CASHLOG - TERMS OF USE FOR MERCHANT
th
NLINE AS OF May, the 19 , 2014
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;
Cashlog Purchase API Specifications: the Application Programming Interface of Cashlog that allows
a Merchant to send purchase requests for his customers to Cashlog Platform;
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 reissuances 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;
SDK: part of software development kit to be installed on a Merchant application, which interacts
directly with Cashlog Platform in order to: (i) send to Cashlog the information useful for the billing
process; (ii) build the best End User purchase experience for each country; (iii) simplify the
Merchant integration process with Cashlog;
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 and 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 and to apply the Cahslog API Specifications and the
SDK and any technical document and instruction of Buongiorno;
d) provide a signed copy of the Merchant website terms and conditions of service/sale, which the
Merchant will resend to Buongiorno any time they are amended.
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 and any other
documentation provided and disclosed to Buongiorno 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 B!SS on one side and the
Merchant wishing to register with Cashlog on the other side and sets out the roles and obligations
of each party when utilizing 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 Merchant website and the Digital Goods supplied by the Merchant.
3.3.4. If Buongiorno does not approve the Digital Goods or Merchant website terms and
conditions of service/sale (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 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 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. In case the
Telecommunication Operators submit to Buongiorno and B!SS a request of payment of amounts
which were (a) refunded to the End User in consideration of a claim related to the purchase of the
Digital Goods or (b) voided due to cancellation of a Transaction, Buongiorno will be entitled to be
refunded by the Merchant, also by way of set off on Merchant Payout on the next Settlement
Report following the Telecommunication Operator request.
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)
• copy of the Merchant website terms and conditions of service/sale
• any other information requested of the Merchant
5.2. The Merchant shall throughout the Term of this Agreement communicate any
service/website(s) added to Cashlog providing any relevant information for Buongiorno’s prior
approval in accordance to Code of Practice and Telecommunication Operators.
5.3. 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.
5.4. The Merchant shall have and maintain throughtout the Term of this Agreement a customer
care service supplying customer care service to End Users for matters connected to Digital Goods,
the Merchant website and the purchase/subscription of Digital Goods; and
5.4.1. supply technical support in case of problem linked to Digital Goods, the Merchant website
and the purchase/subscription of Digital Goods.
5.5.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 as well as guidelines
and technical documents provided or agreed with Buongiorno.
5.6. 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.
5.7. 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.
5.8. 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.
5.9. 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.
5.10. 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.
5.11. 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 – including namely Merchant website terms
and conditions of service/sale and info privacy policy – 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.
5.12. 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.
5.13. 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.
5.14. 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.
5.15. 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.
5.16. 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.
5.17. 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.
5.17.1. 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.
5.17.2. 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.
5.18. The representations and the obligations given and committed in this article 5 are released
by the Merchant also in the name and on behalf of any merchant associated to him in any way
whatsoever for the provision of mobile payment solutions or whose website is linked to or
reachable from the Merchant's website.
5.19. the Merchant undertakes to use the Cashlog API Specifications and/or the SDK for the
purpose and in the way instructed by Buongiorno and undertakes not to modify, change, amend,
cancel, decompile, disassemble, reverse-engineer, or affect in any way whatsoever the Cashlog API
Specifications and/or the SDK unless expressly authorised by Buongiorno. The Merchant
undertakes to keep the Cashlog API Specifications and/or the SDK strictly confidential.
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 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 or related 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 - COMMERCIAL SCHEDULE TO CASHLOG TERMS OF USE
MERCHANT
1. PAYOUTS
The payout shall be fixed percentage of End User price deducted of applicable VAT or other
governmental taxes.
Country
Payout to merchants (*)
Italy
50%
Germany
70%
Spain
50%
France
60%
Switzerland
65%
(*) Calculated as a percentage of End User Price, VAT excluded
2. TERMS OF PAYMENT
The table below shows the Payments terms applied in each country.
Country
Payments terms
Italy
90 days from EoM of receipt date of Merchant invoice
Germany
45 days from EoM of receipt date of Merchant invoice
Spain
120 days from EoM of receipt date of Merchant invoice
France
60 days from receipt date of Merchant invoice
Switzerland
45 days from EoM of receipt date of Merchant invoice
3. TAXES
Taxes will be charged, wherever applicable, as according to Buongiorno’s Cashlog Agreement
Merchant.
This Annex - Commercial Schedule is an integrant part of the Cashlog Agreement Merchant and
may be modified or integrated at any time by Buongiorno and the Merchant subject to prior
written agreement between both the Parties.