TERMS AND CONDITIONS

IT IS HEREBY AGREED BY THE PARTIES AS FOLLOWS:
1. Definitions
“Account” means the account opened and maintained by TELECOM PAYMENT in the name of the Merchant for the administration and reconciliation of the Services provided to the Merchant, including the Payments received on behalf of the Merchant and the Charges due from the Merchant;
“This Agreement” means this agreement, including all appendices, as duly amended from time to time;
“Bank” means any bank or financial institution at which TELECOM PAYMENT collects and/or deposits Payments for clearance in support of the Services;
“Bank Transfer” means a payment made by the User to a bank account of or maintained by TELECOM PAYMENT. Bank Transfer is understood to be the generic term for domestic or international bank, credit, wire, and giro transfers;
“Card Payment” means a card number given by the User to the Merchant or to TELECOM PAYMENT acting on behalf of the Merchant for processing the Purchase Price. Card Payment is understood to be the generic term for payments by domestic and international credit-, debit-, smart-, cash-, and charge cards including but not limited to payments by domestic and international credit-, debit-, smart-, cash-, and charge cards;
“Collected Payments” means Payments collected by TELECOM PAYMENT as part of the provision of the Services;
“Bank Transfer” means a payment made by the User to a bank account of or maintained by TELECOM PAYMENT. Bank Transfer is understood to be the generic term for domestic or international bank, credit, wire, and giro transfers;
“Participating Bank” means any bank or financial institution that has participated in the System;
“Payments” means any payment processed by TELECOM PAYMENT in the context of the Services, specifically settlement by the User of the Purchase Price by way of Bank Transfer, Card Payment or otherwise;
“Purchase Price” means the price payable by the User to the Merchant for goods and services rendered by the Merchant to the User and any additional costs;
“Reversed Payment” means any payment that for any reason is refunded, reversed, withdrawn or refused in the name of TELECOM PAYMENT or the Merchant or the User and however initiated be it by a customer, user, bank, other institution, card scheme, financial or regulatory body, the User, the Merchant or TELECOM PAYMENT;
“Services” means the range of services that the Merchant is authorised to use or to provide to User pursuant to this Agreement as may be authorised by TELECOM PAYMENT from time to time;
“Systems” means the system(s) that TELECOM PAYMENT allows User to effect payment or funds transfer;
“Tariffs” means the tariffs that are applicable for the TELECOM PAYMENT Services, which are set out in Appendix A of this Agreement and are subject to revision from time to time by TELECOM PAYMENT unilaterally on 7 days advance notice in writing in accordance with paragraph 4;
“Trade Marks” means the registered or unregistered trademarks, service marks and trade names owned by or licensed to TELECOM PAYMENT, as they may be amended from time to time;
“Transaction” means any payment processed by TELECOM PAYMENT in the context of the Services, specifically settlement by the User of the Purchase Price by way of Bank Transfer or Card Payment;
“Users” means the user of the Systems for the purpose of payment or funds transfer; and “We, us, our” means Telecom Payment Limited.
2. TELECOM PAYMENT Services
2.1 In consideration for payment by the Merchant of the Tariff, we shall procure the provision of the Services in a thorough & professional manner according to the terms and conditions as set out in this Agreement.
2.2 International banking regulations and/or currency restrictions from local and/or central banks may prevent the services being rendered in certain countries. We will always use our reasonable commercial effort to acquire, maintain or otherwise procure any licenses, approvals or authorizations that may be required from any governmental authority or agency or pursuant to any law, rule, regulation or ordinance of any countries for the effective rendering of the Services.
2.3 The procurement by TELECOM PAYMENT for the provision of the Services under the Agreement does not mean it is not an independent party and TELECOM PAYMENT is not authorized to act as an agent or representative of the Merchant except for collection of Payments on behalf of the Merchant as provided herein. This Agreement does not create a legal partnership or joint venture.
2.4 TELECOM PAYMENT shall not be involved in any dispute or claim that may arise between the User and the Merchant unless the said dispute or claim relates specifically to the use of the Systems in which case the same shall be subject to the relevant terms and conditions governing the use of the Systems prevailing from time to time and the dispute or claim was notified to TELECOM PAYMENT within 30 days of occurrence.
2.5 The Merchant shall comply with all reasonable terms and conditions of services as stipulated by TELECOM PAYMENT from time to time.
3. Transfer of Funds
3.1 The transfer of the Collected Payments to you shall be executed weekly, subject to the terms and conditions set out in Appendix B. Payment will be made by setting off the amounts due to us against the Collected Payments due to you. The amounts due to us include but not limited to the Tariffs and any Reversed Payments. We will make the transfers of the Collected Payments via bank transfer or any other methods to a bank account designated by you.
3.1 The transfer of the Collected Payments to you shall be executed weekly, subject to the terms and conditions set out in Appendix B. Payment will be made by setting off the amounts due to us against the Collected Payments due to you. The amounts due to us include but not limited to the Tariffs and any Reversed Payments. We will make the transfers of the Collected Payments via bank transfer or any other methods to a bank account designated by you.
3.2 We shall be entitled to set off any unpaid amounts against the Collected Payments to be transferred to you. If at any time the Collected Payments are not sufficient to cover the amounts due, we will notify you and you shall be obliged to remit forthwith payment of the full amount indicated in the statement in accordance with the instructions on the statement we send to you.
3.3 If you have requested that the Collected Payments be converted into a currency other than the one in which they were collected, all applicable exchange rate costs incurred shall be borne by you.
4. Tariffs
4.1 The Tariffs as agreed between you and us for the Services are set out in Appendix A. We reserve the right to amend the Tariffs from time to time by giving you 7 days written notice in advance.
4.2 The services charges as set out in the Tariffs shall be due and payable upon receipt of the Collected Payments and shall be charged commencing from the date on which an Account at TELECOM PAYMENT has been opened in your name. All charges will be deducted from the Payments, if there are insufficient funds for this purpose an invoice will be issued and is payable in accordance with the instructions on the statement.
5. Indemnification
5.1 The Merchant represents and warrants that during the term of this Agreement:
(a) you are duly incorporated, organized and validly existing under the laws of jurisdiction of your incorporation, have all requisite powers, licenses and permits and have undertaken all actions and have fulfilled all conditions to enter into, to perform under and to comply with its obligations under this Agreement;
(b) the business carried on by you is a legitimate, lawful business and you are not engaged in any conduct or transactions which may be considered unlawful in any jurisdiction in which you conduct business and you comply with all laws, regulations and requirements applicable to your business and to the Payments;
(c) the Merchant will indemnify and keep harmless TELECOM PAYMENT and its parents, subsidiaries, affiliates, officers, directors, representatives, agents, and employees from and against any and all claims, losses, liabilities, costs, and other expenses incurred as a result of or arising directly or indirectly out of or in connection with:
(i) any misrepresentation, breach of warranty or non-fulfillment of any undertaking on your part under this Agreement;
(ii) any claims, demands, awards, judgements, actions and proceedings by whomsoever made, arising out of or in any way connected with your performance under this Agreement;
(iii) any claims, demands, awards, judgements, actions and proceedings made by third party included, but not limited to, penalties imposed by banks for any reason, arising out of or in any way connected with the transactions between you and the User.
5.2 TELECOM PAYMENT represents and warrants that during the term of this Agreement:
(a) it is duly incorporated, organized and validly existing and in good standing under the laws of the Republic of China , has all requisite powers, licenses and permits and has undertaken all actions and has fulfilled all conditions to enter into, to perform under and to comply with its obligations under this Agreement;
(b) we have all necessary rights and authority to execute and deliver this Agreement and perform its obligations hereunder and nothing contained in this Agreement or in the performance of this Agreement will place TELECOM PAYMENT in breach of any other contract or obligation; and
(c) subject the other provisions of this Agreement, we shall remit Payments to you in a timely manner and in accordance with this Agreement.
5.3 Except as otherwise provided herein, TELECOM PAYMENT expressly disclaims, all other representation, warranties or conditions, whether express, implied, statutory or otherwise, including, without limitation, the implied warranties of merchantability, title fitness for a particular purpose and non-infringement of third party rights.
6. Confidentiality
6.1 TELECOM PAYMENT will own and retain all of their respective rights, titles and interests in and to all intellectual property embodied in or associated with the design and delivery of the Services, including, but not limited to, content, such as software, graphics, start-up information and materials, designs, methods, architecture, materials, publications, business plans and other tangible intellectual property-based assets of any kind whether in machine readable, printed or other form and including, without limitation, all revisions, enhancements, technical know-how, patents, copyrights, trademarks, and trade secrets.
6.2 Except as expressly stated in this Agreement, the parties will have no rights of any kind in or to any of each other’s intellectual property. There are no implied licenses under this agreement, and any rights not expressly granted under this Agreement are reserved by the respective party.
6.3 The Merchant will not, without the prior written consent of the cardholder, use or disclose information on the cardholder or his/her transactions howsoever obtained and in whatsoever form the information shall take, to any third party (other than the Merchant’s agents for the sole purpose of assisting the Merchant to complete or enforce the transactions and the Merchant’s insurers and professional advisers) unless such disclosure is compelled by law or judicial order and the Merchant shall indemnify TELECOM PAYMENT accordingly in the event of any claim (direct or indirect) arising therefrom.
6.4 TELECOM PAYMENT shall be entitled to disclose information about the Merchant and this Agreement to any agents (including without limitation any collection agencies), contractors or advisers who provide a service to TELECOM PAYMENT in relation to the performance or enforcement of this Agreement.
7. Liability
7.1 In no event will TELECOM PAYMENT be liable in contract or in tort for any indirect loss or damage caused by our failure to fulfill our responsibilities or for any consequential damages, including, but not limited to, loss of profits or anticipated savings or incidental damages, even if we had been advised of the possibility of such damages.
7.2 TELECOM PAYMENT shall not be liable for any damage and/or loss caused by or related to the performance or non-performance of the Services, unless such damage and/or loss is caused by intent or gross negligence on the part of TELECOM PAYMENT.
7.3 Any right of compensation pursuant to this Agreement shall be invalidated if (legal) proceedings/action to claim compensation have not been instituted within one (1) year of the damage and/or loss having arisen.
7.4 The Merchant shall not hold TELECOM PAYMENT liable or responsible for any action, claim, cost, expense, damage and loss, including consequential loss or damage or loss of profit, which the Merchant may suffer or incur as a result of a breakdown in the Systems or when the Systems are not available for any reason whatsoever.
8. Restrictions
The Merchant hereby agrees with TELECOM PAYMENT that it shall not:
(a) impose additional charges for transactions by customers where payment is to be effected through the System;
(b) refuse transactions by User who wishes to effect payment through the System regardless of the value of the transaction, except where in the reasonable opinion of the Merchant the User is suspected not to be the authorized user or legitimate owner of the card presented (collectively “the Card User”); and/or
(c) favour any particular card when accepting transaction for which payment is to be effected through the System notwithstanding any agreement between the Merchant and any card issuing company.
9. Undertakings of the Merchant
The Merchant agrees and undertakes throughout the term of this Agreement that it shall:-
(a) at its own expense and before the time agreed for installation or activation of the Services, prepare and provide the necessary, compatible operational equipment, software and connection specified by TELECOM PAYMENT;
(b) not alter, copy, modify or tamper with any software provided by TELECOM PAYMENT;
(c) install such measures as may be necessary to protect the security and integrity of related hardware or software of the Systems;
(d) where required, comply with all security or encryption standards, rules procedures imposed by TELECOM PAYMENT;
(e) prior to providing the Services, open and maintain at all times during the term of this Agreement, an account in its name with one of the Participating Banks which shall be designated for purposes of clearing and settling Transactions handled by the Merchant; and
(f) inform TELECOM PAYMENT of any change in the particulars of its designated account.
10. Undertakings of TELECOM PAYMENT
TELECOM PAYMENT agrees and undertakes that it shall use its commercially reasonable endeavours to facilitate the Transactions and the functions required to enable the Merchant to provide the Services.
11. Suspension or Termination of the Provision of Services
It is your obligation to fulfill your obligations under this Agreement and to inform us of any material change to your business or payment profile. TELECOM PAYMENT at its sole discretion will have the right to suspend or terminate the provision of Services to the Merchant should one of the following occur.
a. a material change in the number, value, type or profile of payments of which we were not informed in advance
b. a sustained drop in the number, value, type or profile of payments of which we were not informed in advance
c. we suspect or have evidence that fraud is or may be occurring
d. the integrity or reputation of TELECOM PAYMENT is brought or threatened to be brought into disrepute by the Merchant
e. you stop trading,
f. you sell your business or there is a change in control of your business without advising us,
g. you change the name or nature of your business without advising us,
h. the legal status of your business changes without advising us,
i. a trustee or receiver is appointed for any or all of your property, you become insolvent or unable to pay debts as they mature, or ceases to so pay, or makes an assignment for the benefit of creditors, bankruptcy or insolvency proceedings under bankruptcy or insolvency code or similar law, whether voluntary or involuntary are properly commenced by or against you, your company is dissolved or liquidated;
12. Term, Termination and Ongoing Provisions
12.1 This Agreement will be effective as of the date of signing by the parties hereto and will remain in effect for one (1) year. Unless written notice is provided to the contrary by either party one (1) month prior to expiration of the initial term of this Agreement or any extension term, this Agreement shall automatically renew for successive one (1) year term.
12.2 The termination of this Agreement shall not affect any provision of this Agreement which by its wording or nature is intended to remain effective and to continue to operate in the event of termination of this Agreement, and shall not prejudice or affect the rights of either Party against the other in respect of any breach of the terms and conditions of this Agreement.
13. Assignment, Variation of Agreement
13.1 The Merchant shall not, without the prior written consent of TELECOM PAYMENT, assign or transfer any of its rights or obligations under this Agreement. This Agreement may be varied only by the agreement of both parties in writing provided that TELECOM PAYMENT shall be entitled at any time to vary or supplement such terms of this Agreement which relate to matters purely of an operational nature by giving not less than 30 days’ written notice to the Merchant.
14. Governing Law
14.1 This Agreement and any disputes shall in all respects be exclusively governed by and interpreted in accordance with the laws of the Republic of China and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts of Republic of China.
15 Assignments
15.1 None of the Parties shall assign or transfer this Agreement or any or all of their rights and/or obligations under the Agreement nor any part of it, nor any benefit nor interest in or under it, to any third party without the prior written consent of the other Party which shall not be unreasonably withheld; provided, however that we may assign this Agreement without the consent or approval of you to our parent or subsidiary or associated companies, in connection with a merger, reorganization, recapitalization or sale of all of or substantially all of our stock, business or assets. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties’ hereto and there respective successors and assigns.
16. Force Majeure
No failure or omission by any party to carry out its obligations or observe any of the stipulations or conditions of this Agreement, shall give rise to any claims against the party in question or be deemed a breach of this Agreement, if such failure or omission arises from a cause of force majeure, such as acts of God, war or warlike hostilities, civil commotion, riots, blockades, embargos, sabotage, strikes, lockout, shortage of labour, delay in deliveries of whatsoever from sub-contractors or machine failure caused by force majeure, or any other event beyond the control of the party in question.
18 Notices and Consents
18.1 Any notice to be given by either of the parties hereto to the other in connection with this Agreement shall be in writing and shall be delivered to its address stated in this Agreement or to such other address as either party may notify to the other for such purpose.
18.2 All communications sent by post to the last address of the Merchant registered with TELECOM PAYMENT will be deemed to have been duly delivered to the Merchant regardless of whether any such communications have been returned through post.