These are the terms of service ("Terms") regarding the services offered by Fortumo. Please read the Terms, because they describe the agreement between you or your company ("Merchant") and Fortumo OÜ (private limited company), registry code 11378397, registered address Rüütli 7, 51007 Tartu, Estonia, e-mail: firstname.lastname@example.org ("Fortumo"). The Merchant and Fortumo also referred to as “Party” or “Parties”.
ABOUT THE TERMS
- Authority. Each Party represents and warrants to the other that: (1) it has the full right, power, legal capacity, necessary licenses, 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 of any 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; (2) changes in applicable law, taxation, industry practice, or risks; changes in the practice of courts, competent authorities or Payment Providers; or changes in 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) justified complaints from Payment Providers, end-users, merchants or competent authorities requiring amendments to the Terms; (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 does not agree with the amended Terms, the Merchant may terminate the Agreement at any time with immediate effect.
- “End-User” means a user of a digital device (e.g. mobile phone, tablet, computer, game console) using the Services (as defined below) of Fortumo to purchase the products and services of the Merchant.
- “Payment Provider” means mobile operators, payment aggregators, credit and/or debit card issuers and credit and/or debit card payment processors, electronic money or electronic wallet service providers or other payment providers.
- “Website” means the website fortumo.com.
- “Technology” means the 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.
- “Products” means Website, Services and Technology.
- Fortumo Services. Fortumo services (“Services”) allow End-Users to purchase, using digital devices, the products and services of the Merchant, by charging the amount of the purchase to the End-User’s mobile phone bill or credit card, deducting the amount from the End-User’s mobile phone pre-paid balance or debit card or using other payment solutions. The Services include Fortumo 1) arranging the charging of the purchase amounts to the End-Users’ accounts using the infrastructure and systems of the Payment Providers, 2) making the purchased products and services of the Merchant available to the End-User, 3) collecting the relevant amounts from Payment Providers, 4) transferring the Merchant’s share in these amounts to the Merchant and 5) reporting to the Merchant. The Services are available on various operating systems, such as Android, Java, Blackberry, Windows Phone, and on the web. The Services include in-app purchasing solutions, one-off payments and recurring (subscription) payments.
- Remuneration for Services. The Merchant does not have to pay any fixed or regular fees to Fortumo. Fortumo retains a fee (which shall be Fortumo's earnings under this Agreement) for each successful payment by an End-User for the Merchant Services.
FORTUMO'S PROPRIETARY RIGHTS
- General License. The Products and any parts thereof are solely owned by Fortumo and its affiliates. 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, to use the Products in compliance with the Terms, industry standards and applicable laws. All licenses granted under the Agreement are terminated automatically when the Agreement is terminated.
- Trademarks. The Parties may not use or modify 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 or not. 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 only 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. Unless expressly otherwise stated in the Terms, nothing in these Terms shall amount to an assignment, license 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.
- Merchant Services. The Merchant is solely responsible for Merchant’s each service (Merchant’s service, product, application, game, content, software, feature or functionality, whether paid or free, jointly referred to as “Merchant Service”) and its compliance with the Terms, requirements published on the Website, applicable laws and regulations, Payment Provider regulations and consumer protection or industry standards. The Merchant Services may not include or support (1) any sexual or sexually related content, (2) any gambling or lottery services, (3) any other content that infringes the laws, regulations or industry standards. Fortumo does not make any representations that it will provide its Services for any specific Merchant Service, and reserves the right, on reasonable grounds, to remove its Services from any Merchant Service or to give instructions regarding the compliance of the Merchant Service.
- General License. Under the general transaction flow, neither Fortumo nor Payment Providers require a license to make any paid feature or functionality of the Merchant Service available to End-Users. However, in certain jurisdictions Fortumo or Payment Providers (since they process or effect the payment for such paid feature or functionality) are deemed to require a license for making the paid feature or functionality of the Merchant Services available to End-Users. Solely for this reason the Merchant hereby grants to Fortumo and Payment Providers a non-exclusive license only for the following purpose: to make the paid feature or functionality of the Merchant Service available to End-Users.
- Warranty. The Merchant represents and warrants that: (1) the Merchant Services 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 and regulations, or the Terms; (2) the Merchant either owns the Merchant Services or has the necessary licenses, rights and permissions to use, sell, license or otherwise make the Merchant Services available to End-Users, and to authorize Fortumo or Payment Providers to make the paid feature or functionality of the Merchant Services available to End-Users.
- Approval Process. The Merchant may be requested to submit the 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 therein. Fortumo explicitly disclaims any responsibility for any Merchant Service.
- Clarity. The Merchant shall ensure that the total End-User price and all fees that it charges from End-Users are shown clearly and unambiguously 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 laws and regulations.
- Protection of End-User’s Data. The Merchant shall protect the privacy and rights of End-Users. If the Merchant has access to End-User data (including personally identifiable data), the Merchant must make the End-Users aware of this, 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 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. The Merchant may not license, sell, rent, distribute End-User data, otherwise grant access to such data, or use such data for purposes other than fulfilling this Agreement. 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 use the Services, Merchants are required to register an account with Fortumo (“Merchant Account”), which will include the name, email address, location, phone number and bank account details of the Merchant. The Merchant is responsible for providing and maintaining accurate information associated with the Merchant Account. The Merchant’s name must be reasonably descriptive, because this name may appear on the End-User’s bill for payments for Merchant Services. Fortumo may, upon 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 several persons need to use the Merchant Account, such persons must be designated as authorised users. Authorised users have the right to act on the Merchant’s behalf when using the Merchant Account. 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 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 there are reasons why a user does not have the right to use the Merchant Account anymore.
- Merchant's Share. The payment terms and conditions, including the Merchant’s share per country and per Payment Provider, and the time when it is paid out, are specified on the Website and the Merchant Account. As the applicable taxes, payouts offered by Payment Providers or other circumstances may change, these payment terms and conditions are subject to amendments by Fortumo with prior notice. The total Merchant’s share to be transferred to the Merchant for the Merchant Services is based on the Merchant’s share in the End-User price (less VAT or similar tax) and the number of successfully collected End-User payments for the Merchant Services.
- Payment and Reporting. All payments to the Merchant shall be made in Euros or upon Fortumo’s agreement in US Dollars or other currencies. The Merchant’s share shall be calculated based on records maintained by Fortumo, and shall be reported and paid to the Merchant on the 15th day of each month following the month of receipt of the amounts from Payment Providers. The Merchant shall have access to Fortumo’s real-time reporting system available on the Website. Fortumo shall use self-invoicing. Fortumo shall convert all currencies 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 aggregate 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.
- 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’s share is below €100.
- Payment Dependencies. Fortumo receives the relevant amounts for the Merchant Services 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 payment from the Payment Providers and Fortumo is not obligated to pay to the Merchant more than it has received from the Payment Providers for the respective Merchant Services. If Fortumo receives a partial or reduced payment from the Payment Providers, the Merchant’s share shall be reduced accordingly. In the event Fortumo makes any payment to the Merchant before receiving full payment from the Payment Provider, Fortumo reserves the right to reclaim the payment from the Merchant in the event the Payment Provider does not transfer said full payment to Fortumo in due time. Payment Providers disclaim their payment liability for transactions that they have failed to collect from, or have refunded to, the End-Users, and 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 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 suspension of services, withholding or reversal of payments.
- Refunds. End-Users have a chargeback or other refund right and Fortumo may claim such refunds (plus a processing fee imposed by Payment Providers) from the Merchant or deduct them from payments to the Merchant.
- Set Off. Fortumo may set off any payment obligation that Fortumo may have to the Merchant against any payment obligation that the Merchant may have to Fortumo, for example (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.
- Taxes. Each Party shall be liable for their own tax obligations. 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, providing the Merchant with the necessary evidence upon request.
- Documentation. The Parties shall promptly provide each other with documentation as may be required by the other Party in order for the other Party to fulfil its obligations under the Agreement or required by law, competent authorities or Payment Providers.
- 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.
- Declined Payments. 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 declined or failed payments.
- Illegal Actions. The Merchant may not use the Products for committing a crime, money laundering or financing terrorism, conducting any 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 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, with prior notice: (1) limit, 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, documents, 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 Agreement and for 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, acting reasonably and in good faith: (1) suspend or block the provision of Services without notice or otherwise restrict the Merchant's right to use the Products; (2) set a term for the Merchant to cure the breach; (3) withhold any payment of the Merchant's share or other amounts payable; and/or (4) 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 claim from the Merchant 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, Merchant’s (in)actions or similar circumstances attributable to the Merchant. The Merchant agrees to immediately compensate Fortumo for any of the above stipulated third party actions and loss.
- 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 Merchant Services (including their advertisements), (3) any breach by the Merchant of the representations, warranties, covenants, agreements or other obligations under the Agreement, 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 giving 3 (three) months prior notice thereof. Either Party may terminate the Agreement with immediate effect, if the other Party is in material breach of the Agreement.
- 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 or access to the Payment Providers’ billing systems.
LIMITATION OF LIABILITY
- Under no circumstances, including, but not limited to, negligence, will either Party be liable for any loss of earnings, profit, reputation, data, business, or cost of procurement of substitute goods or services, or any special, indirect, incidental, consequential, punitive, or exemplary damages, including indirect loss, arising from or related to the Agreement, breach thereof, the (in)actions of either Party, 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 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 laws 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 regarding 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 of the Terms).
- 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.