Merchant Terms

1. Parties

1.1. This license agreement (“Agreement”) is between You (“You”) and boxPAY Limited, having its registered office and trading office at Level's 3 & 4 The Malting Tower, Clanwilliam Terrace, Grand Canal Dock, Dublin 2, Ireland (“boxPAY”).

2. Definitions

2.1. In this Agreement:

“boxPAY Trademark” means the boxPAY name and logo and any associated trademark.
“Payment Services” means any use by you of the Service to procure payment for any goods or services on your behalf or on behalf of any other party.
“Service” means the SMS-based micro payment processing service offered by boxPAY and as set out in more detail on the Website.
“Software” means the online software applications provided by the Supplier as part of the Services.
“Specified Proportion” means the proportion of each payment in respect of a Transaction which is payable to You.
“Telecom Operator” means any telecom operator who has entered into an agreement with boxPAY to facilitate the provision of the Service.
“Transaction” means any payment by an end user using any Payment Service.
“Website” means the website at www.boxpay.com.

3. Binding Agreement

3.1. Please read the Agreement carefully. You understand that by using any of the Services, You agree to be bound by these terms and conditions.

3.2. boxPAY is permitted to make changes to this Agreement by notifying You in advance via the contact details You have provided on the Website and/or by publishing the changes at the Website. Continuing to use the Service indicates that You fully accept the changes to the Agreement.

4. Grant of license

4.1. Subject to the terms of this Agreement, boxPAY grants You a limited, non-exclusive and non-transferable licence to use the Service and the Website.

4.2. boxPAY may at any time and at its sole discretion limit, deny, create different priorities for different users, update or cancel some or all of the functionality of the Service without prior notice.

4.3. You may create Payment Services using the Service provided by boxPAY. You are solely responsible for the contents of Your Payment Service, and adherence to the terms of this Agreement and other terms and conditions provided on the Website.

4.4. boxPAY reserves the right to investigate, at its own discretion, any activity that may violate this Agreement.

4.5. You shall not, and shall not encourage any third party to use Your Payment Service without paying the price of it. You shall not engage in any action or practice that reflects poorly on boxPAY or otherwise devalues or adversely affects boxPAY's reputation or goodwill.

4.6. You shall ensure that no false or misleading information, viruses or any other harmful, damaging or destructive programs, or any content which infringes or may infringe any third party intellectual rights are distributed with Your Payment Service, related websites or other promotional materials.

5. Specified Proportion

5.1. In consideration of boxPAY providing the Service, You agree that boxPAY and/or any Telecom Operator shall be entitled to the entire amount payable in respect of any Transaction by an end user other than the relevant Specified Proportion.

5.2. Subject to the terms of this Agreement, boxPAY agrees to transfer the Specified Proportion of each completed Transaction to You. You acknowledge that the Specified Proportion payable to You varies between Telecom Operators and that a Telecom Operator may reserve the right to vary its billing which may change the Specified Proportion.

5.3. boxPAY reserves the right to unilaterally change any Specified Proportion at any time. boxPAY will inform You about such change via e-mail or the Website. If You do not agree with the change, You may terminate the Agreement or any one or more Payment Services. Continuing to use the Service and/or any Payment Service after the changes have become effective is considered an agreement to such changes.

5.4. boxPAY will not be obliged to make any payments to You before boxPAY has received the corresponding invoicing data and payment from the relevant Telecom Operator(s).

5.5. In the event that boxPAY does not receive a payment in respect of any Transaction or only receives a partial payment in respect of any Transaction, whether due to (i) an error or fault in the Service (whether or not caused by boxPAY); (ii) any act or omission by boxPAY (other than as provided for in clause 6.2); (iii) any act or omission by a Telecom Operator; (iv) any act or omission by an end user; or (v) any other cause, boxPAY shall not be liable to pay the Specified Proportion of that Transaction to You.

5.6. You are aware that Telecom Operators disclaim their payment liability for Transactions where the Telecom Operator has failed to collect payment from the end users. In such event boxPAY has no payment obligation towards You.

5.7 In the event that any Telecom Operator makes any set-off or retains any payment payable to boxPAY as the result of any Transaction which is challenged by an end user after the date of payment, whether due to fraud or otherwise (a "Challenged Transaction"), boxPAY shall in turn be entitled to set-off or retain the Specified Proportion of any such Challenged Transaction from any subsequent payment to You.

6. Payment Terms

6.1. boxPAY shall transfer any Specified Proportion payable to You pursuant to clause 5.2 as soon as practicable following receipt of that Specified Proportion by boxPAY from the relevant Telecom Operator (subject to a minimum aggregate transfer amount of €50 or equivalent). All bank charges or other related administrative fee shall be borne by You.

6.2. boxPAY will use commercially reasonable efforts to enforce the payment obligations of each Telecom Operator that is party to any Transaction. You acknowledge that the standard payment terms by Telecom Operators to boxPAY is between 30 to 60 days, but may be longer. boxPAY makes no warranty or representation regarding the timing of any payment by a Telecom Operator.

6.3. All payments by boxPAY to You shall either be in Euros, Pounds Sterling or US Dollars (as may be selected by You at Your discretion on the Website, the "Payout Currency"). Where the currency used in respect of any Transaction is any currency other than the Payout Currency, boxPAY shall apply the applicable currency conversion rates applied to boxPAY by boxPAY's bank as at the date of transfer by boxPAY.

6.4. In the event the Agreement is terminated, boxPAY's obligations under clause 6.1 shall continue. In no event, however, shall boxPAY make payments where the total amount payable (after conversion to Euros) is less than €50 or equivalent.

6.5. For accounting purposes, boxPAY reserves the right to reset your account balance when there has been no Transaction on a particular Payment Services for 6 months and the account balance for that Payment Service is below €50 or equivalent.

6.6. boxPAY reserves the right to withhold payment or charge back Your account due to any breach of this Agreement by You, pending boxPAY's reasonable investigation of the breach. In the event that in boxPAY's opinion the terms of this Agreement are breached, and as a consequence boxPAY has been charged by mobile operators or refunded payments to end users, boxPAY is entitled to invoice You for such refunds, charges and all costs incurred by boxPAY.

6.7. To ensure proper payment, You are solely responsible for providing and maintaining accurate contact and payment information associated with Your account with boxPAY.

6.8. You agree to pay all applicable taxes or charges imposed by any government entity or mobile operator in connection with any Transaction and/or Payment Services. In the event that it is so required by any government entity or Telecom Operator, boxPAY has the right to withhold applicable taxes and charges from the payouts to You.

6.9. If You wish to dispute any payment, You should do so within 30 days of the date of receipt of such payment. Failure to do so in this period shall You be deemed to have accepted the correctness of the payment.

6.10. Payment shall be calculated solely based on records maintained by boxPAY (including without limitation confirmation of payment by Telecom Operators to boxPAY in respect of any Transaction). No other measurements or statistics of any kind shall be accepted by boxPAY or have any effect under this Agreement.

6.11. Payment shall be calculated solely based on records maintained by boxPAY (including without limitation confirmation of payment by Telecom Operators to boxPAY in respect of any Transaction). No other measurements or statistics of any kind shall be accepted by boxPAY or have any effect under this Agreement.

6.12. WITHOUT LIMITING THE FOREGOING, BOXPAY RESERVES THE RIGHT TO OFFSET AGAINST AMOUNTS DUE TO YOU UNDER THIS AGREEMENT WITH ANY AMOUNTS OWED BY BOXPAY INCLUDING, BUT NOT LIMITED TO, REIMBURSEMENTS FOR ANY ADJUSTMENT TO A SPECIFIED PROPORTION OR COSTS OR DAMAGES SUFFERED BECAUSE OF THE NON-COMPLIANCE BY YOU WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.

7. Warranties

7.1. boxPAY provides the Service to You on an "AS IS" basis, subject to the terms and conditions of this Agreement. boxPAY makes no guarantee regarding the performance of boxPAY’s systems, Telecom Operators' billing systems, or the amount of any payment to be made to You under this Agreement.

7.2. You represent, warrant and undertake that:

7.2.1. You have the adequate legal capacity to enter into this Agreement;
7.2.2. if you acting on behalf of a body corporate, that You are duly authorised to enter this Agreement on behalf of that body corporate;
7.2.3. If you are an individual, you are at least 18 years old;
7.2.4. You will use the Service only for lawful purposes and in accordance to this Agreement and the instructions provided on the Website; and
7.2.5. You will ensure that each Transaction and each Payment Service shall comply with all laws, regulations and guidelines applicable in any territory in which any end user initiates such Transaction or uses such Payment Service.

8. Limitation of use of Payment Services

8.1. Unless otherwise expressly consented to in writing by boxPAY (which consent may be withheld or withdrawn by boxPAY at its sole discretion), You agree that you shall not use the Service or any Payment Service to procure payment for any content or services related in any way to:

8.1.1. Gambling or similar services; or
8.1.2. Adult content (including without limitation explicit language, nudity, or other content as deemed inappropriate for minors).

8.2. Unless otherwise expressly consented to in writing by boxPAY (which consent may be withheld or withdrawn by boxPAY at its sole discretion), You warrant, represent and undertake that your website does not:

8.2.1. Provide services relating to gambling or similar services; or
8.2.2. Contain or provide any adult content or services (including without limitation explicit language, nudity, or other content as deemed inappropriate for under 18's by the laws of Ireland).

8.3. You shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that:

8.3.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
8.3.2. facilitates illegal activity;
8.3.3. promotes unlawful violence;
8.3.4. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
8.3.5. causes damage or injury to any person or property;

boxPAY

8.4. You shall not:

8.4.1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
8.4.2. access all or any part of the Service in order to build a product or service which competes with the Service;

9. Proprietary rights

9.1. You acknowledge and agree that boxPAY and/or its licensors own all intellectual property rights in the Services and the Software. Except as expressly stated herein, this agreement does not grant You any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Software.

9.2. boxPAY confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

10. Compliance with laws

10.1. You are solely responsible for ensuring that each Transaction and each Payment Service shall comply with all laws, rules, regulations and guidelines applicable in any territory in which any end user initiates such Transaction or uses such Payment Service ("Applicable Law").

10.2. You shall be responsible for ensuring that all licences, permits, and approvals which are necessary or advisable for the provision of each Transaction and each Payment Service and in compliance with the Applicable Law are obtained and maintained during the term of this Agreement

10.3. In any marketing of your Payment Service, You are responsible for giving all the information specified on the Website and/or required by any Applicable Law, including price references with the retail price that the end users will have to pay for using your Payment Service.

10.4. boxPAY is not responsible for any matter or thing related to Your Payment Services.

11. Termination

11.1. Either Party may terminate this Agreement with or without cause at any time by sending written notice to the other party.

11.2. boxPAY may investigate any activity that may violate this Agreement. boxPAY may at any time, in its sole discretion, terminate the Service or terminate this Agreement for any reason. boxPAY reserves the right to terminate without notice any Payment Service that has not generated sufficient number of valid uses for a period of 30 days or more.

11.3. boxPAY reserves the right to terminate your account, at any time, for any reason.

11.4. This Agreement shall not be considered breached if boxPAY temporarily restricts or suspends some of its activities or fails to fulfil some of its obligations owing to an event of force major such as emergency, natural disaster, military conflict, epidemic, etc. for the duration of the effects of such force major. boxPAY must take steps that might be rightfully requested from it in order to minimize the consequences of the force major.

11.5. Where this Agreement is terminated for any reason You must immediately remove the Service, the boxPAY Trademark and any associated boxPAY materials.

11.6. On termination, You will reimburse boxPAY for the amount of any adjustment to a Specified Proportion paid to You and such reasonable boxPAY costs and expenses associated with the termination of the Agreement within thirty (30) days following receipt of boxPAY's invoice for same. Your obligation to remit such amounts to boxPAY shall survive termination of this Agreement.

11.7. The continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced by this clause 11

12. Limitation on liability

12.1. In no event shall boxPAY be liable under this Agreement for any consequential, special, indirect, exemplary, or punitive damages, including indirect losses such as loss of earnings, financial or commercial loss, or loss or damage to brand image or goodwill. Without prejudice to the foregoing, the total amount payable by boxPAY to You in the event of a breach of this Agreement by boxPAY shall be limited to [€100,000]

12.2. You agree to indemnify, defend and hold boxPAY, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense, brought against any Indemnified Person(s), arising out of, related to or which may arise from:

12.2.1. Your use of the Service, the Website, and/or Your breach of any term of this Agreement;
12.2.2. wilful misconduct or fraudulent acts or omissions; or
12.2.3 any penalty imposed by any government or regulatory body arising from any of Your acts or omissions; or.
12.2.4. infringement of the intellectual property and other rights (including copyright, patents, trade secrets, database rights and privacy rights) of any third party or arising from the permitted use of other payment systems under the terms of this Agreement.

13. Trademarks

13.1. You agree that boxPAY may use Your name and logo in presentations, marketing materials and customer lists.

13.2. Subject to the terms of this Agreement, BoxPAY grants You a non-exclusive, royalty-free license to use the boxPAY Trademark for the limited purposes of marketing, promoting and making available the Payment Services in accordance with the terms of this Agreement.

13.3. The Parties agree and acknowledge that, all rights in, title to and ownership of the boxPAY Trademarks shall remain with boxPAY and any and all goodwill shall vest in boxPAY.

13.4. Except as expressly provided by this clause 13 or permitted by Applicable Law: -

13.4.1. neither Party shall use the names, trademarks, service marks, designs or logos, nor any adaptation, translation or variation thereof, of the other Party in any manner whatsoever without the prior written consent of the other Party in each instance; and
13.4.2. no right, title or interest in and to any copyright, names, trademarks, service marks, designs or logos of either Party is conveyed or intended to be conveyed by this Agreement.

14. Retention of information

14.1. boxPAY may retain and use all information You provide, including but not limited to service usage details, contact and billing information. You agree that boxPAY may transfer and disclose to third parties personally identifiable information about You for the purpose of approving and enabling Your usage of the Service. boxPAY may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. boxPAY disclaims all responsibility, and will not be liable to You, however, for any disclosure of that information by any such third party. boxPAY may share non-personally-identifiable information about You, including service details, usage statistics and similar information collected by boxPAY, with advertisers, business partners, sponsors, and other third parties.

14.2. Any end user information is owned by the respective mobile operator, and You can only use this information for providing Your Payment Services. In case You abuse this rule and Telecom Operator judges so, the penalties in force at the time will be charged to You and You undertake to pay any such penalties. This clause will remain in force after the termination of this Agreement.

15. Third Party Rights

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

16. Viruses, hacking and other offences

16.1. You must not misuse the Service, the Software or the Website by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Service, the Software, the Website or the server on which the Website is stored or any server, computer or database connected to boxPAY. You must not attack the Service, the Software or the Website via a denial-of-service attack or a distributed denial-of service attack.

16.2. By breaching this provision, You would commit a criminal offence. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing Your identity to them. In the event of such a breach, Your right to use the Service will cease immediately.

16.3 We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect Your computer equipment, computer programs, data or other proprietary material due to Your use of the Service, the Software or the Website or to Your downloading of any material posted on it, or on any website linked to it.

17. General

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

17.2. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. boxPAY reserves the right in its sole discretion to modify this Agreement and will notify You in advance or publish the changes on the Website. Continuing to use the Service indicates that You fully accept the changes to the Agreement.

17.3. You agree to supply boxPAY, Ltd. with verification of being a legal business, corporation, or registered company. If You are an individual You must supply a legal mailing address, passport, and other documentation based on the rules and regulations of any and all of the countries You are billing in. boxPAY reserves the right to determine how much documentation is necessary for verification, and the right to put a hold on Your account until it is received.

17.4. This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of Ireland.

17.5. The parties irrevocably agree that the courts of Ireland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).