Terms of service
Effective as of 12 December 2014
These Terms and Conditions ( hereinafter: T&C) rule the contractual relation between MoCoPay AG, Hardturmstrasse 8005 Zürich (hereinafter MoCoPay or provider) and you (hereinafter: Client) and apply to your use of this website and our products and services.
In addition to these T&C, by using this website and our services and products, you agree to the terms of the policies, instructions, warnings, notices, procedures, guidelines, pricing, revenue sharing and payment principles that are provided to you on this website or are referenced in these T&C or are given to you by any MoCoPay staff.
By using this website and our services and products, you represent and warrant that you have the full right, power, legal capacity, necessary licences, consents and authority to enter into, deliver and fully perform under these T&C.
These T&C are subject to changes from time to time which shall take effect immediately upon any such change is published on this website . Your usage of this website and our services and products following any changes of these T&C (including but not limited to changes in the business and commercial model , changes in technology, changes in applicable laws) shall constitute your acceptance of those changes. Where required by law, will we obtain your consent to apply these changes. If you do not agree with the amended T&C, you may terminate the contractual relation to MoCoPay with immediate effect.
After Client’s registration, the Provider shall perform the validation of the Client in order to confirm and match data provided by the Client during registration. The Provider has the right to refuse the usage of its services and products to the Client who did not pass the validation process.
In all events, the Client is solely responsible for the use of the access data and releases the Provider of the service from any and all liability related to improper use or breach of confidentiality of the access data.
After the Client is registered and has accepted these T&c, the Client shall be able to use Provider’s services and products.
- OUR SERVICES
Provider offers mobile payment services and enables you offer and your services and products to end users who will purchase your services by making payments using their mobile devices. Provider handles the collection of amounts from mobile operators and forwarding of the amounts to the Client.
Provider is agent and intermediate between mobile operators and you and end users. Except for limited role in processing payments that you authorize or initiate, provider is not involved in any underlying transaction between Client, any end user, or any third party. Provider may use the services of one or more third party, processors and/or financial institutions to provide mobile payment services.
- COMMERCIAL CONDITIONS
Provider’s services shall be provided to Client at the pricing determined in commercial documents provided to Client upon registration on Provider’s website (hereinafter: commercials). The prices and other amounts stated in commercial documents do not include the statutory value added tax (VAT). This tax will be charged according to the tax rate effective at the date of invoice and stated separately on the invoice.
The payment of VAT due from the end users shall be paid according to positive laws of European Union and by party determined by mobile operators in territory where services were provided to end users by the Client.
Client’s payout and all charges shall be calculated according to commercials by reference to data properly recorded by Provider.
Provider is not obliged to make payment of the payout to the Client if payout is less than 100,00€. In such cases, the Provider shall make payment to the Client when accumulated value of withheld payouts exceeds 100,00€. The Client shall bear all bank transfer costs of such transactions.
If payout to the Client is less than 1.500,00€, the Client shall bear all bank transfer costs of such transaction.
In case the Provider solely suspects that a fraud has occurred in the traffic generated by the Client or that there will be delay in recipient of the payout from the third parties, the Provider has the right to prolong the payment until payout is received.
The Providers not entitled to its share with regard to fraudulent or failed transactions and refunded transactions.
Provider shall make any and all undisputed payments in Euros by way of bank transfer to the bank account specified by the Client. In case the bank account specified by the Client is not opened in Client’s name, the Provider reserves the right to demand written confirmation of the bank account and payment instruction. The Client hereby declares his full responsibility for all costs and or liabilities that may arise under this payment method.
Payments shall be made according to the exchange rate available on www.oanda.com on the first banking day of the moMocopay when the payment to the Client is made.
In general, payout reports shall be sent to the Client 30 days after the end of the moMocopay when traffic was generated and payments to the Client shall be made 90 days after the end of the moMocopay when traffic was generated, subject always to receipt of the respective amounts by Provider.
In the event Provider makes any payment to the Client before receiving payment from the mobile operators, or makes payment for fraudulent, failed or refunded transactions, Provider reserves the right to chargeback or reclaim the payment from the Client.
If the Client wishes to dispute any payment received from MoCoPay, the Client shall do it at late 10 days from the date of receipt of such payment and provide to MoCoPay relevant proof in support of its dispute.
- CLIENT’S OBLIGATIONS
During the usage of Provider’s services and Products,the Client must:
a) comply with all applicable laws, regulations, or requirements of government or statutory body in the territory where the Client provides it services to end users and any applicable industry standards or codes whether compliance is voluntary or not;
b) comply with reasonable directions and policies of Provider as notified or amended from time to time;
c) provide the Provider with information or material regarding the services offered to end users upon request;
d) implement and maintain appropriate security procedures to prevent damage and/or fraud or improper usage or unauthorized usage of the services;
e) not do anything likely:
– to give rise to liability to the Provider without prior written consent; or
– bring the Provider into disrepute or damage Provider’s business in any way.
The Client must ensure that the services provided are not used for any illegal purpose, or for the transmission or offering of any information or services that are unsolicited, libellous, unlawful, abusive, threatening, harmful, threatening, defamatory, or in anyway infringe the laws governing but not exhaustively covering, copyright, intellectual property rights, trade marks, illegal pornography, consumer protection or any other material that is slanderous or may cause offence in any way.
It is not allowed to offer or promote via Provider’s services and products any sexual or sexually related content, any content that has a violent context, any gambling or lottery services, to collect donations or to enable payments for physical goods or to offer any other content that infringes the laws, regulations or industry standards.
The Client must not use Provider’s name, trade marks, or copyrights in any way that implies any approval or connection with the services or products offered by the Client.
When creating a service for the Client, the Provider may be requested to submit the content or Client’s service for approval to Provider. Provider’s approval does not indicate that the service will be legitimate in any jurisdictions, rather it is to ascertain that the service is in line with Provider’s requirements. Provider is not obligated to pre-screen or monitor any service or content in order to discover any infringements against the laws, industry standards or these T&C and is not responsible whatsoever for such content and service.
If the Client is using Provider’s services and Products in combination with content elements not provided by Provider, the Client is solely responsible for acquiring and collecting all the permits and licenses from the content suppliers and the regulation of copyrights and intellectual property rights, as well as for the payment of royalties fees, and is solely responsible that the content is not contrary to the law nor infringe upon the rights of any third party.
In the event any third party asserts a claim against Provider in relation to providing mobile payment services for the utilization of the content or service provided by Client or any of its customers, Client shall relieve Provider from the legal consequences and all costs and damages arising therefrom, notwithstanding the costs and damages the Client might had directly as a result any claims connected to the same content or service provided by the Client.
In case Supplier receives a claim from an end user or any third party, Provider will send a notice to the Client, informing him of the existence of the claim and requiring him either to prove that the claim has no ground (wording shall change according to the nature of the claim) or to immediately suspend the content or service.
If the Client does not answer and does not adapt or remove the content or service within one (1) business day as from the date of the notice, Provider shall takes the necessary steps in order to suspend the service. In such case, Provider shall send a confirmation of suspension to the Client on the day of the suspension.
In case Provider would deem that the claim needs an urgent reaction, Provider shall always retain the right to immediately suspend the concerned service.
The Provider shall in any case retain right to inspect permits and licenses for the content or service before or after activation of service (but is not obliged to do so) and Client shall deliver those permits and licences to Provider upon Provider’s request, otherwise Provider has the right to suspend the Payment service. Such Provider’s request shall in no case mean the Provider is responsible to any third party for the content or service nor shall it present Provider’s approval for usage of the content or provision of the service.
- ANTIFRAUD MECHANISM
The Provider is entitled, but not obliged, to implement Anti-Fraud mechanism as add-on to any Client’s service at any time at its own discretion. Anti-Fraud mechanism values which serve as a cumulative indicator of whether an service can present a fraud risk shall be determined solely by the Provider. The Provider can at its own discretion modify the Anti-Fraud mechanism values to a certain extent and define the acceptable risk level with the Client.
The Client shall make its best endeavours to prevent abuse with computer-originated messages/calls or any other fraud related to or facilitated through the services. In case the Anti-Fraud mechanism indicates that fraud risk is high in Client’s service, the Provider is entitled to suspend the service and to terminate contractual relation with Client immediately.
The Client shall at all times ensure that all publicity and/or promotional material issued by it or on its behalf in media in respect of or in connection with the services complies in all respects with all positive laws, rules and/or codes of practice in the territory where service is provided to end users. These rules include, but not limited to, acting in the interest of all consumers, preventing undisclosed charges, deceptive and unfair acts or practices and making substantiated claims about the services.
In any publicity or other promotional activity the Client shall not state or imply any approval by any of the mobile operator or by Provider (or any associated company) of any content nor refer to the mobile operator or Provider without the express written approval of a duly authorized officer of the mobile operator or Provider, as appropriate.
If the Client comes in default of acceptance or culpably fails to meet any other of its obligations stated in this chapter, Client shall relieve Provider from the legal consequences and all costs and damages arising therefrom, notwithstanding the costs and damages the Client might had directly connected to the same case.
The Client accepts that in some countries Provider is obliged by law and/or regulator or partner to perform refunds to end users who are not satisfied with the service they received. In such cases, the Provider shall charge the Client for an administration fee of 4,00€ for each refund handled by Provider, plus the actual amount refunded to End User and bank transaction cost.
In the event that mobile operator or any third party received and had to handle end user complaints and/or has refunded end users and charged such handling and refund costs and all associated costs (including but not limited to administration costs, legal costs, costs for investigating the breach and providing such refunds) to the Provider, the Provider shall be entitled to charge all these costs to the Client.
Customer care service is partially included in Provider’s service.
The Provider shall handle 10 simple end user complaints for Client’s services per moMocopay free of charge. Each additional received and handled end user complaint shall be charged 3€ per complaint.
In case of complicated complaints received directly from end users or from any other competent third party that require Provider to use additional resources (including, but not limited to legal, partner management and controlling services), Provider is also entitled to charge the Client the additional amount of 80,00€ per hour spent for handling such complaint.
- FORCE MAJEURE
Neither Party is under any liability for any failure to perform any of its obligations under these T&C due to any cause not within its control including, without limitation, lock-outs, strikes, other industrial disputes, riots or civil commotion, wars (whether declared or not), revolutions, coup d’état, expropriation of confiscation for public needs, embargo, discontinuation of public or private transportation or supply of energy, general local or national collapse of networks, fire, flood, storm, earthquake, lightning, sabotage, attacks (i.e. hacks, denial of service attacks, viruses) by third Parties, and other acts not caused by the Parties, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain power used in any kind of equipment and outages elsewhere on the Internet or failure of the Internet or some other unusual event which causes equally drastic effects beyond the affected Party’s control. Following notification by either Party to the other of such cause, such Party shall be allowed a reasonable extension of time for the performance of its obligations.
- INTELLECTUAL PROPERTY RIGHTS
All title, ownership rights and intellectual property rights in and relating to these T&C or any copies thereof including but not limited to copyright, logos, names, trademarks, service marks, design, text, sound recordings, images, links, concepts and themes are owned by originating party and shall remain its property of Licensor, and nothing in these T&C should be construed as transferring any aspects of such rights to the other party or any third party.
The Provider may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under these T&C and may subcontract or delegate in any manner any or all of its obligations to any third party or agent.
The Client shall at all times indemnify and keep fully and effectually indemnified Provider against all liabilities (including damages, expenses, regulatory fines, penalties and costs), actions, proceedings, claims and demands and all alleged claims and demands whatsoever (including, but not limited connected to the violation of the intellectual property rights) arising directly or indirectly out of or in consequence of the marketing, provision or use of any services delivered by Provider to Client or the associated services of the Client or the conduct of Client’s business. Provider shall as soon as reasonably possible give notice to the Client of any such action proceeding, claim or demand.
In the event of any actual or apparent breach by the Client of any of its or obligations under these T&C, the Provider may at its sole and absolute discretion, forthwith suspend or cease or modify the provision or performance of any of its obligations, or any of the services (or part thereof) either temporarily or permanently; take such actions to remedy or otherwise deal with the situation as it deems fit in its sole and absolute discretion, including in the areas of public and customer relations and obtaining legal or technical advice. All costs incurred by the Provider in this regard, including any time, labour and professional costs of any employee, officer, contractor, servant, agent or other Provider’s personnel or third parties engaged by the Provider, shall be reimbursed by the Client to the Provider on a full indemnity basis (including, where applicable, legal costs on a solicitor-client basis). The Provider may deduct or set off such sums as aforesaid from any unpaid payout and/or to claim such sums (or any part thereof) as a debt due and owing by the Client. In order to come across eventually claims arising out of any actual or apparent breach by the Client of any of its obligations under these T&C and to assure compensation for any damage it suffered, including any additional expenditure, the Provider is also entitled to retain payouts and other values in a period of 6 moMocopays since disregard of the rules occurred.
Provider shall not be liable for any damages and costs incurred or suffered by Client, its representatives or any other person except in the event of the wilful and serious misconduct of Provider. In no event shall Provider be liable for any special, incidental or consequential damages, or lost revenue or profits, or lost or damaged data, or any indirect damages, whether arising in contract, tort, or otherwise.
Without prejudice to the generality of the foregoing, the aggregate cumulative liability of the Provider shall not exceed the total amount of Provider’s part of the payout in the immediately preceding 3 moMocopays whether in contract or tort (including negligence or breach of statutory duty) or otherwise arising out of or in connection with these T&C, save for claims arising from death or personal injury caused by negligence.
If any term or provision of these T&C or part thereof is rendered void, illegal or unenforceable by any legislation to which it is subject, it shall be rendered void, illegal or unenforceable to that extent only and be severed form these T&C provided that if the commercial basis of these T&C is thereby substantially affected or altered, the Parties shall negotiate in good faith to amend and modify these T&C as may be necessary or desirable in the circumstances. In any event, the invalidity or unenforceability of any term or provisions of these T&C shall not impair the enforceability or the remainder of these T&C, which shall remain in full force and effect and shall be construed as if the invalid or unenforceable term or provision was omitted.
- TERM AND TERMINATION
The contractual relation between Client and Provider remains effective until terminated. Either party may at any time, without cause, terminate the contractual relation with immediate effect. Upon any such termination, all of the legal rights, obligations and liabilities that the Provider and the Client have benefited from, been subject to or which are expressed or intended to continue indefinitely shall be unaffected by the termination.
- GOVERNING LAW
This contractual relation shall be governed by and construed in accordance with the laws of Switzerland. Any dispute arising out of or in connection with these T&C and/or any addendum, including disputes regarding its conclusion, validity and existence shall be decided by the Commercial Court of Zurich (Handelsgericht des Kantons Zürich). All awards may if necessary be enforced by any court having jurisdiction in the same manner as a judgment in such court.