A. "aamarPay" refers to Soft Tech Innovation Ltd.. aamarPay is a business owned and managed by Soft Tech Innovation Ltd & LoopyWebs, UK
B. aamarPay is the owner of trade marks, patents, trade secrets, copyrights, processes, know how, registered designs or other Intellectual Property and provides payment gateway services to online merchants.
C. aamarPay has agreed to grant You with access to the Site, the Services, and use of certain Intellectual Property and Confidential Information as set out in this Agreement.
D. All products of aamarPay payment processing pages and online documentation (collectively, the "Services") are subject to the Terms and Conditions stated below.
E. By the use of the Site or the Services You agree to be bound by this Agreement. If You do not agree to the Terms and Conditions set out below You agree that You will not use the Site or the Services.
In these Terms and Conditions, the following terms have the following meanings
(a) "Merchant Account" means your user name and identifying particulars supplied to aamarPay at the commencement of this Agreement.
(b) "Agreement" means this agreement as amended from time to time including schedules, terms included by reference and recitals.
(c) "Business" means all activities associated with on-line gateway transactions including purchases and refunds and includes development of the Site, the Services and Intellectual Property.
(d) "Confidential Information" means all information acquired or created by aamarPay during the course of or in connection with the Business by aamarPay, including information about aamarPay, the Business, processes, systems, equipment, dealings, transactions, policies, finances, organisation or personnel, or about those of its clients or anyone associated with it or them, unless that information is readily available to the public, and shall include (but not be limited to) aamarPay's principles, policies, procedures, Intellectual Property and other documents, or material which aamarPay may direct you to treat as Confidential Information.
(e) "Copyright Material" means any work or other subject-matter in which copyright subsists or is capable of subsisting under the Copyright, Designs and Patents Act 1911 or equivalent legislation.
(f) "Customer" means you and all users of the Site and the Services.
(g) "Customer Information" means all customer information about customers including name, valid trade license, incorporation certificates, address, contact details, use of Services, their arrangements with aamarPay and their Internet Merchant Facility details.
(h) "Fee Schedule" is a schedule of fees set by aamarPay at its sole discretion for use of the Site and the Services. The Fee Schedule can be found at https://www.aamarpay.com/pricing_tables.html .
(i) "Intellectual Property" means all intellectual property rights of aamarPay including without limitation all similar and analogous rights throughout the world (in each case for the full term of the right) whether in relation to the Site or Services or otherwise and includes all or any of the following:
(a) the Trade Marks of aamarPay whether in relation to the Site or Services or otherwise;
(b) the Trade Name or any other trade name under which aamarPay sells or distributes its Services or the provision of aamarPay Services;
(c) any present or future patents of aamarPay which relate to the aamarPay Site or Services or their manufacture or assembly and application for the grant of any such patents together with all applications for (and associated rights to claim) priority;
(d) the technical and other information or expertise devised, developed or acquired by aamarPay or their employees or other applied in the development, servicing and sale of the Site or Services and in the management and operation of the Business;
(e) copyright of aamarPay in the Copyright Material and any software, written material, plans, designs, logos, slogans, labels, insignia or other work relating to the manufacture, merchandising, displaying, promotion and selling of the Site or Services;
(f) designs, whether or not registered or protected by copyright devised or acquired by aamarPay and applied to the Business, the Site or Services.
(j) "Live Gateway" a functioning gateway linked to your bank that allows processing of transactions.
(k) "Merchant Bank" a financial institution that provides Internet Merchant Facilities for the use of processing credit card transactions via the Internet.
(l) "Notice" means any notice given pursuant to clause 30 hereof.
(o) "Processes" include technologies, products, devices, processes or techniques.
(m) "Services" means credit card gateways to process on-line transactions through the site, and also access to an administration area on the aamarPay website, to view transaction reports, update details, request refunds, and perform other administrative tasks relating to transactions processed via aamarPay.. aamarPay provides a gateway which will connect to our Merchant bank Account, allowing You to process credit card transactions online, through Your website. This operates by You posting specific data to the Live Gateway, which then connects to Merchant Bank via various connections that aamarPay has in place. aamarPay then receives the result of the transaction, be it successful or failed, which is then passed back to your website. aamarPay also provides online reports of completed transactions, and support via either phone or email.
(n) "Site" means aamarPay web site www.aamarPay.com
(o) "Terms and Conditions" means those terms and conditions set out in this Agreement whether expressly or by reference and includes amendments made to the Agreement.
(s) "Test Gateway" a gateway that allows you to test the functionality of aamarPay, without processing transactions to your Merchant Bank.
(p) "Trade Name" means aamarPay or other trading name of Soft Tech Innovation Ltd..
(q) "Trade Marks" means the existing or future trade marks owned, used or developed by aamarPay during the term of this Agreement
(r) "You" includes all persons entering this Agreement with aamarPay and where the context allows includes your partners, employees and agents.
(s) "VAT" means value added tax under the VAT Act, 1991 or any other similar fiscal or sales tax.
In this Agreement:
[(i) All monetary amounts are stated exclusive of VAT and are payable in Bangladeshi Taka.
(ii) Where the context permits, the singular includes the plural and vice versa.
(iii) References to any "party" means a party to this Agreement and includes the successors, executors, administrators and permitted assignees (as the case may be) of that party.
(iv) where a party consists of more than one person the liability of those persons in respect of the terms of this Agreement is joint and several.
(v) References to clauses, schedules and attachments are to clauses in, and the schedules and attachments to, this Agreement (unless stated otherwise). Each such schedule and attachment forms part of this Agreement.
(vi) References in the schedules and attachments to "the Agreement" are references to this Agreement.
(vii) References to any document (however described) shall include references to that document as modified, novated, supplemented, varied or replaced from time to time.
(viii) References to a month or a year are references to a calendar month or calendar year.
(ix) All references to legislation are (unless stated otherwise) references to Bangladesh legislation and include all subordinate legislation, any re-enactment of, or amendment to, that legislation and all legislation passed in substitution for that legislation.
(x) Where the context permits, references to a "person" include an individual, firm, company, corporation or unincorporated body of persons, any public or regional authority, any government, and any agency of any government or of any such authority.
(xi) A reference to a time of day means the time in Bangladesh.
(xii) Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
(xiii) "Business Day" means a day, other than a Friday or a Saturday, on which banks are open for business in Bangladesh.
2. Formation of contract
2.1. You represent and warrant that you are able to enter into a legally binding and enforceable contract with other persons and aamarPay. You agree and acknowledge that you have entered into a legally binding and enforceable contract with aamarPay by clicking the " Yes, I/we agree the Terms and Conditions set out by aamarPay. " checkbox during the registration process.
2.2. In consideration of aamarPay agreeing to Your use of the Site and/or the Services, You agree to comply with this Agreement and Your obligations and undertakings under the Agreement.
3. Commencement and Term
3.1. The term of this Agreement is 12 months commencing on the date of this Agreement and unless otherwise agreed in writing, shall be automatically renewed on the anniversary of you entering this Agreement and continue for successive 12 month periods unless either party gives the other written notice of termination in accordance with this Agreement.
3.2. Before using the Site, you should read this Agreement carefully and ensure that you understand ALL of the Terms and Conditions. If you do not agree to ALL Terms and Conditions and accept them, then you must not use the Site or the Services. If you agree to the Terms and Conditions unconditionally and without reservation you will be given the opportunity to click the "Yes, I/we agree the Terms and Conditions set out by aamarPay." checkbox during the registration process. Once you have accepted these Terms and Conditions you will be able to use the Site and/or, the Services.
3.3.aamarPay in its sole, absolute and unfettered discretion reserves and has the right to refuse, suspend or cancel your use of the Site and/or the Services in accordance with this Agreement without prior notice and to take such further action against You as may be appropriate. You agree and acknowledge that You will take no action in respect of any damage or loss You sustain no matter how arising from aamarPay's cancellation or suspension of Your use of the Site or the Services in accordance with this Agreement.
3.4. You also agree that in circumstances where aamarPay considers damages are not a sufficient remedy aamarPay may seek injunctive relief against You and that You will not oppose applications seeking injunctive relief as may be brought by aamarPay in respect of your use or proposed use of the Site or the Services.
3.5. This Agreement and any terms incorporated by reference in the Agreement shall override any contrary terms or conditions previously published by aamarPay, any other terms or conditions which You seek to rely on or any inconsistent terms or conditions implied by law, trade, custom, practice or course of dealing.
4.1. The terms of this Agreement may be amended by written agreement between the parties.
4.2. These Terms and Conditions may be amended from time to time by aamarPay by posting the amended Terms and Conditions on the Site or placing a Notice on the Site that the Terms and Conditions have been amended. The amended Terms and Conditions shall automatically be effective from the earlier of ;-
(i) 7 days after they are initially posted on the Site,
(ii) Your entry to a new Agreement or the renewal of a term; and
(iii) 7 days of Notice being given to you.
4.3. You should ensure that you make yourself aware of any amendments that may be made to this Agreement. You acknowledge and agree that your continued use of the Site or the Services following the posting of any amendments will mean that You accept unconditionally any amendments made. This Agreement was last updated on 22 March 2012.
5.1. aamarPay, the developer of the Site and the Services, grants you non-exclusive access to the Site and the Services via an account upon the terms set forth herein. The Site and the Services, including any upgrades thereof and any code, program or software given to You to enable Your use of the Site or Services, shall remain the property of aamarPay,Soft Tech Innovation Ltd. or its and their licensors and be subject to the restrictions set forth herein.
6. Restricted Use
6.1. You will not use the Intellectual Property to manufacture, have made, use or market a similar site or similar services in any location nor will You use the Intellectual Property for any purpose other than expressly permitted by aamarPay. Where aamarPay has indicated to You that the whole or any part or parts of the Intellectual Property comprises Confidential Information You will not at any time during the term (as renewed) of the Agreement or after its termination or expiry or the termination of this Agreement during the Trial Period disclose such Confidential Information or material to any person without obtaining aamarPays' express written consent. You will take such steps as may be necessary to ensure that any of Your servants or agents do not disclose such Confidential Information including any Intellectual Property.
6.2. You may not and warrant that you will not:-
(a) Copy, produce, transmit, transcribe, store in a retrieval system, or translate in any language (natural or computer) any part of the Site or the Services,
(b) Transfer or attempt to transfer any part of the Site or Services or Your right to access them or otherwise make them available to any other person,
(c) Attempt to discover aamarPay's source code,
(d) Sublicense, rent or lease any portion of the Site or the Services;
(e) Reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Site or Services, or create derivative works from the Site or Services except so far as such actions are permitted by applicable law notwithstanding this limitation or are approved in writing by aamarPay.
(f) Use the Site or the Services for any illegal purpose
(g) Allow your Account to be used for any illegal purpose; or
(h) Allow your Account to be used by another person for any purpose.
7. Password Policy
7.1. Your password for access to your aamarPay Merchant Panel must:
(a) Be changed every 90 days.
(b) Not be the same as one of your last 4 passwords.
8. Limited Trial.
8.1. Upon entering into this Agreement aamarPay grants You a Trial Period during which aamarPay warrants that no fees will be payable if you terminate the Agreement in writing and cease all use of the Site and Services.
9.1. During the term of this Agreement You must pay to aamarPay the fees detailed at https://www.aamarpay.com/pricing_tables.html
9.2. You warrant that You understand and agree to the fee structure as outlined athttps://www.aamarpay.com/pricing_tables.html . You warrant that You understand and agree that all transactions sent to the aamarPay Test Gateways are FREE of charge, and that any transaction sent to the LIVE aamarPay Gateways, whether successful or unsuccessful, purchase or refund, will be charged at the rates set out at https://www.aamarpay.com/pricing_tables.html .
9.3. aamarPay in its sole, absolute and unfettered discretion reserves the right to change any Fees charged for the Services or use of the Site at any time. In the event of an increase in a Fee that Fee will become payable from the earlier of:-
(a) 7 days after a Notice in respect of the fee is posted on this Site or invoice to You.
(b) Your entry to a new agreement or the renewal of a term
9.4. If aamarPay introduces a new Service, any Fees for the use of that Service are applicable from the commencement of the Service unless otherwise stated and by using that Service You warrant that you agree to the Fees applicable to that Service as set out at https://www.aamarpay.com/pricing_tables.html .
9.5. Unless otherwise stated Fees are exclusive of VAT and quoted in Bangladeshi Taka.
9.6. No refund of fees is offered after the conclusion of the Trial Period.
9.7. You must pay to aamarPay within 7 days of being invoiced or receipt of a demand for payment or Notice for payment:
(a) All charges specified in this Agreement;
(b) Any amount payable by You arising from your use of the Site or Services; and
(c) Any amount for which you are liable to aamarPay under this Agreement in respect of any breach of the Agreement or otherwise.
9.8 All Payables to aamarPay under this Agreement will be paid via Account Payee Cheque to Soft Tech Innovation Ltd..
9.9 aamarPay will pay you the payables by account pay cheque only.
10.1. If You learn of:
(a) Any infringement or threatened infringement of the Intellectual Property or Confidential Information; or
(b) Any common law passing-off which may cause deception or confusion to the public by a third party,
You must immediately notify aamarPay in writing giving particulars of the infringement or threatened infringement
10.2 aamarPay will at its sole discretion institute and prosecute an action in respect of the infringement.
11. Costs for Breach
11.1. If aamarPay is required by You or by an order sought by You in any litigation in which you are involved whether under summons or order of a court of competent jurisdiction, including complying with any order for discovery or attending court to give evidence, you shall bear all costs incurred by aamarPay in connection with the provision of such service, including aamarPay's costs for taking legal or other professional advice or representation on a full indemnity basis on demand.
11.2. Further, you agree and acknowledge that where you take any action including legal action against or involving aamarPay you will provide security for such costs to aamarPay upon written demand.
12.1. Any fraudulent or damaging activities or attempts to comprise the aamarPay service will give aamarPay a right to immediately terminate this Agreement and your use of the Site or Services.
12.2. aamarPay shall have the right to terminate this Agreement forthwith by written notice to You if You breach and essential term of this Agreement or breach another term of the Agreement as specified herein. The following events are deemed to be a breach of an essential term of this Agreement.
(a) A failure by You to pay any payable to aamarPay on the due date.
(b) In the case of a body corporate, if You (i) are unable to pay your debts as they fall due, (ii) pass a resolution for winding up (other than for the purposes of a solvent amalgamation or reconstruction) or if a court of competent jurisdiction makes an order to that effect, (iii) enter into a composition or scheme of arrangement with your creditors or if a receiver, manager, administrator or administrative receiver is appointed over any of your assets, (iv) cease or threaten to cease to do business; or (v) an analogous event occurs to You in any jurisdiction.
(c) In the case of an individual, if You (i) are subject to a bankruptcy petition or order made against You, or enter into any composition or arrangement with or for the benefit of your creditors, or (ii) if a receiver (including fixed charge or court appointed), manager, insolvency practitioner or similar officer shall be appointed over the whole or a substantial part of the undertaking, property or assets of You.
(d) You or any of Your directors is convicted of a criminal offence which in the case of an individual could carry a term of imprisonment or in the opinion of aamarPay has or has the potential to cause damage or injury to the reputation and standing of aamarPay.
(e) Your marking of an assignment or attempted assignment for the benefit of credits.
(f) You purport or attempt to transfer, assign or deal with this Agreement or the Site or Services without the written consent of aamarPay.
(g) You purport to or use and Site or Services which are not approved by aamarPay.
(h) If You (or Your directors or anyone or more of them) do or neglect to do anything which in aamarPay's opinion is likely to bring disrepute upon aamarPay or prevent You or aamarPay from properly performing Your or its obligations under this Agreement.
12.3. You shall compensate aamarPay and aamarPay shall be entitled to recover damages from You for breach. Such entitlement shall be in addition to any other right or remedy which aamarPay may have. The acceptance by aamarPay of arrears of monies shall not constitute a waiver of Your continuing obligation to pay monies on the due date.
12.4. Without prejudice to aamarPay's rights, in the case of any other term of this Agreement, You shall be guilty of a breach, non-observance or non-performance of the terms of this Agreement or Your obligations contained in this Agreement if you have not remedied such breach, non-observance or non-performance (if it is capable of remedy):
(a) In the case of any obligation to comply with any statutory law or regulatory obligation relating to the Business the use of the Site or Services, within 14 calendar days after written notice from aamarPay;
(b) In the case of any other obligation, for a period of 7 Business Days after written notice from aamarPay, then aamarPay may by written notice terminate this Agreement.
(c) Notwithstanding the provisions contained in clause 11, if You have been guilty of any breach, non-observance or non-performance of the same obligation twice in any period of one year, or if aamarPay has given notice on not less than two occasions in any 12 month period, aamarPay may terminate this Agreement forthwith by written notice to You without prior warning or notice if a third or subsequent breach, non-observance or non-performance occurs within a period of 6 calendar months from the second or last of such occurrences.
12.5. Notwithstanding any other clause in this Agreement You may terminate this Agreement in writing, other than by email, to aamarPay at any time. Such written notice is to be signed by a duly authorised officer or signatory.
12.6. aamarPay may terminate this Agreement at any time upon providing You with 30 days Notice
12.7. Termination of this Agreement whether by no matter how arising shall be without prejudice to the rights and obligations of the parties existing up to and including the date of expiry or termination including the right of the party terminating to seek and obtain damages for any breach of this Agreement by the other party or the other party's servants or agents.
12.8. Termination on instructions from Your Merchant Bank
(a) Without prejudice to any other right of aamarPay under this Agreement, if Your Merchant Bank requests that aamarPay terminate your use of the Site and/or the Services or this Agreement for any reason aamarPay may do so immediately without Notice being given
(b) In the event of termination on instructions from Your Merchant Bank You shall indemnify and keep indemnified aamarPay and Soft Tech Innovation Ltd. on demand in respect of any loss or damage arising from such termination no matter how such loss or damage arises.
13. Rights of Parties on Termination or Expiry
13.1. On termination of this Agreement for whatever reason, the following shall apply from and after the expiry date or such termination.
13.2. You shall immediately discontinue the use of the Site and the Services and cease to use the Intellectual Property, Confidential Information, and any other signs, displays or advertising material which contains reference to aamarPay or Soft Tech Innovation Ltd..
13.3. You shall not represent or advertise that You were formally using aamarPay.
13.4. All fees previously paid remain the property of aamarPay and You agree to make no claim in respect of such Fees. You must further pay to aamarPay any fees that have accrued but are unpaid as at the date of the termination or expiration.
13.5. You shall forthwith pay to aamarPay without any deduction or right of set off all sums of money which may be due or payable by You to aamarPay including all costs, expenses and disbursements of aamarPay which in accordance with this Agreement are payable by You.
13.6. You shall deliver up to aamarPay or its nominated representative all stationery, literature and materials upon which reference to aamarPay or Soft Tech Innovation Ltd. or any Intellectual Property, or Confidential Information may appear.
13.7. You will ensure that all references to aamarPay or Soft Tech Innovation Ltd. are removed at the first possible opportunity from all websites, telephone and other directories, directory assistance records, membership rosters and from any other publication.
13.8. You shall immediately remove, paint out or cover all notices, display and advertising material which refers to or may be associated with aamarPay or Soft Tech Innovation Limited If You fail to carry out Your obligations and then fails within 14 days of a request to do so by aamarPay, then aamarPay shall have the power (without incurring any liability to You) and without the Your consent save the authority hereby given by You to remove such references at Your expense which expense You shall pay within 7 days demand.
13.9. You shall forthwith return to aamarPay or its nominated agent all items which may have been loaned to You by aamarPay.
14. Limit of aamarPay liability
14.1. The Site and Services are designed to merely clear transactions or data to Your selected Bangladesh bank using the existing electronic payments network. aamarPay accepts no responsibility for the delivery of the transactions to the aamarPay server. These transactions may come from a variety of sources (e.g. Web, phone operator, database etc) It is Your responsibility to ensure that these details are correct (e.g. correct card number, amount) and securely passed to the aamarPay server.
14.2. You release and shall indemnify and keep indemnified aamarPay on demand from any and all loss or damage arising out of any loss of data or corruption of data during the transfer of such data to aamarPay.
14.3. aamarPay has no responsibility, for the settlement of transactions between any Merchant Bank, You, its financial institution or any other person.
14.4. To the extent permitted by law, aamarPay excludes all conditions, representations and warranties, express or implied (by statute, common law or otherwise), other than those contained in this Agreement. Where aamarPay is found to be liable for breach of any warranty or condition implied by statute and which aamarPay cannot lawfully exclude, aamarPay 's liability is limited (to the extent permitted by law) at the option of aamarPay to the following:
(a) In the case of any programming or software supplied or offered by aamarPay:
(b) To the supply of those programs or software or programs or software of similar functioning again; or
(c) To the payment of the cost of having those programs or software supplied again; or
(d) In the case of Services supplied or offered by aamarPay:
(e) To the supply of the services again; or
(f) To the payment of the cost of having services supplied again.
14.5. aamarPay, Soft Tech Innovation Ltd. its directors, and its employees accept no liability for any loss (including loss of revenue or anticipated profits, loss of goodwill, loss of business or loss of data, computer failure or malfunction) (whether direct or indirect) or injury or any direct, indirect, consequential, special, punitive, or other damages caused by or as a result of:
(i) Your use of or inability to use the Site or Services;
(ii) Any virus or other harmful, or potentially harmful, code which may be transmitted in connection with Your use of the Site or Services;
(iii) aamarPay 's negligence or the negligence of Soft Tech Innovation Ltd. or its directors, officers, shareholders, employees, providers or agents arising from or related to this Agreement, the Site and the Services.
(iv) Your provision of incorrect information.
(v) Your loss of information or data.
14.6. aamarPay's liability for any loss or damage under this Agreement or any statute is reduced by the extent that You have caused or contributed to such loss or damage.
14.7 Nothing in this Agreement shall limit the liability of aamarPay to You for death or personal injury relating from its negligence (as defined in the Unfair Contract Terms Act 1977) or for fraudulent misrepresentation or for any liability which cannot be excluded by law.
15. aamarPay warranty
15.1. aamarPay warrants that the use of any or all of the Intellectual Property according to this Agreement in connection with the Site or Services will not result in the infringement of proprietary or third party rights.
15.2. aamarPay shall indemnify You against any losses, costs, actions, claims, demands, expenses, judgments, court orders or other liabilities arising directly out of or in connection with any claim made against You by a third party on the grounds that by virtue of rights to which such third party lays claim, such third party is entitled to prevent or interfere with your use of any or all of the Intellectual Property pursuant to this Agreement.
15.3. aamarPay also shall indemnify You against any claim by Your customers in respect of any loss or similar to those in 14.2 injury and court fees and expenses or damages and costs and loss or injury suffered by compliance with an injunction order on the part of such a customer or third party.
15.4. The Site is provided by aamarPay on an "as-is" basis and the only obligations on aamarPay are set out in this Agreement. aamarPay gives no warranty or condition, express or implied other than those expressly set out herein. aamarPay does not warrant that the functions contained in this Site and the Services provided will be uninterrupted, always available or error free, that defects will be corrected, or that this Site, or aamarPay's hardware or computer systems are free of viruses or other harmful components or programs. aamarPay does not warrant or make any representations regarding the accessibility or the use or the results of the use of this Site or the Services and You hereby acknowledge that You have relied on the Your own enquiries and inspection in relation to the Site and the Services including "Test Gateway" transactions and the use of the Site and Services during the Trial Period before entering into this Agreement and using the Site or the Services.
15.5. aamarPay does not give a warranty of completion of transactions. aamarPay does not warrant that any Merchant or financial institution will complete a transaction. aamarPay accepts no liability associated with such risks. You agree that you accept these risks and shall indemnify and keep indemnified on demand aamarPay in respect of such risks.
16. Your Indemnity
16.1. In this clause "aamarPay" includes Soft Tech Innovation Ltd. and any officers, directors, employees and agents of Soft Tech Innovation Ltd.. You shall indemnify and keep indemnified on demand aamarPay against any claim, loss, liability, cost or expense, including legal costs on a full indemnity basis, made against or incurred by aamarPay in relation to:-
(a) Personal injury or death;
(b) Property damage;
(c) Economic loss;
(d) Civil or criminal penalty; or
(e) Consequential loss
(f) Any other matter
Arising out of any breach by you of this Agreement or
(g) Any negligent or criminal act or omission by you;
(h) Compliance by aamarPay with eaamarPay's obligations under this Agreement or
(i) aamarPay's exercise or failure to exercise any right under this Agreement.
16.2. Your indemnity includes all claims, demands, proceedings, damages (actual, special or consequential) of every kind and nature, known and unknown, including but not limited to demands, proceedings, damages (actual, special and consequential) of every kind and nature taken by any third party due to or arising out of your breach of this Agreement or by your violation or breach of any law or any rights of a third party.
16.3. You agree and acknowledge that You and not aamarPay are liable for all loss and damage no matter how arising which is caused or contributed to by your use or misuse of the Site or the Services.
16.4. You shall indemnify and keep indemnified on demand aamarPay in respect of any loss or damage sustained by you as a result of aamarPay's refusal to renew or enter into an Agreement with You and agree and acknowledge that aamarPay's refusal does not amount in anyway to a restraint of trade.
16.5. You shall indemnify and keep indemnified on demand aamarPay in respect of all loss or damage no matter how arising caused by unauthorised, illegal or improper access to the Site or the Services from any terminals or access points within Your control, custody or power.
17.1. aamarPay reserves the right to use your company or trading name in any promotional or marketing material it deems fit. This may be of the form print, Tv, radio or Multimedia (including Web). Example uses may include; promotional flyers, or website case studies.
18.1. You acknowledge and undertake to aamarPay and Soft Tech Innovation Ltd. that:
(a) All information, documents, data and any other material which is provided by aamarPay or Soft Tech Innovation Ltd. to You or Your directors, officers, employees and agents in connection with this Agreement and all copies of such information, documents, data and material made by You or Your directors, officers, employees and agents or a third-party is and remains the property of aamarPay or a member of Soft Tech Innovation Ltd. (as applicable);
(b) You will use the Confidential Information for the sole purpose of the exercise of the rights and performance of the obligations under this Agreement;
(c) You will only disclose the Confidential Information to such of Your officers, employees, agents and advisers to whom it is necessary to disclose the Confidential Information for the purposes of this Agreement and the use of the Site and the Services ;
(d) You will not, and will ensure that Your officers, employees, agents and advisers will not, use, provide or disclose the Confidential Information to any person, other than as expressly permitted in this clause;
(e) You will take all steps necessary to prevent or stop, and comply with all reasonable directions of aamarPay in respect of, suspected or actual breaches of, or defaults under this clause;
(f) You will promptly notify aamarPay if it suspects, or becomes aware of, any unauthorised access, use or disclosure of any of the Confidential Information and will give aamarPay (at Your cost if the unauthorised access, use or disclosure is as a result of a breach of, or default under, this Agreement) all reasonable assistance in connection with any action which aamarPay or a member of Soft Tech Innovation Ltd. may take, or proceedings which aamarPay may institute, in respect of the unauthorised access, use or disclosure; and
(g) You will, and will procure that Your agents and advisers will, return to aamarPay all Confidential Information at the end of the term or upon termination of this Agreement.
(h) You agree that you will not during the term of the Agreement, or at any time after the termination of the Agreement (howsoever this may occur) disclose to any other person (without the previous consent in writing by aamarPay) either directly or indirectly, any Confidential Information relating to aamarPay or The Codero Limied of which you became possessed whilst subject to this Agreement, nor use of any such Confidential Information in any manner which may cause or be calculated to cause injury or loss to aamarPay or Soft Tech Innovation Ltd. howsoever arising.
(i) Without limiting the generality of the foregoing clause, aamarPay's Confidential Information shall include information which aamarPay directs You to treat as confidential and shall include (but not be limited to) aamarPay's documents, client lists, client cards, job orders, aamarPay's principles, policies and procedures or other documents you came into possession in the course of this Agreement.
(j) Upon termination of this Agreement, or at any time on the request of aamarPay, you will immediately deliver up to aamarPay all documents which were prepared by or on behalf of aamarPay or Soft Tech Innovation Ltd. and which are in your care, custody, or control, and all other property belonging to aamarPay or Soft Tech Innovation Ltd..
(k) You must treat as confidential all information gained during the term of this Agreement that relates to clients of aamarPay or Soft Tech Innovation Ltd. and utilise your best efforts to ensure that any employees under your supervision or control also do so.
19. Trade Mark
19.1. This Agreement does not grant You any rights in connection with the Trademarks (registered or otherwise) of aamarPay or Soft Tech Innovation Ltd..
19.2. You will not at any time during or after the expiry or termination of this Agreement, contest or challenge in any legal proceedings or otherwise the proprietorship of aamarPay or Soft Tech Innovation Ltd. in the Intellectual Property.
19.3. You shall not in any manner represent that You have any proprietary rights in the Intellectual Property.
19.4. In so far as the Intellectual Property or any components of the Intellectual Property are the subject of registrations or applications for registrations under applicable statutes, You shall do nothing to challenge, oppose, dispute or impugn the validity of such applications or registrations and shall take all necessary steps as may be required by aamarPay to assist in maintaining or obtaining such registrations.
19.5. If You become aware of any claims against or infringements of any rights associated with the Intellectual Property, then You shall forthwith notify aamarPay and aamarPay at its sole discretion may elect to defend or prosecute any action relating to the Intellectual Property. In relation to any proceedings or claims to protect or defend the Intellectual Property, You, if required by aamarPay, shall render all assistance including if necessary, providing evidence and being named as a party to any legal proceedings.
19.6. At the expiry or termination of this Agreement, all of Your rights in respect of the Intellectual Property shall cease.
19.7. aamarPay may change the Intellectual Property which You are permitted to utilise at any time for any reason.
19.8. You may not use the Intellectual Property in a manner which may place the Intellectual Property at risk of loss or loss of value to aamarPay or Soft Tech Innovation Limited
20.1. In this clause, "Personal information" has the same meaning as "personal data" has in the Data Protection Act 1998 ("Privacy Act").
20.2. aamarPay agrees, in relation to Personal Information which You disclose to aamarPay pursuant to these Terms and Conditions:
(a) Not to do an act, or engage in a practice, that would breach a data protection principle ("DPP") contained in the Privacy Act; and
(b) Not to authorise any subcontractor to do an act, or engage in a practice, that would breach a DPP.
20.3. You agree that an act done or a practice engaged in by aamarPay, or by a subcontractor, for the purposes of meeting (directly or indirectly) an obligation under these terms and conditions is authorised by this clause for the purposes of the Privacy Act.
20.4 You warrant that all Personal Information which you disclose to aamarPay is up-to-date, complete and relevant to the purpose for which it was disclosed to aamarPay.
21. Prior Agreements
21.1. This Agreement supersedes any prior agreement between the parties whether written or oral and any such prior agreements are cancelled but without prejudice to any rights which have already accrued to either of the parties under those arguments.
22. Rights Cumulative
22.1. All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this Agreement shall restrict or prejudice the exercise of any right granted by this Agreement or otherwise available to it.
23.1. You shall pay Your own costs in respect of this Agreement.
24. Set Off
24.1. aamarPay shall have the right to set-off against any payment due by aamarPay to You any amount owed to aamarPay by You. Upon termination or expiration of this Agreement for any reason, You shall pay any amount due to aamarPay immediately with no right to set-off.
25.1. The failure by aamarPay to enforce at anytime or for any period anyone or more of the Terms or Conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement and no custom or practice of the parties at variance with the terms of this Agreement shall constitute any waiver of aamarPay's rights. Rights or remedies under this Agreement may only be waived in writing and specifically. Waiver of a breach of any term of this Agreement shall not operate as a waiver of breach of any other term or any subsequent breach of that term.
26. Force Majeure
26.1. Neither party shall be considered in breach of this Agreement where performance of its obligations under the Agreement is by any cause beyond the reasonable control of the parties rendered impossible or delayed.
26.2. If the reason for the inability to perform or delay in performance referred to in clause continues for a continuous period of 30 days, either party may by written notice to the other terminate this Agreement.
27. Survival of Obligations
27.1. Any provision of this Agreement intended to survive termination or expiry of this Agreement survives termination or expiry of this Agreement.
27.2. The representations, warranties and indemnities contained in this Agreement survive its expiry or termination and the discharge of any of aamarPay's or your obligations to the other and to other Members.
28.1. If any provision of this Agreement is or becomes wholly or partially invalid or unenforceable for any reason then from the date of the invalidity or unenforceability:-
(a) If the offending provision can be read down in any way to make it valid and enforceable by any means without materially changing its effect, it must be read down or amended to the extent necessary to achieve that result; and
(i) the offending provision shall be severed from this Agreement and the remaining provisions will operate as if the severed section had not been included; and
(ii) the parties must negotiate in good faith to replace the severed provision with one that is valid and enforceable and provides as near as possible the same effect as the severed provision.
(c) Any provision of this Agreement, which is or becomes unenforceable for any reason will be ineffective or severable to the extent only of such unenforceability or invalidity and will not invalidate the remaining provisions.
29.1. The parties shall do, sign, execute and deliver and shall procure that, if any, each of its employees and agents, does, signs, executes and delivers all documents, monies, instruments and performs every act reasonably required of it or them by notice from another Member to a Transaction to effectively carry out and give full effect to the Transaction and the rights and obligations of the Members involved in that Transaction.
30.1. All notices must be in writing and be given by any one or the following means:-
(a) By delivering it to the address of the party specified in this Agreement.
(b) By sending it to the address of the party by pre-paid mail.
(c) By emailing it to the address of the party and on the next business day giving it by either of the means set out (a) or (b)
(d) By sending it by facsimile transmission to the facsimile number of the party.
(e) The postal address, facsimile number and email address of each party is set out below.
30.2. A notice is deemed to have been given
(a) If given in accordance with 30.1 (a) the next business day after the day of delivery.
(b) If given in accordance with 30.1(b) 3 business days after the date of posting.
(c) If given in accordance with 30.1(c) or (d) the next business day after sending or transmission.
31. Third Party Rights
Other than a person within Soft Tech Innovation Limited, no person who is not a party to this Agreement has no rights under the Contracts (Right of Third Parties) Act 1999 to enforce, or to enjoy the benefit of, any provision of this Agreement.
32. Governing Law and Jurisdiction
32.1 This Agreement is subject to the laws of People's Republic of Supreme Court of Bangladesh.
32.1 Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Supreme Court of Bangladesh.