Agreement for DaoPay Services

Version 1.1
01.10.2007


1. Initial
DaoTec Ltd, company number 04296038, registered in England and Wales, VAT number 815384622, registered office at 145-157 St John Street, London EC1V 4PY, United Kingdom (herein referred as "DaoTec"), operates a payment platform (herein referred as "DaoPay") for use by businesses and individuals that operate web sites, which permits the charging of amounts of money for services offered by the site of the Client. DaoTec is an independent contractor for all purposes. DaoTec does not have control of nor, assumes the liability or legality for the products or services that are paid for with DaoPay. We do not guarantee the identity of any User or ensure that a Client or a Customer will complete a transaction. Please note that there are risks of dealing with underage persons or people acting under false pretence.


2. Definitions
The following terms are defined for use in this Agreement:

?Client? means the individual or business entity that agrees to the terms and conditions mentioned in this Agreement and intends to use DaoPay to bill for its services

?Services? means any type of service, content media or whatever offered by the Client.

?Clients services? means services, content or other digital goods offered by the Client

?Customer? means any individual or business entity desiring to purchase access to the Client's services via DaoPay

?Customer Charge" means the amount to be charged to the Customer's phone bill

?Customer Support? means the Customer Support provided by Clients for their Customers

?DaoPay Customer Support? means the Customer Support provided by DaoTec for the users that pay by using DaoPay

?Voice? means payments made via a phone call to one of DaoPay?s numbers

?Control Center? means the administrative client interface which handles the registration, log in and the DaoPay administration

?SMS? means payments made via sending or receiving short messages to/from one of DaoPay?s numbers

"Chargeback" and ?Revoke? means a Customer Charge which the Customer's bank or telephone services provider or DaoTec identify as being invalid or non-collectible after initial acceptance. This might be a result of , but not limited to - fraud, lost, cancelled, unissued, invalid account identification, an unresolved customer complaint, or other cause which results in the deduction of monies otherwise payable to DaoTec


3. Client opening an Account
3.1 To be eligible for our Services, if the Client acts as an individual person, the Client must be at least 18 years old.
3.2 Client is wholly responsible for maintaining the confidentiality of Client's password and account and for any and all activities that occur under Client's account.


4. Payments and Fees
4.1 Billing periods are from the 1st of each month to the 1st of the following month.
4.2 Payments to the client are based on the latest pricelist published on www.daopay.com or any special Agreements which have to be made in writing and have to be duly signed by the Client and DaoTec. Client accepts this pricelist as the base for payouts to the Client. If Client does not accept this pricelist Client has to cancel this Contract not later than 14 days after the publishing of the pricelist. A cancellation in case of non acceptance of the pricelist will have immediate effect.
4.3 Any Chargeback?s or Revokes will be deducted from the Client payouts as soon as they are known by DaoTec.
4.4 Service fees are equal to a percentage of Client's Total Revenue for the Services.
4.5 DaoPay Voice and SMS Payment: Client payouts are calculated on a monthly basis on the last day of each month. Payments due to the Client are processed on the 15th of each month one month in arrears. For example, payments calculated from December 1st through December 31st will be processed until January 15th. DaoTec will deliver its payments to Client as promptly as is practicable after processing, but depending on the country of origin of the turnovers, payment dates may vary according to the actual pricelist. Payouts to the Client will be done via wire transfers, paypal or check. The Client will have to pay all applicable transfer fees. The Client must supply DaoTec with a valid United Kingdom VAT-ID to become eligible to receive payments including VAT. In all other cases Client receives payments excluding VAT. Client is responsible to declare all taxes, especially the VAT, to Client's corresponding Ministry of Finance properly. For DaoPay Voice and SMS Services, local VAT is paid in the county where the payment has been made where applicable.
4.6 For payments via voice the minimum payout is equivalent to 50 EURO in order to receive a payout at the next due date. Payout is the calculated amount to be paid according to the percentages indicated in the pricelist.
4.7 For payments via SMS the minimum payout is equivalent to 100 EURO in order to receive a payout at the next due date. Payout is the calculated amount to be paid according to the percentages indicated in the pricelist.
4.8 In the case that this limit is not reached in one month the realised return will be carried over to the next month.
4.9 Limits for Voice and SMS are calculated separately.
4.10 If the Client uses separate balance bank accounts for different currencies these limits apply to each individual currency separately.
4.11 In case that the limits mentioned in point 4.6 and 4.7 are not reached by accumulating twelve consecutive months , DaoTec will charge the open balance as maintenance fees to settle the balance of the account. The account will not be cancelled by DaoTec even when the minimum turnover is not reached.
4.12 If the account is cancelled by the Client and the limits as described in point 4.6 and 4.8 are not reached then the same procedure as per point 4.11 applies.
4.13 Client is responsible for all risks associated with maintaining balances in multiple currencies (including, without limitation, the risk that the value of these Balances will fluctuate as exchange rates change, which over time may result in a significant decrease in the value of the balances). Client agrees that he will not attempt to use multiple currencies for speculative trading.
4.14 If one of the currency balances in Clients account shows that you owe us an amount of funds for any reason, DaoTec may set-off the amount Client owe DaoTec by using funds Client maintain in a different currency balance or by deducting amounts Client owe DaoTec from money Client receive into his account, or money Client has in a different account. If, for a period of 7 days, Client have a balance that reflects an amount owing to DaoTec that is not in EURO, DaoTec will convert the amount you owe DaoTec to EURO (the Exchange Rate & Fee will be applied to any conversion).
4.15 If due to wrong information?s given by the client, DaoTec is unable to transfer funds to the customer (wrong bank account, wrong paypal account, unknown postal address for cheque payments or similar), the client will be charged with all transfer charges and a one time service charge of 40 EURO. All future payments will be withheld until the client confirms the correction of the wrong data.
4.16 In case of payments by cheque, DaoTec refuses all liability for misuse like, but not limited to misuse, loss of money or stolen cheques. The client accepts full responsibility for all losses that can occur by the use of cheques.

5. Client closing his account
5.1 Client may close his Account at any time by logging in to the Control Center, clicking on the ?Close Account? link and then following the instructions. Upon Account closure, DaoTec will cancel any pending transactions and stop the provisioning of Services immediately. The outstanding funds will be transferred to the Client at the usual dates as long as the limits as described in point 4.6 and 4.7 are reached.
5.2 Client may not close his Account to evade an investigation. If you attempt to close your Account while DaoTec is conducting an investigation, we may hold Client funds for up to one year to protect DaoTec or a third party against the risk of Reversals, Chargebacks, claims, fees, fines, penalties and other liabilities. Client will remain liable for all obligations related to Client?s Account even after the Account is closed.
5.3 Subject to the remainder of this section, funds held in Clients Account are not subject to any time limitation as to its validity. If Client does not access his Account for a period of 3 years by logging in DaoTec reserves the right to close the account. After closure, we will use the information you have provided us to try to send you any funds which reach the limits as described in point 4.6 and 4.7 in redemption of the funds in your Account. If that information is not correct and DaoTec is unable to complete the payment to you DaoTec will use reasonable effort to get hold of your current contact information. If these efforts fail the remaining funds will be charged by DaoTec as maintenance fees and the account balance of will be set to zero.


6. Support for Clients Customers
6.1 Client has to take care of a reasonable Customer Support for his Customers.
6.2 If a unreasonable amount, defined as 5% or more complaints in relation to Clients transactions on DaoPay, of Customers complain about the service quality of the Client for incidents like, but not limited to: (i) non delivery of ordered product (ii) erroneous or non working product (iii) improper description of product (iv) non working downloads (v) non responsive customer Support of Client or any other activity which leads to an abnormal increase of incidents at the DaoPay Customer Support DaoTec reserves the right to charge an amount of 30 EURO or equivalent per incident.


7. Refund Policy for DaoPay
DaoTec will use commercially reasonable efforts to direct inquiring and complaining Customers to utilize the Customer Support services offered by Client in order to resolve all disputes and complaints, however, DaoTec reserves the right to issue a refund without the knowledge or consent of Client in any case that it deems appropriate.


8. Regulation Authorization, Client Representations
Client represents and warrants that it is legally authorized and has obtained all necessary regulatory approvals and certificates to provide any of its services he intends to offer. Client further represents and warrants that it will comply at all times with all applicable federal, state/provincial, or local laws, rules and regulations including any applicable card association or Automated Clearing House rules. Client is fully responsible for the content of its Web site and for the advertising and promotion of all of Client's products or offerings. Client represents and warrants to DaoTec that it is the owner or that it has full right and authority to use and disseminate all information, data, graphics, text, video, music or other intellectual property which either forms a part of its Web site, which is provided by Client to Customers, or which is used by Client in its advertising and promotion to Customers.


9. Confidentiality, Intellectual Property
9.1 DaoPay services and all information and documentation relating thereto shall be held in confidence by Client and may not be used by Client (other than for the furtherance of the purposes of the Agreement) nor disclosed to third parties without the prior written consent from DaoTec. This includes the discovery of any errors or omissions in the services. Notwithstanding anything in this Agreement to the contrary, either party may disclose to third parties the fact that Client is using DaoPay services. Client recognizes that the services and documentation are and contain the valuable, confidential and trade secret information of DaoTec.
9.2 All rights, including but not limited to patents, trademarks, service marks, copyrights and any other intellectual property rights shall remain the exclusive property of DaoTec and/or its licensors.
9.3 The Client shall procure that its employees, agents and sub-contractors comply with this article.

10. License to use DaoPay
10.1 Via this document DaoTec affords a non-exclusive licence to the Client so that he/she may establish links to DaoPay from his/her Websites, with the aim of allowing end users to make payments.
10.2 The link to DaoPay will always be established in accordance with the instructions issued by DaoTec.
10.3 The licence to use DaoPay is limited expressly to the payment of amounts via telephones from customers having a valid contract/pre paid service directly with an operator or reseller.
10.4 The geographical coverage of this licence is worldwide.
10.5 Without prejudice to the rights for termination outlined within this agreement, the DaoPay License is granted for an initial period of one (1) month, beginning with the acceptance by DaoTec of the Application Form. Once this initial period has passed, the licence will be extended automatically for successive one month periods. In case where either DaoTec or the Client expresses the wish not to continue to extend the licence, communicated with at least seven (7) days notice to the other party before the end of the initial period or subsequent extensions to that initial period, or the Client or DaoTec terminate this Agreement, the license will immediately be terminated.
10.6 Once the Client agrees to implement DaoPay in order to give access to specific services on his web site, he/she agrees to the following:
(i) To condition the access to those contents on the use of DaoPay.
(ii) To inform Customers of the need to pay via DaoPay in order to access the services requested.
(iii) To inform Customers of the methodology of using DaoPay which include (i) the need to dial a PRN or other phone number or to send a Premium Rate SMS, along with the required content of the message and the number to which it must be sent, (ii) the cost of that message or phone number to the end user, (iii) the operators with whom the service is enabled (where this is in any way restricted) (iv) a detailed instruction of the steps to follow while inside the payment process (v) the need to finish payments before content can be accessed (vi) To include the current DaoPay logo next to the DaoPay link on the Clients website (vii) To include any extra legal information that DaoTec deems necessary, for example any Data Protection implications.
10.7 DaoTec reserves the right to reject any application without the need to justify the corresponding cause(s).


11. License for Software provided by DaoTec for DaoPay
In consideration for payment of any applicable fees, Client is granted a personal, non-exclusive, non-transferable license to use the Software, in object code form only, solely in connection with the Service (the "License"). Client shall not: (i) attempt to reverse engineer, decompile, disassemble or otherwise translate or modify the Software in any manner; or (ii) sell, assign, license, sublicense or otherwise transfer, transmit or convey Software, or any copies or modifications thereof, or any interest therein, to any third party. All rights in the Software, including without limitation any patents, copyrights and any other intellectual property rights therein, shall remain the exclusive property of DaoTec and/or its licensors. Client agrees that the Software is the proprietary and confidential information of DaoTec and/or its licensors subject to the provisions of Section 14 ("Confidentiality, Intellectual Property") above. The License shall immediately terminate upon the earlier of: (i) termination or expiration of this Agreement; (ii) termination of the Service(s) with which the Software is intended for use; or (iii) failure of Client to comply with any provisions of this Section. In addition, Client is entitled to use and adopt source code explanatory to API programming provided by DaoTec for implementation purposes and agrees not to disclose, give away, or use these codes in any other way.

12. Taxes
The Client is fully responsible for and agrees to pay all taxes and other charges imposed by any government authority on the services provided under this Agreement and on any transactions processed pursuant to this Agreement.


13. Limitations of Liability
DAOTEC ASSUMES NO LIABILITY FOR DISRUPTIONS OR IMPROPER OPERATION OF THE SERVICE FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, VANDALISM, THEFT, PHONE SERVICE OUTAGES, INTERNET DISRUPTIONS, EXTREME OR SEVERE WEATHER CONDITIONS OR ANY OTHER CAUSES IN THE NATURE OF "ACTS OF GOD" OR FORCE MAJEURE. DAOTEC SHALL NOT BE RESPONSIBLE FOR CONSEQUENTIAL DAMAGES OR PUNITIVE OR EXEMPLARY DAMAGES UNDER ANY CIRCUMSTANCES. IN NO CASE SHALL CLIENT BE ENTITLED TO RECOVER DAMAGES FROM DAOTEC WHICH EXCEED THE SUM OF THE AMOUNTS OF FEES RETAINED BY DAOTEC UNDER THIS AGREEMENT DURING THE ONE MONTH PRIOR TO THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES.

 
14. Disclaimer of Warranties
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, DAOTEC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY DAOTEC SERVICES, RELATED PRODUCTS, SOFTWARE OR DOCUMENTATION. DAOTEC SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

15. Term
The term of this Service Agreement shall be for 12 months beginning upon registration by Client and subsequent acceptance by DaoTec, and may be cancelled monthly in writing no less than 30 days before. The Agreement automatically renews itself at the end of each consecutive 12 month period unless DaoTec receives written notice of non-renewal from Client no less than 30 days prior to the expiration of such 12 month period. DaoTec reserves the right to terminate this Agreement without cause upon 30 days prior notification to Client. DaoTec may further terminate this Agreement immediately without notice at any time Client breaches any part of this Agreement or if any license as mentioned in point 10 or 11 is terminated.
 
16. General Terms
16.1 Any claim arising out of or related to this Agreement must be brought no later than one year after it has accrued. The invalidity or non-enforceability of any provision of this Agreement, as so determined by a court of competent jurisdiction, shall not affect the other provisions hereof, and in any such occasion this Agreement shall be construed in all respects as if such invalid or non-enforceable provision were omitted.
16.2 If another person or entity makes a claim against funds in Client's account, or if DaoTec has reason to believe there is or may be a dispute over matters such as ownership of the account or the authority to receive payment, or make changes to the account, DaoTec may, in its sole discretion, (1) continue to rely upon current DaoPay documents; (2) honour the competing claim upon receipt of evidence DaoTec deem satisfactory to justify such claim; (3) freeze all or part of the funds until the dispute is resolved to the satisfaction of DaoTec; or (4) pay the funds to an appropriate court of law for resolution.
16.3 No Amendment or modification of this Agreement shall be valid unless same is in writing and signed by all parties hereto.
16.4 DaoTec may amend this Agreement at any time at its discretion.
16.5 DaoTec will inform the Client of such changes by making it available upon a web page located on the internet.
16.6 Unless Client rejects the changed Agreement and terminates this Agreement within 15 days after DaoTec publishes the changed Agreement on the internet, the changed Agreement shall replace this Agreement and shall be in full force and effect.
16.7 The rights and obligations of the parties hereunder which by their nature would continue beyond the termination or cancellation of this Agreement (including, without limitation, those relating to confidentiality, payment of charges and limitations of liability) shall survive any termination or cancellation of this Agreement.

17. Assignment and Subcontracting
17.1    DaoTec shall have the right to assign and/or transfer this Agreement and its rights and obligations hereunder to any third party.
17.2    The Client shall not assign or transfer its rights or sub-contract or delegate the performance of any of its obligations under this Agreement without the prior written consent of DaoTec.

18. Force majeure
18.1 DaoTec shall not be bound to meet any obligation if prevented from doing so as a consequence of force majeure, including but not limited to any failure in the performance of an obligation of any supplier of DaoTec, fire, measures taken or imposed by any government or any other event beyond the control of DaoTec. DaoTec will use reasonable efforts, under the circumstances, to immediately notify Merchant of the circumstances causing the delay and to resume performance as soon as possible.
18.2 If a situation of force majeure has lasted for more than 2 months, both DaoTec and Merchant shall have the right to terminate the Agreement immediately.

19. Indemnification
Client agrees to indemnify and hold harmless DaoTec, its employees, officers, agents, and directors from any and all fines, penalties, losses, claims, expenses (including attorney fees), or other liabilities resulting from or in connection with this Agreement. DaoTec assumes no liability of Client for failure to comply with this Agreement and any results caused by the acts, omissions or negligence of Client, sub-contractor or an agent of Client or an employee of any one to them, including, but not limited to, claims of third parties arising out of or resulting from or in connection with Client's products or services, messages, programs, caller contracts, promotions, advertising, infringement or any claim for libel or slander or for violation of copyright, trademark or other intellectual property rights. DaoTec may deduct the above described fines, penalties, losses, claims, expenses (including attorney fees), or other liabilities from the proceeds of Client's sales or, if the amount is not sufficient invoice Client these amounts.

20. Independent contractors
20.1 The Agreement is not intended to and shall not be interpreted to create a joint venture or partnership or formal business entity of any kind between or among DaoTec and Client. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose and neither Party shall have any authority to bind the other Party.
20.2 DaoTec shall not become a party to the contractual relationship between Client and Customer and will have no direct or implied relationship with a Customer.

21. Procedure for contracting and accepting this Agreement
21.1 For this contract to be binding for both parties, the Client must have (i) given correctly the necessary information at the Control Center, (ii) be able to successfully log in to the Control Center (iii) Accepting this Agreement inside the Control Center
21.2 These Agreement will only be binding once the above three conditions have been met.
21.3 Once the Agreement between the parties is accepted, DaoTec will store the information the Clients has entered in the Control Center.
21.4 The Client guarantees that all information?s provided are true and are maintained by the Client and hold up to date. In the case where information supplied by the Client is erroneous or not up to date, the Client immediately has to update the erroneous information in the Control Center
21.5 This contract is written in English.
21.6 The Client agrees that Client has read, understands, and agrees to abide by this Agreement, and any documents incorporated by reference, and Client agrees that Client intends to form a legally binding contract; and that this Agreement constitutes "a writing signed by Client" under any applicable law or regulation. Any rights not expressly granted herein are reserved by DaoTec Ltd.
21.7 Any and all notices to DaoTec, or other communications under or with respect to this Agreement to DaoTec, shall be in writing, and shall be delivered by hand; mailed postage pre-paid, either by registered or certified mail, return receipt requested; or by overnight courier to: DaoTec Ltd, Attention: Legal Department 145-157 St. John Street, London EV1V 4PY, United Kingdom

22. Severability
lf any one or more of the provisions of this Agreement shall be invalid, illegal or unenforceable in any event the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired and shall be valid and enforceable to the fullest extent permitted by law.

23. Non Exclusive
The Client shall not have an exclusive right to use the Service and the Company is entitled to make similar Agreements directly or indirectly with other parties.

24. Waiver
No failure, delay or indulgence by either party in enforcing any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise or waiver of any right, power or privilege preclude or restrict any further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided are cumulative and not exclusive of any rights and remedies provided by law.

25. Entire Agreement
The parties acknowledge that this Agreement and the actual pricelist published on www.daopay.com constitutes the entire Agreement of the parties and supersedes and cancels any statements, warranties or representations whether written or otherwise made by the Company or any officer, employee or agent of the Company prior to the date hereof.

26. Rights of Third Parties
No term of this Agreement shall be enforceable solely by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement.

27. Governing Law and Disputes
This Agreement shall be governed, construed and shall take effect in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the English courts over any claim or matter arising under or in connection with this Agreement or the legal rights established by this Agreement and the venue for any action, dispute or proceeding with respect to this Agreement shall be London, UK.


Agreement for DaoPay Services

Version 1.1
01.10.2007