YOU ACKNOWLEDGE AND AGREE THAT BY CLICKING ON THE "I AGREE" BUTTON (OR SIMILAR BUTTONS OR LINKS AS MAY BE DESIGNATED BY ALLOPASS TO SHOW YOUR ACCEPTANCE OF THIS AGREEMENT), YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT EFFECTIVE UPON YOUR ONLINE REGISTRATION (THE «EFFECTIVE DATE»). BY YOUR ONLINE REGISTRATION AND YOUR USE OF THE ALLOPASS SERVICE YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. ALLOPASS MAY UPDATE THIS AGREEMENT FROM TIME TO TIME AND WILL MAKE REASONABLE EFFORTS TO INCLUDE NOTICES REGARDING ANY SUCH UPDATES OR CHANGES ON THE ALLOPASS WEBSITE AT US.ALLOPASS.COM, AS APPLICABLE. BY USING, AND CONTINUING TO USE, THE ALLOPASS SERVICE, YOU SIGNIFY YOUR BINDING AND CONTINUED ACCEPTANCE OF THIS AGREEMENT, AS PUBLISHED ON THE ALLOPASS WEBSITE, AND REVISED BY ALLOPASS, FROM TIME TO TIME IN ITS SOLE DISCRETION.
SHOULD THIS AGREEMENT CONFLICT WITH ANY OTHER AGREEMENT OR UNDERSTANDING BETWEEN THE PARTIES, BE IT ONLINE, ORAL OR WRITTEN, THIS AGREEMENT SHALL PREVAIL UNLESS OTHERWISE SPECIFICALLY PROVIDED FOR BY THE CONFLICTING DOCUMENT IN WRITING. YOU HEREBY CONSENT TO THE USE OF ELECTRONIC COMMUNICATION IN ORDER TO ENTER INTO CONTRACTS, PLACE ORDERS AND CREATE OTHER RECORDS AND TO THE ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE ALLOPASS SERVICE. FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE MANDATORY LAW.
1.Description of Service
1.1.The Allopass Service is a payment processing service which enables your customers (the «End User») to pay for products, services or content («Protected Content») using any one or all of the methods of payment listed in Exhibit A of this Agreement. All or any portion of the Allopass Service may be provided by third party contractors and affiliates of Allopass, however, Allopass shall remain obligated for the performance of all of its obligations hereunder and shall be solely liable for all acts and omissions of such third party contractors and Allopass affiliates. The Allopass Service is built upon a network of system participants including Operators, local market aggregators, payment service providers and merchants. «Operators» shall mean any and all telecommunication operators and/or carriers and/or aggregators with whom Allopass contracts or are otherwise engaged directly or indirectly in the provision of the Allopass Service or any portion thereof. IN NO EVENT DOES ALLOPASS ACT AS YOUR AGENT NOR DOES ALLOPASS HAVE ANY CONTROL OVER, RESPONSIBILITY FOR OR LIABILITY FOR ANY PROTECTED CONTENT OR OTHER PRODUCT, SERVICE OR CONTENT SOLD OR LICENSED BY YOU OR PAID FOR USING THE ALLOPASS SERVICE. The Allopass Service functions by providing you with the ability to solicit payment from an End User by implementing our payment scripts or API (together the «Allopass API») on your website or in your application. Once an End User has successfully been charged by Allopass, we will provide the End User with an alphanumeric Access Code (the «Code»). Unless otherwise provided herein or mutually agreed between the Parties, the End User may redeem the Code on your website or application (the «Merchant Website») through the Allopass Service as prescribed in Section 3 below (although they are under no obligation to do so). If the Code is deemed to be valid by Allopass, then Allopass shall credit your Allopass account subject to the terms and conditions set forth below.
2.Registration for the Allopass Service.
2.1.Unless approved in writing by Allopass, you may not register for or open more than one Allopass account.
2.2.You hereby warrant and represent that if you are opening an account as an individual that you are at least 18 (eighteen) years of age. ALLOPASS ACCOUNTS ARE NOT AVAILABLE TO PERSONS, INCLUDING YOU AND ANY END USER, UNDER THE LEGAL AGE TO FORM A CONTRACT UNDER THE LAWS OF THE COUNTRY OR OTHER JURISDICTION WHERE THEY RESIDE OR SUCH AGE AS IS OTHERWISE REQUIRED PURSUANT TO THE TERMS OF SERVICE BETWEEN ANY APPLICABLE OPERATOR AND YOU OR ANY END USER.
2.4.Allopass shall acknowledge receipt of the completed Registration Information by sending you a confirmation email to the email address provided by you during the registration process.
2.5.Upon receipt of the Registration Information (as acknowledged by your receipt of the confirmation email) and completion of the registration process, including your acceptance of this Agreement, you shall be assigned an Allopass Account Number and password which shall enable you to access the Allopass Service.
2.6.In the event that we determine that any Registration Information you provided to us is incorrect, incomplete, inaccurate or not current, we reserve the right to immediately suspend or terminate your account without notice to you, and to prohibit you from any and all current and future use of the Allopass Service (or any portion thereof).
2.7. ACCESS TO THE ALLOPASS SERVICE ONLY SIGNIFIES THAT WE WILL OPEN AN ALLOPASS ACCOUNT FOR YOU BUT DOES NOT REPRESENT THAT WE HAVE IN ANY WAY REVIEWED OR APPROVED THE SERVICES REQUESTED BY YOU OR ANY TRANSACTION YOU PROPOSE TO EFFECT VIA THE ALLOPASS SERVICE WITH RESPECT TO CONFORMITY WITH ANY APPLICABLE LAWS AND REGULATIONS.
2.8.Merchant is solely and entirely responsible for maintaining the confidentiality and security of the account name(s) and password(s) associated with your Allopass Account. Merchant is solely and entirely responsible for any and all activities that occur in connection with your Allopass Account, including ensuring that all user(s) of the Allopass Account are authorized by Merchant to do so. Allopass is not responsible for any loss or damage resulting from compromised passwords or unauthorized use of your Allopass Account. You agree to notify us immediately of any unauthorized use of your Allopass Account or any breach of security (and to provide documented evidence as reasonably requested by Allopass) and to completely exit from your Allopass Account at the end of each session.
3.Methods of Operation.
3.1.The Allopass Service enables the End User to purchase a Code for redemption with the Merchant. The End User may use any one or all of the methods of operation below in Sections 3.2 to 3.5 that have been enabled by you using the Allopass Website («Permitted Method») at the tariff rate as selected by you, according to the price points provisioned by Allopass in a given country. Unless otherwise provided herein or mutually agreed between the Parties, upon presentation of the Code by the End User through the Allopass API as implemented by the Merchant, the Code will be verified by us and if deemed authentic and valid by us solely at our discretion, shall be redeemed for payment pursuant to Section 4 («Successful Redemption»). If the Code is determined by us to be invalid, the End User will be notified through the Allopass API by the display of a specific error message.
3.2.One time payment
(a)The End User obtains a Code using a permitted method of payment as listed in Exhibit A.
(b)The Code must be redeemed by the End User within thirty (30) days of issuance.
(c)The period of validity of the Code is determined by the issuing Merchant as (i) a single use or (ii) for a specific duration («Content Duration»).
(d)Upon Successful Redemption, the End User shall be permitted to access the Protected Content as defined by the Merchant for the Content Duration.
(e)Subject to Section 4, payment shall be due to the Merchant at the first Successful Redemption of each Code.
3.3.Duration based payment
(a)Immediate Access: A Code is provided by the Allopass Service to the End User via the Allopass API as implemented by the Merchant. The End User must then dial a Premium Rate Telephone Number («PTel») to validate the Code. Upon validation the Allopass API will permit access to the Protected Content, provided that, the End User must simultaneously remain connected and on-line with the PTel in order to access the Protected Content. For the avoidance of doubt, should the End User terminate the connection with the PTel, access to the Protected Content will also be terminated.
(b)Deferred Access: A Code is provided by the Allopass Service to the End User via the Allopass API as implemented by the Merchant. The End User must then dial a PTel to validate and add credit value to the Code. The Allopass Service will value the Code equivalent to the period of time that the End User remained connected and on-line with the PTel. The Code must be redeemed by the End User within sixty (60) days of the validation and addition of credit. The End User may redeem the Code for one or more visits to the Merchant to access Protected Content, provided that, the End User may not access the Protected Content for a period in excess of the period of time that they were connected to the PTel. When the Code redeemed by the End User has no further value, access to the Protected Content will be terminated.
(c)Merchant acknowledges that either duration based payment methods as described in Section 3.3(a) and 3.3(b) above, may be subject to minor discrepancies of no more than ten percent (±10%) with respect to the credit ascribed to a Code and access to the Protected Content. Merchant shall not hold Allopass liable for any such discrepancy.
(d)End User shall be billed for the PTel at the tariff rate selected by the Merchant, according to the price points provisioned by Allopass in a given country.
(e)Allopass shall credit the Merchant subject to Section 4, at the termination of the PTel call made by the End User for the purposes of validation and access or addition of credit to the Code. For the avoidance of doubt, where the End User redeems a Deferred Access Code (as defined in Section 3.3(b)), no further credit is due to the Merchant.
(a)The End User may access Protected Content for a predefined period of time by redeeming a Code for a Subscriber Pass on the Merchant Website using the Allopass API.
(b)The End User may purchase a Code for Subscriber Pass from the Merchant through the Allopass API.
(c)The Allopass Service shall permit access to the Protected Content continuously so long as the Code for a Subscriber Pass remains valid as defined by the duration of validity set by the Merchant.
(d)If the Code for Subscriber Pass is determined by us to be invalid, the End User will be notified through the Allopass API by the display of a specific error message.
(e)Only CC, DC and ISPD methods of payment as defined in Exhibit A are valid.
(f)The price, duration of validity, and approved methods of payment shall be defined by the Merchant, subject to the conditions and limits as specified on the Allopass Website.
(g)Allopass shall credit the Merchant subject to Section 4, at the time of initial purchase by the End User of the Code for Subscriber Pass.
(a)The End User may access Protected Content for a single time by redeeming a Code for Access Ticket on the Merchant Website using the Allopass API.
(b)The End User may purchase a Code for Access Ticket from the Merchant through the Allopass API.
(c)The Allopass Service shall permit access to the Protected Content on a single occasion so long as the Code for Access Ticket is valid as determined by our interpretation of the parameters defined by the Merchant.
(d)If the Code for Access Ticket is determined by us to be invalid, the End User will be notified through the Allopass API by the display of a specific error message.
(e)Only CC, DC and ISPD methods of payment as defined in Exhibit A are valid.
(f)The price, and approved methods of payment shall be defined by the Merchant, subject to the conditions and limits as specified on the Allopass Website.
(g)Allopass shall credit the Merchant subject to Section 4, at the time of initial purchase by the End User of the Code for Access Ticket.
4.Payments and Commissions.
4.1.TRANSACTIONS THAT ARE MADE USING THE ALLOPASS SERVICE ARE SUBJECT TO VERIFICATION BY US AND WILL BE DEEMED AUTHENTIC AND ELIGIBLE FOR PAYMENT AT OUR SOLE DISCRETION.
4.2.The payment due to Merchant from Allopass for each Successful Redemption shall be equal to the «Merchant Payout» for the applicable transaction tariff as set forth in Exhibit B, which such payments are referred to herein individually or in the aggregate as applicable as a «Payment». Exhibit B may be modified by Allopass as necessary to reflect any increase in applicable Taxes to be withheld from any Merchant Payout and as otherwise provided in Section 4.10. No Payments shall accrue to Merchant’s benefit until such time as there is a Successful Redemption. In the event that any Code is not so redeemed, Merchant shall not be entitled to any payment in respect of the sale of such Code via the Allopass Service.
4.3.Unless otherwise provided for in Exhibit B, Allopass will use commercially reasonable efforts to make Payments to you within 5 (five) business days of receipt of a request for payment made through the Request for Payment form found on the Allopass Website, subject to the terms and conditions of this Agreement. Payments shall be made by check or bank transfer as determined by Allopass.
4.4.If Merchant is not an individual person, Merchant shall submit an invoice or bill within 72 (seventy two) hours to Allopass corresponding to the amount requested using the Request for Payment form in Section 4.3 above. Merchant acknowledges that Allopass cannot process and release the funds requested for payment unless Merchant has complied with this Section 4.4.
4.5.Credit Card Transactions: Transactions submitted or processed through the Allopass API using the CC method of payment as defined in Exhibit A, shall also be subject to additional terms and conditions set forth in Exhibit D.
4.6.Payments due to you shall be calculated in accordance with data collected by Allopass, which data shall be conclusive and binding on you except in the case of manifest error.
4.7.Allopass shall have no obligation to make any payments to you other than in amounts of at least US$250 (two hundred and fifty US dollars) except upon the termination of this Agreement and/or your Allopass Account.
4.8.Merchant acknowledges that no interest is due or shall accrue under any circumstances on funds held by Allopass which are or may be due or payable to the Merchant.
4.9.Merchant acknowledges and agrees that (i) any payments for Successful Redemptions shall be subject to the payout rates or other rules or procedures of the Operators or other third party providers, (ii) such payments may not be processed or paid by an Operator or others and (iii) Allopass shall have no obligation to pay you unless the relevant transaction has been successfully accepted, processed and paid to Allopass and subject to any rights of Allopass to withholding, offset or deduction, including but not limited to bad debt adjustment charges, foreign exchange fees, bank fees and charges.
4.10.Allopass at its sole discretion may effect or pass through a unilateral change to the Merchant Payout (a «Price Change») and shall notify you of such Price Change by written notice or by posting the updated pricing information in the relevant section of the Allopass Website. The Price Change shall be deemed received by you on the date of the delivery of written notice or the posting of such Price Change on the relevant website (as the case may be) and will be effective and binding ten (10) calendar days for a decrease in the Merchant Payout, or immediately in the case of an increase in Merchant Payout, after the date of such delivery or posting in each case. You shall be affirmatively responsible for reviewing and complying with all such Price Changes. You also shall have the right to terminate this Agreement, pursuant to the terms and limitations of Section 17 of this Agreement.
4.11.Foreign Exchange: Allopass will remit payment to the Merchant in the currency of the transaction, in a currency chosen by Allopass or in the currency specified in Exhibit B, determined at its sole discretion. If requested by Merchant, Allopass may, in its absolute discretion, settle with the Merchant in a different currency as requested by Merchant. In the case of any foreign exchange conversion, Allopass shall make such conversion at the date of remittance at the then‐applicable Allopass commercial rates, such rates available to Merchant upon request.
4.12.All pricing and payment amounts are inclusive of all Tax withholdings required to be withheld by Allopass by applicable common law and any applicable statute, ordinance, code or other law, rule, regulation, order, requirement, or pronouncement enacted, adopted or promulgated by any a nation, state, government entity or any agency or political subdivision thereof (each a «Governmental Entity»), including any judgment, writ, order, injunction, award or decree of any Governmental Entity (collectively, «Laws and Restrictions»). Merchant shall be responsible for all other Taxes on any amounts paid to Merchant under this Agreement. FOR THE AVOIDANCE OF DOUBT, MERCHANT ACKNOWLEDGES THAT ALLOPASS SHALL NOT BE RESPONSIBLE FOR ANY FAILURE BY THE MERCHANT TO DECLARE INCOME TO ANY LOCAL OR GOVERNMENTAL AUTHORITIES, NOR SHALL ALLOPASS BE LIABLE FOR ANY TAX OR OTHER LIABILITY ARISING AS A RESULT OF ANY SUCH FAILURE. «Tax» or «Taxes» shall mean all levies and assessments of any kind or nature imposed by any Governmental Entity, including but not limited to all income, sales, use, ad valorem, value added, transfer, franchise, severance, net or gross proceeds, withholding, payroll, employment, excise, or property taxes (including any Tax liability incurred or borne as a transferee or successor or by contract, or otherwise), together with any interest thereon and any penalties, additions to tax, or additional amounts applicable thereto.
4.13.Merchant shall immediately pay or (if applicable) reimburse Allopass in full for all Fines (as defined in Section 8), plus any and all costs or expenses incurred in connection with the matter giving rise to such Fines, and Allopass also shall have the right to withhold or offset or deduct the same from any other payments due to you hereunder, including from any Payments or other amounts credited to your Allopass Account.
5.1.Merchant may elect to participate in the Allopass Affiliate Program («Affiliate Program») if, when and as offered by Allopass. In the event the Parties determine that Merchant will participate in the Affiliate Program, Merchant may be offered the opportunity to earn residual payments, or increase traffic through the various methods described in Sections 5.2 and 5.3 below. Merchant’s participation in the Affiliate Program shall in all cases be subject to the additional terms and conditions related to the operation of the Affiliate Program which are available on the Allopass Website, as updated from time to time.
(a)Merchant may elect to advertise the Allopass Service though a banner advertisement placed on the Merchant Website. The only banner advertisements allowed for use are those made available on the Allopass Website for the Affiliate Program.
(b)If a visitor to the Merchant Website opens a new Allopass account (the «Child Account») by clicking on the banner advertisement and completing the account registration process on the referred link, then Merchant will earn a commission on eligible transactions processed through the Child Account as specified in Exhibit C. The Merchant account will become the «Sponsor Account».
(c)Child Accounts may only have one Sponsor Account.
(d)Merchant may only earn commissions in the Affiliate Program for new Child Accounts opened by individual persons. An Allopass account opened in the name of any legal entity other than an individual person is not eligible to earn commissions and shall not be deemed a «Child Account» hereunder. Furthermore Merchant will stop to earn commissions in the following cases: i) change of status of an individual to create any other legal entity ii) «Child Account» has been granted special price terms.
(a)Merchant may elect to participate in the «Partner Link» program, which may lead to an increase in traffic to the websites you have registered with the Allopass Service.
(b)Merchant may elect to pay a referring website a commission («Partner Commission») for transactions that are Successful Redemptions by End Users on your site, who enter your site by clicking on a Partner Link.
(c)Any other Allopass merchant («Referring Merchant») may publish the Partner Link on their website, and upon completion of a Successful Redemption by an End User transaction on your Merchant Website, will be credited the commission by Allopass to their Allopass Account in the amount elected by you in Section 5.3(b) above.
(d)Merchant accounts will continue to be credited for transactions referred through Partner Links, pursuant to Sections 3.2 and 4, less the Partner Commission.
6.Limited License; Publicity
6.1.Subject to the terms and conditions of this Agreement, we grant you a revocable, limited, nonexclusive, nontransferable, nonsublicensable license during the Term to install, display and use on the Merchant Website (i) Allopass trademarks (the «Allopass Marks») and (ii) the Allopass Service, to the extent required for the performance of this Agreement (collectively «Marks License»). You agree to effect such installation, display and use during the Term. You may not reverse engineer, decompile, disassemble, or otherwise translate the Allopass Service or any portion thereof. You may not modify, alter, adapt, remove proprietary notices in, or create any derivative works of the Allopass Service or any portion thereof in any way. Subject only to this limited Marks License, you have not and will not acquire any intellectual property rights or other rights in any part of any Allopass Marks or the Allopass Service or in any other rights or properties of Allopass or any of its affiliates or licensors. All uses of the Allopass Marks and the Allopass Service and any related materials and all goodwill arising from such use shall be for the sole respective benefit of Allopass. All of your uses of the Allopass Marks and the Allopass Service, and your advertising and promotion of the Protected Content, as applicable, must comply with this Agreement, and any additional usage guidelines or standards as may be established by Allopass from time to time in its sole discretion and posted on the Allopass Website. For the avoidance of doubt, you shall not, directly or indirectly, do or permit any third party to do any of the following:
(a)Use the Allopass Service to promote, conduct, or contribute to fraudulent, obscene and/or illegal activities.
(b)Use the Allopass Service to violate anyone's privacy rights (e.g. distributing unwanted commercial solicitations),
(c)Use the Allopass Service or Allopass Marks to, or engage in advertising or promotional activities with respect to the Protected Content that, infringe on intellectual property rights (including copyrights and trademark rights, and rights of publicity and privacy) of Allopass or others, harass, disparage or defame Allopass or others, promote hatred towards any group of people, or otherwise publish or disseminate views or opinions which are, in the opinion of Allopass, obscene, offensive, or generally inappropriate.
(d)Use the Allopass Service for the benefit of any third party or charge any person for the use of the Allopass Service except as provided herein.
(e)Except as provided herein, collect any information or communication about the users of the Allopass Service by monitoring, interdicting or intercepting any process of or communication initiated by the Allopass Service or by developing or using any software or any other process or method that engages or assists in engaging in any of the foregoing.
(f)Attempt to hack the Allopass Service or any communication initiated by the Allopass Service or to defeat or overcome any encryption and/or other technical protection methods implemented by Allopass with respect to the Allopass Service and/or data and/or content or programming transmitted, processed or stored by Allopass or other users of the Allopass Service.
(g)Disrupt, circumvent, or interfere with any part of the Allopass Service; forge or modify any data processed or distributed by the Allopass Service; or use an automated process to cause greater demand on the Allopass Service than a single person could produce.
6.2.You expressly consent that Allopass may use your name, images of the Merchant Website and other publicly visible details of your implementation of the Allopass Service for the purposes of marketing and promoting the Allopass Service.
6.3.You expressly accept sole liability and entire responsibility for the implementation, update, or removal of the Allopass API on your Merchant Website.
7.Allopass Service and Allopass Obligations
7.1.Allopass Transactions: During the Term we will permit you to accept transactions from End Users via the Allopass Service in accordance with this Agreement subject to your ongoing compliance with this Agreement. Your completion of each Successful Redemption using the Allopass API shall be deemed to be your affirmative and continuous act of acceptance of this Agreement, as may be amended from time to time, as of the time of each such transaction.
7.2.Records: We shall keep records of Successful Redemptions processed through the Allopass Service for a period of seven (7) years, which may be made available to you at our discretion through the Allopass Website or otherwise.
7.3.Changes and Limitations: You acknowledge and agree that notwithstanding any other provision of this Agreement, (i) your right to accept transactions from End Users through the Allopass Service and your other rights and obligations under this Agreement and (ii) any corresponding Allopass Service and other obligations of Allopass shall be subject to and limited by any changes, suspensions or limitations in service or pricing or other terms or conditions made or required by (a) any Operator, (b) any Governmental Entity, or (c) applicable Laws and Restrictions (collectively «Changes»), and you agree to be bound by and comply with any such Changes automatically as of the date of such Changes.
7.4.Refunds: Merchant is responsible for all refunds requested by any End User, Operator or otherwise. Allopass may refer all refund requests received to Merchant for processing. Merchant shall defend, indemnify, and hold Allopass harmless from any and all claims, losses, demands, damages, expenses, liabilities, fines, penalties and costs (including reasonable attorney’s fees and expenses) related to or associated with any refunds.
7.5.Allopass may elect to process any refund directly. In the event that Allopass processes any refund request directly, Allopass reserves the right to charge Merchant the direct cost of any such refund plus a processing fee of twenty US dollars (USD$20.00) per refund, which amounts may be deducted from the Merchant’s Allopass Account without prior notice to Merchant.
8.Other Merchant Obligations
8.1.Direct Transactions. You shall be solely responsible for all transactions with End Users or others regarding Protected Content or other products or services. You agree that all such transactions are solely between you and the End User and Allopass shall not act as an agent or representative of either the End User or you for any purpose. You agree to promptly deliver to the End User all Protected Content in the amount and/or form as indicated in the offer therefore upon confirmation by Allopass of the completion of a Successful Redemption.
8.3.No Material Goods: Merchant shall not use the Allopass Service as a payment system for any physical material goods; Protected Content may only consist of virtual goods and services.
8.4.Prohibited Uses: Merchant shall not use the Allopass Service for categories of transactions listed in Exhibit E.
8.5.Merchant shall not directly display any SMS or PTel number to the End User, unless such number is displayed through the Allopass Service.
8.6.Merchant shall not participate in any unauthorized secondary market for Codes, where Codes are bought and sold or otherwise provided or exchanged in a manner where the End User does not use the Allopass Service.
8.7.Compliance with Laws: You must comply with any and all applicable Laws and Restrictions at all times during the Term. Allopass shall use commercially reasonable efforts to provide you with the applicable material Operator regulations in the relevant territory, by posting of the same on the Allopass Website from time to time; and such applicable Operator regulations as then posted shall be deemed part of the Laws and Restrictions for purposes of this Agreement. Such regulations are provided for your convenience only and Allopass neither represents nor warrants that such regulations are correct or complete, nor does Allopass provide any guaranty that compliance with such regulations as posted will not result in any liability. In the event of any claim or inquiry from any Operator or Governmental Entity, you must immediately notify Allopass in writing and fully cooperate with Allopass and such Operator or Governmental Entity. We may pass through to you and you shall be solely responsible for any and all damages, fines, penalties, assessments or other charges imposed by any Operator or Governmental Entity resulting from or attributable to your noncompliance with Laws and Restrictions or your other activities or acts or omissions (collectively «Fines»). You also agree to obtain and hold all necessary approvals, permits and authorizations for the provision of the Protected Content and the operation of your business. Without limiting the foregoing, you agree to immediately and fully pay or (if relevant) reimburse Allopass for, all Fines, plus any and all costs or expenses incurred in connection with the matter giving rise to the Fines, and agree that Allopass also shall have the right to withhold or offset or deduct the same from any other payments due to you hereunder.
8.8.Advertising and Promotion: You agree that your advertising and promotion of the Protected Content will be truthful and in full compliance with applicable Laws and Restrictions at all times and that you will not engage in any misleading or unfair business practices in relation to any of such Protected Content.
8.9.End User Support: You must provide all necessary or appropriate support for End Users in accordance with industry standards and applicable Laws and Restrictions.
8.10.Data: You agree that neither you nor your affiliates will own any information or other data generated or provided in the course of the Allopass Service («Data»). Neither you nor your affiliates shall access or use or reproduce the Data in any form except as may be required to discharge your obligations pursuant to this Agreement. Neither you nor your affiliates shall collect, store, process or use any End User mobile numbers, credit card information, End User personal information or other data obtained in connection with the Allopass Service for any purpose at any time, without the prior express permission of such End User which must be obtained separate from the Allopass Service, subject to applicable Laws and Restrictions.
8.11.Information and Audit: During the Term and for a period of 7 year(s) thereafter, upon request you shall promptly provide Allopass with all information or data or other material, including but not limited to all books of record and other financial information, regarding you or the End Users or Protected Content, subject to applicable data protection or privacy Laws and Restrictions. Allopass shall have the right (but no obligation) to audit your compliance with this Agreement including but not limited to compliance with this Section 8.
8.12.Data Protection: Without limiting your other respective obligations hereunder, you agree to comply with all applicable data protection or privacy Laws and Restrictions in connection with its performance of this Agreement.
9.Remedies for Non-Compliance
9.1.Remedies: In the event of the actual or suspected breach of this Agreement by you or any of your affiliates (including but not limited to fraud or infringement of intellectual property rights), or in the event of any Fines or any material claims by End Users (as determined in the sole discretion of Allopass), Allopass at its sole discretion shall have the immediate right to (i) suspend immediately any or all transactions and the use of the Allopass Marks and the Allopass Service until such time as Allopass has determined in its reasonable judgment that such breach did not occur or has been fully cured and will not be repeated in the future, (ii) withhold or offset or credit or apply any amounts otherwise due to you in respect of any Fines or other claims, suits, actions, demands, damages, obligations, liabilities, losses, costs and expenses of any nature (including reasonable attorneys fees) arising from or relating to such Fines or breach, (iii) terminate this Agreement for cause under Section 17 hereof, or (iv) any combination of the foregoing.
9.2.Injunctive Relief: You also acknowledge and agree that your breach of this Agreement or violation of Laws and Restrictions or the intellectual property rights of Allopass or its affiliates could cause irreparable harm for which monetary damages would be inadequate, and therefore (in addition to any other remedies provided by law) Allopass and its affiliates will be entitled to obtain injunctive relief in any court of competent jurisdiction against any such breach or violation without necessity of posting bond or any other security.
9.3.Multiple Accounts: In the event Customer opens more than one Allopass account in breach of Section 2.1, Allopass at its sole discretion shall have the immediate right to (i) suspend immediately any or all Merchant Accounts, (ii) withhold or offset or credit or apply any amounts otherwise due to you in respect of any claims, suits, actions, demands, damages, obligations, liabilities, losses, costs and expenses of any nature (including reasonable attorneys fees) arising from or relating to such breach, (iii) terminate this Agreement for cause under Section 17 hereof, or (iv) any combination of the foregoing.
10.1.You agree to use any trade secrets or other confidential or proprietary information of Allopass or any of its affiliates which may be provided to or obtained by you («Confidential Information») solely for the performance of your obligations under this Agreement and for no other purpose. Such Confidential Information includes but is not limited to this Agreement, including the Exhibits attached hereto, its terms and any technical documentation and knowledge provided to you regarding the implementation of the Allopass API. You shall maintain such Confidential Information in strict confidence for the benefit of Allopass or such affiliate and shall protect such Confidential Information with at least the same degree of care as you use for your own confidential and proprietary information, but in no case with less than reasonable care. You shall not disclose the Confidential Information to any third persons with the exception of your officers, employees or independent contractors who need to know such Confidential Information to perform this Agreement for you provided that such persons have previously entered into a written agreement containing confidentiality obligations equal to or greater than those set forth herein. You shall promptly return all copies of such Information to Allopass or its affiliates at its request or at the termination of this Agreement. Each Party acknowledges and agrees that the business relationship and activities contemplated by this Agreement are non‐exclusive and that nothing in this Agreement prohibits either Party from participating with third persons in similar business arrangements as those described herein.
11.Ownership; No Implied License
11.1.You agree that ownership of the Allopass Service, the Allopass API, Allopass Marks and all intellectual property rights with respect thereto shall be exclusively owned by Allopass. No license or other rights for your benefit to any such assets or properties or intellectual property rights shall be implied by or inferred from this Agreement or the respective conduct of the Parties in connection with this Agreement.
12.1.Warranties: Each Party represents and warrants that it has the corporate or other authority to enter into this Agreement and perform its obligations hereunder; and that this Agreement constitutes the valid and legally binding agreement and obligation of such Party and is enforceable in accordance with its terms.
12.2.Disclaimers: NOTWITHSTANDING ANY CONTRARY PROVISION OF THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND RESTRICTIONS, ALL SERVICES PROVIDED BY ALLOPASS OR ITS AFFILIATES ARE PROVIDED «AS IS» AND «AS AVAILABLE» WITHOUT WARRANTY OF ANY KIND. ALLOPASS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE TO MERCHANT OR ANY END USER OR ANY OTHER PERSON WHETHER DIRECTLY OR INDIRECTLY WITH RESPECT TO THIS AGREEMENT OR ANY OF THE SERVICES OR OTHER SUBJECT MATTER HEREOF OR ANY INFORMATION OR DOCUMENTATION DISCLOSED TO MERCHANT, WHETHER EXPRESS OR IMPLIED OR WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED WITH RESPECT TO THE TRANSACTIONS PROCESSED BY THE ALLOPASS SERVICE. ALLOPASS FURTHER DISCLAIMS ANY AND ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE OR NONINFRINGEMENT, AND DISCLAIMS ALL WARRANTIES THAT MAY OTHERWISE ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, ALLOPASS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR‐FREE; AND ALLOPASS EXPRESSLY EXCLUDES AND DISCLAIMS ANY LIABILITY IN RESPECT OF ANY PROTECTED CONTENT OR ANY OTHER ACT OR OMISSION OF MERCHANT OR ANY OPERATOR, THIRD PARTY PROVIDER OR END USER TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND RESTRICTIONS. THE ABOVE DISCLAIMERS ARE MADE ON BEHALF OF ALLOPASS AND ITS AFFILIATES.
13.Limitation of Liability.
NOTWITHSTANDING ANY CONTRARY PROVISION OF THIS AGREEMENT OR ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY OF ANY KIND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND RESTRICTIONS:
13.1.Consequential Damages: NEITHER ALLOPASS NOR ITS AFFILIATES OR RELATED PERSONS SHALL BE LIABLE TO THE MERCHANT OR ITS RELATED PERSONS, OR TO ANY THIRD PARTY, FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LIABILITIES OR LOSSES (INCLUDING BUT NOT LIMITED TO CLAIMS FOR LOST PROFITS, LOST OPPORTUNITY, LOST DATA, LOSS OF GOODWILL, OR THE COST OF PROCURING SUBSTITUE GOODS OR SERVICES), ARISING FROM OR RELATED TO OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, HOWEVER CAUSED, EVEN IF SUCH PERSONS HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES OR LOSSES.
13.2.Limit on Liabilities. IN ADDITION TO THE FOREGOING, THE AGGREGATE LIABILITY OF ALLOPASS AND ITS AFFILIATES AND RELATED PERSONS TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE SHALL NOT EXCEED THE TOTAL AMOUNT OF THE DIRECT FEES PAID OR PAYABLE TO ALLOPASS IN THE PRECEEDING TWELVE (12) MONTHS FOR THE TRANSACTIONS PROCESSED ON MERCHANT’S BEHALF THROUGH THE ALLOPASS SERVICE HEREUNDER. MULTIPLE CLAIMS SHALL NOT INCREASE THE TOTAL AMOUNT OF LIABILITIES HEREUNDER.
13.3.THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND, ABSENT ANY OF SUCH PROVISIONS, THE TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
13.4.Allopass does not exclude nor limit its liability to the extent any exclusion or limitation of its liability is void, prohibited or unenforceable by applicable Laws and Restrictions.
14.1.To the fullest extent permitted by governing law and any applicable Laws and Restrictions, you agree to fully indemnify, hold harmless, and defend each of Allopass, its subsidiaries and affiliates, and any Allopass third party providers and each and all of its or their respective employees, contractors, officers, directors and agents from and against any and all claims, suits, actions, demands, damages, obligations, liabilities, losses, costs and expenses of any nature (including but not limited to any Fines and reasonable attorneys’ fees and costs) arising from or relating to (i) any Protected Content or the sale or distribution of such Protected Content or (ii) any breach or alleged breach of this Agreement by you, including but not limited to any claim or suit or action of any kind brought by any third party, including any Operator, Governmental Entity or End User in respect of any transaction or matter involving you or any of your affiliates; in each case whether or not caused by the negligence of Allopass and whether or not any relevant claim or suit or action has merit.
14.2.With respect to any indemnification claims by Allopass or its related persons hereunder, Allopass shall promptly notify you of any claim or other liability for which indemnification is sought, following actual knowledge of such claim, provided however that the failure to give such notice shall not relieve you of your obligations hereunder except to the extent that you are actually and materially prejudiced by such failure. In the event that any claim or suit or action is brought, Allopass shall have the right and option to control the defense of such action with counsel of its choice, and no settlement or compromise of any claim or suit or action or any stipulation or consent to judgment shall occur without the prior consent of Allopass in its sole discretion.
15.1.Allopass shall not be deemed in breach in its performance of an obligation under the Agreement to the extent the performance is temporarily prevented or delayed as the result of (i) the acts or omissions of Merchant in breach of the Agreement, (ii) the acts or omission of any Operator or Governmental Entity, (iii) flood, fire, earthquake or other acts of God, war, insurrection, sabotage, terrorist attacks, embargo, strike, stoppage of work, riot, failure or diminishment of power or of telecommunications or data networks or services not under the control of Allopass, or governmental acts or orders or restrictions, or (iv) any other cause (whether similar or dissimilar to those listed); to the extent such event is outside of the reasonable control of Allopass and is not caused by its gross negligence or willful misconduct or failure to comply with Laws and Restrictions (collectively «Force Majeure Event»). In such event Allopass shall be temporarily relieved of its performance of such obligation during the period of the Force Majeure Event, provided further that if such period or periods exceed a combined forty‐five (45) days within any twelve (12) months, Merchant then may immediately terminate the Agreement for cause by written notice.
16.Assignment; Binding Effect
16.1.You may not assign, transfer, delegate or sublicense (whether voluntarily or by operation of law or otherwise) (collectively «Transfer») this Agreement or any rights or obligations under this Agreement without the prior written consent of Allopass, which may be withheld in its sole discretion. Any purported Transfer shall be null and void. Allopass and its successors and assigns have the right to unilaterally Transfer this Agreement or any of its rights or obligations at any time in whole or in part. Subject to the foregoing, this Agreement shall benefit and be binding upon each of the Parties and their respective successors and permitted assigns. There shall be no third party beneficiaries of this Agreement.
17.Term and Termination
17.1.The «Term» of this Agreement shall commence on the Effective Date and shall continue indefinitely, unless terminated earlier hereunder.
17.2.Termination Without Cause: In addition to any other rights and remedies, either Party shall have the right to unilaterally terminate this Agreement for convenience and without cause at any time upon providing no less than ten (10) calendar days written notice prior to termination.
17.3.Price Changes: In the case of any Price Changes by Allopass, you shall have the right to terminate this Agreement in accordance with Section 17.2 above.
17.4.For Non-Use: Allopass shall have the right to immediately terminate this Agreement if (i) no transactions have been recorded by the Allopass Service for the benefit of the Merchant or (ii) you are not entitled to any payment greater than US$250 (two hundred and fifty US dollars), in each case for a period of no less than one hundred and eighty (180) days.
17.5.For Cause: Either Party also shall have the right to immediately terminate this Agreement For Cause. «For Cause» with regard to termination of this Agreement means any one of the following events: (i) the material breach of any provision of this Agreement by the other Party, subject to its right to fully cure any such breach within fifteen (15) days of receipt of written notice of breach, provided however that such right to cure shall not be applicable to further breaches of the same or similar type; (ii) the filing by or against the other Party of a petition in bankruptcy or similar proceeding in any court of competent jurisdiction, or the insolvency or commencement of the dissolution or liquidation of the other Party or its business; (iii) in the case of Allopass, (1) a change in the control of Merchant; or (2) any Change occurs which in the reasonable judgment of Allopass makes or would make this Agreement or the acceptance and processing of transactions using the Allopass Service illegal or contrary to applicable Laws and Restrictions, prohibitively difficult or prohibitively expensive, (iv) any Party is instructed by any Operator or Governmental Entity to terminate this Agreement; or (v) an extended Force Majeure Event or Events of the other Party as provided in Section 15.1.
17.6.Effects of Termination: In the event of termination of this Agreement, (i) the rights granted under this Agreement permitting the Merchant to use the Allopass Service shall immediately terminate; (ii) all unpaid amounts due and payable as of the termination date shall be paid to the relevant Party within forty-five (45) days after the termination date, less any withholdings that may be made at the sole discretion of Allopass; and (iii) Merchant shall return to Allopass all documents, software and any other proprietary items provided to the Merchant by Allopass and Merchant shall return or delete all Confidential Information. Sections 9-14, 17.6, and 18-22 of this Agreement and any claims or actions or causes of action arising prior to or in existence as of the date of expiration or termination shall survive the termination or expiration of this Agreement, regardless of the cause for termination, and shall remain valid and binding indefinitely shall survive.
18.1.This Agreement shall be governed by the laws of the State of New York without regard to any conflict of laws principles. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
19.1.Claims in General: Except for controversies or claims primarily relating to the validity or infringement or ownership of any intellectual property rights of Allopass or any of its affiliates or licensors, including but not limited to all such rights involved in any aspect of the Allopass Service (collectively «Rights Claims»), and except for Allopass’ right to obtain injunctive relief in any court of competent jurisdiction (as set forth in Section 9.2) all disputes arising out of or relating to or in connection with the Agreement shall be finally settled by the determination of Allopass after considering all relevant matters to the dispute. The written determination of Allopass shall be conclusive and binding on all of the Parties for all purposes. In the event the foregoing procedures are held to be invalid or unenforceable, any such dispute shall be submitted to non-binding mediation services in New York, New York with a mutually agreed upon mediator in an attempt to resolve the dispute. In the event the attempt at mediation fails to resolve the dispute within thirty (30) days of either Party providing written notice to the other Party requesting mediation to resolve the applicable dispute, either Party may refer the dispute to binding arbitration in New York, New York for final resolution administered by the American Arbitration Association under its Commercial Arbitration Rules. Should you file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter as required by this section, then you agree that you will not be entitled to recover attorneys’ fees, even if you would otherwise be entitled to them.
19.2.Rights Claims: Except for Allopass’ right to obtain injunctive relief in any court of competent jurisdiction (as set forth in Section 9.2), all controversies or claims primarily arising out of relating to any Rights Claims shall be brought exclusively in the state courts located in New York, New York, USA or in the United States District Court for the Southern District of New York and their respective appeals courts, and each Party irrevocably submits to the exclusive jurisdiction and venue of such courts for such controversy or claim.
19.3.Process: Process in any action or proceeding may be served on any Party anywhere in the world, and service by written notice in the manner provided by Section 20 hereof shall be deemed fully valid and effective service on such Party for all purposes, notwithstanding local Laws and Restrictions to the contrary.
19.4.Attorney’s Fees: The prevailing Party in any suit or action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable actual attorney’s fees and costs from the other Party unless otherwise provided herein.
20.1.Form of Notice: Any notice, request, demand or other communication required or permitted hereunder (collectively «notices») shall be in writing and shall be deemed to be properly given to the other Party: (i) upon delivery when delivered personally; (ii) one (1) business day after transmission by facsimile, with machine generated confirmation of receipt; (iii) one (1) business day after transmission by email, provided that, within a reasonable time after the transmission no electronic message or other indication that the transmission was unsuccessful was received; or (iv) two (2) business days after prepaid deposit with an internationally recognized overnight courier service, with written confirmation of receipt, whichever occurs first.
20.2.Addresses: All notices shall be sent to Allopass at 101 Fifth Avenue, Suite 9R, New York, NY 10003, USA, attn: General Manager, fax number +1 (212) 620‐6004, email address: email@example.com; and all notices to Merchant shall be sent to the address or fax number or email address provided to Allopass by the Merchant during the collection of Registration Information. Allopass will notify you of any change in its notice address or fax number or email address by posting such change on the Allopass Website. Any Party may change its notice address or fax number or email address by notifying the other Party of such change in compliance with this Section.
21.Relationship of the Parties
21.1.The Parties are independent contractors, and this Agreement does not create an agency, employment, franchise, partnership or joint venture relationship between the Parties. No Party has the right or power or authority to enter into any agreement or other obligation for or otherwise bind the other Party. Each Party acknowledges and agrees that the business relationship and activities contemplated by this Agreement are non‐exclusive and that nothing in this Agreement prohibits either Party from participating with third persons in similar business arrangements as those described herein.