Primer API, Merchant Agreement

This agreement (the “Merchant Agreement”) is a legal agreement between Primer API Limited, incorporated and registered in England and Wales with company number 12355212 whose registered office is at 154 Bishopsgate, 2nd Floor, London, England, EC2M 4LN (“Primer”, “us”, “we” or “our”) and the entity (“the Merchant, “you”, or “your”) which registered and set up an account on the Primer API account page.

By registering and setting up your account with Primer you agree to the terms of this Merchant Agreement which will bind you. If you do not agree to the terms of this Merchant Agreement you must not use our Services (as defined below). You should print a copy of this Merchant Agreement for future reference. If you do not understand any of the terms of this Merchant Agreement, please contact us (hello@primer.io) before using the Services.

1. ACCESS TO AND USE OF THE SERVICES

1.1. Primer’s services consists of a single payments integration and unified application programme interface (“API”) which manages the front-end checkout process and backend consolidation of certain payments services (the “Services”). Further details of the operation and functionality of the Services are made available through Primer’s API, User Guide and other associated documentation accessible via Primer’s website or as otherwise provided to you by Primer.

1.2. Subject to your compliance with the terms of this Merchant Agreement, Primer hereby grants you a non-exclusive, non-transferable right, without the right to grant sublicences, to use the Services for your internal business operations.

1.3. In order to you use the Services, you must register and create an account on the Primer website. You must keep a secure password for your use of the Services and keep such password confidential. You must also keep the information in your Primer account accurate and up-to-date.

1.4. You must not:

(a) except as may be allowed by any applicable law which is incapable of exclusion and except to the extent expressly permitted under this Merchant Agreement: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; or (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services;

(b) access all or any part of the Services in order to build a product or service which competes with the Services;

(c) license, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit, or otherwise make the Services available to any third party;(d) attempt to obtain, or assist third parties in obtaining, access to the Services other than as permitted under this Merchant Agreement;

(e) introduce or permit the introduction of any viruses, trojans, worms, logic bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code, into our network and/or information systems; or

(f) use the Services in a manner that could result in a violation of anti-money laundering, counter terrorist financing and similar legal and regulatory obligations (including, without limitation, where we cannot verify your identity or other required information about your business).

1.5. Primer reserves the right, without liability or prejudice to its other rights to you, to disable your access to the Services in the event of a breach of clause 1.4 of this Merchant Agreement.

1.6. You must use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify us.

2. MERCHANT OBLIGATIONS

2.1. You shall:

(a) comply with all applicable laws and regulations with respect to your use of the Services and your activities under this Merchant Agreement;

(b) ensure that your personnel’s use of the Services complies with the terms and conditions of this Merchant Agreement and you shall be responsible for any breach by them of this Merchant Agreement;

(c) obtain and maintain all necessary licences, consents, and permissions necessary for your use of the Services;

(d) implement appropriate technical and organisational security measures in respect of your website, services and customer data; and

(e) ensure that your network and systems are sufficient to enable to you to use the Services.

3. FEES AND PAYMENT

3.1. Primer will provide the Services to you at the rates and for the fees (“Fees”) described in the corresponding agreement.

3.2. Primer may revise the Fees at any time but will provide at least 30 days’ advance notice before revisions become applicable.

3.3. In the event Primer is unable to take payment of the Fees for any reason, without prejudice to its other rights and remedies, Primer may, without liability to you, disable your account and/or access to all or part of the Services and Primer shall be under no obligation to provide any or all of the Services while such Fees remain unpaid.

3.4. Interest shall accrue on a daily basis on any overdue Fees at an annual rate equal to 3% over the then current Bank of England base rate, commencing on the due date and continuing until fully paid, whether before or after judgment.

3.5. You shall be responsible for all taxes, fees and other charges imposed by any governmental authority, including any value added tax, goods and services tax, sales tax and applicable indirect and transactional taxes on the Services provided under this Merchant Agreement.

4. DATA PROTECTION

4.1. As part of its provision of the Services, Primer shall process certain personal data on the Merchant’s behalf acting as the Merchant’s processor. The subject-matter, nature and purpose of the processing shall be the provision of the Services pursuant to this Merchant Agreement. The duration of the processing shall be the duration of your use of the Services. The categories of individuals shall be your customers and the type of personal data shall be as described in the documentation made available to you by Primer. In relation to the foregoing, Primer shall:

(a) process such personal data only on documented instructions from the Merchant, unless required to do otherwise by applicable law, in which case Primer shall, unless legally prohibited from doing so, inform you of such legal requirement; you agree that these terms and your use of the Services in accordance with the available functionality shall constitute your documented instructions;

(b) ensure that persons authorized by it to process such personal data are subject to appropriate obligations of confidentiality;

(c) implement appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of such personal data and against accidental loss or destruction of, or damage to, such personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

(d) notify you without undue delay on becoming aware of a personal data breach affecting such personal data;

(e) assist you, at your expense, with the fulfilment of your obligation to respond to requests for exercising individuals’ rights under applicable privacy and data protection law, together with your obligations regarding data security, notification of personal data breaches to the supervisory authority, communication of personal data breaches to the affected individuals, data protection impact assessments, and prior consultation with the supervisory authority;

(f) at your choice, delete or return all such personal data after the end of the provision of the Services, and delete existing copies unless applicable law requires storage of such personal data; except that the Merchant acknowledges and agrees that Primer may retain data relating to the Merchant’s transactions undertaken using the Services on an anonymous basis;

(g) make available to the Merchant all information necessary to demonstrate compliance with this clause;

(h) allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you provided that (i) Primer shall be compensated for its costs and expenses in relation to such audit, (ii) reasonable advance notice shall be given in respect of any such audit, (iii) any such audit shall only be conducted during Primer’s normal business hours, (iv) any such audit shall be conducted to cause minimal disruption to Primer’s business operations, (v) no access shall be given to Primer’s confidential information or any information relating to other merchants and/or financial data, and (vi) any third party auditor shall enter into confidentiality obligations directly with Primer which are reasonably acceptable to Primer; and

(i) not transfer any such personal data outside of the European Economic Area without ensuring appropriate safeguards in respect of such transfer in accordance with applicable privacy and data protection law.

4.2. You hereby provide your authorisation for Primer to engage other processors to carry out processing activities on your behalf in relation to the Services. Primer will make available to you information regarding any intended changes concerning the addition or replacement of such other processors,4 and give you the opportunity to object to such changes. In the event you do object to any such changes, you shall be entitled to terminate this Merchant Agreement.

4.3. Where Primer engages another processor for carrying out specific processing activities on your behalf, materially equivalent data protection obligations as set out herein shall be imposed on that other processor. Where that other processor fails to fulfil its data protection obligations, Primer shall remain fully liable to you, subject to the limitations and exclusions of liability set out herein, for the performance of that other processor's obligations.

4.4. You must ensure that you have an appropriate lawful basis and all necessary notices in place to enable the lawful transfer of any personal data to Primer for the duration and purposes of this Merchant Agreement.

4.5. Primer may, at any time revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme.

5. PCI COMPLIANCE

5.1. You agree to comply with: (a) the applicable data privacy and security requirements under the Payment Card Industry (“PCI”) Data Security Standard (“DSS”) with regard to your use, access, and storage of cardholder information, and (b) your obligations under any applicable law or regulation as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of cardholder information.

5.2. Primer is certified with PCI-DSS and shall maintain its PCI-DSS certification for the duration of the Merchant Agreement. Primer agrees to comply with its obligations under the PCI-DSS.

5.3. Without prejudice to the generality of the foregoing and/or clause 4 of this Merchant Agreement, but subject to clause 5.4, Primer acknowledges that it is responsible for the security of customer cardholder data it possesses or otherwise stores, processes or transmits on behalf of the Merchant, or to the extent that it could impact the security of the customer cardholder data environment.

5.4. You are responsible for verifying and ensuring that any third party payment processor which you choose to use via the Services: (a) complies with applicable data privacy and security requirements under the PCI DSS; (b) is responsible for the security of customer cardholder data it possesses or otherwise stores, processes or transmits on your behalf; and (c) complies with all applicable laws and regulations as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of cardholder information.

6. THIRD PARTY SERVICES

6.1. You acknowledge that the Services will enable you to access and integrate with the products and services of third parties, such as payment services providers, fraud providers, loyalty and reward platforms, and accounting software (“Third Party Services”).

6.2. Your use of Third Party Services is at your own risk. Primer does not endorse, and makes no representation, warranty or commitment, and shall have no liability or obligation whatsoever in relation to your use of, any Third Party Services.

6.3. Any contract entered into and any transaction completed via any Third Party Services is between you and the relevant third party, and not Primer. 6.4. Your right to use the Services is conditional on your compliance with the applicable third party terms and conditions which apply to your use of the Third Party Services.

7. CUSTOMER TRANSACTIONS

7.1. You may only use the Services for legitimate transactions with your customers. Primer is not responsible for the products or services which merchants (including you) promote or sell. You acknowledge and agree that you are solely responsible for the nature and quality of the products or services you promote and sell, and for any/all delivery, support, refunds, returns, and for any other ancillary services you provide to your customers.

7.2. You further acknowledge and agree that you are responsible for (a) determining whether any transaction undertaken by your customers using the Services is suspicious or accidental and (b) any losses you incur due any such suspicious or accidental transactions in connection with your use of the Services.

8. PROPRIETARY RIGHTS

8.1. You acknowledge and agree that Primer and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this Merchant Agreement does not grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.

8.2. You may choose to or we may invite you to submit suggestions or ideas about improvements to the Service (“Feedback”). If you submit any Feedback to us, we will presume that your Feedback was delivered to us without any restrictions on our use of the same. You also agree that Primer has no obligations or duties to you in connection with any Feedback you submit to us, and that we are free to use your Feedback without any attribution or compensation to you.

9. CONFIDENTIALITY

9.1. Each party may be given access to information that is proprietary or confidential and is either clearly labelled as such or identified as confidential information in this Merchant Agreement (“Confidential Information”).

9.2. A party's Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party;

(b) was in the other party's lawful possession before the disclosure;

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

(d) is independently developed by the receiving party, which independent development can be shown by written evidence.

9.3. Subject to clause 9.5, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Merchant Agreement.

9.4. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Merchant Agreement.

9.5. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

9.6. The above provisions of this clause 9 shall survive termination of this Merchant Agreement for any reason.

10. INDEMNITY

10.1. You shall defend, indemnify and hold harmless Primer against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services, provided that:

(a) you are given prompt notice of any such claim;

(b) Primer provides reasonable co-operation to you in the defence and settlement of such claim, at your expense; and

(c) you are given sole authority to defend or settle the claim.

10.2. Primer shall defend you against any claim that your use of the Services in accordance with this Merchant Agreement infringes any UK patent, copyright, trade mark, or database right, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:

(a) Primer is given prompt notice of any such claim;

(b) you provide reasonable co-operation to Primer in the defence and settlement of such claim; and

(c) Primer is given sole authority to defend or settle the claim.

10.3. In the defence or settlement of any claim, Primer may procure the right for you to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Merchant Agreement on notice to you without any additional liability.

10.4. In no event shall Primer be liable to you to the extent that any alleged infringement is based on:

(a) a modification of the Services by anyone other than Primer;

(b) your use of the Services in a manner contrary to this Merchant Agreement, Primer’s document and/or the instructions given to you by Primer;

(c) your use of the Services after notice of the alleged or actual infringement from Primer or any appropriate authority.

10.5. The foregoing and clause 11 state your sole and exclusive rights and remedies, and Primer’s entire obligations and liability, for infringement of any patent, copyright, trade mark, or database right.

11. DISCLAIMER AND LIMITATION OF LIABILITY

11.1. Except as expressly and specifically provided in this Merchant Agreement: (a) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement, and (b) the Services are provided on an "as is" and “as available” basis. Notwithstanding the generality of the foregoing, Primer does not warrant that: (a) your use of the Services will be uninterrupted or error-free; or (b) that the Services will meet your requirements.

11.2. Primer is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

11.3. Nothing in this Merchant Agreement limits or excludes Primer’s liability for (a) death or personal injury caused by Primer’s negligence; (b) fraud or fraudulent misrepresentation, or (c) any other liability which cannot be limited or excluded by applicable law.

11.4. Subject to clause 11.3, Primer shall not be liable whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, or otherwise for any: (a) loss of profits, (b) loss of business, (c) depletion of goodwill and/or similar losses, (d) loss or corruption of data or information, or (e) any special, indirect or consequential losses, in each case however arising under this Merchant Agreement.

11.5. Subject to clauses 11.1 - 11.4, Primer’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, or otherwise, under or in connection with this Merchant Agreement (including in respect of any indemnity given in this Merchant Agreement), shall be limited to the Fees paid by you during the 3 months immediately preceding the date on which the claim arose.

12. TERM AND TERMINATION

12.1. This Merchant Agreement is effective upon the date you first access or use the Services and continues until terminated by you or Primer.

12.2. You may terminate this Merchant Agreement by closing your account with Primer at any time and ceasing to use the Service.

12.3. We may terminate this Merchant Agreement or close your Account at any time for any reason (including, without limitation, for any activity that may create harm or loss to the goodwill of Primer or any Third Party Service) by providing you advance notice.

12.4. We may also immediately suspend your account with Primer or terminate this Merchant Agreement in the event:

(a) we determine at our discretion that you are present any fraud risk, credit risk, or any other risk;

(b) you use the Services in a prohibited manner or otherwise do not comply with any of the terms of this Merchant Agreement;

(c) we are required to do so by any applicable law or regulatory authority;

(d) you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(e) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or

(f) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under this Merchant Agreement has been placed in jeopardy.

12.5. On termination of this Merchant Agreement for any reason:

(a) all licences and rights granted under this Merchant Agreement shall immediately terminate and you shall immediately cease all use of the Services;

(b) each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;

(c) Primer shall destroy or otherwise dispose of any data relating to your transactions undertaken using the Services in its possession in accordance with clause 4.1(f) except that Primer may retain data relating to your transactions undertaken using the Services on an anonymous basis; 5 and

(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Merchant Agreement which existed at or before the date of termination shall not be affected or prejudiced.

13. CHANGES TO THE SERVICES AND THIS MERCHANT AGREEMENT

13.1. We have the right to change or add to the terms of this Merchant Agreement at any time, and to change, delete, discontinue, or impose conditions on use of the Services by posting such changes on our website or within our documentation.

13.2. We will provide you with notice of any changes either as a notification from within the Services, via email, or through other reasonable means. The changes will come into effect on the date we specify in our notice, and your continued use of the Services after a change has taken effect, constitutes your acceptance of any such changes.

13.3. You can access a copy of the current terms of this Merchant Agreement on our website at any time. The date this Merchant Agreement was last updated is indicated at the bottom of this Merchant Agreement.

14. GENERAL

14.1. The Merchant acknowledges and agrees that Primer shall be entitled to make any public or press announcements, publicise its provision of the Services to the Merchant, and/or refer to the Merchant as a user of the Services on Primer’s website and/or in Primer’s promotional materials, except that any use by Primer of the Merchant’s brand or logo shall be subject to the Merchant’s prior written consent.

14.2. Primer shall have no liability under or in connection with this Merchant Agreement if it is prevented from or delayed in performing its obligations, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, epidemic, pandemic, storm or default of suppliers or sub-contractors.

14.3. No failure or delay by a party to exercise any right or remedy provided under this Merchant Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14.4. If any provision or part-provision of this Merchant Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

14.5. This Merchant Agreement and the documents referred to and incorporated herein constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. The Merchant acknowledges that in entering into this Merchant Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Merchant Agreement.

14.6. You shall not, without Primer’s prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Merchant Agreement.

14.7. Primer may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Merchant Agreement.

14.8. Nothing in this Merchant Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

14.9. This Merchant Agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns).

14.10. Any notice required to be given under this Merchant Agreement shall be in writing or email, or where delivered by Primer may be delivered as a notification from within the Services themselves, and, in the case of post shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes.

14.11. If we have to contact you, we will do so by email or by pre-paid post to the address you provided as part of your account set up.

14.12. Any notice given by us to you will be deemed received and properly served 24 hours after it is first posted on our website or from within the Services themselves, 24 hours after an email is sent, or three days after the date of posting of any letter.

14.13. Any notice given by you to us will be deemed received and properly served 24 hours after an email is sent, or three days after the date of posting of any letter.

14.14. This Merchant Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.

14.15. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Merchant Agreement or its subject matter or formation (including non-contractual disputes or claims).

Date last updated: 05.10.2020

GDPR - List of subprocessors

Please refer to the list below to see the ‘sub-processors’ (i.e. third party vendors) we use to handle data:

Cloud service provider

• Amazon Web Services

Logging and monitoring system

• Datadog

CRM Platform

• Hubspot

Electronic signature software

• Docusign

Video conferencing system

• Zoom

• Tandem

Email - file storage - collaboration tools

• Google

Collaboration tool and database

• Airtable

Collaboration tool

• Slack

• Notion

Project management system

• Jira

Payment Processing on behalf of merchant

• Paypal

• Stripe

• Braintree

• Adyen

• GoCardless

Fraud detection provider

• Sift

MPI Provider

• Cardinal Commerce

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