Boku Inc.

Boku Terms of Use (European Economic Area E-Money Terms )

BY USING THE BOKU E-MONEY PAYMENT SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (INCLUDING THE BOKU PRIVACY POLICY), 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 Boku Account Services UK Ltd, an electronic money institution authorised and regulated by the Financial Conduct Authority with register number 900030 and whose principal address is at 2-6 Boundary Row, London, SE1 8HP, United Kingdom, (“we”, “us”, “our”, or “Boku”) and applies to your use of our SMS based regulated electronic money service (the “Boku e-Money Payment Service”). This Agreement applies regardless of how you access the Boku e-Money Payment 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 privacy policy found at: https://www.boku.com/privacy/ (the “Boku Privacy Policy”). Boku may change the Agreement and the new terms will be posted on https://www.boku.com (the “Website”) at least two months in advance. You will be deemed to have accepted the changes unless you notify Boku otherwise before the change comes into force. If you notify Boku that you do not accept the changes, you must stop using the Boku e-Money Payment Service and this Agreement will terminate at the end of the notice period. You also have the right to terminate the Agreement immediately and without charge at any time within the notice period, provided that transactions completed prior to your termination of the Agreement remain payable. If you would like a copy of this Agreement sent to your e-mail, please contact Customer Service.

1. Use of the Boku e-Money Payment Service. To use the Boku e-Money Payment 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 e-Money Payment 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 e-Money Payment Service to obtain goods or services. Boku e-Money Payment Service shall be charged to your mobile phone bill, or deducted from your prepaid account (the “Boku Charges”). We will regard a Boku Charge as authorised by you if you follow the instructions provided by us. Once we have received your authorisation you cannot withdraw it.

There are limits on the amount of Boku Charges you may accrue per transaction, on subscriptions and for specified time intervals as are imposed by Boku and wireless carriers that are applicable to your use of the Boku e-Money Payment Service. You may not purchase or hold more than €150 (or equivalent) of e-Money at any one time and you may not purchase more than €2,500 (or equivalent) of e-Money in any given calendar year to pay for goods or services (the “Basic e-Money Limits”). If you reach one of the Basic e-Money Limits, you may continue to use the Boku e-Money Payment Service (which we call the Full Value e-Money Payment Service), subject to the successful completion of the relevant anti-money laundering, counter-terrorist and anti-fraud checks by us against you (see Section 17 for further details). Unless you have been approved to use the Full Value e-Money Payment Service, Boku Charges exceeding these limits will be rejected by Boku or your wireless carrier. Amounts payable will be confirmed in one or more messages transmitted to your phone. Your confirmation of the Boku Charges via a text response performed manually or automatically by electing to continue with the transaction will be deemed further evidence of your authorization to have the Boku Charges added to your account with the wireless carrier. The Boku Charges are separate and apart from any other charges that may be charged by your wireless carrier for messages sent to or received from Boku. Standard message charges apply. Your wireless carrier may impose fees and charges in the event it is required to collect from you any unpaid charges (which may include Boku Charges). 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 we state otherwise. Under no circumstances will Boku or its corporate affiliates be responsible for any wireless e-mail or text messaging charges incurred by you or by a person that has access to your wireless device or telephone number.

You must take all reasonable steps to keep the Eligible Mobile Device safe from unauthorized use.

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 the Boku Privacy Policy.

3. BOKU E-MONEY PAYMENT SERVICES.

3.1 Service. The Boku e-Money Payment Services enable you to use your mobile number to purchase content, eligible goods and/or services from third party merchants (“Merchants”) on a transaction or subscription basis. This is done by purchasing Boku e-Money which is then used to pay the Merchant for the content, eligible goods and/or services. To facilitate the purchase, the Merchant extends credit to you for the purchase amount until such time you pay the entire amount credited to you via your mobile phone account and we pay that amount to the Merchant. The credit extended cannot be used for any purpose other than the eligible goods and/or services from that Merchant. You must settle in full the credit equal to the Boku Charges extended to you via your mobile phone account (if applicable) in accordance with the terms of your agreement with the wireless carrier but in any event within a year. We may use the services of one or more third party processors and/or financial institutions to provide the Boku e-Money Payment Services and process your transactions. The time that Boku will receive your payment order for a transaction is the date on which Boku receives funds from the wireless carrier. Boku will credit the amount of (i) any transaction to the Merchant’s e-Money account and (ii) any refund to you as soon as possible after Boku receives the relevant payment order and in any case by the end of the next business day.

3.2  Redemption of e-Money. The swift nature of the Boku e-Money Payment Service means that you do not hold e-Money sufficiently long enough to permit redemption of the e-Money.

4. RECEIPT

An SMS notification will be sent to you by the end of the next day following a purchase or refund, setting out: (i) the purchase or refund reference; (ii) the amount of the purchase or refund.

You may access information about your recent transactions, which are available by logging on to the designated section of the Boku Website and entering the pin number (or other designated security feature). Please follow the instructions on the boku.com support section or ring Customer Services to obtain the pin number as required.

5. FRAUD AND ANTI-MONEY LAUNDERING

The Boku e-Money Payment Services may only be used for the purpose of making transactions with authorized Merchants and not for any illegal, fraudulent purposes of any kind. If you feel your Eligible Mobile Device has been used without authorization, fraudulently or illegally, please contact [email protected] 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 government or law-enforcement authority.

Boku reserves the right to conduct anti-money laundering, counter-terrorist financing and anti-fraud checks and suspend or terminate the e-Money Payment Service without notice if the checks are not satisfactory. You agree to cooperate with Boku by providing all information and documents requested by Boku for the purposes of these checks.

6. Complaints and Service Related Issues

If you are dissatisfied for any reason or otherwise experience problems with the Boku e-Money Payment Service, please contact us at [email protected] Boku is constantly working on improving the Boku e-Money Payment Service and will use every effort to investigate issues promptly and to your satisfaction. Boku will propose a resolution in accordance with its complaint handling policy. A copy of the complaint handling policy can be found at https://www.boku.com/emoney-complaint-policy and is also available on request.

7. Financial Ombudsman Service

If you are dissatisfied with Boku’s handling of your complaint in relation to the Boku e-Money Payment Service, you may refer your complaint to the Financial Ombudsman Service, which can be contacted: (i) by post at Financial Ombudsman Service, South Quay Plaza, 183 Marsh Wall, London E14 9SR; (ii) by telephone on 0800 023 4567 or 0300 123 9 123; and (iii) by e-mail at [email protected].

8. REFUNDS AND ERROR REPORTING

If you report without undue delay, and in any event within 15 months of the transaction date, any incorrectly executed payment transactions (including those that you believe have not been executed or executed incorrectly) and we find that the incorrect execution of the relevant payment transaction is our fault or that of the applicable wireless carrier, Boku will refund the amount of the relevant payment transaction and any related charges. In all other situations your eligibility to receive a refund from Boku is dependent on a number of factors, including whether your transaction was authorized and the nature of your dissatisfaction. If for any reason you believe that all or a portion of a Boku Charge was unauthorized or if you completed the transaction but did not receive the products or services purchased (“Errors”), you may be eligible for a refund by following the error reporting process described below.

You should contact us immediately if you believe that: (1) Your transaction confirmation was sent in error; (2) You have only been partially billed; (3) You need more information about a Boku Charge listed on your mobile phone statement; or (4) There has been an unauthorized transaction, other error or unauthorized access to your phone resulting in a Boku Charge. You must notify us no later than forty-five (45) days after the date the relevant Boku Charge was added to your mobile account. We will extend the 45-day time period if a good reason, such as a hospital stay, prevented you from notifying us within this period. (Written confirmation may be requested.) When you notify us (orally or in writing), you will need to provide us with the following information: (1) Your name and the mobile phone number used for the transaction; (2) A description of the suspected Error and an explanation as to why you believe it is incorrect or why you need more information to identify the transaction; and (3) The date and amount of the suspected Error. During the course of our investigation, we may request additional information from you. In the case of unauthorized transactions we may require that you provide us with a copy of a valid police report or phone carrier report. For fulfillment issues we will first contact the Merchant on your behalf in an attempt to resolve the issue. Once you notify us of a suspected Error, we will investigate your complaint or address your question within 10 business days of our receipt, excluding bank holidays.

Notwithstanding the rest of this section 8, as Boku cannot prevent the use of the Eligible Mobile Device and you are using the Boku e-Money Payment Service anonymously, you are ultimately liable for all losses relating to unauthorized use of the Eligible Mobile Device and may not be entitled to any refund from Boku for any such unauthorized use.

Boku reserves the right to conduct checks about you and the transactions made using your Eligible Mobile Device in order to comply with its anti-money laundering, counter-terrorist financing and anti-fraud obligations before transferring any funds to you via your wireless carrier. If the information gathered from your checks are unsatisfactory or you no longer have a valid account with your wireless carrier, Boku will retain the funds until you provide Boku with the information or documents require or you provide us with a valid account associated with an Eligible Mobile Device. Any funds held by Boku will become the property of Boku at the end of the period of six years commencing on the termination of the Agreement.

You agree that with regard to any funds that have been incorrectly refunded to you, for any reason, such funds are a debt owed to Boku and that you will promptly repay such funds to Boku.

9. Your Responsibilities

If you are unhappy with any content, goods or services that you have purchased using the Boku e-Money Payment Services, you should contact the Merchant directly first. If you are unable to resolve the matter with the Merchant, you may contact us to file a complaint against the Merchant.

10. 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 e-Money Payment Service or (b) any Merchant’s storefront or website that you may access as part of using the Boku e-Money Payment Services. We do not monitor the actions or the status of Merchants. We are not required to issue refunds if a product or service turns out to not meet your expectations, or if the Merchant does not fulfill its commitments. We have no obligation to, and cannot guarantee that we will, resolve any disputes related to any transaction to your satisfaction. The Boku e-Money Payment Service is provided “AS IS” and without warranty. You acknowledge and agree that from time to time, the Boku e-Money Payment 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 e-Money Payment 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 e-Money Payment 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 e-Money Payment 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. However, nothing in this Agreement excludes or restricts the liability of either you or us for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation, liability of either you or us for any liability that can’t be excluded or restricted by law. By identifying a cell phone or other device as an Eligible Mobile Device for use with the Boku e-Money Payment 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.

11. Processing Errors

In the event there is an error in the processing of any transaction, you authorize us to initiate debit or credit funds 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.

12. 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 e-Money Payment 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.

13. Acceptable Use

You will at all times adhere to all applicable laws, rules, and regulations applicable to your use of the Boku e-Money Payment Service . Without limiting the foregoing, you may not act as a payment intermediary, aggregator or service bureau or otherwise resell the Boku e-Money Payment Service on behalf of any third party, including without limitation the handling, processing, and transmission of funds for any third party. Subject to section 17(b), we may refuse to provide and have the right to disable the Boku e-Money Payment Service to you if we suspect fraud, illegal, unauthorized or improper conduct, if your use of the Boku e-Money Payment Service results in excessive requests for refunds or chargebacks or if you breach this Agreement.

14. NO WARRANTY

THE WEBSITE AND THE BOKU E-MONEY PAYMENT 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 E-MONEY PAYMENT SERVICE OR ANY APPLICATION OR DOCUMENTATION, INCLUDING WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; (B) THAT THE WEBSITE, THE BOKU E-MONEY PAYMENT 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.

15. 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 E-MONEY PAYMENT SERVICE (INCLUDING THE INABILITY TO USE THE BOKU E-MONEY PAYMENT SERVICE), OR ANY SERVICES OR GOODS PURCHASED OR TRANSACTIONS ENTERED INTO THROUGH THE BOKU E-MONEY PAYMENT 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 €3,000. Except to the extent of any liability with respect to the e-Money Payment Service that as a matter of law cannot be limited, 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.

16. 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 Privacy Policy; (b) your wrongful or improper use of the Boku e-Money Payment Service; or (c) any illegal or fraudulent use of the Boku e-Money Payment Service.

17. FULL VALUE E-MONEY PAYMENT SERVICE

Notwithstanding anything in the Agreement to the contrary, the following terms will apply if you have reached the Basic e-Money Limits and have successful completed the relevant anti-money laundering, counter-terrorist financing and anti-fraud checks. You must register and maintain a valid e-mail address with us. You shall then have access to Boku’s Full Value e-Money Payment Service which will permit you to continue processing transactions and allow you to surpass the Basic e-Money Limits. However, Boku and your wireless carrier may still impose additional limitations at their sole discretion.

(a) You must notify Customer Support at [email protected] without undue delay on becoming aware of the loss, theft, misappropriation or unauthorized use of the Eligible Mobile Device.

(b) Boku may suspend the use of the e-Money Payment Service on reasonable grounds relating to the security of the Eligible Mobile Device or the associated account with your carrier, or their suspected unauthorized or fraudulent use. Boku will inform you by e-mail stating the reasons for the suspension in advance, or immediately after if this is not possible, unless to do so would compromise reasonable security measures or would otherwise be unlawful. Boku will lift the suspension as soon as practicable after the reasons for the suspension cease to exist.

(c) If you report without undue delay any unauthorized payment transaction, and in any event within 15 months of the transaction, Boku will immediately refund the amount of the transaction and any related charges unless there is fraud or gross negligence on your part in relation to the transaction and your use of the e-Money Payment Service, in which case you will be fully liable for the transaction. You agree that any funds that have been incorrectly refunded to you under this section are a debt owed to Boku and that you will promptly repay such funds to Boku.

(d) Boku will send you a copy of this Agreement to your registered e-mail address immediately after your gaining access to Boku’s Full Value e-Money Payment Service.

(e) Any changes to the Agreement and any termination notice by us will be sent to your registered e-mail address two months in advance.

18. GENERAL PROVISIONS.

18.1 Electronic Notices and Your Consent. We primarily communicate with you by email or SMS messages using the email address and Eligible Mobile Device you have registered for this service. By using the Boku e-Money Payment Service and thus accepting the terms of this Agreement, you give your consent to receive notices in this way (your “Consent”). You agree that we may provide all communications and transactions related to the Boku e-Money Payment Service, including without limitation this Agreement, subsequent amendments or changes to this Agreement, disclosures, notices, transaction information, statements, policies (including without limitation notices about the Boku 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 a link to our Website that we provide in an e-mail or SMS notice to you, or (c) posting a notice 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. You must notify us promptly of any changes to your email address or mobile phone. We reserve the right to discontinue or modify how we provide Communications. We will give you prior notice of any change in accordance with the first paragraph of this Agreement.

18.2 No Interest. You will not be entitled to any interest on funds held as e-Money.

18.3 Term. This Agreement is a contract for an indefinite term and will continue until it is terminated by us or you.

18.4 Termination. Boku may terminate the Agreement at any time by providing you with two months’ notice sent to your Eligible Mobile Device. You may terminate the Agreement at any time by notifying Boku.

18.5 Governing Law; Venue. This Agreement and all related disputes, will be governed by English law. The parties submit to the exclusive jurisdiction of the English courts except where the law of the European Union provides otherwise. This section does not deny you the consumer rights of your home country that exceed the consumer rights under English law nor your right to enforce the terms of this Agreement in the local courts of your home country.

18.6 Language. The language of the Agreement and all communications is English. Any translation provided is for information purposes only. In the event of a conflict in meaning between the English version and a translation the English version will prevail.

18.7 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 not permitted under this section will be deemed null and void.

18.8 No Waiver. We will not be considered to have waived any of our rights or remedies, or any 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 the Boku Privacy Policy) will not constitute a waiver of our right to subsequently enforce such provision or any other provisions of this Agreement (including the Boku Privacy Policy).

18.9 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.

18.10 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.

18.11 Entire Agreement. This Agreement, including the Boku Privacy Policy, 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.