Legal Agreement

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User Agreement
Between
Payfric.com
AND
It Members

Introduction

Payfric.com and the Client shall be collectively referred to as “the Parties” or individually as “a Party

WHEREAS:

  • A. Payfric.com is an integrated payment and transaction processing company that provides technology integration, advisory services, and transaction processing and payment infrastructure to Government, Client and Corporate Organizations across various sectors.
  • B. Payfric.com has developed and owns an e-commerce service that authorizes payments for merchants.
  • C. Payfric.com is in partnership with the Acquiring bank to provide a payment service gateway to the Client.
  • D. The Client
  • E. The Parties deem it expedient to enter into this Agreement in order to provide for the terms and conditions for the provision of the Services and certain matters related thereto by entering into this Agreement.

NOW IT IS HEREBY AGREED as follows:

1. DEFINITIONS In this Agreement, the following definitions apply: “Acquiring Bank” means the financial institution / bank institution that processes credit or debit card payments on behalf of a merchant. “Agreement” means this Merchant Service Agreement; “API” means Application Program Interface belonging to Payfric.com for the purpose of providing the Services; “Confidential Information” means all information relating to the Disclosing Party which is obtained, whether in writing, pictorially, in machine readable form or orally or by observation in connection with this Agreement, including but without limitation, financial information, know-how, processes, ideas, intellectual property (irrespective of its registerability or patentability status), schematics, trade secrets, technology, customer list (potential or actual) and other customer-related information, sales statistics, market, market intelligence, marketing and other business strategies and other commercial information of a confidential nature but does not include information which is known to the Receiving Party without any limitation or restriction on use or disclosure before receipt of such information from or on behalf of the disclosing party or becomes publicly available, other than as a breach of this Agreement, or becomes lawfully available to the Receiving Party from a third party free from any confidentiality restriction or any information required to be disclosed under any relevant law or any binding judgment or order of court or arbitration tribunal or any stock exchange regulations or under direction from any relevant regulatory authority; “Customers” means merchants and sub-aggregators; “Disclosing Party” means any one of the Parties under this Agreement who discloses Confidential Information to another person other than the Parties to this Agreement;
3 “Market” means introduce and promote adoption of the payment gateway to client’s customers; “MSC” means the Merchant Service Charge as provided for in Annexure I; “Payment Gateway” means the e-commerce service that authorizes payments for merchants; “Payment Solutions” means the service offered by the client; “Receiving Party” means any person receiving Confidential Information from a Party under this Agreement; “Territory” means the Federal Republic of Nigeria; and “The Purpose” means usage of the Payfric.com APIs by the client for its payment services. In this Agreement, a reference to: A document in the “agreed form” is a reference to a document in a form approved and for the purposes of identification signed by or on behalf of the parties; A statutory provision includes a reference to: o The statutory provision as modified from time to time (whether before or after the date of this Agreement); and o Any subordinate legislation made under the statutory provision (whether before or after the date of this Agreement); A person includes a reference to any individual, body corporate, unincorporated association or partnership; and in the case of an individual, to that person’s legal personal representatives, successors or assigns; A clause or annex is, unless the context otherwise requires, a reference to a clause or annex to this Agreement; clauses shall be construed as references to clauses of this Agreement; All references to the singular shall include the plural and vice versa; One gender shall include all other genders; The words “including” and “in particular” shall be deemed to be followed by the expression “(but not limited to)”; An account means an account and any sub-accounts of that account and as each may be substituted, renewed, re-designated, replaced or renumbered; “Determination” means a determination made in the absolute discretion of the person making the determination; The clause headings in the Agreement have been inserted for convenience only and shall not be taken into account in its interpretation. Words and expressions defined in
4. Any sub-clause, shall for the purposes of the clauses of which the sub- clause forms a part, bear the meaning assigned to such words and expressions in that sub-clause; If any definition is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to it as if it were a substantive clause in the body of the Agreement, notwithstanding that it is only contained in the interpretation clause; If any period is referred to in this Agreement by way of reference to a number of days, the days shall be reckoned exclusively of the first and exclusively of the last day except the last day falls on a Saturday, Sunday or public holiday; and Any payment which is due to be made under this Agreement which falls on a day which is not a Business Day, shall be made on the first Business Day thereafter, except if it falls in the next month, in which case it shall be made on the previous Business Day.
A person who is not a party to this Agreement has no right to enforce any term of this Agreement. The Annexes/Schedules form part of this Agreement and shall have the same force and effect as if set out in the body of this Agreement and references to this Agreement include the Annexes.
2. NON-EXCLUSIVITY Payfric.com hereby grants the Client the non-exclusive right to channel its customers through the Payment Gateway.
3. TERM
3.1. This Agreement shall commence from the date of the last signature (“Effective Date”) and shall continue for an initial term of sixty (60) months. 3.2. Upon expiry of the initial term, this Agreement shall auto renew for successive one-year periods until terminated in accordance with this Agreement.
4. PAYFRIC.COM’S OBLIGATIONS
4.1. Payfric.com hereby agrees to:
4.1.1. Work with Acquiring Bank to ensure that settlements of all monies collected by the Clients are handled in a timely manner.
4.1.2. Work with the Client to provide the requisite integration technical specification/APIs in respect of any Payment Solution and related fraud protection and compliance support, to the Client’s customers subject to the Client’s acceptance of Payfric.com’s terms and conditions as provided in Annexure 4.
4.1.3. Set-up the Client to send and receive fund easily.
4.1.3. Provide technology support to the Client technology on a discretionary basis 5. using Payfric.com owned digital assets.
4.1.6. Provide post-implementation support to the Client and its customers.
4.1.7. Implement future joint product designs for future initiatives that both parties can benefit from, to also include participation in joint press announcements.
4.1.8. Handle settlement of all monies collected by Payfric.com’s clients to Client’s Bank Account in Client’s preferred Bank. Timeframe for all monies to be settled is found in Annexure 2 and which you also accept upon registration on www.Payfric.com
4.1.9. On successful completion of the pre-go live user acceptance test (UAT), ensure and advise client by email on the start date to carry out a controlled end to end test in the Live environment with selected internal users only within client’s organization for a period of one or two weeks in order to certify that the entire project implementation is successful and satisfactory with sign off by client.
4.1.10. Provide adequate technical support for the test duration where applicable during the implementation of the task stated in “4.1.9” above.
5. THE CLIENT’S OBLIGATIONS
5.1. The Client hereby agrees to:
5.1.1. Turn the Payfric.com infrastructure into the preferred method to route supported cards, payment methods & tokens originated transactions through via the provided APIs in supported countries as mutually agreed upon.
5.1.2. Client shall respond to all chargeback / disputed transactions enquiries with sufficient proof and evidence of transactions within 24 hours of receipt of such.
5.1.3. For any chargeback, Client will be liable and would have to provide an equivalent sum for chargebacks. Where the authentication method used is 3DSecure, the chargeback shall be subject to arbitration with the acquirer network.
5.1.4. The client authorises Payfric.com to debit the nominated bank settlement account for the full value plus other lawful charges in respect of all lawful transaction where the Cardholder is adjudged by the acquirer network to be entitled to a refund.
5.1.5. Ensure adequate fraud protection and compliance to regulatory and acquirer network requirements.
5.1.6. Ensure the Client’s customers abide by the terms and conditions of the Payment Gateway.
5.1.7. Provide a full scope of future plans and use cases of the provided Payfric.com APIs.
5.1.8. Implement future joint product designs for future initiatives that both parties can benefit from, to also include participation in joint press announcements.
5.1.9. Clients warrants that it shall be solely responsible and liable for the Know- Your-Customer (KYC) and Know-Your-Customer Business (KYB) details of all Merchants it introduces to the Platform and that in the event of fraud or where Payfric.com is called upon in any issue regarding any fraudulent Card transaction or other transaction(s) of any Merchant or Cardholder, Client shall at the request of Payfric.com irrevocably and unconditionally indemnify and defend
6 Payfric.com and/or pay any damages, charges, fees and/or costs awarded against Payfric.com in a resulting final judgment (including reasonable legal fees) arising out of or resulting from any claim, action or demand (collectively a “Claim”) from any merchant or Third Party.
5.1.10. Put in place appropriate security measures to monitor, control and prevent Fraud on their Platform.
5.1.11. Ensure that at all times, the following information is displayed on its website; • Return, refund and cancellation Policy
• Delivery policy for the goods/service(s) offered for sale
• Commitment to process orders promptly (stating in clear terms delivery
timelines where applicable). • Description of the goods/service (s) being offered for sale
• An undertaking to ensure the security of cardholders’ information and not to violate the privacy of cardholders who transact on its site.
• Phone number(s) and e-mail address (es) for customer service contact.
• An undertaking to respond to all customer enquiries/issues within 24 hours


5.1.12. Promote Payment Gateway services to its customers.
5.1.13. Utilize the integration specification document/APIs in respect of the Payment Gateway provided by Payfric.com.
5.1.14. The Client shall ensure that the provided APIs will be used across all of its applicable digital Client assets.
6. DISPUTED TRANSACTIONS AND CHARGEBACKS Notwithstanding any other provision to the contrary, Payfric.com shall have the right to:
6.1. Send the settled transactions received from the Client to the issuing banks/authorities concerned for the purpose of checking and in case of objection and/or opposition on the executed transactions by the issuing Bank or the authorities concerned for any reason, Payfric.com shall not be bound to pay the Client the transaction amount during the period contained in this agreement.
6.2. Suspend, withhold or refuse payment to the Client in the event that Payfric.com has reasonable grounds to suspect fraud in respect of any transaction; 7. SET OFF Payfric.com shall have the unconditional right of set-off against any funds, amounts or claims belonging to the Client or any Merchants and kept by Payfric.com to guarantee any amounts or claims requested by Payfric.com from the Client and/or for the purposes of checking the records and the accounts or make a reversal records and to settle the amounts requested by Payfric.com.
8. FEES & REVENUE SHARE
8.1. Client shall be responsible for the direct processors fees from VISA/ MASTERCARD/VERVE/OTHER PAYMENT PROVIDERS which are already contained in the fees contained in Clause 8.1 above.
8.2. Payfric.com reserves the right to increase/reduce/waive its implementation fees, recurrent annual fees & transaction fees from time to time and upon agreement by party’s recourse to Client but shall notify the client of such increase/reduction/waiver immediately upon its implementation.
8.3. Payfric.com shall charge a setup fee to the Client’s customers if they require specialized Payfric.com Services.
8.4. The Client may markup fees to its customers without recourse to Payfric.com.
9. WARRANTIES 9.1. The client warrants that it has never had an agreement with a Payment Scheme which was terminated upon request and/or demand by the Payment Scheme or any Regulatory Authority.
9.2. The client must not submit any transaction that the client and its customers either knows is, or should have known was, illegal or fraudulent.
9.3. The Parties warrant that they are duly registered and licensed, and have the full capacity, regulatory approvals and corporate authorisation to enter into this Agreement and discharge the obligations and responsibilities created herein.
9.4. The Parties further warrant that no element of this transaction constitutes a breach of any existing law, regulation, patent, copyright, or other intellectual property in its country or countries of domicile and operation.
9.5. The Parties warrant that in the case of any third-party software used in respect of this Agreement, that they have the required licence and the right to grant a sublicence to use such third-party software.
9.6. The Client warrants it will conduct appropriate customer due diligence using a risk based approach on all customers.
9.7. The Client warrants to keep records of customers’ identification evidence obtained for at least five (5) years from the end of the business relationship.
9.8. The Parties shall keep each other indemnified against all actions, claims, proceedings and all legal cost or other expenses arising out of any breach of the above warranties or out of any claim by a third party based on any facts which if substantiated would constitute such a breach or a breach of other relevant legal or contractual duty.
9.9. Payfric.com neither warrants that the use of the Payment Gateway or the operation thereof will be uninterrupted nor error free, however, Payfric.com warrants that it shall use its best endeavours to ensure that the Payment Gateway functions optimally at all times and within generally accepted industry standards during the term of this Agreement.
9.10. Except as set forth in this Clause 9, Payfric.com makes no express or implied representations or warranties with respect to the Payment Gateway and related services or their condition, merchantability, fitness for any particular purpose or use by the Client or the Client’s customers.
9.11. Disclaimer. EXCEPT FOR THE WARRANTIES SPECIFICALLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MARKETABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES.
10. INDEMNITY The Client shall indemnify and hold Payfric.com harmless from and against any damage, loss or liability that Payfric.com may incur:
10.1. With respect to any negligent act or omission by, or wilful misconduct of, the Client’s employees or agents to the extent however that such negligent act can be situated in the normal course of employment or appointment;
10.2. The violation of any applicable law, statute or regulation by the Client or it's personnel;
10.3. By client wilfully or carelessly exposing the process/product/service to the general public during the process of carrying out tests in the controlled Live environment as stated in “4.9 and 4.10” above.
10.4. As a result of:
10.4.1. Any modification or amendment of the prescribed terms of use communicated by Payfric.com, that Payfric.com did not specifically approve in writing.;
10.4.2. Any warranty, condition, representation, indemnity or guarantee granted by the Client with respect to the Payment Gateway with respect to the limited warranties specified in Clause 9;
10.4.3. Any omission or inaccuracy in the Client’s advertisements or promotional 9 materials that relate to the Payment Gateway,
10.4.4. Any modification of or addition to the Payment Gateway not provided or approved by Payfric.com or;
10.4.5. The Client’s failure to comply with this Agreement or any part thereof.
10.5. This section will not be construed to limit or exclude any other claims or remedies to which Payfric.com may be entitled hereunder or in law or equity.
11. FRAUDULENT TRANSACTIONS
11.1. Fraudulent transactions shall include but not be limited to: Any purchase of goods and services and/or transaction arising from the use of a card by a person other than the authorized cardholder. Use of a card that is not authorised in terms of the rules governing the issuance and use of cards.
11.2. In the event that fraudulent transactions account for more than 0.10% of the Client’s sales turnover in any one month, Payfric.com may, in addition to any other remedy available to it, be entitled to unilaterally terminate this Agreement forthwith and/or request the Client to delist the affected customer from the use of the platform and terminate the Merchant Agreement with the affected Customer.
11.3. Client agrees that it will always be responsible for the actions of the introduced Merchants, its employees including fraudulent acts or omission not traceable to the contributory negligence of Payfric.com.
12. LIMITATION OF LIABILITY The liability of Payfric.com to the Client, whether in contract, negligence, and other tort, by way of indemnity or otherwise arising out of or in connection with this Agreement shall be subject to the financial limits set out below;
12.1. In no event shall Payfric.com be liable to the Client in excess of any amount that has accrued to Payfric.com from transactions emanating by virtue of this Agreement, in the month immediately preceding the date the first such claim arises.
12.2. No liability shall be raised against Payfric.com more than two (2) years after the accrual of the cause of such liability therefore. It is further agreed that the limitations on liability, expressed herein, shall inure to the benefit of and apply to all parents (both direct and indirect), subsidiaries and affiliates of Payfric.com.
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12.3. Payfric.com will not be liable for the actions or inactions of any third party not acting on the instructions of Payfric.com; neither will Payfric.com be liable for the actions or inactions not directly traceable to it.
13. TERMINATION
13.1. Either Party may terminate this Agreement forthwith by giving’ notice in writing to the other Party if the other Party shall have a receiver or administrative receiver appointed or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or shall cease or threaten to cease carrying on business or a court of competent jurisdiction shall make an order to that effect.
13.2. This Agreement may also be terminated forthwith by any of the Parties on giving written notice to the other, if the other Party is in material breach of the terms of this Agreement and has failed to rectify such breach (in the case of a breach capable of being remedied) within 30 days of receiving a written notice requiring it to do so.
13.3. Payfric.com may terminate this agreement and delist the client where the client is identified as a source of fraudulent activity or causes damage to the Payfric.com’s brand whether financial or otherwise
13.4. Either Party may terminate this Agreement at any time on giving one (1) month’s written notice to the other Party.
13.5. On Termination, the Parties shall be discharged from any liability for further performance of its obligations under this Agreement and shall entitle either Party be paid the accrued sum for any successful transaction prior to such termination.
13.6. Any termination of this Agreement (however occasioned) shall not affect any accrued rights or liabilities of any of the Parties nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
13.7. Upon termination of this Agreement the Client’s right to market/sell the Payment Solutions shall automatically be revoked, but the Customers shall continue to enjoy the right to use the Payment Solutions.
14. CONFIDENTIALITY
14.1. In order to implement this Agreement, Payfric.com and Client may receive and have access to certain information belonging to the other party which the other party may designate as Confidential Information, provided, the parties recognize that they will not have access to, or share, nonpublic personal information regarding consumers under this Agreement. Payfric.com and Client agree that all Confidential Information is and shall remain the property of the party providing the information and the party receiving or gaining access to the information shall use all reasonable and prudent means to safeguard such Confidential Information, including all means required by law. Furthermore, neither Payfric.com nor Client shall copy, publish, disclose to others, or use such Confidential Information for any purpose other than the fulfillment of its obligations under this Agreement or where required by law.
14.2. Each of the Parties on behalf of itself and its employees, officers, directors, affiliates, and agents, hereby agrees that Confidential Information made available to it will not be disclosed or made available to any third party, agent or employee for any 11 reason whatsoever, other than with respect to:
(i) its employees on a “need to know” basis,
(ii) affiliates on a “need to know” basis, provided that they are subject to a confidentiality agreement which shall be no less restrictive than the provisions of this Section 14; and
(iii) as required by Applicable Law or as otherwise permitted by this Agreement, either during the term of this Agreement or after the termination of this Agreement, provided that prior to any disclosure of any party’s Confidential Information as required by law, the party subject to the requirement shall
(iv) notify the other parties of all, if any, actual or threatened legal compulsion of disclosure, and any actual legal obligation of disclosure immediately upon becoming so obligated and (v) cooperate with the other parties’ reasonable, lawful efforts to resist, limit, or delay disclosure.
14.3. Upon the termination of this Agreement, or at any time upon the request of the other party, each party shall return all Confidential Information in the possession of such party or in the possession of a third party (over which such party has or may exercise control).
14.4. In the event of any breach of the obligations under this Section 14, each party acknowledges that the other party would have no adequate remedy at law, since the harm caused by such a breach would not be easily measured and compensated for in damages, and that in addition to such other remedies as may be available to the other party, the other party may obtain injunctive relief.
15. FORCE MAJEURE
15.1. If any of the Parties hereto is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control (including but not limited to an Act of God, Natural Disaster, or Civil Disorder) the Party unable to fulfil its obligations shall immediately give notice in writing of this to the other Party and shall do everything in its power, including but not limited to accepting assistance from 3rd parties or the other Party, to resume full performance.
15.2. If the period of incapacity exceeds two months, then this Agreement shall automatically terminate unless parties expressly agree otherwise in writing.
16. RELATIONSHIP BETWEEN PARTIES
16.1. The relationship between the parties hereto shall be one of collaboration for the single purpose of the business relationship herein created.
16.2. This Agreement shall not in any way constitute a Partnership or Joint Venture between the Parties or constitute either Party an Agent of the other.
16.3. This Agreement is not intended to confer on any person other than Payfric.com and the Client, any express or implied benefit or burden.
17. INTELLECTUAL PROPERTY
17.1. Nothing set forth in this Agreement shall constitute a transfer or assignment by one Party to another Party of any Intellectual Property Rights owned or otherwise controlled by such Party, and each Party hereby retains all of its rights, title and interest in such Intellectual Property Rights.
17.2. All Intellectual Property Rights in or related to the Payment gateway are and will remain the exclusive property of Payfric.com, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Payment gateway is used or licensed. The Client shall not take any action that jeopardizes Payfric.com's proprietary rights or acquire any right in the Payment gateway, or the Confidential Information, as defined herein. Unless otherwise agreed on a caseby- case basis, Payfric.com will own all rights in any copy, translation, modification, adaptation or derivation of the Payment gateway or other items of Confidential Information, including any improvement or development thereof. The Client shall obtain, at Payfric.com's request, the execution of any instrument that may be appropriate to assign these rights to or perfect these rights in Payfric.com's name.
18. NO ASSIGNMENT The rights benefits or obligations under this Agreement may not be assigned or otherwise transferred in whole or in part without the prior written consent of all the parties but shall be binding upon and inure to the benefit of each of the parties and, where so permitted, their assigns or other transferees.
19. MODIFICATIONS This Agreement may not be modified except by an instrument in writing signed by duly authorized representatives of each of the Parties
20. WAIVER The respective rights of the Parties (whether arising under this Agreement or under the applicable law) shall not be capable of being waived or varied otherwise than by an express waiver or variation in writing; and in particular any failure to exercise or any delay in exercising any of such rights shall not operate as a waiver or variation of that or any other such right; any defective or partial exercise of any of such right shall not preclude any other or further exercise of that or any other such right; and no act or course of conduct or negotiation on the part of either Party shall preclude them from exercising any such right or constitute a suspension or variation of such right.
21. SEVERANCE In the event that any provision of this Agreement is declared by any applicable law, judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or irrelevant It shall to the extent required by such law or authority, be severed from this Agreement and rendered ineffective so far as is possible without modifying the remaining provisions of this Agreement.
22. FURTHER ASSURANCES At all times after the date hereof the Parties shall at their own expense execute all such documents and do such acts and things as may be reasonably required for the purpose of giving full effect to this agreement.
23. WHOLE AGREEMENT This Agreement contains the whole agreement between the Parties with respect to the subject matter hereof and supersedes any prior written or oral agreement between them in relation to its subject matter and the parties confirm that they have not entered into this agreement upon the basis of any representation that are not expressly incorporated herein.
24. ARBITRATION In the event of a dispute between Payfric.com and Client with respect to any issue arising out of or relating to this Agreement in any manner, including but not limited to the 13 arising out of or relating to this Agreement in any manner, including but not limited to the breach thereof, resolution of such dispute shall be determined by Arbitration. Such arbitration shall be conducted before an arbitrator chosen as follows: either Payfric.com and Client shall agree on a mutually acceptable arbitrator, or Payfric.com shall select one arbitrator and Client shall select one arbitrator, and these two arbitrators shall choose a third arbitrator who will act as arbitrator hereunder. The arbitrator’s decision shall be final and binding upon all parties concerned. Such decision shall be rendered within thirty (30) days of the closing of the hearing record. The arbitration proceedings conducted hereunder shall be conducted in Lagos, Nigeria, and each party shall bear its own costs. The arbitration shall be conducted in accordance with the rules the provisions of the Arbitration and Conciliation Act Cap A18, Laws of the Federal Republic of Nigeria 2004. Judgment upon the award rendered by the arbitrator(s) shall be entered in any court of competent jurisdiction. No award of punitive damages by the arbitrator(s) may be enforced.
25. GOVERNING LAW This Agreement shall be governed by the Laws of the Federal Republic of Nigeria.

Users


27. ANTI-CORRUPTION
27.1. Each Party hereby undertakes that, at the date of this Agreement, itself, its directors, officers, employees or affiliates have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with this Agreement and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so.
27.2. Each Party shall comply with all applicable anti-bribery and anti-corruption Laws in any relevant jurisdiction (including those in the Territory and the Foreign Corrupt Practice Act of the United States of America and the Bribery Act 2010 of the United Kingdom) and all applicable anti-bribery and anti-corruption regulations and codes of practice.
27.3. The Client shall ensure that this Clause 27 is observed in all relationship with its customers.