The “Company” refers to the provider of this application and its related services in the respective region or it’s assignees; "Customers" means customers of the company (being the merchants) or the customers of the merchants; "Merchant" means you, being the natural or legal person which has entered into this Agreement acknowledged by usage of this software program; “Concession” refers to any payment or credit granted by the company to the merchant with respect to a transaction that was not processed by the merchant in accordance with the strict provisions herein; “Pin number” refers to a unique identification number, which upon input into a compatible device grants the end-user a credit value for the use of the services as offered by a SP; “SP” refers to any service provider (or their agents) such as Telephony Networks, Electricity Suppliers, Postal Services, Municipalities, Banks and/or any other providers of services (a SP may also refer to the company where the company is the provider of a particular service); “Terminal equipment” refers to devices capable of accepting the input of data and communicating such data to remote computer networks and/or any other peripheral equipment supplied by the company; “Software program” refers to programs supplied by the company enabling the use of services of the company; “Instructions” refers to communications by the merchant to the company (e.g by telephone, e-mail, terminal equipment or fax); Reference to natural persons includes legal persons and vice versa, references to singular includes plural and vice versa, references to any gender includes the other gender; The company & Merchant are independent & nothing herein shall be interpreted as to imply that they are partners, joint undertakers or shareholders for any purpose whatsoever.
Amounts due to the company in terms of this agreement shall be paid to the company, as determined by the company, free of deduction and without any set-off whatsoever. The company shall have the right to set off and/or claim back any concessions from the merchant at any time should the merchant’s account be outstanding. Overdue amounts shall attract interest at a permissible rate chosen by the company compounded monthly until the date of settlement. Upon termination of the agreement for any reason, all amounts owed by the merchant to the company shall become immediately due and payable
The merchant hereby grants the Company the right to institute any legal action of whatsoever nature (in the name of the Merchant as the plaintiff) against any customer or any other course of action if fraudulent activity is suspected. The merchant hereby undertakes to give the company its full cooperation and assistance in any legal action, including the signing of affidavits and attendance at Court, if required.
Should the merchant authorize the company and its bankers to draw against its bank account or credit card, such instructions shall be irrevocable and the merchant acknowledges that it shall under no circumstances whatsoever reverse, cancel or stop any payment related to any such instructions.
The company is hereby exempted from and shall not be liable under any circumstances whatsoever to the merchant for any loss, damage, whether indirect, consequential or otherwise, or for any loss, profits of other special damages of any kind whether within the contemplation of the parties or not, as the merchant may suffer arising out of this agreement. The merchant indemnifies the company against any action for damages or otherwise (resulting as a direct or indirect consequence of the company’s performance) brought against it, by a customer, SP, end user or any other party.
At the option of the company any action or application arising out of this agreement may be brought in any court that the company may agree to elect, and the merchant hereby consents to the jurisdiction thereof. The merchant shall not under any circumstances withhold any payment of whatsoever nature from the company, notwithstanding any claim against the company. Queries by merchants regarding the accuracy of their account with the company, must be submitted in writing no later than 30 days, failing which the merchant shall have no claim thereof. Any dispute relating to any fees shall be referred to the company’s auditors who shall act as an expert and whose decision shall be final and binding on the parties. Any performance or non-performance by a SP and/or any other party shall in no way effect the merchant’s obligations to the company, and the merchant shall not use such performance or lack thereof as a defense against any claim by the company. The merchant undertakes that it shall not, under any circumstances, refund a customer for the purchase of a pin number or voucher but shall refer the matter to the company or an SP for resolution with any such customer. In a case where a customer has stopped payment or performed a chargeback on a card transaction the following shall apply: The SP shall, at its sole discretion determine the validity of any such stop payment/chargeback; In a case where such chargeback/ stop payment is valid (e.g. inadequate delivery of goods/ services), the SP shall be entitled to claim back from the merchant any funds previously paid out to the merchant in lieu of such transaction. Should a dispute between a customer and a merchant occur, the merchant shall to the best of his ability attempt to resolve the matter failing which the merchant shall have no claim whatsoever against an SP with respect to any performed transaction. The Merchant must inform the company in writing within seven (7) days after it has come to its attention that its customer has indicated a dispute in respect of the transaction which gave rise to a chargeback or a stopped payment.
7-ELECTRONIC and SOFTWARE FACILITIES:
Ownership and copyright to the software program shall vest solely with the company. Unless purchased by the Merchant, Ownership of any supplied hardware to the merchant shall vest with the company and shall be returned to the company, at the merchant’s own expense, within 14 days after termination of any respective part of this agreement. The merchant shall be liable for the replacement costs should he fail to return such within 14 days in good working order and condition. All risks including the risk of destruction or loss shall pass to the merchant on taking delivery of any goods from the company.
8-AMENDMENTS AND NOTICES:
The Company may amend or substitute any terms of this agreement by giving a 30 day notice to the merchant. Should any terms of this agreement or any respective charges be influenced by any directive of an SP or change in market conditions then the company shall be entitled to amend the terms of this agreement so as to reflect such with immediate effect & without notice to the merchant. No amendments or substitutions shall constitute a variation of any prior obligations of the merchant to company, save as to where the old terms are inconsistent with the new terms.
This agreement may be terminated in the case of the merchant, subject to no outstanding payments, by giving the company written a 7 day written notice and/or in the case of the company, at any time, by giving the merchant immediate notice. A cancellation of this agreement shall in no way vary or alter the merchant's obligations or liability to the company as contained herein.
10-RIGHT OF CESSION:
The company is entitled to cede, without notice to the merchant, all or any of its rights under this agreement, either absolutely or as collateral security, to any other legal person or persons and whether such cession is made to the cessionary alone or to the cessionary jointly and severally with the company, and if such cession occurs, the merchant, if so required by any such cessionary, make all payments direct to such cessionary. Any reference in this agreement to the company shall, unless the context indicates otherwise, be construed as referring to the cessionary. The merchant hereby undertakes to accept the cession and to acknowledge the rights of the cessionary in terms of this clause.
11 UNDERTAKINGS BY THE MERCHANT:
The merchant undertakes: Not to do anything that damages the good name & reputation of the company, it’s assignees or associates; Not to, under any circumstances whatsoever, induce or persuade customer of the company to subscribe to any service of a competing third party; To keep equipment & passwords safe from unpermitted access; Not to cede or assign any of its rights or obligations in terms of this agreement without the prior written consent of the company; That the obtainment of services from the company does not infringe on any other agreement the merchant has with a SP. To comply with any terms & conditions issued by an SP or the company as may be published periodically; To ensure that this Agreement does not violate any law, or conflict with any other agreement of the merchant and to ensure there is no action or proceeding threatening the Merchant’s ability to perform its obligations herein.
The Company has the sole right to approve or decline to enter into this agreement or to exclude the offering of some of its services to the merchant. The merchant acknowledges that submitted instructions are subject to delays & discrepancies and hence indemnifies and holds the company and its bankers harmless against any claim whatsoever arising out of any submitted instructions. The merchant agrees that all the terms herein are material to this agreement. The Merchant hereby grants the company to the right to record on audio tape (or any other format) any conversations between the merchant and the company. This constitutes the entire agreement between the parties, any other agreement between the parties must be reduced to writing. No representation, warranties or undertakings have been made except as incorporated herein. None of the terms herein is capable of being cancelled, waived, amended unless reduced to writing; The provisions hereof shall, be binding upon the parties, executors, trustees, curators, legatees, heirs & successors in title. No indulgence granted by any party, shall constitute a waiver or novation of any respective future right, nor shall any single or partial exercise of any right preclude any other or future exercise thereof. This agreement is not subject to any suspensive condition. Each clause of herein is severable and if found defective or unenforceable the remaining clauses shall be of full force & effect. A certificate under the hand of any manager of the company or cessionary, in respect of indebtedness of the merchant shall be prima facie evidence of such indebtedness. The merchant agrees on behalf of itself, its directors & associates that the company is entitled to communicate to any Credit Bureau regarding their credit worthiness; The validity & interpretation of this agreement will be governed by the laws of the state of usage of the program as determined by the company.