Legal

AVINODE GROUP GENERAL TERMS AND CONDITIONS

Version 2025.4.23 effective April 23, 2025

1. GENERAL

This document contains terms and conditions (these “General Terms and Conditions”) governing the contractual relationship between Avinode and the Member as created through that certain membership agreement in which these terms are referenced and incorporated therein by reference (as replaced, extended or renewed between the parties from time to time, the “Membership Agreement”) with respect to certain use of the neutral business aviation charter sourcing and marketing system called Avinode Marketplace (the “Marketplace”) and other services to which Member has subscribed (together with the Marketplace, the “Subscribed Services”). In addition, certain products and services available from Avinode are subject to supplemental terms and conditions (“Supplemental Terms”), and in the event the Member has elected to receive any such products and services, such Supplemental Terms also apply. The Membership Agreement must be read in conjunction with these General Terms and Conditions, any applicable Supplemental Terms, and Avinode’s Data Processing Agreement (such agreements, terms, and policies, collectively, this “Agreement”) to form the entirety of the contractual relationship governing the Member’s membership subscription to and use of the Subscribed Services, and all components of this Agreement are binding on the Member. Updates to these General Terms and Conditions may be found on avinodegroup.com (the “Site”) and upon request. Any capitalized terms used but not defined herein shall have the meanings ascribed to them in the Membership Agreement.

2. THE AVINODE SERVICES

2.1 Avinode provides access to the Marketplace via various websites of which the main website is the Site, and as well as via other websites, applications, and platforms that may, from time to time, be included in the Avinode Services (as defined below). The Site and Marketplace are used by Avinode’s members to facilitate the sourcing, reservation, and booking of air charter. Among other things, the Site and Marketplace facilitate the exchange of information, assisting potential booking members to match their needs with what aircraft operating members offer.

2.2 In addition to the Marketplace and other Subscribed Services provided to the Member, Avinode may provide various other services, (as further described in Section 6, below). Avinode’s complete offering of products and services, as modified from time to time, (including the Site, the Subscribed Services, and any other services), are hereinafter referred to as the “Avinode Services”.

3. ACCESS TO THE AVINODE SERVICES

3.1 AUTHORIZED USE

3.1.1 Access to the Subscribed Services is granted to the Member on a membership subscription basis. A valid and effective membership subscription requires a valid Membership Agreement (subject to all of the terms of this Agreement) and a current account balance. Access to the Subscribed Services will be activated once a valid Membership Agreement has been signed by both parties and Avinode has received payment for the first Payment Period (as defined in the Membership Agreement). The Member’s right to use the Subscribed Services is contingent upon the Member’s compliance with all terms of this Agreement and continued timely payment of all fees. The Member may not access or use, and is not authorized to access or use, any Avinode Services other than the Subscribed Services.

3.1.2 The Subscribed Services, as well as the data and information provided through the Subscribed Services, may only be used in support of the Member’s business (and may not be reproduced, sold, rented, or bartered to, or used for the benefit of any third party), subject to the restrictions set forth in this Agreement.

3.2 FEES

3.2.1 Fees for the Subscribed Services will be in the amount(s) set forth in the Membership Agreement, and will be payable as set forth in the Membership Agreement. The Member shall be solely responsible for any taxes, levies, duties, assessments, or other similar changes on the Subscribed Services, other than taxes based on Avinode’s gross income or net receipts. Avinode reserves the right to increase the prices up to three percent (3%) annually in order to account for inflation and general cost increases. Avinode may update the Subscribed Services from time to time to reflect changes in the Subscribed Services (including the addition or removal of any services from the Subscribed Services) and any corresponding fees (including reflecting any increases in the fees due to annual price increases as provided above). Avinode will send an email notice to the Member of any such update, with setting forth the updated Subscribed Services and fees, and if the Member does not notify Avinode within ten (10) business days thereafter of any objection to the updated Subscription Services and Fees, or if the Member submits a payment in conformance with the updated such updates, such updates will be deemed to be accepted by the Member.

3.3 MINIMUM REQUIREMENTS

3.3.1 The Avinode Services are designed for use only with certain supported browsers, and are subject to system limitations and minimum operating specifications. The Avinode Services may not work properly if used with other browsers or if these limitations and specifications are not met. The list of supported browsers can be found on the Site at www.avinode.com/avinode-policies/.

3.4 USER IDS AND PASSWORDS

3.4.1 The Member will be provided with the number of user accounts as specified in the Membership Agreement. User accounts may include credentials for access to specific Subscribed Services as well as general account credentials. The Member may only assign user accounts to its employees and representatives as provided in the Membership Agreement, and employees and representatives to which the Member has assigned user accounts may only use those user accounts in connection with the services they perform for the Member’s benefit. Each user account may only be used by the individual user to which the account is assigned. User accounts may not be shared.

3.4.2 The Member is fully responsible for any and all use of the Avinode Services by anyone using a user account provided to the Member, including ensuring that all such users comply with all terms of this Agreement. All obligations of the “Member” hereunder shall also apply to anyone using, or accessing the Avinode Services through, the Member’s account.

3.4.3 Each user account is associated with a specific user ID, password and email. A user account may only be established with a user email that contains the Member’s company domain and the user name must consist of the individual user’s first and last name. User emails that do not contain the Member’s company domain are not allowed, such as @gmail, @yahoo, @hotmail, etc. Any user account established with an email not containing the Member’s domain, or with a user name that does not consist of the individual user’s first and last name may be suspended or terminated without notice.

3.4.4 Each user ID and each password is confidential and the assigned user may not disclose or share it with anyone else, including other employees or representatives of the Member or individuals outside the Member’s organization, and it may not be used for any unauthorized purpose. The Member will use all reasonable efforts to make sure that employees and representatives who are provided with a user ID and a password undertake to keep such information confidential and the Member will implement adequate security measures to make sure that its user IDs and passwords are not disclosed and/or misused.

3.4.5 The Member agrees that users may receive emails from the Site and may manage their email preferences in the user profile.

4. SUBMISSIONS

4.1 USE AND OWNERSHIP

4.1.1 As between Avinode and the Member, any and all content, data, graphics, images and other information that the Member transmits through the Site, the Marketplace, or other Avinode Services (“Submissions”) shall remain the Member’s sole and exclusive property. The Member shall be solely responsible for its Submissions. By transmitting Submissions through the Site, the Marketplace, or the other Avinode Services, the Member hereby grants Avinode, its affiliates, and its and their successors a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, sub-licensable (through multiple tiers) and transferable license: (a) to use, copy, display, perform, transmit and otherwise distribute the Submissions on and through the Avinode Services, in any and all mediums, now known or hereafter developed, and (b) to create derivative works of the Submissions in order to mask unique identifying data, such as removing the tail number from a submitted photo, and otherwise as reasonably necessary in connection with the operation of the Avinode Services. The Member also grants each user of the Avinode Services a non-exclusive license to access the Submissions through the Avinode Services and to use, copy, display, transmit, or otherwise distribute its Submissions in relation to their use of the Avinode Services. The Member also agrees that Avinode may, without any obligation to the Member, use, copy, adapt, create derivative works of, distribute, and otherwise exploit any feedback that the Member provides to it regarding the Avinode Services.

4.1.2 The Member agrees to only provide Submissions that it has the right to publish and deems suitable for publication on the Site and the Marketplace and that, to the best of the Member’s knowledge, are true, accurate current, complete, and not misleading. Subject to the Data Processing Addendum, any Submission that the Member provides to Avinode will be deemed public information and not subject to any confidentiality obligation, and Avinode shall have no obligation to maintain its confidentiality.

4.1.3 The Member may only provide Submissions with information in the form of text, numbers, pdf documents, and digital photos intended to be read and understood by other members.

4.1.4 The Member agrees to maintain and promptly update Submissions in order to keep information that has been posted or communicated through the Avinode Services true, accurate, current, complete and not misleading. The Member undertakes to continuously provide Avinode, through the Avinode Services, all relevant information about the Member’s business as it relates to the Avinode Services or to the Submissions. Avinode agrees to remove any Submission made by the Member from display through the Avinode Services within a reasonable time period after written request from the Member.

4.1.5 Avinode may remove any of the Submissions from display in its sole discretion, including but not limited to Submissions it deems to be in conflict with these General Terms and Conditions, any other component of this Agreement, or applicable local, state, federal, national, provincial, foreign, and international statutes, treaties, regulations, rules, ordinances, orders, and other laws (each, a “Law”).

4.2 PROCESSING AND USE OF MEMBER AND CLIENT INFORMATION

4.2.1 The primary objective of the Avinode Services is to store, analyze and exchange information. Hence, by using the Avinode Services the Member agrees and acknowledges that Avinode may collect, process, and use information in a variety of ways. Such information includes, but is not limited to, information about the Member or provided by the Member (including name and contact details of the Member’s employees, representatives, and clients), Submissions, information regarding activities on the Site and Marketplace and the use of the Avinode Services, as well as messages sent or received by the Member through the Avinode Services (all information collected from and about the Member being “Member Information”).

4.2.2 Avinode may use, copy, transmit, distribute, sell, transfer, disclose, and display any information provided through Submissions and other Member Information for any purpose in the form of generic statistical data (for the purpose of these General Terms and Conditions, “generic statistical data” means de-identified data and/or anonymized aggregated data, as defined under applicable law(s), gathered from at least three different companies).

4.3 NO PCI COMPLIANCE

4.3.1 Member acknowledges that the Avinode Services and the Site are not PCI compliant, and Members assumes all risk relating to the storage of credit card information in compliance with PCI.

5. ABUSE

5.1 The Member may not, and may not attempt to, enter any form of data, device, software or routine that could pose a threat to the security or functionality of the Avinode Services, including but not limited to HTML, ASP, XML, viruses, trojans, hyperlinks, auto responders, time bombs or cancel bots.

5.2 The Member may not, and may not attempt to, damage or interfere with the functionality, security, or proper working of any of the Avinode Services or surreptitiously intercept or expropriate any system, data or information from any of the Avinode Services.

5.3 The Member may not, and may not attempt to, take any action which imposes an unreasonable or disproportionately large load on any of the Avinode Services, or any infrastructure connected therewith, including but not limited to “spam”, denial of service attacks, unsolicited mass e-mailing and other techniques.

5.4 The Member may not, and may not attempt to, use the Avinode Services for any illegal purpose or in any way that violates any applicable Law or violates, infringes, or misappropriates the rights of any third party.

5.5 The Member may not, and may not attempt to, use the Avinode Services to harass or harm any individual or entity, or to impersonate any person or entity, or misrepresent the Member’s affiliation with any person or entity.

5.6 The Member may not use the Avinode Services any purposes other than those expressly authorized by Avinode, and may not use the Avinode Services for any competing purposes.

5.7 The Member may not, and may not attempt to, engage in any form of data scraping, unauthorized downloading, or hacking aimed at accessing or retrieving data or content from any of the Avinode Services.

5.8 The Member may not, and may not attempt to, reproduce, reverse engineer, decompile, disassemble, modify or create derivative works with respect to any of the Avinode Services or any component of any of them.

5.9 The Member may not, and may not attempt to, download any data sets, directories, or content from any of the Avinode Services in order to use it to create or supplement its own or a third party’s data base or service (except with the express written consent from Avinode).

5.10 Any breach by the Member of this Section 5 shall for all purposes be regarded as a “material breach” of this Agreement.

6. AVINODE SERVICES

6.1 Avinode provides a range of different services to its members, which may from time to time include marketplace services, business analysis services, business management tools, customized mobile and web-based application solutions, and application programming interface access. For additional fees, the Member may elect to include additional Avinode Services not already included in the Subscribed Services. Such additional services require an updated Membership Agreement with separate product and price listings for each additional service subscribed to by the Member. Supplemental Terms may also apply. All payment transactions made by Members through the Marketplace are subject to the Sub-Merchant General Terms and Conditions, which are set forth at https://avinodegroup.com/legal/#paynode-general-terms-and-conditions which are incorporated by reference herein. Once added through an updated Membership Agreement, the term “Service” or “Subscribed Service” as used herein and in the Membership Agreement will include all such additional services, and their use will be governed by the provisions of the Membership Agreement, these General Terms and Conditions, and any such Supplemental Terms.

6.2 Any products and services created by or modified by Avinode at the request of the Member may be made available to other Members by Avinode, without restriction, unless otherwise specifically agreed between Avinode and the Member.

7. CHANGES AND AMENDMENTS

7.1 GENERAL TERMS AND CONDITIONS, SUPPLEMENTAL TERMS

7.1.1 Avinode may update or change these General Terms and Conditions, any Supplemental Terms, and/or the Data Protection Agreement at any time and in its sole discretion, by making updates wherever such terms are made available to Members, or emailing to the Member at the email address the Member has provided to Avinode, a change notice or a revised General Terms and Conditions, Supplemental Terms, and/or Data Protection Agreement available at https://avinodegroup.com/data-privacy/. If any modification is unacceptable to the Member, the Member’s only recourse is to terminate its use of the Avinode Services and to give Avinode a notice of termination in accordance with Section 8. The Member’s continued use of any Avinode Services following the effective date of any revised General Terms and Conditions, Supplemental Terms, and/or Data Protection Agreement that was posted on the Site or emailed to the Member as provided in this Section 7.1.1 will constitute the Member’s binding acceptance of the update or change.

7.2 MEMBERSHIP AGREEMENT

7.2.1 If Member and Avinode agree to any changes to Appendix 2 in the Membership Agreement (Membership Access and Fees), then such changes will take effect and will be binding upon approval in any written form (including, without limitation, email or text message application) from Avinode and confirmation by Member in any written form (including, without limitation, email or text message application).

8. SUSPENSION, CANCELLATION, AND TERMINATION

8.1 Avinode may suspend the Member’s right and license to use any one or more individual Subscribed Services, or may suspend or terminate the right and license of anyone using any of the Member’s user accounts to use any one or more individual Subscribed Services, or may terminate this Agreement in its entirety (and, accordingly, the Member’s and all its account user’s rights to use all Avinode Services), for cause effective immediately upon notice to the Member if any of the following occur, or if Avinode has grounds to suspect any of the following: (i) the Member breaches this Agreement, (ii) the Member or any such user attempts a denial of service attack on any of the Avinode Services; (iii) the Member or any such user attempts to hack or break any security mechanism on any of the Avinode Services or Avinode otherwise determines that the Member’s or any such user’s use of the Avinode Services poses a security or service risk to Avinode, any Avinode affiliate, or any user of any Avinode Services, or may subject any of them or any third party to liability, damages or danger; (iv) the Member or any such user otherwise uses the Avinode Services in a way that disrupts or threatens the Avinode Services; (v) Avinode determines, in its sole discretion, there is evidence of fraud with respect to the Member’s account; (vi) Avinode receives complaints about the Member’s (or any such user’s) use of the Avinode Services from other Members; (vii) the Member or any such user uses any of the Avinode Services or Marks (as defined below) other than as expressly permitted in this Agreement, and, if such use is susceptible of correction, such use has not ceased within ten (10) days after written notice to Member thereof; (viii) Avinode receives notice or otherwise determines, in its sole discretion, that the Member or any such user may be using the Avinode Services for any illegal purpose or in a way that violates applicable Law or violates, infringes, or misappropriates the rights of any third party; (ix) Avinode determines, in its sole discretion, that Avinode’s provision of any of the Subscribed Services to the Member or any such user is prohibited by applicable Law, or has become impractical or unfeasible for any legal or regulatory reason; (x) the Member is in default of any payment obligations under this Agreement; or (xi) subject to applicable Law, upon the Member’s liquidation, commencement of dissolution proceedings, disposal of its assets, failure to continue its business, assignment for the benefit of creditors, or if it becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding; (xii) a Member is not approved or otherwise is not compliant with the Know Your Customer procedures or other compliance requirements pursuant to the Paynode General Terms and Conditions or any other applicable terms and conditions of Avinode Group or a third party; or (xiii) Avinode has reason to believe, in its sole discretion, that the Member may cause Avinode to breach Avinode’s internal risk policy. A breach by the Member of any other agreement entered into with Avinode or any of its affiliates shall be deemed and treated as a breach of a material provision of this Agreement and shall entitle Avinode to the same remedies as if the Member had breached this Agreement. If Avinode has suspended the Member’s rights and license pursuant to this Section 8.1, and such suspension has lasted ninety (90) days, this Agreement shall terminate without any further action by Avinode or notification to the Member.

8.2 The Member may terminate this Agreement or remove any Avinode Service from the Subscribed Services at once in the event that Avinode is in material breach of this Agreement and such breach has not been cured within ten (10) days after written notice thereof (or immediately if such breach is not susceptible of cure).

8.3 Either party may terminate this Agreement in its entirety without cause by providing sixty (60) days’ written notice. The termination will take effect the first (1st) day of the month following the end of the sixty (60) day notice period. In addition, the Member may elect to discontinue receiving any particular Avinode Services set forth in the Membership Agreement from the Subscribed Services by giving Avinode at least ten (10) days written notice, such removal to be effective from the first (1st) day of the month following end of the ten (10) day notice period, except as otherwise provided in the Membership Agreement.

8.4 Upon receipt of a revised version of these General Terms and Conditions, any Supplemental Terms, and/or the Privacy Notice in accordance with Section 7, the Member shall have the right to terminate this Agreement in its entirely or remove any affected Avinode Services from the Subscribed Services as of the Revision Date, provided that Avinode has received the Member’s written termination notice before the Revision Date.

8.5 The first time the Member enters into a Membership Agreement, it may cancel its membership with immediate effect within seven (7) business days of the agreement start date. A request for cancellation must be submitted in writing.

9. EFFECT OF SUSPENSION, MODIFICATION OF SERVICES, TERMINATION, OR EXPIRATION

9.1 Upon suspension of the Member’s use of any Subscribed Services, in whole or in part, for any reason, (i) the Member will remain liable for all fees, charges, and any other obligations with respect to the suspended Subscribed Services; (ii) fees will continue to accrue for any Avinode Services that are still in use by the Member, notwithstanding the suspension; and (iii) all of the Member’s rights with respect to the suspended Subscribed Services shall be terminated during the period of the suspension.

9.2 Upon termination or expiration of this Agreement for any reason: (i) the Member remains liable for all fees, charges and any other obligations incurred through the date of termination or expiration with respect to the Subscribed Services; (ii) all of the Member’s rights under this Agreement and all of the Member’s rights with respect to the Avinode Services shall immediately terminate; and (iii) the rights and obligations of the parties under Sections 4.1.1, 4.2, 5, 9, 10, and 13 through 28 will survive the termination or expiration of this Agreement. No termination or expiration of this Agreement will relieve either party of any liability for any breach of, or liability accruing under, this Agreement prior to termination or expiration.

9.3 Refunds will only be issued for pre-paid future services, subject to any limitations and fee minimums under these General Terms and Conditions and any Supplemental Terms. No refunds will be given for periods that have already passed or with respect to any services that have been rendered. If certain Subscribed Services are terminated but the Membership Agreement remains in effect with respect to any other Subscribed Services, then the amount of any refund will be issued in the form of a credit to the Member’s account and applied to the Member’s next invoice(s).

9.4 To the maximum extent permitted by Law, fees with respect to the first 90 days of any Subscribed Services will remain payable by the Member in the amounts specified in the Membership Agreement, even if the such Subscribed Services are terminated or suspended before the end of the initial 90-day period. The Supplemental Terms for particular Subscribed Services may require additional minimum payments.

9.5 Notwithstanding any other term of this Agreement to the contrary, should a first-time Member choose to cancel within the first seven (7) days of membership, Avinode will issue a refund for any pre-paid amounts, less one month’s fees and any applicable one-time set up fees, and, to the maximum extent permitted by applicable Law, subject to any fee minimums required under any Supplemental Terms.

9.6 Should the Member choose to not renew the Membership Agreement, a refund will be issued to the Member for any pre-paid amounts.

9.7 If the Member terminates this Agreement or removes any Avinode Service from the Subscribed Services for Avinode’s material breach in accordance with Section 8.2, the Member is entitled to a refund of any applicable remaining pre-paid amounts, notwithstanding any fee minimums otherwise required under Section 9.4 or any Supplemental Terms. If Avinode terminates or removes any Avinode Service from the Subscribed Services in this Agreement in accordance with Section 8.1 or for the Member’s material breach in accordance with Section 8.2, no refund will be given.

10. MEMBER’S REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES

10.1 By entering into this Agreement and by using any Avinode Service, the Member represents, undertakes and warrants that upon execution of this Agreement and at all times after that:
(a) the Member is a duly formed and validly existing company, corporation, partnership, sole proprietorship, or similar legal entity under the Laws of its place of business, registration, and formation;
(b) the execution, delivery, and performance of this Agreement is duly authorized by the Member and this Agreement has been duly executed and delivered for and on behalf of the Member by persons authorized to do so;
(c) any person that is provided with a user account, and the user ID and the password associated to such account, has the right and authority to act through the Avinode Services on behalf of the Member;
(d) all information provided by or on behalf of the Member to Avinode or through the Avinode Services, is and will be true, correct and not misleading;
(e) the Member owns and/or has the necessary licenses, rights, consents, and permissions to use and authorize Avinode to use all patent, trademark, trade secret, copyright or proprietary rights in and to any and all Submissions to enable inclusion and use of the Submissions by the Avinode Services;
(f) when submitting any aircraft availability through the Avinode Services with the intent to be displayed to other Members through the Avinode Services, the Member represents and warrants that (i) the relevant aircraft is available for charter as detailed, (ii) the operator of the aircraft has a valid Air Operation Certificate or Part 135 Certificate for that aircraft, and (iii) the registration number provided is valid and relates to the aircraft offered;
(g) the Member shall comply with all applicable Laws, as well as all applicable industry standards, including obtaining all necessary permits and/or approvals, in connection with the performance of its obligations under this Agreement, the use of the Avinode Services, and the marketing, selling and/or operation of charter flights; and
(h) the Member is not insolvent, has not gone into liquidation, has not had a receiver appointed for any or all of its assets, has not entered into receivership, is not declared bankrupt, has not taken general measures to cease payments of its debts, has not entered into negotiations for a general agreement with its creditors, has not entered into composition, reorganization or similar arrangements with its creditors.

11. AVINODE’S REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES

11.1 By entering into this Agreement and by providing the Subscribed Services, Avinode represents, undertakes and warrants that upon execution of this Agreement and receipt of the Membership Fee that:
(a) Avinode is duly incorporated and validly existing under the Laws of its jurisdiction of incorporation; and
(b) the execution, delivery and performance of this Agreement is duly authorized by Avinode and has been duly executed and delivered for and on behalf of Avinode by persons authorized to do so.

11.2 Subject to Section 12, Avinode shall use commercially reasonable efforts to keep the Site and the Marketplace available twenty four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Avinode reserves the right to make the Site, the Marketplace, and the other Avinode Services unavailable from time to time in order to install new releases, to perform maintenance, or to undertake activities to protect or improve the Site, the Marketplace, and the other Avinode Services or the information provided through them. Avinode will make reasonable efforts to notify members in advance of any planned system downtime expected to last more than 30 minutes by posting notices on the Site and/or by sending an e-mail notification to the Member at the e-mail address associated with the Member’s user account(s) that have administrative rights. Avinode does not assume responsibility for unavailability and downtime caused by force majeure or other events and circumstances beyond Avinode’s control, it being understood that failure in the transfer of data, problems inherent in the use of communication facilities and failures caused by any Member not adhering to Avinode’s instructions or policies will always be considered circumstances beyond Avinode’s control.

12. RIGHT TO DISCONTINUE OR MODIFY SERVICES

12.1 Avinode reserves the right to discontinue or suspend providing the Avinode Services, in part or in their entirety, and to modify the Avinode Services or any nature, features, functions, scope, or operation thereof, at any time and from time to time. AVINODE, ITS AFFILIATED ENTITIES, AND ITS AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, AND LICENSORS (COLLECTIVELY, THE “AVINODE PARTIES”) SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY SUCH DISCONTINUANCE, SUSPENSION, OR CHANGES, OR FOR TERMINATING ANY RIGHTS GRANTED HEREIN, REMOVING ANY SUBMISSIONS, OR SUSPENDING, MODIFYING, OR TERMINATING THE MEMBER’S MEMBERSHIP OR THE MEMBER’S ACCESS TO THE AVINODE SERVICES (OTHER THAN WITH RESPECT TO ANY REFUNDS THAT MAY BE PAYABLE IN ACCORDANCE WITH SECTION 9 ABOVE).

13. NO RESPONSIBILITY FOR OTHER MEMBERS, THIRD PARTY CONTENT, OR THIRD PARTY SERVICES

13.1 The Member acknowledges that Avinode is neither a broker nor an operator of charter flights. Avinode is not a party to transactions or contractual arrangements that may arise between its members, even if Avinode facilitates those transactions or arrangements, or the payments related thereto. Because Avinode’s members are independent entities with their own operating policies, procedures and processes, and because they operate independently of Avinode, Avinode cannot and will not control or monitor their actions. Avinode does not investigate or endorse any of its members, their services or the quality or legality thereof, or their ability to pay for services. Any agreements entered into by the Member, anyone using the Member’s user account, the Member’s employees, contractors, and representatives, the Member’s clients, the users of any applications provided by Member for access to the Avinode Services, and all other persons to whom the Member provides access to any Avinode Services (collectively, the “Member Parties”) with any Avinode member or other user of the Avinode Services as a result of the use of the Avinode Services are at the sole discretion and risk of such Member Party, and each Member Party bears the full responsibility for the payment and performance of all agreements entered into with Avinode members and users. Avinode has no responsibility to intervene in any disputes between Member Parties, to terminate or suspend any Member Party’s right to use the Avinode Services based on any complaint by any other Member Party or for any other reason, or to provide contact information for any Member Party to any other Member Party. WITHOUT LIMITING THE GENERALITY OF SECTIONS 14 AND 15 OF THESE GENERAL TERMS AND CONDITIONS, THE MEMBER ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AVINODE PARTIES SHALL NOT BE RESPONSIBLE FOR, AND SHALL NOT INCUR ANY LIABILITY TOWARDS THE MEMBER PARTIES FOR ANY LOSS OR DAMAGE (INCLUDING WITHOUT LIMITATION, FINANCIAL LOSS, LOSS OF BUSINESS, PROPERTY DAMAGE, EMOTIONAL DISTRESS, PERSONAL INJURY, OR DEATH) RESULTING FROM OR ARISING OUT OF: (A) ANY INFORMATION PROVIDED OR ANY REPRESENTATION MADE BY ANY MEMBER OR ANY OTHER AVINODE SERVICES USER (B) ANY AGREEMENTS ENTERED INTO BY ANY MEMBER PARTY WITH A MEMBER OR ANY OTHER AVINODE SERVICES USER; (C) ANY PAYMENTS OWED BY ANY MEMBER OR ANY OTHER AVINODE SERVICES USER TO ANY MEMBER PARTY; OR (D) ANY SERVICES RENDERED BY, OR ANY ACTS OR OMISSIONS OF, ANY MEMBER OR ANY OTHER AVINODE SERVICES USER (INCLUDING WITHOUT LIMITATION ANY AIR CHARTER SERVICES, OR ANY DELAY, ACCIDENT, OR COMPLICATIONS RELATED THERETO), REGARDLESS OF WHETHER AVINODE FACILITATED THE UNDERLYING TRANSACTIONS AND REGARDLESS OF THE BASIS OF SUCH CLAIMS, AND THE MEMBER, ON BEHALF OF ITSELF AND THE OTHER MEMBER PARTIES, HEREBY WAIVES AND RENOUNCES ANY RIGHT IT OR THEY MAY OTHERWISE HAVE TO CLAIM INDEMNIFICATION FROM ANY AVINODE PARTY IN SUCH RESPECT.

13.2 Content available through the Avinode Services includes information, software, and other content provided by the members of Avinode’s services, data providers, and other third parties (“Third Party Content”). In addition, portions of the Avinode Services may allow the Member or other Member Parties to use third party products and services, such as payment services, and may link to other websites operated by, or content provided by, third parties. In addition, other websites may link to the Site or other Avinode Services. These other products, services, websites, and resources are referred to here as “Third Party Services”. Use of Third Party Services is subject to the license agreements, terms and conditions, privacy policies, and other policies and agreements applicable to those Third Party Services. Avinode has no control over any Third Party Content, any Third Party Services, or any content available on or through any Third Party Services, which are made available to the Member or other Member Parties through the Site and other Avinode Services only as a convenience. THE AVINODE PARTIES HAVE NO RESPONSIBILITY FOR, AND WILL HAVE NO LIABILITY ARISING OUT OF OR RELATED TO, ANY THIRD PARTY CONTENT, THE USE OR DOWNLOADING OF ANY THIRD PARTY CONTENT, THIRD PARTY SERVICES, OR THE CONTENTS OF ANY THIRD PARTY SERVICES. THE AVAILABILITY OF ANY THIRD PARTY CONTENT OR THIRD PARTY SERVICES ON THE SITE OR OTHER AVINODE SERVICES IS NOT AN ENDORSEMENT OF SUCH THIRD PARTY CONTENT OR THIRD PARTY SERVICES, THE PROVIDERS OF SUCH THIRD PARTY CONTENT, OR THE OPERATORS OF THOSE THIRD PARTY SERVICES.
13.3 WITH RESPECT TO ANY ISSUES ARISING OUT OF OR RELATING TO ANY THIRD PARTY CONTENT, THIRD PARTY SERVICES, OR ANY AGREEMENTS WITH, SERVICES RENDERED BY, OR ACTS OR OMISSIONS OF ANY MEMBER, ANY OTHER AVINODE SERVICES USER, OR ANY OTHER THIRD PARTY, THE MEMBER HEREBY AGREES, ON ITS OWN BEHALF AND ON BEHALF OF THE OTHER MEMBER PARTIES, TO ONLY SEEK LEGAL REDRESS FROM SUCH OTHER MEMBER, USER, OR THIRD PARTY, AND NOT ANY AVINODE PARTY.

14. DISCLAIMER OF WARRANTIES

14.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SITE AND THE OTHER AVINODE SERVICES IS AT THE MEMBER PARTIES’ SOLE RISK. AVINODE PROVIDES THE SITE, THE AVINODE SERVICES, AND ALL OTHER MATERIALS PROVIDED BY ANY AVINODE PARTY IN CONNECTION WITH THE MEMBER PARTIES’ USE OF THE AVINODE SERVICES “AS IS”, “WHERE IS”, AND “AS AVAILABLE”. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE AVINODE PARTIES MAKE NO WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. THE AVINODE PARTIES DISCLAIM ALL EQUITABLE INDEMNITIES.

14.2 EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE AVINODE PARTIES MAKE NO REPRESENTATION OR WARRANTY THAT: (A) THE AVINODE SERVICES WILL MEET THE MEMBER PARTIES’ REQUIREMENTS, (B) THE INFORMATION, INCLUDING THIRD PARTY CONTENT, AVAILABLE THROUGH THE AVINODE SERVICES WILL BE ACCURATE, TRUTHFUL, COMPLETE, LAWFUL, RELIABLE, OR OF ANY PARTICULAR QUALITY, (C) THE AVINODE SERVICES WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY, OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, TIMELY, ACCURATE, SECURE, ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (D) THAT ANY MESSAGES OR OTHER INFORMATION TRANSMITTED OR PURPORTED TO BE TRANSMITTED THROUGH THE AVINODE SERVICES WILL BE TRANSMITTED TIMELY, ACCURATELY, OR AT ALL.

14.3 NO ADVICE OR INFORMATION OBTAINED BY ANY MEMBER PARTY FROM ANY AVINODE PARTY OR FROM ANY THIRD PARTY OR THROUGH THE SITE OR ANY OTHER AVINODE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

15. LIMITATION OF LIABILITY

15.1 IN NO EVENT SHALL ANY AVINODE PARTY BE LIABLE TO ANY MEMBER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA OR OTHERWISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY AVINODE SERVICES OR THE USE THEREOF, OR ANY OTHER MATERIALS PROVIDED BY ANY AVINODE PARTY IN CONNECTION WITH THE USE OF THE AVINODE SERVICES USE THEREOF, WHETHER BASED IN CONTRACT, WARRANTY, TORT, OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH AVINODE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15.2 The cumulative liability of the Avinode Parties to the Member Parties with respect to this Agreement and the Avinode Services shall in no event exceed an amount corresponding to the Membership Fee (as defined in the Membership Agreement) actually paid by the Member for one year of membership. The cap on liability set forth in the preceding sentence shall not apply to losses or damages caused by the willful misconduct by Avinode, its officers, employees, agents, or representatives.

15.3 The Member acknowledges that it is entering into this Agreement only with the Avinode entity that signed this Agreement and that each Avinode entity is operating on a stand-alone basis, and the Member further acknowledges and agrees that any claims against Avinode shall only be made against the Avinode entity that signed this Agreement (or such Avinode group entity to which this Agreement has been transferred or assigned in accordance with Section 24). Avinode expressly disclaims and renounces any form of cross guaranties or similar intra-group responsibility between any Avinode entities, which the Member acknowledges by entering into this Agreement with the contracting Avinode entity only.

16. EXCLUSIONS AND LIMITATIONS

16.1 Some jurisdictions do not allow the limitation of certain warranties or the limitation or exclusion of liability for indirect, consequential, incidental, special, punitive, or exemplary damages. Accordingly, some or all of the above exclusions or limitations may not apply to the Member Parties. To the extent the Avinode Parties may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of liability of the Avinode Parties shall be the minimum permitted by applicable Law.

17. INDEMNIFICATION

17.1 SUBJECT TO THE LIMITATIONS SET FORTH IN THESE GENERAL TERMS AND CONDITIONS, THE MEMBER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE AVINODE PARTIES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, EXPENSES, AND DAMAGES, INCLUDING WITHOUT LIMITATION, FINANCIAL LOSS, LOSS OF BUSINESS, PROPERTY DAMAGE, EMOTIONAL DISTRESS, PERSONAL INJURY, OR DEATH, (INCLUDING ATTORNEY’S FEES) RESULTING FROM: (A) ANY AND ALL BREACHES OF ANY PROVISIONS OF THIS AGREEMENT BY ANY MEMBER PARTY, (B) ANY AND ALL USE OR MISUSE OF THE AVINODE SERVICES BY ANY MEMBER PARTY, AND (C) ANY AND ALL SERVICES RENDERED BY, OR ANY ACTS OR OMISSIONS OF, ANY MEMBER PARTY (INCLUDING WITHOUT LIMITATION ANY AIR CHARTER SERVICES, OR ANY DELAY, ACCIDENT, OR COMPLICATIONS RELATED THERETO).

18. OWNERSHIP

18.1 Nothing in this Agreement shall mean that any of Avinode’s ownership, intellectual property rights, license rights, or the like, or part thereof, is assigned, sub-licensed or transferred to the Member.

18.2 With respect to ownership of data and information on the Site and available through the other Avinode Services, each member only owns the information provided through its own Submissions, subject to the provisions of Section 4. As between the Member and Avinode, all other data, source code, and any other code and information are owned by Avinode.

18.3 “Avinode,” the Avinode logo, “SchedAero”, “PayNode” and other names, logos, and materials displayed on the Site and the other Avinode Services constitute trademarks, trade names, service marks, and logos (each, a “Mark”) of Avinode, its affiliates, licensors, or other entities. Ownership of the Marks and the goodwill associated with the Marks remains with Avinode or those other persons or entities. Avinode grants the Member the limited right to display the Marks solely as they appear on the Subscribed Services and the components thereof. The Member agrees not to remove any Marks or any other proprietary notices from any components of any Avinode Services.

19. INFRINGEMENT CLAIMS

Avinode respects the intellectual property rights of others. Accordingly, Avinode has a policy of removing Third Party Content that violates copyright, trademark, or other intellectual property Laws, and in certain cases suspending access to all or any portion of the Avinode Services to a member who uses the Avinode Services in violation of any such Law and/or terminating in appropriate circumstances access to the Avinode Services and the user account of a member who uses the Avinode Services in violation of any such Law. Avinode has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with Title 17 of the United States Code, Section 512. If the Member or any other person believes its copyright, trademark, or other intellectual property right is being infringed by a member or other user of any of the Avinode Services, it may provide written notice to the following agent for notice of claims of infringement:

Chief Financial Officer

Avinode Share Services AB
Västra Hamngatan 12, SE-411 17 Gothenburg, Sweden
Attn: DMCA
Tel: +46 31 751 0000
Fax: +46 31 751 0098
Email: [email protected]

The written notice must: (a) contain the physical or electronic signature of the claimant; (b) identify the copyrighted work, trademark, or other intellectual property alleged to have been infringed; (c) identify the allegedly infringing material in a sufficiently precise manner to allow Avinode to locate that material; (d) contain adequate information by which Avinode can contact the claimant (including postal address, telephone number, and e-mail address); (e) contain a statement that the claimant has a good faith belief that use of the copyrighted material, trademark, or other intellectual property is not authorized by the owner, the owner’s agent, or the Law; (f) contain a statement that the information in the written notice is accurate; and (g) contain a statement, under penalty of perjury (in the case of a claim of copyright infringement), that the claimant is authorized to act on behalf of the copyright, trademark, or other intellectual property right owner.

20. CONFIDENTIALITY

20.1 The parties undertake to keep confidential the terms of the Membership Agreement, including but not limited to information regarding prices, service levels, and payment terms.

20.2 Notwithstanding Section 20.1, the parties may disclose any information that it is otherwise required to keep confidential under this clause:
(a) to such employees, professional advisers, consultants or officers of either party as are reasonably necessary to advise either party in relation to the Membership Agreement, if the disclosing party ensures that the people to whom the information is disclosed keep it confidential as if they were themselves bound by these provisions; or
(b) to the extent that the disclosure is required:
(i) by Law; or
(ii) by a regulatory body, tax authority, or securities exchange; or
(iii) to make any required filing with, or obtain any authorization from, a regulatory body, tax authority or securities exchange; or
(iv) to protect either party’s interest in any legal proceedings.
The parties shall in each case set forth in subsection (b) above use reasonable endeavors to consult the non-disclosing party and take into account any reasonable requests the non-disclosing party may have in relation to the disclosure before the disclosing party makes it.

20.3 This Section 20 shall survive termination or expiration of the Membership Agreement and remain in effect for a period of two (2) years thereafter.

21. EXPORT CONTROL AND RESTRICTED COUNTRIES

The Member may not use, export, re-export, import, or transfer any Avinode Services except as permitted under all applicable Laws. In particular, but without limitation, no Avinode Service may be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. The Member represents and warrants that (i) no Member Party is resident or citizen of, and no aircraft listed by any Member Party is located or registered in, a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) no Member Party is listed on any U.S. Government list of prohibited or restricted parties. No Member Party may use any Avinode Services for any purpose prohibited by U.S. Law or any other applicable Law.

22. LEGAL STATUS

Avinode and the Member are both independent contractors. No agency, partnership, joint venture or any other relationship of such kind is intended or created by the Member’s entry into this Agreement or the Member’s use of the Avinode Service, or the information exchanged by such means.

23. ENTIRETY OF THE AGREEMENT

Both parties confirm that this Agreement, consisting of these General Terms and Conditions, the Membership Agreement, any Supplemental Terms, and the Data Protection Agreement, represent the entire understanding and constitute the entire agreement between the parties in relation to its subject matter, and supersedes all prior agreements, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, agent, employee, or representative of either of the parties.

24. ASSIGNMENTS

24.1 Avinode may assign this Agreement to any other entity that, at the time of such assignment, either directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Avinode.

24.2 The Member may not assign this Agreement to any other party without the prior written consent of Avinode, such consent not to be unreasonably withheld or delayed.

25. ELECTRONIC COMMUNICATIONS NOTICE

When the Member uses the Avinode Services or send emails to Avinode, the Member is communicating with Avinode electronically. The Member consents to receiving communications from Avinode electronically (such as by email or by posting notices on the Site). The Member agrees that all agreements, notices, disclosures, and other communications that Avinode provides to the Member electronically satisfy any legal requirement that such communications be in writing. In order to access any such communications, the Member must have a computer or mobile device. In order to retain copies of any such communications, the Member must have a printer or data storage device. If the Member has a printer, it may print paper copies of any such communications for its own use. In addition, the Member hereby consents to Avinode sending it email or other communications related to the Avinode Services from time to time. If the Member wishes to withdraw its consent for Avinode to communicate with it electronically, it must terminate its use of the Avinode Services and all of its users accounts.

26. INTERPRETATION

26.1 The headings of these General Terms and Conditions, and the other components of this Agreement, are for convenience only and shall not affect the interpretation of any provision of this Agreement.

26.2 The provisions of this Agreement shall be construed according to their fair meaning and neither for nor against the party which caused such provisions to be drafted.

26.3 In the event of conflict between the provisions of the Membership Agreement and these General Terms and Conditions, the provisions of the Membership Agreement shall prevail.

27. PARTIAL INVALIDITY AND WAIVER

27.1 If any provision of these General Terms and Conditions or any other component of this Agreement, or the application of them, is declared or deemed void, invalid or unenforceable in whole or in part for any reason, the parties shall amend these General Terms and Conditions and/or such other component of this Agreement, as shall be necessary to give effect to the spirit and purpose of these General Terms and Conditions and the other components of this Agreement, as far as possible. If the parties fail to amend these General Terms and Conditions and/or such other component of this Agreement, the provision which is void, invalid, or unenforceable shall be deleted and the remaining provisions of these General Terms and Conditions and the other components of this Agreement shall continue in full force and effect.

27.2 Waiver by one party of strict performances of any provision of these General Terms and Conditions or any other component of this Agreement will not be a waiver of or prejudice to such party’s right to require strict performance of the same provision in the future or of any other provision.

28. GOVERNING LAW AND DISPUTES

28.1 If the Avinode entity that signed this Agreement is Avinode, Inc., then the following shall apply: This Agreement shall be interpreted and construed according to, and governed by, the substantive Laws of the state of New York, excluding any such Laws that might direct the application of the Laws of another jurisdiction. Any controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The number of arbitrators shall be one. The seat of arbitration shall be New York City, New York, USA. The language to be used in the arbitral proceedings shall be English. The parties agree that no depositions may be taken in the arbitral proceedings and that the controversy or claim will be decided upon submission of documents without oral hearing.

28.2 If the Avinode entity that signed this Agreement is Avinode AB, then the following shall apply: This Agreement shall be interpreted and construed according to, and governed by, the substantive Laws of Sweden, excluding any such Laws that might direct the application of the Laws of another jurisdiction. Any controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English.

28.3 If for any reason the provisions of Section 28.1 or 28.2 are unenforceable, then the Member agrees that: This Agreement shall be interpreted and construed according to, and governed by, the substantive Laws of the Member’s jurisdiction, excluding any such Laws that might direct the application of the Laws of another jurisdiction. Any controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the rules of an internationally-recognized arbitral body, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The seat of arbitration shall be Stockholm, Sweden or the country in which the member is located. The language to be used in the arbitral proceedings shall be English, except as prohibited by applicable Law.

28.4 Except as may be required by applicable Law, neither party nor their respective representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

28.5 AVINODE AND THE MEMBER EACH AGREE THAT EACH OF THEM, AND EACH OF THE AVINODE PARTIES AND MEMBER PARTIES, MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER OR IN ANY REPRESENTATIVE CAPACITY OR PROCEEDING.

28.6 The United Nations Convention on the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement.

28.7 The Member acknowledges that a breach of any of the provisions of the Membership Agreement or Sections 3, 5, 10, 17, 18, 20, or 21 of these General Terms and Conditions, or use of the Avinode Services other than as expressly authorized, is likely to cause Avinode immediate and irreparable harm, loss or damage, and the Member therefore agrees that Avinode shall be entitled to seek injunctive relief against the Member with respect to any such breach, without requirement to post bond.

BUSINESS INTELLIGENCE GENERAL TERMS AND CONDITIONS

Terms and conditions

  1. This report is provided for information and analysis purposes only and no representation, warranties or other assurances, express or implied, are given as to the quality, accuracy, or completeness of the information contained in, or provided in connection with the report.
  2. Recipients of this report must determine for themselves whether any matters referred to are suitable for their purposes.
  3. Neither Avinode AB nor any of their affiliates, agents, partners, representatives, consultants or any other company, firm or organisation involved in producing this report, nor any of their successors or assign or any employees, officer or director of any of them shall have any liability with respect to the use or reliance on the report by any person, irrespective of any negligence, omission or default, on the part of the foregoing persons.
  4. Any reproduction or publication of this report, in whole or in part, is strictly forbidden without the written consent of Avinode AB.

These Terms and Conditions shall be interpreted and, construed in accordance with the substantive laws of Sweden, without regard to its conflict of court principles. Any dispute, controversy or claim arising, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC Institute”). The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC Institute, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, at its discretion, that the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one (1) or three (3) arbitrators. The seat of the arbitration shall be Gothenburg, Sweden, and the language shall be English.

PAYNODE GENERAL TERMS AND CONDITIONS
(2021 – Adyen, American Express & Currency Cloud)

Version 2021.12.08

The following terms govern the use of the Paynode Services (as defined below) which allow the sub-merchant (“Sub-Merchant”) to execute Payment Transactions (defined below) through the Paynode Platform (as defined below) and receive payment for air charters and related services processed through the Paynode Platform, and constitute the general terms and conditions (“Paynode General Terms and Conditions”) of Paynode AB and its Affiliates (each such company, as applicable, referred to herein as “Paynode”). These Paynode General Terms and Conditions shall constitute a binding agreement between Paynode and Sub-Merchant, and shall govern all matters relating to the Paynode Services (as defined below) by Sub-Merchant from, or through any arrangement made by Paynode. Sub-Merchant accepts these Paynode General Terms and Conditions by either (i) submitting an application for the Sub-Merchant Onboarding Process to Paynode or (ii) using the Paynode Services. For purposes of these Paynode General Terms and Conditions, each of Paynode, and Paynode and Sub-Merchant, individually, constitute a “Party” and, collectively, the “Parties”.

  1. Defined Terms.
    1. Adyen” means Adyen-N.V., a provider of payment processing and acquiring services that enables Paynode to offer the use of the Adyen Services as an integrated payment solution on the Paynode Platform to enable Sub-Merchants to offer various payment methods to their customers to pay for goods or services of Sub -Merchant.
    2. “Adyen MarketPay Terms and Conditions” means the general terms and conditions for the Adyen Services and the Adyen Prohibited and Restricted Services and Products List to be accepted and agreed by Sub-Merchants during the Sub-Merchant Onboarding Process.
    3. Adyen Services” means the services provided by Adyen to Sub-Merchants relating to Payment Transactions.
    4. Affiliates” means any entity that controls, is controlled by, or is under common control with a Party.
    5. Applicable Law” shall mean (A) the Scheme Rules, (B) any and all applicable foreign, federal, provincial, state or local laws, treaties, rules, regulations, regulatory guidance, directives, policies, orders or determinations of (or agreements with), and mandatory written direction from (or agreements with), any foreign, federal, provincial, state or local government agency or other Regulatory Authority, as each of the foregoing may be amended and in effect from time to time.
    6. Beneficiary Payment” means funds sent by a Sub-Merchant to another entity outside of the Paynode Platform.
    7. Card” means the credit/debit cards authorized for Payment Requests by Payers.
    8. Compromised Data Event” shall mean any actual or potential loss, unauthorized disclosure, theft or compromise of Payer data or Card transaction information.
    9. Currencycloud” means The Currency Cloud Group Limited and its Affiliates, a provider of payment services that enables Paynode to offer the use of the Currencycloud Services as an integrated payment solution on the Paynode Platform to enable Sub-Merchants to offer various payment methods to their customers to pay for goods or services of a Sub -Merchant.
    10. Currency Accounts” mean online virtual named bank accounts that belong to the Sub-Merchant that are provided as part of the Currencycloud Services and accessible through the Paynode Platform.
    11. Currencycloud Services” means the services provided by Currencycloud to Sub-Merchants relating to Payment Transactions.
    12. Currencycloud Terms and Conditions” means the general terms and conditions for the Currencycloud Services (https://onboarding.paydirect.io/paynode/terms_and_conditions) to be accepted and agreed by Sub-Merchants during the Sub-Merchant Onboarding Process, as well as the Currencycloud Non-Permitted Activity (described here: https://support.currencycloud.com/hc/en-gb/articles/360017472339-Non-permitted-activity) and Currencycloud Permitted Jurisdictions (described here: https://help.avinodegroup.com/hc/en-us/articles/7215349269019-KYB-Country-Requirements).
    13. “EFT Process” means the process through which Paynode automatically deducts funds from Sub-Merchant’s bank account by means of Electronic Funds Transfer.
    14. Emergency Suspension Event” shall mean an immediate regulatory change, governmental action, a breach of security, requirement of Adyen or a Scheme Owner, the financial insolvency of a Party, the appointment of a receiver, trustee or fiduciary over any Party, or any other reason determined by Paynode using its commercially reasonable judgment in order to prevent fraud, abuse, or a violation of Applicable Law.
    15. “FX Conversion” means the conversion of one country’s currency into another.
    16. Instant Payment” is the means by which a Sub-Merchant, through the Paynode Platform, defines and sends a payment for the applicable Sub-Merchant Services to another Sub-Merchant on the Paynode Platform, using the Currencycloud Services.
    17. Operating Procedures” shall mean any operating procedures, Scheme Owner Rules or policies and procedures issued and as amended by the Scheme Owner or Paynode, including e.g., www.americanexpress.com/merchantopguide.
    18. Payer” means a person who has authorized a Payment Request to Sub-Merchant or a Sub-Merchant who sends an Instant Payment.
    19. Payer Funds” means those funds that have been tendered by, or on behalf of, a Payer to Adyen in connection with a Payment Request for Sub-Merchant Services.
    20. Payment Provider Services” means the combined Adyen Services and Currencycloud Services.
    21. Payment Request” is the means by which a Sub-Merchant, through the Paynode Platform, defines the applicable Sub-Merchant Services for which it initiates a Payment Transaction.
    22. Payment Solution Providers” means Adyen and Currencycloud combined.
    23. Payment Transaction” means the use of a Card, Instant Payment or Beneficiary Payment to facilitate a payment to Sub-Merchant for Payer’s use of Sub-Merchant Services, as well as the ability to do FX Conversions.
    24. Paynode Platform” means a Web-based program to facilitate payment between Payers and Sub-Merchants and payments between Sub-Merchants for Sub-Merchant Services.
    25. Paynode Services” means the services and solutions provided by Paynode and its Affiliates in connection with the provision of the Paynode Platform that enables Adyen to provide the Adyen Services and Currencycloud to provide Currencycloud Services.
    26. Regulatory Authority” means any federal, provincial or state regulator of banking or financial services and any governmental agency or other enforcement agency (domestic, international or multi-national) having jurisdiction over any of the Parties or any of the services to be provided hereunder.
    27. Scheme Owners” means the entity who regulates and provides a specific payment method (e.g. Visa, MasterCard, American Express).
    28. Scheme Rules” means the collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Scheme Owners as may be amended or supplemented over time and with which Sub-Merchants must comply with when using the relevant payment method, including, without limitation, applicable PCI DSS security requirements imposed by the Scheme Owners.
    29. Sub-Merchant Funds” shall mean those Payer Funds less any applicable Paynode fees that are received by Adyen and are paid or payable to Sub-Merchant in accordance with the Paynode General Terms and Conditions.
    30. Sub-Merchant Onboarding Process” means the onboarding process to be concluded with each Sub-Merchant to qualify for the use of the Adyen Services and the Currencycloud Services, which includes the submission of the registration details of the Sub-Merchant for KYC or KYB check and the acceptance by the Sub-Merchant of the Adyen MarketPay Terms and Conditions and the Currencycloud Terms and Conditions when registering with Paynode for the Adyen Services.
    31. Sub-Merchant Services” means the private air charter and related services offered by Sub-Merchant to Payer and authorized passengers in connection with private air charter that Sub-Merchant makes available to its customers.

 

  1. Services and Responsibilities.
    1. Paynode Services. Subject to these General Terms and Conditions, Paynode shall provide to Sub-Merchant the Paynode Services.  Sub-Merchant acknowledges Paynode will have access to Sub-Merchant’s transaction data for the purpose of providing Payers customer support, reporting and other services as set forth herein.  Sub-Merchant agrees to provide Paynode with any information reasonably requested in order for Paynode to provide the Paynode Services. Paynode will provide first line support for the Payment Provider Services. Inquires can be sent to [email protected].
    2. Processing Services. Subject to the terms of these Paynode General Terms and Conditions, Paynode shall provide to Sub-Merchant access to the Payment Provider Services.  Sub-Merchant agrees to provide Paynode  with any information reasonably requested in order for Paynode to provide the Payment Provider Services. Sub-Merchant acknowledges and agrees that the Adyen Services are performed by Adyen and that the Currencycloud Services are performed by Currencycloud and that the Sub-Merchant’s use of the Payment Provider Services is subject to their respective terms and conditions. Sub-Merchant acknowledges and agrees that Paynode will be designated as an authorized representative of Sub-Merchant towards Adyen and Currencycloud with respect to the use by Sub-Merchant of the Payment Provider Services and as such authorized by the Sub-Merchant to access and use the data of the Sub-Merchant processed by the Payment Solution Providers.
    3. AML/KYC Screening and Compliance.
      1. Paynode’s acceptance of Sub-Merchant is subject to Paynode’s due diligence and approval of Sub-Merchant in accordance with Paynode’s compliance policies and procedures (i) prior to and as a prerequisite of Sub-Merchant’s use of the Paynode Services, and (ii) at Paynode’s request at any time as a prerequisite of Sub-Merchant’s continued use of the Paynode Services. If Paynode determines in its sole discretion that Sub-Merchant is not eligible to continue using the Paynode Services, Paynode shall notify Sub-Merchant and Sub-Merchant shall, at its sole cost and expense, immediately take such corrective action that is necessary to satisfy Paynode’s due diligence requirements, unless the deficiencies identified by Paynode’s due diligence by their nature cannot be corrected.
      2. Paynode shall have the right to suspend, modify or discontinue, either temporarily or permanently, the Paynode Services as necessary: (i) if Sub-Merchant breaches these Paynode Terms and Conditions or any Payment Solutions Providers’ terms and conditions, (ii) to comply with Applicable Law (including upon the direction of any Regulatory Authority); or (iii) in the event of an Emergency Suspension Event, or (iv) as directed by a Scheme Owner (including, without limitation, by American Express when required in accordance with Section 13 of the American Express Merchant Regulations).  Sub-Merchant agrees that Paynode shall not be liable to Sub-Merchant or to any third party for any such necessary modification, suspension or discontinuance of the Paynode Services.
      3. To comply with the Scheme Rules and to be allowed to use the Payment Provider Services, each Sub-Merchant will contract directly with Adyen and Currencycloud and undergo a know your customer (“KYC”, or “KYB”) and anti-money laundering (“AML”) background check. For this purpose, each Sub-Merchant must during the Sub-Merchant Onboarding Process for the Payment Provider Services on the Paynode website accept (and download) the Payment Solution Providers’ respective terms and conditions, provide personal details (to enable KYC, KYB and AML review by the Payment Solution Providers ) and provide bank account details for settlement of funds for successfully processed payments. Payment Solution Providers  will perform formal verification and mandatory checks in accordance with applicable laws and Scheme Rules on the submitted information during the Sub-Merchant Onboarding Process and subsequently as needed.  Sub-Merchant agrees to provide KYC, KYB, AML and other information to Paynode or Payment Solution Providers, upon request and as a prerequisite to continued use of the Paynode Services and Payment Provider Services.
      4. All activities performed by Paynode with respect to, and in the context of an individual Sub-Merchant, will by Payment Solution Providers be considered to be performed by Paynode as authorized representative of Sub-Merchant. Where Payment Solution Providers become aware of and/or receives any notice of a potential exposure to a fine from the Scheme Owners or Regulatory Authority related to any Sub-Merchant’s behavior, Sub-Merchant agrees to provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation. Sub-Merchant authorizes Paynode to act on its behalf in any way necessary relating to the Payment Provider Services. Paynode shall have no liability for such actions and Sub-Merchant indemnifies, defends and holds harmless the Indemnitees (as defined below) for any and all Damages (as defined below) arising from such actions.
      5. Sub-Merchant is responsible to ensure that all information submitted to Paynode and Payment Solution Providers is accurate and complete. Sub-Merchant agrees that Paynode shall have no liability for such actions and Sub-Merchant indemnifies, defends and holds harmless the Indemnitees (as defined below) for any and all Damages (as defined below) arising from such actions or omissions.
      6. Sub-Merchant acknowledges that Paynode will charge certain fees relating to the provision of the Paynode Services (the “Paynode Fees”). Sub-Merchant hereby agrees that each set of settlement instructions to Adyen will authorize and instruct Adyen to withhold the Paynode Fees from the Sub-Merchant Funds. Paynode Fees related to the Currencycloud Services will be billed via invoice.

 

  1. Card Acceptance Procedures.
    1. Sub-Merchant agrees to follow and comply with any Operating Procedures in connection with Sub-Merchant’s use of the Paynode Services and Adyen Services. Sub-Merchant agrees that it is solely responsible for monitoring and complying with all Operating Procedures, Scheme Owner Rules, policies and procedures.
    2. Sub-Merchant agrees that the Payment Transactions on the Paynode Platform must be in payment for the Sub-Merchant Services, and that no other products or services of any kind may be sold through the Payment Transactions subject to these Paynode General Terms and Conditions and must comply with the Adyen MarketPay Terms and Conditions.
    3. In the event of a dispute by the Payer after the Sub-Merchant has received from Adyen the Merchant Funds, and the Card issuer has decided in favor of the Payer, then Paynode will deduct funds as set forth in Section 3(d). The Sub-Merchant is required to provide to Paynode supporting documentation to help resolve any dispute in a timely manner.
    4. Any Payer Funds or other amounts representing Payment Transactions not made in strict accordance with these Paynode General Terms and Conditions, the Adyen MarketPay Terms and Conditions or the Operating Procedures may be rejected, and if any Sub-Merchant Funds are paid to Sub-Merchant in connection therewith and subsequently properly rejected by Adyen or the Scheme Owner, such Sub-Merchant Funds will be deducted from the next regular (or subsequent) payment due to Sub-Merchant or collected in another manner as Paynode may determine in its sole discretion. Paynode has the right to chargeback any Payment Transaction using a Card to a Sub-Merchant  where the Sub-Merchant fails to provide requested supporting documentation.   If the Scheme Owner i) determines there are excessive chargebacks at a location or ii) finds in favor of the cardholder against the Sub-Merchant in a chargeback dispute, Sub-Merchant will be solely responsible for any fees, charges or other amounts assessed by the Scheme Owner.
    5. In the event of a chargeback dispute (where the cardholder disputes a credit card charge) the Chargeback Amount (the amount being disputed) will be deducted from any Payer Funds that have not yet been disbursed to the Sub-Merchant. All future Payer Funds received will be debited from the Payer Funds until the full amount of the Chargeback is covered. If the Chargeback is resolved in favor of the cardholder, the Chargeback Amount will be returned to the card issuing bank by Adyen. If the Chargeback is resolved in favor of the Sub-Merchant, then the Chargeback Amount that had been debited will be returned to the Sub-Merchant. If the Sub-Merchant has insufficient funds to cover the Chargeback Amount from the Payer Funds, then Paynode will invoice Sub-Merchant for such chargeback, which invoice is due and payable within 5 business days.  Sub-Merchant further agrees that Paynode can, and hereby authorizes Paynode to, deduct such chargebacks and refunds from Sub-Merchant’s bank account using the EFT Process, funds available in Sub-Merchant’s Paynode account or funds that are with Adyen awaiting disbursement to Sub-Merchant. Additionally. Paynode can offset such chargebacks and refunds by using funds that Sub-Merchant pre-paid to any of Paynode’s affiliates for subscription services provided by the applicable Paynode affiliate.
    6. Sub-Merchant shall not receive any Payer Funds from Payers directly with respect to charges made on Cards for Sub-Merchant Services, and no cash advance shall be paid by the Sub-Merchant to the Payer pursuant to any Payment Transaction. The Sub-Merchant will not submit any Payment Requests that represent (i) replacement for any uncollected funds from a Payer in connection with transactions and payment methods that arise outside of the Paynode Platform, (ii) bad debt or potential bad debt with regard to the Sub-Merchant’s own receivable; or (iii) or that otherwise do not comply with the Adyen MarketPay Terms and Conditions.
    7. In the event that after the provision of Sub-Merchant Services by Sub-Merchant there are additional payments due to the Sub-Merchant by a Payer, an additional Payment Request can be raised using the procedure specified on the Paynode platform.
    8. Sub-Merchant is solely responsible for the quality, accuracy and completeness of all data provided to Paynode. Where relevant, Sub-Merchant will ensure adequate technical and procedural security measures are implemented with respect to its systems and in particular with respect to its interfaces to ensure system integrity and protection against unauthorized third-party access and use of data that is processed hereunder, expressly including Sub-Merchant Data, payment transaction data and any personal data. Where PCI DSS or similar compliance standards are to be adhered to under applicable Scheme Rules, Sub-Merchant shall ensure it is and remains compliant with respect to the relevant standards. Sub-Merchant will indemnify and hold the Indemnitees (as defined below) harmless from Damages (as defined below) including fines from payment Scheme Owners and acquirers resulting from a breach of the obligations under this Section.
    9. Payment Requests must include all details as required by Paynode or Adyen.
    10. Part 380 Public Charter Restrictions: Sub-Merchant hereby acknowledges and agrees that the Sub-Merchant Services offered by Sub-Merchant in connection with Card Payment Transactions shall not include any services related to Part 380 public charter operations as defined by the U.S. Department of Transportation under 14 C.F.R. Part 380.
    11. Authorized Charges and Authorization Integrity Fees: If a Sub-Merchant’s monthly ratio of the total amount of Authorized Charges (the process by which a Sub-Merchant obtains an approval for a credit card charge) that are not captured or are refunded to the total amount of Captured Charges (when the Authorized Charge is sent for settlement) exceeds ten percent (10%) for three (3) consecutive months, Paynode may charge, starting on the 3rd month, an Authorization Integrity Fee for each Authorized Charge for which the Sub-Merchant does not capture or does refund. The Authorization Integrity Fee is 1.0% of the total amount of each Authorized Charge that is not captured. Paynode reserves the right to withhold from any Sub-Merchant the capability to process Authorized Charges without capturing those charges.

 

4. American Express Related Transactions.

    1. If a Sub-Merchant accepts American Express as part of the Paynode Services, then the Sub-Merchant warrants and represents to Paynode that:
      1. It authorizes Paynode to submit Card Payment Transactions to, and receive settlement from, American Express on behalf of Sub-Merchant;
      2. It consents to Paynode disclosing Card Payment Transaction data, Sub-Merchant Data and other information about Sub-Merchant to American Express and its affiliates, subcontractors and employees and that such entities can use such information to under services, operate and promote American Express’ network, perform analytics and create reports and for any other lawful business purpose, including as described in the American Express Merchant Regulations;
      3. It understands that pursuant to the American Express Merchant Regulations, American Express states that it wants to help encourage its cardmembers to seek out and shop at small merchants that accept the American Express cards and that from time-to-time American Express may include small merchants in cardmember offers, and that there is no additional cost to Sub-Merchant’s business to be included in these offers. Additionally, American Express provides in the American Express Merchant Regulations that for more information, Sub-Merchant can visit https://www.americanexpress.com/us/small-business/shop-small.
      4. It will display American Express’ marks and otherwise honor the American Express card in accordance with the American Express Merchant Regulations, including, without limitation:
        1. Sub-Merchant must accept the American Express card for goods and services (other than those goods and services prohibited under Section 3.3 of the American Express Merchant Regulations, unless otherwise permitted by American Express) sold, or (if applicable) for charitable contributions made, at all of Sub-Merchants establishments, except as expressly permitted by state statues. Sub-Merchant agrees that it is jointly and severally liable for the obligations of Sub-Merchants establishments hereunder;
        2. Unless expressly permitted by applicable law, Sub-Merchant must not:
          1. Indicate or imply that Sub-Merchant prefers, directly or indirectly, any other payment products or any other method of payment (e.g., payment by check);
          2. Try to dissuade American Express cardmembers from using the American Express card;
          3. Criticize or mischaracterize the American Express card or any of its services or programs;
          4. Impose any restrictions, conditions, disadvantages or fees when the American Express card is accepted that are not imposed equally on all other payment products, except for electronic funds transfer or cash or check;
          5. Suggest or require American Express cardmembers to waive the right to dispute any transaction;
          6. Engage in activities that harm the American Express business or the American Express brand (or both);
          7. Promote any other payment products (except Sub-Merchant’s own private-label card that Sub-Merchant issues for use solely at Sub-Merchant’s establishments) more actively than Sub-Merchant promotes its cards; or
          8. Convert the currency of the original sale transaction to another currency when requiring authorization or submitting transactions (or both).
        3. Sub-Merchant may offer discounts or in-kind incentives from Sub-Merchant’s regular prices for payments in cash, ACH funds transfer, check, debit card or credit/charge card, provided that (to the extent required by applicable law): (i) Sub-Merchant clearly and conspicuously discloses the terms of the discount or in-kind incentives to Sub-Merchant’s customers, (ii) the discount or in-kind incentive is offered to all of your prospective customers, and (iii) the discount or in-kind incentive does not differentiate on the basis of the issuer or, except as expressly permitted by applicable state statute, payment card network (e.g., Visa, MasterCard, Discover, JCB, American Express). Sub-Merchant agrees the offering of discounts or in-kind incentives in compliance with the terms of this Section 4(a)(3) do not constitute a violation of the provisions set forth in Section 3.2 of the American Express Merchant Regulations.
        4. It agrees that whenever payment methods are communicated to customers, or when customers ask what payments are accepted, Sub-Merchant must indicate its acceptance of the American Express card and display American Express marks (including any American Express Card application forms American Express may provide) as prominently and in the same manner as any other payment products.
        5. It agrees that Sub-Merchant will not use American Express marks in any way that injures or diminishes the goodwill associated with the American Express mark, nor in any way (without American Express’ prior written consent) indicate that American Express endorses Sub-Merchant goods or services and that Sub-Merchant will only use American Express marks as permitted herein and pursuant to the American Express Terms and Conditions and will cease using American Express marks upon termination of these Paynode Terms and Conditions or the American Express Terms and Conditions.
        6. It agrees that except as otherwise specified, Sub-Merchant must not disclose cardmember information, or use or store it, other than to facilitate transactions at Sub-Merchant establishments in accordance with the terms and conditions herein and in the American Express Terms and Conditions. For more information, see Section 4.4 of American Express Merchant Regulations and Chapter 8 of American Express Merchant Regulations.
        7. It shall comply with the applicable website information display guidelines set forth in Section 13.4 of the American Express Merchant Regulations.
        8. It shall have requirements in place to enable it to comply with Chapter 4, Chapter 5, Chapter 8 and Chapter 11 of the American Express Merchant Regulations.
        9. It shall comply with the industry-specific requirements of Chapter 12 of the American Express Merchant Regulations, as applicable.
        10. It shall maintain customer service information pursuant to Subsection 13.4.1 of the American Express Merchant Regulations.
        11. It will not process transactions or receive payment on behalf of, or (unless required by law) re-direct payments to any other party.
        12. It has refund policies for purchases on American Express cards that are at least as favorable as Sub-Merchant’s refund policy for purchases on any other payment product, and that the refund policy is disclosed to American Express cardmembers at the time of purchase and in compliance with applicable law.
        13. It has prohibitions against billing and collecting from any American Express cardmember for any purchase or payment on the American Express card unless a chargeback has been exercised, the Sub-Merchant has paid in full such charge and it otherwise has the right to do so.
        14. It is not a third-party beneficiary under the Agreement (as defined in the American Express Merchant Regulations).
        15. It will remove American Express marks from its website and wherever else they are displayed under termination of Sub-Merchant acceptance of the American Express card as part of the Paynode Services or as otherwise terminated.
        16. In the event that Sub-Merhant or Paynode is not able to resolve a claim against American Express, or a claim against Paynode or any other entity that American Express has a right to join in resolving a claim, the American Express Merchant Regulations – US Appendix 1 (Arbitration Agreement (as to Claims involving American Express)), explains how claims can be resolved through arbitration. 

 

  1. Additional Provisions.
    1. EFT Process.
      1. Sub-Merchant authorizes Paynode or its applicable Affiliate to collect and deposit funds into and/or deduct funds from the bank account specified by the Sub-Merchant in the Sub-Merchant Onboarding Process.
      2. Sub-Merchant authorizes Paynode or its applicable Affiliate to:
        1. deposit funds into the designated bank account for payment of goods and services processed through the Paynode Services in the applicable currency for the jurisdiction;
        2. to deduct funds from the designated bank account for chargebacks, refunds and transactions reversed in accordance with Scheme Owner Rules and/or chargebacks, refunds and transactions reversed in accordance in connection with the Adyen Services, and/or fees owed to Paynode or its applicable Affiliate.
        3. debit and/or credit Sub-Merchant account ( “Account”), for any amounts owing by or owed to Sub-Merchant from time to time hereunder, including, without limitation, fees, charges and penalties payable by Sub-Merchant hereunder. Paynode will obtain Sub-Merchant’s authorization in advance of any sporadic debit or credit made on Account.
    2. Sub-Merchant shall provide to Paynode the Sub-Merchant’s tax identification number with the applicable taxing authority and immediately provide an updated tax identification number when applicable. If there are not sufficient Sub-Merchant Funds to offset, Paynode has the right to debit the necessary amount from Account.
    3. Upon creation of Sub-Merchant’s Currency Accounts, Paynode will direct Adyen to send disbursements from Payment Transactions to Sub-Merchant’s Currency Accounts.”

 

  1. Transaction Information.
    1. In order for Paynode to provide the Paynode Services and for Payment Solution Providers to provide the Payment Provider Services, Paynode shall, and Sub-Merchant agrees that Paynode will, use and disclose Sub-Merchant Data (as defined below) and other information provided to Paynode by Sub-Merchant in connection with the provision of the Paynode Services and Payment Provider Services. Sub-Merchant represents and warrants that it has the right to provide all Sub-Merchant Data to Paynode, and that the use of the Sub-Merchant Data in connection with the Paynode Services and related services provided by Paynode and as contemplated herein will not infringe, misappropriate or otherwise violate the rights of any third party. Sub-Merchant data may be used to perform analytics and create reports and any other lawful business purposes of Paynode, its service providers and Scheme Owners.
    2. The “Sub-Merchant Data” is information collected during Sub-Merchant Onboarding Process, and any supplemental information related thereto.
    3. Each Party shall treat as confidential all Confidential Information (as defined below) of the other Party, shall not use such Confidential Information for any purpose other than perform its obligations under these Paynode General Terms and Conditions and as otherwise authorized herein, and shall not disclose such Confidential Information to any third party or to such party’s representatives except those representatives who are required to have the Confidential Information in connection with such Party’s performance hereunder and who are bound by terms and conditions of confidentiality at least as stringent as those provided in these Paynode General Terms and Conditions. Without limiting the foregoing, each party shall use at least the same degree of care such party uses to prevent the disclosure of such Party’s own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other Party. Each Party shall promptly notify the other Party of any actual or suspected misuse or unauthorized disclosure of the other Party’s Confidential Information.
    4. A Party shall not be in breach of these Paynode General Terms and Conditions merely for disclosing Confidential Information as required by applicable statute, regulation, order, or other law, provided that (i) any such disclosure is made only to the extent so required, the disclosing Party, to the extent legally permissible, timely notifies the other party of the disclosure requirement prior to disclosure, so that the other Party may seek a protective order or confidential treatment, or take other appropriate measures to protect its interests, in which event such party will reasonably cooperate in such effort, and (iii) if timely notice cannot be given, the disclosing Party seeks to obtain a protective order or confidential treatment from the court or government for such Confidential Information.
    5. “Confidential Information” means any information or material disclosed by either Party to the other Party, directly or indirectly, in writing, orally, visually or by inspection of tangible objects that a party treats as confidential or proprietary, including, without limitation, any and all information relating to such party’s or its business partners’ research, development, know-how, products, product plans, services, customers, customer lists, markets, software, developments, inventions, processes, technology, designs, drawings, marketing, finances, or other business information or trade secrets, that is designated as “confidential”, “proprietary” or the like, or that should reasonably be understood to be confidential or proprietary under the circumstances.

 

  1. IT, Data and Payer Information Security.
    1. The Sub-Merchant cannot act as, or on behalf of, any Payer. The Sub-Merchant may only create Payment Requests and receive Sub-Merchant Funds pursuant to Paynode’s provision of the Processing Services.
    2. Sub-Merchant agrees to immediately notify Paynode of any suspected, alleged or confirmed Compromised Data Event.  Sub-Merchant agrees that upon Sub-Merchant’s suspected or actual discovery of a Compromised Data Event, Sub- Merchant will not alter or destroy any related records.  Sub-Merchant will share with Paynode all information related to any actual or suspected Compromised Data Event, including, but not limited to, forensic reports and system audits; and allow Paynode access to Sub-Merchant and its Sub-Merchant’s facilities and records for the purpose of performing any inspection, examination and/or copying of books or files pertaining to the affected Payment Transactions.  Paynode may share such information with others as permitted under Applicable Law.  In the event of a suspected Compromised Data Event and/or violation of Applicable Law, Sub-Merchant must promptly take appropriate corrective action, subject to Paynode’s approval.  Paynode  shall be entitled to pass on to Sub-Merchant, and Merchant shall be solely responsible for paying, any costs, damages, fees and other liabilities related to any Compromised Data Event, including without limitation any costs, damages, fees and other liabilities that the Scheme Owners or government authorities may assess against Paynode, and/or the costs Paynode incurs for its investigation of the Compromised Data Event, including those associated with examinations and inspections.

 

  1. Payments and Settlement.
    1. Sub-Merchant agrees to the pricing and settlement terms set forth in the Paynode Fees Schedule located at https://marketplace.avinode.com/payment/mvc/fees (incorporated herein by reference).
    2. Card Settlement: Sub-Merchant Funds for all card types are disbursed to the Sub-Merchant’s Account once the following criteria are met:
      1. Sub-Merchant has confirmed that services have been rendered; and
      2. Adyen has received the Sub-Merchant Funds from the Scheme Owners.
    3. Card Settlement typically takes 2 business days (excludes statutory holidays in the country in which the Sub-Merchant is located).
    4. Payment Requests, Instant Payments and Beneficiary Payments are subject to certain reviews for compliance with legal and regulatory requirements.  Sub-Merchant Funds are not confirmed or available to the Sub-Merchant pursuant to the Paynode Services until the review is complete and the status of the Payment Request, Instant Payment or Beneficiary Payment is set to “Payment Confirmed” in the Paynode Platform. Sub-Merchant acknowledges and accepts the risk of non-payment, if Sub-Merchant elects to provide Sub-Merchant Services before the status of the Payment Request shows as “Payment Confirmed” in accordance with this Section.

 

  1. Representations, Warranties, Covenants and Limitation of Liability.
    1. Neither Party shall be liable to the other for failure to perform hereunder when such failure to perform is due to any natural disaster, fire, flood, storm, strike, terrorist event, act of war, labor unrest, acts of God, equipment or power interruption (when not due to the negligence of the non-performing Party, its employees and contractors) interruptions in the telephone or Internet systems, failures in third party computer software or hardware or any cause beyond the non-performing Party’s reasonable control.
    2. Paynode makes no warranties or representations with respect to the Paynode Services or Payment Provider Services.
    3. Sub-Merchant acknowledges that the Payer is the purchaser of the Sub-Merchant Services pursuant to these Paynode General Terms and Conditions and that Paynode (including its respective Affiliates) takes no title or risk on any product or service supplied by Sub-Merchant in connection with Sub-Merchant’s provision of the Sub-Merchant Services to Payer.  Any dispute arising under Payer’s use of the Sub-Merchant Services is a matter between the Sub-Merchant and the Payer.
    4. Without limiting any other warranties made hereunder, Sub-Merchant represents, warrants and covenants to Paynode and with the submission of each Payment Transaction reaffirms that:
      1. (a) it has full power and legal right to execute and deliver these Paynode General Terms and Conditions and to perform its obligations hereunder, (b) no authorization or approval from any third party is required in connection with Sub-Merchant’s execution, delivery or performance of these Paynode General Terms and Conditions, and (c) in performing its obligations under these Paynode General Terms and Conditions it does and will comply with all Applicable Laws and Operating Procedures;
      2. it is duly qualified and is properly licensed to do business, and is in good standing (a) in each jurisdiction in which the conduct of its business requires it to so qualify or be licensed, and (b) with each Regulatory Authority having jurisdiction over it; and Sub-Merchant has, and shall at all times maintain, all necessary licenses, permits, approvals, and registrations under Applicable Law, in each case which are required to perform its obligations hereunder, including providing the Sub-Merchant Services and receiving the Payment Provider Services;
      3. in connection with Sub-Merchant’s submission of each Payment Transaction that: (a) each Payment Transaction is genuine and arises from a bona fide transaction, permissible under Applicable Law and the Operating Procedures, by the Payer directly with the Merchant for respective Sub-Merchant Services purchased; (b) each Payment Transaction has been entered into for primarily business purposes, and not for family, personal or household purposes, and (c) with respect to each Payment Transaction, Sub-Merchant has no knowledge or notice of any fact, circumstance or defense that would indicate that such Payment Transaction is fraudulent that would otherwise impair the validity or collectability of that Payer’s obligation arising from that Payment Transaction with respect hereto.
    5. UNDER NO CIRCUMSTANCES SHALL PAYNODE BE LIABLE TO SUB-MERCHANT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDED, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR SUCH PARTY’S LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE. SUB-MERCHANT AGREES THAT NONE OF PAYNODE, ITS RESPECTIVE AFFILIATES, NOR ITS AND THEIR DIRECTORS, OFFICERS, SUBCONTRACTORS, AGENTS AND EMPLOYEES, SHALL BE LIABLE TO SUB-MERCHANT FOR ANY CLAIMS, LIABILITIES OR EXPENSES RELATING TO (I) THE PAYNODE PLATFORM AND PAYNODE SERVICES, OR (II) THE PAYMENT PROVIDER SERVICES, FOR AN AGGREGATE AMOUNT IN EXCESS OF THE TOTAL FEES PAID BY SUB-MERCHANT TO PAYNODE FOR SUCH SERVICES DURING THE IMMEDIATELY PRECEDING CONTRACT YEAR, OR $10,000, WHICHEVER IS LESS. ADDITIONALLY, SUB-MERCHANT AGREES TO ABIDE BY THE LIMITATION OF LIABILITY PROVISION SET FORTH IN THE AMERICAN EXPRESS TERMS AND CONDITIONS.

 

  1. Indemnification.
    Sub-Merchant agrees to indemnify, defend and hold harmless Paynode and its Affiliates, and their respective directors, officers, employees, subcontractors and agents  (the “Indemnitees”), from and against any and all liabilities, obligations, damages, injuries, penalties, claims, demands, actions, suits, judgments and any and all costs, fines, expenses or disbursements (including attorneys’ fees and expenses) of whatsoever kind and nature imposed on (“Damages”), asserted against or incurred by any of the Indemnitees in any way relating to or arising out of:

    1. death or personal injury caused by the negligence of Sub-Merchant or its agents or subcontractors;
    2. breach of these Paynode General Terms and Conditions by Sub-Merchant;
    3. gross negligence, fraud, or willful misconduct of Sub-Merchant;
    4. infringement of a third party’s intellectual property rights by Sub-Merchant;
    5. non-compliance by Sub-Merchants to Applicable Laws, the Adyen MarketPay Terms and Conditions, or Operating Procedures, including, without limitation, any fines imposed by the Scheme Owners or by Regulatory Authorities on Paynode or Adyen as a result of such noncompliance; and
    6. any VAT, turnover and other taxes or levies including penalties, interests, surcharges (“Taxes”) due on any product or service of Sub-Merchant and any costs or damages related to such Taxes. Sub-Merchant shall apply all reasonable efforts to ensure that Paynode cannot be held liable for any Taxes and costs or damages thereto, shall promptly inform Paynode of any such liability and shall provide Paynode with all relevant information and documentation in that respect.

 

  1. Subcontracting.
    Paynode may subcontract any or all of its obligations hereunder.

 

  1. Third-Party Beneficiaries
    These Paynode General Terms and Conditions are intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person; provided that American Express has the beneficiary rights, but not the obligations, to these Paynode Terms and Conditions to fully enforce these Paynode Terms and Conditions against Sub-Merchant for American Express card transactions executed hereunder.

 

  1. Entire Agreement.
    These Paynode General Terms and Conditions along with the Avinode General Terms and Conditions represent the entire agreement between the Parties relating to subject matter hereof and supersedes any inconsistent terms and conditions contained in any other agreement between the Parties. Except as specifically provided in Paynode Fees Schedule, these Paynode General Terms and Conditions can be amended unilaterally from time to time by Paynode. These Paynode General Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Florida, USA.  Each of the Parties hereto agrees to the exclusive jurisdiction and forum of the federal and/or state courts located in Miami-Dade County, FL, USA.

PAYNODE GENERAL TERMS AND CONDITIONS
(2025 – Currencycloud & Stripe)

Version 2025.05.09

The following terms govern the use of the Paynode Services (as defined below) which allow the sub-merchant (“Sub-Merchant”) to facilitate the collection of payments through the Paynode Platform (as defined below) and receive payment for air charters and related services processed through the Paynode Platform and must be read in conjunction with the Avinode Group Data Processing Agreement (made available at https://avinodegroup.com/data-privacy/), together constitute the general terms and conditions (“Paynode General Terms and Conditions”) between Sub-Merchant and either (i) Paynode AB (as defined below); or (ii) Paynode LLC (as defined below), (such entity, that shall enter into these Paynode General Terms and Conditions with Sub-Merchant, being determined in accordance with the paragraph immediately below and being “Paynode”). These Paynode General Terms and Conditions shall constitute a binding agreement between Paynode and Sub-Merchant, and shall govern all matters relating to the Paynode Services (as defined below) received by Sub-Merchant from, or through any arrangement made by Paynode. Sub-Merchant accepts these Paynode General Terms and Conditions by (i) submitting an application for the Sub-Merchant Onboarding Process to Paynode and (ii) using the Paynode Services. For purposes of these Paynode General Terms and Conditions, each of Paynode and Sub-Merchant, individually, constitute a “Party” and, collectively, the “Parties”.

Paynode Entity

Notwithstanding anything to the contrary, the relevant entity that shall enter into these Paynode General Terms and Conditions with Sub-Merchant shall be the entity identified in the table below under the column heading “Paynode Entity” based upon Sub-Merchant’s country of incorporation. For example, if Sub-Merchant is incorporated in the United Kingdom, then these Paynode General Terms and Conditions shall be entered into between that Sub-Merchant and Paynode AB.

Sub-Merchant’s Country of Incorporation Paynode Entity
USA and Canada Paynode LLC
Anywhere in the rest of the world Paynode AB

 

 

If these Paynode General Terms and Conditions are with Paynode LLC

For the avoidance of doubt, where Paynode LLC is the relevant entity entering into these Paynode General Terms and Conditions with Sub-Merchant (as determined in accordance with the paragraph above), then these Paynode General Terms and Conditions will be amended by Schedule 1 which shall be deemed to form part of these Paynode General Terms and Conditions between the relevant Sub-Merchant and Paynode LLC. In such circumstances, in the event of a conflict or inconsistency between the Schedule 1and the remaining terms of these Paynode General Terms and Conditions, then Schedule 1 shall prevail.

  1. Defined Terms.
    1. “Adyen” means Adyen-N.V., a provider of payment processing and acquiring services that enables Paynode to offer the use of the Adyen Services as an integrated payment solution on the Paynode Platform to enable Sub-Merchants to offer various payment methods to their customers to pay for goods or services of Sub -Merchant.
    2. Affiliates” means any entity that controls, is controlled by, or is under common control with a Party.
    3. American Express” means American Express, a provider of payment processing and acquiring services that enables Paynode to offer the use of the American Express as an integrated payment solution on the Paynode Platform to enable Sub-Merchants to offer American Express payment methods to their customers to pay for goods or services of Sub -Merchant.
    4. Applicable Law” shall mean (A) the Scheme Rules, (B) any and all applicable laws or legislation (including federal, provincial, state or local laws or legislation), treaties, rules, regulations, codes of practice, regulatory guidance, directives, policies, orders or determinations of (or agreements with), and mandatory written direction from (or agreements with), any national, foreign, federal, provincial, state or local government agency or other Regulatory Authority, as each of the foregoing may be amended and in effect from time to time.
    5. Beneficiary Payment” means funds sent by a Sub-Merchant to another entity outside of the Paynode Platform.
    6. Card” means the credit cards or debit cards authorized for Payment Requests by Payers.
    7. Compromised Data Event” shall mean any actual or potential loss, unauthorized disclosure, theft or compromise of Payer data or Card transaction information.
    8. Currencycloud” means The Currency Cloud Group Limited and its Affiliates, a provider of payment services that enables Paynode to offer the use of the Currencycloud Services as an integrated payment solution on the Paynode Platform.
    9. Currency Accounts” mean online virtual named bank accounts thatbelong to the Sub-Merchant that are provided as part of the Currencycloud Services and accessible through the Paynode Platform.
    10. Currencycloud Services” means the services provided by Currencycloud to Sub-Merchants relating to Payment Transactions.
    11. Currencycloud Terms and Conditions” means the general terms and conditions for the Currencycloud Services (https://onboarding.paydirect.io/paynode/terms_and_conditions) to be accepted and agreed by Sub-Merchants during the Sub-Merchant Onboarding Process, as well as the Currencycloud Non-Permitted Activity (described here: https://support.currencycloud.com/hc/en-gb/articles/360017472339-Non-permitted-activity) and Currencycloud Permitted Jurisdictions (described here: https://help.avinodegroup.com/hc/en-us/articles/7215349269019-KYB-Country-Requirements).
    12. Emergency Suspension Event” shall mean an immediate regulatory change, governmental action, a breach of security, requirement of Stripe, Currencycloud or a Scheme Owner, the financial insolvency of a Party, the appointment of a receiver, trustee or fiduciary over any Party, or any other reason determined by Paynode using its commercially reasonable judgment in order to prevent fraud, abuse, or a violation of Applicable Law.
    13. Existing Agreement” means the existing agreement between Paynode LLC or Paynode AB (as applicable) and Sub-Merchant that enables Sub-Merchant to (amongst other things) access Currencycloud services and accept debit card or credit card transactions using either services provided by Adyen or American Express, as further described in such agreement.
    14. “FX Conversion” means the conversion of one country’s currency into another.
    15. Instant Payment” is the means by which a Sub-Merchant, through the Paynode Platform, defines and sends a payment for the applicable Sub-Merchant Services to another Sub-Merchant on the Paynode Platform, using the Currencycloud Services.
    16. Operating Procedures” shall mean any operating procedures, Scheme Owner Rules or policies and procedures issued and as amended by the Scheme Owner or Paynode, including any operating procedures, policies or other procedures disclosed to Sub-Merchant by Stripe from time to time.
    17. Payer” means a person who has authorized a Payment Request to Sub-Merchant or a Sub-Merchant who sends an Instant Payment.
    18. Payer Funds” means those funds that have been tendered by, or on behalf of, a Payer to Stripe in connection with a Payment Request for Sub-Merchant Services.
    19. Payment Provider Services” means: (i) where Sub-Merchant is designated to enable Payers to use Cards to facilitate payments to it for Payer’s use of Sub-Merchant Services, the combined Stripe Services and Currencycloud Services or (ii) where Sub-Merchant is designated to enable Payers to make payments other than through the use of Cards to facilitate payments to it for Payer’s use of Sub-Merchant Services, the Currencycloud Services.
    20. Payment Request” is the means by which a Sub-Merchant, through the Paynode Platform, defines the applicable Sub-Merchant Services for which it initiates a Payment Transaction.
    21. Payment Solution Providers” means: (i) where Sub-Merchant is designated to enable its Payers to use Cards to facilitate payments to it for Payer’s use of Sub-Merchant Services, Stripe and Currencycloud combined or (ii) where Sub-Merchant is designated to enable its Payers to make payments other than through the use of Cards to facilitate payments to it for Payer’s use of Sub-Merchant Services,
    22. Payment Transaction” means the use of a Card, Instant Payment or Beneficiary Payment to facilitate a payment to Sub-Merchant for Payer’s use of Sub-Merchant Services, as well as the ability to do FX Conversions.
    23. Paynode AB” means Paynode AB, of V Hamngatan 12 411 17 Göteborg Sweden with registration number 556994-4456
    24. Paynode LLC” means Paynode LLC, of C T Corporation System, 1200 South Pine Island Road, Plantation, FL 33324 USA with registration number: L21000193739
    25. Paynode Platform” means a Web-based program to facilitate payment between Payers and Sub-Merchants and payments between Sub-Merchants for Sub-Merchant Services.
    26. Paynode Services” means the services and solutions provided by Paynode in connection with the provision of the Paynode Platform that enables Stripe to provide the Stripe Services and Currencycloud to provide Currencycloud Services.
    27. Regulatory Authority” means any national, federal, provincial or state regulator of banking, or payment services or financial services and any governmental agency or other enforcement agency (domestic, international or multi-national) having jurisdiction over any of the Parties or any of the services to be provided hereunder.
    28. Scheme Owners” means the entity who regulates and provides a specific payment method (e.g. Visa, MasterCard, American Express).
    29. Scheme Rules” means the collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Scheme Owners as may be amended or supplemented over time and with which Sub-Merchants must comply with when using the relevant payment method, including, without limitation, applicable PCI DSS security requirements imposed by the Scheme Owners.
    30. Stripe” means Stripe, Inc. and Stripe Payments Europe, Ltd, provider of payment processing and acquiring services that enables Paynode to offer the use of the Stripe Services as an integrated payment solution on the Paynode Platform to enable Sub-Merchants to offer various payment methods to their customers to pay for goods or services of Sub -Merchant.
    31. Stripe Connected Account Agreement” means the general terms and conditions for the Stripe Services to be accepted and agreed by Sub-Merchants during the Sub-Merchant Onboarding Process.
    32. Stripe Connected Account” means the “connected account” provided by Stripe to the Sub-Merchant pursuant to the Stripe Connected Account Agreement.
    33. Stripe Services” means the services provided by Stripe to Sub-Merchants relating to Payment Transactions.
    34. Sub-Merchant Funds” shall mean those Payer Funds less any applicable Paynode fees that are received by Stripe for the benefit of the Sub-Merchant in accordance with the Stripe Connected Account Agreement.
    35. Sub-Merchant Onboarding Process” means the onboarding process to be concluded with each Sub-Merchant to qualify for the use of the Stripe Services and the Currencycloud Services, which includes the submission of the registration details of the Sub-Merchant for KYC or KYB check and the acceptance by the Sub-Merchant of the Stripe Connected Account Agreement and the Currencycloud Terms and Conditions when registering with Paynode for the Stripe Services and Currencycloud Services, respectively.
    36. Sub-Merchant Services” means the private air charter and related services offered by Sub-Merchant to Payer and authorized passengers in connection with private air charter that Sub-Merchant makes available to its customers.

 

  1. Services and Responsibilities.
    1. Stripe Services and Currencycloud Services. Notwithstanding anything to the contrary but subject to Section 13(I) as applicable, in order to receive the Paynode Services and applicable Paynode Provider Services, the Sub-Merchant must have accepted the Currencycloud Terms and Conditions and, where Sub-Merchant is designated to enable its Payers to use Cards to facilitate payments to it for Payer’s use of Sub-Merchant Services, the Stripe Connected Account Agreement. If the Sub-Merchant does not accept the Currencycloud Terms and Conditions and, where Sub-Merchant is designated to enable its Payers to use Cards to facilitate payments to it for Payer’s use of Sub-Merchant Services, the Stripe Connected Account Agreement, then Paynode shall not be responsible for providing any Paynode Services and applicable Paynode Provider Services, and Paynode shall be entitled to withdraw access to the Paynode Platform by the Sub-Merchant.
    2. Paynode Services. Subject to these Paynode General Terms and Conditions, Paynode shall provide to Sub-Merchant the Paynode Services. Sub-Merchant acknowledges Paynode will have access to Sub-Merchant’s transaction data for the purpose of providing Payers customer support, reporting and other services as set forth herein. Sub-Merchant agrees to provide Paynode with any information reasonably requested in order for Paynode to provide the Paynode Services. Paynode will provide first line support for the Payment Provider Services. Inquires can be sent to [email protected].
    3. Processing Services. Subject to the terms of these Paynode General Terms and Conditions, Paynode shall provide to Sub-Merchant access to the Payment Provider Services. Sub-Merchant agrees to provide Paynode with any information reasonably requested in order for Paynode to provide access to the Payment Provider Services. Sub-Merchant acknowledges and agrees that the Stripe Services are performed by Stripe and that the Currencycloud Services are performed by Currencycloud and that the Sub-Merchant’s use of the Payment Provider Services is subject to their respective terms and conditions. Sub-Merchant acknowledges and agrees that Paynode will be designated as an authorized representative of Sub-Merchant towards Stripe and Currencycloud (as applicable) with respect to the use by Sub-Merchant of the Payment Provider Services and as such authorized by the Sub-Merchant to access and use the data of the Sub-Merchant processed by the Payment Solution Providers.
    4. AML/KYC Screening and Compliance.
      1. Paynode’s acceptance of Sub-Merchant is subject to Paynode’s due diligence and approval of Sub-Merchant in accordance with Paynode’s compliance policies and procedures (i) prior to and as a prerequisite of Sub-Merchant’s use of the Paynode Services, and (ii) at Paynode’s request at any time as a prerequisite of Sub-Merchant’s continued use of the Paynode Services. If Paynode determines in its sole discretion that Sub-Merchant is not eligible to continue using the Paynode Services, Paynode shall notify Sub-Merchant and Sub-Merchant shall, at its sole cost and expense, immediately take such corrective action that is necessary to satisfy Paynode’s due diligence requirements, unless the deficiencies identified by Paynode’s due diligence by their nature cannot be corrected.
      2. Paynode shall have the right to suspend, modify or discontinue, either temporarily or permanently, the Paynode Services as necessary: (i) if Sub-Merchant breaches these General Paynode Terms and Conditions or any Payment Solutions Providers’ terms and conditions, (ii) to comply with Applicable Law (including upon the direction of any Regulatory Authority); or (iii) in the event of an Emergency Suspension Event, or (iv) as directed by a Scheme Owner. Sub-Merchant agrees that Paynode shall not be liable to Sub-Merchant or to any third party for any such necessary modification, suspension or discontinuance of the Paynode Services including any impact such modification, suspension or discontinuance may have on its ability to receive the Payment Provider Services.
      3. To comply with the Scheme Rules and to be allowed to use the Payment Provider Services, each Sub-Merchant will contract directly with Stripe and/or Currencycloud (as applicable) and undergo a know your customer (“KYC”, or “KYB”) and anti-money laundering (“AML”) background check. For this purpose, each Sub-Merchant must during the Sub-Merchant Onboarding Process for the Payment Provider Services on the Paynode website accept the Payment Solution Providers’ respective terms and conditions, provide personal details (to enable KYC, KYB and AML review by the Payment Solution Providers) and provide bank account details for settlement of funds for successfully processed payments. Payment Solution Providers will perform formal verification and mandatory checks in accordance with applicable laws and Scheme Rules on the submitted information during the Sub-Merchant Onboarding Process and subsequently as needed. Sub-Merchant agrees to, as part of the Sub-Merchant Onboarding Process, provide KYC, KYB, AML and other information to Paynode or Payment Solution Providers (and represents, warrants and undertakes that it has the necessary authorisations to provide such information and permit Paynode to share any such KYC, KYB, AML and other information with the Payment Solution Providers and in accordance with Section 6), upon request and as a prerequisite to continued use of the Paynode Services and Payment Provider Services.
      4. Sub-Merchant agrees that all activities performed by Paynode with respect to, and in the context of, an individual Sub-Merchant and its receipt or use of the Payment Provider Services, will by Payment Solution Providers be considered to be performed by Paynode as authorized representative of Sub-Merchant. Where Payment Solution Providers become aware of and/or receives any notice of a potential exposure to a fine from the Scheme Owners or Regulatory Authority related to any Sub-Merchant’s behavior, Sub-Merchant agrees to provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation. Sub-Merchant authorizes Paynode to act on its behalf in any way necessary relating to the Payment Provider Services, including, as applicable, to instruct the disbursement of Sub-Merchant Funds to the relevant Stripe Connected Account and the pay-out of such Sub-Merchant Funds from the relevant Stripe Connected Account to the relevant Currency Account. Paynode shall have no liability for such actions and Sub-Merchant indemnifies, defends and holds harmless the Indemnitees (as defined below) for any and all Damages (as defined below) arising from such actions.
      5. Sub-Merchant is responsible to ensure that all information submitted to Paynode and Payment Solution Providers is accurate and complete and it has all the necessary consents to share such information with Paynode and Payment Solution Provider. Sub-Merchant agrees that Paynode shall have no liability for any inaccurate or incomplete information submitted by Sub-Merchant to Paynode and Payment Solution Providers and Sub-Merchant indemnifies, defends and holds harmless the Indemnitees (as defined below) for any and all Damages (as defined below) arising from: (i) any breach of this Section 2(D)(v); and (ii) any breach of the representations, warranties and undertakings set out in Sections 2(D)(iii) and 7(A) .
      6. Sub-Merchant acknowledges that Paynode will charge certain fees relating to the provision of the Paynode Services (the “Paynode Fees”). Sub-Merchant hereby agrees that Paynode may issue settlement instructions to Stripe on behalf of the Sub-Merchant to authorize and instruct Stripe to withhold the Paynode Fees from the Payer Funds. Paynode Fees related to the Currencycloud Services will be billed via invoice and will not be withheld from the Payer Funds as described in this Section.
      7. Subject to the Data Processing Addendum, any information submitted by the Sub-Merchant shall be deemed public information and not subject to any confidentiality obligation, and Paynode shall have no obligation to maintain its confidentiality.

 

  1. Card Acceptance Procedures.
    1. Sub-Merchant agrees to follow and comply with any Operating Procedures in connection with Sub-Merchant’s use of the Paynode Services and Stripe Services. Sub-Merchant agrees that it is solely responsible for monitoring and complying with all Operating Procedures, Scheme Owner Rules, policies and procedures.
    2. Sub-Merchant agrees that the Payment Transactions on the Paynode Platform must be in payment for the Sub-Merchant Services, and that no other products or services of any kind may be sold through the Payment Transactions subject to these Paynode General Terms and Conditions and must comply with the Stripe Connected Account Agreement.
    3. In the event of a dispute by the Payer after the Sub-Merchant has received from Stripe the Sub-Merchant Funds, and the Card issuer has decided in favor of the Payer, then Paynode will deduct funds as set forth in Section 3(E). The Sub-Merchant is required to provide to Paynode supporting documentation to help resolve any dispute in a timely manner.
    4. Any Payer Funds or other amounts representing Payment Transactions not made in strict accordance with these Paynode General Terms and Conditions, the Stripe Connected Account Agreement or the Operating Procedures may be rejected, and if any Sub-Merchant Funds are paid to Sub-Merchant in connection therewith and subsequently properly rejected by Stripe or the Scheme Owner, such Sub-Merchant Funds will be deducted from the next regular (or subsequent) payment due to Sub-Merchant or collected in another manner as Paynode may determine in its sole discretion. Paynode has the right to chargeback any Payment Transaction using a Card to a Sub-Merchant where the Sub-Merchant fails to provide requested supporting documentation. If the Scheme Owner i) determines there are excessive chargebacks at a location or ii) finds in favor of the cardholder against the Sub-Merchant in a chargeback dispute, Sub-Merchant will be solely responsible for any fees, charges or other amounts assessed by the Scheme Owner.
    5. In the event of a chargeback dispute (where the cardholder disputes a Card charge) the Chargeback Amount (the amount being disputed) will be deducted from any Payer Funds that have not yet been disbursed to the Sub-Merchant. All future Payer Funds received will be debited from the Payer Funds until the full amount of the Chargeback Amount is covered. If the Chargeback is resolved in favor of the cardholder, the Chargeback Amount will be returned to the card issuing bank by Stripe. If the Chargeback is resolved in favor of the Sub-Merchant, then the Chargeback Amount that had been debited will be returned to the Sub-Merchant. If the Sub-Merchant has insufficient funds to cover the Chargeback Amount from the Payer Funds, then Paynode will invoice Sub-Merchant for such chargeback, which invoice is due and payable within 5 business days. Sub-Merchant further agrees that Paynode can, and hereby authorizes Paynode to, deduct such chargebacks and refunds from (i) funds available in Sub-Merchant’s Currency Account (ii) funds that are with Stripe awaiting disbursement to Sub-Merchant; or (iv) funds that are in the Stripe Connected Account. Additionally, Paynode can offset such chargebacks and refunds by using funds that Sub-Merchant pre-paid to any of Paynode’s affiliates for subscription services provided by the applicable Paynode affiliate.
    6. Sub-Merchant shall not receive any Payer Funds from Payers directly with respect to charges made on Cards for Sub-Merchant Services, and no cash advance shall be paid by the Sub-Merchant to the Payer pursuant to any Payment Transaction. The Sub-Merchant will not submit any Payment Requests that represent (i) replacement for any uncollected funds from a Payer in connection with transactions and payment methods that arise outside of the Paynode Platform, (ii) bad debt or potential bad debt with regard to the Sub-Merchant’s own receivable; or (iii) or that otherwise do not comply with the Stripe Connected Account Agreement.
    7. In the event that after the provision of Sub-Merchant Services by Sub-Merchant there are additional payments due to the Sub-Merchant by a Payer, an additional Payment Request can be raised using the Paynode Platform.
    8. Sub-Merchant is solely responsible for the quality, accuracy and completeness of all data provided to Paynode. Where relevant, Sub-Merchant will ensure adequate technical and procedural security measures are implemented with respect to its systems and in particular with respect to its interfaces to ensure system integrity and protection against unauthorized third-party access and use of data that is processed hereunder, expressly including Sub-Merchant Data, payment transaction data and any personal data. Where PCI DSS or similar compliance standards are to be adhered to under applicable Scheme Rules, Sub-Merchant shall ensure it is and remains compliant with respect to the relevant standards. Sub-Merchant will indemnify and hold the Indemnitees (as defined below) harmless from Damages (as defined below) including fines from payment Scheme Owners and acquirers resulting from a breach of the obligations under this Section.
    9. Payment Requests must include all details as required by Paynode or Stripe.
    10. Part 380 Public Charter Restrictions: Sub-Merchant hereby acknowledges and agrees that the Sub-Merchant Services offered by Sub-Merchant in connection with Card Payment Transactions shall not include any services related to Part 380 public charter operations as defined by the U.S. Department of Transportation under 14 C.F.R. Part 380.
    11. Authorized Charges and Authorization Integrity Fees: If a Sub-Merchant’s monthly ratio of the total amount of Authorized Charges (the process by which a Sub-Merchant obtains an approval for a debit card or credit card charge) that are not captured or are refunded to the total amount of Captured Charges (when the Authorized Charge is sent for settlement) exceeds ten percent (10%) for three (3) consecutive months (the final month of these three (3) consecutive months being the “Final Month”), Paynode may charge, starting on the commencement of the next month immediately following the Final Month, an Authorization Integrity Fee for each Authorized Charge for which the Sub-Merchant does not capture or does refund. The Authorization Integrity Fee is 1.0% of the total amount of each Authorized Charge that is not captured or is refunded. Paynode reserves the right to withhold from any Sub-Merchant the capability to process Authorized Charges without capturing those charges.

 

  1. Transaction Information.
    1. In order for Paynode to provide the Paynode Services and for Payment Solution Providers to provide the Payment Provider Services, Paynode shall, and Sub-Merchant agrees that Paynode will, use and disclose Sub-Merchant Data (as defined below) and other information provided to Paynode by Sub-Merchant in connection with the provision of the Paynode Services and Payment Provider Services (in the event that the Sub-Merchant Data contains Personal Identifiable Data (“PII”), Paynode shall process that PII in accordance with the terms of the Avinode Group Data Processing Agreement). Sub-Merchant represents and warrants that it has the right to provide all Sub-Merchant Data to Paynode (and Sub-Merchant represents, warrants and undertakes it has the necessary authorisations to permit Paynode to disclose such Sub-Merchant Data as envisaged by this Section), and that the use of the Sub-Merchant Data in connection with the Paynode Services and related services provided by Paynode and as contemplated herein will not infringe, misappropriate or otherwise breach the rights of any third party. Sub-Merchant Data may be used to perform analytics and create reports and may be used for any other lawful business purposes of Paynode or its Affiliates, its service providers and Scheme Owners.
    2. The “Sub-Merchant Data” is any data or information, including personal, business and financial data and information, of Sub-Merchant provided to or accessed by Paynode in connection with these Paynode General Terms and Conditions (including as described in Section 2(D)(iii) above), and any supplemental information related thereto.
    3. Each Party shall treat as confidential all Confidential Information (as defined below) of the other Party, shall not use such Confidential Information for any purpose other than to perform its obligations under these Paynode General Terms and Conditions and/or as otherwise authorized in these Paynode General Terms and Conditions, and shall not disclose such Confidential Information to any third party or to such party’s representatives except those representatives who are required to have the Confidential Information in connection with such Party’s performance hereunder and who are bound by terms and conditions of confidentiality at least as stringent as those provided in these Paynode General Terms and Conditions. Without limiting the foregoing, each Party shall use at least the same degree of care such Party uses to prevent the disclosure of such Party’s own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other Party. Each Party shall promptly notify the other Party of any actual or suspected misuse or unauthorized disclosure of the other Party’s Confidential Information.
    4. A Party shall not be in breach of these Paynode General Terms and Conditions merely for disclosing Confidential Information as required by applicable statute, regulation, order, or other law, provided that (i) any such disclosure is made only to the extent so required, the disclosing Party, to the extent legally permissible, timely notifies the other Party of the disclosure requirement prior to disclosure, so that the other Party may seek a protective order or confidential treatment, or take other appropriate measures to protect its interests, in which event such Party will reasonably cooperate in such effort, and (iii) if timely notice cannot be given, the disclosing Party seeks to obtain a protective order or confidential treatment from the court or government for such Confidential Information.
    5. “Confidential Information” means any information or material disclosed by either Party to the other Party, directly or indirectly, in writing, orally, visually or by inspection of tangible objects that a Party treats as confidential or proprietary, including, without limitation, any and all information relating to such Party’s or its business partners’ research, development, know-how, products, product plans, services, customers, customer lists, markets, software, developments, inventions, processes, technology, designs, drawings, marketing, finances, or other business information or trade secrets, that is designated as “confidential”, “proprietary” or the like, or that should reasonably be understood to be confidential or proprietary under the circumstances.

 

  1. IT, Data and Payer Information Security.
    1. The Sub-Merchant cannot act as, or on behalf of, any Payer. The Sub-Merchant may only create Payment Requests and receive Sub-Merchant Funds pursuant to Paynode’s provision of the Paynode Services.
    2. Sub-Merchant agrees to immediately notify Paynode of any suspected, alleged or confirmed Compromised Data Event. Sub-Merchant agrees that upon Sub-Merchant’s suspected or actual discovery of a Compromised Data Event, Sub-Merchant will not alter or destroy any related records. Sub-Merchant will share with Paynode all information related to any actual or suspected Compromised Data Event, including, but not limited to, forensic reports and system audits; and allow Paynode access to Sub-Merchant and its Sub-Merchant’s facilities and records for the purpose of performing any inspection, examination and/or copying of books or files pertaining to the affected Payment Transactions. Paynode may share such information with others as permitted under Applicable Law. In the event of a suspected Compromised Data Event and/or violation of Applicable Law, Sub-Merchant must promptly take appropriate corrective action, subject to Paynode’s approval. Paynode shall be entitled to pass on to Sub-Merchant, and Sub-Merchant shall be solely responsible for paying, any costs, damages, fees and other liabilities related to any Compromised Data Event, including without limitation any costs, damages, fees and other liabilities that the Scheme Owners or government authorities may assess against Paynode, and/or the costs Paynode incurs for its investigation of the Compromised Data Event, including those associated with examinations and inspections.

 

  1. Payments and Settlement.
    1. Sub-Merchant agrees to the pricing and settlement terms set forth in the Paynode Fees Schedule located at: https://marketplace.avinode.com/payment/page/fees incorporated herein by reference).
    2. Card Settlement: Sub-Merchant Funds for all card types are disbursed to the Sub-Merchant’s Currency Account once the following criteria are met:
      1. Sub-Merchant has confirmed that services have been rendered; and
      2. Stripe has received the Sub-Merchant Funds from the Scheme Owners.
    3. Card Settlement typically takes 2 business days (excludes statutory holidays in the country in which the Sub-Merchant is located).
    4. Payment Requests, Instant Payments and Beneficiary Payments are subject to certain reviews for compliance with legal and regulatory requirements. Sub-Merchant Funds are not confirmed or available to the Sub-Merchant pursuant to the Paynode Services until the review is complete and the status of the Payment Request, Instant Payment or Beneficiary Payment is set to “Payment Confirmed” in the Paynode Platform. Sub-Merchant acknowledges and accepts the risk of non-payment, if Sub-Merchant elects to provide Sub-Merchant Services before the status of the Payment Request shows as “Payment Confirmed” in accordance with this Section.

 

  1. Representations, Warranties, Covenants and Limitation of Liability.
    1. Neither Party shall be liable to the other for failure to perform hereunder when such failure to perform is due to any natural disaster, fire, flood, storm, strike, terrorist event, act of war, labor unrest, acts of God, equipment or power interruption (when not due to the negligence of the non-performing Party, its employees and contractors) interruptions in the telephone or Internet systems, failures in third party computer software or hardware or any cause beyond the non-performing Party’s reasonable control.
    2. Paynode makes no warranties or representations with respect to the Paynode Services or Payment Provider Services. Furthermore, the express provisions of these Paynode General Terms and Conditions are in place of all warranties, representations, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise to the maximum extent permitted by Applicable Law.
    3. Sub-Merchant acknowledges that the Payer is the purchaser of the Sub-Merchant Services pursuant to these Paynode General Terms and Conditions and that Paynode (including its respective Affiliates) takes no title or risk on any product or service supplied by Sub-Merchant in connection with Sub-Merchant’s provision of the Sub-Merchant Services to Payer. Any dispute arising under Payer’s use of the Sub-Merchant Services is a matter between the Sub-Merchant and the Payer.
    4. Without limiting any other warranties made hereunder, Sub-Merchant represents, warrants and covenants to Paynode and with the submission of each Payment Transaction reaffirms that:
      1. (a) it has full power and legal right to execute and deliver these Paynode General Terms and Conditions and to perform its obligations hereunder, (b) no authorization or approval from any third party is required in connection with Sub-Merchant’s execution, delivery or performance of these Paynode General Terms and Conditions, and (c) in performing its obligations under these Paynode General Terms and Conditions it does and will comply with all Applicable Laws and Operating Procedures;
      2. it is duly qualified and is properly licensed to do business, and is in good standing (a) in each jurisdiction in which the conduct of its business requires it to so qualify or be licensed, and (b) with each Regulatory Authority having jurisdiction over it; and Sub-Merchant has, and shall at all times maintain, all necessary licenses, permits, approvals, and registrations under Applicable Law, in each case which are required to perform its obligations hereunder, including providing the Sub-Merchant Services and receiving the Payment Provider Services;
      3. in connection with Sub-Merchant’s submission of each Payment Transaction that: (a) each Payment Transaction is genuine and arises from a bona fide transaction, permissible under Applicable Law and the Operating Procedures, by the Payer directly with the Sub-Merchant for respective Sub-Merchant Services purchased; (b) each Payment Transaction has been entered into for primarily business purposes, and not for family, personal or household purposes, and (c) with respect to each Payment Transaction, Sub-Merchant has no knowledge or notice of any fact, circumstance or defence that would indicate that such Payment Transaction is fraudulent that would otherwise impair the validity or collectability of that Payer’s obligation arising from that Payment Transaction with respect hereto.
    5. NOTHING IN THESE PAYNODE GENERAL TERMS AND CONDITIONS SHALL OPERATE SO AS TO EXCLUDE OR LIMIT THE LIABILITY OF EITHER PARTY TO THE OTHER FOR: (I) FRAUD; (II) DEATH OR PERSONAL INJURY ARISING OUT OF THAT PARTY’S NEGLIGENCE; OR (III) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
    6. SUBJECT TO SECTION 7(E), UNDER NO CIRCUMSTANCES SHALL PAYNODE AND ITS AFFILIATES BE LIABLE TO SUB-MERCHANT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR SUCH PARTY’S LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH DAMAGES WERE FORESEEABLE AND NOTWITHSTANDING THAT THE PARTY SUFFERING SUCH DAMAGES MAY HAVE BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES COULD ARISE.
    7. SUBJECT TO SECTIONS 7(E) AND (F), THE TOTAL AGGREGATE LIABILITY OF PAYNODE AND ITS AFFILIATES TO THE SUB-MERCHANT UNDER OR IN RELATION TO THESE PAYNODE GENERAL TERMS AND CONDITIONS INCLUDING LIABILITY FOR BREACH OF CONTRACT, MISREPRESENTATION (WHETHER TORTIOUS OR STATUTORY), TORT (INCLUDING NEGLIGENCE) AND BREACH OF STATUTORY DUTY SHALL NOT EXCEED £10,000

 

  1. Indemnification.
    Sub-Merchant agrees to indemnify, defend and hold harmless Paynode and its Affiliates, and their respective directors, officers, employees, subcontractors and agents (the “Indemnitees”), from and against any and all losses, claims, demands, actions, proceedings, damages, fines, penalties, expenses and other payments, costs (including reasonable attorney’s fees), or other liabilities of any kind (together, “Damages”), asserted against or incurred by any of the Indemnitees in any way relating to or arising out of:

    1. death or personal injury caused by the negligence of Sub-Merchant or its agents or subcontractors;
    2. breach of these Paynode General Terms and Conditions by Sub-Merchant;
    3. fraud, or willful misconduct of Sub-Merchant;
    4. infringement of a third party’s intellectual property rights by Sub-Merchant;
    5. non-compliance by Sub-Merchants with Applicable Laws, the Stripe Connected Account Agreement, or Operating Procedures, including, without limitation, any fines imposed by the Scheme Owners or by Regulatory Authorities on Paynode or Stripe as a result of such noncompliance; and
      any VAT, turnover and other taxes or levies including penalties, interests, surcharges (“Taxes”) due on any product or service of Sub-Merchant and any costs or damages related to such Taxes. Sub-Merchant shall apply all reasonable efforts to ensure that Paynode cannot be held liable for any Taxes and costs or damages thereto, shall promptly inform Paynode of any such liability and shall provide Paynode with all relevant information and documentation in that respect.

 

  1. Subcontracting. Paynode may subcontract any or all of its obligations hereunder.

 

  1. Third-Party Beneficiaries These Paynode General Terms and Conditions are intended for the benefit of the Parties hereto and their respective permitted successors and assigns and Paynode’s Affiliates and the Indemnitees, and are not for the benefit of, nor may any provision hereof be enforced by, any other person under any Applicable Law otherwise entitling them to do so. The consent of any third party is not necessary for any variation (including any release or compromise in whole or in part of any liability) or termination of these Paynode General Terms and Conditions.

 

  1. Entire Agreement. These Paynode General Terms and Conditions along with the Avinode Group Data Protection Agreement represent the entire agreement between the Parties relating to subject matter hereof. It replaces and extinguishes all prior agreements, draft agreements, arrangements, collateral warranties, collateral contracts, statements, assurances, representations and undertakings of any nature made by or on behalf of the Parties, whether oral or written, in relation to that subject matter save for the Existing Agreement which shall continue in full force and effect in accordance with Sections 13(I) and (J) below. Each Party acknowledges that in entering into these Paynode General Terms and Conditions it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings which were made by or on behalf of the other Party in relation to the subject matter of these Paynode General Terms and Conditions at any time before their signature (together, “Pre-Contractual Statements”), other than those which are set out in these Paynode General Terms and Conditions. Each Party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements. Nothing in this Section shall exclude or restrict the liability of either Party arising out of its pre-contractual fraudulent misrepresentation or fraudulent concealment.

 

  1. Amendments. Paynode may make updates, changes or amendments (“updates”) to these Paynode General Terms and Conditions and/or the Data Protection Agreement from time to time, and Paynode will post such updates on the Paynode Platform. Such updated Paynode General Terms and Conditions as posted will take effect immediately upon posting on the Paynode Platform. Sub-Merchant should regularly check the Paynode Platform to inform itself of any such updates. Sub-Merchant should check these Paynode General Terms and Conditions regularly to ensure that Sub-Merchant understands the terms of these Paynode General Terms and Conditions that apply at the time that Sub-Merchant accesses and uses the Paynode Platform, or any other component of the Paynode Services. Where possible, Paynode will provide Sub-Merchant with at least fourteen (14) days’ advance notice of any such updates, unless for example, the updates are due to a change in law or for security reasons (in which case Paynode may need to update the terms of these Paynode General Terms and Conditions on shorter or no notice). If Sub-Merchant does not wish to continue using the Paynode Services following the updates to these Paynode General Terms and Conditions, Sub-Merchant can terminate these Paynode General Terms and Conditions on notice to Paynode.

 

  1. General
    1. Paynode reserves the right to send all notices and communications with or to Sub-Merchant (“Communications”) pursuant to these Paynode General Terms and Conditions by posting them on the Paynode Platform or by sending the Communications to the email address Paynode then has on file for Sub-Merchant (which was originally provided during the onboarding KYB/AML background check). To ensure that the Sub-Merchant receives all Communications sent by Paynode, Sub-Merchant must keep its email address up-to-date. Accordingly, Sub-Merchant must immediately notify Paynode via the Paynode Platform of its new email address if the email address Paynode then has on file (which was originally provided during the onboarding KYB/AML background check) changes. Delivery of any Communications by Paynode to the email address Paynode then has on file (which was originally provided during the onboarding KYB/AML background check as updated via the Paynode Platform in accordance with this section) (or the updated email address notified to Paynode via the Paynode Platform in accordance with this Section) is considered valid. Where applicable, Communications will be deemed delivered when posted on the Paynode Platform. If any email Communication is returned as undeliverable, Paynode retains the right to block access to the Paynode Platform until Sub-Merchant provides and confirms a new and valid email address.
    2. Subject to Section 13(A) above, any notice to be given under these Paynode General Terms and Conditions shall be in writing in English and shall be sent by email to the other Party, in the case of Sub-Merchant, at the email address Paynode has on file (which was provided by Sub-Merchant during the onboarding KYB/AML background check ) (or the updated email address notified to Paynode in accordance with Section 12) and, in the case of Paynode, to [email protected] or such other email address as notified by Paynode from time to time.
    3. The failure to exercise, or delay in exercising, a right, power or remedy provided by these Paynode General Terms and Conditions or by Applicable Law shall not constitute a waiver of that right, power or remedy. If a Party waives a breach of any provision of these Paynode General Terms and Conditions, this shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
    4. Nothing in these Paynode General Terms and Conditions shall (except as expressly provided) be deemed to constitute a partnership, or create a relationship of principal and agent for any purpose between the Parties.
    5. The rights, powers and remedies provided in these Paynode General Terms and Conditions are (except as expressly provided) cumulative and not exclusive of any rights, powers and remedies provided by Applicable Law or otherwise.
    6. The Sub-Merchant may not assign, transfer, sub-licence, declare a trust of, mortgage, charge or deal in any other manner with these Paynode General Terms and Conditions or with any of its rights or obligations under it, without the prior written consent of Paynode. Paynode may at any time assign, transfer, sub-licence, declare a trust of, mortgage, charge or deal in any other manner with these Paynode General Terms and Conditions or with any of its rights or obligations under it. The Sub-Merchant shall enter into any further agreements reasonably required by Paynode to give effect to any of the above.
    7. If any provision, or part of a provision, of these Paynode General Terms and Conditions is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision shall be deemed not to form part of these Paynode General Terms and Conditions, and the legality, validity or enforceability of the remainder of the provisions of these Paynode General Terms and Conditions shall not be affected, unless otherwise required by operation of Applicable Law.
    8. The Parties must use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to these Paynode General Terms and Conditions which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question.
    9. By entering into these Paynode General Terms and Conditions, the Parties agree that:
      1. prior to 12 May 2025 (“Cut Off Date”), and notwithstanding that Sub-Merchant has accepted the Stripe Connected Account Agreement, Sub-Merchant shall not be entitled to access the Stripe Services pursuant to these Paynode General Terms and Conditions but, for the avoidance of doubt, will be permitted to participate in (and must complete) the applicable KYC/KYB and AML background checks procedure as envisaged by Section 2(D)(III);
      2. without prejudice to Section 13(I)(3) below, from and including 1 June 2025, Sub-Merchant shall no longer be able to enable Payers to use debit cards or credit cards to facilitate payments to it for Payer’s use of Sub-Merchant Services pursuant to the Existing Agreement and Sub-Merchant shall be entitled to access the Stripe Services pursuant to these Paynode General Terms and Conditions;
      3. for the avoidance of doubt, up to and including 30 November 2025, Sub-Merchant shall be able to process chargebacks or refunds in relation to debit card or credit card transactions acquired by Adyen or American Express pursuant to the Existing Agreement; and
      4. on the 1 December 2025 (such date being, the “Termination Date”) the Existing Agreement shall terminate. The terms of these Paynode General Terms and Conditions and the Stripe Connected Account Agreement shall not apply to any debit card or credit card transactions processed in connection with the Paynode Platform and which took place prior to the Cut Off Date.
    10. Nothing in these Paynode General Terms and Conditions is intended to affect any rights which have accrued to either Party under the Existing Agreement prior to the Termination Date (“Accrued Rights”), or either Party’s ability to enforce such Accrued Rights. Nothing in these Paynode General Terms and Conditions is intended to be, or should be construed as, a compromise or waiver of any claims which have accrued under the Existing Agreement prior to the Termination Date.

 

  1. Governing Law and Jurisdiction
    These Paynode General Terms and Conditions, and any dispute arising out of or in connection with these Paynode General Terms and Conditions (including any non-contractual disputes or claims), shall be governed by English law.
    Each of the Parties hereto 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 these Paynode General Terms and Conditions (including any non-contractual disputes or claims).

 

Schedule 1:
US and Canada Specific Amendments

Where Paynode LLC is the relevant entity entering into these Paynode General Terms and Conditions with Sub-Merchant (as determined in accordance with the paragraph above), then these Paynode General Terms and Conditions will be amended as follows:

  1. Clause 7 Representations, Warranties, Covenants and Limitation of Liability Reference to “£10,000” in Clause 7(G) shall be replaced with “$10,000”.
  2. Clause 14 Governing Law and Jurisdiction – this clause shall be deleted and replaced with the following:“These Paynode General Terms and Conditions shall be governed by the laws of the State of New York, without regard to conflict of law principles that would result in the application of any law other than the law of the State of New York. Each party irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York, or any court of the State of New York located in New York County for any and all disputes arising from or in connection with these Paynode General Terms and Conditions. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF, OR RELATED TO, THESE PAYNODE GENERAL TERMS AND CONDITIONS.”

SCHEDAERO GENERAL TERMS AND CONDITIONS

Version 2025.5.15 effective May 15, 2025

1. GENERAL

1.1 This document contains terms and conditions governing the contractual relationship between Schedaero and the Member as created through that certain membership agreement (as replaced, extended or renewed between the parties from time to time, the “Membership Agreement”). The Membership Agreement must be read in conjunction with these General Terms and Conditions and the Data Protection Agreement to form the entirety of the contractual relationship governing the Member’s membership subscription to the Service.

1.2 These General Terms and Conditions shall remain in effect until superseded by a revised version of General Terms and Conditions, pursuant to Section 7 hereof.

1.3 Any capitalized terms used but not defined herein shall have the meanings ascribed to them in the Membership Agreement.

2. THE SERVICE

2.1 Schedaero provides access to the web-based aircraft and crew scheduling software system via various websites of which the main website is Schedaero.com (the “Site”). The Site is used by Schedaero’s members for the scheduling of crew and aircraft, quoting and invoicing.

2.2 In addition to the Service provided to the Member, Schedaero provides various services to other members over the Site (as further described in the section 6). Schedaero’s complete offering of services (including the Service subscribed to by the Member) are hereinafter referred to as the “Offered Services”.

2.3 Schedaero reserves the right to modify the Site, the Service and the Offered Services, in part or in their entirety, at any time.

3. ACCESS TO THE SERVICE

3.1 AUTHORIZED USE

3.1.1 Access to the Service is granted to the Member on a membership subscription basis. A valid and effective membership subscription requires a valid Membership Agreement and a current account balance. Access to the Service will be activated once a valid Membership Agreement has been signed by both parties and Schedaero has received payment for the first Payment Period.

3.1.2 The Service may only be used in accordance with the terms of the Membership Agreement and these General Terms and Conditions. The Member further undertakes to comply with applicable Terms of Use and Privacy Notice, of which the most current versions are always accessible on the Site.

3.2 MINIMUM REQUIREMENTS

3.2.1 The most current requirements with respect to supported browsers, system limitations and minimum specifications for operating the Service can always be found on the Site.

3.3 USER ID’S AND PASSWORDS

3.3.1 Each user account is associated with a specific user ID and a password.

3.3.2 Each user ID and each password is confidential and the assigned user may not disclose or share it with anyone else, including other employees or representatives of the Member or individuals outside the Member’s organization, and it may not be used for any unauthorized purpose. The Member will use all reasonable efforts to make sure that employees and representatives which are provided with a user ID and a password undertake to keep such information confidential.

3.3.3 The Member is fully responsible for any and all use of the Site and the Service by anyone using a user ID and a password connected to a user account provided to the Member.

3.3.4 The Member hereby acknowledges that the use of the user ID and password together constitutes the Member’s authorization of an individual’s use of the Service and the Site. The Member is thus aware that it will be bound by any action or information submitted through the use of the user ID and password. The Member is consequently aware of the necessity to implement adequate security measures to make sure that its user ID’s and passwords are not disclosed and/or misused.

3.3.5 The Member agrees that users may receive emails from the Site and may manage their email preferences in the user profile.

4. SUBMISSIONS

4.1 USE AND OWNERSHIP

4.1.1 Any and all content, data, graphics, images and other information that the Member transmits through the Site (“Submissions”) shall remain the Member’s sole and exclusive property, and the Member shall be solely responsible for its Submissions.

4.1.2 The Member agrees to only provide information that it deems suitable for publication on the Site. Any Submission that the Member provides to Schedaero will be deemed public information and not subject to any confidentiality obligation, and Schedaero shall have no obligation to maintain its confidentiality, except to the extent the Submission contains personal identifiable information, in which case Schedaero’s Privacy Notice shall govern Schedaero’s use of such information.

4.1.3 The Member may only provide the Service with information in the form of text, numbers, pdf documents and digital photos intended to be read and understood by other members.

4.1.4 The Member agrees to maintain and promptly update Submissions in order to keep information that has been posted or communicated through the Service true, accurate, current and complete. The Member undertakes to continuously provide Schedaero, through the Service, with any relevant information about the Member’s business, as it relates to the Service. Schedaero agrees to as promptly as possible remove any Submission made by the Member from displaying through the Offered Services, upon written request from the Member.

4.1.5 By transmitting Submissions to the Service, the Member hereby grants Schedaero and its successors a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, sub-licensable (through multiple tiers) and transferable license to use, copy, display, transmit or otherwise distribute the Member’s Submissions through the Offered Services. The Member also grants each user of the Offered Services a non-exclusive license to access the Member’s Submissions through the Offered Services and to use, copy, display, transmit or otherwise distribute its Submissions in relation to their use of the Offered Services.

4.1.6 Except as set forth in Section 4.1.5, nothing in the Membership Agreement or these General Terms and Conditions shall be construed as conveying any ownership, license, or any other interest whatsoever in or to any of the Member’s intellectual property (including without limitation the Member’s or the Member’s affiliates’ logos, trademarks, copyrighted or patented material, photographs of the Member’s or the Member’s clients’ aircraft or any other marketing material). Schedaero may only create derivative works of the Member’s submission in order to mask unique identifying data, such as removing the tail number from a submitted photo.

4.1.7 Information provided through Submissions that is used, transmitted, distributed or displayed by Schedaero for other purposes than as part of the Offered Services shall only be used, transmitted, distributed or displayed in the form of generic statistical data (for the purpose of these General Terms and Conditions, “generic statistical data” means anonymized aggregated data gathered from at least three different member companies).

4.1.8 Member may import spreadsheets of third party contracted fuel pricing data for one or more airports (the “Third-Party Pricing Data”) into the Service by using one of the mechanisms permitted by Schedaero from time to time. Member may view such Third-Party Pricing Data within the Service to compare the Third-Party Pricing Data when making a fuel purchasing decision. If Member desires to purchase fuel from one of the Third-Party fuel providers whose pricing is included in the Third-Party Pricing Data, Member may request to purchase fuel from such Third-Party fuel provider within the Service via email and will be able to manually load the purchase confirmation into the Service. Third-Party Pricing Data shall constitute a Submission, except as set forth in this Section 4.1.8. Specifically, Section 4.1.2 shall not apply to Third-Party Pricing Data, and notwithstanding Section 4.1.3, the Third-Party Pricing Data will not be visible to other members of the Service and will only be used by Schedaero to display the Third-Party Pricing Data within the Service for Member.

4.2 ACCURACY OF AND RESPONSIBILITY FOR INFORMATION

4.2.1 Schedaero undertakes to use commercially reasonable efforts to ensure that the Site will accurately relay any information provided by members to the Member without corruption or distortion.

4.2.2 All information provided through the Site is provided by members of Schedaero’s services. Schedaero has no control over, and fully disclaims any form of responsibility or liability with respect to, the quality, accuracy, legality, truth or completeness of any information provided by its members, the ability of members to provide such information, the ability of members to pay for any services rendered through use of such information, the quality or legality of the services provided by its members, or the terms and conditions of any transaction between members.

5. ABUSE

5.1 The Member may not enter any form of data, device, software or routine that could pose a threat to the security or functionality of the Site or the Offered Services, including but not limited to HTML, ASP, XML, viruses, trojans, hyperlinks, auto responders, time bombs or cancel bots.

5.2 The Member may not damage or interfere with the proper working of the Site or surreptitiously intercept or expropriate any system, data or information from the Site.

5.3 The Member may not take any action which imposes an unreasonable or disproportionately large load on the Site, the Service or any infrastructure connected therewith, including but not limited to “spam”, denial of service attacks, unsolicited mass e-mailing and other techniques.

5.4 The Member must not reproduce, reverse engineer, decompile, disassemble, modify or create derivative works with respect to the Service, the Site or any other services provided by Schedaero, regardless of platform.

5.5 Any breach by the Member of this Section 5 shall for all purposes be regarded as a “material breach” of the Membership Agreement and these General Terms and Conditions.

6. OFFERED SERVICES

6.1 Schedaero provides a range of different services to its members. For additional fees, the Member may elect to include additional services not already included in the Subscribed Services and Supplemental Terms may also apply. All payment transactions made by Members through Schedaero are subject to the Sub-Merchant General Terms and Conditions, which are set forth at https://avinodegroup.com/legal/#paynode-general-terms-and-conditions which are incorporated by reference herein. Use of these additional services will be governed by the provisions of the Membership Agreement, these General Terms and Conditions, the Data Protection Agreement, and any such Supplemental Terms.

7. CHANGES AND AMENDMENTS

7.1 THE GENERAL TERMS AND CONDITIONS

7.1.1 Schedaero reserves the right to change or update the General Terms and Conditions and/or the Data Protection Agreement at any time and in its sole discretion, by making updates wherever such terms are made available to Members, or emailing to the Member at the email address the Member has provided to Schedaero, a change notice or a revised General Terms and Conditions and/or the Data Protection Agreement available at https://avinodegroup.com/data-privacy/. If any modification is unacceptable to the member, the Member’s sole remedy is to give Schedaero a notice of termination in accordance with Section 8. If Schedaero has not received a notice of termination from the Member within the sixty (60) days following the Member’s receipt of the notice of revised General Terms and Conditions, the Member hereby agrees that the new and revised General Terms and Conditions shall replace and supersede the previous version and be effective as of the sixty first (61st) day following the Member’s receipt of Schedaero’s notice with revised General Terms and Conditions and/or Data Protection Agreement.

7.2 THE MEMBERSHIP AGREEMENT

7.2.1 The Membership Agreement may be amended, modified or supplemented by one party sending a requested change to the other party, in accordance with the notice provisions of the Membership Agreement, and the other party confirming the requested change in writing or via email. The Member may also unilaterally remove products from the Services by giving Schedaero at least ten (10) days written notice, such removal to be effective from the first day of the following month. However, notwithstanding the foregoing, no product may be unilaterally removed by the Member until and unless it has been active for at least ninety (90) days (or six (6) months with respect to Apps). If ten (10) days written notice to remove a product is received by Schedaero before the minimum active time has elapsed, the removal will be effective as of the first day following the end of such 90 days (or 6 months with respect to Apps).

8. CANCELLATION AND TERMINATION

8.1 Either party may terminate the Membership Agreement at once in the event that the other party is in default or breach of any material provision of the Membership Agreement or these General Terms and Conditions and such default or breach has not been cured within ten (10) days after written notice thereof (if at all possible to be cured within ten (10) days).

8.2 Either party may terminate the Membership Agreement for any reason by providing sixty (60) days written notice. The termination will take effect the first (1st) day of the month following expiration of the sixty (60) day notice period.

8.3 Upon receipt of a revised version of the General Terms and Conditions in accordance with Section 7, the Member shall have the right to terminate the Membership Agreement as of the expiration of the sixty (60) day notice period, provided that Schedaero has received the Member’s written termination notice before the expiration of such notice period.

8.4 The first time Member enters into a Membership Agreement, it may cancel its membership with immediate effect within seven (7) business days of the agreement start date. A request for cancellation must be submitted in writing.

9. REFUNDS AND CREDIT NOTES

9.1 Refunds or credit notes will only be issued for pre-paid future services. No refunds will be given for periods that have already passed.

9.2 Should a first-time Member choose to cancel within the first seven (7) days of membership, Schedaero will issue a refund for any pre-paid amounts, less one month’s fees and any applicable one-time set up fees.

9.3 If due to any revision of the Membership Agreement a balance is owed to the Member, Schedaero will issue a credit for the Member. The credit will then be applied to the next invoice.

9.4 Should the Member choose to terminate or not renew the Membership Agreement, a refund will be issued to the Member for any pre-paid amounts.

9.5 If the Member terminates the Membership Agreement in accordance with Section 8.1, the Member is entitled to a refund of any remaining pre-paid amounts. If Schedaero terminates the Membership Agreement in accordance with Section 8.1, no refund will be given.

10. SCHEDAERO’S RESPONSIBILITY

10.1 Schedaero shall use all commercially reasonable efforts to keep the Site and the Service available twenty four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Schedaero reserves the right to make the Site and the Service unavailable from time to time in order to install new releases, to perform maintenance, or to undertake activities to protect the Site, the Service or the information provided through them. Schedaero will make all reasonable efforts to notify members of planned system changes three (3) days in advance by posting clear notices on the Site and/or by sending an e-mail notification to the Member at the address provided by the Member for e-mail notices in the Membership Agreement. Furthermore, Schedaero does not assume responsibility for unavailability and downtime caused by force majeure or other events and circumstances beyond Schedaero’s control, it being understood that failure in the transfer of data, problems inherent in the use of communication facilities and failures caused by the Member not adhering to Schedaero’s instructions or policies will always be considered circumstances beyond Schedaero’s control.

10.2 The Member acknowledges that Schedaero is not a broker nor an operator of charter flights. Schedaero is not a party to transactions or contractual arrangements that may arise between its members. Because Schedaero’s members are independent companies with their own operating policies, procedures and processes, and because they operate independently of Schedaero, Schedaero cannot and will not control or monitor their actions. Nor does Schedaero assume any responsibility for any of its members’ errors or omissions. Any agreements entered into by the Member with other members as a result of the use of the Services are at the sole discretion and risk of the Member, and each member bears the full responsibility for the payment and performance of all arrangements and agreements entered into with other members.

BY SIGNING THE MEMBERSHIP AGREEMENT, OF WHICH THESE GENERAL TERMS AND CONDITIONS IS AN INTEGRAL PART, THE MEMBER ACKNOWLEDGES AND AGREES THAT SCHEDAERO SHALL NOT BE RESPONSIBLE FOR, AND SHALL NOT INCUR ANY LIABILITY TOWARDS THE MEMBER AS A RESULT OF, ANY LOSS OR DAMAGE CAUSED BY THE ACTS OR OMISSIONS OF OTHER MEMBERS, REGARDLESS OF IF SCHEDAERO FACILITATED THE UNDERLYING TRANSACTIONS AND REGARDLESS OF THE BASIS OF SUCH CLAIMS, AND THE MEMBER HEREBY WAIVES AND RENOUNCES ANY RIGHT IT MAY OTHERWISE HAVE TO CLAIM INDEMNIFICATION FROM SCHEDAERO IN SUCH RESPECT.

11. MEMBER’S REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES

11.1 By entering into the Membership Agreement, including these General Terms and Conditions, and by using the Service, the Member represents, undertakes and warrants that upon execution of the Membership Agreement and at any given time after that (as applicable):

(a) the Member is a duly incorporated and validly existing company, corporation or similar legal entity under the laws of its place of registration or incorporation;

(b) the execution, delivery and performance of the Membership Agreement and these General Terms and Conditions is duly authorized by the Member and has been duly executed and delivered for and on behalf of the Member by persons authorized to do so;

(c) all information provided by or on behalf of the Member to Schedaero or through the Site, is and will be true, correct and not misleading and it is the Member’s responsibility to control such information before the use of the Service;

(d) any person that is provided with a user account, and the user ID and the password associated to such account, has the right and authority to act through the Service and the Site on behalf of the Member;

(e) the Member owns and/or has the necessary licenses, rights, consents, and permissions to use and authorize Schedaero to use all patent, trademark, trade secret, copyright or proprietary rights in and to any and all Submissions to enable inclusion and use of the Submissions by the Site and the Offered Services;

(f) the Member is not insolvent, has not gone into liquidation, has not had a receiver appointed for any or all of its assets, has not entered into receivership, is not declared bankrupt, has not taken general measures to cease payments of its debts, has not entered into negotiations for a general agreement with its creditors, has not entered into composition, reorganization or similar arrangements with its creditors;

(g) when submitting any aircraft availability through the Offered Services with the intent to be displayed to other Members through the Offered Services, the Member represents and warrants that (i) the relevant aircraft is available for charter as detailed, (ii) the aircraft has a valid Air Operation Certificate or Part 135 Certificate, and (iii) the registration number provided is valid and relates to the aircraft offered; and

(h) the Member shall comply with all applicable laws, statutes, ordinances and regulations, as well as all material industry standards, including obtaining all necessary permits and/or approvals necessary to perform its obligations under the Membership Agreement and the marketing, selling and/or operation of charter flights.

12. SCHEDAERO’S REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES

By entering into the Membership Agreement, including these General Terms and Conditions, and by providing the Service, Schedaero represents, undertakes and warrants that upon execution of the Membership Agreement and receipt of the Membership Fee, and at any given time after that (as applicable):

(a) Schedaero Inc. and Schedaero AB are duly incorporated and validly existing under the laws of their respective jurisdiction of incorporation;

(b) the execution, delivery and performance of the Membership Agreement and these General Terms and Conditions is duly authorized by Schedaero and has been duly executed and delivered for and on behalf of Schedaero by persons authorized to do so;

(c) the Service is developed, produced or provided to the Member under the Membership Agreement without infringing upon any intellectual property rights of any other person or entity; and

(d) Schedaero shall comply with all applicable laws, statutes, ordinances and regulations, as well as all material industry standards, including obtaining all necessary permits and/or approvals necessary to perform its obligations under the Membership Agreement.

13. LIMITATIONS

SCHEDAERO PROVIDES THE SITE AND THE SERVICE AS IS, WHERE IS, AND AS AVAILABLE. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, SCHEDAERO MAKES ABSOLUTELY NO WARRANTY OR CONDITION OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY. SCHEDAERO SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SCHEDAERO MAKES NO WARRANTY REGARDING THE ACCURACY OF ANY DATA PROVIDED BY OTHER MEMBERS. FURTHERMORE, SCHEDAERO DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SITE AND THE SERVICE, AND THE MEMBER IS HEREBY PUT ON NOTICE THAT OPERATION OF THE SITE AND THE SERVICE MAY BE INTERFERED WITH AND INTERRUPTED BY NUMEROUS FACTORS OUTSIDE SCHEDAERO’S CONTROL.

14. INDEMNIFICATION

14.1 Subject to the limitations set forth below and elsewhere in these General Terms and Conditions, the parties agree to indemnify, defend and hold each other harmless from and against any and all losses, claims, expenses and damages (including attorney’s fees) resulting from its own breach of any provisions of the Membership Agreement and/or these General Terms and Conditions.

14.2 The Member agrees that Schedaero shall not be liable for any losses or damages arising out of or in connection with any interruption, suspension or termination of the Site or the Service.

14.3 The Member assumes full responsibility for, and Schedaero shall not indemnify the Member for, loss or damage resulting from the Member downloading and/or using third party files, information, communications, content, or other material (including without limitation software) accessed through or obtained by means of the Site or the Service.

14.4 In no event shall either party, or an officer, affiliate, director, shareholder, agent or employee thereof be liable to the other for any indirect, consequential, incidental, special, punitive or exemplary damages, including but not limited to lost profits, loss of data or otherwise out of or in connection with this agreement, unless such loss or damage is caused by the gross negligence or wilful misconduct of such party, its officers, employees, agents or representatives.

14.5 The cumulative liability for either party under this agreement to the other party shall in no event exceed an amount corresponding to the Membership Fee for one year of membership, regardless of whether such party knew or should have known of the possibility of such damage.

14.6 The Member acknowledges that it is entering into the Membership Agreement only with the Avinode entity that signed the Membership Agreement and that each Avinode entity is operating on a stand-alone basis, and the Member further acknowledges and agrees that any claims against Schedaero shall only be made against the Avinode entity that signed the Membership Agreement (or such Avinode Group entity to which the Membership Agreement has been transferred or assigned in accordance with Section 20). Schedaero expressly disclaims and renounces any form of cross-guaranties or similar intra-group responsibility between any Avinode entities, which the Member acknowledges by entering into the Membership Agreement with the contracting Schedaero entity only.

15. PRIVACY AND DATA PROTECTION

15.1 The objective of the Service is to store, analyze and exchange information. Hence, by using the Service the Member agrees and acknowledges that Schedaero may obtain and collect information in a variety of ways. Such information includes, but is not limited to, information about the Member or provided by the Member, information regarding activities on the Site and the use of the Service, as well as messages sent or received by the Member through the Service.

15.2 Upon issuing a user account, including a user ID and password, Schedaero will process personal data (“Personal Data”), such as name and contact details, of the Member’s employees or representatives. The processing of such Personal Data shall be subject to the Data Protection Agreement.

16. USE OF CUSTOMER DATA

16.1 To be able to provide the Service Schedaero is processing information, such as Personal Data, regarding the Member’s customers (the “Customers”) provided by the Member, in order to fulfil Schedaero’s obligations under the Membership Agreement and these General Terms and Conditions and for other purposes related to the Offered Services. The processing of Personal Data regarding Customers shall be subject to the Data Protection Agreement.

17. OWNERSHIP

17.1 Nothing in the Membership Agreement or these General Terms and Conditions shall mean that any of Schedaero’s ownership, license rights, or the like, or part thereof, is assigned, sub-licensed or transferred to the Member.

17.2 With respect to ownership of data and information on the Site and available through the Offered Services, each member only owns the information provided through its own Submissions, subject to the provisions of Section 4. All other data, source code, and any other code and information is owned by Schedaero, and the Member agrees to not reproduce, reverse engineer, decompile, disassemble, modify or create derivative works of such data and information.

17.3 The Service, as well as the data and information provided through the Offered Services, may only be used for the Member’s internal purposes within the scope of the Member’s business.

18. CONFIDENTIALITY

18.1 The parties undertake to keep confidential the terms of the Membership Agreement and these General Terms and Conditions, including but not limited to information regarding prices and payment terms.

18.2 Notwithstanding Section 18.1, the parties may disclose any information that it is otherwise required to keep confidential under this clause:

(a) to such employees, professional advisers, consultants or officers of either party as are reasonably necessary to advise either party in relation to the Membership Agreement, if the disclosing party ensures that the people to whom the information is disclosed keep it confidential as if they were themselves bound by these provisions; or

(b) to the extent that the disclosure is required:

(i) by law; or

(ii) by a regulatory body, tax authority or securities exchange; or

(iii) to make any filing with, or obtain any authorization from, a regulatory body, tax authority or securities exchange; or

(iv) to protect either party’s interest in any legal proceedings, but the parties shall in each case set forth in subsection (b) above use reasonable endeavors to consult the non-disclosing party and take into account any reasonable requests the non-disclosing party may have in relation to the disclosure before the disclosing party makes it.

18.3 This Section 18 shall survive termination or expiration of any Membership Agreement and remain in effect for a period of two (2) years thereafter.

19. LEGAL STATUS

Schedaero and the Member are both independent contractors. No agency, partnership, joint venture or any other relationship of such kind is intended or created by the Member’s entry into the Membership Agreement or the Member’s use of the Site, the Service, or the information exchanged by such means.

20. ENTIRETY OF THE AGREEMENT

Both parties confirm that the Membership Agreement, along with these General Terms and Conditions and the Site’s Terms of Use and Privacy Notice, represent the entire understanding and constitute the entire agreement between the parties in relation to its subject matter, and supersedes all prior agreements, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, agent, employee or representative of either of the parties.

21. ASSIGNMENTS

21.1 Schedaero may assign the Membership Agreement (together with these General Terms and Conditions), to another party within the group of companies in which Avinode Holding AB, reg. no SE556692332101, is the parent company.

21.2 The Member may not assign the Membership Agreement (and hence not these General Terms and Conditions) to any other party without the prior written consent of Schedaero, such consent not to be unreasonably withheld or delayed.

22. INTERPRETATION

22.1 The headings of the Membership Agreement and these General Terms and Conditions are for convenience only and shall not affect the interpretation of any provision of the Membership Agreement and these General Terms and Conditions.

22.2 The provisions of Membership Agreement and these General Terms and Conditions shall be construed according to their fair meaning and neither for nor against the party which caused such provisions to be drafted.

22.3 In the event of conflict between the provisions of the Membership Agreement and these General Terms and Conditions, the provisions of the Membership Agreement shall prevail.

23. PARTIAL INVALIDITY AND WAIVER

23.1 If any provision of the Membership Agreement, or these General Terms and Conditions, or the application of them, is declared or deemed void, invalid or unenforceable in whole or in part for any reason, the parties shall amend the Membership Agreement and/or these General Terms and Conditions, as shall be necessary to give effect to the spirit and purpose of the Membership Agreement and these General Terms and Conditions, as far as possible. If the parties fail to amend the Membership Agreement and/or these General Terms and Conditions, the provision which is void, invalid or unenforceable shall be deleted and the remaining provisions of the Membership Agreement and these General Terms and Conditions shall continue in full force and effect.

23.2 Waiver by one party of strict performances of any provision of the Membership Agreement or General Terms and Conditions will not be a waiver of or prejudice to such party’s right to require strict performance of the same provision in the future or of any other provision.

24. GOVERNING LAW AND DISPUTES

24.1 FOR MEMBERS INCORPORATED OR FORMED IN THE AMERICAS

24.1.1 The Membership Agreement and these General Terms and Conditions shall be interpreted and construed according to, and governed by, the substantive laws of the state of New York, excluding any such laws that might direct the application of the laws of another jurisdiction.

24.1.2 Any controversy or claim arising out of or relating to the Membership Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The seat of arbitration shall be New York City, New York, USA. The language to be used in the arbitral proceedings shall be English.

24.2 FOR MEMBERS INCORPORATED OR FORMED IN ALL OTHER REGIONS

24.2.1 The Membership Agreement and these General Terms and Conditions shall be interpreted and construed according to, and governed by, the substantive laws of Sweden, excluding any such laws that might direct the application of the laws of another jurisdiction.

24.2.2 Any controversy or claim arising out of or relating to the Membership Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English.

CHANGES TO TERMS AND CONDITIONS

Effective April 23, 2025, Avinode General Terms and Conditions were updated to incorporate our Data Processing Addendum (DPA), which clarifies how personal data is handled and removes duplicative or conflicting language.

Key updates include:
Reference to the DPA added in Section 1
Removal of Section 4.2.2 and Section 4.4, as the DPA now governs all personal data processing
Addition of the DPA link and reference in Section 7.1.1


Effective November 29, 2023, Avinode General Terms and Conditions were updated with the following changes:

  1. Revised Section 7.2.1 – Clarification on how changes to Appendix 2 in the Membership Agreement can be implemented.
  2. Revised Section 8.1 – Access to the Subscribed Services may be suspended or terminated if Member is not compliant with know your customer procedures or other applicable compliance requirements or if Member may cause Avinode to breach Avinode’s internal risk policy.

 


Effective 8 December, 2021, the Paynode General Terms and Conditions were updated with the following changes:

  1. Additional terms and clarifications were added regarding the debit of funds for Chargebacks.
  2. Additional terms were added regarding Authorized Charges and Authorization Integrity Fees.

 


Effective 28 June 2021, the Avinode General Terms and Conditions were updated with the following change:

  1. Carbon Offset General Terms and Conditions were incorporated by reference in Section 6.1.

 


Effective 20 December 2019, the Avinode General Terms and Conditions were updated with the following changes:

  1. Paynode General Terms and Conditions were incorporated by reference in Section 6.1.
  2. Reference to Wyvern was removed from Section 4.2.4.
  3. The definition of “generic statistical data” was updated in Section 4.2.5.
  4. Version number was changed to 2019.1.1

 


Effective 18 May 2018, the Avinode General Terms and Conditions were updated. Here is a summary of what changed from the prior version:

  1. Added to Section 3.2.1 – Avinode reserves the right to increase the prices up to three percent (3%) annually in order to account for inflation and general cost increases.
  2. Added to Section 3.2.1 – When changes are made to the updated Subscribed Services and fees, the changes will be deemed accepted by the Member if the Member submits a payment in conformance with the updates.
  3. Added Section 3.4.5 – The Member agrees that users may receive emails from the Site and may manage their email preferences in the user profile.
  4. Revised Section 4.2 – Added Personal Data as a new defined term.
  5. Added Section 4.3 – Member acknowledges that the Avinode Services and the Site are not PCI compliant and not intended for the storage of credit card information.
  6. Added to Section 4.4 – Added clauses regarding the processing and handling of Personal Data as required by the General Data Protection Regulation and other applicable laws.
  7. Revised Section 8.1 – Removed the requirement for Avinode to grant Member 10 days to cure a complaint from another Member before being able to suspend the Member’s access.
  8. Added to Section 8.1 – If a member’s account has been suspended for 90 days, then the Agreement will automatically terminate without any action by Avinode.
  9. Revised Section 18.3 – Added Paynode as an Avinode Group Mark.
  10. Version number was changed to 2018.1.1