2.1. PayShyft is engaged in the business of inter alia payment gateway technology integration, developing and implementing payment solutions, facilitating the initiation and receipt of electronic payments. PayShyft has developed and owns an e-commerce service that authorizes payments for Merchants.

2.2. PayShyft has developed software protocols to inter alia communicate with Acquirers, Card Payment Networks to provide the Services (defined hereinafter).

2.3. The Merchant has approached PayShyft to avail Services (defined hereinafter), to enable Customers (defined hereinafter) to make payments to the Merchant and PayShyft has agreed to provide Services in accordance with these Terms.

“3D-Secure” means the backup two (2) levels of security which must include delivery of a dynamic code in a card transaction.

“Acquirer” means the financial institution/bank institution that processes credit or debit card payments on behalf of a merchant.

“Affiliate” in relation to a Person, means any other Person, directly or indirectly Controlling, Controlled by, or under common Control of or with, that Person or any Person or entity forming part of such Person. If such Person is an individual, the term Affiliate shall include a relative of such individual; “Control” means, with respect to any Person: (i) the ownership of more than 50% (Fifty percent) of the equity shares or other voting securities of such Person; or (ii) the possession of the power to direct the management and policies of such Person; or (iii) the power to appoint a majority of the directors, managers, partners or other individuals exercising similar authority with respect to such Person by virtue of ownership of voting securities or management or contract or in any other manner, whether directly or indirectly, including through one or more other Persons; and the term “Common Control” and “Controlled by” shall be construed accordingly;

“API” means the application programming interface formulated and owned by PayShyft, constituting software which allows the Merchant to establish electronic communication between the Platform and Payment Gateway in order to enable Payers to initiate and pay the Transaction Amount.;

“Applicable Law” 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 or subject matter in question including without limitation South African Reserve Bank (SARB) and South African Multiple Option Settlement (SAMOS) system requirements with respect to payments, data protection, data privacy and data security, or any successor legislation, law, regulation, code, guidelines, rules, policies and directives amending, consolidating or replacing such Applicable Law, that is applicable to the deployment or operation of the core IT Banking Solution as well as any Services to be provided with respect to these Terms, and any court decision having the force of law in Nigeria;.

“Chargebacks” means the reversal of a Transaction or request for repayment in respect of a Transaction previously settled and/or remitted that comes from the Issuing Bank, Card Payment Network, or other financial institution.

The reasons for the Chargebacks include (but are not limited to):

• the transaction amount not being authorized;
• the cardholder alleging:
• non-participation in the transaction; or
• non-authorization of the use of card; or
• non-receipt of goods and/or services purchased;
• cancelled or uncompleted pre-authorized transaction; or
• suspected fraud on card.

“Customer” or “Payer” shall mean any Person who is affecting a Transaction by using a Payment Instrument.

“Fines” means any and all fines, levies, costs, expenses, charges, assessments, or imposition of liabilities of any nature which the Card Payment Network or other financial institution require either the Merchant or PayShyft to pay or which are otherwise directly or indirectly recovered from PayShyft at any time, and which relate to any aspect of these Terms (including the provision of the Services hereunder).

“Governmental Authority” means any central or state government or other political subdivision thereof and any entity, including any regulatory or administrative authority or court, exercising executive, legislative, judicial, regulatory, or administrative or quasi-administrative functions of or pertaining to government.

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“Force Majeure Event” means any event, not within the reasonable control of the Party affected, which that Party is unable to prevent, avoid or remove by the use of reasonable diligence. Force Majeure Event shall, to the extent such events and circumstances or their consequences satisfy the requirements mentioned hereinabove, comprise the following events and circumstances namely: war, hostilities, invasion, armed conflict, act of foreign enemy, embargoes, riot, insurrection, prolonged labour stoppages, acts of terrorism, sabotage, nuclear explosion, earthquakes, fires, typhoons, storms, other natural catastrophes, pandemics, epidemics, government order, any legal/ regulatory order, action, direction, prohibition which impairs with PayShyft’s ability to render Services under these Terms, including but not limited to passing of a statute, decree, regulation or order by a competent authority.

“Issuing Bank” means a financial institution that issues cards under the authority of the relevant Card Payment Network;

“Payment Gateway” means the infrastructure and e-commerce service of PayShyft that authorizes payments for merchants;

“Platform” means a digital platform set up by the Merchant, to inter alia offer products or services or permit Payers to effect Transactions which are facilitated by PayShyft.

“Card” means a prepaid virtual and/or physical card issued by Issuing Bank, which is branded with one or more marks or signage of a Card Payment Network, offered by PayShyft to its Merchants;

“Cardholder” means any authorised user of a card who uses the card to carry out a card transaction on the Payment Gateway;

“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 these Terms, including but without limitation, financial information, know-how, processes, ideas, intellectual property (irrespective of its registrability 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 these Terms, 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;

“Card Payment Network” means Visa, MasterCard, American Express, Discover® Global Network and any Affiliates thereof or any other card payment network (including any local schemes thereof) and/or such other schemes governing the issue and use of credit, debit, charge, purchase or any other cards or payment methods, as approved and notified by PayShyft to the Merchant in writing or on the PayShyft websites from time to time;

“Disclosing Party” means any person giving Confidential Information to a Party under these Terms;

“Payment Instrument” includes credit card, debit card, bank account, Prepaid Payment Instrument or any other instrument issued under Applicable Law, used by a Customer to pay the Transaction Amount.

“Payment Scheme Rules” means individually and collectively, any and all applicable rules, regulations, standards, and operating guidelines issued by any Card Payment Network, as amended, and restated from time to time;

“PCI-DSS” means the Payment Card Industry Data Security Standards;

“Person” includes an individual, an association, a corporation, a partnership, a joint venture, a trust, an unincorporated organisation, a joint stock company, a bank, a non-banking financial company or other entity or organisation, including a government or political subdivision, or an agency or instrumentality thereof and/or any other legal entity;

“Platform” means a digital platform set up by the Merchant, to inter alia offer products or services or permit Payers to effect Transactions which are facilitated by PayShyft.

“Receiving Party” means any person receiving Confidential Information from a Party under these Terms;

“Refund” means a return of a Transaction Amount to a Customer or the reversal of any other payment pursuant to a request or instruction from the Merchant to PayShyft;

“Regulatory Authority” means any regulator or other public body having supervisory or regulatory authority over PayShyft or the Merchant;

“Services” means usage of the PayShyft APIs by the Merchant for its payment services;

“User Acceptance Test” (UAT) means the last phase of testing of the Payment Gateway integration to ensure functionality according to specification.

“Transaction” means an order or request placed by the Customer with the Merchant (or a third party vendor availing of Merchant’s services) by paying the Transaction Amount to the Merchant, using PayShyft Services, to (i) purchase products or; (ii) avail of services or; (iii) contribute funds.

“Transaction Amount” means the amount paid by the Customer in connection with Transaction.

3.1. Words and expressions denoting the singular include the plural and vice versa.

3.2. Words and expressions denoting the whole include any part.

3.3. Words and expressions denoting any gender include all genders.

3.4. Words and expressions applicable to a natural person include any person.

3.5. f any period is referred to in this document 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 in which case it shall be made on the previous Business Day;

3.6. Any payment which is due to be made under this document 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;

3.7. A person who is not a party to these Terms has no right to enforce any term of these Terms; and

3.8. The Annexes/Schedules form part of this document and shall have the same force and effect as if set out in the body of these Terms and references to this document include the Annexes.

3.9. A day, month, or year means a day, month, or year, as the case may be, reckoned according to the Gregorian calendar.

3.10. A statute or statutory provision includes a reference to:

• 3.10.1 that statute or statutory provision; and
• 3.10.2. all statutory instruments or orders made pursuant to it; as from time to time amended, extended, re-enacted, or consolidated.

3.11. Headings and sub-headings are inserted for convenience only and have no legal effect.

Unless prohibited by law, no rule of construction applies to the disadvantage of the Party responsible for the preparation of this document.

PayShyft hereby grants to Merchant, for the Term of the PayShyft Merchant Service Agreement and other Terms, a non-exclusive, non-assignable, non-sublicensable and revocable license to use PayShyft API and accompanying integration technical specification in respect of these Terms subject to the Merchant’s acceptance of the PayShyft’s Terms.

PayShyft is a reseller of Swiffy Technologies and is using the appropriate Payment Aggregator License until such time as PayShyft obtains its own license.

The term of these Terms shall commence on the date of the last signature (“Effective Date”) and shall continue for a period of twelve (12) months (“Initial Term”) unless any Party terminates the PayShyft Merchant Service Agreement in accordance with these Terms.

Upon expiry of the initial term, these Terms shall automatically renew for successive one (1) year periods until terminated in accordance with these Terms.

The Parties shall be dutybound to ensure data security on their platform/website and for all data and Confidential information acquired pursuant to these Terms. The Parties shall be and remain compliant with the Payment Card Industry Data Security Standard (PCI/DSS) requirement to the extent applicable to that Party and prior to such Party accessing any payment cardholder data or credit card information, as such requirements may be amended from time to time.

7.1. All data, information, inventions, Intellectual Properties (including patents, trademarks, copyrights, design and trade secrets), “know-how”, new uses and processes, and any other intellectual property right, asset or form, including, but not limited to, analytical methods, procedures and techniques, research, procedure manuals, financial information, computer technical expertise, software: (a) related to the Services contemplated under these Terms, (b) pertaining to the PayShyft API that are (i) pre-existing; and/or (ii) conceived, generated, derived, produced or reduced to practice, by PayShyft or any of its Affiliates, as a result of the Services performed by PayShyft or such Affiliate shall be and remain the exclusive property of PayShyft or such Affiliate. For the avoidance of any doubt, intellectual property created by PayShyft or its Affiliate in the course of undertaking its duties and obligations under or during the Term of these Terms is presumed to be owned by PayShyft (or the Affiliate) unless otherwise stated in writing.

7.2. Except as specified in Section 8, nothing contained herein shall be construed to grant any rights and title to the Merchant in the Intellectual Property.

7.3. Upon termination of these Terms all rights relating to the Intellectual Property developed by PayShyft during the Term of these Terms along with modifications thereto shall continue to vest with PayShyft and the Merchant shall not have any right whatsoever over such Intellectual Property.

Each Party hereby represents and warrants that:

8.1. it is an entity duly constituted and validly existing under Applicable Law;

8.2. it holds valid and subsisting licenses, registrations, approvals and consents as may be required for conducting its business and performing its obligations under these Terms;

8.3. it has the requisite power and authority to execute, deliver and perform its obligations under these Terms and that these Terms, when executed, shall have been duly and validly authorized, executed and delivered by it;

8.4. its obligations hereunder constitute legal, valid, binding, and enforceable obligations;

8.5. the execution and performance of these Terms do not breach its organizational documents or any Applicable Law, provisions of any contract or order of court or tribunal applicable to it and does not require any governmental approval; and

8.6. the Person entering these Terms is duly authorized to execute the PayShyft Merchant Service Agreement for and on behalf of the respective Party and shall have the authority to bind the respective Party accordingly.

8.7. it shall comply with all Applicable Laws;

8.8. it shall not, directly, or indirectly, make or offer any payment, gift or other advantage which is intended to, or does, influence or reward any Governmental Authority in breach of Applicable Law.

9.1. PayShyft’s Duties (subject to the Merchant’s acceptance of PayShyft’s Terms):

• 9.1.1. PayShyft shall work with the Acquirers and make sure that all settlements of the monies collected by the Merchant are dealt with and handled timely in line with the Applicable Law and Payment Scheme Rules.
• 9.1.2. PayShyft shall work with the Merchant to provide the required integration technical specification and APIs in respect of the Payment Gateway.
• 9.1.3. PayShyft shall strive to collaborate with the Merchant for the provision of fraud protection and compliance support to the Merchant.
• 9.1.4. PayShyft shall set-up the Merchant on PayShyft’s Payment Gateway.
• 9.1.5. PayShyft shall develop and provide card & token processing APIs for all PayShyft’s Card Payment Network and tokens in the market of scope;
• 9.1.6. PayShyft shall provide technology support to the Merchant in the discretion of PayShyft;
• 9.1.7. PayShyft shall provide post-implementation support to the Merchant and its customers;
• 9.1.8. PayShyft shall maintain an open communication channel with the Merchant to discuss future joint product designs for future initiatives that both Parties can benefit from, and to discuss joint press announcements;
• 9.1.9. PayShyft shall handle settlement of all monies collected by Merchants to Merchant’s bank account in Merchant’s preferred bank;
• 9.1.10. Upon successful completion of the pre-go live UAT, PayShyft shall advise Merchant 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 Merchant’s organization for a period of one or two weeks to certify that the entire project implementation is successful and satisfactory with sign off by Merchant;
• 9.1.11. provide technical support for the UAT where applicable.

9.2. Merchant’s Duties:

• 9.2.1. Merchant shall collaborate with PayShyft to implement the 3D-Secure on its Platform to certify Customer Transactions;
• 9.2.2. Merchant shall offer the PayShyft infrastructure as method to route supported cards, payment methods & tokens originated transactions through the provided APIs in supported countries as mutually agreed upon;
• 9.2.3. Merchant shall respond to all fraud enquiries, and Chargeback enquiries with sufficient proof and evidence of value/service delivery, not later than one (1) Business Day of receipt of such enquiries,
• 9.2.4. With respect to undisputed Chargebacks, Merchant shall be liable for and would have to provide an equivalent sum for Chargebacks;
• 9.2.5. For all disputed Chargebacks for which 3D-Secure was used, the Chargebacks shall be subject to arbitration with the Card Payment Network;
• 9.2.6. Merchant shall promptly notify PayShyft of any security breach, misuse, irregularity, suspected fraudulent transaction or suspicious activities that may be connected with attempts to commit fraud or other illegal activity through the use of Merchant’s Platform and the corrective action the Merchant has taken;
• 9.2.7. Merchant hereby through this reference authorises PayShyft 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 Card Payment Network to be entitled to a refund;
• 9.2.8. Merchant shall ensure adequate fraud protection and compliance to regulatory and Payment Scheme Rules and requirements.
• 9.2.9. Merchant shall notify PayShyft of any change in the Merchant’s registered office address, Merchant’s activities and/or line of business prior to such change.
• 9.2.10. Merchant shall provide a full scope of future plans and use cases of the provided PayShyft APIs.
• 9.2.11. Merchant shall maintain an open communication with PayShyft to discuss potential future joint product designs for future initiatives that both parties can benefit from, and to discuss joint press announcements;
• 9.2.12. Merchant shall put in place appropriate security measures to monitor, control, and prevent fraud on Merchant Platforms;
• 9.2.13. Merchant shall be fully responsible for its employees’ actions while in the Merchant’s employ;
• 9.2.14. to ensure that at all times, the following information is displayed on its Platform;
  • 9.2.14.1. Return, Refund, and cancellation Policy
  • 9.2.14.2. Description of the service (s) being offered for sale
  • 9.2.14.3. Delivery policy for the service(s) offered for sale
  • 9.2.14.4. Commitment to process orders promptly (stating in clear terms delivery timelines where applicable)
  • 9.2.14.5. An undertaking to ensure the security of Cardholders’ information and not to violate the privacy of Cardholders who transact on its Platform.
  • 9.2.14.6. Phone number(s) and e-mail address(es) for customer service contact.
  • 9.2.14.7. An undertaking to respond to all customer enquiries/issues within one (1) Business Day;
• 9.2.15. Merchant shall promote the Payment Gateway services to its Customers;
• 9.2.16. Merchant shall utilize the integration specification document and APIs in respect of the Payment Gateway provided by PayShyft in the prescribed manner;
• 9.2.17. Merchant shall fully comply with all applicable Payment Scheme Rules and government regulations in relations to the transaction entered herein.
• 9.2.18. Merchant shall ensure that the provided APIs will be used across all of its applicable digital Merchant assets in the prescribed manner;
• 9.2.19. Merchant shall perform an end to end UAT in the live environment with selected internal users only within the Merchant’s organization and not the general public and certify:
  • 9.2.19.1. that integration process was successful;
  • 9.2.19.2. account settlement; and
  • 9.2.19.3. account statement narration is satisfactory etc.
• as applicable for a period of one (1) or two (2) weeks in conjunction with PayShyft;
• 9.2.20. Merchant shall close the project, following successful implementation of the UAT, by signing off a Project-Live document provided by PayShyft, for this purpose, before exposing Merchant’s project (service) to the general public;
• 9.2.21. Merchant shall provide immediate notice of (i) any unauthorised third-party use of the Services or any third party that may have access to Cardholder data; and/or (ii) any event which might lead to such unauthorised use;
• 9.2.22. Merchant shall immediately notify PayShyft of any act, omission or error which does or may adversely affect the Merchant’s ability to perform their obligations under these Terms or cause loss or damage to PayShyft (including but not limited to any material change in the nature or extent of the Merchant’s business).
• 9.2.23. The Merchant shall comply with any additional security, authentication, risk control and other requirements imposed by PayShyft or a Card Payment Network, including but not limited to where that Merchant is, in the opinion of PayShyft and / or the Card Payment Network, engaged in high risk activities.
• 9.2.24. The Merchant shall comply with Applicable law and any relevant Payment Scheme Rules to which the Merchant is subject. The Merchant shall not act in contravention of or cause PayShyft to act in contravention of any Payment Scheme Rules to which PayShyft is subject.
• 9.2.25. The Merchant shall maintain a 10% rolling reserve from daily settlement due to the Merchant for a period of 180 days as provided in Section 20 below (Rolling Reserve).

9.3. The Merchant agrees that it will be responsible for and liable to PayShyft and Issuing Bank for all reasonable expenses associated with and any losses from over limit processing or reasonable expenses incurred by PayShyft or Issuing Bank in seeking fraud or unauthorized transaction recovery under Applicable Law that was a result of the Merchant’s action or inaction including actions of the Merchant’s employees.

9.4. The Merchant acknowledges that the Cards created on the PayShyft Platform are the property of PayShyft and will be subject to cancellation at any time by PayShyft or the Issuing Bank, as required by Applicable Law, or, on a case-by-case basis, where PayShyft and/or the Issuing Bank believes that the Card is being used for fraudulent or illegal purposes provided that PayShyft shall immediately notify the Merchant of such cancellation.

9.5. The Merchant agrees that it will be responsible for and liable to PayShyft and Issuing Bank for all reasonable expenses associated with and any losses from over limit processing or reasonable expenses incurred by PayShyft or Issuing Bank in seeking fraud or unauthorized transaction recovery under Applicable Law that was a result of the Merchant’s action or inaction including actions of the Merchant’s employees.

9.6. In order to ensure continued compliance with the requirements of the SARB, the Merchant understands and accepts that PayShyft provides its Services subject to the written approvals, directives, notices, or authorisations as may be issued by the SARB from time to time and the Payment Scheme Rules. The Merchant further accepts that PayShyft may make any such changes to the Services, or these Terms as are strictly necessary to ensure compliance with the SARB and the Payment Scheme Rules and the continuous provision of the Services to the Merchant.

10.1. Termination Without Cause:

• Subject to Sections 10.2, Clause 10.3 and Clause 12.3, these Terms may be terminated by either Party by giving to the other Party a prior written notice of thirty (30) days (“Notice Period“).

10.2. Termination For Cause:

Either Party (“Affected Party“) may terminate these Terms if the other Party (“Breaching Party“):

• 10.2.1. commits a material breach of any of the terms and conditions of these Terms, which if capable of cure or remedy, is not cured or remedied by the Breaching Party to the Affected Party’s satisfaction, within a period of fifteen (15) days from the date of issue of notice by the Affected Party informing the Breaching Party of such breach;
• 10.2.2. is facing any insolvency, receivership, winding up, liquidation or bankruptcy proceedings (collectively referred to as “Proceedings“) whether commenced voluntarily or brought against it involuntarily if such Proceedings continue beyond ninety (90) days;
• 10.2.3. PayShyft may immediately terminate this agreement if Merchant commits any act or omission in violation or is in breach of Applicable Law.
• 10.2.4. PayShyft may terminate this agreement and delist the Merchant where the Merchant is identified as a source of fraudulent activity or causes damage to PayShyft’s brand or the Acquirer and Card Payment Network or upon instruction from the Acquirer and Card Payment Network whether financial or otherwise.
• 10.2.5. On Termination, the Parties shall be discharged from any liability for further performance of its obligations under these Terms and shall entitle either Party to be paid the accrued sum for any successful transaction prior to such termination.
• 10.2.6. Upon termination of this agreement with the Merchant’s right to use the Payment Gateway shall automatically be revoked and PayShyft shall retain the merchant records for a period of five (5) years after such termination.
• 10.2.7. Termination of this agreement and these Terms shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision of these Terms which is expressly or by implication intended to come into or continue in force on or after such termination.

11.1. If Acquirer or the Issuing Bank communicates to PayShyft the receipt of a Chargeback from a Customer, then the Merchant will be forthwith notified of such Chargeback. The Merchant acknowledges that in certain circumstances the Issuing Bank, Payment Scheme or other financial institutions may (i) refuse to settle a transaction or (ii) impose Chargebacks on PayShyft.

11.2. The Merchant hereby agrees that it may be obliged to reimburse PayShyft for Chargebacks where the Merchant has accepted settlement in respect of the relevant transaction. Where applicable, the Merchant shall respond to Cardholder disputes and handle Chargebacks in accordance with Payment Scheme Rules.

11.3. The Merchant agrees that PayShyft shall have the right to send non-settled transactions received from the Merchant Customers to the Issuing Bank/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, PayShyft shall not be bound to pay the Merchant the transaction amount during the period contained in these Terms.

11.4. All Chargebacks shall correspond to the whole or part of the settlement value of the original transaction.

11.5. Where Chargebacks occur, PayShyft shall immediately be entitled to debit the Merchant’s position or make a reversal from the Merchant’s bank account and/or make a deduction from any remittance and /or invoice the Merchant to recover:

• 11.5.1 the full amount of the relevant Chargeback; and
• 11.5.2. any other costs, expenses, liabilities, or Fines incurred as a result of or in connection with such Chargeback (“Chargeback Costs”).

11.6. A Chargeback represents an immediate liability from the Merchant to PayShyft and where the full amount of any Chargebacks and/or any Chargeback Costs is not debited by PayShyft from the Merchant bank account or deducted from any remittance or invoiced as referred to in the previous clause, then PayShyft shall be entitled to otherwise recover from the Merchant by any means, the full amount of such Chargeback or Chargeback Costs (or the balance thereof, as the case may be).

11.7. PayShyft shall not be obliged to investigate the validity of any Chargeback by any Issuing Bank, Payment Scheme or other financial institution, whose decision shall be final and binding in respect of any Chargebacks.

11.8. As Chargebacks may arise a considerable period after the date of the relevant transaction, PayShyft shall remain entitled to recover Chargebacks and Chargeback Costs from the Merchant in respect of all Chargebacks, even after the termination of the contractual relationship between the Merchant and PayShyft.

11.9. PayShyft may immediately terminate these Terms and the Services provided hereunder if PayShyft in its sole opinion considers that the total value of Refunds and/or Chargebacks is unreasonable.

11.10. The Merchant agrees and confirms that it shall remain solely liable after the termination of the PayShyft Merchant Service Agreement for all Chargebacks, Refunds, penalties, loss, damages, or cost incurred by PayShyft, Acquiring Bank, and/or Customers and for all claims and proceedings arising against PayShyft with respect to the PayShyft Merchant Service Agreement.

12.1. Neither Party shall be in breach of its obligation hereunder if it is delayed in the performance of, or is unable to perform (whether partially or fully), such obligations as a result of the occurrence of a Force Majeure Event (defined below); provided that the Party affected by the Force Majeure Event shall give notice to the other Party of the occurrence of the Force Majeure Event as soon as reasonably practicable and in any case within seven (7) days from the date on which the affected Party knew or should reasonably have known of the occurrence of a Force Majeure Event.

12.2. Each Party shall make all reasonable endeavours to mitigate any delay or interruption to any part of the performance of these Terms as a result of the occurrence of a Force Majeure Event.

12.3. If a Force Majeure Event which substantially impairs the performance by a Party of its material obligations under these Terms occurs and such Force Majeure Event continues for a continuous period of more than ninety (90) days, then either Party may terminate these Terms at any time thereafter by giving seven (7) days’ prior written notice to the other Party.

13.1. PayShyft may, without notice, set off any debts or liabilities due from the Merchant to PayShyft under these Terms against any debts or liabilities owed by PayShyft to the Merchant, regardless of the place of payment or currency of either obligation. If the obligations are in different currencies, PayShyft may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

13.2. PayShyft is entitled to defer any settlement or any other sum due to the Merchant to the extent that PayShyft considers necessary or appropriate to protect their ability to recover the Fees and/or the sums or any other liability (actual or anticipated) of the Merchant in connection with these Terms.

13.3. If PayShyft has reasonable suspicion that a transaction may be fraudulent or involve other criminal activity, PayShyft may suspend the processing of that transaction and any connected, transaction, or withhold settlement until the satisfactory completion of any investigation. The Merchant shall not be entitled to any interest or other compensation whatsoever in respect of suspension or delay in receiving Payment.

13.4. The exercise by PayShyft of any of its rights under this clause shall be without prejudice to any other rights or remedies (including but not limited to set-off) to which PayShyft is otherwise entitled (by operation of law, contract, or otherwise).

14.1. During the Term a Party (“Receiving Party“) may receive or have access to certain confidential and proprietary information belonging and/or relating to the other Party and its Affiliates (“Disclosing Party“) including without limitation marketing prospects, contracts, officer, director or shareholder information, personal data of Customers, financial and operational information, billing records, business model and reports, computer systems and modules, secure websites, reporting systems, marketing strategies, operational plans, proprietary systems and procedures, trade secrets and other similar proprietary information, including technical “know-how”, methods of operation, business methodologies, software, software and technology architecture, networks, any other information not generally available to the public, and any items in any form in writing or oral, clearly identified as confidential (“Confidential Information“)

14.2. The Receiving Party shall keep Confidential Information of the Disclosing Party in confidence. The Receiving Party shall use commercial reasonable and necessary safety measures and steps to maintain the confidentiality and secrecy of Disclosing Party’s Confidential Information from public disclosure, and the Receiving Party shall at all times maintain appropriate measures to protect the security and integrity of the Disclosing Party’s Confidential Information. The Receiving Party shall not, without the Disclosing Party’s prior written consent, divulge any of its Confidential Information to any third party other than the Receiving Party’s officers, employees, agents, or representatives who have a need to know for the purposes of these Terms. The Receiving Party shall take all reasonable steps to ensure that all of its directors, managers, officers, employees, agents, independent contractors, or other representatives comply with this Section whenever they are in possession of Disclosing Party’s Confidential Information as part of these Terms. The Receiving Party shall use the Disclosing Party’s Confidential Information solely in furtherance of and in connection with the Services contemplated under these Terms. The Receiving Party further agrees that the Disclosing Party’s Confidential Information will not be used by it and its representatives in any way detrimental to the interests of the Disclosing Party.

14.3. Exceptions: The aforesaid confidentiality obligations shall impose no obligation on the Receiving Party with respect to any portion of Confidential Information which:

• 14.3.1. was at the time received or which thereafter becomes, through no act or failure on the part of the Receiving Party, generally known or available to the public;
• 14.3.2. is, at the time of receipt, known to the Receiving Party as evidenced by written documentation then rightfully in the possession of either Party;
• 14.3.3. was already acquired by the Receiving Party from a third party who does not thereby breach an obligation of confidentiality to the Disclosing Party and who discloses it to the Receiving Party in good faith;
• 14.3.4. is developed by the Receiving Party without use of the Disclosing Party’s Confidential Information in such development.
• 14.3.5. has been disclosed pursuant to the requirements of Applicable Law, any Governmental Authority, provided however, that the Disclosing Party shall have been given a reasonable opportunity to resist disclosure and/or to obtain a suitable protective order.

14.4. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Section. The Receiving Party will cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of such Confidential Information and prevent its further unauthorized use.

14.5. Remedies: Parties acknowledge that irreparable damage may occur on breach of the terms and provisions of Section 7 (Ownership of Intellectual Property) and this Section. Accordingly, if a Party breaches or threatens to breach any of the provisions of Section 7 or this Section, then the other Party shall be entitled, without prejudice, to seek all the rights and remedies available to it, including a temporary restraining order and an injunction restraining any breach of the provisions of Section 7 or this Section. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity.

14.6. The obligations as mentioned in this Section shall survive for a period of three (3) years post the termination or expiry of these Terms.

15.1. All fees chargeable by PayShyft is covered under Annexure A in relation to these Terms which is incorporated herein by this reference. The Annexure A may be updated by us regularly. We shall strive to notify the Merchant of any changes in the fee structure of PayShyft however the Merchant shall also have the obligation to keep themselves aware of any changes by checking our fees which is available on https://www.payshyft.com/pricing/.

15.2. PayShyft retains the right to recover and withhold:

• 15.2.1. any Refunds; and
• 15.2.2. any Chargebacks, Fines, and other costs by any Card Payment Networks such as Visa, MasterCard, American Express, Discover® Global Network and any Affiliates thereof.

15.3. The Merchant may markup fees to its Customers without recourse to PayShyft.

15.4. Full permission and authorization are hereby through this reference provided to PayShyft by the Merchant, to receive all settlements and collections on its behalf, from the Acquirer, and to liaise with the Acquirer, in order to make all due settlements to it, and on its behalf, through PayShyft.

16.1. The Merchant hereby through this reference warrant that:

• 16.1.1. it has never entered into an agreement with a Card Payment Network which was terminated upon request and/or demand by the Card Payment Network or any regulatory authority.
• 16.1.2. it shall under no circumstances submit any transaction that the Merchant is of the knowledge to be illegal, fraudulent, or restricted for authorization, or unauthorized by the Cardholder.
• 16.1.3. It shall conduct appropriate due diligence on all Customers.
• 16.1.4. it shall completely cooperate where any forensic investigation is being done on the Merchant until the completion of the investigation.
• 16.1.5. it will utilize the Services in good faith, in line with the terms of these Terms and in accordance with all Applicable Law and Payment Scheme Rules.
• 16.1.6. it shall not utilize the Services in a way that that may occasion in a violation of anti-money laundering, counter terrorist financing and similar legal and regulatory obligations.
• 16.1.7. It has not been subject to the following:
  • 16.1.7.1 Criminal conviction (except minor traffic offenses and other petty offenses) in Nigeria or in any other foreign country;
  • 16.1.7.2. Federal or state tax lien, or any foreign tax lien;
  • 16.1.7.3. Administrative or enforcement proceedings commenced by the Securities and Exchange Commission, any Regulatory Authority, in South Africa, or in any other country; or
  • 16.1.7.4. Restraining order, decree, injunction, or judgment in any proceeding or lawsuit, alleging fraud or deceptive practice on the part of the Merchant.

16.2. PayShyft does not warrant that the use of the Payment Gateway or the operation thereof shall be uninterrupted nor error free.

16.3. PayShyft 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 these Terms.

16.4. Except as set forth in this clause 10, PayShyft 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 Merchant or the Merchant’s customers.

17.1. Neither Party shall be liable for special, incidental, indirect, consequential, exemplary, or punitive damages under any theory of contract, tort, strict liability, statute or under any other legal or equitable principle or otherwise, arising out of or in any manner connected with these Terms and regardless of whether such Party has been informed of, or might have anticipated, the possibility of such damages.

17.2. Except with respect to Losses arising from (i) claims pursuant to breach of Confidentiality provisions contained herein; and (ii) fraud, negligence and wilful misconduct, the aggregate liability of PayShyft under these Terms shall not exceed an amount equal to PayShyft Fees received or receivable in respect of Transactions settled during the one (1) month period prior to the date of claim.

EXCEPT FOR THE WARRANTIES SPECIFICALLY SET FORTH IN THESE TERMS, EACH PARTY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO THESE TERMS, 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.

These Terms shall be governed by and construed in accordance with the laws of South Africa. The courts of Western Cape, Cape Town, South Africa shall have jurisdiction in respect of any such disputes or claims.

Any dispute concerning the subject matter of these Terms, or the breach, termination, or validity thereof (a “Dispute”) will be settled exclusively in accordance with the procedures set forth herein.  The party seeking resolution of a Dispute will first give notice in writing of the Dispute to the other party, setting forth the nature of the Dispute and a concise statement of the issues to be resolved. If the Dispute has not been resolved through good faith efforts and negotiations of senior officers or representatives of the parties within fifteen (15) days of receipt by the relevant party of the notice of Dispute, such notice will be deemed to be a notice of arbitration and the parties agree to submit the Dispute to a single arbitrator mutually agreeable to both parties. The venue of such arbitration shall be Western Cape, Somerset West. In the event that the Parties cannot agree on a sole arbitrator, the arbitrator will be appointed by a judge of the appropriate court on application by either party to the Dispute. All decisions and awards rendered by the arbitrator will be final and binding upon the parties for all questions submitted to such arbitrator, and the costs associated with such submission shall be shared equally by the parties involved in the Dispute unless the arbitrator decides otherwise.  The parties waive all rights of appeal, therefore to any court or tribunal, and agree that the only recourse by any party to any court will be for the purpose of enforcing an arbitration award.

Merchant is aware that PayShyft’s business practices prohibit bribery and corrupt behaviour in any form. Merchant agrees that it is an independent contractor, and it is and shall remain in compliance with all applicable laws that relate to money laundering, terrorism, commercial or official bribery or dealing with government officials (including the U.K. Bribery Act) and laws implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

Each Party agrees to comply with all applicable commercial and public anti-bribery laws (“Anti-Bribery Laws“) which prohibit corrupt offers of anything of value (either directly or indirectly) to Government Officials to obtain an improper commercial/business advantage. Government Officials include any government employee, candidate for public office; an employee of government – owned or government – controlled companies, public international organisation, and political parties. Each Party agrees not to offer, pay, promise, or authorise the payment, directly or through any other Person, of anything of value for the purpose of inducing or rewarding any favourable action or influencing or decision in favour of such Party.

21.1. PayShyft may at its own discretion based on the profile of the Merchant maintain a 180-day rolling reserve of funds to be settled to the Merchant upon accumulation of the Risk Deposit Amount where applicable.

21.2. PayShyft shall retain the right to use the 180-day rolling reserve for covering any Card Chargebacks or Refunds or any fees/fines imposed on the PayShyft due to the breach of the PayShyft Merchant Service Agreement by the Merchant.

21.3. The rolling reserve shall be 10% of all the transactions from the Merchant’s Customers during the calendar month.

21.4. The 10% rolling reserve shall be disbursed on day 181 to the Merchant’s bank account.

21.5. If the Chargebacks and the Refunds are higher than the 10% rolling reserve, PayShyft retains the right to set-off the amounts from the Merchant transaction until the sum of fine/fee is set off or covered as provided in Section 23 (Fraudulent Transactions).

21.6. PayShyft may require that any security provided be supplemented or replaced or any time.

21.7. PayShyft may require that any security provided be supplemented or replaced at any time.

21.8. At the time of Termination, PayShyft may withhold any amount from the security (if any) and settlement owed to the Merchant as may be determined by PayShyft for covering Chargeback, risk, Refund risk or any potential loss, damages, penalties, cost that may be incurred by PayShyft for a period of one hundred and eighty (180) Business days. If such withheld amounts are not adequate for covering all outstanding amounts of the Merchant after termination, Merchant shall guarantee that it pays PayShyft all pending amounts within not more than ten (10) Business Days commencing from the day of receipt of the demand notice and shall at all times keep PayShyft indemnified in this respect.

22.1. Where applicable, PayShyft reserves the right to require that the Merchant provides (or procures the provision of security in such form as to be agreed by the Parties to secure the performance of the Merchant’s actual, contingent, or potential obligations under these Terms or otherwise in connection with the Services. Such security may take the form of a deposit, a rolling reserve, a guarantee, or indemnity. PayShyft reserves the right to unilaterally call for an increase to the level of security held.

22.2. PayShyft may require that any security provided be supplemented or replaced at any time.

23.1.  Fraudulent transactions shall include without limits:

• 23.1.1. Purchase of goods and services and/or transaction resulting from the use of a card by a person besides the authorized cardholder.
• 23.1.2. Utilization of a card which is not approved in terms of the rules governing the issuance and use of cards.

23.2. If fraudulent transactions account for more than 0.10% of the Merchant’s sales turnover in any one (1) month, PayShyft may in their discretion choose to unilaterally terminate this agreement with the Merchant forthwith and/or request the Merchant to delist the affected customer from the use of the platform and terminate the Merchant Agreement with the affected Customer. Notwithstanding the foregoing PayShyft shall possess the above mentioned remedy in addition to other remedies available to it by the Applicable Laws.

23.3. Merchant agrees that it will always be responsible for the actions of;

• 23.3.1. the Merchant’s customers; and
• 23.3.2. The Merchant’s employees
• 23.3.3. including fraudulent acts or omission not traceable to the contributory negligence of PayShyft.

24.1. PayShyft shall indemnify and hold the Client, its directors, managers, officers, employees, and agents harmless from and against all losses, liabilities, damages, and expenses (including reasonable attorney fees and costs) (“Losses“) arising from claims, demands, actions or other proceedings as a result of:

• 24.1.1. fraud, negligence, and wilful misconduct by PayShyft in the performance of these Terms;
• 24.1.2. violation of Applicable Law in the performance of these Terms;
• 24.1.3. claim that the Services infringe intellectual property or any other proprietary right of a third party; or
• 24.1.4. breach of PayShyft’s confidentiality obligations under these Terms.

25.1 NOTICES:

• 25.1.1. All notices and other communication hereunder shall be in writing and shall be deemed given: (a) upon receipt if delivered personally or if mailed by registered post, return receipt requested and postage prepaid; or (b) three (3) days after dispatch, if sent by a courier; or (c) the day of delivery if sent by email unless the sender receives an automated message that the email has not been delivered.
• 25.1.2. All notices to PayShyft shall be delivered to the following respective mailing and email address:
  • 25.1.2.1. 21 Park Lane, Central Park, Heritage Park, Somerset West, 7130.
  • 25.1.2.2. info@payshyft.com

25.2. ENTIRE AGREEMENT:

• 25.2.1. These Terms contains the entire agreement of the Parties regarding the subject matter hereof and supersedes all other prior agreements, whether written or oral, regarding such subject matter. These Terms may be changed only by an instrument in writing executed by the Parties.

25.3. RELATIONSHIP:

• 25.3.1. The relationship between the Parties hereto shall be one of collaboration for the single purpose of the business relationship herein created.
• 25.3.2. These Terms shall not in any way constitute a partnership or joint venture between the Parties or constitute either Party an agent of the other.
• 25.3.3. These Terms is not intended to confer on any person other than PayShyft and the Merchant, any express or implied benefit or burden.

25.4. COUNTERPARTS:

• 25.4.1. These Terms be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all of which shall together constitute one and the same agreement.

25.5. FURTHER ASSURANCE

• 25.5.1. 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 these Terms.

25.6. SURVIVAL:

• 25.6.1. All provisions which by their nature should survive the termination of these Terms for any reason shall survive the termination of these Terms.

25.7. SEVERABILITY:

• 25.7.1. If any provision of these Terms is held to be invalid or unenforceable for any reason, such provision shall be conformed to prevailing law rather than voided, if possible, in order to achieve the intent of the Parties and, in any event, the remaining provisions of these Terms shall remain in full force and effect and shall be binding upon the Parties hereto.

25.8. NO WAIVER:

• 25.8.1. All rights available to either Party under these Terms or any other document delivered hereunder or in connection herewith, or allowed it by law or equity, are and shall be cumulative and may be exercised separately or concurrently and from time to time without waiver of any other remedies. Neither Party shall be deemed to have waived any right, power, or privilege under these Terms unless such waiver shall have been expressed in a written instrument signed by the waiving Party. The failure of either Party to enforce any provision of these Terms shall in no way be construed as a waiver of such provision or a right of such Party to thereafter enforce such provision or any other provision of these Terms.

25.9. ASSIGNMENT:

• 25.9.1. Neither Party shall have the right to assign or transfer these Terms or any rights or obligations hereunder without the prior written consent of the other Party.

25.10. CONTACT:

• 25.10.1. You may contact us at the following details:
  • 25.10.1.1. 21 Park Lane, Central Park, Heritage Park, Somerset West, 7130.
  • 25.10.1.2. info@payshyft.com