Location’s (respectively) clients; and

iii. deduct amounts (for example, fees for using of the Services or fees owed by such Location to Customer) from funds payable to Customer or such Location from Transactions occurring in connection with the Payment Services.

j. Customer and each Location acknowledge and agree that Hapana will continue to have access to Customer’s and such Location’s account with Stripe and will be authorized to perform any relevant functions described in the Stripe Services Agreement as long as Customer or such Location (respectively) are accessing and/or receiving the Payment Services in connection with the Agreement.  

k. Customer and each Location hereby authorize and permit Stripe to share data with Hapana (as necessary to allow Stripe to provide the Payment Services and to allow Hapana to arrange for such provision) and acknowledge and agree that Stripe will continue to be authorized to share such data as long as Customer or such Location (respectively) are accessing and/or receiving the Payment Services in connection with the Agreement.

l. Customer and each Location agree to provide Hapana with all information (including any personal information) requested by Hapana in connection with the Payment Services (including any information requested on behalf of Stripe) and irrevocably and unconditionally consent and agree that Hapana may share such information with Stripe for the purposes of providing the Payment Services. Customer and each Location must ensure that all such information must be accurate and complete. Customer and each Location must provide all notices to and obtain all necessary rights and consents from the applicable individuals sufficient to enable Hapana and Stripe to lawfully collect, use, retain and disclose the Personal Information in the way that this Agreement, the relevant Location Agreement and the Stripe Services Agreement describe. Customer and each Location warrant and represent that it has all necessary permissions, approvals and consents and has all required notices in place to provide any such information.

m. Customer and each Location acknowledge and agree that Hapana and/or Stripe may refuse to create an account or otherwise limit the functionality of the Payment Services unless and until Customer and/or the applicable Location has provided all information to the satisfaction of Hapana or Stripe in accordance with these Payment Services Terms

‍

3. Fees for Payment Services

‍

a. Customer and each Location are responsible for any charges, penalties, chargebacks, fines or other amounts that may arise as a result of or in connection with the receipt and use of the Payment Services by Customer or such Location, including any such amounts imposed or requested by Stripe or any third party. In the event Customer or any Location becomes aware of any such charges, penalties, chargebacks, fines or other amounts, it must immediately notify Hapana in writing. Customer and each Location must indemnify and hold harmless Hapana for any such charges, penalties, chargebacks, fines or other amounts.

b. Customer and each Location hereby authorizes and expressly permits Hapana and/or Stripe to collect any fees (including any fees related to Payment Services) or other amounts owed to Hapana or Stripe under the Agreement, the relevant Location Agreement or the Stripe Services Agreement directly from (i) any amounts processed; or (ii) any accounts used, by Customer or any Location in the course of utilizing the Payment Services.

c. Customer and each Location acknowledges and agrees that the fees charged by Hapana in connection with the Payment Services includes fees charged by Stripe to Hapana. If Stripe increases its fees in relation to the Payment Services, Hapana may increase the fees payable for the Payment Services accordingly by providing no less than 7 days’ written notice to Customer.

d. Hapana is not responsible for independently assessing or verifying the collection or deduction of any amounts hereunder. If Customer or the Location disputes the collection or deduction by Hapana of any amount in accordance with these Payment Services Terms, Customer or the Location (as applicable) must contact the Customer or Stripe (as the case may be) to resolve such dispute.

e. Hapana may require an owner or principal associated with Customer or any Location to sign a personal guarantee in favor of Hapana or Stripe in relation to the Payment Services, including if required by Stripe.

f. Hapana may require (including if required by Stripe) Customer or any Location to place funds in reserve or to impose conditions on the release of funds in relation to the Payment Services.

g. If a reserve is payable by Customer or any Location, Hapana will provide Customer or the relevant Location with notice of the amount, timing, and conditions upon which the funds in the reserve will be released to Customer or the relevant Location.

h. Customer and each Location represents and warrants to Hapana that any bank account provided by Customer or any Location to Hapana in relation to the Payment Services is (i) located in the same country in which the Customer and/or such Location is domiciled;; and (ii) owned or controlled by Customer or the relevant Location, as applicable.

‍

4. Assistance and Compliance with Stripe Services Agreement

‍

a. Customer and each Location acknowledges and agrees that Hapana may enforce or exercise Stripe’s rights under the Agreement and the Stripe Services Agreement.

b. Customer and each Location must do all things as may be notified by Hapana to Customer and each Location from time to time that are required (as determined by Hapana in its sole discretion) in order for Hapana to comply with its obligations under its agreement with Stripe and to allow for the Payment Services to be provided under the Agreement in accordance with its terms and conditions (including these Payment Services Terms).

c. Customer and each Location hereby authorizes and permits Hapana to receive any necessary notices or forms (including tax invoices) from Stripe in connection with the Payment Services and to provide such notices or forms to Customer or such Location and that Stripe is not required to provide such notices or forms directly to Customer or such Location.  

d. Customer and each Location acknowledge and agree that Stripe may amend the Stripe Services Agreement at any time upon notice to Hapana, Customer and/or such Location (which notice may be provided through email, the relevant account with Stripe, any Stripe dashboard or the Stripe website) and that any such changes will be binding on Customer and such Location seven (7) days after such amendment is made (or a longer period if required by applicable Law). If Customer or any Location does not accept any such amendment, it must notify Stripe and Hapana and immediately cease using the Payment Services. By continuing to use the Payment Services, Customer and each Location agree that it is consenting to any such amendments. Customer and each Location further acknowledge and agree that if Stripe makes any such amendments, then Hapana may be required to (and is entitled) to make any amendments to these Payment Services Terms that are required as a result of such amendments by Stripe.  

‍

5. Use of Payment Services

‍

a. Customer and each Location acknowledge and agree that, as between Hapana, on the one hand, and Customer and each Location, on the other hand, Customer and each Location are solely responsible for:

i. any Activity initiated by or on behalf of Customer or such Location (respectively), using its credentials (including any logins, passwords or API keys);

ii. providing support to any client of Customer or any Location (respectively) regarding:

1. a Transaction; and

2. the products, services, support, returns, refunds, and any other matter related to Customer’s or any Location’s business activities.

b. Customer and each Location represent and warrant that it will not use or knowingly permit the use of the Payment Services in a manner that is fraudulent, unlawful, deceitful or abusive.

c. Customer and each Location agree that it is responsible and liable for all Activity on its accounts with Stripe (respectively), whether initiated by it or not (including any Transaction, and any Disputes, Refunds, Reversals, Claims or Fines (as such terms are defined in the Stripe Services Agreement) associated with such Activity) and use of the Payment Services in a manner that is prohibited by the Agreement (including these Payment Services Terms) and/or the Stripe Services Agreement). Customer and each Location are directly liable to Hapana and Stripe for any of the foregoing, and either Stripe or Hapana may debit these amounts from Customer’s or such Location’s (respectively) account with Stripe.  

d. Customer and each Location acknowledge and agree that where Stripe or Hapana incur any losses based on unauthorized Activity initiated by Customer or such Location (or any of their employees or agents), Customer or such Location (respectively) will be financially liable for such losses and that Stripe or Hapana may (i) deduct such loses from Customer’s or such Location’s account with Stripe or (ii) require Customer or such Location (respectively) to immediately pay such losses.

e. Without prejudice to Customer’s and each Location’s obligations under the Agreement and under the Stripe Services Agreement, Customer and each Location must obey all Laws applicable to its use of the Payment Services and to any Transactions. Customer and any Location must not use the Payment Services to facilitate illegal Transactions or to permit others to use the Payment Services for non-commercial, personal or household purposes.

f. Customer and each Location acknowledges and agrees that Hapana or Stripe may respond to and comply with any legal process it believes to be valid, including by delivering or holding funds or data as required by such legal process. Where permitted by Law, Hapana or Stripe will notify Customer of such legal process. Hapana is not responsible for, and Customer and each Location hereby releases and indemnifies Hapana from, any loss or claim incurred by Customer or any Location arising from Hapana or Stripe’s compliance with any legal process in accordance with this clause.

g. Customer and each Location must not, other than as required by the Stripe Services Agreement, grant or assign to any third party any lien on or interest in funds that may be owed under the Agreement and/or the Stripe Services Agreement until the funds are deposited into Customer’s or the Location’s account (as applicable).

h. Customer and each Location acknowledges and agrees that supply of the Payment Services under the Agreement is subject to the network rules as set out in the Stripe Services Agreement, including such rules provided by Visa, MasterCard, American Express, and Westpac, Cross River Bank, PNC Bank or Wells Fargo Bank (as applicable).

i. Customer and each Location must ensure that it does not use the Payment Services in violation of the Stripe Services Agreement or for any activity that is expressly prohibited by the Stripe Services Agreement (including any activities that are listed on the “Restricted Businesses List” set out in the Stripe Services Agreement) or to export the Payment Services to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List, or any other restricted list.

j. Hapana or Stripe may from time to time notify Customer and the Locations of an update to the Stripe Services Agreement (which may require an update to these Payment Services Terms).

k. Customer and each Location is responsible for filing any Tax Information Report (as that term is defined in the Stripe Services Agreement) in connection with the Payment Services.

l. If Customer or any Location is using the Stripe Tax Services (as defined in the Stripe Services Agreement), Customer and each such Location acknowledge and agree that Customer or Location (as applicable) remains fully responsible for, and Stripe and Hapana disclaim all liability with respect to:

i. its fulfilment of its obligations under Law, including with respect to Taxes (as defined in the Stripe Services Agreement),and  neither Hapana nor Stripe represent or warrant that the Stripe Tax Services will enable the it to fulfill its obligations under any applicable Law;

ii. verifying the effect of any tax Law interpretations upon which the data and reporting Customer or the Location receives through the Stripe Tax Services are based

iii. the accuracy of the Tax calculations the Stripe Tax Services generate, and its obligation to pay any fine, penalty or other sanction imposed by a Governmental Authority (as defined in the Stripe Services Agreement) as a result of these Tax calculations; and

iv. its action, or failure to act, as result of any directions or recommendations it receives related to the Stripe Tax Services.

m. Customer and each Location indemnifies each of Hapana and Stripe from all Taxes and related interest, penalties and fees (if any) imposed on Hapana, Stripe or their respective Affiliates as a result of:

i. Its failure to file any Tax Information Report (as defined in the Stripe Services Agreement); or

ii. the provision of the Payment Services under the Stripe Services Agreement.

n. If Customer or any Location is using the Stripe Terminal Services (as defined in the Stripe Services Agreement), Customer and each such Location acknowledge and agree:

i. to the maximum extent permitted by Law, Stripe and Hapana will not be liable to the Customer or such Location for losses, damages or costs arising out of or relating to the use of a Stripe Terminal Product (as defined in the Stripe Services Agreement) with intermittent, limited or no internet connectivity, including a failure to successfully complete a Transaction (for example, a client swipes a payment card while the Stripe Terminal Product is in “offline” mode, the client departs the place where the Stripe Terminal Product is located, and afterwards an error processing the Transaction occurs or the Transaction is declined for any reason when the Stripe Terminal Product is taken off “offline” mode);

ii. Hapana or Stripe may from time to time provide Customer notice of an update to the Stripe Terminal Services. Such notice will stipulate whether such update is mandatory, optional or discretionary. Customer must install (and must ensure that each Location installs) each mandatory update in relation to the Payment Services by the date or within the time period specified in the relevant notice or, if no time or date is specified, withing 30 days of issuing of the notice by Hapana or Stripe;

iii. if the Location reproduces any part of the Terminal Services Software in accordance with the Stripe Services Agreement, the Location must not reproduce, alter or otherwise deal with any part of the Online Subscription Based Services or the Online Delivery Platform; and

iv. neither Hapana or Stripe will be obligated to provide services or support for any Stripe Terminal Services that rely on a version of the Terminal Services Software (as that term is defined in the Stripe Services Agreement) or Stripe Terminal Product that has not been updated by Customer or the Location (as applicable) in accordance with clause 5.n.ii of these Payment Services Terms.  

‍

6. Information and Data

‍

a. In connection with the Payment Services:

i. Customer and each Location must ensure (and are solely responsible for) the accuracy and completeness of all data and information that it provides to Stripe or Hapana in connection with any onboarding process or any provisioning of an account with Stripe in connection with the Payment Services;

ii. Customer and each Location hereby authorizes and permits Hapana and/or Stripe to retrieve information about Customer and each Location (including personal information) from service providers including credit and information bureaus;

iii. Hapana and/or Stripe may send documents to tax authorities for Transactions processed using the Payment Services, including as required by applicable Law. Customer and each Location acknowledge that Hapana and/or Stripe may be required to file periodic informational returns with taxing authorities in relation to Customer’s or any Location’s use of the Payment Services; and

iv. Customer and each Location hereby authorize and permit Hapana and/or Stripe to use any Customer Data to:

1. provide the Payment Services to Customer and the Location, as the case may be;

2. mitigate and detect fraud and avoid financial loss, or other harm to users, Customer, any Location and Stripe;

3. analyze, develop and improve its products, systems, and tools;

4. develop and operate Stripe’s fraud and verification model for the purposes of identifying fraud; and

5. deliver such Customer Data to Stripe to facilitate the provision of the Payment Services or otherwise in relation to the Stripe Services Agreement;

v. Customer and each Location hereby agree to cooperate with Hapana and Stripe to reduce the risk of fraud or other misuse of the Payment Services, including by providing relevant information to Hapana and Stripe.

vi. Customer and each Location hereby authorize Hapana to deliver Customer Data to Stripe to facilitate the provision of the Payment Services or otherwise in relation to the Stripe Services Agreement, and Customer and Location agree not to withdraw such authorization during the Term; and

vii. Customer and each Location must notify Stripe and Hapana where it becomes aware that any of Customer’s or such Location’s data is accessed or disclosed without permission.

b. Customer and each Location must promptly notify Hapana of any changes affecting Customer or such Location (as applicable), the nature of its business activities, its tax affairs, its representative, beneficial owners, principals or any other pertinent information. Customer must immediately notify Hapana if:

i. it experiences or anticipates experiencing a change of control;

ii. it experiences or anticipates experiencing a material change in its business or financial condition, including if it experiences or is likely to be insolvent;

iii. the regulatory status of the business for which you are using the Payment Services changes, including if it becomes subject, or no longer subject, to regulatory oversight; or

iv. any regulatory body has notified it that it or its business is the subject of investigative action.

c. Customer and each Location warrant and represent that it has all necessary permissions, approvals and consents and has all required notices in place to provide any and all information or data that it provides to Hapana, Stripe and/or any of their affiliates, agents or contractors in connection with these Payment Services Terms or the provision, receipt or use of the Payment Services in order to allow Hapana and Stripe to handle, use, process and transfer such information and data in accordance with the terms and conditions of the Agreement, including these Payment Services Terms.

d. If Hapana or Stripe believes that a compromise of data has occurred on the systems of Hapana, Customer or any Location, Hapana or Stripe may require Customer and each Location to permit an approved third-party auditor to audit the security of Customer’s and each Location’s systems and facilities. Customer and each Location must fully cooperate with all auditor requests for information or assistance. As between Hapana, on the one hand, and Customer and the Locations, on the other hand, Customer and the Locations are responsible for all costs and expenses associated with these audits.

‍

7. Transactions

‍

a. Customer is solely responsible for any losses it (or its Locations) incurs due to:

i. erroneous or fraudulent Transactions in connection with its use of the Payment Services;

ii. lost or stolen payment credentials or accounts being used to purchase products or services from Customer or any Location; or

iii. any error with any Transaction (including any failure to successfully complete a Transaction) arising out of or relating to Customer’s or any Location’s intermittent, limited or defective internet connection, including any Transactions processed in “offline” mode using a Stripe Terminal Product (as that term is defined in the Stripe Services Agreement)..

b. Customer and each Location acknowledges and agrees that Hapana may issue a reversal of any payment made in relation to a Transaction if requested by Stripe if such payment is made in breach of the Stripe Services Agreement (as determined by Stripe in accordance with the Stripe Services Agreement). Customer and each Location agrees that Hapana is not responsible for, and indemnifies and releases Hapana from, any loss or claim arising out of or in connection with any reversal processed by Hapana in accordance with this clause.

c. Customer and each Location must notify Hapana of any error with any Transaction within 30 days of Customer or such Location becoming aware of such error. If Customer or such Location fails to notify Hapana of such an error within this timeframe, Customer or such Location waives its right to make any claim against Hapana or Stripe in relation to the relevant Transaction error.

d. Hapana or Stripe may terminate, refuse, condition or suspend performance of any of the Payment Services, including the processing of any Transactions, if it reasonably believes:

i. Customer or the relevant Location is in breach of the Agreement, including these Payment Services Terms, or the Stripe Services Agreement (or any relevant Stripe policies);

ii. Customer’s or the relevant Location’s activities are listed on the “Restricted Businesses List” set out in the Stripe Services Agreement or otherwise reflect negatively on the brand or reputation of Stripe, Hapana or any of their providers, partners, suppliers or other persons involved in the provision of the Payment Services; or

iii. it or Stripe has obtained conflicting information regarding ownership, control or activity of an account used by Customer or a Location in connection with the Payment Services;

iv. it is required to do so in accordance with an applicable Law or order of a court of competent jurisdiction of governmental authority, without needing to determine whether such Law or order is validly issued or enforceable against Customer or Location (as the case may be);

v. the account with Stripe used by Customer or the relevant Location in the course of utilizing the Payment Services has a negative balance;

vi. Customer or any Location (as applicable) does not do all things required to implement the Payment Services in accordance with Hapana’s or Stripe’s requirements;

vii. Customer or any Location is engaged in a business, trading practice or activity that presents an unacceptable risk to Hapana or Stripe;

viii. Customer or any Location’s use of the Payment Services:

1. is or may be harmful to Hapana, Stripe or any third party;

2. presents a level of credit risk that Stripe deems unacceptable;

3. increases, or may increase, the rate of fraud that Stripe observes; or

4. degrades, or may degrade, the security, stability or reliability of the Payment Services or any of Hapana’s or Stripe’s systems; or

ix. the performance of such Payment Services:

1. may violate the Agreement, including these Payment Services Terms;

2. may cause Customer or any Location to breach the Stripe Services Agreement, including any Transaction limits imposed in relation to Customer’s or such Location’s account with Stripe; or

3. may cause Hapana or Stripe to breach the agreement between Hapana and Stripe.

e. In the event that the account with Stripe used by Customer or the relevant Location in the course of utilizing the Payment Services has a negative balance, Hapana may charge to Customer a negative balance fee of $100.00 per instance.

f. Customer and each Location must maintain appropriate records of all Transactions for a period of at least five (5) years from the date of the relevant Transaction.

‍

8. Termination of the Payment Services

‍

a. Hapana may terminate these Payment Services Terms with respect to Customer or any Location if:

i. Customer or such Location (as applicable) materially breaches these Payment Services Terms, and if such breach is capable of being cured, Customer or such Location fails to cure such breach within 10 days of being notified of the breach; or

ii. Hapana suspends the Payment Services in accordance with clause 7.d of these Payment Services Terms and does not reinstate the Payment Services within 30 days.

b. These Payment Services Terms will terminate immediately upon the termination of the Agreement.  

c. These Payment Services Terms will terminate immediately if Stripe terminates any relevant agreement with Hapana for any reason.

d. These Payment Services Terms will terminate immediately with respect to Customer and any relevant Location:

i. upon termination of the Stripe Services Agreement with Customer or such Location (as applicable) for any reason; or

ii. if Customer’s or such Location’s (as applicable) is closed for any reason or Customer or such Location otherwise fails to maintain a user account as required by the Stripe Services Agreement.

iii. A Location’s right to use the Payment Services will terminate immediately if the applicable Location Agreement is terminated.

‍

9. Effects of Termination of the Payment Services

‍

Upon termination of the Payment Services Terms in accordance with clause 8 of these Payment Services Terms:

a. Customer and each relevant Location must assist Hapana and Stripe to complete all pending Transactions;

b. Customer and each relevant Location must cease lodging, and Stripe will stop processing, any new Transactions through the Payment Services;

c. the provision of the Payment Services (including any relevant licenses from Stripe) will cease; and

d. Stripe may (but has no obligation to) delete all Customer Data provided by Hapana or Customer or any relevant Location to Stripe in connection with the Payment Services and stored on the servers of Stripe within 10 days of such termination.

‍

10. Indemnities and Limitations

‍

a. Without prejudice to Customer’s and each Location’s obligations arising under the Agreement, Customer and each Location must indemnify and hold harmless Hapana and Stripe from any loss or claim arising out of:

i. Customer’s or any Location’s breach of these Payment Service Terms or any corresponding terms in the relevant Location Agreement;;

ii. Customer’s or any Location’s breach of, or failure to enter into (in a binding manner)  or the Stripe Services Agreement

iii. any dispute between Customer or such Location and Stripe (including any disputes arising from use of Customer’s or such Location’s data or an Activity by Customer or such Location (respectively) or its employees or agents);

iv. any Activity, where initiated by Customer or such Location (including any Transaction, or any Disputes, Refunds, Reversals, Claims or Fines (as those terms are defined in the Stripe Services Agreement)) associated with such Activity and use of the Payment Services in a manner that is prohibited by the Agreement (including these Payment Services Terms) and the Stripe Services Agreement);

v. for any taxes and any related interest, penalties and fees in connection with the Payment Services, including any such taxes, related interest, penalties and fees arising as a result of a failure to timely file a Tax Information Report;

vi. any inaccurate or incomplete information provided to Stripe or Hapana as part of the onboarding process. Customer and each Location are directly liable to Hapana and Stripe for any of the foregoing, and either Stripe or Hapana may debit these amounts from Customer’s or such Location’s (respectively) account with Stripe; and/or

vii. any use of the Payment Services in a manner that is illegal or inconsistent with the Agreement (including these Payment Services Terms) and/or the Stripe Services Agreement.

b. Without prejudice to Customer’s obligations arising under the Agreement, Customer and each Location must indemnify and hold harmless Hapana and Stripe from any loss or claim arising out of:

i. Customer’s or such Location’s breach of the warranty given in clause 2.e of these Payment Services Terms; and

ii. Customer’s or such Location’s breach of clause 2.f of these Payment Services Terms.

c. Without limiting any other provision of the Agreement, Customer and each Location acknowledge and agree:

i. that the Payment Services are provided on an “as is” “as available” basis, without any warranties, express, implied or statutory;

ii. the cumulative, aggregate liability with respect to the Payment Services of Hapana and Stripe and their respective employees, agents, providers, partners, suppliers or other persons involved in the provision of the Payment Services is limited to direct damages and in all events will not exceed in the aggregate the greater of (1) the total amount of fees paid by Customer or the relevant Location to Hapana for the Payment Services during the three (3) month period immediately preceding the event giving rise to the claim for liability, and (2) USD $500;

iii. in no event will Hapana or Stripe or their respective employees, agents, providers, partners, suppliers or other persons involved in the provision of the Payment Services:

1. be liable for any lost profits, or any indirect, punitive, incidental, special, consequential, or exemplary damages arising out of, in connection with, or relating to the Payment Services, these Payment Services Terms or the Stripe Services Agreement, including the use of, inability to use, or unavailability of the Payment Services; or

2. have any liability or responsibility for (a) personal injury or property damage, of any nature whatsoever, resulting from use of the Payment Services, (b) damage, loss or injury resulting from hacking, tampering or other unauthorized access to, or use of, the Payment Services, including any unauthorized access to or use of third-party services used in connection with the Payment Services and/or any personal information stored therein; (c) interruption or cessation of the Payment Services, (d) software bugs, viruses, trojan horses or other harmful code that may be transmitted to or through the Payment Services; (e) errors, inaccuracies or omissions of information, or any damage or losses incurred as a result of errors, inaccuracies or omissions, resulting from the use of the Payment Services; (f) information that is transmitted using the Payment Services that is defamatory, offensive or illegal; and/or (g) conduct of any third party; and

d. This clause 10 applies to the maximum extent permitted by law, applies during and after the Term, and applies regardless of the legal or equitable theory on which the claim is based, including contract, tort (including negligence, product liability or otherwise), strict liability or any other basis. The limitations apply even if these losses, damages or costs are foreseeable, and even if any party has been advised of the possibility of such damage.

‍