GENERAL TERMS AND CONDITIONS
This mobile application (the “App”) is made available by BEEP Digital Solutions Sdn Bhd, a company limited by guarantee and registered in Brunei with number RC20003283 and with its business address at Unit 9, 2nd Floor, Spg 32-37, iCentre Block B28, Kg Anggerek Desa, Jalan Berakas, Brunei Darussalam (“BDS”, “us”, “we” or “our”).
BDS Digital Solutions Sdn Bhd is a participant in the AMBD FinTech Regulatory Sandbox and the product being tested is a Digital Payment System. For additional information please see here
USE of APP
BDS hereby grants, and Merchant hereby accepts, a non-exclusive, non-transferable, revocable, limited license, without right to sublicense, for Merchant to use the App during the term of this Agreement. All other rights in the App are reserved by BDS.
In the event Merchant breaches any of these App Terms, BDS will be entitled to terminate the Merchant Licence immediately.
Merchant acknowledges that its agreement with its mobile network provider (“Mobile Provider”) will apply to Merchant’s use of the App. Merchant acknowledges that it may be charged by the Mobile Provider for data services while using certain features of the App or any such third-party charges as may arise, and Merchant accepts responsibility for such charges.
COMPLIANCE WITH LAW
A. General. Each of the Parties will comply with all applicable laws in connection with the operation of its business and performance of its obligations under this Agreement. The Merchant will at its own cost, keep such records and do such things as are reasonably necessary to ensure that BDS complies with all applicable laws; provided always that the Merchant shall not be required to do anything which is inconsistent with or in breach of any applicable laws.
In connection with the exercise of Merchant’s rights and obligations under this Agreement (including, without limitation, any related to individual privacy), Merchant will comply, at Merchant’s own expense, with all laws, policies, guidelines, regulations, ordinances, rules applicable to Merchant, this Agreement, End User data or the Transactions and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof. Merchant shall comply with all the current policies, procedures and guidelines of BDS governing the BDS Services, including, without limitation, the the Prohibited Activity list. BDS reserves the right to amend, modify or change such policies, procedures, and guidelines at any time upon prior written notice to Merchant. Merchant shall not use the BDS Services in any manner, or in furtherance of any activity that may cause BDS, its Affiliates and Partners to be subject to investigation, prosecution, or legal action.
B. Information Verification. In order for BDS to satisfy its obligations and to comply with the relevant requirements under applicable law, upon reasonable request by BDS, the Merchant will share records and information (including the Transaction Information) with BDS from time to time and BDS is authorised by the Merchant to provide the relevant records and information to governmental agencies, regulatory authorities and third-party service providers for examination and verification as necessary.
C. AML Requirements. The Merchant shall comply with all applicable laws on anti-money laundering, counter-terrorism financing and sanctions (collectively “AML”). The Merchant shall fully cooperate with BDS’s reasonable due diligence (on site or in writing) of the Merchant’s AML policies and procedures, including but not limited to Merchant management, review of sanctions and politically exposed people, and suspicious Transaction monitoring and reporting.
D. Limitation and Reporting. In accordance with its AML, anti-fraud, and other compliance and security policies and procedures, BDS may impose reasonable limitations and controls on the Merchant’s ability to utilize the BDS Services. Such limitations may include but are not limited to rejecting Payments and/or suspending/restricting any BDS Service with respect to certain Transactions, Merchants and/or prospective Merchants of the Merchant. BDS may, for the purposes of complying with the relevant suspicious Transaction reporting requirements under applicable laws, report suspicious Transactions to the relevant authorities without informing the Merchant.
The Merchant agrees that the App contains proprietary information and material that is owned by BDS or its Licensors and is protected by applicable intellectual property and other laws, including but not limited to copyright. The Merchant agrees that it will not use such proprietary information or materials in any way whatsoever except for use of the App in compliance with this Agreement and any third-party license agreement, as applicable. No portion of the App may be reproduced in any form or by any means, except as expressly permitted in this Agreement.
PRIVACY AND CONSENT TO USE OF DATA
The Merchant shall be solely responsible, where applicable, for obtaining any necessary consent as may be required under applicable law for the collection, use, disclosure and transfer of Personal Information. Each Party will take all commercially reasonable endeavors to ensure that the Personal Information is protected against misuse and loss, or unauthorized access, modification or disclosure and will promptly notify the other Party of any loss of, or any unauthorized disclosure of or access to, the Personal Information. Each Party may retain records of Payments for complying with applicable laws and internal compliance requirements. “Personal Information” means personal information or data, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or data, processed by either Party in connection with this Agreement. BDS may transfer Transaction data, including Personal Information, to any of its Affiliates or partners in order to comply with its obligations under this Agreement.
DISCLAIMER OF WARRANTIES; LIABILITY LIMITATION
MERCHANT EXPRESSLY ACKNOWLEDGES AND AGREE STHAT USE OF THE APP IS AT MERCHANT’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APP AND ANY SERVICES PERFORMED OR PROVIDED BY THE APP ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND BDS TOGETHER WITH ITS LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP AND ANY SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, QUIET ENJOYMENT, AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. BDS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APP, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE APP WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APP OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BDS OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
BDS WARRANTS THAT IT WILL PROVIDE THE APP SUBSTANTIALLY IN ACCORDANCE WITH THIS AGREEMENT. EXCEPT AS PROVIDED HEREIN, THERE ARE NO OTHER WARRANTIES, CONDITIONS OR PROMISES ABOUT THE APP, EXPRESSED OR IMPLIED, AND ALL SUCH WARRANTIES, CONDITIONS AND PROMISES ARE EXCLUDED TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITATION TO THE FOREGOING:
BDS DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT MERCHANT’S USE OF THE APP WILL BE UNINTERRUPTED OR ERROR-FREE;
BDS DOES NOT GUARANTEE, REPRESENT OR WARRANT THAT THE APP WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND BDS DISCLAIMS ANY LIABILITY RELATING THERETO.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL BDS BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR INCOME, LOSS OR CORRUPTION OF DATA, BUSINESS LOSS OR INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO MERCHANT’S USE OR INABILITY TO USE THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF BDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BDS SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE FEES RECEIVED FROM MERCHANT UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE APPLICABLE CLAIM AROSE. BDS'S LICENSORS DISCLAIM ALL LIABILITY TO MERCHANT, WHETHER DIRECT OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL (INCLUDING LOST PROFITS), ARISING IN CONNECTION WITH THIS AGREEMENT. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS ITS ESSENTIAL PURPOSE.
BDS SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY MERCHANT IN CONNECTION WITH THE BDS APP, BUT MERCHANT ACKNOWLEDGES AND AGREES THAT ITS SUBMISSION OF SUCH INFORMATION IS AT MERCHANT’S SOLE RISK, AND BDS HEREBY DISCLAIMS ANY AND ALL LIABILITY TO MERCHANT FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
WAIVER AND INDEMNITY
BY USING THE APP, MERCHANT AGREES, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD BDS, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF MERCHANT’S BREACH OF THIS AGREEMENT, MERCHANT’S USE OF THE APP, OR ANY ACTION TAKEN BY MERCHANT AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT MERCHANT CANNOT SUE OR RECOVER ANY DAMAGES FROM BDS, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN MERECHANT, TO SUSPEND OR TERMINATE MERCHANT’S ACCESS TO THE APP, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF BDS’S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
Each Party acknowledges that the Confidential Information of the other is valuable to it and agrees to treat as confidential all Confidential Information received from the other Party in connection with this Agreement. Neither Party will disclose such Confidential Information to any third party except to its employees, officers, agents, suppliers, advisors who have the need to access the Confidential Information for such Party to perform its obligations under this Agreement or as required by Applicable Law or government authorities, and in each case, the disclosing Party will, to the extent permitted under Applicable Law, give the other Party prior notice of such disclosure. Upon termination of this Agreement or at the written request of the other Party, each Party will promptly return or destroy all material embodying Confidential Information of the other Party. Notwithstanding the foregoing, each Party may retain reasonable copies of the other Party’s Confidential Information to comply with Applicable Law or in order to exercise its rights under this Agreement, provided that such retained Confidential Information will not be disclosed or used for any other purposes. “Confidential Information” means all non-public, proprietary or other confidential information, whether in oral, written or other form, including but not limited to: the content and performance of this Agreement, business plans, capitalization tables, budgets, financial statements; costs, prices, and marketing plans, contracts and licenses, employee, Merchant, supplier, shareholder, partner or investor lists, technology, know-how, business processes, trade secrets and business models, notes, sketches, flow charts, formulas, blueprints, and elements thereof, and source code, object code, graphical design, user interfaces and other Intellectual Property, including that of any Merchant, supplier or other third party (including, in the case of BDS, the interface technologies, security protocol and certificate to any other website or enterprise provided by BDS).
Neither Party will issue any press release or make any public announcement pertaining to this Agreement without the prior written consent of the other Party unless required by applicable law binding the Party. Notwithstanding the foregoing, the Merchant agrees that the preceding limitation will not be interpreted to prevent BDS from making statements about BDS’s business or about the BDS Services in general in or outside of the jurisdiction where the Merchant is located, including but not limited to identifying the Merchant as a business partner using the BDS Services or making references publicly to the Merchant’s name, logo, trademarks or a general description of the Merchant’s cooperation with BDS for business development purpose.
MERCHANT’S OWN USE/FRAUD PREVENTION
The Merchant will only use the BDS Services for its own business operations and in such manner as stated in this Agreement. BDS shall settle funds in relation to the Transactions being processed and authorized (net the service fee it charges) directly to the Merchant. The Merchant will ensure that the BDS Services are not used for any purpose of account top-up, account transfer or any other purpose that is solely related to funds transfer without an underlying Transaction or otherwise not explicitly permitted by BDS under this Agreement.
The Merchant must only use the BDS Services for their own account, for their own business purpose and will not make use of the payment interface provided by BDS in connection with this Agreement for performing any commercial or non-commercial services for any other third parties.
The Merchant shall not act in any way which may directly or indirectly impair or detract from the goodwill or reputation of BDS, its partners or related parties and shall use commercially reasonable efforts to protect the same.
The Merchant shall not, directly or indirectly, distribute or send any Malicious Code to or through BDS’s Platform or via Alipay Users.
PROHIBITED PRODUCTS OR SERVICES
The Merchant acknowledges and agrees that the Merchant must not use the BDS Services for any Transaction(s) which is prohibited by this Agreement (including Payments in relation to Prohibited Products or Services[PM1] ) or Applicable Law or violates BDS internal policies (as notified to the Merchant from time to time). The Merchant will provide BDS with the information about its products and services as reasonably requested by BDS from time to time. Merchant acknowledge and agree not sell the products and services through the BDS Platform where such products and services contain articles prohibited from being sold to BDS Users under Applicable Law, including without limitation the Prohibited Products and Services listed in the link above to the extent applicable, which may be updated by BDS and notified to the Merchant from time to time (collectively the “Prohibited Products and Services”). The Merchant must ensure that no Transaction being submitted for BDS processing involves or relates to any Prohibited Products and Services (the “Prohibited Transaction”). BDS will have the right to refuse any BDS Services with respect to any Prohibited Transaction and the Merchant will indemnify and hold harmless BDS for any damages, losses and liabilities that BDS may suffer arising from or in connection with such Prohibited Transaction.
*[PM1]Need a link to the Prohibited Products or Services list
If Merchant fails, or BDS suspects that Merchant has failed, to comply with any of the provisions of this Agreement, BDS, at its sole discretion, without notice to Merchant may (i) terminate this Agreement and/or Merchant’s BDS Account, and Merchant will remain liable for all amounts due under Merchant’s BDS Account up to and including the date of termination.
Upon termination of this Agreement, Merchant shall cease all use of the App and destroy all copies, full or partial, of the App. If Merchant is dissatisfied with any aspect of an App at any time, Merchant’s sole and exclusive remedy is to cease using it. Notwithstanding the foregoing, the following sections shall survive termination of this Agreement: Privacy and Consent to Use of Data, Disclaimer of Warranties; Liability Limitation, Waiver and Indemnity, Intellectual Property; Use of Content and Governing Law.
Notwithstanding any other provision of this Agreement, BDS acting reasonably reserves the right to change, suspend, remove, or disable access to any BDS application program interfaces (“APIs”), or the BDS App, content or other materials comprising a part of the App at any time without notice or liability.
Merchant May Terminate for Material Breach. Merchant may terminate this agreement with immediate effect by delivering notice of the termination to BDS, if BDS fails to perform or otherwise materially breaches, any of its covenants, representations, or obligations, and the failure or breach continues for a period of thirty (30) Business Days' after Merchant delivers notice to BDS reasonably detailing the breach.
USE OF CONTENT
Merchant agrees not to violate, circumvent, reverse-engineer, decompile, disassemble, alter, modify, adapt, create derivative works or otherwise tamper with all or any part of the technology related to the App, or to attempt or assist another person to do so. Merchant agrees not to access the App by any means other than through software that is provided by BDS for accessing the App. Merchant shall not access or attempt to access a BDS Account that Merchant is not authorized to access. Merchant agrees not to modify the software in any manner or form, or to use modified versions of the software, for any purposes including obtaining unauthorized access to the App and/or BDS Accounts. Violations of system or network security may result in civil or criminal liability.
GOVERNING LAW/DISPUTE RESOLUTION
This Agreement will be governed by and construed under Brunei Darussalam law, without regard to its principles of conflict of laws.
Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force. The appointing authority shall be the President for the time being of the President of the Law Society of Brunei Darussalam. The number of arbitrators shall be (1) one. The place of arbitration shall be Bandar Seri Begawan. The language to be used in the arbitral proceedings shall be English.
Neither Party will be liable for its failure to perform or the delayed performance of its obligations if such failure results from circumstances beyond the affected Party’s reasonable control, including without limitation supplier strikes, lock-outs and labour disputes, acts of God(s), war, riot, civil commotion, acts of terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction not in force on the Effective Date, accident, fire, flood or severe weather conditions (“Event of Force Majeure”). Each Party agrees to give the other Party prompt notice, containing sufficient details, of any Event of Force Majeure. If an Event of Force Majeure continues for more than ninety (90) working days, either Party will have the right to terminate, without further liability to the other, except that Merchant remains liable for payment of unpaid amounts in respect of the BDS Services.
The rights and obligations of the Parties which by their nature must survive termination or expiration of this Agreement in order to achieve their fundamental purposes shall survive any termination or expiration of this Agreement.
CHANGES TO THESE TERMS
BDS may occasionally change the terms and conditions in this Agreement. If a material change is made, a notice will be posted via the App. If Merchant continues to use the App after these changes are posted, Merchant agrees to the revised Agreement.