INFINITI LITE TERMS AND CONDITIONS
The relationship between the Bank and the Merchant is governed by the Laws of Kenya, these Terms and Conditions and any further agreement made in writing between the Bank and the Merchant.
1. DEFINITIONS
“Agreement” means the agreement recorded in this document and all schedules, appendices and / or annexures here-to.
“Business Day(s)” means any day of the week save for weekends and public holidays in the relevant territory.
“Confidential Information” means any information in any form and format whatsoever (whether or not marked as confidential) disclosed to, or obtained by the Merchant from the Bank or a third party acting on the Bank’s behalf and without prejudice to the generality of the foregoing shall include but not be limited to any information ascertainable by the inspection or analysis of samples, any information relating to the Bank’s operations, processes, plans, intentions, product information know-how, designs, trade secrets, software, market opportunities, customers, potential customers and business affairs.
“Customer” means any person who makes payment to the Merchant in relation to the Merchant Services using the Payment Gateway.
“Data” means any data, including personal data supplied to a Party by the other Party and held, stored, collected, collated, accessed, or processed on behalf of the first-mentioned Party by the other Party.
“Data Protection Laws” means all applicable statutes, laws, secondary legislation, and regulations pertaining to ownership, sharing, privacy, confidentiality and/or the protection and/or storage of Data in the Territory.
“Intellectual Property” means all trademarks, logos, brand names, trade names, patents, emblems, designs and copyright or other similar industrial or commercial monopoly rights owned by the respective parties or any of their subsidiary or associate companies.
“Merchant Services” means the products and services provided by the Merchant to the Customers in the ordinary conduct of its business and for which Customers will pay for through the Payment Methods.
“Merchant Service Fee” means a percentage of total sales value payable by the Merchant to the Bank pursuant to Payments.
“MNO” means the mobile network operators licensed to provide mobile telephony services in the applicable jurisdiction.
“Payments” means payments made by the Customers to the Merchant through the Payment Gateway.
“Payment Facility Provider” means and includes financial service providers and MNOs which have entered and implemented agreements with the Bank by which their systems have been connected with the Payment Gateway for the effective provisioning Services to merchants and their customers.
“Payment Gateway” is a payment platform provided by the Bank for purposes of processing of payments made to Merchants through various channels, including the Payment Methods.
“Payment Methods” as referred to in this Agreement shall mean using one or more of the following modes of payment which can be used by Customers to make payments through the Payment Gateway:
a) Mobile Money transfers offered by MNOs
b) Digital Wallet transfers as may be offered by authorized service providers
c) Any Bank Account transaction channel as the Bank may deem fit. including but not limited to mobile and internet/online banking, debit card and branch
d) Prepaid or Credit Card and
e) Any other mode of payment as may be made available by the Bank from time to time.
“Services” means the services to be provided by the Bank to the Merchant on the terms set out in this Agreement.
2. OBLIGATIONS OF THE BANK
For purposes of facilitating the provision of the Services to the Merchant, the Bank undertakes to:
2.1. Provide the Merchant with access to an Online Portal through which the Merchant will give Customer’s access to the Payment Gateway for purposes of Payment for Merchant Services rendered in addition to additional tools the Bank may avail to the customer from time to time under the Services (hereinafter referred to as “the Online Portal”).
2.2. Collect and settle funds paid by Customers to the Merchant through the Payment Methods in accordance with the provisions of clause 7.
2.3. In accordance with the provisions of this Agreement, undertake reconciliation with the Merchant through the provision of reporting tools availed through the Online Portal in relation to Payments collected and settled.
2.4. Knowledge transfer to the Merchant and their agents who shall use the Online Portal for purposes of the Services as the Bank shall deem necessary.
2.5. Provide an issue handling and redress framework for purposes of addressing escalations from the Merchant relating to the provision of the Services.
2.6. Co-ordinate, supervise and decide upon all activities relating to the Services.
3. OBLIGATIONS OF THE MERCHANT
The Merchant hereby undertakes to:
3.1. At its own cost, promote and market the Services through a proper medium so that Customers can use the Payment Methods to make Payments to the Merchant.
3.2. Be solely responsible for dealings with Customers including (where necessary) the independent verification and validation of their identity and authority to utilize and/or benefit from the Services. The Bank will not be liable to the Merchant or Customers for any liability arising out of defect in the Merchant Services.
3.3. Ensure that it is acting in compliance with and shall at all times act in compliance with all laws, rules and regulations including but not limited to the Data Protection Laws and shall at all times comply with the guidelines set by the Payment Facility Providers.
3.4. Bear and be responsible for the payment of all relevant taxes (including any applicable withholding taxes) due upon the Payments received through the Payment Gateway.
3.5. Not describe itself as agent or representative of the Bank or make any representations to Customers or any third party or give any warranties, which may require the Bank to undertake to or be liable for, whether directly, or indirectly, any obligation and/or responsibility to the Customer or any third party.
3.6. Indemnify and keep the Bank against all claims, losses, expenses and costs incurred as a result of the Merchant’s obligations to Customers and/or third parties as well as the failure by the Merchant or Customers to comply with any rules, regulations and limits set by any regulatory authority.
4. CHARGEBACKS
In the event that a customer requests its issuing bank to lodge any chargeback requests:
4.1. The Merchant shall without prejudice meet the costs of any chargeback raised to them by the acquirer through the bank.
4.2. The Bank shall retain the chargeback amount from the Merchant until the chargeback process is completed and any disputes in relation thereto resolved.
4.3. The Party determined to be liable for fraud upon proper investigations having been undertaken and duly completed shall bear the chargeback costs.
4.4. Where the Merchant requests the Bank to decline a chargeback request the Merchant shall provide evidence that the goods/services paid for were delivered.
4.5. In the event that the Merchant has made refunds to the Customer, evidence of the refund shall be provided to the Bank.
4.6. Any form of evidence or justification as may be requested by the Bank shall be provided by the Merchant in a timely manner.
5. TERM AND TERMINATION
5.1. This Agreement shall come into force on the Signature Date and shall continue to subsist unless terminated by either party in accordance with clause.
5.2. or by the Bank in accordance with Clause 5.3.
5.3. This Agreement may be terminated:
5.3.1. By either party without cause at any time on three (3) months’ written notice.
5.3.2. By either Party forthwith by written notice to that effect if the Other Party shall commit any material breach of its obligations hereunder which is not capable of remedy or which shall not have been remedied within seven (7) days of the Other Party having received a written complaint or query (delivered through email or delivery of letter) specifying the nature of such breach and requiring its rectification.
5.3.3. By either Party if the other Party shall go into liquidation other than for the purposes of reconstruction or amalgamation or shall suffer the appointment of a receiver of any of its property or income or make any deed or arrangements with or composition for the benefit of any of its creditors.
5.4. In addition to any other termination rights granted by this Agreement, the Bank may terminate this Agreement immediately without liability and without any notice, if
5.4.1. The Bank is notified or otherwise determines in good faith that the Merchant is using the Services in furtherance of any activity which violates any law, rule, or regulation or policy of the Bank.
5.4.2. The Bank is notified by the MNO or digital wallet service provider that the number and quantum of charge back requests received in relation to the Merchant is beyond such limits as may have been advised in writing.
5.4.3. The Bank, or its directors, officers, stockholders, employees or agents are made the subject of a criminal or civil or civil action or investigation or are threatened by such action as a consequence of use of the Services by the Merchant.
5.5. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement which expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
6. FEES AND PAYMENTS
6.1. As consideration for the provision of the Services, the Bank shall collect from the Merchant a Merchant Service Fee on all payments, processed through the Payment Gateway on behalf of the Merchant as per tariff guide or as agreed upon.
6.2. The Bank may impose or vary Merchant Service Commission/ Charge, as it shall from time to time determine upon giving at least one-month prior notification in writing.
6.3. The Bank may change its settlement procedure for Merchant Commission and/or Fees from time to time on notice to the Merchant.
7. SETTLEMENT
7.1. Where the Bank collects Payments on behalf of the Merchant, the amount collected from the Customers after deducting any fees or other payments due or outstanding to the Bank from the Merchant (in respect of collections made by the Bank on behalf of the Merchant through any of the Payment Methods) shall be credited to such bank account or wallet provided by the Bank to the Merchant within Forty Eight (48) hours or any other agreed period but no more than seventy two (72) hours of collection.
8. INDEMNIFICATION AND LIMITATION OF LIABILITY
8.1. The Merchant agrees to indemnify and hold harmless the Bank of and from any and all claims, demands, losses, causes of action, damage, legal actions, judgments, including attorneys’ fees and costs arising out of and relating to its undertakings and representations to the Bank herein and any of its obligations to third parties.
8.2. The Bank’s maximum cumulative liability under this Agreement shall not exceed the commission collected by the Bank under this Agreement in the month immediately preceding the occurrence of the claim from which the costs or expense arise and shall be subject to the following conditions having been met:
8.2.1. The Bank shall not indemnify the Merchant against any losses arising fully or in part from actions, inactions, faults or negligence of the Merchant or any third parties.
8.2.2. Without prejudice to the limitation of liability set out in this clause 8.2, the Merchant must have notified the Bank of any direct loss in respect of which a claim of indemnity arises within thirty (30) days of the loss occurring. The Bank shall not be under obligation to indemnify the Merchant against any direct loss in respect of which notice has not been issued in accordance with the provisions of this clause.
8.3. Notwithstanding anything to the contrary contained in this Agreement a Party, its officers, employees, sub-contractors, agents and partners shall not be liable to the other Party for any indirect, consequential, incidental or special loss including (but not limited to) loss of profit, anticipated savings, loss of goodwill, corruption or loss of data howsoever arising.
9. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
9.1. The Merchant shall keep confidential and shall not disclose to any other person nor use for any purpose any Confidential Information obtained from the Bank as a result of negotiating, entering into or implementing the agreement other than information which is required to be disclosed by operation of law or any requirement of a competent authority, is reasonably required to be disclosed in confidence to the Merchant’s professional advisors for use in connection with the Services and / or matters contemplated herein or is or becomes within the public domain (otherwise than through the default of the recipient party).
9.2. The intellectual property inherent in the software and other solutions provided by the Bank under this Agreement (including improvements and upgrades thereto) shall remain the sole and exclusive property of the Bank. Further and unless otherwise agreed in writing, neither Party shall be entitled to use of the intellectual property of the other save for the purposes of this Agreement.
9.3. All public announcements and/or press release in connection with the subject matter of this Agreement or its implementation shall only be made after mutual consultation and agreement on all the parameters there of including but not limited to the contents of such public announcements and/or press releases.
9.4. Any breach of this clause shall entitle the offended Party to terminate this Agreement in addition to other remedies entitled to it under law.
10. FORCE MAJEURE
10.1. None of the parties hereto shall be held liable for any breach under the Agreement if such a breach results from an event of Force Majeure (Force Majeure shall include but not limited to floods, earthquake, natural phenomena, war, any decisions of any relevant Government authority) which for the purpose of this agreement shall mean any event or circumstances which materially affects such Party hereto in a manner which prevents that Party from performing or fulfilling all its obligations under this Agreement and where such event or circumstance or its effect cannot be prevented, avoided or removed by such Party acting in accordance with prudent practice and has not been precipitated or caused by default, negligence, omission or act of any party hereto.
10.2. Where the Force Majeure event shall continue to subsist for a period of twenty-eight (28) days, the other party may at any time thereafter terminate this Agreement upon not less that fourteen (14) days’ notice in writing but without prejudice to any antecedent rights or liabilities of either Party.
11. NOTICES
11.1. Any notice or document to be served on any Party shall be sent or delivered to the addresses specified in this Agreement or otherwise communicated by the relevant Party.
12. DISPUTE RESOLUTION
12.1. Any dispute arising between the Parties hereto and not settled in full by mutual agreement of the parties hereto evidenced in writing shall be referred to arbitration according to the Arbitration Law where the Bank’s entity is located.
12.2. If Parties cannot agree to on an arbitrator, the arbitrator shall be appointed by the Chair of the relevant arbitral body agreed upon by the Parties in the location of the Bank’s entity.
12.3. The rules of the said institute and the Arbitration Act in force in the relevant country as amended from time to time shall apply to the arbitration proceedings.
12.4. To the extent permissible by law the determination of the Arbitrator shall be final and binding upon the Parties.
12.5. The Language of the Arbitration hearing will be in English.
13. GOVERNING LAW AND JURISDICTION
13.1. The construction, validity and performance of this Agreement shall in all respects be governed and construed in accordance with the laws Kenya and the Kenyan Courts shall have jurisdiction over all matters arising from this Agreement.
14. GENERAL
14.1. The Bank’s relationship with the Merchant will be that of an independent contractor and nothing in this Agreement shall be construed to create a partnership, joint venture, or employer- employee relationship between the parties hereto or between the Bank and the Merchant’s employees. The Merchant shall have no right to obligate or bind the Bank in any manner. The employees of the Merchant shall not have any claim/right/benefits whatsoever against the Bank.
14.2. This Agreement is personal to the Parties and may not be assigned at law or in equity without the prior written consent of the other Party.
14.3. The provisions of this Agreement may only be added to, modified or varied by mutual consent of and the written agreement of the Parties.
14.4. This Agreement constitutes the whole agreement between the Parties relating to the subject matter of this Agreement and supersedes any previous written or oral Agreement between them in relation to the matters dealt with in this Agreement
15: ACCEPTANCE OF TERMS AND CONDITIONS OF THIS AGREEMENT
15.1 The Merchant, has executed these Terms and Conditions with the intention to be legally bound by the contents herein.
15.2 The Merchant hereby agrees and confirms that they have read and understood these Terms and Conditions and have sought and obtained independent legal and financial advice regarding the legal, tax, financial or other implication arising under these Terms and Conditions