Terms and Conditions

By using the Checkout Service (the “Service”), you are indicating acceptance and agreement with all terms and conditions of this transaction.

If you do not agree to these Terms and Conditions, you should select the “Cancel” button to terminate your use of the Checkout Service.

OpenMarket provides the Checkout Service which is used for you to purchase the product or service from <merchant name placed here>. When using the Checkout Service, OpenMarket is only acting as an independent contractor in sending your payment authorizations to Mobile Carriers. OpenMarket is not responsible for, and does not control or endorse any goods or services supplied by third party retailers. Any purchases of goods or services are subject to the individual retailer’s terms and conditions as specified on their website or as otherwise published to you.

Merchant Terms & Conditions

<Merchant Terms and Conditions placed here>

Mobile Carrier Billing

By using the Checkout Service, payment will be collected on behalf of <Merchant name placed here> and the purchase amount will be placed on your mobile phone bill issued by your Mobile Carrier. If you have a contract with your Mobile Carrier the charge will appear on your monthly phone bill. If you are a prepaid customer, the purchase amount will be deducted from your airtime credit. The amount you can spend each month and the value of each transaction may be limited by your Mobile Carrier. Please see your Mobile Carrier’s website for additional terms of use.

Subscriptions are an agreement to allow the customer to be billed on a recurring basis. Products that involve a subscription are designated as a subscription in the product description and include a billing frequency. If you purchase a subscription, the subscription may be terminated at any time by texting ‘STOP’ to short code . You may also contact the merchant directly at <Merchant HelpLine placed here>.

Use of the Checkout Service

In order to use the OpenMarket Checkout Service you must have a mobile phone with text messaging capabilities (a “Mobile Device”) and a plan with your Mobile Carrier that enables you to send premium text messages and/or place premium charges on your Mobile Phone Bill. In order to make Mobile Carrier purchases, your Mobile Carrier must be one of OpenMarket’s participating operators.

You are solely responsible for all charges related to use of your Mobile Device in conjunction with the Service. You must be at least 13 years old to use the Service. If you are 13 or older but under the age of 18, you should review these terms and conditions with your parent or guardian to make sure that you and your parent or guardian understand these terms and conditions and that your parent or guardian consents to your use of the Service under these terms and conditions.

Data Privacy

OpenMarket’s Checkout Privacy Policy is available at
http://www.openmarket.com/privacy-policy-information/checkout-service-privacy-policy/ and within the checkout process flow. For Mobile Carrier Billing, the only information required from you is your mobile phone number and data related to your purchases, such as the product purchased, the purchase amount, the Merchant, and the application and/or website location from which goods are made available.

Acknowledgements by You

You acknowledge that: (i) the Checkout Service may utilize text messaging services which can result in additional wireless charges from your Mobile Carrier and that you are solely responsible for such charges; (ii) transactions initiated by you through the Checkout Service are non-cancelable and may not be refunded through the Checkout Service; (iii) you are solely liable for use and access to the Checkout Service from your Mobile Device and that OpenMarket shall have no liability to you or any third party for any unauthorized use or access of the Checkout Service through your Mobile Device; (iv) the charges for Mobile Carrier Billing Purchases will be reflected in your Mobile Carrier bill, and that you are solely responsible for such charges and for any taxes (including but not limited to use taxes), duties, currency exchange fees, data charges and related charges to such transactions; (v) if OpenMarket, a Mobile Carrier, our payment transaction processor, or a Merchant determines not to accept a transaction you initiate through the Checkout Service, OpenMarket, the Mobile Carrier, the payment transaction processor, and the Merchant shall not have any liability to you; and (vi) OpenMarket does not have control of or liability for the items purchased or the delivery of the items purchased to you and shall not have any liability to you for any actions taken or charges applied by a Mobile Carrier or a Merchant with respect to the items purchased or for any failure of delivery of the items purchased. The Checkout Service, including all materials and all intellectual property rights therein, remains the property of OpenMarket or its licensors or suppliers. If you have any questions about these terms, you can contact us athttp://www.openmarket.com/contact-us/.

Representations

You represent that: (i) you will comply with all laws, rules and regulations, any Mobile Carrier requirements, and the requirements of your authorized payment provider applicable to your use of the Checkout Service; (ii) there is no law or restriction barring you from using the Service; (iii) you own and/or are authorized to use the Mobile Device, authorized payment method, and Mobile Number in conjunction with the Checkout Service; and (iv) you are solely responsible for use of your Mobile Device with the Checkout Service and for use of and access to your Registered Account.

Availability of the Service

OpenMarket works to ensure that the Checkout Service is available 24 hours a day, 7 days a week. However, there will be occasions when your account may not be accessible and/or the Checkout Service will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. You agree that OpenMarket will not be liable to you for any unavailability, suspension or discontinuance of the Checkout Service. OpenMarket reserves the right to refuse to provide the Checkout Service to you at any time for any reason without notice.

Disclaimer of Liability for Goods or Services Paid for Using the Checkout Service.
We are not responsible for and do not have any liability for any goods or services purchased or paid for through the Checkout Service, including if a product or a service you purchased is unsafe, is not delivered, breaks, is different than as represented, or otherwise does not meet your needs or expectations. If a problem arises with the product or service you purchased from a third party retailer (e.g., a merchant), you need to resolve your issue directly with the Merchant.

DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT THE GOODS PURCHASED USING THE OPENMARKET CHECKOUT SERVICE ARE PROVIDED BY THIRD PARTIES AND NOT BY OPENMARKET, AND THAT OPENMARKET SHALL HAVE NO LIABILITY TO YOU WHATSOEVER REGARDING SUCH GOODS OR RELATED TO THE DELIVERY OF THE GOODS. THE CHECKOUT SERVICE PROVIDED BY OPENMARKET IS ON AN “AS IS” AND “AS AVAILABLE” BASIS. OPENMARKET MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS TO THE OPERATION OF THE CHECKOUT SERVICE OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE CHECKOUT SERVICE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE CHECKOUT SERVICE IS AT YOUR SOLE RISK.

OPENMARKET DOES NOT WARRANT THAT THE CHECKOUT SERVICE, OR ELECTRONIC COMMUNICATIONS SENT FROM OPENMARKET ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. OPENMARKET WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE CHECKOUT SERVICE OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE CHECKOUT SERVICE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.

Indemnification

You agree to indemnify, defend and hold OpenMarket, its affiliated companies, and its respective officers, directors, employees, agents, successors and assigns harmless from and against all claims, liabilities, losses, expenses, damages, and costs, including but not limited to reasonable attorneys’ fees, resulting from (i) a violation or breach of these Terms by you, or (ii) any activity related to access to your use of your Registered Account or your Mobile Device (including but not limited to negligent or wrongful conduct) by you or any other person accessing or using your Registered Account or using the Checkout Service through your Mobile Device or with your Mobile Number.

Release of OpenMarket

If you have a dispute with your Mobile Carrier or a Merchant, you hereby release OpenMarket, its affiliates, and their respective officers, directors, employees, agents, successors and assigns from any and all claims, demands, liabilities, losses and damages of every kind and nature arising out of or in any way connected with such disputes. In addition, you expressly waive the provisions of California Civil Code §1542, which says: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if not known by him must have materially affected his settlement with the debtor.”

Governing Law and Arbitration

By using the Checkout Service, you agree that the laws of the State of New York, without reference to its principles of conflicts of laws, will govern and any dispute of any sort that might arise between you and OpenMarket. Any claim arising out or relating to your use of the Checkout Service which is not resolved by good faith negotiations shall be resolved exclusively by arbitration conducted in New York, NY, USA, by a sole arbitrator (“Arbitrator”) in accordance with the rules of the American Arbitration Association (“AAA”). Upon rendering a decision, the Arbitrator shall state in writing the basis for the decision and the Arbitrator’s decision shall be final and binding upon the parties. Judgment on the award or any other final or interim decision rendered by the Arbitrator may be entered, registered or filed for enforcement in any court having jurisdiction thereof.

Arbitration shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator’s authority to resolve and make written awards is limited to claims between you and us alone. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.

Policies, Modifications, and Severability

We reserve the right to make changes to the Checkout Service, policies, and these Terms and Conditions at any time without notice. Your continued use of the Checkout Service after such amendment constitutes your acceptance of the amended terms and conditions. If you do not accept an amendment made to these Terms and Conditions, your sole and exclusive remedy is to close your Account. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.

Contact

Please contact us if you have any questions regarding the Terms and Conditions.

Compliance Office
OpenMarket
2211 Elliott Ave
Suite 400
Seattle, WA 98121

http://www.openmarket.com/contact-us/
compliance@openmarket.com