These are the terms of service ("Terms") regarding the services offered by Fortumo. Please read the Terms, because they describe the content of the agreement between you ("Merchant") and Fortumo OÜ (private limited company), registry code 11378397, registered address Rüütli 7, 51007 Tartu, Estonia, e-mail: email@example.com ("Fortumo").
ABOUT THE TERMS
- Authority. Each party represents and warrants to the other that: (1) it has the full right, power, legal capacity, necessary licences, consents and authority to enter into, deliver and fully perform under the Agreement, (2) neither the execution, delivery, nor performance of the Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which it is bound and (3) its principal place of business or residence is not in a jurisdiction against which the United States of America has established sanctions or embargoes.
- Modification. Fortumo may unilaterally amend the Terms upon occurrence of the following events: (1) Fortumo develops updates, fixes or new versions of the Fortumo technology (software, applications, SDK, APIs, system files, databases and other parts and elements of Fortumo's information systems and infrastructure, which enable the provision of the Services (as defined below) - "Technology"); (2) changes in applicable law, taxation, practice of courts or competent authorities, interpretation of law regarding the subject matter of the Terms; (3) technological, organizational or other type of innovations allowing to improve the quality, security or other characteristics of the Services and/or Technology; (4) changes in the business model or processes of Fortumo; (5) complaints from mobile operators, payment aggregators, credit and/or debit card issuers and credit and/or debit card payment processors (together referred to as: "Payment Providers"), end-users, merchants or competent authorities; (6) merger, acquisition or other type of restructuring of the assets or activities of Fortumo; (7) a judicial or administrative act obliging Fortumo to make changes in the Terms; (8) other circumstances and events that reasonably require to be reflected in the Terms.
- Accepting Modifications. The amended Terms shall be communicated to the Merchant at least thirty (30) days (reference to days in the Terms shall be deemed to be a reference to calendar days) before the amended Terms come into effect. The amended Terms will automatically become binding to the Merchant upon the expiration of the thirty (30) days notification period. If the Merchant receives the notification after the expiry of the thirty (30) days notification period, then the continued use of the Services constitutes the Merchant's binding acceptance of such amended Terms. If the Merchant does not agree with the amended Terms, the Merchant may terminate the Agreement with immediate effect.
- Fortumo Services. Fortumo is a mobile payment service provider. Fortumo connects merchants to Payment Providers, allowing consumers ("End-Users") to purchase merchants' products and services by making payments using their devices (e.g. mobile, tablet, computer, gaming console). The service of Fortumo includes a solution used to process mobile and card payments and/or to resell Merchant Services or Content (as defined below) or otherwise make these available for End-Users on different operating systems, such as Android, Java, Blackberry, Windows Mobile, and on the web; the contracts and integrations with Payment Providers; the set of procedures to handle the collection of amounts from Payment Providers and forwarding of the amounts to the Merchant ("Services"). Fortumo Services include mobile operator billing and in-app purchasing solutions.
- Remuneration for Services. Fortumo's share and the Payment Provider's share in the purchase amount shall be Fortumo's and the Payment Provider's sole compensation for their respective services. There are no fixed or regular fees for using the Services, Website and Technology (Services, Website and Technology jointly referred to as "Products") of Fortumo.
- Distribution Services. Upon the request of the Merchant, Fortumo may provide distribution services (e.g. marketing, promoting, reselling, sublicensing). The Merchant Service to be distributed, the channels of distribution, scope, duration, commission and other terms shall be specified between the parties separately via e-mail.
- For distribution purposes the Merchant grants Fortumo a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sub-licensable, and transferable license (the scope of the licence may be amended by an agreement of the parties via e-mail) to use, reproduce (including by making mechanical reproductions), modify, adapt, decompile, reverse engineer, prepare derivative works of, publicly display, publicly perform, and otherwise exploit the Merchant Service and derivatives thereof in order to distribute the Merchant Service, and the right to use or display the Merchant's trademarks, trade names, or logos related to the distributed Merchant Service, as long and insofar as such use is necessary for carrying out the distribution activities. The Merchant shall obtain all necessary rights, permissions, consents and waivers in respect of third party content that the Merchant does not lawfully own, in order to comply with the distribution license.
- Fortumo shall use its best efforts and existing agreements to distribute the Merchant Service in the agreed distribution channels. Fortumo shall provide the Merchant with a monthly report that identifies the aggregate number of End-Users that used the Merchant Service through Fortumo's distribution channels and duly paid therefor.
- Fortumo shall not be liable for any damages resulting from the Merchant Service's removal or deactivation in any distribution channel.
FORTUMO'S PROPRIETARY RIGHTS
- General License. The Products and any parts thereof are solely owned by Fortumo and its partners. The Products are protected by proprietary rights and applicable laws. Fortumo grants to the Merchant a limited, worldwide, royalty-free, non-assignable, non-transferrable and non-exclusive license, which may be revoked at any time by Fortumo, to use the Products in compliance with the Terms, industry standards and applicable laws. The Products and any part or element thereof are allowed to be used only in the scope, with the means and for the purposes, which their functionality has been created for by Fortumo. All licences granted by Fortumo under the Agreement are terminated automatically when the Agreement is terminated.
- Trademarks. The parties may not use any of the other party's trade names, trademarks, service marks, logos, indicia, designs, domain names, corporate names or other trade dress elements and distinctive brand features, whether registered on not. The parties agree not to modify the other party's trademarks or other trade dress and not to use them in any commercial, unlawful or deceptive manner or in any way that will directly or indirectly tend to lessen their value. The Merchant agrees not to remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Products. Regardless of the aforementioned, either party may make references to the trade names, trademarks, logos and other trade dress of the other party for identifying the other party as its customer or service provider in presentations, marketing materials and customer lists.
- Reservation of Proprietary Rights. All legal right, title and interest in and to the Products, including any proprietary rights and intellectual property rights, remain with Fortumo, unless otherwise stipulated in the Terms. Fortumo reserves all rights not expressly assigned to the Merchant in the Terms. Unless expressly otherwise stated in the Terms, nothing in these Terms shall amount to an assignment or transfer of any right, title to or interest in any intellectual property rights owned by either party, or rights in any materials or services provided hereunder. If the Merchant retrieves data from Fortumo, the Merchant acknowledges that the data is protected by proprietary rights, which are owned by Fortumo or third parties.
- Fortumo SDK License. The Fortumo SDK (software development kit) is licensed under the following terms: (1) Fortumo grants to the Merchant a limited, worldwide, royalty-free, non-assignable, non-transferrable and non-exclusive license to use the Fortumo SDK solely to integrate the Merchant's technology with Fortumo's Technology in order to use the Products in compliance with the Agreement. For these purposes, the Merchant may install, configure, customise, integrate, test and localise the Fortumo SDK only insofar as it is necessary to achieve full integration and in compliance with the Terms. The Merchant may also make a copy of the Fortumo SDK for backup purposes. Use of Fortumo SDK for any purpose other than those mentioned in item (1) above without Fortumo's prior express consent is prohibited.
- Right to Edit, Remove, Publish. Fortumo does not make any representations that it will publish or make any Merchant's service (Merchant's service, content, application or payable feature or functionality jointly referred to as "Merchant Service") or Merchant's content (Merchant's product, software, data, applications, APIs, system files, databases or code jointly referred to as "Content"; reference to Merchant Service is deemed to include Content) available on or through the Products, and reserves the right, in its sole discretion, to edit or remove any Merchant Service or to give instructions regarding the Merchant Service.
- General License. By submitting the Merchant Service or Content to Fortumo, the Merchant grants to Fortumo, Payment Providers and their partners a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sub-licensable, and transferable license to use, sell, reproduce (including by making mechanical reproductions), distribute, modify, adapt, prepare derivative works of, decompile, reverse engineer, publicly display, publicly perform, and otherwise exploit the Merchant Services and Content and derivatives thereof for commercial purposes, mainly for (1) providing the Merchant with the Services (including re-selling of the Merchant Service or Content or licences, granting sublicenses etc.), displaying the Merchant Service and Content in the Products and carrying out other acts in compliance with the Terms, (2) marketing, promoting, and/or distributing part or all of the Merchant Services or Services.
- Warranty. The Merchant warrants that: (1) the Merchant Services and Content are not harmful (i.e. do not include viruses, worms and other harmful or destructive codes), false, misleading, infringing any third party (intellectual property) rights, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, pornographic, obscene, invasive of privacy, discriminating, hateful or otherwise illegal or in contradiction with industry standards, the laws or the Terms; (2) the Merchant either owns the Merchant Services or Content or has the necessary licenses, rights, consents, and permissions to use, sell or otherwise make the Merchant Services or Content available to End-Users, and to authorize Fortumo or Payment Providers to display, resell or otherwise use said Merchant Services and Content and the proprietary rights therein and related thereto in a manner consistent with the intended features of the Products and in compliance with the Terms, and to grant the rights and sub-licenses set forth in clause 4.2. (3) the Merchant Services, Content and Fortumo's, the Payment Providers' and their partners' use of such Merchant Services or Content pursuant to the Terms and exercise of the license rights set forth in clause 4.2. shall not: (a) infringe or violate any proprietary or intellectual property rights of any third party; (b) violate any applicable laws; or (c) require obtaining a license or paying any fees for the performance of any Services or for the exercise of any rights granted in the Terms.
- Parties to License Agreement. Fortumo and Payment Providers are not parties to the Merchant Service license agreement between the Merchant and End-User, even if they act as resellers of the Merchant Service or Content or otherwise. The Merchant is solely responsible for the Merchant Service or Content license and any claims that the End-User or any third party may have relating to the Merchant Service or Content.
- Merchant Services. The Merchant is solely responsible for each Merchant Service and its compliance, including, but not limited to, the compliance of the Content and any parts thereof with the Terms, requirements published on the Website, applicable laws and regulations, Payment Provider regulations and consumer protection or industry standards in the countries of distribution of such Merchant Service. The Merchant Services or Content may not include or support (1) any sexual or sexually related content, any sexual content that has a violent context, (2) any gambling or lottery services, (3) any other content that infringes the laws, regulations or industry standards.
- Approval Process. When creating a Merchant Service, the Merchant may be requested to submit the Content, Merchant Service or Merchant Account for approval to Fortumo. Fortumo's approval does not indicate that the Merchant Service will be legitimate in any jurisdictions, rather it is to ascertain that the Merchant Service is in line with Fortumo's requirements. Fortumo is not obligated to pre-screen or monitor any Merchant Service in order to discover any infringements against the laws, industry standards or Terms therein. Fortumo explicitly disclaims any responsibility for the Content or Merchant Service.
- Clarity. The Merchant shall ensure that the total retail price and all fees that it charges from End-Users are shown clearly and unambiguously and are duly communicated to End-Users. The functioning of the Merchant Services (esp. regarding payment initiation by End-Users) and provision of information to End-Users, shall be in compliance with the Terms, industry standards, the law and requirements of competent authorities.
- Protection of End-User's Data. The Merchant shall protect the privacy and rights of End-Users. If End-Users provide their names, passwords, or other data, the Merchant must make the End-Users aware that the information will be available to the Merchant, and must provide a legally adequate privacy notice and protection of such data. The Merchant may use and process the End-User's data strictly for the purposes of performing its obligations towards the End-User under the Terms or under an agreement concluded with that End-User and in accordance with laws. If the Merchant stores End-User data, it must do so securely. If the Merchant retrieves an End-User's data from Fortumo or Payment Providers, the Merchant shall retrieve such data only with that End-User's explicit consent and only for the limited purposes for which the consent has been given. Fortumo has no responsibility to the Merchant to investigate the background or confirm the identity of End-Users who use the Merchant Services.
- Merchant Account. In order to create Merchant Services, Merchants are required to register an account with Fortumo ("Merchant Account"). In the registration process, Fortumo will ask for information regarding the Merchant, including the name, email address, location, phone number and the bank account of the Merchant. The Merchant is responsible for providing and maintaining accurate information associated with the Merchant Account. The Merchant's name must be a reasonably descriptive to clearly identify them, because this name may appear on the End-User's bill for payments for Merchant Services. Fortumo may, upon reasonable request by a Payment Provider, End-User, competent authority or third party with a justified interest, disclose to the aforementioned persons data that is necessary to identify and contact the Merchant.
- Authorised Users. If the Merchant is a legal entity and several persons need to use the Merchant Account, such persons must be designated as authorised users of the Merchant Account. Each authorised user shall be subject to the rights and obligations set forth in the Terms. Authorised users have the right of representation to act on the Merchant's behalf when using the Merchant Account. Fortumo is not obligated to check or verify the right of representation that the users of the Merchant Account may have.
- Credentials. The Merchant shall be responsible for maintaining the confidentiality of any credentials of the Merchant Account. Each separate user of the Merchant Account must use separate credentials. The Merchant shall be solely responsible for all activities and (in)actions that occur under the Merchant Account or otherwise on the Merchant's behalf. The Merchant shall promptly notify Fortumo: (1) if the Merchant becomes aware of any disclosure, loss or unauthorised use of the credentials; (2) if an authorised user has left the organisation or if there are other reasons why a user does not have the right to use the Merchant Account anymore.
- Deletion of Account. If the Merchant terminates the Agreement or requests to close the Merchant Account, then Fortumo shall block the Merchant Account and make it unavailable as soon as reasonably practicable, but no later than within twelve (12) months as of the termination of the Agreement or receipt of the request.
- Merchant's Share. The Merchant's share per country and per operator, and the time when it is paid out, is specified on the Website (subject to unilateral amendments without notice by Fortumo), subject always to receipt of the respective amounts by Fortumo. According to the Merchant's share in the purchase amount, Fortumo shall transfer to the Merchant the amount related to the number of valid uses of the Merchant Services, as determined by Fortumo. The Merchant is not entitled to the Merchant's share with regard to failed transactions (e.g when the End-User does not receive the purchased Merchant Service).
- Payment Details. All payments to the Merchant shall be made in Euros (to US residents in US dollars). Fortumo shall convert all amounts using rates at xe.com on the first banking day of the month when the payment to the Merchant is made, adding a currency risk based margin. Fortumo may change the currency conversion rate source and principles at any time. The Merchant's share shall be paid out by Fortumo, if the total unpaid share converted to Euros is at least €100 (one hundred Euros). Fortumo shall deduct from any payment to the Merchant the costs of currency conversion and bank transfer. For reasons of efficient cash flow management and efficient provision of services at the Fortumo group level, the payer of the Merchant's share, recipient of the payments from Payment Providers or provider of other services may be an entity other than the contracting Fortumo entity.
- Payment Records. The Merchant's share shall be calculated solely based on records maintained by Fortumo and shall be reported and paid to the Merchant on the 15th day of each month, subject always to receipt of the respective amounts by Fortumo.No other measurements or statistics of any kind shall be accepted or have any effect under the Agreement. Fortumo shall use self-invoicing.
- Payment upon Termination of Agreement. In the event the Agreement is terminated, Fortumo shall pay out the Merchant's share within approximately seventy five (75) days after the end of the calendar month in which the Agreement is terminated, subject always to receipt of the respective amounts by Fortumo. However, Fortumo shall not make payments if the total unpaid Merchant's share converted to Euros is less than €100.
- Reset of Earnings Balance. For accounting purposes, Fortumo may reset the balance of the Merchant's share to zero when the Merchant Services have not been used during the previous six (6) months and the balance of unpaid Merchant share is below €100.
- Payment Dependencies. Fortumo receives the purchase amounts from different Payment Providers at different times. Regardless of anything to the contrary herein, Fortumo is not obligated to make any payments to the Merchant, if Fortumo has not received the corresponding invoicing data and payment from Payment Providers. In the event Fortumo makes any payment to the Merchant before receiving payment from the Payment Provider, Fortumo reserves the right to chargeback or reclaim the payment from the Merchant in the event the Payment Provider does not transfer said payment to Fortumo in due time. Since Payment Providers disclaim their payment liability for transactions that they have failed to collect from, or have refunded to, the End-Users, Fortumo has no payment obligations towards the Merchant in this case.
- Suspension, Reversal. Regardless of anything to the contrary herein, Fortumo reserves the right to suspend the Merchant's use of the Products, withhold payments or reverse previous payments to the Merchant upon the occurrence of any of the following situations: (1) any suspected breach of the Agreement by the Merchant, pending Fortumo's reasonable investigation of the breach; (2) an End-User makes a claim to Fortumo for a refund or other reversal; (3) Fortumo believes that the transactions, Merchant Services or Content are illegal, involve misconduct or fraud or otherwise violate applicable law, industry standards or the Terms; or (4) a Payment Provider or competent authority requests from or applies towards Fortumo a withholding or reversal.
- Chargeback. The Merchant acknowledges that End-Users, Payment Providers and competent authorities have a chargeback or other refund right and Fortumo shall have the right to transfer such refunds to the Merchant (which the Merchant shall promptly fulfil) or deduct them from payments to the Merchant. Chargebacks or other refunds have to be fulfilled by the Merchant in the total amount, which the End-User paid, plus a processing fee imposed by Payment Providers or competent authorities.
- Offset and Deductions. Fortumo may set off any payment obligation that Fortumo may have to the Merchant under the Agreement against any payment obligations the Merchant may have to Fortumo, whether it is (1) any losses, damages, taxes or expenses which the Merchant shall compensate under the Terms, (2) amounts overpaid to the Merchant due to a reversal, refund, chargeback or other adjustment or (3) any other amounts owed by the Merchant to Fortumo under the Agreement or due to any other legal relationship. In the event that Fortumo has a claim against the Merchant under the Agreement, then Fortumo may deduct the amount of the claim from amounts payable to the Merchant and may claim from the Merchant amounts owed under the Agreement.
- Taxes. The Merchant shall be responsible for, and pay, all applicable taxes or charges (including such unique to the Merchant's jurisdiction) imposed by law or any competent authority or Payment Provider in connection with the Merchant Services or any payments under the Terms. In case it is required by law or competent authority, Fortumo and/or the Payment Provider have the right to pay or withhold applicable taxes and charges (e.g. VAT and withholding tax) from the payments to the Merchant.
- Documentation. The Merchant shall promptly provide Fortumo with documentation as may be required by competent authorities or Payment Providers, or by Fortumo to fulfil its obligations under the Agreement.
- Disputing Payments. If the Merchant wishes to dispute any payment from Fortumo, this shall be done within thirty (30) days as of the date of receipt of such payment. Failure to do so during the aforementioned limitation period shall result in the Merchant having accepted the correctness of the payment. In the event of disputes regarding payments, the party disputing the payments shall (a) provide details regarding the dispute and the reasons thereof; and (b) furnish the other party with relevant proof in support of its dispute. Both parties shall jointly determine the cause of any deviation to facilitate Fortumo to seek clarification from the Payment Providers and the data of the Payment Providers shall be conclusive evidence.
- Declination of Payment. The End-User's payment may be declined by Payment Providers for several reasons, e.g. the verification data is incorrect, the End-User could not be identified due to failing security checks, insufficient funds on the End-User's account, the End-User's agreement has expired, Payment Provider system disruptions etc. Fortumo is not responsible for any failed payments, except when the payment failed due to reasons directly attributable to Fortumo's breach of the Terms.
- Unauthorised Access and Illegal Actions. The Merchant shall not engage in any activity that interferes with, disrupts, damages, or accesses in an unauthorized manner the Products, servers, networks, security features or other parts of the information systems and infrastructure of Fortumo or any third party, including Payment Providers. The Merchant may not use the Products for committing a crime, money laundering or financing terrorism, conducting some other breach of applicable law or for calling up for others to carry out such illegal acts.
- Requirement of Prior Consent. The Merchant shall not, without Fortumo's prior express consent: (1) sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant access or make the Products available in whole or in part to any third parties; (2) use the Products or any part or element thereof in a scope, with means or for purposes other than those, which their functionality was created for; (3) use the Products or any part or element thereof by means of programmes, which send them automatic enquiries or requests, unless such programme has been made available by Fortumo; (4) create interfaces between the Products or any part or element thereof from one side and any third party systems from the other side, unless the Merchant creates such interface for its own systems using the Fortumo SDK in compliance with the Terms; (5) copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile, rent, lease, loan, sell or distribute the Fortumo SDK, Products or any part or element thereof nor otherwise attempt to extract the source code thereof, nor use individual parts or elements of the Products separately of the whole, including reproducing and distributing them on separate data media, combining them with other software, including them in third party databases etc unless it is expressly allowed under the Terms.
- Change of Services. Fortumo may, at any time without notice: (1) limit, deny, update or cancel some or all of the functionality of the Products; (2) change the form and nature of the Products (future versions of the Products may be incompatible with Merchant Services developed on or for previous versions of the Products); or (3) stop providing Products (or any features therein) to the Merchant or to merchants generally.
- Confidentiality. Each party acknowledges that it will have access to material, data, systems and other information concerning the operation, business, financial affairs, products, customers, forecasts, plans, calculations, agreements etc. of the other party that may not be accessible or known to the general public, including, but not limited to the terms of the Agreement or disputes between the parties related to the Agreement, court or arbitration proceedings and all thereto related materials and information ("Confidential Information"). The parties agree that Confidential Information shall remain the sole and exclusive property of the disclosing party ("Disclosing Party"), and the receiving party ("Receiving Party") agrees to maintain (and to ensure that its employees and managers maintain) the Confidential Information in strict confidence and to use the Confidential Information solely for the purposes set forth in the Terms (i.e. the Receiving Party shall not use Confidential Information in any way, except for the purpose of fulfilling the Agreement). The parties further acknowledge and agree that Confidential Information shall be deemed to include all intellectual property rights of the parties. The Receiving Party may disclose the financial terms of the Agreement to its legal and business advisors and to potential investors, so long as such third parties have entered into a confidentiality agreement with the Receiving Party, the obligations of which are at least as stringent as those contained in the Terms. The Receiving Party may disclose Confidential Information if so required by law or competent authority, giving the Disclosing Party prior notice thereof.
- Any Breach. If the Merchant violates the Agreement, Fortumo may: (1) suspend or block the provision of Services without notice or otherwise restrict the Merchant's right to use the Products, including blocking any traffic from the Merchant's IP address; (2) set a term for the Merchant to cure the breach; (3) charge a contractual penalty or other surcharge from the Merchant imposed by the Payment Providers or competent authority on Fortumo; (4) withhold any payment of the Merchant's share or other amounts payable; and/or (5) impose a contractual penalty in the amount of 2,000 (two thousand) euros on the Merchant.
- Third Party Actions. Fortumo may deduct from amounts payable to the Merchant or refund, claim, set off, refuse to credit, withhold or reverse from the Merchant, in whole or in part, the total amount of any deduction, set off, refund, claim, refusal to credit, chargeback, withholding, reversal, fine, charge, penalty, surcharge or other loss that is applied by Payment Providers or competent authorities towards Fortumo as a result of the Merchant Services, Content, Merchant's (in)actions or similar circumstances. The Merchant agrees to immediately compensate Fortumo for any of the above stipulated third party actions and loss.
- Other Remedies. Notwithstanding the foregoing, Fortumo reserves the right to take any action that it deems appropriate, without notice, to prevent any violation, enforce any provision, or rectify any alleged violation of the Terms or any applicable law at its sole discretion. Upon application of any remedies by Fortumo, the Merchant may lose access to the Products or suffer a loss of certain features, functions, parts or elements of the Products.
- Indemnity. The Merchant shall defend, indemnify and hold harmless Fortumo, its licensors, subsidiaries and affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all chargebacks, deductions, reversals, withholdings, refunds, liabilities, damages, taxes, fines, penalties, costs, expenses (including reasonable attorney's fees) and other losses arising out of or accruing from (1) the Merchant's use of, or (in)actions in the course of using, the Products, (2) any Content or Merchant Services (including their advertisements), (3) Fortumo acting as a re-seller of the Content or Merchant Services or providing other services under the Terms and/or (4) any non-compliance by the Merchant with the Terms, industry standards or applicable laws.
TERM AND TERMINATION
- Term and Termination. The Agreement remains effective until terminated. Either party may at any time, without cause, terminate the Agreement with immediate effect.
- Consequences of Termination. When the Agreement is terminated, all of the legal rights, obligations and liabilities that the Merchant and Fortumo have benefited from, been subject to (or which have accrued over time whilst the Agreement has been in force) or which are expressed or intended to continue indefinitely (e.g. clauses regarding indemnity, limitation of liability, disclaimer of warranties, confidentiality, governing law, disputes etc.), shall be unaffected by the termination.
DISCLAIMER OF WARRANTIES
- The Merchant expressly agrees that the Products, and any content or features made available in connection with the Products, are used at the Merchant's sole discretion and risk and are provided "as is" and "as available", without warranty of any kind, either express or implied, from Fortumo.
- Fortumo further expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to, the warranties and conditions of merchantability, fitness for a particular purpose and non-infringement, correctness, accuracy and reliability. Unless otherwise expressly stated herein, Fortumo does not warrant that the Products, and any content, services or features made available in conjunction with or through the Products (or the server that makes them available), will be uninterrupted or error-free, free of viruses or other harmful components or that defects therein will be corrected.
- Fortumo makes no guarantee regarding the performance of the Products or the Payment Providers' billing systems. Fortumo does not guarantee continuous access to the Payment Providers' billing systems or lack of delays in payment processing.
LIMITATION OF LIABILITY
- Under no circumstances, including, but not limited to, negligence, will either party be liable for any special, indirect, incidental, consequential, punitive, or exemplary damages, including indirect loss, such as loss of earnings or loss of image, arising from or related to the Agreement, breach thereof, the (in)actions of either party, the use of the content, platform or products of either party, including damages that result from the inability to use them, or any linked sites, or any other interactions with each other, even if the party has been advised of the possibility of such damages.
- Fortumo's liability in contract, tort, negligence, product liability or otherwise however arising out of or in connection with the performance of its obligations under the Agreement for all events, or series of connected events, occurring in any year of the term of the Agreement shall not exceed in the aggregate 100% (one hundred per cent) of Fortumo's earnings under the Agreement during six (6) months prior to the event giving rise to liability.
- Force Majeure. Either party's performance of any part of the Agreement shall be excused to the extent that it is hindered, delayed or otherwise made impossible or impractical by flood, fire, earthquake, strike or riot, failure of power or telecommunications networks, governmental or military acts, decisions, orders or restrictions, terrorist attacks or any other circumstances beyond the reasonable control of that party and not caused by that party (collectively referred to as "Force Majeure"). If any Force Majeure condition(s) occur(s), the nonperforming party shall notify the other party of the nature of any such condition and the extent of the delay immediately, and shall make reasonable, good faith efforts to resume performance as soon as possible.
- Governing Law. The Agreement shall be governed by the laws of the Republic of Estonia, without regard to the conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) shall not be applied to the Agreement.
- Dispute Resolution. In the event of a dispute, controversy or claim arising out of or in relation to the Agreement, the parties will use their best efforts to settle the dispute amicably by mutual negotiations. However, should an amicable settlement between the parties not be possible, the dispute shall be finally solved in the Tartu courthouse of the Tartu County Court in Estonia.
- Severability. If any term, condition or provision of the Agreement is invalid, unenforceable or illegal in whole or in part, that provision shall be replaced by a permissible provision as close in content and purpose as possible to the original provision. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.All headings (including clause headings) are for reference purposes only and shall not be used for interpretation of the Agreement. In matters not regulated in the Agreement, the parties shall abide by the laws and industry standards. Failure by a party to exercise or enforce any provision or right under the Agreement shall not be deemed a waiver of future enforcement of that or any other provision or right.
- Assignment. Fortumo may, at its sole discretion, assign or transfer the Agreement or delegate any of the rights and/or obligations hereunder to a third party. If the Merchant attempts to assign or transfer the Agreement or delegate any of the rights and/or obligations hereunder without Fortumo's prior written consent (which shall not be unreasonably withheld), such assignment shall be void and unenforceable.
- Right of Representation. If you are entering into the Agreement on behalf of a legal entity, such as your employer or company, you represent that you have the legal authority to bind that entity.
- Nature of Legal Relationship. The parties enter into the Agreement as independent contractors, and the Agreement shall not create a partnership, agency, joint venture or employment relationship. Neither party will be deemed to be a representative of the other nor will either party have any right to create any obligation on behalf of the other party, unless otherwise stipulated herein. The Agreement does not protect or benefit a third party and no term of the Agreement shall be enforceable by any person who is not a party to the Agreement.
- Notices. All notices or other communications under or with respect to the Agreement shall be made by e-mail or in writing to the contact details provided by each party, each party being liable for prompt updates to such contact details. Each party may rely on the contact details provided by the other party.
- Amendments. Any amendments to the Agreement must be concluded in written form, signed by both parties, except if stipulated otherwise herein (e.g. clauses 1.3 and 1.4).
- Entire Agreement. The Agreement constitutes the entire agreement between the parties and supersedes any prior agreement, whether written or oral, and all other communications and negotiations between the parties relating to the subject matter of the Agreement.