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General Terms and Conditions

A. Background and scope

A.1. These general terms and conditions (GTCs, which, together with any separate cooperation agreement between Kustom AB (Kustom) and the Merchant (as defined below) and any appendices, guidelines and other documents contained in or incorporated by reference into such cooperation agreement are referred to as the Agreement) apply to the integration and use of the checkout platform and each services provided therein (together, the Checkout Solutions) by Kustom to its customers (each a Merchant), which may include various features or services that may change from time to time. Such features and services may be offered or performed by Kustom or any third party subject to separate terms and conditions. By using or otherwise accepting any feature or service included or otherwise available through the Checkout Solution the Merchant agrees to be bound by the terms and conditions of such feature or service. Specifically, but without prejudice to the generality of the foregoing, the Checkout Solution include (a) one or more payment methods (each a Payment Method) provided by one or more third party payment service providers or, as the case may be following the acquisition of necessary licenses, Kustom (each a Payment Service Provider) to enable Shoppers (as defined in Section 1 below) to pay their purchases from the Merchant, and (b) other administrative services such as merchant support (Merchant Support Services).

A.2. The Payment Methods featured in the Checkout Solution may include, without limitation, the payment methods offered by a member of the Klarna Bank AB (publ) group (Klarna Services), Stripe Payments Europe, Limited and Stripe Technology Europe, Limited (together Stripe, as further specified in the Stripe Services Agreement (as defined below) (Stripe Services), any other third party and/or, as the case may be following the acquisition of necessary licenses, Kustom. The Payment Service Providers apply separate terms and conditions for their respective Payment Methods (Payment Service Provider Terms).

A.3. Furthermore, the completion of a Payment Method may involve schemes, systems or networks for the processing of the relevant payment and other related services (each a Payment Scheme) which are subject to separate terms and conditions (Payment Scheme Terms). The Parties acknowledge and agree that such Payment Schemes Terms may apply, including as set out on https://kustom.co/docs, or pursuant to any Payment Service Provider Terms or as otherwise instructed by Kustom. Any service charge (consisting of (i) a variable fee which is charged as a percentage of the transaction amount and/or (ii) a fixed transactional fee which is charged as a fixed fee per Transaction) applied by Kustom to the Merchant (Service Charges) and other claims Kustom or any Payment Service Provider, as the case may be, may have under this Agreement or the Payment Scheme Terms are quoted excluding sales tax, which includes Value Added Tax (VAT), General Sales Tax (GST) or any equivalent value added sales tax under applicable law (Sales Tax), where Sales Tax is applied (and calculated on the transaction amount including Sales Tax).

A.4. The Checkout Solutions will be available to a Merchant as separately agreed with Kustom and subject to these GTCs and any onboarding requirements, as determined by Kustom. 

A.5. A Payment Service Provider or a Payment Scheme whose services are being used via the Checkout Solution in respect of a specific payment will be referred to herein as the designated Payment Service Provider or designated Payment Scheme unless the context provides otherwise.

B. Additional acknowledgments

B.1. If the Checkout Solution includes or enables use and provision of Klarna Services, the following will apply. In view of Klarna being a licensed bank under the supervision of the Swedish Financial Supervisory Authority, and for the purpose of ensuring that Klarna is able at all times to fulfill its obligations in relation to Shoppers, the Parties agree as follows. In the event Kustom is unable to repay Klarna Bank AB or its affiliates (e.g. due to Kustom's actual or pending insolvency) for reversed Claims or any other amounts owed by Kustom to Klarna under any agreement between Klarna and Kustom (a Partner Non-Repayment Event), the Merchant shall upon Klarna’s notice without undue delay repay any reversed Claims and any other related amounts to Klarna. For the purpose hereof, and to the extent required, Merchant agrees that any claims Kustom may have against Merchant arising out of or connected to Merchant’s use of the Klarna Services, shall upon a Partner Non-Repayment Event automatically be assigned or, as the case may be, transferred to Klarna. If requested by Klarna, the Merchant will provide assistance in this process. Klarna may only seek repayment directly from Merchant hereunder while a Partner Non-Repayment Event is taking place.

B.2. If the Checkout Solution includes or enables use and provision of Stripe Services, the following will apply. The Stripe Services for payment processing services for the Merchant via the Checkout Solutions are provided by Stripe and are governed by a Stripe Connected Account Agreement as set out at https://stripe.com/se/legal/connect-account, which includes the Stripe Terms of Service as set out at https://stripe.com/se/legal/ssa (as defined therein and collectively referred to as the Stripe Services Agreement and referred to as the Payment Service Provider Terms in this Agreement in respect of the Stripe Services). The Stripe Services Agreement is made available from time to time by Stripe on its website, or as otherwise instructed by Kustom. By agreeing to this Agreement or the continued use of the Checkout Solutions through which the Stripe Services are offered, the Merchant agrees to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Kustom enabling payment processing services through Stripe, the Merchant agrees to provide Kustom accurate and complete information about the Merchant and the Merchant's business, and the Merchant authorises Kustom to share it and transaction information related to the Merchant's use of the payment processing services provided by Stripe. Furthermore, when the Merchant provides personal data in connection with any payment service to be performed by Stripe, Stripe receives that personal data and processes it in accordance with Stripe’s Privacy Policy.

B.3. If the Checkout Solution includes or enables use and provision of any other Payment Method than Klarna Services or Stripe Services, the following will apply. Such Payment Method for payment processing services for the Merchant via the Checkout Solutions are provided by the designated Payment Service Provider and are governed by separate terms and conditions provided and/or published by the designated Payment Service Provider, which may include various parts governing all aspects of the application of the provision and use of such Payment Method (collectively referred to as the Payment Service Provider Terms in this Agreement in respect of such Payment Methods). By the continued use of the Checkout Solutions through which the designated Payment Method are offered, the Merchant agrees to be bound by the Payment Service Provider Terms, as the same may be modified from time to time by the Payment Service Provider offering such Payment Method. As a condition of Kustom enabling payment processing services through a Payment Service Provider, the Merchant agrees to provide Kustom accurate and complete information about the Merchant and the Merchant's business, and the Merchant authorises Kustom to share it and transaction information related to your use of the payment processing services provided by the Payment Service Provider. Furthermore, when the Merchant provides personal data in connection with any Payment Method or Payment Scheme to be performed by a provider of such survice, such service provider receives that personal data and processes it in accordance with its privacy policy that apply for such purposes.

B.4. The designated Payment Service Provider will schedule payment to the Merchant within a customary settlement cycle that is initiated by the Capture (as defined in Section 1 below). The receipt of settlements as cleared funds in the Merchant’s bank account(s) may be delayed because of interbank systems, delays by the Payment Service Provider and other circumstances over which Kustom has no control.

B.5. Kustom is not liable for determining if any taxes apply to a payments involving a Merchant or a Shopper or any other party, or to collect, report and remit the correct tax to the appropriate tax authority.

B.6. Kustom, and each Payment Service Provider, reserves the right to perform financial and other controls on the Merchant, including its owners and other key individuals, applying for or having access to use the Checkout Solutions); and the information that Kustom or such Payment Service Provider, as the case may be, has requested for the fulfillment of its regulatory duties (e.g. anti-money laundering information) has been provided by the Merchant.

1. Authorization and capture

1.1. In order to provide the Checkout Solutions, Kustom grants the Merchant access to Kustom’s business transaction system (Merchant Portal). 

1.2 When a shopper uses the Checkout Solutions in connection with a purchase in the Store, Kustom (together with a Payment Service Provider, as the case may be) then performs needed assessments of the transaction and the shopper. If the assessment of the transaction is acceptable to Kustom and the designated Payment Service Provider, Kustom agrees to allow the shopper (hereinafter referred to as the Shopper) to pay for its purchases using a Payment Method via the Checkout Solutions. An authorization for the respective amount is then made in Kustom’s system and accessible to view in the Merchant Portal. For each authorization, the designated Payment Service Provider may retain applicable fees on Kustom's behalf.

1.3 Where the Shopper makes a purchase from the Merchant and uses a Payment Method via the Checkout Solution to pay for the purchase, the Parties agree that the designated Payment Service Provider shall have the exclusive right to receive payment from the Shopper (including if paid by another party on the Shopper's behalf). Such right to collect payment from the respective Shopper is hereinafter referred to as a Claim.  

1.4 The Merchant warrants that it has the right to receive payment from the designated Payment Service Provider for a Claim in accordance with Section B above and the relevant Payment Service Provider Terms as of the time of dispatch/shipment of goods or performance of services by the Merchant, or as otherwise approved by Kustom or the designated Payment Service Provider in writing (Capture). The dispatch of the goods/performance of the services is to be made as close to the date of the order as possible and within the timeframe communicated to the Shopper during the order. Capture cannot be made by the Merchant after the order has expired in the Merchant Portal. 

1.5 Unless otherwise agreed, when using the Checkout Solutions, the Merchant is not entitled to offer delivery to a recipient or an address other than what has been approved by Kustom and the designated Payment Service Provider. 

1.6 Kustom shall procure that upon Capture of the Claim, the designated Payment Service Provider pays to the Merchant a settlement in accordance with these GTCs and any separate agreement between Kustom and the Merchant, in each case subject to the Payment Service Provider Terms and Payment Scheme Terms that apply to such settlement.

2. Kustom’s general responsibilities 

2.1 Subject to the terms of these GTCs, Kustom is responsible for supplying a Checkout Solution including the means for merchants to handle the administrative aspects of managing orders and payments via one or more Payment Methods. Also, Kustom will provide Merchant Support Services in respect of the Checkout Solutions. 

2.2 Kustom offers a scheme or other arrangement for the protection against certain Shopper complaints in relation to card transactions Merchant Protection Program, in accordance with the terms published on https://kustom.co/merchant-protection-program or otherwise made available by Kustom. If not stated otherwise in such terms, the Merchant Protection Program will not apply if the Shopper is subject to a protection scheme or arrangement covering the same complaints or risks provided by any third party.

2.3 Kustom shall provide to the Merchant the applicable shopper terms and conditions, privacy notice and information that apply to Shoppers (Shopper Terms and Information), which the Merchant shall apply in relation to Shoppers that use the Checkout Solution to the maximum extent allowed under applicable law (as reasonably demonstrated to Kustom). Kustom may, in its sole discretion, change the Shopper Terms and Information and any other Shopper related material (such as contracts, forms or information regarding the Checkout Solutions). Kustom will not be liable for the application of the Shopper Terms and Information nor ensuring that they are in conformity with applicable laws and regulations.

2.4 Kustom will not be liable for ensuring that any Payment Service Provider maintains and upholds any necessary licenses and permits required to provide any Payment Method it offers via the Checkout Solutions.

3. Merchant’s general responsibilities

3.1 The Checkout Solutions shall be presented and marketed by the Merchant in accordance with Appendix 5 (Marketing) and as otherwise agreed between the Parties. The Merchant accepts that it is not entitled to market any Kustom services (either in its own or third party media) without prior approval from Kustom. It is understood and agreed that any marketing activity conducted in respect of the Checkout Solutions shall be limited to the use of the Checkout Solutions for the purposes of purchasing the products or services of the Merchant. When marketing and using the Checkout Solutions, the Merchant warrants that it will observe and comply with all applicable laws and regulations and other provisions and guidelines issued by any public authority. 

3.2 The Merchant warrants that it at all times will comply with the integration guidelines set out at https://kustom.co/docs or as otherwise instructed by Kustom (Integration Guidelines). Each Party shall ensure that it at all times maintains the technical requirements needed on its part to enable the use of the Checkout Solutions.

3.3 To the extent required under the Integration Guidelines, the Merchant shall provide Kustom with information that they need to allow Shoppers to use the Checkout Solutions, including any Payment Method to pay for their purchases, including in each case (without limitation) as required for Kustom or a Payment Service Provider, to identify the Shopper or receive relevant information relating to the purchase. 

3.4 The Merchant is obliged to display in the Store (i) the address of its permanent establishment, (ii) its privacy policy (iii) an active customer service email address and a customer service telephone number and (iv) any other information required to be provided under applicable laws. 

3.5 The Parties acknowledge and agree that it is the Merchant’s sole responsibility to ensure that all Sales Tax laws and regulations are complied with and that, if specific information has to be provided by the Merchant to Shoppers under local applicable laws, or if a Shopper requests certain information to be provided by the Merchant (e.g. specific Sales Tax or other tax information), it is the Merchant’s responsibility to provide a document containing such information. Such aforementioned documents shall not contain any bank details of the Merchant. Should the content of the document sent out by the Merchant lead to an increased number of complaints (e.g. due to Shoppers paying to the Merchant’s bank account or using incorrect reference numbers), the Merchant will, in cooperation with Kustom, adjust the content of the relevant documentation to mitigate such problems. 

3.6 The Merchant is responsible for any actions taken when the log-in details to the Merchant Portal are used. The Merchant is not entitled to use the authorization option in the Merchant Portal without having the intention of accepting payment from the Shopper by means of a Checkout Solution. 

3.7 The Merchant warrants that it has and at all times shall maintain and uphold all necessary permits, insurances and licenses required for its business, its business operations and business activities. Upon Kustom’s request, the Merchant shall, without undue delay, provide Kustom with any documentation or other information verifying that the Merchant upholds valid permits and licenses. Further, the Merchant warrants that all Claims are connected to purchases which are permitted under and in compliance with all applicable laws. Kustom has the right to suspend the provision of the Checkout Solutions (or any part thereof) at any time if Kustom determines that the provision of the Checkout Solutions, the Checkout Solutions themselves (or any part thereof), or the Merchant’s activities, could be deemed illegal, unethical or in any other way non-compliant with any applicable rule or regulation, or result in negative publicity for Kustom or a Payment Service Provider. 

3.8 To the extent the Merchant engages sub-merchants that will deliver the goods to the Shoppers, the Merchant is fully liable for all sub-merchants and for the sub-merchants’ fulfillment of its obligations in relation to Shoppers. The Parties acknowledge and agree that Kustom may itself, or may require the Merchant to, at any time (e.g. due to a sub-merchant’s non-compliance with applicable laws or Kustom’s instructions or any Payment Service Provider Terms) block or in any other way terminate the provision of the Checkout Solutions (or any part thereof) in relation to purchases via a specific sub-merchant. The Merchant may not grant any sub-merchant access to the Merchant Portal.

3.9 In the event Kustom or a Payment Service Provider discovers fraud or suspicious circumstances relating to a transaction, Kustom may instruct the Merchant to stop the order process and/or shipping. The Merchant agrees to follow such instructions immediately upon receipt, so long as such instructions are provided within twenty-four (24) hours of Capture of the applicable Claim. The Merchant shall notify the Shopper of any stop request at the Shopper’s contact details (e.g. email address, telephone number and/or address) as approved by Kustom or a Payment Service Provider at the time of order. 

3.10 The Merchant shall at all times comply with any applicable Payment Scheme Terms, Payment Service Provider Terms or as otherwise instructed by Kustom.

4. Repayment of Claims

4.1 Without prejudice to any rights of a Payment Service Provider or a Payment Scheme under the Payment Service Provider Terms or the Payment Scheme Terms, in certain situations, Kustom, the designated Payment Service Provider or the Payment Scheme, as the case may be, shall have the right to demand that the Merchant re-pays Claims. Before requiring the Merchant to repay any Claim hereunder based on a Shopper’s claim not to be obligated to pay, Kustom will use its reasonable efforts to communicate with the Merchant and the Shopper to assess the legitimacy of the Shopper’s claim. Without prejudice to any additional rights of the designated Payment Service Provider or the Payment Scheme, as the case may be, Kustom may require the Merchant to re-pay Claims in the following situations:

(a) if there is a dispute or contestation between the Merchant and the Shopper regarding the Claim, or the Shopper’s obligation to settle the Claim, and such dispute or contestation is not based on a mere unwillingness or inability to pay (a dispute may be e.g. when the goods or services are alleged to be faulty or not delivered in full); 

(b) if it concerns Claims which have been created in connection with a transaction made by a natural or legal person who may reasonably be considered to share a financial interest with the Merchant, including but not limited to, a company affiliated to the Merchant, owners or an employee of the Merchant and/or such affiliated company. This Section 4(b) does not apply if the Merchant has more than thirty (30) employees; 

(c) if it concerns Claims in relation to which a Shopper acquires cash (e.g. currency exchange), checks or money orders; 

(d) if it concerns Claims where the Merchant in connection with the placement of the order has not provided Kustom and the designated Payment Service Provider with the data points required under the Integration Guidelines available at https://kustom.co/docs; 

(e) if it concerns Claims where the Shopper has not, or claims not to have, received the goods or services, except, if applicable, where the Merchant is protected under the Merchant Protection Program https://kustom.co/merchant-protection-program; 

(f) if it concerns Claims where the Merchant does not meet the requirements under Sections 3.9, 5 and 6 below, or where the Merchant in connection with invoicing, Capture or otherwise breaches the Agreement; 

(g) if it concerns Claims where the Shopper has used its lawful right to withdraw from/cancel its purchase and/or its agreement with the designated Payment Service Provider, or where the Merchant has extended to the Shopper a right to return the goods or services in excess of what applies under applicable mandatory laws; 

(h) if it concerns Claims where the Merchant has not provided Kustom and the designated Payment Service Provider with the data points deemed as mandatory by the Integration Guidelines, these GTCs, the applicable Payment Service Provider Terms or the Payment Scheme Terms; and/or

(i) if it concerns Claims in relation to which the Merchant is imposing terms and conditions in relation to Shoppers which deviate from the terms and conditions provided by the designated Payment Service Provider or if the Merchant has agreed terms with the Shopper that deviate from what has been communicated with Kustom or the designated Payment Service Provider.

4.2 In the event Kustom, the designated Payment Service Provider or the Payment Scheme has the right to demand that any Claim is repaid by the Merchant in accordance with this Section 4, Kustom may incur loss of interest or other costs (including in relation to a Service Provider or any other third party), for which Kustom has the right to be compensated by the Merchant. The amount charged by Kustom hereunder will correspond to its actual costs and losses, in each case as determined by Kustom in its sole discretion. Kustom may also be entitled to compensation under other provisions of this Agreement. In the event of a returned Claim under this Section 4 and Kustom having received any Service Charges (including if held on its behalf by a Payment Service Provider), such Service Charges may be retained by Kustom.

5. Responsibilities of the Parties in relation to Claims

5.1 The Merchant warrants that, in relation to Kustom and the designated Payment Service Provider, the Merchant does not have any right to receive payment in respect of a Claim, and warrants that it will not carry out any action which may limit or impair such right in accordance with any applicable laws. Consequently, the Merchant may not without Kustom’s written consent enter into an agreement or arrangement with any third party regarding the purchase, pledging or payment of Claims, nor any other arrangement which restricts the ability of Kustom, a Payment Service Provider or a Payment Scheme to obtain payment from a Shopper in respect of a Claim. The Merchant may not enable Shoppers to use the Checkout Solutions in other countries than those contractually agreed or to pay in other currencies than those that apply in the respective countries in which the Parties have agreed that the Checkout Solutions (including any Payment Method) will be used. 

5.2 If payment for a Claim is made by the Shopper or a third party (which is not the designated Payment Service Provider or a Payment Scheme), to the Merchant, the Merchant shall immediately either (i) register such payment in the Merchant Portal or (ii) otherwise inform Kustom in an appropriate way. The Merchant shall immediately transfer the amount to the designated Payment Service Provider or a Payment Scheme, as the case may be, based on instructions from Kustom and specify what the payment refers to, unless provided otherwise in the applicable Payment Service Provider Terms or Payment Scheme Terms, as determined by Kustom.

5.3 After Capture of a Claim, the Merchant may, with respect to the Claim and the underlying purchase, only agree to such arrangements with the Shopper which can be registered in the Merchant Portal or through the integration set-up agreed upon by the Parties. The Merchant shall inform Kustom without undue delay if the Merchant has agreed with the Shopper on a return of goods/services or a reduction of the purchase price, or if the Shopper has used its return/revocation rights under applicable laws. An authorization shall be canceled immediately if the goods or services are unavailable. 

5.4 The Merchant shall answer Kustom's questions and requests for information or documentation regarding Claims without undue delay, and specifically in respect of requests relating to fraud and disputes, within the time frame reasonably determined and prescribed by Kustom as outlined on https://kustom.co/disputes or as otherwise instructed by Kustom, and in any event within the time frame reasonably determined and prescribed by Kustom when making the request. Additionally, the Merchant agrees to promptly inform Kustom and promptly handle the matter if a Shopper disputes the obligation to settle the Claim. The Parties should also strive to handle Shopper complaints and disputes promptly and correctly. Kustom reserves the right to charge a dispute fee if the Merchant fails to resolve disputes filed by a Shopper within the resolution times specified at https://kustom.co/disputes (Dispute Fee).  

5.5 The Parties acknowledge that, subject to the terms of the applicable Payment Service Provider Terms or Payment Scheme Terms, the designated Payment Service Provider or Payment Scheme, as the case may be, shall have the right to charge the Merchant a reasonable fee related to any processing fees or any other related costs or fees that may arise in connection with this Agreement or the use of such service (Chargeback Fee). To the extent that Kustom is liable for such Chargeback Fee, whether directly or indirectly by operation of the Payment Method or Payment Scheme or otherwise, Kustom reserves the right to charge the Merchant for compensation of any direct or indirect costs or expenses in relation to such liability for the Chargeback Fee.

5.6 The Merchant warrants that it shall not (i) take any actions that may affect or cause Shoppers to use other payment methods or checkout solutions (or any similar arrangement) outside of the Checkout Solution (including the Payment Method(s)), if not having obtained prior written approval by Kustom, or (ii) act in a discriminatory manner towards Kustom and the Checkout Solution in any other way. 

5.7 The Merchant is solely responsible for the performance of its obligations (and those of its employees, agents, sub-merchants and representatives) under this Agreement in relation to the Shoppers, whether under any contract with the Shoppers or under any applicable laws. The Merchant is not entitled to use the Checkout Solutions for transactions which are deemed illegal under any applicable laws or which violate the ethical instructions provided by the designated Payment Service Provider or Payment Scheme or as otherwise instructed by Kustom, as may be updated from time to time, the Ethical Instructions https://kustom.co/ethical-instructions. 

5.8 The Parties agree that, unless provided otherwise in the applicable Payment Service Provider Terms or Payment Scheme Terms, when a Claim is created, the designated Payment Service Provider or Payment Scheme, as the case may be, shall be exclusively entitled to all security interests related to the Claim, e.g. any retention of title in the goods delivered, including that, as the case may be in accordance with the applicable Payment Service Provider Terms and/or Payment Scheme Terms, if a Claim is retransferred from the designated Payment Service Provider or Payment Scheme to the Merchant under Section 4, all security interests relating to such Claim will also be retransferred.

6. Specific conditions concerning purchases and handout of goods in physical stores

If the Merchant has integrated Kustom In-store or has otherwise been permitted by Kustom to accept returns in physical store(s), the Merchant may accept return of goods in its physical store(s) subject to the following conditions: (i) all returns shall immediately be registered via the relevant order management API or in the Merchant Portal, (ii) all refunds to the Shopper are handled by the designated Payment Service Provider (i.e. the Merchant may not refund the Shopper in connection with a return), and (iii) the Merchant shall adhere to any other reasonable instruction Kustom may provide from time to time specifically relating to return of goods in physical stores. The Merchant shall indemnify and hold Kustom harmless against any costs, losses, claims or other damages that Kustom suffers due to the Merchant not fulfilling its obligations under sub-points (i)-(iii) above. 

7. Credit assessment and underwriting 

Kustom, the designated Payment Service Provider and/or Payment Scheme performs ongoing credit assessments of each Merchant. Promptly upon Kustom’s request, the Merchant shall provide Kustom with updated and most recent financial documents and other information satisfactory to Kustom for the purposes of the financial risk assessments of a relevant party.  ‍

8. Module support

8.1 Kustom aims to support all modules and API’s that the Merchant uses to connect to the Checkout Solution. However, as technology progresses, Kustom reserves the right to decide in its sole discretion which modules and API’s to support. If Kustom at any point decides to cancel support of a certain module or API, Kustom will provide the Merchant with a reasonable notice thereof. Information on which modules and APIs Kustom supports can be found at https://kustom.co/docs.

8.2 The Parties agree that the Payment Methods and any other services made available via the Checkout Solutions may change from time to time. The Merchant acknowledges and agrees that Kustom continuously develops and updates the Checkout Solutions in order to improve the shopper experience and thus Kustom reserves the right to make such changes in its hosted environment.

9. Duty to inform

Upon request, or as otherwise required, the Merchant shall provide Kustom with information that they need for the fulfillment of its, any Payment Service Provider’s or any Payment Scheme's regulatory duties (e.g. anti-money laundering information) or financial risk assessment requirements. Further, if (i) there are any material changes with regard to the type of products or services offered by the Merchant, or (ii) if the name under which the Merchant conducts its business changes, the Merchant shall notify Kustom of such changes prior to such change taking place. 

10. Termination

10.1 Each Party has the right to terminate the Agreement with immediate effect if: 

(a) the other Party materially breaches any provision of the Agreement and does not, provided that a remedy is available, cure such breach within ten (10) days of the non-breaching Party’s notification;

(b) the other Party repeatedly or continuously fails to meet its obligations under the Agreement and does not upon the non-breaching Party’s request remedy such failure within the reasonable time frame given by such other Party;

(c) the other Party has provided incorrect or misleading information, or has concealed circumstances of importance; or 

(d) the other Party’s financial situation is significantly deteriorated, including but not limited to, becoming or is declared insolvent or bankrupt, or makes an assignment for the benefit of its creditors (InsolvencyEvent).

10.2 In addition, Kustom has the right to terminate the Agreement with immediate effect if:

(a) the Merchant offers services or goods that violate Kustom’s Ethical Instructions; or

(b) Kustom has reasonably determined that the Merchant may be in breach of the Agreement, and the Merchant does not, without undue delay, provide the reasonably requested information required to determine whether the Merchant has breached the Agreement. 

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10.3 If Kustom terminates this Agreement under this Section 10, and Kustom reasonably determines in good faith that there is a legal basis, ethical constraint or serious reputational basis for such termination, Kustom has the right to, after deduction of the Service Charges or any other charges Kustom is entitled to claim under this Agreement, require the Merchant to re-pay the aggregate amount of all outstanding Claims to Kustom.

11. Right to retain payments/Set-off

11.1 If this Agreement terminates for any reason, Kustom or the relevant Payment Service Provider may retain any amounts otherwise due to the Merchant for the purpose of covering Kustom's aggregate financial risk exposure related to anticipated refunds, customer disputes, open debts or fraudulent or illegal activity or any other amounts for which Kustom is or may become liable whether by tort or contract towards a Payment Service Provider, a Payment Scheme or any other party (the Financial Risk Exposure). The amount Kustom retains may, as determined by Kustom, not exceed the Financial Risk Exposure. Kustom will notify the Merchant if Kustom retains any amount under this Section 11.1, and the reason(s) for the retention.

11.2 Kustom may temporarily retain amounts otherwise due to the Merchant corresponding to the Financial Risk Exposure if: 

(a) the Merchant materially breaches this Agreement;

(b) the Merchant repeatedly breaches this Agreement, and fails to cure the breaches after receiving notice from Kustom;

(c) Kustom reasonably suspects that the Merchant is engaging in or has engaged in fraud, illegal activities, or has violated Kustom’s Ethical Instructions or any similar or corresponding instructions or terms of a Payment Service Provider or a Payment Scheme; or

(d) the Merchant’s financial standing or ability to fulfill orders or satisfy refunds to Shoppers materially reduces or is not sufficiently robust,

in each case as reasonably determined by Kustom.

If Kustom retains any amount in accordance with this Section 11.2, Kustom will inform the Merchant of the reason(s) for the retention. Kustom will release any retained amounts under this section once Kustom has reasonably determined that the underlying reason for retaining them has been cured.

11.3 Kustom may temporarily retain amounts corresponding to its Financial Risk Exposure due to the Merchant suffering an Insolvency Event. Kustom may only retain payments under this Section 11.3 until: 

(a) the Parties reach an agreement to mitigate the relevant financial concerns; or

(b) the Merchant provides Kustom adequate proof of solvency to Kustom’s reasonable satisfaction. 

Kustom will notify the Merchant if it retains payments under this Section 11.3, and the reason(s) for the retention.

11.4 Kustom may, acting reasonably, retain amounts otherwise due to the Merchant if there is a risk that Kustom, due to the Merchant’s breach of this Agreement or the terms or instructions relating to any Payment Methods or Payment Scheme or breach of applicable law, may incur fines, penalties or other claims from a Payment Service Provider, a Payment Scheme or any other third party or any government agency (each a Fine). Kustom may only retain amounts that correspond to its reasonable estimate of the Fine that may be imposed on or incurred by Kustom and must release such amounts to the Merchant without delay following its reasonable determination that relevant risk has ceased.

11.5 Kustom may, in its own discretion and without notice, offset (a) any amounts owed under any agreement by Kustom (or any of its affiliates) to the Merchant against (b) any claims Kustom (or its affiliates) may have against the Merchant (or any of its affiliates) under any agreement.

11.6 Kustom may cause that the pay-out period set out under Section B above and the relevant Payment Service Provider Terms is increased or decreased as a security for Service Charges and any other amounts that are or will become due to it under this Agreement. Where practicable and commercially reasonable, Kustom will provide the Merchant reasonable notice of its intention to cause that the pay-out period is adjusted in this way.

12. Liability

12.1 If a Party does not fulfill its obligations under this Agreement, the other Party shall be entitled to claim damages (such party being the Indemnified Party). Each Party’s annual liability to pay any compensation or similar under this Agreement shall be limited to a maximum amount corresponding to (i) where Kustom is the Indemnified Party, the amount corresponding to the Service Charges paid or payable by the Merchant to Kustom in the twelve (12) months immediately preceding any claim or (ii) where the Merchant is the Indemnified Party, the amount corresponding to the Service Charges paid or payable by the Merchant to Kustom in the twelve (12) months immediately preceding any claim. 

12.2 The limitation of liability set out under Section 12.1 shall not apply to (i) any explicit warranties or indemnifications given under this Agreement, (ii) the obligation to pay to the Merchant any amounts due pursuant to Section B and 1 above and the relevant Payment Service Provider Terms (iii) any right to request re-payment of Claims under Sections 4 and 10.3 and (iv) any liability that cannot be limited or excluded pursuant to applicable law. 

12.3 Neither Party is liable whether in contract or tort (including negligence) for breach of statutory duty, or otherwise arising under or in connection with this Agreement for loss of profits, loss of sales, or business, loss of agreements or contracts, loss of anticipated savings, loss of or damages to goodwill, loss of use or corruption of software, data or information or any indirect, special or consequential loss. Further, neither Party shall be liable for unforeseeable damages or damages atypical for the Agreement, and particularly not for indirect, punitive or consequential damages.

12.4 Notwithstanding Section 12.3, the Merchant shall indemnify and hold Kustom harmless in respect of any damages that Kustom is liable to pay to any Payment Service Provider as a direct or indirect result of any breach of the Agreement by the Merchant. 

12.5 Kustom is not responsible for any action or inaction of any Payment Service Provider.

13. Data protection and PCI compliance

13.1 The Parties agree to process personal data as set out in Appendix 4. 

13.2 In respect of Checkout Solutions for which Kustom or a Payment Service Provider, as the case may be, have partnered with any Payment Scheme, a Shopper may choose to use its regular debit or credit card or any other Payment Scheme to pay directly in the checkout. The Merchant hereby agrees to and authorizes such Payment Service Provider and Payment Scheme to store, use, share and release cardholder data, provided or generated pursuant to this Agreement to any person (i) for the purpose of processing the transaction; (ii) as required by applicable rules of Payment Scheme or by applicable law; (iii) in aggregated (anonymous and generalized) format to facilitate analysis and comparisons; (iv) to investigate, prevent and/or detect fraud or crime; or (v) to mitigate information security risk, sector risk or credit risk. The Parties acknowledge that the designated Payment Service Provider and Payment Scheme are Payment Card Industry Data Security Standard (PCI DSS) validated. The Merchant undertakes at all times to be compliant with the rules of PCI DSS applicable from time to time. As long as the Merchant uses the Checkout Solutions in a compliant way, Kustom shall procure that the designated Payment Service Provider or a Payment Scheme, as the case may be, will be responsible for the security of cardholder data that such Payment Service Provider or Payment Scheme possesses or otherwise stores, processes, or transmits when providing the Checkout Solutions.

14. Exclusivity

14.1 The Merchant warrants that at all times during the term of the Agreement all sales in the Store or in any other purchase channel agreed between the Parties will be made through the Checkout Solutions and that no other own or third-party payment services will be offered in the Store nor any other purchase channel. Notwithstanding the foregoing, the Merchant is allowed to carry backup/failover solutions.

14.2 The Merchant warrants throughout the term of this Agreement to not take any action or inaction that is detrimental to the prominent display of Kustom's services in the Store or in any other purchase channel agreed between the Parties. For the purposes of this, a “prominent display” involves ensuring that the Checkout Solutions is easily visible to the Shoppers without the need for excessive scrolling or navigation.

15. Force majeure

Should the Parties be prevented from fulfilling their obligations under this Agreement due to circumstances which they have no control over - e.g. lightning, fire, sabotage, earthquake, tornado, flood, explosion, embargo, war, terrorism, riot, act of God, act of public enemy, changed legal provisions or regulations provided by authorities, intervention by authorities, strike, communication or transport disruptions, changes in exchange rates or natural disasters – they shall be released from their liabilities until the circumstances giving rise to the their inability to fulfill their respective obligations no longer exist. This Section 15 shall be viewed in light of Kustom having a redundant system with geographically dispersed server sites. If a Party is prevented from fulfilling its obligations for a longer period than thirty (30) days due to any of the foregoing circumstances, each Party shall have the right, without being liable to pay any compensation, to terminate the Agreement with immediate effect.

16. Amendments to the Agreement

Amendments to this Agreement require written form (email shall suffice). The Parties acknowledge and agree that Kustom may unilaterally change any term of this Agreement at any time, provided that Kustom gives prior notice to the Merchant of such changes. The notified changes shall be effective and apply to the Merchant as of the sixtieth (60) calendar day of the notification to the Merchant provided, however, that if the changes are to the significant disadvantage of the Merchant (as reasonably determined by Kustom based on evidence provided by the Merchant) and the Merchant discontinues to use the Checkout Solution before the changes become effective, , the Merchant may terminate the Agreement by giving written notice to Kustom. If the Merchant continues to use the Checkout Solution at any point after such sixty (60) calendar day period, the Merchant shall be deemed to have approved the notified changes and forfeited its opportunity to give the notice of termination.

17. Transfers and delegations

17.1 Neither Party may transfer its rights nor obligations under the Agreement without the other Party’s prior written consent. Notwithstanding the foregoing, Kustom may assign or transfer the Agreement to any member of its group. Further, Kustom has the right to transfer, pledge or in any other way dispose over the Claims. Kustom is entitled to engage subcontractors in order to provide the Checkout Solutions, provided that Kustom takes full responsibility for such subcontractors and, without any such limitation, make any number of Payment Methods or Payment Schemes available in the Checkout Solution.  

17.2 Without prejudice to the generality of the foregoing, Kustom may delegate all or part of the provision of the Checkout Solution or assign certain rights in relation to the Checkout Solution to any third party or procure that a third party performs certain aspects of the Checkout Solution at any time without notice. In particular, one or more third parties, each being a Payment Service Provider, will settle payments for purchases made by Shoppers via the Shopping Solutions to the Merchant and perform any other payment services in this connection (including, where relevant, with the involvement of any Payment Scheme). To the extent that Kustom so delegates, assigns rights or procures the performance of all or part of the Checkout Solution to a third party it shall ensure that such third party has in place all necessary licenses and consents that are necessary to perform the relevant services. The Merchant accepts that any such third party is entitled to recover all losses sustained by itself or any affiliate of the third party, arising out of or in connection with this Agreement, as if the same were incurred by Kustom. The Merchant and Kustom acknowledge and agree that the relevant third party to whom the delegation, transfer or assignment is made is entitled to directly enforce the terms of this Agreement against the Merchant.

18. Confidentiality

18.1 The Parties undertake, during the term of this Agreement and for a period of two (2) years thereafter, not to disclose Confidential Information to any third party without the other Party’s written consent. Any Confidential Information obtained shall only be used for the fulfillment of the Agreement. Confidential Information means any information, in whatever form, disclosed or provided by one Party to the other party (Receiving Party) in the context of this Agreement. Non-confidential information means any information which:

(a) is or becomes generally available to the public other than as the result of a disclosure by the Receiving Party; 

(b) the Receiving Party can show that it already had in its possession before it was received; 

(c) the Receiving Party is obliged to provide in accordance with any applicable laws, investment exchange rules, court order or decision by a governmental authority; or 

(d) the Receiving Party has received from a third party without being bound by confidentiality in relation to it.

18.2 For the avoidance of doubt, Confidential Information also refers to third party information of technical, commercial or other nature unless there are objective and reasonable grounds to assume that such information is non-confidential. This provision applies to any information relating to third parties, including Shopper information, that the Merchant obtains when using the Merchant Portal or when communicating with Kustom, and where it is clear that the dissemination of the above-mentioned information is not desired by third parties. To the extent permissible by applicable laws, Kustom is entitled to share Confidential Information with any Payment Service Provider, Payment Scheme, subcontractors, external advisors and other companies within the Kustom group provided that such parties are subject to confidentiality obligations corresponding to those under this Agreement.

19. IP rights and know-how

Kustom retains all ownership and intellectual property rights to anything developed by Kustom, as the case may be, and provided to or accessed by the Merchant under this Agreement. The Merchant warrants that it will not directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Checkout Solutions. The Merchant’s use of Payment Schemes’ trademarks, whether registered or not, does not entail any transfer of ownership, rights or copyrights. After termination of the Agreement or the removal of the Checkout Solutions (in whole or in part), the Merchant undertakes to immediately remove all respective logotypes and similar of Kustom, any Payment Service Provider and/or of any Payment Scheme specifically relating to such removed Checkout Solutions. This does not apply if a Payment Service Provider or a Payment Scheme entitles the Merchant to continue the use of its logotypes. Kustom is entitled to refer to the Merchant as a user of the Checkout Solutions in sales or similar material provided that such material is not directed at the general public. 

20. Waiver

No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

21. Severability

Should a provision of this Agreement become invalid or unenforceable, this will not affect the other provisions and the validity of this Agreement. Upon determination that any provision is invalid or unenforceable, the Parties shall negotiate in good faith to modify the Agreement to come as close as possible to the original commercial intent of the parties with respect to such provision. 

22. Treasury transactions

Unless prohibited by applicable law and if consistent with any license maintained by Kustom, as the case may be, Kustom may invest any funds held by it, whether received in connection with this Agreement or any Checkout Solution or otherwise, using its sole discretion. Kustom is exclusively entitled to any return on such investment without any duty or obligation towards the Merchant and, consequently, the Merchant will bear no risk of loss related to the investments.

23. Communication and notices

All notices required under the Agreement shall be made (1) in writing by letter or e-mail, or (2) in writing accessible to the Merchant through the Merchant Portal (as defined in Section 1 in the GTCs), or (3) as otherwise agreed by the Parties in writing. Emails to Kustom shall be sent to the following address: merchant@kustom.co. Emails to the Merchant shall be sent to the address specified to Kustom by the Merchant for such purpose.

24. Independent contractors 

The Merchant and Kustom are independent contractors and shall have no power or authority to assume or create any obligation or responsibility on behalf of each other. The Agreement shall not be construed to create or imply any partnership, agency or joint venture. 

25. No third party beneficiary 

Save as explicitly set out in these GTCs, this Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit nor shall any of its provisions be enforceable by any person other than the parties to this Agreement and their respective successors and permitted assignees.

26. No warranty

Access to Kustom’s systems or databases and participation in and use of the Checkout Solutions are provided under this Agreement on an “as is” basis, without warranty of any kind, except as expressly stated herein or implied by law. Kustom disclaims all representations, warranties, and conditions, express, implied, or statutorily, to the fullest extent permitted by law.

27. Entire agreement

This Agreement constitutes the entire agreement between the Parties in relation to the Checkout Solutions and supersedes and extinguishes all prior oral or written promises, assurances, warranties, representations, understandings or agreements between the Parties on the subject matter or parts hereof. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement

28. Survival

Termination or expiration of this Agreement will not affect either Party’s obligations in regard to fees payable hereunder, indemnities or any other term which by its nature and context is intended to survive termination or expiration of this Agreement.

Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.

29. Governing law and jurisdiction 

29.1 This Agreement is governed by and will be construed in accordance with Swedish law. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (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, in 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 or three arbitrators. The place of the arbitration shall be in Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English. The Parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration section will be kept strictly confidential, as well as any decision or award that is made or declared during the proceedings. Information covered by this confidentiality undertaking may not, in any form, be disclosed to a third party without the written consent of the other party. 

29.2 Notwithstanding the foregoing, nothing herein shall be construed to prohibit either Party from seeking preliminary or permanent injunctive relief, restraining orders, decrees of specific performance, or other equitable remedies, in any court of competent jurisdiction.