Terms of service : Agent - OCTPASS

OCTPASS Agent must comply with these Terms and Conditions at all times (hereinafter “Terms and Conditions”).
OCTPASS allows Agent to generate commission through the referral of the OCTPASS Services to New Members.

1. Definitions and Interpretation

The following terms when used in these Terms and Conditions shall have the following meaning:

Agent Member Account means the Account(s) held in the name of Agent with OCTPASS that the Referred Members’ accounts are tagged to.

Agent Relatives means: (i) where Agent is a legal entity, any agent, director, officer, shareholder or employee of Agent; or (ii) where Agent is a natural person, a spouse, common law partner, civil partner, child, step child, sibling, parent, parents-in-law, aunt, uncle, cousin or grandparent of Agent.

Applicable Laws and Regulations means any law, statute, rule, regulation, order, circular, decree, directive, judgment, decision or other similar mandate of any applicable central, national, state or local governmental authority having competent jurisdiction over, or application, to the Party, a Referred Member, or subject matter in question.

Commission means the commission payable by OCTPASS to Agent for the referral of the OCTPASS Services to New Members in accordance with clause 3 (Commission) hereto.

Confidential Information means (i) these Terms and Conditions; (ii) each Party’s trade secrets, business plans, strategies, methods and/or practices; and (iii) any other information relating to either Party or its business that is not generally known to the public, including but not limited to information about either Party’s personnel, products, customers, marketing strategies, services or future business plans. Notwithstanding the foregoing, Confidential Information specifically excludes (A) information that is now in the public domain or subsequently enters the public domain by publication or otherwise through no action or fault of the other Party; (B) information that is known to either Party without restriction, prior to receipt from the other Party under this Agreement, from its own independent sources as evidenced by such Party’s written records, and which was not acquired, directly or indirectly, from the other Party; (C) information that either Party receives from any third Party reasonably known by such receiving Party to have a legal right to transmit such information, and not under any obligation to keep such information confidential; and (D) information independently developed by either Party’s employees or affiliates provided that either Party can show that those same employees or affiliates had no access to the Confidential Information received hereunder.

Fee Revenue means the net transaction fees charged to a OCTPASS Merchant for the receipt of payments from Tagged Accounts excluding, transaction fees in relation to payments made rebates as agreed between OCTPASS and the Merchant.

Member Account means the electronic money account registered with OCTPASS (“OCTPASS Member Account”) in the name of a Member (excluding the Agent Member Account).

New Member means a consumer who, at the time of the referral by Agent to OCTPASS in accordance with clause 2, does not have an existing Member Account.

OCTPASS Merchant means an individual, a body corporate, an association, a partnership, a trust or any other entity or organization that has been accepted by OCTPASS, to accept online payments from Members for goods and services.

Prohibited Activities means the activities set out in clause 4 or any other activities communicated by OCTPASS from time to time

Referred Member means a New Member who was referred by Agent to OCTPASS Services using the link provided in Agent’s Approved Media and has successfully registered a Member Account in accordance with the applicable Member Account Terms of use.

Tagged Account means the Member Account of a Referred Member that has been tagged to the Agent Member Account for the purpose of generating Commission.

2. Referrals

Agent shall co-operate in good faith with OCTPASS to promote and refer to New Members in accordance with these Terms and Conditions. Agent acknowledges and agrees that OCTPASS may in its sole discretion decide whether or not to accept New Members as Referred Members.
Agent shall not have any power to accept Referred Members or make contracts on behalf of OCTPASS and shall not make or give any promises, representations, warranties or guarantees, whether expressed or implied to New Member on behalf of OCTPASS.
To access your referral links, commission reports and other tools and information that OCTPASS may provide from time to time, you will need to apply for an agent account of OCTPASS.
Agent must have an Agent Member Account with OCTPASS to promote the OCTPASS Services and an Agent Member Account with OCTPASS Services

3. Commission

OCTPASS, in its absolute discretion, may stop paying commission in respect of a Referred Member or set off future Commission payments against any Commission paid to Agent in respect of the relevant Referred Member, where OCTPASS has reasonable grounds to believe the Referred Member concerned:
(a) had a Member Account (either through their direct relationship with OCTPASS or through another third-party) at the time of the referral by Agent;
(b) was an Agent Relative at the time of referral or subsequently becomes an Agent Relative;
(c) performs or attempts to perform a Prohibited Activity.
OCTPASS will inform the Agent of any such suspension in advance, or, if this is not possible, immediately afterwards and give its reasons for the suspension unless to do so would compromise reasonable security measures or is otherwise unlawful.
OCTPASS will pay Commission within 15 working days ( or in such other frequency as determined by OCTPASS) following the 15th of the calendar month for which Commission is due and payable. Commission in respect of Referred Members on the OCTPASS platform will be paid into the Agent Member’s OCTPASS Account and
The Commission will be inclusive of VAT, if applicable, or other applicable sales or service tax. If Agent runs a business that is subject to VAT or a similar sales or service tax, then Agent shall issue to OCTPASS, in a form and at intervals to be agreed between the Parties from time to time, a VAT invoice recognized by the relevant tax authority for the purpose of reclaiming the VAT paid on the Commission. The term “VAT” shall mean Value Added Tax or any equivalent sales tax in any relevant jurisdiction. The Parties shall co-operate in good faith to give effect to an efficient tax treatment of the supplies and the payments of consideration contemplated hereunder.
OCTPASS shall make commission reports available to Agent in such detail as OCTPASS determines from time to time. Agent must promptly and carefully review all reports on a regular basis and notify OCTPASS of any errors or discrepancies.
Agent hereby agrees not to sue, commence, voluntarily aid in any way, prosecute or cause to be commenced or prosecuted against OCTPASS any action, suit or other proceeding concerning the Released Claims.
Commission will be paid directly into the applicable Agent Member Account. If the applicable Agent Member Account is closed (whether permanently or temporarily) for any reason, OCTPASS will be unable to pay the Commission. It is Affiliate’s responsibility to ensure Agent Account remains active. OCTPASS shall not be liable to the Agent for any losses or damages incurred due to the Agent Member Account being suspended or closed.
Commission will not be payable to Agent, and the Agent agrees to return to OCTPASS any Commission previously paid to Agent, for any Referred Member for which OCTPASS can reasonably demonstrate relates to illegal or abusive behavior, fraudulent activity or Prohibited Activities.

4. Prohibited activities

Agent shall not, and shall ensure that Referred Members do not perform any of the following activities:
(a) Create or operate multiple Member Accounts without the prior written consent of OCTPASS.
(b) Make, in the reasonable discretion of OCTPASS, fake and/or artificial deposits with OCTPASS Merchants for the sole purpose of generating Commission.
(c) Open or operate a Merchant Account, without the prior written consent of OCTPASS.
(d) Register a Member Account on behalf of another person.
(e) Offer incentives or rewards to New Members to encourage them to apply for a Member Account.
(f) Create or employ any mechanism designed to artificially or automatically generate sign- ups to the OCTPASS Services.
(g) Use counterfeit, forged, imitated, stolen or otherwise altered identification documents.
(h) Use or create any material that is sexually explicit, offensive, profane, hateful, threatening, harmful, graphically violent, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability).
(i) Disparage or portray OCTPASS or its agent in any way that will have a detrimental impact to their reputation.

5. Agent Warranties

Agent warrants, represents and undertakes to OCTPASS that:
(a) All the information Agent has provided to OCTPASS is true, accurate and complete.
(b) It shall not, without OCTPASS’s prior written consent and, where applicable, the prior written consent of the intended recipient, engage in the distribution of any bulk emails (spam) in any way mentioning or referencing OCTPASS, the OCTPASS Services or using the Proprietary Materials. Furthermore, Affiliate is responsible for ensuring that their communications practices comply with all Applicable Laws and Regulations.
(c) It shall not offer, promote or market the OCTPASS Services in countries where OCTPASS: (a) is prohibited or restricted from offering payment processing services; or (b) informs Agent not to promote the OCTPASS Services. A list of prohibited countries is available upon request.
(d) It shall comply with all Applicable Laws and Regulations, and all codes of conduct applicable to the promotion and marketing of the OCTPASS Services;
(e) Unless authorized by OCTPASS in writing, it shall not offer or give any financial compensation (including but not limited to cash back) or any other reward that is designed to incentivize Referred Members to use the OCTPASS Services.
(f) It shall not and shall ensure that the Referred Members do not carry out any Prohibited Activities.
(g) Unless authorized in writing by OCTPASS, it shall not take any action designed to induce, encourage or cause OCTPASS Members to modify or terminate their existing agreement with OCTPASS for the purposes of becoming a Referred Member.
(h) It shall not breach and shall ensure that the Referred Members do not breach any of OCTPASS’s terms of services or attempt to circumvent the OCTPASS security or verification procedures
(i) It will not make or knowingly benefit from transactions which OCTPASS in its sole discretion deems to be suspicious, unauthorized, fraudulent or malicious including without limitation transactions that relate to money laundering, terrorism financing, fraud or other illegal activities.
(j) It will co-operate with OCTPASS to investigate any suspected illegal, abusive, or fraudulent activity.

6. Confidentiality

Each Party will use and reproduce the other Party’s Confidential Information only for the purpose of performing their obligations under these Terms and Conditions and only to the extent necessary for such purpose and will restrict disclosure of the other Party’s Confidential Information to its employees, consultants or independent contractors with a need to know and will not disclose the other Party’s Confidential Information to any third party without the prior written approval of the other Party. OCTPASS may also disclose Agent’s Confidential Information to its affiliates for the purpose of performing its obligations under these Terms and Conditions. Notwithstanding the foregoing, it will not be a breach of these Terms and Conditions for either Party to disclose Confidential Information of the other Party if required to do so by Applicable Law and Regulation, or in a judicial or other governmental investigation or proceeding.
The receiving Party agrees to return or destroy, and certify such destruction has been completed, the disclosing Party’s Confidential Information upon termination or expiration of these Terms and Conditions or upon any request of the disclosing Party.
The Parties agree that if the receiving Party commits a breach, or threatens to commit a breach of the provisions of this clause 7, then the disclosing Party shall have the right to bring an action for injunctive relief or any other action at law or equity to specifically enforce the terms of this clause 7, it being acknowledged and agreed that any such breach or threatened breach could cause irreparable injury and that money damages may not provide an adequate remedy.
The Parties agree to ensure that their associated companies, owners, leading personnel, consultants and board members adhere to the abovementioned confidentiality undertaking.

7. Representation of authority

Each Party warrants and represents that it has and will maintain all the required rights and authority to enter into and to perform its obligations under these Terms and Conditions.

8. Liability and indemnities

Neither Party shall be liable in contract, tort (including negligence or breach of statutory duty) or otherwise for any punitive, exemplary, indirect or consequential loss or damages of any kind in connection with or arising out of these Terms and Conditions.
Neither Party shall be liable for any indirect loss of profit or loss of contract, loss of goodwill or reputation, loss of opportunity, loss of revenue or third party loss regardless of whether or not the same was foreseeable or had been brought to any Party’s attention.
Subject to clauses 9.4 and 9.7, the aggregate liability of OCTPASS in contract, tort, negligence or otherwise arising out of or in connection with these Terms and Conditions in any period of 12 months from the Effective Date or any anniversary thereof (each a “Contract Year”) shall be limited to the lower of (i) 10,000 USD or (ii) the total amount of Commission paid by OCTPASS to Affiliate in the previous Contract Year (or, in the first Contract Year, the commission received to date).
To the extent permitted by Applicable Laws and Regulations, nothing in these Terms and Conditions shall operate to exclude or restrict a Party’s liability for the following:
(a) fraud and fraudulent misrepresentation;
(b) death or personal injury due to negligence;
(c) damage to real or tangible personal property;
(d) breach of clauses 5 (Affiliate Warranties) and 6 (Confidentiality).
Unless otherwise stated in these Terms and Conditions, neither Party shall be liable to the other Party for any liability arising out of its respective relationship with Referred Members.
OCTPASS shall not be liable for any of the following:
(a) any suspension or refusal to accept payments which OCTPASS has reason to believe to be made fraudulently or without proper authorization or pose a security risk;
(b) the payment instructions received contain incorrect or improperly formatted information; or
(c) hardware, software or internet connection is not functioning properly;
Agent shall indemnify and hold harmless OCTPASS and its agent, employees and directors, on demand, against any and all claims, losses, liabilities, costs, expenses, reputational damage, loss of business or other damages (including reasonable legal fees) arising, directly or indirectly, from any breach of these Terms and Conditions.

9. Term and Termination

These Terms and Conditions shall commence on the earlier of: (a) the date Agent accepts the OCTPASS Terms and Conditions; or (b) the date Agent starts performing the services stated in clause 2.1 of these Terms and Conditions and shall continue unless terminated in accordance with these Terms and Conditions.
Either Party may terminate these Terms and Conditions without cause by giving thirty (30) days prior written notice to the other Party.
OCTPASS may terminate these Terms and Conditions immediately and stop paying Commission, if Agent breaches clauses 4 (Prohibited Activities), 5 (Affiliate Warranties) or 6 (Confidentiality).
Either Party may terminate these Terms and Conditions immediately by giving written notice to the other Party (the “Defaulting Party”):
(a) If the Defaulting Party files a petition for bankruptcy, becomes insolvent or makes any arrangement or composition with or assignment for the benefit of its creditors, or a receiver is appointed for the Defaulting Party or its business, or the Defaulting Party goes into liquidation either voluntarily (otherwise than for reconstruction or amalgamation) or compulsorily.
(b) If the Defaulting Party breaches a material provision of these Terms and Conditions and such breach (if remediable) is not remedied within five (5) business days after written notice to the Defaulting Party identifying the matter or circumstances constituting the material breach., any breach of Agent’s obligations under clause 3 (Commission), 4 (Prohibited Activities), 5 (Affiliate Warranties) or 6 (Confidentiality) shall constitute a material breach.

10. Consequences of Termination

Upon termination of these Terms and Conditions, OCTPASS shall pay all Commission owing to Agent up to the effective date of termination. Thereafter, OCTPASS shall continue paying Commission in accordance with clause 3 for the lifetime of the Referred Member and/or Sub-Agent.
Subject to clauses 3.6 and 3.8, if these Terms and Conditions are terminated by OCTPASS pursuant to clause 9.3 or 9.4, OCTPASS shall stop paying Commission to Affiliate for all Referred Members immediately upon termination.
The termination of these Terms and Conditions, however it arises, shall not affect any actual or contingent liabilities or claims of any Party hereto which accrue before these Terms and Conditions terminate.
On termination of these Terms and Conditions, Agent shall:
(a) promptly return to OCTPASS any material supplied to Agent by OCTPASS;
(b) cease to use any Confidential Information made available to it pursuant to clause 6; and
(c) immediately cease using Proprietary Materials, and any OCTPASS Intellectual Property which have been directly or indirectly provided or made available to Affiliate.
Any provision of these Terms and Conditions which imposes an obligation after termination or expiration of these Terms and Conditions shall survive the termination or expiration of these Terms and Conditions.

11. Remedies

Without prejudice to the remedies under clauses 3 (Commission) and 9 (Term and Termination), where Agent is in breach, or where OCTPASS has reason to believe Agent is in breach of any term of these Terms and Conditions, OCTPASS reserves the right to, at its sole discretion, carry out any and/or all of the following:
(a) Instruct Agent to immediately carry out any instructions issued by OCTPASS including (without limitation) immediate suspension of such activities.
(b) Cease to pay Commission on Tagged Accounts.
(c) Reduce the amount of Commission for Tagged Accounts due and payable.

12. Relationship of the Parties

AGENT AND OCTPASS ARE INDEPENDENT CONTRACTORS UNDER THESE TERMS AND CONDITIONS AND NOTHING HEREIN WILL BE CONSTRUED TO CREATE A PARTNERSHIP, JOINT VENTURE OR AGENCY RELATIONSHIP BETWEEN THEM. NEITHER PARTY SHALL HAVE AUTHORITY TO ACT IN THE NAME OR ON BEHALF OF OR OTHERWISE TO BIND THE OTHER IN ANY WAY.

13. Third Party Rights

No person who is not a Party to these Terms and Conditions shall have rights under the Contracts (Rights of Third Parties) or otherwise to enforce any term of these Terms and Conditions.

14. Tax

OCTPASS shall not be responsible for any taxes, duties, assessments, fines, levies or other amounts payable by Agent to any governmental or regulatory authority arising out of these Terms and Conditions. Agent is responsible for reporting and paying any taxes, duties, assessments, fines, levies or other amounts payable or reportable in relation to Commissions earned through the OCTPASS Service.

15. Changes to these Terms and Conditions

OCTPASS reserves the right to change these Terms and Conditions at any time including changing the applicable Commission rate and to impose new or additional terms on Agent’s participation. Changes will be effective as soon as they are published on the OCTPASS website. Agent’s continuous participation after such changes shall be deemed acceptance thereof.

16. Notices

Notices to Affiliate shall be sent to the primary email address registered to Agent Member Account. Notices to OCTPASS shall be sent to support@octpass.net. All Notices shall be deemed delivered 24 hours after the transmission is sent.

17. Force majeure

Neither Party shall be under any liability if it is unable to perform its obligations due directly or indirectly to any event or circumstances beyond its reasonable control including, without limitation: the act failure or omission by Government; telecommunications operators or other competent authority; war, military operations, or riot; difficulty, delay or failure in any machine, data processing system, manufacture, production; supply by third parties of the OCTPASS Services or with respect to Agent, the supply of the services under these Terms and Conditions; any act of God, inclement weather, failure or shortage or power supplies, flood, drought, lightning or fire; strike, lock-out, trade dispute disturbance.

18. Assignment

Agent shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions without the prior written consent of OCTPASS.
Without prejudice to these Terms and Conditions, in the event Agent:
(a) acquires another existing OCTPASS agent or its business;
(b) is acquired or its business is acquired by another existing OCTPASS agent;
(c) merges with another existing OCTPASS agent; or
(d) is acquired or its business is acquired by a third-party who is not an existing OCTPASS agent
Agent shall notify OCTPASS prior to the transactions being completed. OCTPASS reserves the right, in its sole discretion to: (1) in the event decline the third-party’s application to join the OCTPASS Service; (2) vary the Commission rate; (3) stop paying Commission under these Terms and Conditions; and/or (4) modify or terminate these Terms and Conditions.

19. Governing Law

These Terms and Conditions and any legal relationship between the Parties arising out of or in connection with the OCTPASS Service shall be governed by and interpreted in accordance with the laws of Lao PDR. The Parties hereby irrevocably agree to submit to the exclusive jurisdiction of the courts of Lao PDR for the settlement of any claim, dispute or matter arising out of or in connection with these Terms and Conditions.

20. Entire agreement

These Terms and Conditions represents the entire agreement between the Parties in relation to its subject matter and shall replace and supersede all previous agreements, understandings, warranties and representations, either oral or written regarding the subject matter hereto. Each Party acknowledges that it has entered into these Terms and Conditions in reliance only on the representations, warranties, promises and terms contained in these Terms and Conditions and, save as expressly set out in these Terms and Conditions, neither Party shall have any liability in respect of any other representation, warranty or promise made prior to the date of these Terms and Conditions unless it was made fraudulently.

21. Severability

If any part of these Terms and Conditions is found by a court of a competent jurisdiction to be invalid, unlawful or unenforceable then such part shall be severed from the remainder of the Terms and Conditions, which shall continue to be valid and enforceable to the fullest extent permitted by law.

22. Language

These Terms and Conditions are drafted in English. If they are translated into any other languages, it is for convenience only and the English version shall prevail.