Terms of Use
June 15, 2009
BY USING THE BOKU SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (INCLUDING ALL BOKU POLICIES), EACH AS MAY BE MODIFIED FROM TIME TO TIME. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE OR ACCESS THE SERVICE.
This User Agreement (the "Agreement") is an agreement between you (“you”, “your”) and Vidicom Limited, ("we", "us", "our", or "Boku") and applies to your use of our SMS based payment processing service (“SMS Payment Service”), the www.boku.com website and any related websites, products and services (collectively the "Boku Service"). This Agreement applies regardless of how you access the Boku Service. This Agreement explains our and your respective legal rights and obligations concerning all aspects of our relationship. In addition to the terms of this Agreement, you agree to the terms of the policies, notices, procedures, specifications, guides and guidelines that are provided to you, appear on the Boku website located at http://www.boku.com (the “Website”) or are referenced in this Agreement (collectively, the "Boku Policies"). We may modify the terms of this Agreement (including any Boku Policy) or the features of the Boku Service at any time. We will promptly post the amended Agreement or Boku Policy to our Website. Any such change in terms will be effective when communicated to you by posting to the Website or otherwise.
1. Use of the Boku Service. To use the Boku Service, you must have an SMS-enabled mobile phone capable of and authorized by the applicable wireless carrier for using Premium SMS text services (“Eligible Mobile Device”). If you are an individual, you must be either (a) at least 18 years old or (b) at least 13 years old and have been authorized by your parent or guardian to use the Boku Service. If you represent a business, you must be duly authorized to enter into this Agreement on behalf of the business. You represent that you are the owner or authorized user of the Eligible Mobile Device and are responsible for any charges associated and/or have the bill payer’s permission to use the Boku Service to obtain goods or services. Charges for use of the Boku Service are made via your mobile phone bill, or deducted from your prepaid account via premium SMS message(s) (the “Boku Charges”). There are limits on the amount of Boku Charges you may accrue per transaction and for specified time intervals as are imposed by Boku and wireless carriers that are applicable to your use of the Boku Service. Boku Charges exceeding these limits may be rejected by Boku or your wireless carrier in their sole discretion. The total amounts payable will be reflected in one or more messages transmitted to your phone. Your confirmation of the Boku Charges via a text response will be deemed further evidence of your authorization to have the Boku Charges reflected on your account with the wireless carrier. The Boku Charges are separate and apart from any other charges that may be assessed by your wireless carrier for messages sent to or received from Boku. Standard message charges apply. You are responsible for any fees or other charges that your wireless carrier may charge for any related data or message services, including without limitation for SMS, unless noted otherwise. Under no circumstances will Boku or its corporate affiliates be responsible for any wireless email or text messaging charges incurred by a user or by a person that has access to a user's wireless device or telephone number.
You may access information about your recent transactions, where available by logging on to the designated section of the Boku Website and entering the pin number provided to you during your most recent transaction. A user understands, acknowledges and agrees that Boku may, at its sole discretion and without liability to any user, terminate the Boku Services at any time without advance notice. Boku may provide notice of terminations or changes in services on its Website.
2. USAGE OF DATA. Boku will not use your mobile number for any third party marketing purpose. Use of your data will be governed by Boku’s Privacy Policy.
3. BOKU SERVICES. Boku provides clearinghouse services on behalf of one more wireless carriers and their agents. The Boku Services enable you to use your mobile number to purchase content, eligible goods and/or services from third party Publishers (“Publishers”). Except for Boku’s limited role in processing payments that you authorize or initiate, we are not involved in any underlying transaction between you, any other user, or any Publisher. Boku is not a bank, finance company, money transferor or other regulated or unregulated entity in the business of banking or providing banking services. We may use the services of one or more third party, processors and/or financial institutions to provide the Boku Services and process your transactions.
4. FRAUD. The Boku Services may only be used for the purpose of the transacting with authorized Publishers and not for any illegal, fraudulent purposes of any kind. Boku Charges cannot be refunded back to the handset or deducted from the phone bill. If you feel your mobile device has been used without authorization, fraudulently or illegally, please contact fraud@boku.com. At Boku’s discretion, any information provided by you in connection with a report of fraud or illegal conduct may be passed to a relevant local authority department.
5.Service Related Issues. If you are dissatisfied for any reason or are otherwise experience problems with the Boku Service, please contact us. Boku is constantly working on improving the Boku Service and will use every effort to investigate issues promptly and to your satisfaction.
6. Your Responsibilities. If you are a buyer and you are unhappy with any content, goods or services that you have purchased using the Boku Services, you should contact the Publisher directly first. If you are unable to resolve the matter with the Publisher, you may notify us to file a complaint against the Publisher.
7. Disclaimer. We have no control over the quality, fitness, safety, reliability, legality, or any other aspect of (a) any good or service that you may purchase or sell using the Boku Service or (b) any Publisher’s storefront or website that you may access as part of using the Boku Services. We do not monitor the actions or the status of Publishers. We are not required to issue refunds if a product or service turns out to not meet your expectations, or if the Publisher does not fulfill its commitments. We have no obligation, and cannot guarantee that, we will resolve any disputes related to any transaction to your satisfaction. The Boku Service is provided “AS IS” and without warranty. You acknowledge and agree that from time to time, the Boku Service may be delayed, interrupted or disrupted for an indeterminate period of time due to circumstances beyond the reasonable control of Boku including, without limitation, any inaccuracy, interruption or delay in transmission by the telecommunications carrier used with the Eligible Mobile Device to access the wireless web, or any interruption, disruption or failure in the provision of the Boku Service, whether caused by strikes, power failures, equipment malfunctions or other reasons. Boku and its affiliates shall not be liable for any claim arising from or related to the Boku Service arising from any such delay, interruption, disruption or similar failure. In no event will Boku or any affiliate or aggregator be liable for indirect, consequential or special damages, including lost profits, arising from your use of the Boku Service, even if such damages were reasonably foreseeable and notice was given regarding them. These limitations will apply to all causes of action, whether arising from breach of contract, tort (including negligence) or any other legal theory. By identifying a cell phone or other device as an Eligible Mobile Device for use with the Boku Service, Boku does not recommend, endorse or make any representation or warranty of any kind regarding the performance or operation of such device. You are responsible for the selection of an Eligible Mobile Device and for all issues relating to the operation, performance and costs associated with such device with your telecommunications carrier. Except as otherwise required by applicable law or regulation, Boku may terminate your use of the Boku Service and expand, reduce or suspend the type and or dollar amounts of transactions allowed using the service, change the enrollment process and transaction limits associated with it from time to time based on security issues and other factors at any time in its sole discretion without prior notice.
8.STOP PAYMENTS AND Processing Errors. You may stop your use of the Boku Service, by texting a keyword (e.g., "STOP," "CANCEL," "END," "UNSUBSCRIBE," "QUIT," etc.) to the applicable shortcode for the Boku Service (i.e., the shortcode which was displayed to you when you initially elected to use the Boku Service). If you stop the Boku Service in the middle of a billing cycle, you will not be charged for the following billing cycle, but you will not receive any refund for the current billing cycle. In the event there is an error in the processing of any transaction, you authorize us to initiate debit or credit entries to your account with your wireless carrier, as applicable, to correct such error, provided that any such correction is made in accordance with applicable laws and regulations.
9.Taxes. You are responsible for determining any and all taxes and duties, including without limitation, sales, use, transfer, value added, withholding, income, and other taxes and/or duties assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with any request for or performance of the Boku Service, your use of the Website, the purchase of any products or services for a transaction, or otherwise in connection with any action, inaction, or omission by you or any affiliate of yours, or any of your or their respective employees, agents, contractors, or representatives ("Taxes"). You also are responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We and our affiliates are not obligated to determine whether Taxes apply and are not responsible for calculating, collecting, reporting, or remitting any Taxes to any tax authority arising from any transaction.
10.Acceptable Use. You will at all times adhere to all applicable laws, rules, and regulations applicable to your use of the Boku Service. Without limiting the foregoing, you may not act as a payment intermediary, aggregator or service bureau or otherwise resell the Boku Service on behalf of any third party, including without limitation the handling, processing, and transmission of funds for any third party. We may refuse to provide and have the right to disable the Boku Service to you or any other user at any time for any reason or no reason whatsoever, including, without limitation, if we suspect fraud, illegal, unauthorized or improper conduct or if your use of the Boku Service results in excessive requests for refunds or chargebacks.
11. NO WARRANTY. THE WEBSITE AND THE BOKU SERVICES ARE PROVIDED ON AN "AS IS" BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE WEBSITE, THE BOKU SERVICE OR ANY APPLICATION OR DOCUMENTATION, INCLUDING WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTIES OF PUBLISHERABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; (B) THAT THE WEBSITE, THE BOKU SERVICE, OR ANY APPLICATION OR DOCUMENTATION WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OPERATE WITHOUT ERROR, OR WILL CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY; OR (C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR TRADE USAGE.
12. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR AFFILIATES (AND OUR AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AGENTS AND REPRESENTATIVES) WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE, THE BOKU SERVICE (INCLUDING THE INABILITY TO USE THE BOKU SERVICE), OR ANY SERVICES OR GOODS PURCHASED OR TRANSACTIONS ENTERED INTO THROUGH THE BOKU SERVICE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF BOKU OR OUR AFFILIATES (AND OUR AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AGENTS AND REPRESENTATIVES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY), WARRANTY, OR OTHERWISE, EXCEED THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY. In no event will we be liable to you for any failure or delay by us (or our employees, agents, or representatives) in performing our obligations under this Agreement, regardless of whether the failure or delay is caused by an event or condition beyond our control. The laws of certain states or other jurisdictions do not allow limitations on implied warranties, or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have rights in addition to those contained in this Agreement. Our liability is limited to the greatest extent permitted by law.
13.INDEMNITY. You will indemnify and hold harmless us and our affiliates (and their respective employees, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, Tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys' fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our Boku Policies; (b) your wrongful or improper use of the Boku Service; or (c) any illegal or fraudulent use of the Boku Service.
14. GENERAL PROVISIONS.
14.1 Electronic Notices and Your Consent. We primarily communicate with you via your registered electronic address, (e-mailing and SMS messaging). By using the Boku Service and thus accepting the terms of this Agreement, you affirmatively consent to receive notices electronically from us (your "Consent"). You agree that we may provide all communications and transactions related to the Boku Service, including without limitation agreements related to the Boku Service, amendments or changes to such agreements, disclosures, notices, transaction information, statements, policies (including without limitation notices about our Privacy Policy), responses to claims, and other customer communications that we may be required to provide to you by law in electronic format (collectively, "Communications"). All Communications by us will be sent either (a) via e-mail or SMS messaging associated with your mobile phone, (b) by providing access to a Website that we designate in an e-mail or SMS notice to you, or (c) posting to our Website. All Communications will be deemed to be in "writing" and received by you when sent to you. You are responsible for creating and maintaining your own records of such Communications. You must send notices to us at the designated e-mail address(es) on the Website or through the submission forms on the Website. We reserve the right to discontinue or modify how we provide Communications. We will give you prior notice of any change.
14.2 Governing Law; Venue. The laws of the State of California govern this Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws. Any dispute relating in any way to your visit to the Website use of the Boku Services in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $5,000 shall be adjudicated in any state or federal court in the County of San Mateo, California, and you consent to exclusive jurisdiction and venue in such courts.
14.3 Assignment. You may not assign or transfer any rights, obligations, or privileges that you have under this Agreement without our prior written consent. Subject to the foregoing, this Agreement will be binding on each party's successors and permitted assigns. Any assignment or transfer in violation of this section will be deemed null and void.
14.4 No Waiver. We will not be considered to have waived any of our rights or remedies, or portion of them, unless the waiver is in writing and signed by us. Our failure to enforce the strict performance of any provision of this Agreement (including any Boku Policy) will not constitute a waiver of our right to subsequently enforce such provision or any other provisions of this Agreement (including any Boku Policy).
14.5 No Agency. Nothing in this Agreement is intended to or creates any type of joint venture, employee-employer, creditor-debtor, escrow, partnership, or any fiduciary relationship between you, us or our affiliates.
14.6 Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect and, upon our request, the court will construe any invalid or unenforceable portions in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement and the rest of the Agreement remains in full force and effect.
14.7 Entire Agreement. This Agreement, including without limitation the Boku Policies and the general terms and conditions of the Website, constitute the entire agreement of the parties with respect to the subject matter of this Agreement, and supersede and cancel all prior and contemporaneous agreements, claims, representations, and understandings of the parties in connection with the subject matter of this Agreement. Except as expressly provided above, no modification or amendment of this Agreement will be binding on Boku unless set forth in a writing signed by us.