Cashlog

 

1. GENERAL PROVISIONS 

 

Cashlog is a service operated by Buongiorno S.p.A. with its registered office address at Borgo Masnovo, 2 Parma, Italy (hereinafter “Buongiorno”) accessible from the URL www.cashlog.com .
The aim of Cashlog is to enable the supply of Digital Goods to End Users and the payment via an online micropayment solution on the End Users mobile phone or internet connected device.
This document explains how the agreement between you (hereinafter also referred to as “Merchant”) and Buongiorno is made up and sets out some of the terms of that agreement.
Buongiorno Group has subsidiaries and affiliated legal entities around the world (hereinafter “B!SS”). Sometimes, these companies will be providing the Service to you on behalf of Buongiorno itself. You acknowledge and agree that B!SS will be entitled to provide the Service to you.

1. DEFINITIONS
Agreement: these Terms & Conditions and any annex thereto and any additional Buongiorno terms provided;
Application Form or Web Site Form: the form made available by Buongiorno on Cashlog website or directly to the Merchant to be used to register to Cashlog filled in by the Merchant providing details of services, website and options of use of Cashlog.
B!SS: any of the subsidiaries of Buongiorno which provides the Service in the relevant Territory and has an agreement with local Telecommunication Operators for mobile payment and billing solution; Cashlog or Service: a service operated by Buongiorno and its subsidiary companies of the Buongiorno Group consisting of technical and management services as described in this Agreement; Code of Practice: all codes of practice, graphic charts, ethic charts or codes or recommendations, resolutions, guidelines, directions, policies, and other requirements issued by any regulatory bodies, association or syndicate of the market operators or the Telecommunication Operator (or association of Telecommunication Operators) which apply in each country of the Territory in respect of the Digital Goods and provided by the Merchant and Cashlog; Digital Goods: any and all digital goods and/or digital services, as applicable, provided by the Merchant to End Users pursuant to this Agreement.
End User: the purchaser of Digital Goods or Services of the Merchant; Intellectual Property Rights: patents, trademarks, service marks, design rights (whether registerable or otherwise), applications for any of the foregoing, copyright (including rights in computer software), semi-conductor chip topography rights, database rights, trade or business names, logos, brand names, devices and know-how, domain names and other similar rights, obligations, title, interest or otherwise whether registerable or not in any country globally including all registrations, applications, renewals, extensions, continuations, divisions and re-issuances associated therewith; Platform: the technological platform of Buongiorno to connect the Merchant technology to Cashlog and to the Telecommunication Operators systems used for managing the Service and the Transaction report; Reserved Area: the part of the Cashlog website accessible to the Merchant only where the Merchant will be provided the services described under article 3.2.3; Telecommunication Operators: the telecommunication companies licensed to exploit a radio communication network and which provide payment and billing services; Territory: any country where Cashlog will be available and to which this Agreement will apply as opted by the Merchant in the Application Form or further in the Reserved Area; Transaction: the registered and cleared purchase of a Digital Good by the End User; Trial Period: the initial period of deployment of the Service as described under article 3.3 here below.

2. REGISTRATION PROCEDURE
Prior to any use of the Service, the Merchant is required to register with Cashlog by completing the Web Site Form or alternatively the Application Form can be sent by post or email, if so requested.
The Merchant shall:
a) complete the required Application Form to open a Cashlog account, providing accurate information that is to be kept regularly updated by the Merchant;
b) click to accept or agree to the Terms & Conditions and Privacy Policy, where this option is made available to you by Buongiorno in the user interface for the Service;
c) upon receipt of an email confirmation from Buongiorno to follow the instructions contained in the email to validate the registration process.
The Merchant cannot be an individual. Only an existing operating company can open up and maintain an account, register with Cashlog and use the Service.
Each Merchant can only open one account, unless the prior written approval of Buongiorno has been granted on each occasion.
The Merchant undertakes that all data supplied in the Application Form are and shall remain accurate, up to date and complete through the duration of this Agreement. Should the Merchant provide inaccurate, out of date or incomplete data and information, Buongiorno reserves the right in its sole discretion to suspend or terminate the Merchant’s account with immediate effect until such time as Merchant has rectified such data or information and Buongiorno is satisfied of the same.

3. OBJECT - SERVICES
3.1. This Agreement shall rule the relation between Buongiorno and its subsidiaries and the Merchant wishing to register with Cashlog and sets out the roles and obligations of each party when utilising the Service.
3.2. In order to facilitate the Service Buongiorno shall supply the following:
3.2.1 arrange and manage agreements with Telecommunication Operators that will enable the Digital Goods purchasing by End Users through micropayments solution via their mobile phone;
3.2.2. supply a purchase report containing data of End Users purchases of Digital Goods;
3.2.3. provide and manage on the Cashlog website the Reserved Area where the Merchant can:
i. view all purchase Transactions of End Users;
ii. view the reports of Transactions relevant for invoicing;
iii. manage Merchant account data and information; and
iv. contact Buongiorno regarding any technical and commercial matters.
3.2.4. to integrate Cashlog technological Platform in order to establish a connection with Telecommunication Operators and the Merchant’s technology for managing the Transaction report.
3.3. Trial Period
3.3.1. Once the Merchant has supplied all of the relevant data and information requested to open a Cashlog account, the Agreement shall start with a Trial Period where Transactions are virtual and therefore do not generate any charge to End Users or any consideration for Merchant.
3.3.2. At the end of the Trial Period, Buongiorno still reserves the right to approve the Merchant. The prior written approval by Buongiorno of the Merchant shall be confirmed through an e-mail or through the Reserved Area of the Cashlog website and until such time no agreement shall have been entered into between Buongiorno and the Merchant.
3.3.3. Notwithstanding any approval in accordance with the above Buongiorno shall from time to time monitor the Digital Goods supplied by the Merchant.
3.3.4. If Buongiorno does not approve the Digital Goods (in whole or part), the Agreement shall not be considered valid and effective for the provision of such Digital Goods supplied by Merchant.
3.3.5. In particular, when the Merchant requests the integration of Digital Goods or Digital Goods supplied under subscription, Buongiorno reserves the right to evaluate the consistency and details related to the above Digital Goods and express indisputable evaluation about the possibility to integrate it within Cashlog according to the present Agreement.

4. CONSIDERATION AND TERMS OF PAYMENT
4.1. Consideration
4.1.1 Buongiorno shall pay to the Merchant the payout on the Digital Goods End User price, deducted of applicable VAT or other governmental taxes, as set out in Annex 1 – Commercial Schedule attached hereto and being integrant part of this Agreement.
4.1.2. Notwithstanding the above no other sum or compensation may be requested by the Merchant in relation to or in any way connected to this Agreement. It is agreed that the amounts indicated are all-inclusive and constitute the only, non-accruable payment for the full and complete exercise of all of the rights and obligations attributed to Buongiorno in accordance with this Agreement.
4.1.3. Buongiorno or any B!SS shall not be obliged to make any payment to the Merchant for which Buongiorno or the Telecommunication Operator does not receive payment regardless of the reason for such non-payment. Payment will only be made or will become due to the Merchant with respect to Digital Goods which are (a) successfully delivered to End Users; and (b) successfully billed by the Telecommunications Operators; and (c) for which payment has been received by the relevant B!SS and (d) for which no refund has been made to an End User; and (e) for which no miscalculation of the revenues has been made. For the avoidance of doubt if a shortfall exists due to bad debt, billing problems, miscalculation or otherwise, the shortfall will be deducted from the overall revenue due or, if applicable, in any subsequent payments even if such revenue has been paid to the Merchant in a previous payment.
4.2. Financial report and reconciliation procedure
4.2.1. For each Territory, Buongiorno and each relevant B!SS shall submit to the Merchant the calculated revenue share for the preceding calendar month indicated in the currency in which it was paid by the End User and which shall also be available on the Reserved Area, based on the End Users purchase and payment Transactions registered on the Platform within the preceding month following the month of reference (the “Settlement Report”).
4.2.2. At the end of each month, Buongiorno and each B!SS shall send the Merchant an email containing the Settlement Report or the notice that the Settlement Report is available on the Reserved Area. The Merchant shall within 20 (twenty) days raise any queries on the Settlement Report in writing and provide any supporting documentation, otherwise it will be considered accepted.
4.2.3. If the issue reveals a discrepancy between the number of Transactions registered in the Settlement Report and Transactions registered by the Merchant, the payments related to the sums questioned shall be temporarily suspended in order for the issue to be settled by the Parties.
4.2.4. If following submission of all relevant supporting documentation the Parties still cannot agree on the figures set out in the Settlement Report, the sums in dispute can then go on to be valued by a technical commission composed of 2 (two) representatives of each Party and any applicable Telecommunication Operator within 60 (sixty) days from the date of such written request to do so.
4.2.5. Any agreed discrepancies shall be invoiced in the following month.
4.3. Telecommunication Operators Reconciliation
Buongiorno and B!SS may be able to modify the Settlement Report according to Transactions submitted in writing to B!SS from the applicable Telecommunication Operators.
4.4. Invoicing and Value
4.4.1. Once the Settlement Report is approved by the Merchant or following 20 (twenty) days after the reconciliation as described above, Buongiorno and each B!SS shall submit to the Merchant an official report for the relevant Territory for the invoicing of the same (“Invoice Report”). 4.4.2. The Merchant can issue a valid invoice to Buongiorno and each B!SS for each relevant Territory following receipt of the relevant Invoice Report, replicating all of the ID’s set out in the Invoice Report(s) for which payment is due. The Merchant is permitted to issue an invoice only for payments in excess of €250 (two hundred and fifty Euro) per each invoice, otherwise the payment shall be cumulated with the following month (or subsequent month) provided it is within the minimum amount of €250 (two hundred and fifty Euro).
4.4.3. Upon termination of this Agreement, for whatever reason, Buongiorno shall pay any undisputed sums due within 90 (ninety) days from such termination. The valid invoices should be issued to Buongiorno or, alternately, to the Merchant and with the monetary value set out in the Reserved Area.
4.5. Payment
The sums due shall be paid by Buongiorno and each B!SS to the Merchant according to standard Payment terms described in Annex 1 for each country, through bank transfer to the Merchant bank account set out in the Reserved Area provided B!SS have received the payment of its revenues concerning the Transactions from the applicable Telecommunications Operators.
4.6 Taxes
4.6.1. For the avoidance of doubt, Buongiorno and the B!SS and the Merchant (as applicable) shall collect and remit to the competent tax authorities any sales, use, goods and services, value added, or other similar tax, for sales of the Digital Goods to End-Users located in the Territory.
4.6.2. If applicable law requires the B!SS to withhold any income taxes levied on payments to be made pursuant to this Agreement (following referred to as "Withholding Tax"), the B!SS shall levy the Withholding Tax as per ordinary local rules and Buongiorno shall be entitled to deduct such Withholding Tax from the payments due to the Merchant hereunder.
4.6.3. If a Double Taxation Avoidance Treaty (following referred to as “DTA”) is applicable, the B!SS shall apply the reduced Withholding Tax rate provided for in the applicable DTA. The B!SS shall apply the DTA rate only if, before the first payment and for every fiscal year, the Merchant shall provide the B!SS with:
i. a copy of a tax residence certificate issued by the local Tax Authority;
ii. a copy of the certification of identification of the effective beneficiary;
iii. a copy of certification of the verification of non – possession of a permanent organization in Italy; and
iv. any other document as required by the applicable law or regulation.
4.6.4. If applicable, the B!SS shall promptly effect payment of the Withholding Tax to the appropriate tax authorities and shall transmit to Merchant receipts or other evidence sufficient to enable Merchant to support a claim for income tax credits in its place of establishment.
4.6.5. The Parties agree to cooperate in all respects necessary to take advantage of reduced Withholding Tax rates available under any applicable tax treaties.

5. MERCHANT WARRANTIES AND OBLIGATIONS
5.1. The Merchant undertakes to provide Buongiorno, on completing the Application Form, the following information:
• registered Merchant name
• registered office address
• trade name (if different from above)
• product area
• corporate web site
• business address
• telephone number
• email address
• name, surname, birth date of the legal representative
• Merchant logo(s)
• customer care e-mail or telephone number (including local operating times/days – specifying all manual operational days/hours)
• bank account information (Bank name, IBAN code, account holder, country)
• any other information requested of the Merchant
5.2. Throughout the term of this Agreement the Merchant is solely responsible for the publishing of its own website(s) and of any contents published or Digital Goods offered within such website(s). The Merchant undertakes to respect the rights of others, in particular to respect individuals and human dignity, personality rights such as image rights and the right to privacy; intellectual property rights, namely trademark rights and any copyright.
5.3. The Merchant certifies that it holds and will continue to hold throughout the term of this Agreement all the necessary authorizations required to supply the Digital Goods, to operate and manage its website(s) and the advertising and communications on the website(s) in full compliance of any applicable law, statute, regulation and Code of Practice.
5.4. The Merchant undertakes not to throughout the term of this agreement make available to the public on any pages dedicated in whole or part to Cashlog, on the Reserved Area and within the Digital Goods, anything which is contrary to public order, law or common decency; or is directly or indirectly insulting, defamatory, racist, xenophobic, homophobic, revisionist or injurious; anything which incites suicide, violence, prostitution, pedophilia or exploitation of persons under 18 years of age; any content offering or proposing online gambling or betting services not authorized under current regulation.
5.5. Throughout the term of this agreement the Merchant undertakes not to use Cashlog Service in whole or part on behalf of any third party and in particular on behalf of any website of which the Merchant is not the publisher.
5.6. The Merchant undertakes not to use, copy or register either the Cashlog or Buongiorno name or trademarks or any similar to the same whether during the term of this Agreement or at anytime thereafter.
5.7. The Merchant undertakes not to commit any acts and/or omissions which could bring into disrepute or denigrate Buongiorno’s name and the Cashlog Services. In particular, the Merchant undertakes not to alter or modify the functioning of the Platform and to respect all constraints and instructions regarding any integration with the same.
5.8. The Merchant declares and undertakes that the sale, packaging, delivery, communication and promotion of any Digital Goods – in particular in respect of the “End User’s experience” - shall be in full compliance with all and any applicable law, statute and Code of Practice as updated or amended.
5.9. The Merchant warrants to have and to maintain all the rights necessary to comply with the obligations of this Agreement and to have sole liability for the Digital Goods offered to End Users, undertaking that such Digital Goods and its website are not and shall not be unlawful or contrary to any public order, public security, data protection law, confidentiality and the safeguard of minors as well applicable Codes of Practice.
5.10. The Merchant has sole liability for all and any Digital Goods, undertaking that it corresponds in nature, quality and quantity to the offer proposed to End Users and therefore modify, replace and supply Digital Goods to End User when the latter requests it because of defect of the Digital Goods. In order to do so, Merchant undertake to provide on the Merchant’s own website, all contacts necessary to manage End Users requests’ related to the Digital Goods use easily and continuously available to the End User. When Digital Goods are offered under subscription, Merchant shall manage the customer care giving Buongiorno prompt communication of the subscription deletion.
5.11. The Merchant warrants and undertakes that Digital Goods can be freely used according to the present Agreement because he has obtained and currently held, valid and sufficient rights, including rights in any third party intellectual property.
5.12. In case of any legal proceedings or arbitration involving Buongiorno, a B!SS and/or a Telecommunication Operator, caused by a breach of any warranties of the Merchant herein, the Merchant undertakes in full and on demand to defend, indemnify and hold harmless Buongiorno, its B!SS and the Telecommunication Operators, also requesting an exclusion in any legal proceedings from any damage and costs, including legal. It is agreed that Buongiorno, a B!SS and/or Telecommunication Operators can decide in their own discretion to take part in any such legal proceeding, negotiations or the appointing, at the Merchant’s costs, own attorneys or representatives.
5.13. If any court or authority state that any Digital Goods supplied by the Merchant are considered, in whole or in part, an infringement of third parties rights or become illegal or impossible, Merchant undertakes to modify or replace such Digital Goods immediately, in order to remove the infringement, maintaining warranties and indemnification obligation to Buongiorno, B!SS and/or Telecommunication Operators.
5.14. Where any Digital Goods are offered under a subscription service, the Merchant undertakes to provide such Digital Goods regularly and in compliance with the terms and conditions supplied to the End User once the subscription is activated and throughout the terms of any applicable terms and conditions between the Merchant and the End User. Furthermore the Merchant undertakes not to change autonomously the conditions pursuant to the subscription service without the prior written approval of Buongiorno and/or the Telecommunication Operators and/or any applicable third parties as confirmed in writing by Buongiorno. Buongiorno shall be at liberty to supply particular guidelines related to the management of subscription services and the subsequent communications.
5.15. Buongiorno shall have the right at any time throughout the term of this Agreement to interrupt, suspend and/or terminate the Service supplied in whole or part, by giving Merchant a previous written notice by e-mail, in case of breach by Merchant of any obligations set out herein or for any causes determined by Telecommunication Operators, following the escalation procedure here below.
5.15.1. In the event that Buongiorno becomes aware that the Digital Goods or the website of the Merchant or any part thereof does not comply with laws or regulations or Codes of Practice or infringes third party rights or is contrary to any B!Group Code of Conduct, Buongiorno will promptly give written notice (also via e-mail) to the Merchant assigning a 2-day term to remedy. In default of remedy by the Merchant within the assigned 2-day term, Buongiorno will have the right, without further notice, in its sole discretion and without liability, to immediately suspend the Service and/or the Merchant connection to Buongiorno Platform and/or deny the access to the Reserved Area until such time as the matter has been rectified.
5.15.2. In case the Merchant will not implement a final and effective remedy in the 3 days following the term indicated above, Buongiorno will have the right to terminate this Agreement with immediate effect, in its sole discretion and without liability.

6. BUONGIORNO OBLIGATIONS AND WARRANTIES
Buongiorno undertakes during the term of this Agreement to:
6.1.1. use all reasonable endeavours to provide the Service in compliance with market standard; in particular Buongiorno undertakes to use all reasonable endeavours to supply, install and maintain the technological interface necessary to correctly manage End Users requests (activation/identification/deactivation of the Service), as well as the connection with the Telecommunication Operators;
6.1.2. not intentionally infringe any patent, copyright, trademark or industrial secret or any third party rights;
6.1.3. supply first level customer care service to End Users for matters strictly connected to mobile billing in connection with Cashlog; and
6.1.4. supply technical support in case of problem linked to micropayment solution with End Users mobile phone;
6.1.5. cooperate with the Merchant providing copies of the relevant Codes of Practice and B!Group Code of Conduct.

7. LIMITATION OF LIABILITY AND INDEMNIFICATION
7.1 Liability of Digital Goods
7.1.1. Buongiorno and B!SS shall not to the fullest extent permitted by any applicable law be liable if the Digital Goods (or the marketing of same) which the Merchant supplies or makes available to the End User pursuant to this Agreement are not fully compliant with any applicable law, statute or Code of Practice or which is in any way defective or not usable by the End User whether in whole or part.
7.1.2. Buongiorno and B!SS shall not in any way be liable if any Digital Goods (in whole or part) do not correspond in nature, quality or quantity to any offer proposed to End Users by the Merchant. In addition Buongiorno, its B!SS or Telecommunication Operators shall not be held liable in respect of any Digital Goods (in whole or part) which shall include but not be limited to the Digital Goods not being delivered to End Users, are delayed, incomplete, no longer available or damaged.
7.1.3. Buongiorno and B!SS have no obligation to verify any compliance of Digital Goods (in whole or part) with any applicable law, statute or Codes of Practice or the accuracy and quality of the same, nor any liability for the use of Digital Goods by End Users and do not give any guarantee whatsoever to that effect. It is hereby agreed that Buongiorno and B!SS reserve the right in their sole discretion to request in writing at any time that any Digital Goods supplied by the Merchant be immediately suspended or cancelled (in whole or part).
7.2. Liability of Services
7.2.1. Except where expressly stated otherwise herein to the contrary Buongiorno, B!SS, its subsidiaries and the Telecommunication Operators do not accept liability under or in relation to this Agreement or arising out of the provision of the Service, even if advised of the possibility of such damages (and whether in relation to tort (including negligence), breach of contract, strict liability or otherwise, or any other liability) for: (a) loss of profits or sales; (b) loss of bargain; (c) loss of opportunity; (d) loss, interruption or delay of use of any Service in whole or part; (e) loss of time on the part of management or other staff; (f) professional fees or expenses (save legal fees resulting from any dispute, awarded by any court or tribunal of competent jurisdiction); (g) any indirect, special, incidental, exemplary, extraordinary, punitive or consequential damages of any kind howsoever arising except as expressly set out herein.
7.2.2. Nothing in this Agreement shall exclude or limit the liability of either Party for death or personal injury arising as a result of the other Party’s negligence or for any loss or damage from fraudulent misrepresentation, infringement of a third party’s intellectual property right or any fines or penalties imposed by any regulatory or governing body or Telecommunication Operator.
7.3. Indemnity
The Merchant will at all times and on demand defend, indemnify and hold harmless Buongiorno, B!SS, its subsidiaries, Telecommunications Operators and the relevant directors, shareholders, employees, successors and assigns from and against any and all third party claim, damage, liability, cost and expense, including reasonable legal fees and expenses, arising out of or related to a breach of any warranty, representation, covenant under this Agreement.
8. CONFIDENTIALITY
8.1.1. Each Party undertakes to keep confidential and not to disclose any information obtained under or in connection with this Agreement (“Confidential Information”) and will not, without the prior written consent of the other Party, disclose the Confidential Information to any person other than the Parties employees or professional advisers on a need to know basis.
8.1.2. The above confidentiality obligations will not apply to (a) any Confidential Information which has been publicly published; (b) information lawfully in the possession of the recipient before the disclosure under this Agreement took place; (c) information obtained from a third party who is free to disclose it; and (d) information that is required to be disclosed pursuant to a court order or some other body in authority in the jurisdiction provided that (where possible) the disclosing Party promptly informs the other of the requirement and takes all reasonable steps so as to disclose only that Confidential Information that is necessary and ensures that the Confidential Information remains confidential outside of the required disclosure.

9. INTELLECTUAL PROPERTY RIGHTS
9.1. All Intellectual Property Rights in and to Cashlog (including any and all adaptations, amendments, extensions and renewals thereof by all means and in all media whether now known or hereafter discovered or developed) belong exclusively to Buongiorno. The Merchant will not acquire any title, copyright or other proprietary rights in and to Cashlog, including any materials provided under the Cashlog Service in whole or part. Further, nothing in this Agreement shall be deemed to grant to the Merchant a licence in Buongiorno’s Intellectual Property Rights except as expressly set out herein.
9.2. In respect of either Party’s exploitation of the Service each Party shall accept that neither Party shall have any rights in respect of either Party’s Intellectual Property Rights including the goodwill associated therewith, and each Party hereby acknowledges that, except as expressly provided in this Agreement, no Party shall acquire any rights in respect thereof and that all such rights and goodwill are, and shall remain, vested exclusively in the Party so providing.
9.3. The Merchant agrees, at the expense of Buongiorno to take all such reasonable steps as Buongiorno may reasonably require assisting Buongiorno in maintaining the validity and enforceability of the Intellectual Property Rights of Cashlog and in assigning any rights Buongiorno may acquire to such Intellectual Property Right or any goodwill relating thereto to Buongiorno or its authorised nominee.
9.4. The Merchant warrants that it will not do or authorize any third party to do any act which would or might invalidate or be inconsistent with any of Buongiorno’s Intellectual Property Rights in respect of Cashlog and shall not omit or authorize any third party to omit to do any act which, by its omission, would have that effect or character.
9.5. The Merchant shall promptly and fully notify Buongiorno in writing of any actual, threatened or suspected infringement of any intellectual property relating to Cashlog which comes to the Merchant’s notice and the Merchant shall at Buongiorno’s request and expense do all such things as may be reasonably required to assist in Buongiorno taking or resisting any proceedings in relation to any such infringement or claim.
9.6. For the duration of this Agreement, the Merchant authorises and grants Buongiorno a worldwide non exclusive royalty free right to use the Merchant’s brand, logo, trade names and commercial signs for the purpose to make reference to the Merchant as client of Cashlog in any communication, advertising and promotion of Cashlog, on any support and by any means whatsoever, and to integrate them in the purchasing flow of Cashlog.

10. TERM
This Agreement shall be effective for a minimum period of 12 (twelve) calendar months from the end of the Trial Period and shall be automatically renewed for subsequent 12 (twelve) months periods unless terminated in accordance herein or by way of cancellation of the Merchant account on the Cashlog Website.

11. TERMINATION
Buongiorno may terminate this Agreement upon giving to the Merchant prior written notice by certified or registered mail, if the:
11.1.1. Merchant is in material or persistent breach of any of its obligations under this Agreement and has failed (in case of a remediable breach) to remedy that breach within 15 (fifteen) days of receipt of a written notice from Buongiorno requiring it to remedy that; and/or
11.1.2. Merchant files a petition for bankruptcy or is adjudicated bankrupt; and/or
11.1.3. Merchant becomes insolvent or makes an assignment for the benefits of its creditors pursuant to any bankruptcy law; and/or
11.1.4. a Telecommunication Operator decides in its sole discretion not to provide any services pertaining to this Agreement, whether in whole or part.
11.2.1. In addition to the above, either Party has the right to terminate this Agreement by giving 15 (fifteen) days prior written notice if the other Party commits a material breach hereof incapable of remedy.
11.3.1. Termination of this Agreement for whatever reason shall not affect the accrued rights of the Parties arising in any way out of this Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other. Clauses 5, 6, 7, 8, 9, shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.
11.3.2. Either Party has the right to terminate for convenience this Agreement unilaterally by notifying the other Party in writing giving no less than 60 calendar days prior notice to the proposed date of termination.

12. PERSONAL DATA PROCESSING
12.1. Personal data of End Users purchasing Digital Goods through any mobile phone or internet connected device may be collected. In such case personal data of any End User will be processed by the B!SS and/or the applicable Telecommunication Operator in compliance with any applicable data protection laws and shall likewise provide the privacy notice according to the applicable data protection law.
12.2. The Merchant shall perform at all times in full compliance with all applicable privacy and data protection laws and will be solely responsible for the collection, handling, archiving, transferring and disposal of personal data of End Users purchasing Digital Goods on its website.

13. FORCE MAJEURE
Neither Buongiorno, any B!SS nor any Telecommunications Operators shall be held liable for any failure or delay to meet its obligation under this Agreement as a result of a force majeure event or circumstances beyond its reasonable control, including but not limited to earthquakes, inundation, riot, uprising, strikes, including Merchant lockouts, delays in transport, death or injury of any employee, or agent of Buongiorno, B!SS, its subsidiaries nor Telecommunications Operators communication problems, network disruption or suspension, embargo, bans and prohibitions imposed by any authority or any acts and/or omissions on the part of any Telecommunication Operator.

14. ASSIGNMENT AND SUBCONTRACTING
Neither Party shall assign or transfer the present Agreement or its rights and obligations under this Agreement, in whole or in part, directly or indirectly, without the prior written consent of the other Party. Notwithstanding the above, Buongiorno is entitled to assign this Agreement and any right and obligation related to any Merchant within the Buongiorno Group of companies.
15. CODE OF CONDUCT
The Merchant guarantees that (i) it is aware of the B! Group Code of Conduct, published at the following web page: http://www.buongiorno.com, and (ii) will execute its obligations under this Agreement at all times in full compliance with the B! Group Code of Conduct.

16. SEVERABILITY
If any court of competent jurisdiction holds any provision of this Agreement invalid, illegal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect so as to leave the validity of the other provisions of this Agreement intact.

17. ENTIRE AGREEMENT
This Agreement, any offer and any other documents attached hereto, contains the whole agreement between the Parties and supersedes all previous and other arrangements between the Parties in relation to its subject matter.

18. RELATIONSHIP
Nothing in this Agreement shall be construed so as to give rise to any joint venture, partnership or relationship of employer and employee. Each Party is an independent contractor solely responsible for its own obligations and nor shall either Party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other Party.

19. AMENDMENTS
This Agreement or any part thereof may be modified or integrated at any time by Buongiorno. The Merchant undertakes to regularly check these Terms & Conditions. Any such amendment will have immediate effect upon date of publication. If the Merchant continues to use the Service under the amended Agreement, the amendments will be considered accepted in full by the Merchant.
20. NOTICES
Except as otherwise expressly specified herein, all notices, requests or other communications shall be in writing and shall be deemed to have been given if delivered personally or mailed, by certified or registered mail, postage prepaid, return receipt requested, email giving a receipt of display of the recipient of the message, to the Parties at their respective addresses set forth herein or in the Application Form. All notices, requests or communications shall be deemed effective upon personal delivery or 10 (ten) working days following deposit, first class postage prepaid, in the mail or on the day of dispatch by facsimile transmission to the facsimile number of the other Party or email to the email indicated by the other Party.

21. CONTRACTUAL PARTIES
This Agreement is executed by and between Buongiorno and the Merchant and any B!SS located in the Territory where the Merchant has requested Buongiorno to use the Cashlog Service and only the such Parties will be the intended beneficiaries of the relevant rights and obligations under this Agreement.
22. GOVERNING LAW AND JURISDICTION
22.1. This Agreement and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to it or its validity and its execution - shall be governed by and interpreted and construed in accordance with the laws of Italy. All disputes arising out of this Agreement and/or related to its validity and its execution shall be settled by an arbitration, according to the rules of arbitration of the International Chamber of Arbitration of Milan.


Annex 1 : Payout and Payments terms
The table above shows the Payout to Merchants and the Payments terms effective in each country.
These conditions refer to standard payouts and standard payments terms; special conditions can be negotiated on the basis of agreed KPIs (expected volumes, etc).

(*) Calculated as a percentage of End User Price, VAT excluded

When the merchant is established in one of these countries - Germany, France, Spain – and the merchant requires the Cashlog service exclusively for the territory where the merchant is established and for a website aimed exclusively to the market of the territory the merchant has opted, the following Terms & Conditions of the relevant territory will apply.


CASHLOG France
Merchant Terms & Conditions
Cashlog is a service operated by Buongiorno France S.A.S. with its registered office address at 10 rue Treilhard 75008 Paris France (hereinafter “Buongiorno”) accessible from the URL www.cashlog.com available for the End Users clients of Orange France, Bouygues Telecom and SFR.
The aim of Cashlog is to enable the supply of Digital Goods to End Users and the payment via an online micropayment solution on the End Users mobile phone or internet connected device.
This document explains how the agreement between you (hereinafter also referred to as “Merchant”) and Buongiorno is made up and sets out some of the terms of that agreement.

1. DEFINITIONS
Agreement : these Terms & Conditions and any annex thereto and any additional Buongiorno terms provided;
Application Form or Web Site Form: the form made available by Buongiorno on Cashlog website or directly to the Merchant to be used to register to Cashlog filled in by the Merchant providing details of services, website and options of use of Cashlog.
Cashlog or Service: a service operated by Buongiorno consisting of technical and management services as described in this Agreement;
Code of Practice: all codes of practice, graphic charts, ethic charts or codes or recommendations, resolutions, guidelines, directions, policies, and other requirements issued by any regulatory bodies, association or syndicate of the market operators or the Telecommunication Operator (or association of Telecommunication Operators) which apply in the Territory in respect of the Digital Goods provided by the Merchant and Cashlog;
Digital Goods: any and all digital goods and/or digital services, as applicable, provided by the Merchant to End Users pursuant to this Agreement.
End User: the purchaser of Digital Goods or Services of the Merchant;
Intellectual Property Rights: patents, trademarks, service marks, design rights (whether registerable or otherwise), applications for any of the foregoing, copyright (including rights in computer software), semi-conductor chip topography rights, database rights, trade or business names, logos, brand names, devices and know-how, domain names and other similar rights, obligations, title, interest or otherwise whether registerable or not in any country globally including all registrations, applications, renewals, extensions, continuations, divisions and re-issuances associated therewith;
Platform: the technological platform of Buongiorno to connect the Merchant technology to Cashlog and to the Telecommunication Operators systems used for managing the Service and the Transaction report;
Reserved Area: the part of the Cashlog website accessible to the Merchant only where the Merchant will be provided the services described under article 3.2.3;
Telecommunication Operators: the telecommunication companies licensed to exploit a radio communication network and which provide payment and billing services;
Territory: France metropolitan area;
Transaction: the registered and cleared purchase of a Digital Good by the End User;
Trial Period: the initial period of deployment of the Service as described under article 3.3 here below.

2. REGISTRATION PROCEDURE
Prior to any use of the Service, the Merchant is required to register with Cashlog by completing the Web Site Form or alternatively the Application Form can be sent by post or email, if so requested.
The Merchant shall:
a) complete the required Application Form to open a Cashlog account, providing accurate information that is to be kept regularly updated by the Merchant;
b) click to accept or agree to the Terms & Conditions and Privacy Policy, where this option is made available to you by Buongiorno in the user interface for the Service;
c) upon receipt of an email confirmation from Buongiorno to follow the instructions contained in the email to validate the registration process.
The Merchant cannot be an individual. Only an existing operating company can open up and maintain an account, register with Cashlog and use the Service.
Each Merchant can only open one account, unless the prior written approval of Buongiorno has been granted on each occasion.
The Merchant undertakes that all data supplied in the Application Form are and shall remain accurate, up to date and complete through the duration of this Agreement. Should the Merchant provide inaccurate, out of date or incomplete data and information, Buongiorno reserves the right in its sole discretion to suspend or terminate the Merchant’s account with immediate effect until such time as Merchant has rectified such data or information and Buongiorno is satisfied of the same.

3. OBJECT - SERVICES
3.1. This Agreement shall rule the relation between Buongiorno and the Merchant wishing to register with Cashlog and sets out the roles and obligations of each party when utilising the Service.
3.2. In order to facilitate the Service Buongiorno shall supply the following:
3.2.1 arrange and manage agreements with Telecommunication Operators that will enable the Digital Goods purchasing by End Users through micropayments solution via their mobile phone;
3.2.2. supply a purchase report containing data of End Users purchases of Digital Goods;
3.2.3. provide and manage on the Cashlog website the Reserved Area where the Merchant can:
i. view all purchase Transactions of End Users;
ii. view the reports of Transactions relevant for invoicing;
iii. manage Merchant account data and information; and
iv. contact Buongiorno regarding any technical and commercial matters.
3.2.4. to integrate Cashlog technological Platform in order to establish a connection with Telecommunication Operators and the Merchant’s technology for managing the Transaction report.
3.3. Trial Period
3.3.1. Once the Merchant has supplied all of the relevant data and information requested to open a Cashlog account, the Agreement shall start with a Trial Period where Transactions are virtual and therefore do not generate any charge to End Users or any consideration for Merchant.
3.3.2. At the end of the Trial Period, Buongiorno still reserves the right to approve the Merchant. The prior written approval by Buongiorno of the Merchant shall be confirmed through an e-mail or through the Reserved Area of the Cashlog website and until such time no agreement shall have been entered into between Buongiorno and the Merchant.
3.3.3. Notwithstanding any approval in accordance with the above Buongiorno shall from time to time monitor the Digital Goods supplied by the Merchant.
3.3.4. If Buongiorno does not approve the Digital Goods (in whole or part), the Agreement shall not be considered valid and effective for the provision of such Digital Goods supplied by Merchant.
3.3.5. In particular, when the Merchant requests the integration of Digital Goods or Digital Goods supplied under subscription, Buongiorno reserves the right to evaluate the consistency and details related to the above Digital Goods and express indisputable evaluation about the possibility to integrate it within Cashlog according to the present Agreement.

4. CONSIDERATION AND TERMS OF PAYMENT
4.1. Consideration
4.1.1 Buongiorno shall pay to the Merchant the payout on the Digital Goods End User price, deducted of applicable VAT or other governmental taxes, as set out in Annex 1 – Commercial and Payment Terms attached here above and being integrant part of this Agreement.
4.1.2. Notwithstanding the above no other sum or compensation may be requested by the Merchant in relation to or in any way connected to this Agreement. It is agreed that the amounts indicated are all-inclusive and constitute the only, non-accruable payment for the full and complete exercise of all of the rights and obligations attributed to Buongiorno in accordance with this Agreement.
4.1.3. Buongiorno shall not be obliged to make any payment to the Merchant for which Buongiorno or the Telecommunication Operator does not receive payment regardless of the reason for such non-payment. Payment will only be made or will become due to the Merchant with respect to Digital Goods which are (a) successfully delivered to End Users; and (b) successfully billed by the Telecommunications Operators; and (c) for which payment has been received by Buongiorno and (d) for which no refund has been made to an End User; and (e) for which no miscalculation of the revenues has been made. For the avoidance of doubt if a shortfall exists due to bad debt, billing problems, miscalculation or otherwise, the shortfall will be deducted from the overall revenue due or, if applicable, in any subsequent payments even if such revenue has been paid to the Merchant in a previous payment.
4.2. Financial report and reconciliation procedure
4.2.1. For the Territory, Buongiorno shall submit to the Merchant the calculated revenue share for the preceding calendar month and which shall also be available on the Reserved Area, based on the End Users purchase and payment Transactions registered on the Platform within the preceding month following the month of reference (the “Settlement Report”).
4.2.2. At the end of each month, Buongiorno shall send the Merchant an email containing the Settlement Report or the notice that the Settlement Report is available on the Reserved Area. The Merchant shall within 15 (fifteen) days raise any queries on the Settlement Report in writing and provide any supporting documentation, otherwise it will be considered accepted.
4.2.3. If the issue reveals a discrepancy between the number of Transactions registered in the Settlement Report and Transactions registered by the Merchant, the payments related to the sums questioned shall be temporarily suspended in order for the issue to be settled by the Parties.
4.2.4. If following submission of all relevant supporting documentation the Parties still cannot agree on the figures set out in the Settlement Report, the sums in dispute can then go on to be valued by a technical commission composed of 2 (two) representatives of each Party and any applicable Telecommunication Operator within 60 (sixty) days from the date of such written request to do so.
4.2.5. Any agreed discrepancies shall be invoiced in the following month.
4.3. Telecommunication Operators Reconciliation
Buongiorno may be able to modify the Settlement Report according to Transactions submitted in writing to Buongiorno from the relevant Telecommunication Operators.
4.4. Invoicing and Value
4.4.1. Once the Settlement Report is approved by the Merchant or following 15 (fifteen) days after the reconciliation as described above, Buongiorno shall submit to the Merchant an official report for the Territory for the invoicing of the same (“Invoice Report”).
4.4.2. The Merchant can issue a valid invoice to Buongiorno for the Territory following receipt of the relevant Invoice Report, replicating all of the ID’s set out in the Invoice Report(s) for which payment is due. The Merchant is permitted to issue an invoice only for payments in excess of €250 (two hundred and fifty Euro) per each invoice, otherwise the payment shall be cumulated with the following month (or subsequent month) provided it is within the minimum amount of €250 (two hundred and fifty Euro).
4.4.3. Upon termination of this Agreement, for whatever reason, Buongiorno shall pay any undisputed sums due within 90 (ninety) days from such termination. The valid invoices should be issued to Buongiorno or, alternately, to the Merchant and with the monetary value set out in the Reserved Area.
4.5. Payment
The sums due shall be paid by Buongiorno to the Merchant no later than 60 days from the date of receipt of the invoice of the Merchant through bank transfer to the Merchant bank account set out in the Reserved Area provided Buongiorno have received the payment of its revenues concerning the Transactions from the applicable Telecommunications Operators.
4.6 Taxes
4.6.1. For the avoidance of doubt, Buongiorno and the Merchant (as applicable) shall collect and remit to the competent tax authorities any sales, use, goods and services, value added, or other similar tax, for sales of the Digital Goods to End-Users located in the Territory.

5. MERCHANT WARRANTIES AND OBLIGATIONS
5.1. The Merchant undertakes to provide Buongiorno, on completing the Application Form, the following information:
• registered Merchant name
• registered office address
• trade name (if different from above)
• product area
• corporate web site
• business address
• telephone number
• email address
• name, surname, birth date of the legal representative
• Merchant logo(s)
• customer care e-mail or telephone number (including local operating times/days – specifying all manual operational days/hours)
• bank account information (Bank name, IBAN code, account holder, country)
• any other information requested of the Merchant
5.2. Throughout the term of this Agreement the Merchant is solely responsible for the publishing of its own website(s) and of any contents published or Digital Goods offered within such website(s). The Merchant undertakes to respect the rights of others, in particular to respect individuals and human dignity, personality rights such as image rights and the right to privacy; intellectual property rights, namely trademark rights and any copyright.
5.3. The Merchant certifies that it holds and will continue to hold throughout the term of this Agreement all the necessary authorizations required to supply the Digital Goods, to operate and manage its website(s) and the advertising and communications on the website(s) in full compliance of any applicable law, statute, regulation and Code of Practice.
5.4. The Merchant undertakes not to throughout the term of this agreement make available to the public on any pages dedicated in whole or part to Cashlog, on the Reserved Area and within the Digital Goods, anything which is contrary to public order, law or common decency; or is directly or indirectly insulting, defamatory, racist, xenophobic, homophobic, revisionist or injurious; anything which incites suicide, violence, prostitution, pedophilia or exploitation of persons under 18 years of age; any content offering or proposing online gambling or betting services not authorized under current regulation.
5.5. Throughout the term of this agreement the Merchant undertakes not to use Cashlog Service in whole or part on behalf of any third party and in particular on behalf of any website of which the Merchant is not the publisher.
5.6. The Merchant undertakes not to use, copy or register either the Cashlog or Buongiorno name or trademarks or any similar to the same whether during the term of this Agreement or at anytime thereafter.
5.7. The Merchant undertakes not to commit any acts and/or omissions which could bring into disrepute or denigrate Buongiorno’s name and the Cashlog Services. In particular, the Merchant undertakes not to alter or modify the functioning of the Platform and to respect all constraints and instructions regarding any integration with the same.
5.8. The Merchant declares and undertakes that the sale, packaging, delivery, communication and promotion of any Digital Goods – in particular in respect of the “End User’s experience” - shall be in full compliance with all and any applicable law, statute and Code of Practice as updated or amended.
5.9. The Merchant warrants to have and to maintain all the rights necessary to comply with the obligations of this Agreement and to have sole liability for the Digital Goods offered to End Users, undertaking that such Digital Goods and its website are not and shall not be unlawful or contrary to any public order, public security, data protection law, confidentiality and the safeguard of minors as well applicable Codes of Practice.
5.10. The Merchant has sole liability for all and any Digital Goods, undertaking that it corresponds in nature, quality and quantity to the offer proposed to End Users and therefore modify, replace and supply Digital Goods to End User when the latter requests it because of defect of the Digital Goods. In order to do so, Merchant undertake to provide on the Merchant’s own website, all contacts necessary to manage End Users requests’ related to the Digital Goods use easily and continuously available to the End User. When Digital Goods are offered under subscription, Merchant shall manage the customer care giving Buongiorno prompt communication of the subscription deletion.
5.11. The Merchant warrants and undertakes that Digital Goods can be freely used according to the present Agreement because he has obtained and currently held, valid and sufficient rights, including rights in any third party intellectual property.
5.12. In case of any legal proceedings or arbitration involving Buongiorno and/or a Telecommunication Operator, caused by a breach of any warranties of the Merchant herein, the Merchant undertakes in full and on demand to defend, indemnify and hold harmless Buongiorno and the Telecommunication Operators, also requesting an exclusion in any legal proceedings from any damage and costs, including legal. It is agreed that Buongiorno and/or Telecommunication Operators can decide in their own discretion to take part in any such legal proceeding, negotiations or the appointing, at the Merchant’s costs, own attorneys or representatives.
5.13. If any court or authority state that any Digital Goods supplied by the Merchant are considered, in whole or in part, an infringement of third parties rights or become illegal or impossible, Merchant undertakes to modify or replace such Digital Goods immediately, in order to remove the infringement, maintaining warranties and indemnification obligation to Buongiorno and/or Telecommunication Operators.
5.14. Where any Digital Goods are offered under a subscription service, the Merchant undertakes to provide such Digital Goods regularly and in compliance with the terms and conditions supplied to the End User once the subscription is activated and throughout the terms of any applicable terms and conditions between the Merchant and the End User. Furthermore the Merchant undertakes not to change autonomously the conditions pursuant to the subscription service without the prior written approval of Buongiorno and/or the Telecommunication Operators and/or any applicable third parties as confirmed in writing by Buongiorno. Buongiorno shall be at liberty to supply particular guidelines related to the management of subscription services and the subsequent communications.
5.15. Buongiorno shall have the right at any time throughout the term of this Agreement to interrupt, suspend and/or terminate the Service supplied in whole or part, by giving Merchant a previous written notice by e-mail, in case of breach by Merchant of any obligations set out herein or for any causes determined by Telecommunication Operators, following the escalation procedure here below.
5.15.1. In the event that Buongiorno becomes aware that the Digital Goods or the website of the Merchant or any part thereof does not comply with laws or regulations or Codes of Practice or infringes third party rights or is contrary to any B!Group Code of Conduct, Buongiorno will promptly give written notice (also via e-mail) to the Merchant assigning a 2-day term to remedy. In default of remedy by the Merchant within the assigned 2-day term, Buongiorno will have the right, without further notice, in its sole discretion and without liability, to immediately suspend the Service and/or the Merchant connection to Buongiorno Platform and/or deny the access to the Reserved Area until such time as the matter has been rectified.
5.15.2. In case the Merchant will not implement a final and effective remedy in the 3 days following the term indicated above, Buongiorno will have the right to terminate this Agreement with immediate effect, in its sole discretion and without liability.

6. BUONGIORNO OBLIGATIONS AND WARRANTIES
Buongiorno undertakes during the term of this Agreement to:
6.1.1. use all reasonable endeavours to provide the Service in compliance with market standard; in particular Buongiorno undertakes to use all reasonable endeavours to supply, install and maintain the technological interface necessary to correctly manage End Users requests (activation/identification/deactivation of the Service), as well as the connection with the Telecommunication Operators;
6.1.2. not intentionally infringe any patent, copyright, trademark or industrial secret or any third party rights;
6.1.3. supply first level customer care service to End Users for matters strictly connected to mobile billing in connection with Cashlog; and
6.1.4. supply technical support in case of problem linked to micropayment solution with End Users mobile phone;
6.1.5. cooperate with the Merchant providing copies of the relevant Codes of Practice and B!Group Code of Conduct.

7. LIMITATION OF LIABILITY AND INDEMNIFICATION
7.1 Liability of Digital Goods
7.1.1. Buongiorno shall not to the fullest extent permitted by any applicable law be liable if the Digital Goods (or the marketing of same) which the Merchant supplies or makes available to the End User pursuant to this Agreement are not fully compliant with any applicable law, statute or Code of Practice or which is in any way defective or not usable by the End User whether in whole or part.
7.1.2. Buongiorno shall not in any way be liable if any Digital Goods (in whole or part) do not correspond in nature, quality or quantity to any offer proposed to End Users by the Merchant. In addition Buongiorno or Telecommunication Operators shall not be held liable in respect of any Digital Goods (in whole or part) which shall include but not be limited to the Digital Goods not being delivered to End Users, are delayed, incomplete, no longer available or damaged.
7.1.3. Buongiorno have no obligation to verify any compliance of Digital Goods (in whole or part) with any applicable law, statute or Codes of Practice or the accuracy and quality of the same, nor any liability for the use of Digital Goods by End Users and do not give any guarantee whatsoever to that effect. It is hereby agreed that Buongiorno reserve the right in its sole discretion to request in writing at any time that any Digital Goods supplied by the Merchant be immediately suspended or cancelled (in whole or part).
7.2. Liability of Services
7.2.1. Except where expressly stated otherwise herein to the contrary Buongiorno and the Telecommunication Operators do not accept liability under or in relation to this Agreement or arising out of the provision of the Service, even if advised of the possibility of such damages (and whether in relation to tort (including negligence), breach of contract, strict liability or otherwise, or any other liability) for: (a) loss of profits or sales; (b) loss of bargain; (c) loss of opportunity; (d) loss, interruption or delay of use of any Service in whole or part; (e) loss of time on the part of management or other staff; (f) professional fees or expenses (save legal fees resulting from any dispute, awarded by any court or tribunal of competent jurisdiction); (g) any indirect, special, incidental, exemplary, extraordinary, punitive or consequential damages of any kind howsoever arising except as expressly set out herein.
7.2.2. Nothing in this Agreement shall exclude or limit the liability of either Party for death or personal injury arising as a result of the other Party’s negligence or for any loss or damage from fraudulent misrepresentation, infringement of a third party’s intellectual property right or any fines or penalties imposed by any regulatory or governing body or Telecommunication Operator.
7.3. Indemnity
The Merchant will at all times and on demand defend, indemnify and hold harmless Buongiorno, Telecommunications Operators and the relevant directors, shareholders, employees, successors and assigns from and against any and all third party claim, damage, liability, cost and expense, including reasonable legal fees and expenses, arising out of or related to a breach of any warranty, representation, covenant under this Agreement.

8. CONFIDENTIALITY
8.1.1. Each Party undertakes to keep confidential and not to disclose any information obtained under or in connection with this Agreement (“Confidential Information”) and will not, without the prior written consent of the other Party, disclose the Confidential Information to any person other than the Parties employees or professional advisers on a need to know basis.
8.1.2. The above confidentiality obligations will not apply to (a) any Confidential Information which has been publicly published; (b) information lawfully in the possession of the recipient before the disclosure under this Agreement took place; (c) information obtained from a third party who is free to disclose it; and (d) information that is required to be disclosed pursuant to a court order or some other body in authority in the jurisdiction provided that (where possible) the disclosing Party promptly informs the other of the requirement and takes all reasonable steps so as to disclose only that Confidential Information that is necessary and ensures that the Confidential Information remains confidential outside of the required disclosure.

9. INTELLECTUAL PROPERTY RIGHTS
9.1. All Intellectual Property Rights in and to Cashlog (including any and all adaptations, amendments, extensions and renewals thereof by all means and in all media whether now known or hereafter discovered or developed) belong exclusively to Buongiorno. The Merchant will not acquire any title, copyright or other proprietary rights in and to Cashlog, including any materials provided under the Cashlog Service in whole or part. Further, nothing in this Agreement shall be deemed to grant to the Merchant a licence in Buongiorno’s Intellectual Property Rights except as expressly set out herein.
9.2. In respect of either Party’s exploitation of the Service each Party shall accept that neither Party shall have any rights in respect of either Party’s Intellectual Property Rights including the goodwill associated therewith, and each Party hereby acknowledges that, except as expressly provided in this Agreement, no Party shall acquire any rights in respect thereof and that all such rights and goodwill are, and shall remain, vested exclusively in the Party so providing.
9.3. The Merchant agrees, at the expense of Buongiorno to take all such reasonable steps as Buongiorno may reasonably require assisting Buongiorno in maintaining the validity and enforceability of the Intellectual Property Rights of Cashlog and in assigning any rights Buongiorno may acquire to such Intellectual Property Right or any goodwill relating thereto to Buongiorno or its authorised nominee.
9.4. The Merchant warrants that it will not do or authorize any third party to do any act which would or might invalidate or be inconsistent with any of Buongiorno’s Intellectual Property Rights in respect of Cashlog and shall not omit or authorize any third party to omit to do any act which, by its omission, would have that effect or character.
9.5. The Merchant shall promptly and fully notify Buongiorno in writing of any actual, threatened or suspected infringement of any intellectual property relating to Cashlog which comes to the Merchant’s notice and the Merchant shall at Buongiorno’s request and expense do all such things as may be reasonably required to assist in Buongiorno taking or resisting any proceedings in relation to any such infringement or claim.
9.6. For the duration of this Agreement, the Merchant authorises and grants Buongiorno a worldwide non exclusive royalty free right to use the Merchant’s brand, logo, trade names and commercial signs for the purpose to make reference to the Merchant as client of Cashlog in any communication, advertising and promotion of Cashlog, on any support and by any means whatsoever, and to integrate them in the purchasing flow of Cashlog.

10. TERM
This Agreement shall be effective for a minimum period of 12 (twelve) calendar months from the end of the Trial Period and shall be automatically renewed for subsequent 12 (twelve) months periods unless terminated in accordance herein or by way of cancellation of the Merchant account on the Cashlog Website.

11. TERMINATION
Buongiorno may terminate this Agreement upon giving to the Merchant prior written notice by certified or registered mail, if the:
11.1.1. Merchant is in material or persistent breach of any of its obligations under this Agreement and has failed (in case of a remediable breach) to remedy that breach within 15 (fifteen) days of receipt of a written notice from Buongiorno requiring it to remedy that; and/or
11.1.2. Merchant files a petition for bankruptcy or is adjudicated bankrupt; and/or
11.1.3. Merchant becomes insolvent or makes an assignment for the benefits of its creditors pursuant to any bankruptcy law; and/or
11.1.4. a Telecommunication Operator decides in its sole discretion not to provide any services pertaining to this Agreement, whether in whole or part.
11.2.1. In addition to the above, either Party has the right to terminate this Agreement by giving 15 (fifteen) days prior written notice if the other Party commits a material breach hereof incapable of remedy.
11.3.1. Termination of this Agreement for whatever reason shall not affect the accrued rights of the Parties arising in any way out of this Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other. Clauses 5, 6, 7, 8, 9, shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.
11.3.2. Either Party has the right to terminate for convenience this Agreement unilaterally by notifying the other Party in writing giving no less than 60 calendar days prior notice to the proposed date of termination.

12. PERSONAL DATA PROCESSING
12.1. Personal data of End Users purchasing Digital Goods through any mobile phone or internet connected device may be collected. In such case personal data of any End User will be processed by Buongiorno and/or the applicable Telecommunication Operator in compliance with any applicable data protection laws and shall likewise provide the privacy notice according to the applicable data protection law.
12.2. The Merchant shall perform at all times in full compliance with all applicable privacy and data protection laws and will be solely responsible for the collection, handling, archiving, transferring and disposal of personal data of End Users purchasing Digital Goods on its website.

13. FORCE MAJEURE
Neither Buongiorno nor any Telecommunications Operators shall be held liable for any failure or delay to meet its obligation under this Agreement as a result of a force majeure event or circumstances beyond its reasonable control, including but not limited to earthquakes, inundation, riot, uprising, strikes, including Merchant lockouts, delays in transport, death or injury of any employee, or agent of Buongiorno nor Telecommunications Operators communication problems, network disruption or suspension, embargo, bans and prohibitions imposed by any authority or any acts and/or omissions on the part of any Telecommunication Operator.

14. ASSIGNMENT AND SUBCONTRACTING
Neither Party shall assign or transfer the present Agreement or its rights and obligations under this Agreement, in whole or in part, directly or indirectly, without the prior written consent of the other Party. Notwithstanding the above, Buongiorno is entitled to assign this Agreement and any right and obligation related to any Merchant within the Buongiorno Group of companies.
15. CODE OF CONDUCT
The Merchant guarantees that (i) it is aware of the B! Group Code of Conduct, published at the following web page: http://www.buongiorno.com, and (ii) will execute its obligations under this Agreement at all times in full compliance with the B! Group Code of Conduct.

16. SEVERABILITY
If any court of competent jurisdiction holds any provision of this Agreement invalid, illegal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect so as to leave the validity of the other provisions of this Agreement intact.

17. ENTIRE AGREEMENT
This Agreement, any offer and any other documents attached hereto, contains the whole agreement between the Parties and supersedes all previous and other arrangements between the Parties in relation to its subject matter.

18. RELATIONSHIP
Nothing in this Agreement shall be construed so as to give rise to any joint venture, partnership or relationship of employer and employee. Each Party is an independent contractor solely responsible for its own obligations and nor shall either Party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other Party.
19. AMENDMENTS
This Agreement or any part thereof may be modified or integrated at any time by Buongiorno. The Merchant undertakes to regularly check these Terms & Conditions. Any such amendment will have immediate effect upon date of publication. If the Merchant continues to use the Service under the amended Agreement, the amendments will be considered accepted in full by the Merchant.

20. NOTICES
Except as otherwise expressly specified herein, all notices, requests or other communications shall be in writing and shall be deemed to have been given if delivered personally or mailed, by certified or registered mail, postage prepaid, return receipt requested, email giving a receipt of display of the recipient of the message, to the Parties at their respective addresses set forth herein or in the Application Form. All notices, requests or communications shall be deemed effective upon personal delivery or 10 (ten) working days following deposit, first class postage prepaid, in the mail or on the day of dispatch by facsimile transmission to the facsimile number of the other Party or email to the email indicated by the other Party.
21. CONTRACTUAL PARTIES
This Agreement is executed by and between Buongiorno and the Merchant as the Merchant has requested Buongiorno to use the Cashlog Service and only the such Parties will be the intended beneficiaries of the relevant rights and obligations under this Agreement.
22. GOVERNING LAW AND JURISDICTION
22.1. This Agreement and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to it or its validity and its execution - shall be governed by and interpreted and construed in accordance with the laws of France. All disputes arising out of this Agreement and/or related to its validity and its execution shall be submitted to the exclusive jurisdiction of the Tribunal de Commerce of Paris.


CASHLOG GERMANY
Merchant Terms & Conditions
Preamble
The mobile phone network providers, Deutsche Telekom, Vodafone D2, Telefonica Germany & Co. oHG, E-Plus Mobilfunk & Co. KG and mobilcom-debitel (all of the above will hereinafter be referred to as the “Network providers”) provide their customers as well as the customers of the networks of the above mentioned companies’ connected service providers (such customers hereinafter collectively referred to as the “End Customers”) the option to pay for digital value-adding services which can be accessed online as an individual service or as a subscription (hereinafter referred to as: “Content”) as part of the mobile phone bill of the End Customers or equally when the End Customers top up their mobile phone pre-paid account (hereinafter collectively referred to as: “Mobile phone account”). To this end, the network providers purchase due claims which exist because of a contract between the content provider and the End Customer regarding the use of Content by the End Customer (hereinafter referred to as: “Contractual Claims”) by way of factoring without recourse from companies accredited by the network provider (such companies hereinafter referred to as: “Mediators”) and they bill such Contractual Claims to the End Customer via his/her mobile phone account.
The content provider is a provider of Content who acts, when signing this contract, exclusively in his commercial or independent professional capacity. Buongiorno Deutschland GmbH, Sandstr. 7-9, 80335 Munich (hereinafter referred to as: “Buongiorno”) is a Mediator.
In this instance, the content provider wants to sell to Buongiorno Contractual Claims and in addition commission Buongiorno, to sell on the Contractual Claims to the Network providers on the basis of contractual relations with such Network providers, (hereinafter referred to as: “Mediator contracts”). As regards the signing of such Mediator contracts, Buongiorno shall act in its own name but on behalf of the Content providers. The respective economical result shall be for the account of the Content providers.
Under this understanding, the parties hereto agree to the following terms:
§ 1 Subject Matter of the Contract
(1) The content provider commissions Buongiorno to enter into mediator contracts and/or to maintain existing mediator contracts for the duration of this contract, in its own name but for the account of the Content provider.
(2) The content provider furthermore, by way of factoring without recourse, sells to Buongiorno due Contractual Claims in accordance with the provisions of this contract.
(3) In addition, Buongiorno will technically link the content provider to the Buongiorno accounting system (hereinafter referred to as: “the Buongiorno system”), in accordance with the provisions of Cashlog Purchase API, Merchant technical integration. Via the Buongiorno system, Buongiorno will receive and accept the content provider’s requests for settlement of fees vis-à-vis the end customer and forward them to the Network providers. In addition, Buongiorno will communicate the Network providers’ response to the content provider via the Buongiorno system. Buongiorno is not responsible for the correctness of the communicated data, but only for forwarding them with the unaltered contents.
(4) Buongiorno is obliged to process any End Customer complaints about it receives via the Network providers. The content provider contracts Buongiorno to reach in the Content provider’s name arrangements with the End Customer which in Bongiorno’s own discretion resolve the complaint to the end customer’s satisfaction. The content provider authorises Buongiorno to make corresponding declarations of intent. The power of representation is restricted to the amount of 25 Euro per End Customer, per Network provider and per accounting period (in accordance with the agreement in place between the respective Network provider and the End Customer). Buongiorno is authorised to grant sub-authorisations to the respective Network provider.
(5) Buongiorno’s obligation is limited to the Content of the content provider which has been approved by Buongiorno for the performance according to this contract in accordance with the provisions § 3, para. (1) hereof.
(6) The services to be provided by Buongiorno shall be conducted on the basis of the infrastructure provided for by the Network Providers. Buongiorno has no influence upon this infrastructure. In the case of any change in the infrastructure provided by the Network Providers which would result in an alteration affecting this contract, Buongiorno will inform the content provider without undue delay. Any adaptations which have to be undertaken shall be at the Content Providers’ cost. If any of these adaptations can only be carried out by Buongiorno, the content provider must pay Buongiorno an appropriate fee for carrying out such tasks, the amount of which Buongiorno may determine in its reasonable discretion (Art. 315 BGB [German Federal Code]).
§ 2 The Network Provider’s Operations
(1) The authorisation of operation-based fees for Content is conducted through the identification of the End Customer by the Network provider via the MSISDN of the End Customer and, where appropriate, via the control of a temporary payment code (TAN) as well as through the approval of the respective payment amount by the Network provider. Buongiorno has no influence upon this process.
(2) The content provider can determine the fee payable by the End Customer within the frame determined by the Network providers. The Network providers can adjust the fees determined by the content provider, provided this becomes necessary due to legal or official regulations. The Network providers receive fees only within the frame determined by the Network providers in their own discretion, per End Customer and per accounting period.
(3) The Network providers may temporarily or permanently cancel the mobile phone accounts’ invoicing process completely or on an individual content category or content provider basis for individual end customers or certain end customer groups, where justified (e.g. when payment is not received, where it is the wish of the End Customer or in the case of violation of Network providers’ requirements).
(4) Where the content provider offers mobile web service, the content provider can have the End Customer’s MSISDN (telephone number) provided through Buongiorno via the Web and WAP APN, where this is technically possible and legally permitted. The MSISDN is forwarded by the content provider via a URL notified to Buongiorno.
§ 3 Purchase of claims and assignment
(1) The content provider is obliged to offer Buongiorno for purchase all Contractual Claims becoming due after the signing of this contract. The purchase offer will be communicated electronically, with all information necessary for determining the individualisation of the Contractual Claims to the Buongiorno system.
(2) Buongiorno will declare its acceptance of the content provider’s offer in accordance with para.(1), in that they will pay the content provider the agreed purchase price of the Contractual Claims offered for sale. The content provider waives, in accordance with Art. 151(1) BGB, to the requirement of receipt of a declaration of acceptance. The declaration of acceptance is subject to the suspended conditions listed in para (3). There exists no obligation for Buongiorno to provide a declaration of acceptance.
(3) The declaration of acceptance is subject to the following suspended conditions (Art. 158 para. 1 BGB), which shall apply cumulatively:
a) The respective Contractual Claim is due.
b) The respective Contractual Claim exists, is free from objections or defences, is not assignable and is free from third party rights.
c) The Network Providers’ requirements for the invoicing of Contractual Claims, as provided in Appendix 1 here below (hereinafter referred to as: “Network provider requirements”) were, in regard to the particular Contractual Claim, fully met.
d) The respective Network provider purchases the respective Contractual Claim from Buongiorno and the purchase contract between Buongiorno and the Network Provider will not be rescinded due to a reason Buongiorno is not liable for.
(4) The Network provider will arrange for a reminder process and legal proceedings as regards the Contractual Claims they have purchased. The content provider must to the best of his ability support the Network providers in the pursuing of the Contractual Claims, in particular by sharing information and providing the appropriate documentation/paperwork (in particular deeds of assignment).
(5) The content provider guarantees and shall be liable for the existence, assignability and freedom from defences and objections of the purchased Contractual Claims (Viability declaration). He guarantees and is liable that the claim will not change its legal existence , in particular not due to an agreement with the End Customer and that it will not terminate due to a rescission or offset and/or that the end customer cannot reduce, withdraw, remedy or claim damages due to breach of duty in addition to or instead of the service owed and/or claim the right of retention because the Content delivered to the End Customer is not in accordance with the respective contractual agreements. In the case of a breach of this guarantee, Buongiorno can withdraw from the claim purchase contract without prejudice to any other legal rights or its claim for damages. If Buongiorno rescinds the purchase, Buongiorno will Contractual Claim to the Content provider. Where an End Customer files a justified objection or plea, the content provider must grant the End Customer a credit note of the relevant amount, via the Buongiorno system.
(6) The content provider herewith assigns the sold Contractual Claims to Buongiorno which assignment Buongiorno herewith accepts. Where there are associated ancillary rights remaining with the content provider, the content provider shall assign such rights to Buongiorno and provide Buongiorno with all information necessary to purchase such rights. Where a right to change a legal situation remains with the content provider, he must obtain Buongiorno’s prior approval before using them, and/or exercise such rights at Buongiorno’s request.
§ 4 The Content Provider’s Obligations
(1) The content provider must timely provide Buongiorno with a written description (depending on the respective network provider; the relevant notice period will be provided by the content provider on request) before the scheduled commencement of the respective content as well as regarding every change and inclusion of further content, which shall in particular include the planned process (including a description of the communication with the End Customer in respect of the payment process), the requested telephone number and the content provider’s desired End Customer price incl. VAT (in accordance with the Network providers’ conditions regarding minimum prices, maximum prices and pricing grades/levels). The content provider is obliged at all times to promptly provide supplementary information at Buongiorno’s request, in particular in case of a complaint from an End Customer. Buongiorno is entitled to make the above mentioned information available to third parties. The content provider shall only submit transactions to Buongiorno for specific Content under this contract once Buongiorno has given its prior approval. Buongiorno is not obliged to give its approval. Buongiorno will refuse to deliver its approval if the performance of certain Content is not in accordance with the provisions of the Mediator contracts.
(2) The content provider must ensure that, in regard to all Contractual Claims offered for purchase by him, all Network provider requirements are met in full. In particular, the content provider may only process Content in accordance with this contract which is listed in the Network Providers’ requirements.
(3) The content provider is responsible for meeting all conditions required for connecting to the Buongiorno system, at his own cost. To this end, the content provider must integrate the Application Process Interface (API) – to be provided by Buongiorno – into its own data processing system, in particular. Further preconditions may be required by Buongiorno or agreed betewwn the parties.
(4) The Content provider shall not offer Buongiorno any Contractual Claims for purchase, if Content which constitutes the basis of such claims has not been delivered due to a direct contractual relationship between the content provider and the End Customer.
(5) The content provider is obliged to comply with any applicable legal provisions (in particular the Telecommunication Act, the Telemedia Act and the Federal Data Protection Act) which apply to this contract or content performed on its basis. Any existing network provider requirements exceeding the legal requirements shall remain unaffected.
(6) The content provider must provide Buongiorno with its current tax number and VAT ID number without being requested to.
(7) The content provider must appoint a contact person for investigating any issues arising from questions and/or complaints from End Customers and shall provide Buongiorno with that contact’s telephone number and email address.
(8) Upon request of an End Customer or a Network provider, the Content provider must provide evidence that and to what extent and in what manner the Content was used by the End Customer via the End Customer’s respective MSISDN.
(9) The content provider must notify Buongiorno every change of information which under this contract he must provide to Buongiorno.
§ 5 Claim purchase price, Fees, Invoicing, Offset
(1) The purchase price for the Contractual Claims sold to Buongiorno is the total gross amount of the Contractual Claim, minus the fee payable by the Content provider to Buongiorno. Accordingly the commercial payout of the Content Provider will be as set out in Annex 1 – Commercial and Payment Terms here above. The obligation to pay the Purchase price to the Content provider shall only become effective when Buongiorno has received the appropriate amount from the network provider.
(2) Buongiorno shall render accounts of the Purchase Prices for the purchased Contractual Claims monthly (calendar), at the latest by the end of the calendar month after the month the offer to purchase the Contractual Claim was made.
(3) The content provider is obliged to examine the account statements received from Buongiorno promptly and to communicate any objections to Buongiorno without undue delay, at the latest within a period of six weeks after the respective statement has been received. After such period is elapsed, the statement shall be deemed to be approved. Buongiorno will draw particular attention to this consequence in the statement. The content provider can still apply for a correction of the statement after the period has elapsed. However, in this case he must prove that the account statement was incorrect or incomplete.
(4) The payment of the Purchase Price for the Contractual Claims will be made at the latest 45 days from the end of the month in which Buongiorno received the invoice from the Content Provider.
(5) The content provider can only set off claims of his own against Buongiorno if such claims are undisputed or have been confirmed in a legally binding manner.
§ 6 Reimbursement of Expenses
All expenses paid by Buongiorno in connection with the performance of this contract, are to be reimbursed by the content provider, as long as Buongiorno could reasonably believe such expenses to be necessary under the respective circumstances (Art. 675( 1) 670 BGB). Expenses to be reimbursed as referred to in Sentence 1 of this para. 6 are in particular all contractual penalties and any fees which Buongiorno had to pay to a Network provider due to the Mediators’ Contracts, as long as such penalties or other fees were caused by the actions or omissions of the content provider, as well as any related costs incurred for legal defence. The content provider is aware that contractual penalties and fees in some cases could exceed the income of the content provider many times over. The expenses to be reimbursed according to in Section 1 of this para. 6 are not those which are payable by Buongiorno to the Network providers. Such expenses are covered by the payment of the fees made by the content provider.
§ 7 Liability
(1) The content provider shall indemnify Buongiorno from all claims from third parties which may be raised against it (Buongiorno) regarding Content of the Content provider, in particular regarding incorrect contents, wrongfulness or illegality of the services provided. This also applies where claims are made against Buongiorno only after the current contract has expired. § 6 remains unaffected.
(2) Buongiorno shall be liable for intent and gross negligence to the full extent. For other negligent, Buongiorno shall be liable for
- Personal injury,
- Damages for which Buongiorno is responsible due to compulsory legal provisions as well as
- Damages due to the breach of essential obligations which would jeopardise the attainment of the aims of this contract and or the fulfilment of which enables the adequate and orderly performance of this contract and on which the contract provider may regularly depend (e.g. punctual payment of the purchase price for assigned claims; hereinafter referred to as: “Cardinal duties”.)
In the event of a cardinal duty being breached, the liability for simple negligence by Buongiorno is limited to damages which are typical for this type of contract and which are foreseeable at signing of contract.
(3) Buongiorno is not liable for damages which are incurred due to interruption or limitations caused by necessary maintenance work, due to force majeure, riot, war, natural disasters, direct terrorism acts or other events for which they cannot be held responsible (e.g. strikes, lockouts, traffic problems, acts or omissions by a public authority inland or abroad, electricity or telecommunication blackouts or interruptions). Buongiorno is not responsible for any breach of duty on the part of the Network providers and in particular, the availability of data processing and telecommunication services provided by the Network providers.
(4) The above mentioned limitations on Buongiorno’s apply do not extend to loss of life, personal injury or violation of health nor to the liability according to the Product Liability Act.
§ 8 Data Protection, Confidentiality
(1) The parties will respect and abide by the relevant data protection regulations, in particular in regard to the handling of personal data.
(2) All information and documentation regarding technical and commercial issues which the parties provide to each other, shall be treated as confidential, without actually having to be marked as confidential and are to be kept secret and protected from unauthorised access by third parties. Confidential information may only be made accessible to those employees of the parties who need access to it for the performance of this contract. At the request of either party, and, at the latest following the termination of this contract, all the information and documentation which has been handed over, including all transcripts and copies, shall be returned or completely destroyed, which destruction shall be proven. The obligation to maintain confidentiality extends for a period of twelve months following the termination of the contract.
§ 9 Trademarks
(1) The Content provider is only entitled to use the Network providers’ trademarks or logo with prior written approval and under the condition that the permission can be revoked at any time by Buongiorno.
(2) In the event that the Content provider uses the Network providers’ trademark or logo with the Network providers’ approval, he must attain agreement from Buongiorno for the manner and nature of every individual usage in advance. Usage is only permitted with Buongiorno’s express and prior approval. The Content provider is obliged to provide Buongiorno with any communication with the End Customer regarding any issues within the frame of transaction processing and in the event of an error message as well as the overall appearance of the statement of content through Network providers in his offer and the compliance with the design specifications, at any time, upon request.
(3) The content provider must ensure that the trademarks and logos of a Network provider used are not referred to, printed or shown in direct regional connection with a literal or pictorial trademark or the logo of any other Network provider and avoid the misleading impression that the Content offered is only offered in cooperation between the content provider and a particular Network provider. Regional combinations of trademarks and logos of different network providers is only lawful when the mobile phone based invoicing options of the Content are listed for different mobile telephone networks, where no logos and/or no trademarks may be visually exposed.
§ 10 Duration, Suspension
(1) This contract becomes effective when it is signed by the parties. It can be terminated during the first three months by any of the parties without observing any notice period to the end of each contractual month. After the first three months of the contract, the contract can be terminated by any of the parties, with a notice period of four weeks to any end of the contractual month.
(2) In the event that Buongiorno, at the time of the termination of the contract, has acquired Contractual Claims for Content which has not yet been delivered, the content provider will ensure that even after termination, such content will be delivered properly.
(3) The right to extraordinary termination for cause remains unaffected. For Buongiorno, important cause shall exist in particular, when,
- one of the parties is prohibited or threatened with prohibition to carry out its duties as described in this contract, by a competent authority or a competent court or
- bankruptcy proceedings are instigated or applied for against the assets of another of the contractual parties or
- the content provider does not immediately repair a breach of network provider requirements reported by Buongiorno or
- due to a content provider’s breach of a Network provider requirement, a Network provider requests Buongiorno to cancel the contract
- or if one of the Mediator contracts necessary for the performance of this contract ends, for whatever reason.
(4) In the event of such request by a Network provider, Buongiorno is entitled to cancel the content provider’s access to the Buongiorno system.
(5) All notices of termination must be in writing and may not be communicated via telecommunication.
§ 11 Changes to this Contract
Buongiorno is entitled to modify the contract with the content provider as well as all agreed amendments and attachments hereto. Buongiorno will let the content provider know about such changes in writing or by email. Changes will be considered as accepted by the content provider if an objection is not raised within a period of six weeks after the receipt of the notification of the modifications. Buongiorno will make a special reference to this consequence in the letter. Either party can terminate the business relationship between Buongiorno and the content provider with a notice period of six weeks in total or in relation to parts of the contract affected by the modifications, if the content provider objects to a change within the notice period according to section, para.(1). § 12 Final Provisions
(1) Any changes and supplements to this contractual agreement are required to be in written form. (2) All legal relationships arising from this contract shall be governed by German law. Exclusive legal venue for all disputes arising from this contract shall vest in the courts having jurisdiction over Munich.
(3) Should one or more provisions of this agreement become invalid, void or unenforceable, then the remaining provisions of the contract shall remain unchanged. The invalid, void or unenforceable provision shall be replaced by a provision which as closely as possible corresponds with what the parties’ obvious intention has been.
(4) The following attached appendix form an integral part of the contract:
- Appendix 1: Network provider requirements
Appendix 1 (Germany) : Network Provider Requirements

§ 1 General obligations of content providers regarding the delivery of Content

(1) The content provider must ensure that every order for content received from the end customer is confirmed with the assistance of the TAN process which has been provided by the network providers. This process allows for the entry of the MSISDN for the end customer’s identification as well as the entry of a mobile TAN (bank transaction number) for authorisation. The mobile TAN is generated by the network providers. An authorisation via the content provider is not permissible. Buongiorno is entitled to prescribe a standardised payment page or a similar solution also for a mobile sales channel and make it obligatory for the content provider.
(2) The content provider must clearly inform the end customer that in regard to the delivery of the content, there only exists a contractual obligation between the content provider and the end customer.
(3) The content provider guarantees an availability rate of at least 98.5% per calendar month regarding the delivery of content as regards the services offered by them.
(4) The content provider warrants that the design chosen for its service will not represent or allow abuse of royalties in the content offered to the end customer, in particular in generating credit notes with no legal basis. (5) The content provider warrants to obtain the clear consent of the end customer in order to charge payment of fees for delivery of content via its mobile phone account to archive such consent in accordance with the applicable statutory provisions and to provide evidence of such consent to Buongiorno on request. To this end, he must in particular keep a log file of all the messages sent to the end customer and all the messages received from the end customer and provide them to Buongiorno on request.
(6) The content provider shall only use his own quick dial numbers in the sender ID, as stated in a contract agreed with Buongiorno, when communicating with the end customer. Changing the quick dial numbers during the process of a service (e.g. Ordering the content from quick dial number x, delivery of content via quick dial number y) is not permissible. A substitution of the numerical quick dial by a sender’s/caller’s name is only permissible upon prior written approval from Buongiorno.
(7) The content provider ensures that a request for payment authorisation will only be provided in an immediate timely connection with an order made by the end customer and will be transmitted to Buongiorno only once.
(8) The content provider shall issue the invoice for the end customer’s fee only without undue delay after the delivery of content to the end customer.
(9) In the event that the fee to be paid by the end customer exceeds the prescribed maximum amount defined by the network providers, the content provider may not permit billing via Buongiorno.
(10) The content provider, in the event of a non- or faulty or incorrect delivery of content, must immediately correct the delivery or issue a credit note via the Buongiorno system. If the monthly allowance of credit notes exceeds, based on the sum of all the contract claims, 20%, then the content provider must immediately notify Buongiorno.
(11) The content provider may use the end customer’s MSISDN for invoicing purposes only, unless the end customer has not explicitly agreed to its being used for other purpose and unless the content provider is able to provide evidence of such agreement.
(12) Buongiorno is entitled to introduce a usage limit per time period on request made by the network providers (e.g. five payments per 24 hour period).
§ 2 Compliance with statutory obligations and particular trade standards, restrictions on certain content

(1) The legal responsibility, in particular the legal obligations regarding press legislation, protection of minors, telecommunications issues and advertising law for the content offered are the sole responsibility of the content provider. The content provider is responsible for the proper establishing of the contractual relationships with the end customers and the proper compliance with all obligations resulting therefrom.
(2) The content provider is not entitled to offer Buongiorno accounts receivable regarding content,
- which deviate from the description given to Buongiorno by the content provider in accordance with § 4, para. (1) of the General Terms and Conditions,
- which is forbidden by the relevant legislation or violates public policy (in particular content, the sharing of which is punishable, e.g. according to Art. 130 of the German Penal Code, Art. 130a, Art. 131 of the German Penal Code or Art. 184-184d of the German Penal Code), - which includes a betting game, regardless of whether it is forbidden by the applicable legislation or not,
- which contains unlawful pornographic material or material harmful to children (in particular content which violates the relevant legislation for the protection of minors, e.g. against the Youth Protection Act or the Interstate Treaty on the Protection of Minors) or which refers to such content - which, to attain access the user must be of a certain age, and such process is not secured with a suitable and effective age verification system,
- which is of a racist or discriminatory nature, even if it does not actually violate the applicable legislation,
- which allows a person access to purchase harmful substances (e.g. as defined in the Pharmaceutical Act or the Federal Narcotics Act),
- which in accordance with the applicable law is prohibited under competition law (e.g. acts referred to in the Annexes to the Act against Unfair Competition),
- which violates the applicable codes of conduct (in particular the German Code of Telecommunications and Media, or the requirements of the “Competence Centre of Value Added Services”, the current version of each which is available at www.dvtm.net as well as www.fsm.de; the content provider is obliged to inform himself of any changes in such codes of conduct),
- which includes the support of philanthropic, scientific or other charitable goals,
- the sharing of which would in all likelihood undermines the reputation of a network provider or Buongiorno or an associated company of either of them,
- which can only be used on mobile terminal equipment,
- which can only be ordered by SMS
- which is invoiced by MT-Billing (payment obligation incurred with receipt by the end customer of an SMS with cost-incurring content) or
- which involves ring tones, logos, mobile phone wallpaper, mobile phone games, mobile phone videos, mobile phone navigation, mobile phone TV or chat services which apply a fee per message.
(3) If the content provider is offering content which breaches para. 2, it is his responsibility that content is removed as soon as he becomes aware of it.
(4) The content provider may not advertise in a manner which violates legal provisions (in particular those provisions which apply to the protection of minors). The content provider must refrain, in particular, from advertising which could inflict physical or mental harm on children and teenagers. In addition, no offers shall be aimed at children or teenagers, which might exploit their inexperience or gullibility, no offer should speak directly to children or teenagers, their parents or a third party or try to encourage them to buy certain products or services nor shall the trust that children and teenagers have for their parents, teachers and other trusted persons be exploited and any such advertisement shall not show children or teenagers in dangerous situations without justified cause. Advertising the contents of which may negatively affect the development of children or teenagers’ personalities into independent and community-spirited people will only be made separated from offers designed for children and teenagers. Advertising which is addressed to children and teenagers or which has children or teenagers featuring in it will be designed so that it does not harm their interests or exploit their inexperience.
(5) The content provider may not transmit to the end customer any messages that the customer has not requested (e.g. unsolicited marketing material, computer viruses, chain letters).
(6) The content provider warrants that it owns the relevant rights of use to all content it provides (in particular copyright, trademark, service protection, privacy and other rights) which are required for the type of supply it is performing.
(7) When providing content, the content provider must comply with all existing duties of information existing under the applicable laws(e.g. Information requirements in accordance with Sect. 5 of the Telemedia Act, Art. 312c of the German Civil Code in conjunction with The German Civil Code Information Regulation, Pricing Regulation Information). The content provider must, in addition, inform the end customer that neither the content provider, and neither a network provider nor Buongiorno is responsible for what comprises the respective content.
(8) In case of an approval according to § 4, para. (1) of the Terms and Conditions, the obligations of the content provider under this § 2 shall remain unaffected. The content provider is responsible for inspecting the lawfulness of his own content in every instance.
(9) The content provider must protect the website on which the content is offered against external attacks or misuse.
§ 3 Particular requirements re subscription services

(1) Buongiorno enables the content provider, in accordance with the following conditions, within the terms of an ongoing contractual relationship, to carry out repeated withdrawals from the end customer‘s bank account), without the need to receive authorisation from the end customer anew for every such withdrawal. It is a pre-condition that the end customer of a subscription (hereinafter referred to as: “Sub”) expressly agrees to the process described below in the initial commissioning.
(2) The content provider must ensure that for every order and in close context with the order placement, the end customer is sufficiently informed about the nature and characteristics of the sub. This applies in particular to contents, price (individual and total gross retail price plus any additional transport costs), invoicing period, frequency and duration of the supply of content as well as options to stop their supply as well as their provider identification (hereinafter referred to as: “Sub characteristics”).
(3) The term “Sub” is to be explicitly referred to in the description of the content in accordance with § 4, para. (1) of the Terms and Conditions.
(4) A fee charge may not be released until content has been delivered to the end customer at least once. The individual amounts of the fees for subsequent content shall not exceed the fee for the content delivered the first time.
(5) Subsequent content within the frame of a sub can be delivered periodically (e.g. monthly usage rights for an email account) or released via events (e.g. “Tor-Ticker” – a German website monitoring football goals). A time-based fee for subsequent content for less than seven days is not permissible (e.g. 0.49 €/Minute, 1.99 €/Hour, 4.99 €/Day, 4.99 €/3 Days).
(6) A minimum duration period for subs (e.g. a monthly subscription with a minimum duration period of three months) is not permissible.
(7) The content provider must offer the end customer at least one cost free (not related to transport costs) option of cancelling their sub using the same sales channel as when ordering their subscription. The content provider has to ensure that the end customer is also able to terminate his subscription directly over the content provider’s hotline.
(8) If requested by a network provider, Buongiorno is entitled to inform the end customer in their Bill-Warning-Message, according to § 1, para. 10, about the options for cancelling their subscription.
(9) If requested by an end customer or a network provider, the content provider must cancel without undue delay individual sub (in particular in the event of termination of the associated mobile phone contract).
(10) If requested by a network provider, Buongiorno is entitled, in the event of a prolongation of a subscription, to send a cost free information SMS to the end customer and to inform him within this information SMS of the ordered sub/subs (using the term “Sub” in the SMS), about the term, the fee, provider identification and how to cancel their sub.
(11) In the event that certain payments cannot be authorised, repeated attempts to effect payment will be made for a maximum period of two months. Within that time period, a maximum of three attempts to deduct the payment in arrears for one subscription cycle (one week, one month) will be deducted. There will be no cumulative postponed deduction regarding for an ongoing subscription for more than one subscription cycle. If the attempt to deduct payment at the end of the two-month period remains without success, or if three attempts to deduct payment remain without success or if the network provider advises that a MSISDN cannot be charged, Buongiorno is entitled to cancel the subscription.
(12) For subscriptions with inclusive content, where the end customer may select the chosen content after he has ordered his subscription, the content provider must completely and clearly inform the end customer about the selection/choice of available content (including its identification/a description of the content). The content provider must provide the end customer with a way to review searchable content. After every use, the content provider must inform the end customer about content which is included in the inclusive content but which the customer has not yet used (e.g.: in a package with five available games, provide information about the “two remaining games” after the third game has been used).
(13) The content provider will offer a review option which the end customer will be informed about. This option shall serve the purpose to provide the end customer with a domestic address or the content provider (name, address, hotline number). (14) The content provider must use a user interface, as defined by Buongiorno, for every subscription order made by an end customer.
(15) The content provider must offer the end customer the option of being able to view a list of his subscriptions as well as their respective status (active or inactive subs). The list must include an information for the end customer that he has the option of cancelling one or all of the subscriptions. This option must be clearly communicated to the end customer. After the cancellation of a subscription, the content provider must send the end customer confirmation of the cancellation.
§ 4 Special obligations of the content provider regarding communication and promotional activities

(1) Within each communication and promotional activities regarding the content, the content provider must inform the end customer clearly about the components of the individual invoices (contents, individual prices, total price, identification of provider) and in the case of subscriptions, about the components/characteristics of the subscription. The content provider must use the term “Subscription” or “Sub” in all communications or promotional activities regarding subscriptions.
(2) The content provider will ensure that the description of the content, including any subscription details and the price applicable to the end customer, can be read without his having to scroll on his screen, neither horizontally nor vertically, regardless of what appliance the end customer views it on and that the visibility is not affected by editorial measures (e.g. a column or page break at the end of the text).
(3) The content provider must communicate clearly to the end customer that the content invoicing will be conducted via his mobile phone account. The end customer is to be clearly informed by the wording of the ordering process when a payment claim becomes due. This is to be guaranteed by the employment of an unmistakable word choice on a button (e.g. “Pay Now” or “Buy Now” in the case of individual purchases and “Order subscription” in the case of subscriptions). The content provider must provide the end customer with the option of cancelling the transaction before a claim for payment can arise.
(4) Pricing information for content including subscriptions is to be described in all the above mentioned media with the following currency symbol: “€” as a symbol, “EUR” as the abbreviation or “Euro” (in words). The prices shall be shown with two digits after the decimal point as the total price, e.g. EUR 1.99. To communicate the price in relation to scale, the symbol “/” or the words “per “ are to be used. The content provider must provide the total tariff information, i.e. consisting of the price, the currency as well as the scale (e.g. EUR 1.99 per SMS or EUR 2.99 a month).
(5) The content provider must, according to instructions received from the respective network providers, inform the end customer of any additional applicable delivery and postal charges, in particular transport fees (e.g. additional SMS/WAP/Data charges/fees) and the amount of those fees.
(6) The content provider must ensure that the colour of the font in which the information for the end customer appears can be clearly distinguished from the background.
(7) Regarding advertising media, the following conditions are to be observed:
a) The (subscription) characteristics of the content in print media in an advert size of under 30mm x under 30mm should appear in a minimum text size of 8pt, in an advert size of between 31mm-100mm high and 31mm-100mm wide, in a minimum font size of 9 pt. and in an advert size of over 100mm high and over 100mm wide a minimum font size of 10pt, clearly legible, written horizontally and appearing right next to the description of how to order. In posters and other large-scale communications, the minimum font size shall be increased accordingly.
b) As regards online/mobile web/WAP advertising, the (subscription) service characteristics shall be clearly legible, written horizontally in a font size of no less than 10 pt., right next to the description of how to order.
c) On television, the (subscription) service characteristics shall be clearly legible and for the entire duration of the appearance of the description of how to order. The appearance of the description of how to order shall appear for a sufficient amount of time, so that the average user has time to read the text in full. The (subscription) characteristics shall appear horizontally. In Germany, the resolution of the television picture is 768x576 pixels. In the (subscription) characteristics, a side clearance of at least 50 pixels as well as a border above and below of at least 50 pixels respectively shall be maintained. The minimum permitted text size is 30 pixels. An easy-to-read, serif-free font is to be used. For the text outlining prices, the font, in addition, must have clear shadows in contrast to the text colour.
d) In Teletext, the (subscription) characteristics of the services must be easy to read, clear and outlined horizontally, directly beside the description of how to order on the same Teletext page.
e) On radio programmes, the (subscription) service characteristics must be clearly audible. In all audible advertising, the description of the (subscription) characteristics must be given directly before or directly after the description of how to order in the same language, volume and speed.
(8) At Buongiorno’s request, the content provider shall combine the option of invoicing the mobile phone account separately or additionally with a trademark/logo in accordance with the network providers’ requirements. This applies in particular to:
- the communication of the invoicing process in the “Pay strip” as part of the advertising/marketing of the content provider’s content,
- the communication of the invoicing process as part of the completion of the purchase between the content provider and end customer (e.g. as part of the handshake procedure) and
- the brand-compliant depiction of the invoicing process in all advertising material, publications and other publicly available documents and media in which mention is made.
The content provider shall be informed of any obligation of implementation with a notice period of at least 2 months in written or text-form. The content provider covers the costs of the implementation. § 9 of the Terms and Conditions remains unaffected.
(9) The content provider must inform the end customer, in the most appropriate manner, about the invoicing for content through network providers. The content provider is not permitted to use his own brand or his own logo in this invoicing process.
§ 5 Customer Inquiries / Customer Complaints

(1) The content provider must procure a free hotline (0800-number) during normal office hours or a shared cost hotline (0180-number) for processing complaints from end customers and must communicate these contact details to Buongiorno without being asked. The content provider must secure a reachability average of at least 90%, ensuring a pick-up time of 20 seconds. The content provider must procure an email contact address in order to process end customer inquiries and complaints, and is obliged to communicate the current contact details to Buongiorno, without being asked.
(2) Buongiorno and the network provider are entitled to provide the end customer with the above mentioned contact details.
(3) The content provider has to meet all precautions, in order that the number of complaints and inquiries remains as low as possible. In the event that it is unavoidable that the processing of end customers’ complaints to the network provider or Buongiorno regarding content from the content providers is not solved by just forwarding the complaint on to the content provider, Buongiorno can charge the content provider an appropriately calculated amount of money to compensate complaints received either in writing, by telephone or other end customer inquiries. Buongiorno can in addition charge the network provider for costs billed by the network providers under such circumstances. § 5 of the contract remains unaffected by the foregoing.


CASHLOG SPAIN
Merchant Terms & Conditions
1. General Provisions and Purpose of Contract
Cashlog is a service of Cashlog, S.L., with registered business address in Madrid, at Calle Javier Ferrero, 13-15, 2ª Planta, 28002, holder of Spanish Tax Identification Number (CIF) B-86292927, (hereinafter referred to as “Cashlog”).
1.1. The following General Contract Conditions (hereinafter also referred to as the “Contract”) were issued by Cashlog to the contracting Company, which has the intention of registering with Cashlog and being authenticated in the dedicated website area at the Internet web address www.cashlog.com (hereinafter referred to as the “Website”), and they regulate the parties’ obligations with regard to the Cashlog services provided by Cashlog to the contracting company (hereinafter “Services”) and the digital goods and services which are provided by the contracting company, for the purpose of making purchases by way of the telephone service in accordance with the applicable regulations (“Digital Goods”).
1.2 Registration on the Website
In order to be able to use the Services, the contracting company must be registered at Cashlog by way of the Website: www.cashlog.com.
Once the data entered during registration has been verified, Cashlog shall activate the account which the contracting company may use to access its own reserved area (hereinafter the “Reserved Area”) inside of which it may view the purchase transactions performed by the End Customers using the telephone service and the corresponding report, manage the file containing its customers’ personal information and get in contact with Cashlog in order to solve any problems of a technical and commercial nature.
For this purpose, the contracting company must complete the following registration procedure:
- Complete the registration and account opening form (online form), providing all of the information requested, and undertake to update it regularly;
- Accept these General Conditions and all of the documents regarding the use of the Website;
- Receive an account opening confirmation e-mail message from Cashlog;
- Follow any possible instructions which are given in the account opening confirmation e-mail message.
It is understood that, in order to open an account, get registered at Cashlog and make use of the Services, the contracting company must be a body corporate. Private individuals, therefore, cannot register at Cashlog or open an account on the Website. In any case, without the express authorization of Cashlog, the contracting company shall not be able to open an account.
The contracting company ensures the accuracy of the information provided in the registration form and hereby declares that said information shall be updated every time some change therein occurs. In the event that the contracting company provides data or information which is inaccurate or inadequate, Cashlog reserves the right to close the account and cancel the contracting company’s registration, and not to continue execution of the Contract, as long as said information has not been modified and corrected.
1.3 Digital Goods. The contracting company undertakes to provide Cashlog with the Digital Goods indicated in the contracting company’s product file (the “Contracting Company’s Product File”), which shall be provided to Cashlog in the manners agreed upon by the parties so that said goods are available for sale to the mobile and/or landline telephone customers (“End Customers”), who may purchase them using the telephone services of the SIM itself.
1.4 Services. With the objective of getting the Customers
using the telephone service to purchase the Digital Goods, Cashlog shall provide the contracting company with the following Services:
1) Drafting the agreements and contracts with the Telephone Operators that facilitate the purchase of the Digital Goods and the Customers’ payment through the use of the telephone service;
2) Making the Digital Goods supplied by the contracting company available to the Telephone Operators;
3) Providing the report on the purchase of the Digital Goods by the Customers using the telephone service;
4) Handling the Customers’ requests for assistance in terms of payments made using the telephone service, in collaboration with the Telephone Operators;
5) Supplying and managing a reserved area on the Website for the contracting company (“Reserved Area”) in which the contracting company may:
a. View the Customers’ purchase transactions made using the telephone service (also referred to hereinafter as “Transactions”);
b. See the report on relevant Transactions for the purposes of invoicing Cashlog;
c. Manage the file with the personal information of its customers, in its capacity as the party responsible for the information file;
d. Get in touch with Cashlog in order to resolve any problems of a technical or commercial sort;
6) Integrating the technological platform (hereinafter the “Platform”) necessary to make the connection with the networks and the Telephone Operators’ technology, with the objective of managing the reports on the Transactions.

1.5 Contract Trial Period. The contracting company, once it has provided its own identification information necessary for authenticating and opening the account, shall be subject to a Trial Period, during which time the Transactions shall be virtual, and therefore they shall not generate any charge to the Customers or any payment in favor of the contracting company.
When the Trial Period comes to an end, Cashlog reserves the right to give definitive approval to the contracting company in order to make this Contract fully valid. Its approval shall be notified by e-mail or by way of the Reserved Area in the website portal.
In the event that the contracting company is not approved, the Contract may not be considered valid, and Cashlog owes nothing to the contracting company in any respect or for any reason.
Each time, Cashlog shall approve the Digital Goods supplied by the contracting company by way of the product file which the contracting company is required to complete for each product request.
In the event that certain Digital Goods are not accepted, the Contract shall be valid only for those Digital Goods which have been approved.
2. Payments and Terms of Payment
2.1 Payments. As full overall payment in respect of the contracting company’s supply of the Digital Goods, the Parties agree that Cashlog shall pay the contracting company, on the basis of the amounts acknowledged to Cashlog by the Telephone Operators, the amounts generated due to the purchase of the Digital Goods by the Customers, as indicated in further detail in Annex 1 – Commercial and Payment Terms here above.
2.2 Accountability and Conciliation Process for Transactions Subject to Claims. The payment in accordance with Article 2.1 above shall be calculated on the basis of a monthly accounts statement (“monthly settlement”) provided by Cashlog to the contracting company, as well as being available in contracted company’s Reserved Area, on the basis of the Customer’s purchase and payment Transactions registered on the Platform, up to but no later than the end of the month after the month of reference. Once each month ends, Cashlog shall send the contracting company a report by e-mail, containing the monthly settlement or a notice that this settlement will be available in the Reserved Area.
As of the time when it receives the aforementioned report by e-mail, the contracting company shall have a time period of five (5) days to file any claim against the monthly settlement. If this time period elapses, and the contracting company has not sent in any claim, then the monthly settlement shall be considered tacitly accepted. In any case, the contracting company must send the claim in writing, using one of the agreed systems, indicating the grounds for the claim, and it must deliver the proper detailed documentation with it. In the case of any discrepancy between the number of Transactions indicated in the monthly settlement and the Transactions counted by the contracting company, the payment to the contracting company in respect of the difference between the two amounts calculated will be temporarily suspended while awaiting resolution of the claim between the Parties.
In the event that the Parties are unable to reach an agreement, the values calculated in the claim shall be subject to analysis by a Technical Commission made up of two representatives for each of the Parties, who are to meet within the time period of 60 days as of the date when the claim is reported by the contracting company. Said Technical Commission shall have the power to determine the nature and system for dealing with the discrepancy between the values, providing any necessary modifications to the documentation of the sales data for the period of reference.
The Parties agree that the time period dedicated to resolving such a claim must not be greater than 30 days, as of the date when the Technical Commission meets, unless the claim requires the intervention of the Telephone Operator. In that case, the period devoted to resolving the claim may be greater than 30 days as of the date when the Technical Commission meets.
During the 30 days subsequent to the date when the Commission meets, the Parties undertake to submit the detailed sales figure documentation needed for the drafting of the claim.
Once the claim has been resolved, the differences between said values subject to the claim and those determined by the Technical Commission, or in any case those agreed to by the Parties, shall be adjusted while drafting the first effective invoice after the conciliation process.
2.3 Accountability and Process for Transactions Reported by the Telephone Operators. Cashlog shall have the power to make corrections to the Report provided to the contracting company on the basis of the reports on certain Transactions reported to Cashlog by the Telephone Operators. In such an instance, the difference between the values of the Transactions reported to the contracting company compared with those acknowledged by the Telephone Operators shall be adjusted during the preparation of the first effective invoice after the conciliation process.
2.4 Invoicing and Currency. Once the Report has been approved by the contracting company or five days have elapsed as of the verification pursuant to the preceding article, Cashlog shall issue to the contracting company an official report of invoice authorization (“Invoicing Report”) only after having received confirmation and reports from the Telephone Operators.
The contracting company may issue an invoice as of the date when it receives the Invoicing Report, indicating the ID of the invoicing authorization which appears in the Invoicing Report itself. In any case, the contracting company may only issue an invoice for payments greater than or equal to €250 (two hundred fifty euros) for each invoice. Otherwise, said payment is to be accumulated with later payments until this minimum amount is reached.
In such an instance, the invoice issued by the contracting company may contain the invoicing authorization ID of all the Invoicing Reports which have not yet been paid.
In the event that the Contract is terminated or rescinded, those payments still pending are to be settled within a time period of 90 days as of the Contract’s termination or rescission. Any invoices shall be issued to Cashlog, in euros.
2.5 Payment Systems. Cashlog’s payment to the contracting company in accordance with Article 2.1 above shall take place on the condition that the corresponding amounts have been received from the telephone operators, within a maximum time period of one hundred twenty (120) days as of the end of the month of invoicing. Said payment shall be made on the basis of the Invoicing Report by bank transfer into the contracting company’s current account indicated in the Reserved Area, or which it has communicated to Cashlog in some other manner.
3. The Contracting Company’s Obligations and Guarantees
3.1 The contracting company undertakes to make the following information available to Cashlog, using the online form:
- Company name
- Company’s registered business address
- Marketing sector
- The corporate website
- The physical address
- Telephone number
- Verified E-mail address
- Full name and date of birth of the registering party
- Company logo
- A customer care e-mail address or telephone number
- Bank information (bank name, IBAN code, account holder name, country)
- Other information requested

3.2 The contracting company shall be the sole party responsible for the publishing design of the Web Pages themselves and the contents published within them. In any case, the contracting company undertakes not to publish contents which are damaging to any third parties’ rights and, in particular, the rights of people (including the rights to name, image and privacy), intellectual property rights (to provide some examples: trademarks, authorship rights, copyrights, patents, industrial and designs).
3.3 The contracting company declares that it is in possession of all the permits required to distribute contents and services of any type on the contracting company’s Web Pages and that it possesses all of the permits necessary to exercise its own online communication activity on the contracting company’s Web Pages.
3.4 Among the Digital Goods or in the Reserved Area on the Cashlog system pages, the contracting company undertakes not to make available contents which are in violation of the public order and proper customs, or which are defamatory, racist, xenophobic, homophobic, slanderous or damaging to the reputation of third parties, or which are discriminatory, zoophilic or pedophilic, or -which instigate prostitution, suicide or violence, or which constitute an offering of gambling and betting services not permitted by the currently applicable regulations.
3.5 The contracting company undertakes not to use Cashlog’s services on behalf or on the account of third parties, and not to make available Digital Goods and Web Pages to which the contracting company does not hold title.
3.6 The contracting company undertakes not to use (unless it receives express authorization from Cashlog), copy or register the Cashlog name and/or trademark, or the trademarks and names of Cashlog.
3.7 The contracting company undertakes not to perform acts or omissions which may in any way harm Cashlog’s reputation or in some way be damaging to Cashlog’s Services. In particular, the setup parameters on the Platform, supplied by Cashlog, may not be modified or altered in any way whatsoever, without Cashlog’s prior consent.
3.8 The contracting company declares that the sale, communication and promotion of the Digital Goods constituting the object of this Contract shall be performed in compliance with the applicable regulations and, in particular, with those regulations governing consumer and user protection.
3.9 The contracting company declares and guarantees that the items to be offered to the End Customers shall be solely and exclusively the Digital Goods, as established in this Contract and the regulations which are applicable to this Contract.
3.10 The contracting company declares that it possesses the full rights and powers to fulfill this Contract and assumes any liability with regard to the Digital Goods put on sale to the End Customers, while ensuring that said Digital Goods do not have, nor shall they have, as an object any information or service contrary to the current laws, the public order or proper customs, and that they are and shall be compliant with the current regulations in force, in particular those regarding the topics of public safety, the handling of personal information, the protection of privacy and the protection of minors.
The contracting company shall be the sole party responsible for the operability and use of the Digital Goods, ensuring that they possess the features promised to the End Customers, and therefore it undertakes to modify, replace and/or supply the Digital Good to the End Customer if said End Customer so requests from the contracting company as a result of any errors and/or flaws in the Digital Goods. For this purpose, the contracting company undertakes to provide, on its own Web Pages, the contact information required for the handling of the End Customers’ requests involving the use of the Digital Goods.
3.11 The contracting company declares and ensures that the Digital Goods may be freely and legitimately used in accordance with the provisions of this Contract.
3.12 In the event that any action is taken or suits filed in court and/or through arbitration by third parties against Cashlog or the Telephone Operators as a result of the non-fulfillment of any guarantees offered pursuant to this Contract, the contracting company undertakes to assume the defense of Cashlog and the Telephone Operators, and to release them from and maintain them indemnified from any cost, damages or harm, including that which is economic, including all legal expenses. In any case, Cashlog and the Telephone Operators’ power is guaranteed to take part in said defense by naming attorneys in which they trust, paying the corresponding costs itself.
3.13 In the event that a court authority determines that the Digital Goods supplied by the contracting company constitute, whether in full or in part, a violation of a third party’s rights, or in the event that their use has become illicit or in any case becomes impossible, then the contracting company undertakes to modify or replace the Digital Goods within three days, in such a manner that there is a deadline for rectifying the non-fulfillment.
3.14 In any case, Cashlog shall have the power to suspend and interrupt the supply of the Services, by sending a letter via e-mail to the contracting company, in the event that the contracting company fails to fulfill the obligations established in Article 3 and this Contract, and in the event of suspension or interruption of the Services due to the Telephone Operators.
4. Cashlog Obligations and Guarantees
Throughout the full duration of this Contract, Cashlog undertakes to:
4.1. Provide the Services described in Point 1.3 in accordance with the highest standards in the industry; in particular, it undertakes to supply, install and keep constantly functional the technological interface necessary for proper management of the Customers (activation / recognition / deactivation of the Services), for sending the messages foreseen by the Services, as well as the connection between the Customers and the telephone operators themselves, with the objective of the latter collecting the amounts owed in respect of the cost of the Services;
4.2. Use resources, devices and technology of verified quality as regards the sector standards, in such a way that the contracting company may at any time use the Services governed by this Contract;
4.3. Not violate any patent, authorship rights, trademarks or industrial or commercial confidentiality, or any other third party’s entitlement to privacy.
4.4. Provide a top-rate customer care service to the Customers.
4.5. Provide technical support related with the rendering of the services governed by this Contract.
5. Limitation on Liability and Release from Liability on the Digital Goods
5.1 Cashlog shall not be considered liable in the event that the Digital Goods which the contracting company supplies to the Customers are not compliant with the applicable regulations.
Cashlog shall not be considered liable either in the event that the Digital Goods do not correspond in nature, quality or quantity with the Digital Goods offered to the Customers. In any case, Cashlog may not be deemed liable in the event that the Digital Goods are not delivered to the Customers, regardless of whether this is due to technical or technological causes, or because the Digital Goods requested by the Customers no longer exist or are unavailable.
5.2 Cashlog, in actuality, assumes no obligation to verify the Digital Goods’ compliance with the applicable regulations or the care and/or quality thereof; nor does it hold any responsibility with regard to the manners of use thereof by the Customers, and it does not guarantee –and therefore it expressly denies all liability in this respect– that access to the Digital Goods will occur in a stable, uninterrupted manner, due to causes which cannot be attributed to it. In any case, it is understood that Cashlog reserves the right to verify at any time, and potentially at the request of the Telephone Operators, the Digital Goods supplied the contracting company, and to ask the contracting company to suspend the supply of those Digital Goods which are different from those approved by the current regulations and/or the remaining obligations assumed by the contracting company upon signing this Contract, or the obligations assumed by Cashlog to the Telephone Operators.
Liability in Terms of the Services
5.3 Cashlog denies all liability for any potential indirect damage which results from the rendering of the Services. In any case, Cashlog’s liability shall be limited to an amount of no more than 25% of this Contract’s value.
5.4 Cashlog shall hold no liability whatsoever for the contracting company’s use of the Services when it is performed in a manner which is non-compliant with the technical specifications of the Services or the provisions established in the Contract.
In any case, the contracting company is required, under penalty of ceasing all activity, to inform Cashlog in writing of any remark or claim involving the Services within a time period of no more than 30 days as of the effective date of rendering the Services.
5.5 Cashlog shall not be deemed liable for any interruptions or temporary suspensions in the operation of the Telephone Operators’ payment platforms.
Release from Liability
5.6 The contracting company declares that it releases Cashlog and maintains it indemnified from any damaging or harmful consequence, even if economic, which may result from the contracting company’s non-fulfillment of any guarantees given pursuant to this Contract for any reason.
6. Privacy and Confidentiality
Each of the Parties undertakes to use the documents and information received from the other party with the sole and exclusive purpose of performing the tasks pursuant to this Contract and for all that which is strictly necessary in order to comply with this Contract and with any legal obligations, or to assert their arguments in or out of court, or before a Regulatory Authority, and any uses other than the aforementioned are hereby expressly excluded.
As a result, the Parties undertake not to make known to third parties, be it directly or indirectly, information, data or news regarding the other party, to which it gained knowledge prior to or during the execution of this Contract, in addition to any information, data or news regarding the execution of this Contract and all that which is indicated in its annexes, unless prior authorization is expressly granted by the other party.
The Parties undertake to maintain the utmost secrecy in terms of any potential information received in any manner and/or regarding the other party, implementing all of the measures necessary to ensure adequate protection of said information, and in particular:
a) Not to copy or reproduce, in any way whatsoever, be it in part or in full, any potential information it has received, unless done to the extent necessary in order to fulfill its obligations pursuant to this Contract, or due to legal requirements or orders by the authorities, or to protect a right of its own in court proceedings;
b) Not to assign, communicate, make available or divulge to third parties in any way the contents of the documents and information to which it has gained access throughout the execution of this Contract;
c) Not to use, exploit or in any way whatsoever use, be it directly or indirectly, and whether in part or in full, any potential information which it receives from the other party for its own advantage and/or that of any third parties.

This obligation shall remain in force for the parties even after the termination of this Contract, for a time period of two years as of the termination date, regardless of the grounds for termination.
The obligations mentioned above do not include any information which was already of the public domain at the time when this Contract was signed, or which becomes information of the public domain thereafter due to circumstances not attributable to the Parties themselves, or that which must be divulged as a result of an order by a Court Authority, Administration or Regulation and/or an order issued for oversight in regulated markets.
7. Industrial and Intellectual Property Rights
7.1 For the purpose of executing this Contract, each party shall make available to the other the use of its own trademarks, distinguishing symbols and/or domains, while maintaining ownership of and title to them.
All of the industrial and intellectual property rights pertaining to the Services, to the trademarks, to Cashlog domains and to Cashlog are and continue to be the exclusive property of Cashlog, whereas the industrial and intellectual property rights pertaining to the Digital Goods are and continue to be the property of the contracting company.
7.2 Neither party shall purchase, on its own account or that of any third parties, any right to creative works, trademarks, distinguishing symbols, domains or logos of the other party which have been used for the execution of this Contract. Each party also undertakes not to use nor allow the use of any creative works, trademarks, distinguishing symbols, domains or logos of the other party for any purposes other than those related with the execution of this Contract.
7.3 It is also understood that Cashlog does not attribute to the contracting company any right to any trademark or logo belonging to the Telephone Operators, with the exception of the possible use thereof for the purchase of the Digital Goods by the Customers using the telephone service and in all cases in compliance with the indications provided at all given times in writing by Cashlog or by the Telephone Operators.
7.4 Each party shall keep the other party indemnified and free in terms of any use not in accordance with the Contract and with this Point 7, as regards creative works, trademarks, distinguishing symbols and/or domains belonging to the other party or the Telephone Operator.
8. Duration and Termination
8.1 Contract Duration. The Contract shall have a duration of 12 months, to be calculated as of the Trial Period, and as established in Paragraph 1.4 above. Said Contract shall be renewed automatically unless either of the Parties expressly states otherwise with prior notice of thirty (30) days.
8.2 Express Termination Clause. The Contract shall be legally terminated, without prejudice to any ulterior rights and actions by Cashlog, in the following instances:
a) When there is a change in the applicable regulations which, in Cashlog’s opinion, makes it impossible to provide the service;
b) If the contracting company fails to comply with any of the provisions of the Contract for which Cashlog has already sent the contracting company a Request for Compliance in accordance with the provisions of Paragraph 8.3. below;
c) In the event of non-fulfillment by the contracting company of any of the contents of this Contract.

8.3 Request for Compliance. Bearing in mind the provisions of Paragraph 8.1 above, the Contract shall be legally terminated in the event that either of the Parties fails to comply with any provision in this Contract, if said non-compliance is not rectified within a term of 15 days, calculated as of the date of the Request for Compliance by the other party.
8.4 Rescission. Cashlog may at any time and for any reason rescind this Contract by giving prior notice of 30 days in writing in a letter sent by certified mail with acknowledgment of receipt to the contracting company.
9. Handling of Personal Information
9.1 Throughout the execution of this Contract and in order to provide the Services, personal information shall be collected from the End Customers who purchase the Digital Goods through the use of the telephone service (the “Parties Concerned”). The personal information of the Parties Concerned shall be handled by Cashlog and by the Telephone Operators, each within the realm of its competence, in accordance with the provisions of Act 15/1999 on Personal Information Protection, and any regulations which complement, modify or replace it.
10. Force Majeure
Cashlog shall not be liable to the contracting company for any non-fulfillment or delay in the fulfillment of the obligations produced pursuant to this Contract if due to causes of force majeure or events beyond its control, in any case, including but not limited to earthquakes, floods, mutinies, riots, strikes whether corporate or by employers, delays in transport, death or accidents of employees or managers of Cashlog, problems with communications, and seizures, impediments and prohibitions by the authorities.
11. Assignment
11.1 Contract Assignment. Neither of the Parties may assign this Contract or any right or interest which is produced by it, be it in part or in fully, whether directly or indirectly, without the other Party’s prior written consent, unless it is performed to companies in its same business Group. In order to do so, a written form of communication must be sent to the other Party with no less than 5 (five) days’ prior notice.
12. Applicable Law and Competent Jurisdiction
This Contract is regulated by the laws of Spain.
For any dispute which arises involving this Contract and/or its interpretation, competence is held exclusively by the jurisdiction of Madrid.
13. Miscellaneous
13.1 Partial nullification. In the case that any provision of this Contract loses its validity or effectiveness, the other portions of this Contract shall remain fully valid and effective.
13.2 Full Agreement. The provisions established in this Contract, in the eventual offer and in the Annexes constitute the full and complete agreement reached by the Parties, and they succeed and nullify any other prior agreements reached by the Parties regarding all of the matters which are governed by this Contract.
13.3 Relationship between the Parties. The Parties formally acknowledge that the intention of this Contract is not to put into operation a common organization, company, association, shareholding, temporary joint venture or other undertaking.

@ Buongiorno S.p.A, last version published on February 20, 2012