This Mastercard OB Services Europe Developers Evaluation Agreement (“Agreement”) is entered into as of the date You accept it (the “Effective Date”) between Mastercard OB Services Europe A/S incorporated and registered in Denmark with company number 33509006 whose registered office is at Arne Jacobsens Allé 13, 2300 Copenhagen, Denmark on behalf of itself and its affiliates (“Mastercard OB Services Europe”), and You. This Agreement governs Your use of the platform available at Sign in to Mastercard OB Services Europe Developer Portal including any Web Service, Service API or SDK (as those terms are defined below) accessible on or through that platform (“Mastercard OB Services Europe Developers”), and any manuals, guides or other materials provided to You by Mastercard OB Services Europe or accessible through Mastercard OB Services Europe Developers from time to time including, but not limited to, the specifications and technical documentation accompanying any Web Service, Service API or SDK (the “Mastercard OB Services Europe Developers Materials”) for the Permitted Evaluation Purpose (as defined below) and any Preliminary Services. Any other use requires obtaining separate appropriate rights to distribute the Licensed Implementation, which may require the payment of fees. The parties agree as follows:
1. Definitions
1.1 “API Code” means human-readable programming instructions in the Mastercard OB Services Europe Developers Materials that can be implemented in a computer program.
1.2 “Confidential Information” means the Mastercard OB Services Europe Developers Materials, API Code and any and all information, materials, algorithms, software and technology contained in or relating to the Mastercard OB Services Europe Developers Materials or API Code, or derivative works based thereon, in each case that is disclosed to, developed by or acquired by You, except for any such information that (a) has entered the public domain other than by a breach of Your confidentiality obligations, (b) was in Your possession prior to its disclosure to or acquisition by You as proved by documentary evidence; or (c) was or is independently developed by Your employees who did not or do not have access to the Mastercard OB Services Europe Developers Materials and API Code, or derivative works based thereon, as proved by documentary evidence.
1.3 “Intellectual Property Rights” means all present and future rights, title and interest in (a) patents, utility models, designs (whether registered or unregistered), trademarks, service marks, corporate names, trade and business names, domain names, copyrights, logos, rights to software, databases, inventions, semiconductor topography rights, moral rights, trade secrets, confidentiality and other proprietary rights including all rights to know-how and other technical or commercial information, rights in the nature of unfair competition rights, rights to sue in passing off; (b) the benefit of all registrations, applications to register any of the foregoing and rights to apply for such registrations; and/or (c) any and all other rights similar or analogous to any of the foregoing whether arising or granted in any jurisdiction.
1.4 “Licensed Implementation” means an implementation of a Web Service, Service API and/or SDK that: (a) complies with all of the portions of the relevant Mastercard OB Services Europe Developers Materials; (b) only functions for the applicable Permitted Evaluation Purpose; and (c) includes any required attribution.
1.5 “Necessary Claim” means a claim of an unexpired patent that: (a) is owned by Mastercard OB Services Europe; and (b) is necessarily infringed by implementing a Service API in accordance with the relevant Mastercard OB Services Europe Developers Materials. A claim is necessarily infringed only when it is not possible to avoid infringing it because there is no non-infringing alternative for implementing the Service API in accordance with the Mastercard OB Services Europe Developers Materials.
1.6 “Permitted Evaluation Purpose” means evaluating and testing API Code, Service APIs, Web Services and/or SDKs available for use by means of Mastercard OB Services Europe Developers.
1.7 “Preliminary Services” means any support services (excluding those outlined in clauses 5.1 & 5.2), such as technical onboarding support, provided by Mastercard OB Services Europe to You prior to any written agreement being reached regarding the full scope of the open banking products and services, if any, that will be provided by Mastercard OB Services Europe to You.
1.8 “SDK” means all software in any software development kit made available by Mastercard OB Services Europe including source code, object code, code libraries, sample code, build files, tools and programs.
1.9 “Service API” means a proprietary RESTful or other application programming interface (API) for a Web Service.
1.10 “Web Service” means a Mastercard OB Services Europe web service made available for use by means of Mastercard OB Services Europe Developers for the Permitted Evaluation Purpose including, but not limited to, the “sandbox” environment.
1.11 “You” means the person accepting this Agreement and such person’s employer or other entity on whose behalf such person is accessing Mastercard OB Services Europe Developers and the materials and services accessible by means of Mastercard OB Services Europe Developers; “Yours” shall be construed accordingly.
2. Rights to Develop, Test, Use, and Ownership
2.1 Access to Mastercard OB Services Europe Developers. Mastercard OB Services Europe permits You to access and use Mastercard OB Services Europe Developers and the Mastercard OB Services Europe Developers Materials only for the Permitted Evaluation Purpose, and You may implement prototypes based on such materials and resources in furtherance of the Permitted Evaluation Purpose only. You agree not to use Your access to Mastercard OB Services Europe Developers or Mastercard OB Services Europe Developers Materials for any other purpose or attempt to gain access to any other portion of Mastercard OB Services Europe Developers without separately obtaining from Mastercard OB Services Europe appropriate rights to distribute the Licensed Implementation, which may require the payment of fees. You are responsible for all activity in connection with Your username and account.
2.2 ClientId/ API_key. Subject to accepting the terms set out in this Agreement, Mastercard OB Services Europe will issue You one or more ClientId/ API_key’s, which are required to access the Mastercard OB Services Europe Developers Materials and to interface with a Web Service via a Service API. Mastercard OB Services Europe may require You to go through an approval process to obtain the ClientId/ API_key’s. You must use the ClientId/ API_key solely for the Permitted Evaluation Purpose and not share the ClientId/ API_key with any third party (except as permitted pursuant to Section 4). You are responsible for any access to or use of Web Services attributable to Your ClientId/ API_key. Mastercard OB Services Europe has the right to monitor Your use of the ClientId/ API_key and access to Web Services to ensure that You are complying with this Agreement. Mastercard OB Services Europe may revoke ClientId/ API_key’s at any time in its sole discretion.
2.3 Copyright License. Subject to the terms of this Agreement and solely for the Permitted Evaluation Purpose, Mastercard OB Services Europe hereby grants to You a non-exclusive, royalty-free, non-sublicenseable, non-transferable, personal, worldwide copyright license to: (a) reproduce and use the Mastercard OB Services Europe
Developers Materials solely to: (a) develop and test Licensed Implementations; (b) reproduce and modify the API Code solely to develop and test Licensed Implementations; and (c) distribute the API Code (including permitted modifications) in machine-readable form solely as part of a Licensed Implementation.
2.4 Patent License. Subject to the terms of this Agreement and solely for the Permitted Evaluation Purpose, Mastercard OB Services Europe hereby grants You a non-exclusive, royalty-free, non-sublicenseable, non-transferable, personal, worldwide license under any Necessary Claims to use the Mastercard OB Services Europe Developers Materials and API Code to use Licensed Implementations during the Term (defined below).
2.5 Commercial Use. Any commercial or production use requires You to separately obtain from Mastercard OB Services Europe appropriate rights to distribute the Licensed Implementation, which may require the payment of fees.
2.6 Trademark Use. You are not licensed or authorised to use Mastercard OB Services Europe’s name or Mastercard OB Services Europe’s logos, trademarks, and trade names without the prior written permission of Mastercard OB Services Europe.
2.7 Ownership. You and Mastercard OB Services Europe acknowledge and agree that, as between You and Mastercard OB Services Europe, Mastercard OB Services Europe owns and shall own all rights, title and interests in and to the Mastercard OB Services Europe Developers and Mastercard OB Services Europe Developers Materials, including all Intellectual Property Rights therein. You agree to execute, or to have any relevant employee or director execute, any document necessary to transfer ownership of any of the foregoing made by any of Your employees or directors to Mastercard OB Services Europe.
2.8 Reservation of Rights. All rights not expressly granted to You in this Agreement are reserved by Mastercard OB Services Europe. No additional rights (including any implied licenses or other Intellectual Property Rights) are granted by implication, estoppel or otherwise to You.
3. Restrictions
3.1 Restrictions. Except as expressly set forth in this Agreement, the licenses granted to You in this Agreement do not include the right to, and
You must not: (a) modify any portion of the Mastercard OB Services Europe Developers Materials; (b) implement a routine, data structure, or protocol described in the
Mastercard OB Services Europe Developers Materials in any other API; (c) implement a Service API to operate with any service or product other than the related Web Service; (d) use Mastercard OB Services Europe Developers or the Mastercard OB Services Europe Developers Materials to develop or test any unauthorised replacement or alternative to any Mastercard OB Services Europe product or offering; (e) sublicense, rent, sell, lease, loan, provide, distribute, disclose, supply, commercially exploit or otherwise transfer (“Exploit”) any portion of the Mastercard OB Services Europe Developers Materials (including prior versions or derivative works thereof); (f) change or extend any of the interfaces described in the Mastercard OB Services Europe Developers Materials (except as expressly authorised in the Mastercard OB Services Europe Developers Materials); (g) modify, decompile, reverse engineer, deconstruct, decrypt or disassemble any SDK accessible on or through the Mastercard OB Services Europe Developers (including, but not limited to, the SDKs) in whole or in part (g) import or export any portion of the Mastercard OB Services Europe Developers Materials without first obtaining Mastercard OB Services Europe’s written approval and, if so permitted to import or export any portion of the Mastercard OB Services Europe Developers Materials, then You shall comply with all foreign and U.S. export and import regulations applicable with respect to the Mastercard OB Services Europe Developers Materials; (h) use any Service API or Web Service for training, commercial time-sharing, service bureau, subscription service, or rental use; (i) attempt to access or interface with a Web Service except to perform permitted testing of a Licensed Implementation; (j) display or disclose any portion of the Mastercard OB Services Europe Developers Materials to any person except pursuant to Section 4; (k) remove, alter, or cover any copyright or other proprietary rights notices in the Mastercard OB Services Europe Developers Materials; (l) expose a Service API to end users except as specifically described in the Mastercard OB Services Europe Developers Materials; (m) interfere with or limit the normal operation of a Web Service or Mastercard OB Services Europe Developers; (n) disable or circumvent the ClientId/ API_key or other security features used by Mastercard OB Services Europe; or (o) cause, assist, or permit any third party (other than as permitted under Section 4) to do any of the foregoing.
3.2 Open Source Restriction. You must not: (a) subject any portion of a Licensed Implementation to the terms of any open source license without Mastercard OB Services Europe’s prior written consent (including by using an open source component in a Licensed Implementation); or (b) design a Licensed Implementation in a manner that would cause a Web Service to be subject to the terms of an open source license (e.g., via use of the Licensed
Implementation to interface with a Web Service). An open source license includes a license that meets the Open Source Initiative’s Open Source Definition or a license that requires, as a condition of use, modification, or distribution of technology subject to such license, that the technology or other technology combined or distributed with such technology: (i) be disclosed or distributed in source code form; (ii) be licensed for the purpose of making derivative works; or (iii) be re-distributable at no charge.
3.3 No Distribution of Licensed Implementations. You are not licensed to, and You must not, Exploit Licensed Implementations (or any portion thereof) until You have separately obtained from Mastercard OB Services Europe appropriate rights for You to Exploit the Licensed Implementation (or relevant portions thereof) in a particular manner, which may require the payment of fees. You must not make any express or implied warranty to third parties (including to end users of Licensed Implementations) on behalf of Mastercard OB Services Europe.
3.4 Access to and Use of Web Services. Except for permitted testing of Licensed Implementations, You are not licensed to, and You must not, access or use a Web Service until You have separately obtained from Mastercard OB Services Europe appropriate rights to access and use a Web Service, which may require the payment of fees. In addition, an end user of a Licensed Implementation may be required to separately obtain rights to access and use a Web Service directly from Mastercard OB Services Europe (which may require the payment of fees).
3.5 Continued Development. In order to facilitate continued development of, and integration with, each Service API and Web Service by You and others, (a) You hereby grant to Mastercard OB Services Europe, licensees of Mastercard OB Services Europe Developers Materials, and users of each Service API and Web Service a limited non-exclusive, royalty-free, irrevocable, worldwide license under any patent claims arising from Your development of or otherwise owned or licensable by You and covering Licensed Implementations to use, make, have made, sell, offer to sell, and import the products, services, and solutions that implement a Service API or that integrate with a Web Service; and (b) You hereby grant to Mastercard OB Services Europe a perpetual, irrevocable, non-exclusive, transferable, royalty-free, fully paid-up, worldwide license with the right to grant sublicenses to use and exploit in any manner and without any restrictions, any suggestions that You provide to Mastercard OB Services Europe regarding a Service API, a Web Service, or the Mastercard OB Services Europe Developers Materials, including suggestions for improvements and corrections. In addition, Mastercard OB Services Europe is not obligated to maintain the confidentiality of any information made available by You to Mastercard OB Services Europe under this Agreement.
4. Confidentiality
4.1 You shall protect the Confidential Information from unauthorised use, access, or disclosure in the same manner that You would use to protect Your own confidential and proprietary information of a similar nature (and in no event with less than a reasonable degree of care) and, except as otherwise provided in this Agreement, You shall not, without the prior written consent of Mastercard OB Services Europe, disclose any of the Confidential Information to any third party except (a) subject to Section 4.2, to Your employees and contractors who are required to use a Web Service, a Service API, or the Mastercard OB Services Europe Developers Materials on Your behalf as permitted under this Agreement and only to the extent necessary for that usage and provided that they are bound by confidentiality obligations substantially similar to Yours pursuant to this Agreement or (b) as required by law or any regulatory authority (and except as disclosed to any regulatory authority in connection with any regulatory application or request for approval) and, in those circumstances, You shall give Mastercard OB Services Europe prompt written notice of such potential disclosure before it occurs so that Mastercard OB Services Europe shall have sufficient opportunity to prevent such disclosure through appropriate legal means or otherwise protect its Confidential Information.
4.2 You shall ensure that each person, partnership, corporation, association or other legal entity (each, a “Person”) to whom You may make disclosure under Section 4.1 is aware of Your duty of confidentiality under this Agreement and shall protect the Confidential Information from unauthorised use, access, or disclosure in the same manner that they would use to protect their own confidential and proprietary information of a similar nature (and in no event less what You are bound to under Section 4.1) and not to use the Confidential Information for any purpose other than the Permitted Evaluation Purpose. You shall, if requested by Mastercard OB Services Europe, take any steps as Mastercard OB Services Europe may reasonably request to enforce any duty of confidence owed to You by any Person insofar as that enforcement appears to Mastercard OB Services Europe to be necessary for the protection of the confidentiality of the Confidential Information.
5. Availability and Support
5.1 Performance and Availability of Web Services. Mastercard OB Services Europe does not make any commitment to You (a) regarding the performance of a Web Service or a Service API or (b) that Mastercard OB Services Europe will continue to make available or support a Web Service or Service API. If Mastercard OB Services Europe breaches any commitment regarding performance, security, or availability set forth in this Agreement, then, Your sole remedy and Mastercard OB Services Europe’s exclusive liability for that breach is termination of this Agreement. Mastercard OB Services Europe is not obligated to remedy the performance failure or make the Web Service or Service API or Mastercard OB Services Europe Developers available under any circumstances.
5.2 Technical Support. Mastercard OB Services Europe is not obligated to provide any technical or other support to You, except that Mastercard OB Services Europe will use commercially reasonable efforts to answer Your technical questions about the Mastercard OB Services Europe Developers Materials.
5.3 Preliminary Services. Mastercard OB Services Europe is not obligated to provide any Preliminary Services to You. However, given that nature of open banking products and services, the parties agree that (a) Mastercard OB Services Europe can commence Preliminary Services as it deems appropriate in its sole discretion; and (b) should (a) occur, this Agreement records the parties agreed position concerning Preliminary Services liability until a written agreement concerning open banking products and services is entered into between the parties.
6. No Fees
6.1 No Fees. There are no fees or other charges for using Mastercard OB Services Europe Developers for the Permitted Evaluation Purpose.
7. Term and Termination
7.1 Term. The term of this Agreement commences upon the Effective Date and continues in effect until terminated in accordance with the provisions of this Agreement (the “Term”).
7.2 Termination. You may terminate this Agreement at any time upon written notice to Mastercard OB Services Europe. Mastercard OB Services Europe may terminate this Agreement: (a) immediately upon written notice, if You are in material breach of Section 2; (b) if You otherwise materially breach this Agreement and fail to cure the breach within thirty (30) days after You receive notice of the breach from Mastercard OB Services Europe; (c) immediately, if You assert any claim of patent infringement against Mastercard OB Services Europe based on patents reading on any portion of a Web Service or Service API; or (d) immediately, if the Licensed Implementation (or any part thereof) or any associated documentation gives rise to any legal claim, lawsuit, action or other proceeding against Mastercard OB Services Europe any of its affiliates or its or their respective officers, directors, employees, agents.
7.3 Effect of Termination and Survival. Upon termination, Your licenses under this Agreement will end and You will: (a) return or destroy all copies of the Mastercard OB Services Europe Developers Materials in Your possession; (b) cease to develop or distribute Licensed Implementations; (c) cease to access the Web Services for any purpose; and (d) destroy all copies of Licensed Implementations in Your possession or control, except that authorised licenses to Licensed Implementations granted to end users prior to termination and in accordance with the terms of this Agreement will survive termination. In addition, Sections 2.7, 3.5, 4,5.3, 7.3, 8.2, 9, 10, 11 and 12 will survive any termination of this Agreement.
8. Representations and Disclaimers of Warranty
8.1 Representations. Each party represents and warrants that: (a) the person signing this Agreement on its behalf has all necessary power and authority to do so, and that upon such signature this Agreement is a binding obligation upon it; (b) the execution and delivery of this Agreement and the transactions contemplated hereby have been duly and validly authorised by all necessary action on its part; (c) this Agreement constitutes a valid and binding obligation on the party that is enforceable in accordance with its terms; and (d) by selecting to send a registration email through the website, You agree and acknowledge You have sought permission from the recipient to send this registration email to them and Your name and email address will be shared with the recipient. Each party represents and warrants that the entering into and performance of this Agreement by it does not and will not violate, conflict with, or result in a material default under any other contract, agreement, indenture, decree, judgment, or undertaking.
8.2 Disclaimers. THE Mastercard OB Services Europe DEVELOPERS MATERIALS, Mastercard OB Services Europe DEVELOPERS INCLUDING, BUT NOT LIMITED TO, WEB
SERVICES, SERVICE APIS, SDKS AND ALL INTELLECTUAL PROPERTY MADE AVAILABLE OR LICENSED BY Mastercard OB Services Europe UNDER OR IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. Mastercard OB Services Europe DISCLAIMS ALL WARRANTIES DUTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE Mastercard OB Services Europe
DEVELOPERS MATERIALS, Mastercard OB Services Europe DEVELOPERS INCLUDING, BUT NOT LIMITED TO, WEB SERVICES, SERVICE APIS, SDKS
AND RELATED INTELLECTUAL PROPERTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITATION, Mastercard OB Services Europe SPECIFICALLY DISCLAIMS ALL
REPRESENTATIONS AND WARRANTIES THAT ANY PRACTICE OR IMPLEMENTATION OF Mastercard OB Services Europe DEVELOPERS, THE
Mastercard OB Services Europe DEVELOPERS MATERIALS, IN WHOLE OR IN PART, WILL NOT INFRINGE ANY THIRD PARTY’S PATENTS OR OTHER
INTELLECTUAL PROPERTY RIGHTS. SHOULD Mastercard OB Services Europe DEVELOPERS, THE Mastercard OB Services Europe DEVELOPERS MATERIALS PROVE TO HAVE DEFECTS OF ANY TYPE, Mastercard OB Services Europe WILL NOT BEAR ANY COSTS OR EXPENSES OF ANY SERVICING, REPAIR AND/OR CORRECTION IN CONNECTION WITH ANY IMPLEMENTATIONS.
9. Indemnification
9.1 Defense of Claims. You will defend Mastercard OB Services Europe and its affiliates and their employees, directors, agents, and representatives (“Mastercard OB Services Europe Indemnified Parties”) from any actual or threatened third party claim arising out of or based upon Your breach of this Agreement, Your negligence or willful misconduct, Your failure to comply with applicable law, Your infringement or other violation of a third party’s or Mastercard OB Services Europe’s Intellectual Property Rights, or a Licensed Implementation in whole or in part (including a customer or other third party’s use of a Licensed Implementation, or any part thereof, and any data breach relating to a Licensed Implementation, or any part thereof). Mastercard OB Services Europe will ensure: (a) the applicable Mastercard OB Services Europe Indemnified Party gives You prompt written notice of the claim; (b) You have full and complete control over the defense and settlement of the claim; (c) the applicable Mastercard OB Services Europe Indemnified Party provides assistance in connection with the defense and settlement of the claim as You may reasonably request; and (d) the applicable Mastercard OB Services Europe Indemnified Party complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
9.2 Indemnification. You will indemnify each of the Mastercard OB Services Europe Indemnified Parties against (a) all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Your consent after Your accepted defense of such claim); and (c) if any proceeding arising under Section 9.1 is settled, You will pay any amounts to any third party agreed to by You in settlement of any such claims.
10. Limitation of Liability
NONE OF Mastercard OB Services Europe OR ITS SUPPLIERS AND LICENSEES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES ARISING FROM OR OTHERWISE RELATED TO THIS
AGREEMENT. Mastercard OB Services Europe’S TOTAL AGGREGATE LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL
BE LIMITED TO $1,000 USD. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF
WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT ANY OF THE FOREGOING PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND EVEN IF A REMEDY SET FORTH IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11. Compliance with Laws
11.1 Compliance with Laws. You agree to comply, at Your own expense, with all local, state, regional, national, foreign, international or other laws, policies, guidelines, standards, regulations, ordinances, rules, orders and judgments applicable to You, Your business, the Mastercard OB Services Europe Developers or the Mastercard OB Services Europe Developers Material or the applications developed hereunder, including, without limitation, all applicable privacy requirements, including any privacy notice compliance, to the extent required by European Data Protection Law (all of the foregoing, collectively, “Laws”). You shall not use the Mastercard OB Services Europe Developers or the Mastercard OB Services Europe Developers Material in any manner, or in furtherance of any activity, that may cause Mastercard OB Services Europe to be in breach of applicable Laws or subject to investigation, prosecution, or legal action.
11.2 Compliance with Anti-Bribery and Corruption Laws. The parties recognise that Mastercard OB Services Europe and any person or entity acting on its behalf must comply with international laws related to anti-bribery and corruption including the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, and other applicable law. You shall comply and shall ensure that each of Your subcontractors (if so approved or permitted) and personnel complies, with all applicable anti-bribery and corruption laws applicable to business dealings, including with government officials (as defined below) and any implementing regulations in respect of any such laws. You warrant, represent and covenant to Mastercard OB Services Europe that You (and each of Your employees, subcontractors and personnel) have not and shall not, in connection with the activities contemplated by this Agreement or in connection with any other business activities involving Mastercard OB Services Europe, make, promise or offer to make any payment or transfer of anything of value or any other advantage directly or indirectly through a representative, intermediary agent or otherwise : (i) to any government official; (ii) to any political party; or (iii) to any other person for the purpose of influencing any act, omission to act or decision of such official, political party or individual or securing an improper advantage to assist the parties in obtaining or retaining business. You also warrant, represent and covenant to Mastercard OB Services Europe that You and each of Your employees, subcontractors and personnel shall not, in connection with any business activities involving Mastercard OB Services Europe, accept anything of value from any third party seeking to influence any act or decision of You or in order to secure an improper advantage to that third party. “Government official” is defined as any employee or officer of a government of a country, state or region, including any federal, regional or local government or department, agency, enterprise owned or controlled by the such government, any official of a political party, any official or employee of a public international organization, any person acting in an official capacity for, or on behalf of, such entities, and any candidate for political office. Failure by You to comply with the terms of this clause will constitute a material breach of this Agreement.
12. Miscellaneous
12.1 No Partnership, Joint Venture or Franchise. This Agreement will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise.
12.2 Notices. All notices in connection with this Agreement will be deemed given as of the day they are received either by messenger, overnight delivery service, or in the Denmark mail, postage prepaid, certified or registered, return receipt requested, and addressed either to You or to Mastercard OB Services Europe at the addresses specified in this Agreement, or to such other address as a party may designate pursuant to this notice provision, or, in the case of Mastercard OB Services Europe only, by posting notice to Mastercard OB Services Europe Developers or sending an email to any email that You provide to Mastercard OB Services Europe in connection with Mastercard OB Services Europe Developers.
12.3 Governing Law and Jurisdiction; Jurisdiction. The terms of this Agreement and any related claims will be governed and construed in accordance with Danish law, regardless of the consequences of international private law. The parties agree to exclude the application of the United Nations Convention on International Purchasing. In case a dispute regarding a legal or technical question arises between the parties, either party may request an opinion from an independent expert in accordance with the Rules regarding Legal/Technical Opinions in IT cases adopted by the Danish Institute of Arbitration and in force at the time when such proceedings are commenced. If the proceedings according to the Rules regarding Legal/Technical Opinions in IT cases are terminated without a settlement, the dispute shall be settled by arbitration administered by The Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced. The arbitral tribunal shall be seated with one arbitrator and the arbitration will take place in Copenhagen.
12.4 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees in writing to assume and fulfill all of the assigning party’s obligations under this Agreement and, if You are the assignor, the successor does not indirectly or directly compete with Mastercard OB Services Europe. Any assignment in violation of this Section 11.4 is void.
12.5 Construction. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any limitation or restriction on the grant of any license to You under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate. Failure by a party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
12.6 Entire Agreement. This Agreement is the final and complete expression of the agreement between these parties regarding the subject matter of this Agreement. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior non-disclosure or comparable agreement between the parties executed prior to this Agreement being executed. This Agreement cannot be modified by You except by a written agreement dated after the date of this Agreement and signed on behalf of You and Mastercard OB Services Europe by their respective duly authorised representatives. Mastercard OB Services Europe may amend the terms of this Agreement by providing notice to You by email or by posting notice of the change to Mastercard OB Services Europe Developers and Your continued use of Mastercard OB Services Europe Developers will constitute Your acceptance of such amendment. If You do not agree to such an amendment by Mastercard OB Services Europe, You must terminate this Agreement and discontinue use of Mastercard OB Services Europe Developers.
12.7 Interpretation. Any reference to any agreement, document, or instrument will mean the agreement, document, or instrument as amended or modified and in effect from time to time in accordance with its terms. Whenever the words “include,” “includes,” or “including” are used in the Agreement, they will be deemed to be followed by the words “without limitation.” The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any,” and “either” are not exclusive.