The following are the Standard Terms and Conditions of the agreement governing the relationship between MBILL INC., a Delaware corporation, or any entity under common control therewith (any such entity being referred to here as "Service Provider"), and the Merchant, as it identifies itself in any order to receive goods or services from Service Provider ("Merchant Order").
The Service Provider has developed and operates the premium SMS payment service (the "SMS Services"), a web-based payment service which enables an online customer to use their mobile phone number to make online purchases from the Merchant.
The Service Provider has also developed and operates a direct carrier billing payment service (the "Direct Billing Services"), a web-based payment service which enables an online customer to use their mobile phone account to make purchases from the Merchant with flexible price points as determined by the Merchant.
These Standard Terms and Conditions are incorporated within, and form an integral part of any, Merchant Order. The specific terms of each Merchant Order will preside over any conflicting terms within these Standard Terms and Conditions.
Merchant's electronic acceptance and/or use of the Services signifies Merchant's reading, understanding and agreement to be bound by the terms and conditions of this Agreement as well as any policies posted Service Provider's website(s).
IN ADDITION TO THE TERMS CONTAINED IN ARTICLE I, PLEASE SEE ARTICLE II AND ARTICLE III BELOW FOR ADDITIONAL TERMS AND CONDITIONS RELATING TO SPECIFIC SERVICES.
Section 1. Definitions. In these Terms, the following capitalized terms have the meanings specified or referred to in this Section and shall be equally applicable to both the singular and plural forms.
Section 2. Description of Services.
2.1 Services. Merchant has agreed to purchase the Services and (desires to offer the Services on its website(s)) and/or access the Services. To the extent applicable, Merchant will include the Service as a payment option on equal terms with other payment options on each page of the Merchant's Website where Merchant accepts payments. The Services provided to Merchant are non-exclusive, non-transferable and are for the express use by Merchant at the sites approved by Service Provider in its sole discretion.
2.2 Conditions to Services. Before Merchant may commit to provide any Program to a Subscriber, Merchant will ensure that the Subscriber accepts a Subscriber Contract. Merchant will be solely responsible for its Subscriber's use of, or access to, the Programs. As between Service Provider and Merchant, Merchant is solely responsible for performing under Subscriber Contracts. Each Subscriber Contract must clarify that Subscribers have no recourse against any Service Provider, Network Operator or their contractors. In the case of certain Programs, Merchant will only be permitted to use Subscriber Contract forms which Service Provider has approved. Merchant will, on a regular basis and as otherwise requested by Service Provider from time to time, communicate to Service Provider information about Subscribers for purposes of providing the Services including, but not limited to, Subscriber technical, installation, service delivery, traffic volume and on-going maintenance information, and to comply with information requests by Regulators or Network Operators. Upon any renewal or extension of a Subscriber Contract, Merchant will require that the Subscriber indicate its agreement to the then-current terms applicable to such Subscriber's Services.
2.3 Integration. Merchant and Service Provider will work together to integrate the Services with Merchant's operations. Service Provider will furnish Merchant, subject to the license terms set forth herein, its application program interfaces and related documentation to assist the Merchant's integration and setup the Service.
2.4 Provisioning. Information about available geographies and participating wireless carriers ("Mobile Carriers") and the charges associated with each is made available on the Service Provider's website and which may be updated from time to time. After initial provisioning, Merchant may thereafter request via email that the Merchant be provisioned for additional countries or that additional Services be enabled.
Section 3. Services Provided by Service Provider.
3.1 Merchant Order. Subject to the terms of this Agreement, Service Provider will provide the Services in accordance with the Merchant Order.
3.2 Access Credentials. To enable Merchant to access the Platform and the Services, Service Provider will provide Merchant with Access Credentials. Merchant will not provide or disclose its Access Credentials to any third party and will be solely responsible for maintaining the strict confidentiality of its Access Credentials at all times. Merchant will use only its Access Credentials and not the Access Credentials of any third party. Merchant will notify Service Provider immediately of any use of Merchant's Access Credentials by any third party. Service Provider will have no liability for any loss that Merchant incurs as a result of third party's use of Merchant's Access Credentials, whether with or without Merchant's knowledge or consent. Merchant will be liable for any losses incurred by Service Provider or its Affiliates due to third-party use of Merchant's Access Credentials.
3.3 Restrictions. Merchant is prohibited from copying or otherwise reproducing or attempting to reproduce the Services. Merchant agrees not to modify, disassemble, decompile, reverse engineer, create derivative works of the Services, the Platform, the Platform Interface or any other computer programs used to deliver the Services. Merchant may not: (a) transfer to any other person any of its rights to use the Services; (b) sell, rent or lease the Services; (c) make available password protected access or information of Service to anyone who is neither an employee, a contractor or of a person to whom Merchant has outsourced services, and who is otherwise not authorized to access the Services; (d) access the Services (1) in order to build a competitive solution or to assist someone else to build a competitive solution; or (2) if Merchant or any of its employees or contractors are employed by a competitor of Service Provider; (e) use the Services in a way that violates any criminal or civil law; or (f) load test the Services in order to test scalability.
3.4 Financial Restrictions. Both Parties shall employ commercially reasonable efforts to limit transaction amounts to USD $[750] or an equivalent value in other currencies. Both parties shall employ commercially reasonable efforts to limit the total amount paid to Service Provider by any Subscriber to no more than USD$[20,000], or the equivalent amount in other currencies, in any 30-day period. The Service Provider may, without prior notice to Merchant, impose additional restrictions on the amount, size, character and/or origin of transactions for which a Merchant may use the Services.
3.5 Deactivation of a Merchant. In the event that a Subscriber has enacted a payment reversal (i.e., chargeback, or fraud) on a reversible payment method accepted by the Merchant, Service Provider shall notify the Merchant and the Merchant shall deactivate (i.e., change to "unbilled, inactive status") such Subscriber. Only upon receipt of a subsequent payment communication from Service Provider shall the Merchant reactivate that Subscriber's account.
Section 4. Merchant Obligations.
4.1 Conditions for Receipt of Services. Merchant's receipt of Services hereunder is at all times conditioned on Merchant:
4.2 Restrictions. Merchant will not use the Services, and will not permit the Services to be used, in any of the following ways:
4.3 Merchant Acknowledgement. Merchant acknowledges that a third party may unilaterally impose terms and conditions, suspend, block, investigate or otherwise restrict the provision of the Services and that despite Service Provider's efforts to continue to provide the Services, Service Provider may be unable to do so. Merchant further acknowledges that a Regulator or other third party may have the right to fully investigate any complaint made in relation to the Services, Merchant Content, or Subscriber Data, including, without limitation, the way in which Merchant markets Merchant Content to Subscribers or uses Merchant Content, and that Service Provider may be required to comply with instructions ordered by the investigative body. That compliance may include providing information about Merchant, its Subscribers or the Merchant Content to that investigative entity.
Merchant represents and warrants that: (i) all information provided to Service Provider (the "Account Information") is true and correct; (ii) Merchant shall keep all Account Information current throughout the term of this Agreement; and (iii) Merchant will use the Account only for its own use and not for resale or for use by any third party unless otherwise authorized in writing by Service Provider. Merchant acknowledges that Service Provider shall not have any liability for errors in Account Information provided by Merchant or for Merchant's failure to keep Account Information current.
Section 5. Suspension of Services.
5.1 Suspension of Services. Service Provider may in its sole discretion immediately suspend any Services by providing Merchant with notice at any time that:
Section 6. Payment Terms.
6.1 Basis of Payment to Merchant. Service Provider will coordinate billing of the Customer with the Mobile Carrier and with the payment processor. For payments made through Mobile Carriers, the Mobile Carrier will retain a percentage of the amount paid by the Customer for the Merchant Product (with the amount retained depending upon the Mobile Carrier, the Price Point, and Merchant Product). The Mobile Carrier then remits the remainder to Service Provider. For payments made through payment processors, processing fees are deducted from amounts received from the Customer and the remainder is remitted to Service Provider. Fees paid to Service Provider by Mobile Carriers and payment processors for Services are referred to as "Outpayments." Service Provider then deducts from the Outpayment: (i) the fees for use of the Service, and (ii) the nominal fees associated with any SMS messages transmitted as part of Merchant Product transactions, if such costs have not already been deducted by the Mobile Carrier. Service Provider then remits the remainder to Merchant. Outpayment tables (the "Outpayment Tables") that show estimated net payouts to Merchant (not including Charge Backs and deductions for certain Mobile Carrier transport fees) are included on the Service Provider's website which may be updated by Service Provider from time to time upon notice (email to suffice) to Merchant. Payments due Merchant from Mobile Carrier billing will be calculated on the basis of the monthly traffic reports provided by Service Provider and the statements from the applicable Mobile Carriers. The final statements for amounts payable to Merchant will be based solely on transactions confirmed with the payment processor and the final, validated Mobile Carrier data.
6.2 Payment Terms. For SMS Service transactions, Service Provider will pay the Merchant no later than fifteen (30) days after receipt of payment from the Mobile Carrier, which is normally sixty (60) days after the end of the month in which the transaction occurred. In addition, no later than sixty (60) days following the end of such month, Service Provider will provide the Merchant with access to or copies of relevant statements necessary for settlement with the Merchant, including Service Provider statements and those of all participating Mobile Carriers. Service Provider will pay Merchant's revenue share to the Merchant by bank transfer or check. All bank transfer fees shall be borne by the Merchant. If Merchant's revenue share for a particular month is less than one thousand dollars ($1,000.00), then that amount will be carried over to the following month's revenue share payment.
6.3 Conditions to Payment.
6.3.1 Merchant acknowledges and agrees that Service Provider's obligation to remit amounts to Merchant is subject to receipt of Outpayments from the applicable Mobile Carriers and payment processors.
6.3.2 Notwithstanding any information contained in Outpayment Tables or any information regarding SMS transmission costs otherwise provided to Merchant, Merchant acknowledges and agrees that: (i) Mobile Carriers may change Outpayment calculations and/or SMS transmission fees at any time and such changes may reduce amounts payable to Merchant under this Agreement; (ii) payment processing is subject to transactions fees and issuer fees that may vary over time, and (ii) Service Provider shall not be liable to Merchant for any reduction in amounts payable to Merchant by virtue of any action taken by Mobile Carriers or payment processors. Service Provider shall provide notice of Mobile Carrier actions as soon as reasonable practical by posting changes to Outpayment Tables, by separate notice, or both.
6.3.2 Notwithstanding any information contained in Outpayment Tables or any information regarding SMS transmission costs otherwise provided to Merchant, Merchant acknowledges and agrees that: (i) Mobile Carriers may change Outpayment calculations and/or SMS transmission fees at any time and such changes may reduce amounts payable to Merchant under this Agreement; (ii) payment processing is subject to transactions fees and issuer fees that may vary over time, and (ii) Service Provider shall not be liable to Merchant for any reduction in amounts payable to Merchant by virtue of any action taken by Mobile Carriers or payment processors. Service Provider shall provide notice of Mobile Carrier actions as soon as reasonable practical by posting changes to Outpayment Tables, by separate notice, or both.
6.3.3 Service Provider reserves the right to change the basis for calculating Service Provider Fees, provided that it notifies Merchant at least fifteen (15) days in advance of any such change.
6.3.4 Merchant acknowledges that none of Mobile Carriers, payment processors, or Service Provider bear any credit risk for transactions through the SMS Service. Accordingly, any charge backs issued to Service Provider by Mobile Carriers or payment processors for non-payment by Customers or otherwise, and any refunds paid by Service Provider to Customers (collectively, "Charge Backs") shall be Merchant's responsibility. Merchant acknowledges that Charge Backs may occur over one year from the original Merchant Product transaction. The amount of the Charge Backs received in a particular month will be deducted from amounts due Merchant for such month, or if this Agreement has terminated, Merchant will reimburse Service Provider for the amount of such Charge Backs within thirty (30) days following receipt of Service Provider's invoice for the same, notwithstanding expiration or termination of this Agreement. Merchant's obligation to remit such amounts to Service Provider shall survive expiration or termination of this Agreement.
6.3.5 If Merchant disputes any payment made under this Agreement, Merchant must notify Service Provider in writing within thirty (30) days after receipt of such payment or Merchant waives any claim relating to such payment. Payment shall be calculated solely based on records maintained by Service Provider and from Mobile Carriers.
6.3.6 Merchant agrees to use diligent efforts to help reduce any fraudulent use of the SMS Service as deployed by Merchant. If: (i) Service Provider believes that there is fraudulent use of the SMS Service by Merchant or its Customers; (ii) Merchant violates any applicable law, rule or regulation; (iii) if a regulatory body, a payment processor or a Mobile Carrier suspends or blocks the transfer of Outpayments because of alleged Merchant conduct; or (iv) a Mobile Carrier or payment processor issues substantial Charge Backs related to any action or inaction by Merchant, Service Provider reserves the right to immediately suspend Merchant's Account and/or payments due hereunder, in its sole discretion, in addition to any other remedies available to it and, in the case of fraud, Service Provider may take any reasonable action that it believes in its sole discretion is necessary to stop, impede, or prevent the fraudulent activity. SERVICE PROVIDER RESERVES THE RIGHT TO OFFSET AGAINST AMOUNTS DUE TO MERCHANT ANY AMOUNT DUE TO SERVICE PROVIDER UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO REIMBURSEMENTS OF CHARGE BACKS OR COSTS OR DAMAGES SUFFERED BECAUSE OF THE NON-COMPLIANCE BY MERCHANT WITH APPLICABLE LAWS OR WITH THIS AGREEMENT.
6.3.7 Merchant acknowledges and agrees that Service Provider shall not have any liability for fraudulent transactions by Customers and that Merchant is solely responsible for any Charge Backs arising from such Customer conduct.
6.4 Taxes. Transactions occur in various jurisdictions, each with different tax laws. Service Provider will collect payments from the Mobile Carriers net of applicable taxes. All amounts remitted by Service Provider to Merchant will be net of taxes.. Except for taxes based on Service Provider's net income, Merchant shall be responsible for taxes, VAT charges, sales tax, customs duties, or similar taxes or imposts, withholding taxes, or similar charges arising out of amounts paid to Merchant under this Agreement.
Section 7. Advances.
7.1 If set forth in the Merchant Order, Service Provider may prepay Customer a monthly advance out of expected Revenue Payments (an "Advance"). The amount of the Advance will be expressed as a percentage of the Revenue Payment amount, and will entail reducing Revenue Payments by the amount of an Advance Fee, which Service Provider will deduct from each Advance made to Customer. The Advance Fee is stated in the Merchant Order, and if it is not stated there, then it will be Service Provider's then-current Advance Fee for Programs of the type that Customer operates by means of the Services.
7.2 Customer will receive the balance of any Revenue Payment due to it (after deduction of Advanced amounts) in accordance with the terms of the Merchant Order.
7.3 Service Provider upon the amount of Advances based on a number of factors that may be outside of Customer's control including perceived risks or liabilities associated with the Programs, and the availability of funds to provide the Advances. All Advances are made in the sole discretion of Service Provider and may be suspended or terminated at any time in Service Provider's sole and absolute discretion, with or without notice to Customer. If Service Provider stops providing Customer with Advances, then Revenue Payments will be paid in accordance with the Fees Schedule originally specified in the Merchant Order.
7.4 If, after Service Provider has made an Advance, Service Provider is subsequently charged an Adjustment by a Network Operator that exceeds the total amount then owed by Service Provider to Customer, Service Provider may require a refund of the Advance, and Customer will make such refund to Service Provider within 30 days.
Section 8. Intellectual Property Rights.
8.1 Ownership of Platform.
8.2 Short Codes.
8.3 Data. All Subscriber Data and other data relating to Subscribers (including billing and other associated information and mobile phone numbers) constitute Merchant's Confidential Information, and may also comprise private information belonging to Subscribers. Merchant will obey all Rules relating to informing Subscribers of Merchant's privacy policy, and safeguarding their private information. Service Provider has the right to utilize Subscriber Data for the purpose of performing its obligations or exercising its rights under this Agreement, and for improving the Services. Service Provider also may aggregate Subscriber Data with that of other customers for the sole purpose of analyzing and improving Service Provider's services to all customers, so long as Service Provider does not in the process disclose to any third parties Subscriber Data in a manner that is personally identifiable to a Subscriber, or to Merchant.
8.4 Reservation of Rights. The parties grant, and each hereby expressly reserves onto itself, all rights not specifically granted in this Agreement.
8.5 Trademarks and Copyright. Nothing in this Agreement allows either party to use any trademark or copyrighted material of the other party without the express written consent of that party to do so.
Section 9. Confidentiality.
9.1 Restrictions on Use and Disclosure. Except as may be required by law, neither party shall disclose to any third party any Confidential Information of the other party, and neither party shall make use of any such Confidential Information unless the use is specifically related to such party's performance of this Agreement.
9.2 Exceptions. Both parties agree that information will not be considered Confidential Information to the extent, but only to the extent, that a receiving party can demonstrate that such information: (i) is already known to the receiving party free of any confidentiality obligation at the time it is obtained; (ii) is or becomes publicly known through no wrongful act of the receiving party; (iii) is rightfully received by the receiving party from a third party without restriction and without breach of this Agreement; or (iv) is independently developed by the receiving party, which can be demonstrated by written record.
9.3 Required Disclosure. If any Confidential Information is ordered to be disclosed pursuant to an order, decree, or subpoena of a court of law or other judicial or administrative body having authority to compel the disclosure, then the receiving party will promptly notify the disclosing party of that requirement and cooperate to resist or minimize the Confidential Information required to be disclosed.
9.4 Injunctive Relief. The parties agree that any unauthorized use or disclosure of Confidential Information in violation of this Agreement may cause irreparable injury for which the disclosing party would have no adequate remedy at law. Therefore, in the event of unauthorized use or disclosure of Confidential Information, the disclosing party will be entitled to seek injunctive relief, without limiting any other rights or remedies that may be available to it. Each party agrees to waive any requirement for the securing or posting of any bond in connection with any decision by a disclosing party to seek injunctive relief in accordance with this paragraph.
Section 10. Representations, Warranties and Covenants.
10.1 Authority. Merchant represents, warrants and covenants to Service Provider that it has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights and licenses granted by it to Service Provider pursuant to this Agreement.
10.2 Approval.
10.3 Compliance with Law. Merchant represents, warrants and covenants to Service Provider that:
10.4 Conflicting Obligations. Each party represents and warrants to other party that it has no outstanding agreement or obligation which is in conflict with any of the provisions of this Agreement, or which would preclude it from complying with the provisions hereof, and further agrees that during the Term of this Agreement it will not enter into any such conflicting agreement.
10.5 Privacy. Merchant represents, warrants and consents to Service Provider that it will comply with all applicable Rules regarding privacy in each relevant jurisdiction. Merchant acknowledges that Network Operators cannot guarantee the privacy of messages, and accordingly Merchant agrees that neither Service Provider nor the Network Operators will be liable to Merchant or any other party for any lack of privacy or security experienced when using the Services. Merchant also acknowledges that to the extent permitted by law, Network Operators have the right to intercept and disclose any transmissions over their facilities in order to protect their rights or property, including without limitation, to protect the efficient operation of their networks or to comply with the requirements of any Regulator.
10.6 Services. Service Provider represents, warrants and covenants that it will perform the Services in a professional and workmanlike manner; provided, however, that the foregoing shall not be construed as a warranty that the Platform or Services will function without error or be suitable for Merchant's intended purposes. As to each Transaction, Merchant represents and warrants that: (a) it represents a bona fide sale of goods or services in the ordinary course of business; (b) it is in all respects as required by and in compliance with these terms of service and Applicable Law; and (c) Merchant has no knowledge or actual notice of any circumstances that would impair enforceability of collection thereof as against the Consumer.
10.7 Content Warranties.
10.8 Non-Solicitation. During the Term of this Agreement and for twelve (12) months immediately following its expiration or earlier termination for any reason, Merchant will not either directly or indirectly solicit, induce, recruit or encourage any of Service Provider's employees or contractors to leave their employment, or attempt to solicit, induce or recruit any employees or contractors of Service Provider, either for itself or for any other person or entity.
10.9 Confidentiality. Each Party shall not use Confidential Information for any purpose other than the intended use set forth herein, and shall not disclose, disseminate or otherwise publish or communicate Confidential Information received hereunder ("Recipient") to any person, firm, corporation or other third party without the prior written consent of the disclosing party ("Discloser"), except to employees, contractors, financial and legal advisors, and Affiliates who have a need to know, who have been informed of the Confidentiality obligations hereunder, and who have agreed in writing or are obligated as a matter of law, to maintain the Confidential Information in accordance with these Terms. The Recipient agrees to use the same degree of care that it uses to protect its own confidential information of a like nature from unauthorized disclosure, but in no event less than a reasonable degree of care. "Affiliates" shall mean foreign affiliates, a parent corporation, and majority-owned subsidiaries. These confidentiality restrictions will not apply; to Confidential Information required to be disclosed by Recipient by law by a governmental authority, by court order, discovery or administrative or quasi-administrative process, however, Recipient must provide notice to Discloser as soon as practicable of the disclosure demand and take all reasonable steps to limit disclosure of Discloser's Confidential Information. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property right, by license or otherwise, to any Confidential Information of Discloser. Parties shall not, and shall not allow any party on its behalf to, copy, modify, reverse engineer, disassemble any Confidential Information. Parties further agree not to export or re-export (within the meaning of U.S. or other export control laws or regulations) any Confidential Information in any form. Parties agree that any violation or threatened violation of this Section will cause irreparable injury to the disclosing party, entitling the disclosing Party to seek injunctive relief in addition to all legal remedies.
Section 11. Indemnification.
11.1 By Service Provider. Service Provider will defend, indemnify and hold Merchant harmless against loss, costs, expenses, demands or liability arising out of any claim, proceeding, action or fine (including the reimbursement of reasonable legal fees) arising in respect of, or resulting from a claim, proceeding, or action (an "Infringement Claim") brought by a Regulator or a third party alleging that the Platform, Platform Interface, Protocol Specifications or any Service Provider Content or Service Provider Data violates or infringes the Intellectual Property Rights or other rights of a third party.
11.2 Action on Claim of Infringement. In the event of any Infringement Claim relating to Section 11.1, Service Provider will have the right, at its sole option, to obtain the right to continue use of the affected Services, or to replace or modify the affected Services so that they may be provided by Service Provider and used by Merchant without infringement. If neither of the foregoing options is available to Service Provider on a commercially reasonable basis, Service Provider may terminate the Services immediately upon written notice to Merchant, and within thirty (30) days after such termination will pay Merchant a termination fee equal to the prorated portion of any Fees (excluding installation and any other non-recurring Fees) paid in advance by Merchant commensurate with the remaining portion of the service period for which such Fees were assessed and paid.
11.3 Exceptions. Service Provider's indemnification obligations under this Section 11 will not apply to any Infringement Claim that results from:
11.4 By Merchant. Merchant will defend, indemnify and hold Service Provider and its Affiliates harmless against loss, costs, expenses, demands or liability arising out of any claim, proceeding, action, penalty or fine (including the reimbursement of reasonable legal fees):
11.5 Notice and Process.
11.6 Collective Defense and Settlement. When Service Provider is the Indemnified Party, and reasonably believes that other clients besides Merchant also owe it duties of indemnification with respect to third party claims that arise from or relate to the same underlying facts, then Merchant agrees to permit Service Provider to conduct and control a collective defense and disposition of such claim, suit or action (including all decisions regarding litigation, appeal and settlement). To be sure, Merchant will have the right to obtain its own counsel to advise in such defense, at Merchant's own expense. Service Provider will keep Merchant reasonably informed of the progress during the collective defense and disposition of the claim and to consult with the affected clients individually or on a collective basis with regards to any proposed settlement by Service Provider. Merchant agrees that Service Provider will have the right to enter into any financial settlement of such a claim without prior Merchant consent at Service Provider's own discretion if Service Provider believes in good faith that such settlement will be less prejudicial than continuing to defend against the third party claim.
Section 12. Limitations and Disclaimers.
12.1 Limitation of Liability.
12.2 Disclaimer.
12.3 Exclusive Remedies. For any breach by Service Provider of its warranties under this Agreement, Merchant's sole and exclusive remedy, and Service Provider's entire liability, will be, at Service Provider's discretion, either:
12.4 Disclaimer of Warranties. ASIDE FROM THE WARRANTIES THAT SERVICE PROVIDER EXPRESSLY SETS FORTH IN WRITING IN THIS AGREEMENT, IT PROVIDES THE SERVICES "AS-IS" AND "WITH ALL FAULTS." THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY SERVICE PROVIDER WITH RESPECT TO THE SERVICES. EXCEPT AS OTHERWISE SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SERVICE PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND CUSTOMER'S USE THEREOF. CUSTOMER WAIVES ANY AND ALL WARRANTIES THAT MAY BE IMPLIED BY LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Section 13. Term and Termination.
13.1 Term. The term of this Agreement shall commence on the Effective Date and unless earlier terminated as provided herein, shall continue for eighteen months (18) months following the Effective Date (with the initial period referred to as the "Initial Term"). This Agreement shall automatically renew for successive one (1) year terms.
13.2 Termination for Convenience. Either party may terminate this Agreement for any reason or no reason upon thirty (30) days advance written notice to the other party.
13.3 Termination for Breach. Either party may terminate this Agreement upon fifteen (15) days' written notice if it learns of any breach by the other party and such breach has not been cured within such fifteen (15)-day period. Notwithstanding the foregoing to the contrary, Service Provider may suspend Merchant's use of the Services immediately and without notice in the event that the Service Provider believes in its sole discretion that Merchant is not in compliance with the terms of this Agreement
Section 14. Effect of Termination and Transition.
14.1 Effect of Termination. The provisions of Sections 8, 9, 10, 11, 12, 14 and 15, Article II and Article III, as well as any other terms of this Agreement that expressly extend or by their nature should extend beyond termination or expiration of this Agreement, will survive and continue in full force and effect after any termination or expiration of this Agreement. Any licensees granted to Merchant hereunder will automatically terminate upon termination or expiration of this Agreement. Any termination of this Agreement with respect to a certain Merchant Order does not terminate this Agreement with respect to any other Merchant Order.
14.2 Transition. Upon the expiration or termination of this Agreement (which will include any expiration or termination of the Merchant Order) for any reason, Merchant:
14.3 Return of Materials. Upon the expiration or termination of this Agreement, or earlier upon Service Provider's written request, Merchant will promptly deliver to Service Provider all of Service Provider's property or Confidential Information which Merchant may have in its possession or control and, upon Service Provider's request, to sign and deliver to Service Provider written confirmation of same. Promptly upon termination, Service Provider is entitled to cancel any previously issued Access Credentials, and Merchant will discontinue all use of Services.
Section 15. Miscellaneous Terms.
15.1 Assignment. Merchant will not assign, transfer or delegate its rights or obligations under this Agreement to any third party without Service Provider's prior written consent. For the purposes of this Agreement, any sale or transfer by Merchant of all or substantially all of its stock or assets is considered an assignment, requiring Service Provider's express written consent. Service Provider may freely assign this Agreement or transfer any of its interest herein, including without limitation to any Service Provider Entity. This Agreement and each of the provisions hereof shall inure to the benefit of and be binding upon each party's successors, administrators and permitted assigns.
15.2 Severability. If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision will be interpreted to the maximum extent to which it is valid and enforceable, all as determined by such court in such action, and the remaining provisions of this Agreement will, nevertheless, continue in full force and effect without being impaired or invalidated in any way.
15.3 Rules. In addition to the terms as set forth herein and in the Merchant Orders, Merchant will be bound by all applicable Rules, which Rules are incorporated herein by this reference as terms binding against Merchant, and made a part of each Merchant Order. The Rules may be amended at any time by Service Provider or by the person or entity controlling the applicable Rules. At all times relevant to this Agreement, Merchant is responsible for seeing that its Programs comply with the Rules, regardless of the extent to which Merchant has become familiar with the Rules.
15.4 Order of Precedence. The Merchant Order, this Agreement, and the Rules and are to be interpreted so that all of the provisions are given as full effect as possible. In the event of a conflict between the terms of the documents comprising this Agreement, the following order of precedence will apply: (a) the Merchant Order, to the extent that the term in conflict relates to the particulars of the Services ordered under that Merchant Order; (b) these Standard Terms, and then (c) the Rules.
15.5 Entire Agreement; No Reliance. This Agreement, together with the Merchant Order and all documents referenced herein or therein, constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof, and this Agreement merges and supersedes all prior agreements, discussions and writings with respect to the subject matter hereof. Each party represents that it has not relied on any representations made by the other party or upon any descriptions, illustrations or specifications contained m any document including proposals, catalogues or other publicity material produced. Each party has relied only on the express terms of this Agreement, and not on any representations of the other party not set forth herein, nor on any other documents or materials of the other party not expressly made a part hereof.
15.6 Force Majeure. Neither party will be held responsible for any delay or failure in performance of any part of this Agreement (with the exception of any obligation to make payments to the other party hereunder) to the extent such delay or failure is caused by fire, flood, explosion, war, terrorism, strike, embargo, governmental action or failure to act, the act of any civil or military authority, act of God, inability to secure material or transportation facilities, acts or omissions of carriers, power outages, computer failures, or by any other causes beyond its control whether or not similar to the foregoing.
15.7 No Waiver. The waiver, modification, or failure to insist by a party on any of the provisions of this Agreement will not void, waive, nor modify any of the other provisions nor be construed as a waiver or relinquishment of such party's right to performance in the future of any such provision.
15.8 Relationship of the Parties. The relationship of the parties under this Agreement is one of independent contractors, and no agency, partnership, employment, joint venture or similar relationship is created hereby. The parties understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement and is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. Neither party (nor any agent or employee of that party) is the representative of the other party for any purpose and neither party has the power or authority as agent, employee or any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.
15.9 Export Requirements. Merchant acknowledges that export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Services, and will comply with all such export laws and regulations (including "deemed export" and "deemed re-export" regulations). Merchant agrees that no data, information, program or materials resulting from use of the Services will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by such laws.
15.10 Merchant Authentication. Merchant understands and agrees that Service Provider may request additional information, including but not limited to connection with Service Provider's verification of Merchant's compliance with the representations contained in this agreement Merchant. Merchant agrees to cooperate with, and provide complete, accurate, and timely information as requested by Service Provider. Service Provider may condition approval for use of one or more Services or hold Merchant's Revenue Payments, until Merchant verification, which may include, without limitation, copies of Merchant's business license, articles of incorporation, tax information requirements and authentication of business owner(s) or Director(s) identity, and/or other documentation required to meet (a) Know-Your-Merchant banking mandates, (b) Anti-money-laundering legislation, (c) similar purposes as needed is complete, or (d) any information requested by a third party, including without limitation, any contractor of Service Provider.
15.11 Notices. Except where provided otherwise, notices hereunder will be in writing and will be deemed to have been fully given and received when delivered by hand, sent by nationally recognized overnight courier, or sent by registered or certified mail, return receipt requested, postage prepaid, and properly addressed to the offices of the respective parties at the addresses set forth in the Merchant Order (or to such other addresses as may be specified in notices which comply with this Section 15.10).
15.12 Third Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the parties hereto. The Merchant shall not have any right to receive or request payment for a transaction from (i) a Customer, to the extent he or she has paid the Mobile Operator or Service Provider for such transaction, or (ii) a Mobile Operator.
15.13 Amendment. The parties expressly agree that that Service Provider from time to time may amend this Agreement by sending a written notice to Merchant to draw attention to any updated terms or conditions that may be imposed upon the Merchant or its Programs. Upon receipt of a carrier alert, Merchant will have 10 business days in which to elect to terminate Services with respect to the applicable Network Operator. Merchant acknowledges that failure to timely elect or terminate such Services, or any continued use of the Services after expiration of the 10 business day period shall be deemed as the Merchant's express acceptance of the updated terms or Rules. Except as provided herein (including, without limitation, in Section 15.3 regarding amendments to the Rules), no modification, alteration or amendment of this Agreement will be valid or binding unless in writing and signed by both parties.
15.14 Governing Law; Jurisdiction. The law of the State of New York will govern this Agreement and the transactions it contemplates, without reference to rules regarding conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The parties hereby agree that all lawsuits arising out of or related to this Agreement will be brought in the state or federal courts located in New York County, New York, and each party hereby submits itself to the exclusive jurisdiction and venue of such courts.
15.15 Attorney's Fees. In the event of any arbitration or litigation to enforce this Agreement or settle any dispute arising hereunder, the prevailing party (as determined by the arbitrator, judge or other adjudicator in the proceeding) will be entitled to recover, in addition to any damages awarded, all costs, including its reasonable attorneys' fees and costs, incurred in connection with the arbitration or litigation.
15.16 Formal Negotiation. In the case of any dispute between the Parties, either party may initiate formal negotiations by delivery to the other of a written notice. Within ten (10) calendar days following the receipt of any such notice, the recipient party shall deliver to the initiating party a written response to the notice. Each such notice and response shall include the party's description of the (including any suggestions for the resolution of the dispute), and designation of a senior executive who will represent the party in further negotiations, who shall have authority to resolve the dispute on behalf of such party. The designated executives shall meet on at least one occasion (and may meet as often as they deem necessary), at a mutually acceptable time and place, and attempt in good faith to resolve the dispute.
15.17 Arbitration. In the event that, within thirty (30) calendar days following the initial written notice described in Section 12.16 the formal negotiation has not produced a resolution of the Dispute, either party may submit the Dispute to be resolved by arbitration by one arbitrator ("Arbitrator") in accordance with the then-current arbitration rules of the American Arbitration Association (or, if the Parties mutually agree, the then-current arbitration rules of the International Chamber of Commerce), applicable law and the provisions of this Agreement. Service Provider shall have the sole discretion to appoint the Arbitrator; provided, however, that the Arbitrator (a) shall not be a current or former employee of Service Provider; (b) shall have sufficient expertise in the subject matter of the Dispute; and (c) shall not receive any payments from Service Provider except in accordance with the provisions of this Section. The Arbitrator shall not in any event award any damages excluded herein. The cost of any arbitration shall be shared equally by the parties, but the Arbitrator shall be authorized to enter, as part of the award to any party, an amount equal to such party 's attorneys fees and other costs related to the arbitration. The Arbitrator may award equitable relief. The Arbitrator's decision(s) shall be final and conclusively binding on the parties, and judgment upon such award may be entered in any court of competent jurisdiction. Unless otherwise agreed in writing by the Parties, any arbitration of a Dispute shall be held in New York, NY and shall be conducted in the English language. The decision of the Arbitrator may be enforced by the prevailing party, but only in the state or federal courts set forth herein.
15.18 Waiver of Jury Trial. The Parties are sophisticated and are represented by counsel. Each understands that in agreeing that all disputes will be adjudicated by private confidential arbitration, it is waiving its right to a jury trial. Any dispute over whether an issue is subject to the procedures of Section 15.16 shall itself be determined by arbitration under that section.
15.19 Subcontractors. Service Provider may subcontract portions of its obligations under this Agreement to one or more third party providers at its sole discretion, including but not limited to affiliates, provided that Service Provider will remain responsible for its obligations under this Agreement to the extent not performed as required. Notwithstanding any other provision of this Agreement, neither Service Provider nor any affiliate shall have any responsibility or liability of any kind for any acts or omissions of Mobile Carriers or transaction processors, or any third parties.
15.20 Performance Standards. Service Provider will maintain a performance level with respect to the billing and collection of Merchant's charges which is consistent with Service Provider's service measurement criteria applied to bill and collect its own charges. Merchant will maintain a performance level with respect to the quality and accuracy of messages provided to Service Provider for collection, consistent with Merchant's own message rating and recording experience.
The following terms and conditions shall apply only to SMS Services provided by the Service Provider. To the extent of any inconsistency between this Article II and Article I above, the terms and conditions of this Article II shall control.
Section 1. Transaction Flow for SMS Services.
Customers of who choose to pay for products of the Merchant (a "Merchant Product") with the SMS Service must enter a valid mobile phone number through an Service Provider's interference. Service Provider verifies that the Customer is in possession of the mobile phone by sending an SMS message for Customer confirmation before processing the transaction. Upon Customer confirmation and acceptance of Service Provider's order terms and conditions, the transaction is processed through the applicable Mobile Carrier or through the applicable payment mechanism authorized by the Customer (e.g. credit card). Service Provider then notifies Merchant that the Customer has been charged and that Merchant may release the purchased Merchant Product to the Customer. Merchant must deliver the Merchant Product purchased by the Customer within two (2) hours from Service Provider's notice.
The following terms and conditions shall apply only to Direct Billing Services provided by the Service Provider. To the extent of any inconsistency between this Article III and Article I above, the terms and conditions of this Article III.
Section 1. Definitions. Unless the context requires otherwise, capitalized terms in this Section III shall have the following meanings when, and only when, used in this Section III.
Section 2. Service Provider Services.
2.1 Scope of Service Provider's Services. Service Provider has agreed to provide the Service for Transactions submitted by Merchant. Service Provider will not be obligated to process Transactions that are prohibited by the applicable Mobile Carrier or Applicable Law. Provision of the Services to Merchant with respect to each Mobile Carrier is subject to the Mobile Carrier having approved Merchant for the Service.
2.2 Scheduled Maintenance. Service Provider will have the right to suspend, disable or restrict access to the Service Provider Servers and/or the Service for a limited amount of time, normally during the late evening or early morning hours US Pacific, due to system maintenance, technical upgrades or service enhancements.
Section 3. Operations.
3.1 Relationship to Consumer and Mobile Carrier. Merchant shall have no right to receive or request payment for a Transaction from (i) Service Provider, (ii) a Consumer to the extent he or she has paid Mobile Carrier or Service Provider for such Transaction, or (ii) a Mobile Carrier. Merchant may only request or receive payment for Transactions directly from the Service Provider and no other party. Merchant acknowledges and agrees that it is not a third-party beneficiary of any agreement between Service Provider and its any of it's contractors; Service Provider and Consumer; or Service Provider and any Mobile Carrier.
3.2 Use of Merchant APIs and Server Access. During the Term, subject to the terms and conditions of this Agreement, Merchant will transmit Transaction Information from the Merchant Servers, which will be transmitted to the Service Provider Servers. In the event that Service Provider determines that a Consumer or other third party has attempted to gain unauthorized access to the Service Provider Servers, Service Provider may notify Merchant of such activities, upon which the Parties will cooperate in good faith to cease and prevent such attempted security breaches and to mitigate any effects thereof.
3.3 Recurring and Repeat Payments. Prior to submitting a Transaction to set up Recurring Payments or Repeat Payments Merchant will disclose to Consumer (i) that the Transaction will authorize Merchant to charge the Consumer's mobile phone bill on a regular or periodic basis, (ii) the amount the Consumer will be charged or, if the amount is variable, the method by which the Merchant will determine the amount to charge the Consumer, and (iii) the method by which the Consumer may cancel the Recurring Payment or Repeat Payment. After a Transaction to set up Recurring Payments or Repeat Payments has been authorized, Merchant will disclose to and confirm for the Consumer by email, postal mail, or other equivalent means the occurrence and confirmation of each the items described in (i), (ii) and (iii) of the previous sentence. Merchant bears all risks, liability, and responsibility for Recurring Payments and Repeat Payments, including, but not limited to: (i) Recurring Payment and Repeat Payments registration; (ii) managing scheduled Recurring Payments and Repeat Payments; (iii) initiating Recurring Payments and Repeat Payments; (iv) canceling scheduled Recurring Payments and Repeat Payments; and (v) Consumer notifications, disclosures and consents regarding Recurring Payments and Repeat Payments. Merchant must notify Service Provider through the Merchant Back-office Gateway of receipt of any Consumer request for the cancellation of any scheduled Recurring Payment or Repeat Payment within three (3) business days of receiving the Consumer's request. For payments related to Repeat Payments and Recurring Payments, whether for monthly, quarterly, bi-annual or other terms, neither Service Provider nor any Mobile Carrier will be obligated to refund or process any credit(s) with respect such Transactions including, without limitation, any credit for the un-expired portion of the applicable term of a Recurring Payment following a cancellation. Merchant bears sole responsibility for any refunds or credits it may choose to allow its Consumers with respect to Repeat Payments and Recurring Payments.
3.4 Cancellation, Credit and Return Policy. Merchant will maintain a policy regarding cancellation of Transactions, credits and returns on its Website. Upon request, Merchant will provide Service Provider with a copy of such policy and its location on Merchant's Website.
3.5 Customer Support. Merchant will provide notice on its Website of an email address for Consumers to contact Service Provider with questions or requests regarding the Service, including questions regarding and requests for refunds or credits.
Section 4. Service Provider Transactions.
4.1 Transaction Requirements. The following requirements apply to all Transactions: Merchant will not (i) impose a surcharge or fee for accepting Transactions such that Consumers that use the Service receive the same goods and services, at the same overall price and charges, as purchasing with any other payment option; (ii) establish any special conditions for accepting Transactions; (iii) submit Transactions to the Service for retail installment contracts that include interest payments; (iv) submit Transactions to the Service for pornographic materials, illegal gambling activities or other activities that may be restricted by Mobile Carrier content restrictions; or (v) unless otherwise directed by Service Provider in writing, include in the amount of Transactions any amount for sales tax. Unless otherwise directed by Service Provider in writing, sales tax will be collected and remitted by Mobile Carrier. In addition, Merchant will not (a) accept any direct payments from Consumers or Mobile Carriers for charges for goods or services which have been purchased using the Service or (b) make any cash disbursements as part of a Transaction. Service Provider will have the right to suspend, disable or restrict access to the Service Provider Servers and/or the Service immediately without prior notice in the event Service Provider reasonably believes that Merchant may be in violation of Applicable Law or applicable Mobile Carrier rules including, without limitation, Mobile Carrier content rules and restrictions.
4.2 Record of Transactions. Merchant will be required to keep a record of each Transaction for a period of two (2) years following a Transaction for purposes of fee or tax audits by Service Provider, the Mobile Carrier or any applicable taxing authority. In the event of any conflict between Merchant's record of Transactions and Service Provider's record of Transactions, Service Provider's record of Transactions will control.
Section 5. Processing.
5.1 Authorization Process. Service Provider will determine and manage the Transaction authorization and rejection criteria in its sole discretion in good faith. Without limiting the generality of the foregoing, Service Provider may reject any Transaction at its sole discretion based on (i) Mobile Carrier rules and Applicable Laws; (ii) Service Provider's proprietary anti-fraud system; or (iii) Service Provider's authorization and rejection criteria.
5.2 Fulfillment. If Merchant receives a payment confirmation for a Transaction, it will (i) notify the Consumer that the Transaction was authorized, and (ii) promptly deliver the good(s) and/or service(s) paid for through the Transaction to the Consumer. For six (6) months following each Transaction, Merchant will maintain records of delivery of goods and services and provide such records to Service Provider upon request.
Section 6. Chargeback and Refusal Process.
6.1 Chargebacks and Refusals. Notwithstanding any payment confirmation for a Transaction delivered from Service Provider to Merchant, Service Provider may refuse to credit, may chargeback, or may deduct from amounts payable to Merchant, in whole or in part, the total amount of any Transaction and any related Chargeback Loss in any of the following circumstances: (a) the Transaction is not properly completed in accordance with or failed to meet the requirements herein; (b) the Transaction results in a refund, credit, chargeback or is otherwise cancelled or disputed for any reason including, for example (i) the Consumer claims the goods or services referred to in the Transaction Information have been returned, have not been received, are defective or not as described, or (ii) the Consumer disputes the authorization, authenticity or validity of any Transaction or portion thereof; (c) Service Provider has already credited the Account for the same Transaction; (f) the Mobile Carrier has not paid or processes a credit or refund against any Transaction.
6.2 Remedies for Chargebacks. In the event of a Chargeback where the Consumer has not paid the Mobile Carrier or Service Provider the amount due for the Transaction, the Merchant may pursue its remedies against the Consumer. Except as provided in the previous sentence, in no event shall the Merchant have any right to purse collection, remedies or any claim against a Consumer. In no event will Merchant have any right to pursue a claim against Service Provider or any Mobile Carrier, whether for a Chargeback, refund, cancellation, non-payment or any other reason.
Section 7. Financial Settlement and Related Matters.
7.1 Fees. Merchant acknowledges and agrees that it is purchasing the Service directly from the Service Provider. The service fees for use of the Service will be set and agreed with Service Provider and any and all questions, disputes or claims related to fees charged for the processing of Transactions will be the sole and exclusive responsibility of the Service Provider and no other contractor or third party.
7.2 Verizon Related Receivables. Merchant acknowledges that, in the case of Transactions processed for subscribers of Verizon Wireless, all amounts owed to Merchant by Consumers for each Transaction processed through the Service ("Receivable") shall, upon issuance of a payment confirmation for the Transaction by Service Provider, be automatically assigned to Service Provider, and then automatically assigned by the Service Provider to the Merchant. Service Provider will sell all Receivables to Verizon Wireless. Therefore, Merchant hereby releases all of its right, title and interest to any Receivables resulting from a Transaction effective upon receipt of an authorization from Service Provider. The Merchant's acceptance of the Service serves as acknowledgement, agreement and confirmation that Service Provider will have all necessary right, title, interest and authority to sell, convey or assign the right to collect all such Receivables that result from any Transaction authorized through the Service Provider Service.
7.3 AT&T Service Transactions. Transactions processed for AT&T subscribers are billed and collected on a "billing on behalf of" basis and, as a result, Merchant (i) unconditionally and irrevocably appoints Service Provider, with full right and authority to delegate and appoint AT&T, as Merchant's agent for the collection of Transaction payments, (ii) agrees that payments to Service Provider by a Consumer of Transaction charges will extinguish such Consumer's payment obligation to Merchant, and (iii) notwithstanding any provision in the Agreement to the contrary, Merchant will have no right of recourse against any Consumer or AT&T for failure to pay amounts charged through the AT&T service, provided, however, that in the cases of void, cancelled or refund transactions, the Merchant shall have the right to void, cancel or secure a return of digital goods or services provided to the Consumer.
Section 8. Proprietary Rights and Licenses.
8.1 Ownership; Suggestions. The Service Provider Technology, including all Intellectual Property Rights therein, is owned by and will be the exclusive property of Service Provider. No title to or ownership of the Service Provider Technology or other items is transferred to Merchant under this Agreement. Other than its rights under the limited license granted in this Section 9, Merchant has no right to access or otherwise use the Service Provider Servers or reproduce, distribute, practice, sell, prepare derivative works of or otherwise use the Service Provider Technology. Any questions, comments, suggestions, ideas, inventions, plans, notes, drawings, original or creative materials or other information regarding the Service Provider Technology or the Service that are provided by Merchant to Service Provider or its contractor or developed in connection with the Service will become the exclusive property of Service Provider, and Service Provider will be entitled to the unrestricted use of the same for any purpose, commercial or otherwise, without acknowledgment or compensation to Merchant. The Transaction Information, as transmitted to the Service Provider Servers is and will be the exclusive property of Merchant; provided, that Service Provider will have and retain exclusive ownership, and all Intellectual Property Rights therein, of any and all analysis, compilations, reports or interpretation developed or created by Service Provider that may include Transaction Information in connection with its business or the Service.
8.2 Use of APIs and Server Access. Service Provider hereby grants to Merchant a nonexclusive, nontransferable, nonsublicenseable license during the Term to use the Merchant APIs provided by Service Provider to Merchant solely (a) for the purpose of securely accessing the Service Provider Servers and sending Transaction Information to and receiving payment confirmation information from the Service Provider Servers, and (b) to the extent necessary to utilize the Service.
8.3 Software Development Kit Use. Service Provider hereby grants to Merchant a nonexclusive, nontransferable, nonsublicenseable license during the Term to use the Service Provider software development kit, including documentation, software and any updates thereto, provided by Service Provider to Merchant solely to the extent necessary to utilize the Service.
8.4 License Restrictions. The licenses granted by Service Provider in this Section 9 do not include any right to reproduce, distribute, sell, decompile, disassemble, reverse engineer, prepare derivative works of or otherwise use the Service Provider Technology, or to make, use or sell any inventions therein, other than as specifically authorized in this Section 9; and (b) are conditioned expressly upon strict compliance by Merchant with the terms and conditions herein and the guidelines and restrictions set forth in the Merchant APIs and as Service Provider may reasonably impose from time to time. Merchant will not remove or alter any Service Provider Trademark, copyright or other notice on or pertaining to Service Provider, the Merchant APIs, the Service Provider Technology or the Service. Service Provider may, upon notice to Merchant, immediately suspend or terminate the licenses granted to Merchant under this Section 9, in whole or in part, if Service Provider determines in its sole discretion that Merchant has failed to comply with the terms and conditions set forth herein.
8.5 Use of Merchant Marks. Merchant hereby grants to Service Provider and its contractors a nonexclusive, nontransferable, royalty-free right and license during the Term to use the Merchant Marks on the Service Provider Website and in publicity and marketing materials to identify Merchant as a customer of Service Provider and as otherwise permitted by Merchant.
8.6 Reservation of Rights; Limitations. Except as expressly set forth herein, neither Party grants to the other Party any right, title or interest (implied or otherwise) in or to its Websites, content, products, services, Trademarks, documentation, technology or other materials and any related Intellectual Property Rights that may be furnished by it to the other Party in connection with this Agreement. Merchant shall not use any Mobile Carrier trademarks, service marks, or similar marks without express prior written consent from Service Provider and the Mobile Carrier nor attribute any affiliation with the Mobile Carrier except as authorized by Service Provider and the Mobile Carrier.
Section 9. Miscellaneous.
9.1 Third Party Beneficiaries. Any contractor of Service Provider that provides the Service is and shall be a third party beneficiary of any agreement between the Merchant and Service Provider that contains, incorporates or references these terms of use for the Service. Such contractor of the Service Provider shall have the full power, right and authority to enforce these terms of use against Merchant as if included in a direct agreement between such contractor and Merchant. Except as expressly set forth above, no other Person will be a direct or indirect beneficiary of, or will have any direct or indirect cause of action or claim in connection with these terms of use or any resulting agreement.
[END OF TERMS AND CONDITIONS]
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