Pesaswap

Pesaswap Merchant Services Agreement

THIS MERCHANT SERVICES AGREEMENT is made this 8 November , 2019

BETWEEN:

PESASWAP EAST AFRICA LIMITED a limited liability company incorporated in the Republic of Kenya of P.O.BOX 56512-00200 (hereinafter referred to as “Pesaswap” which expression shall where the context so admits include its successors in title and permitted assigns) of the First Part and;
a limited liability company incorporated in the Republic of Kenya of P.O.BOX (hereinafter referred to as “the Merchant” which expression shall where the context so admits include its successors in title and permitted assigns) of the Second Part .

WHEREAS

The Merchant is a company registered in the Republic of Kenya which carries on the business of...
Pesaswap is a company registered in the Republic of Kenya which is in the business of enabling payment through the use of payment gateway services, invoicing platform, data analytics and other related services.
Pesaswap wishes to process the payments of the Merchant through the Merchant’s website, ERP or CRM system by means of a payment gateway and in accordance with the following terms and conditions set out in this Agreement.

IT IS HEREBY AGREED as follows:

DEFINITIONS & INTERPRETATION
Unless the context otherwise requires, the following terms will have the following meanings under this Agreement:-

1.1. “Agreement” means This Merchant Services Agreement, including the recitals, the and the appendices attached hereto

1.2. “Application Form” Pesaswap’s application form which is used by the Merchant to apply for Pesaswap’s Services. The application form shall include relevant information, including but not limited to, the Merchant’s particulars, the Services requested, the fees payable to Pesaswap, and the settlement information between Pesaswap and the Merchant for each Transaction.

1.3. “Marks” The names, marks, designs, logos, signs, acronyms and other insignia (whether registered or unregistered) used or to be used by Pesaswap in connection with the Services including all variations thereof and amendments thereto from time to time.

1.4. “Services” The range of services which the Merchant is authorised to use or to provide to the Merchant’s users pursuant to this Agreement as may be authorised by Pesaswap from time to time.

1.5. “Transaction” Transactions effected and Services obtained by the Merchant’s users.

1.6. “Merchant” The party which has signed up through Pesaswap’s application form to use Pesaswap’s services as defined below.
Clause headings are inserted for convenience of reference only and shall not affect the interpretation of this Agreement.
This Agreement shall apply to any and all Services that the Merchant obtains from Pesaswap. The Merchant agrees to abide by the additional terms and conditions set out in the Application Form and the appendices attached to the Agreement, which are incorporated into this Agreement by reference.
PROPRIETARY RIGHTS
NON-EXCLUSIVE
Nothing in this Agreement shall prohibit Pesaswap from furnishing services similar to those provided under this Agreement to others, including competitors of Merchant.
UNDERTAKINGS OF THE MERCHANT
6.1. The Merchant agrees and undertakes throughout the term of this Agreement that the Merchant shall:

6.1.1. not require the Merchant’s user(s) to pay any part of the fees which the Merchant may be liable to pay Pesaswap hereunder whether through an increase in price or otherwise or to pay any contemporaneous finance charge in connection with a Transaction;

6.1.2. not make any warranty or representation whatsoever in relation to the Services which may bind Pesaswap or render Pesaswap liable in any way whatsoever;

6.1.3. at its own expense and before the time agreed for installation or activation of the Services, prepare and provide the necessary, compatible operational equipment, software and connection specified by Pesaswap for the purposes of using the Services; and where necessary, prepare and provide such interface hardware and software to Pesaswap and good internet connection;

6.1.4. not alter, copy, modify or tamper with any hardware or software provided by Pesaswap;

6.1.5. install such measures as may be necessary to protect the security and integrity of related hardware or software, whether owned by the Merchant or Pesaswap;

6.1.6. where required, comply with all security or encryption standards, rules and procedures imposed by Pesaswap;

6.1.7. make connections to such other systems as Pesaswap may require from time to time;

6.1.8. maintain at the Merchant’s own expense adequate quantities of consumables for the hardware as may be required from time to time;

6.1.9. not sell, assign, license, transfer or permit the use of the Pesaswap software or hardware by any party without the written permission of Pesaswap;

6.1.10. prior to providing the Services, open and maintain at all times during the term of this Agreement, an account in its name with one of the local banks which shall be designated for purposes of clearing and settling Transactions handled by the Merchant;

6.1.11. inform Pesaswap of any change in the particulars of the Merchant’s designated bank account; and

6.1.12. maintain, throughout the term of this Agreement, adequate and competent personnel to operate the Services.

6.2. UNDERTAKINGS OF PESASWAP

Pesaswap agrees and undertakes that it shall:

6.2.1. use its best endeavours to provide to the Merchant the Services for which the Merchant enrols and pays the applicable fees;

6.2.2. provide training on the use and operation of the hardware and/or software for the Services to the Merchant’s personnel on such terms as the parties shall agree; and

6.2.3. where required, at the Merchant's expense, install the hardware at the Merchant's premises on or by such installation date as the parties may agree.
PAYMENTS
7.1. All Mobile Payment Transactions shall be made in Kenya Shillings and Card Payments shall be made through the currency maintained by the card holder’s bank.

7.2. The Merchant shall be liable to make payments due to Pesaswap arising from this Agreement in accordance to Schedule 1 :

7.3. In consideration of using Pesaswap’s Services, the Merchant shall pay Pesaswap the applicable transaction fees (the “Transaction Fees”) and other charges at such time as may from time to time be stipulated by Pesaswap or as otherwise provided by Pesaswap in accordance with the terms of this Agreement.

7.4. The Merchant shall allow Pesaswap to first make deductions from the amounts paid by the Merchant’s users as payment of Pesaswap’s Transaction Fees, before advancing the balance sums to the Merchant.

7.5. Unless otherwise specified herein, the Services are for a one-year initial term and renewable thereafter for successive one-year periods. Any renewal of Pesaswap’s Services is subject to Pesaswap’s then- current terms and conditions, including, but not limited to, payment of all applicable fees at the time of renewal.

7.6. Pesaswap may revise its applicable fees and other charges from time to time and will notify the Merchant in writing (which period of notification shall be determined by Pesaswap in its sole discretion) of the date (the “Effective Date”) when the new fees or charges become payable. The Merchant shall confirm in writing to Pesaswap its acceptance or non- acceptance of the new fees or charges on or before the Effective Date. If Pesaswap does not receive the Merchant’s written non-acceptance of the new fees or charges within the aforesaid period on or before the Effective Date, the Merchant shall be deemed to have accepted the new fees or charges and shall be bound to pay the new fees or charges from the Effective Date. If the Merchant notifies Pesaswap in writing on or before the Effective Date that it does not accept the new fees or charges, this Agreement shall be deemed terminated on the Effective Date but without prejudice to the antecedent rights or liabilities of the parties hereto.

7.7. The fees and charges payable by the Merchant under this Agreement are exclusive of any taxes, duties, fees or government levies which may be imposed now or hereafter in respect of the Transactions. Such taxes, duties, fees or governmental levies shall be for the Merchant’s account.

7.8. Prompt payment of Pesaswap’s fees and other charges shall be of the essence of this Agreement.

7.9. All fees and charges paid by the Merchant under this Agreement shall not be refundable in the event of termination of this Agreement howsoever caused.

7.10. Upon the execution of this Agreement, the Merchant shall provide Pesaswap with all necessary particulars of the account designated by the Merchant pursuant to Clause 5.1.11

7.11. The Merchant agrees that Pesaswap may, if and whenever instructed to do so by the bank with which the Merchant’s said designated account is opened, limit or refuse any or all transactions from or to the Merchant’s said account with that bank and no liability shall be imputed to Pesaswap for acting on such instructions.

7.12. Pesaswap shall be entitled and the Merchant hereby authorises Pesaswap to debit directly without prior notice all fees and charges due from the Merchant to Pesaswap under this Agreement from the aforesaid designated account.

7.13. The Merchant agrees that Pesaswap will undertake payment or settlement procedures within 14 days of receipt , except on the following non-settlement days:

7.13.1.1. any day declared to be a holiday in Kenya

Sundays and public holidays as gazetted and declared in Kenya in which case Transactions effected on such days shall be paid and settled on the immediately following day which is not any of the aforesaid non-settlement days.
RENTAL OF SOFTWARE AND HARDWARE
8.1. Where the Merchant is required to use software and/or hardware from third party vendors in order to utilize Pesaswap’s services, such software and/or hardware including but not limited to payment terminals, the Merchant shall:

8.1.1. sign any relevant agreements with the relevant third party vendors so as to procure the use of the software and/or hardware;

8.1.2. pay any and all deposits required with the relevant third party vendors; and

8.1.3. not make any warranty or representation whatsoever in relation to the use of these relevant software and/or hardware which may bind Pesaswap or render Pesaswap liable in any way whatsoever.
PROHIBITED PRODUCTS
9.1. The Merchant shall ensure that the products sold to the Merchant’s users shall not contain articles which are prohibited or restricted under any and all applicable laws and regulations, including products listed by in the Schedule 2 below, which may be updated by Pesaswap from time to time.
DISPUTES
10.1. Pesaswap shall not be involved in any dispute or claim that may arise between the Merchant’s users and the Merchant, unless the said dispute or claim relates specifically to the use of the Services in which case the same shall be subject to the relevant terms and conditions governing the use of the Services prevailing from time to time and the dispute or claim was notified to Pesaswap within fourteen (14) days of occurrence.

10.2. The parties hereto agree that in the event of a dispute or claim of whatever nature arising in respect of any Transaction, the records of the Transactions available from the Merchant and Pesaswap shall be used as a reference and shall be the sole basis of settling the aforesaid dispute or claim. Where there are discrepancies between records of the Trans- actions recorded by Pesaswap and the Merchant, the discrepancies shall be jointly investigated by Pesaswap and the Merchant using information from both parties whenever appropriate, and proper adjustments (if any) shall be made accordingly.

10.3. The Merchant agrees that where multiple or excess payments have been effected by or on behalf of the Merchant’s users in respect of any Transaction, whether through the Services or through any other existing system of payment, the Merchant shall refund or reimburse such users for such excess payments made and shall keep Pesaswap harmless from and indemnified against any claim related to such excess payments.
INDEMNITY
11.1. The Merchant hereby agrees and undertakes to fully indemnify and keep Pesaswap harmless from and against all actions, claims, costs (including legal costs on a full indemnity basis), losses, charges, expenses and damages which Pesaswap may suffer or incur as a result of:

11.1.1. the occurrence of any event under Clause 4.1

11.1.2. any fraud, dishonesty or misconduct (criminal or otherwise) relating to the Transactions perpetrated by the Merchant, its servant, agent, employee or contractor or the fraud, dishonesty or misconduct (criminal or otherwise) perpetrated by a third party as a result of the negligence or default of the Merchant, its servant, agent, employee or contractor; and

11.1.3. any loss caused by or to or damage to any of Pesaswap’s equipment arising out of the act or omission whether negligent or otherwise of the Merchant, its servant, agent, employee or contractor or out of any failure of the Merchant, its servant, agent, employee or contractor to operate the equipment in accordance with the procedures prescribed by Pesaswap.

11.1.4. The Merchant shall not hold Pesaswap liable or responsible for any action, claim, cost, expense, damage and loss, including consequential loss or damage or loss of profit, which the Merchant may suffer or incur as a result of a breakdown in the provision of the Services or when the Services are not available for any reason whatsoever.

11.1.5. Pesaswap shall indemnify the Merchant against direct losses suffered by the Merchant as a result of any fraud, negligence, dishonesty or misconduct (criminal or otherwise) relating to any Transaction by any servant, agent, employee or contractor of Pesaswap.
NOTICES
12.1. Unless otherwise provided herein or agreed to in writing by the parties hereto, all notices or other communications to or upon the Merchant and Pesaswap shall be sufficiently served if delivered at or sent by registered post by either party to the other at the address above stated and shall be deemed to have been served in the case of a notice delivered by hand on the day of the delivery, in the case of a notice served by registered post on the day following that on which notice was posted and in the case of a notice served by facsimile on the day of the facsimile.
ASSIGNMENT
13.1. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and legal Representatives and shall not be construed so as to confer any benefit upon any other person except as expressly provided herein.

13.2. The Merchant shall have no right to assign or transfer the Merchant’s rights and obligations in this Agreement and shall remain fully liable for all of the Merchant’s respective duties, liabilities and obligations hereunder.
RELATIONSHIP OF THE PARTIES
14.1. The parties hereto shall not by virtue of this Agreement be deemed to be a partner or agent of each other nor shall anything herein contained be construed as creating a partnership, joint association or trust it being agreed that each party will be responsible only for its obligations under this Agreement and neither party shall be authorised to represent or bind the other to third parties
SEVERABILITY
15.1. If any provision herein is deemed by any tribunal or court of competent jurisdiction to be illegal, invalid or unenforceable under any applicable law or otherwise, it shall, be severed from this Agreement and rendered ineffective so far as is possible without affecting the legality, validity and enforceability of the remaining provisions of this Agreement.
FORCE MAJEURE
16.1. No failure or omission by any party to carry out its obligations or observe any of the stipulations or conditions of this Agreement shall give rise to any claims against the party in question or be deemed a breach of this Agreement if such failure or omission arises from a cause of force majeure, such as acts of God, war or warlike hostilities, civil commotion, riots, blockades, embargoes, sabotage, strikes, lockouts, shortage of material or labour, delay in deliveries from sub- contractors or machine failure caused by force majeure, or any other event outside the control of the party in question.
TERMINATION OF THIS AGREEMENT
17.1. This Agreement shall become effective when signed by the parties hereto and shall remain in force and effect until terminated in accordance with the terms of this Agreement.

17.2. Either party to this Agreement may elect to terminate this Agreement by giving one (1) month’s prior notice in writing to the other party of its intention to do so.

17.3. Pesaswap shall have the right to give immediate notice in writing to the Merchant to terminate this Agreement forthwith upon the happening of any one or more of the following events of default, whether or not such event is of a continuing nature:

17.3.1. If the Merchant has breached any of the terms and conditions of this Agreement;

17.3.2. if the Merchant enters into liquidation, receivership, judicial management or otherwise compounds with its creditors or takes or suffers any similar action or occurrence in any jurisdiction;

17.3.3. if the Merchant becomes insolvent or stops payment or ceases or threatens to cease to carry on its business or any part of its business;

17.3.4. if any resolution is passed or steps taken by the Merchant or any other person to apply for judicial composition proceedings with its creditors or an order is made by any competent court for such proceedings or a receiver, judicial manager, administrator or other similar official is appointed in relation to the Merchant or any part of the assets or undertakings of the Merchant or encumbrancer taking possession of any part of the assets or undertakings of

17.3.5. if the Merchant is deceased or its partnership is dissolved;

17.3.5.1. if the Merchant or any of its shareholders, partners, proprietors, officers, employees, agents or contractors is or is suspected by Pesaswap to be involved in any fraudulent or unlawful activity whether or not relating to the Merchant's business;

17.3.5.2. if the Merchant's business involves any trade or activity deemed undesirable by Pesaswap, or Regulatory Authority; or

17.3.5.3. if there had been multiple complaints and disputes relating to the Merchant's goods or services by the Merchant’s users.

17.3.6. In the event of termination of this Agreement for whatever reason:

17.3.6.1. the Merchant agrees and undertakes to return to Pesaswap immediately all materials, books, records or otherwise pertaining to the provision of the Services, and shall not thereafter use the Marks or any part or derivatives thereof;

17.3.7. the Merchant agrees and undertakes to permit Pesaswap, and Pesaswap shall have the right of access to the Merchant’s premises to disconnect, retrieve and remove any equipment relating to the provision of the Services which is not owned by the Merchant and any material bearing the Marks or derivatives thereof and at the request of Pesaswap, the Merchant will at its own expense assist Pesaswap to exercise its rights hereunder and shall fully cooperate to comply with the requirement of Pesaswap in this respect; and

17.3.8. any antecedent right and liability of either party shall not be thereby prejudiced or impaired.
CONSTRUCTION AND VARIATION
18.1. This Agreement constitutes the entire agreement between the parties hereto and all prior arrangements, representations and undertakings are hereby superseded.

18.2. No variation or amendment to any provision of this Agreement shall be made unless in writing and duly signed by authorised representatives of the parties hereto.
CONFIDENTIALITY
19.1. "Confidential Information" means any confidential, trade secret or proprietary information (which may be business, financial or technical information) disclosed by one party to the other under this Agreement that is marked confidential or if disclosed orally designated as confidential at the time of disclosure or that should be reasonably understood to be confidential.

19.2. Each party agrees that:

19.2.1. Each party shall not disclose to any third party or use any Confidential Information disclosed to the party by the other except as expressly permitted in this Agreement and for purposes of performing this Agreement, and

19.2.2. Shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance. Each party further agrees to use the other party's Confidential Information only for the purpose of its performance under this Agreement.

19.2.3. In addition, the receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects which embody Confidential Information and which are provided to the receiving party hereunder.

19.2.4. The obligations set forth in this clause above do not apply to information that

19.2.4.1. is in or enters the public domain without breach of this Agreement;

19.2.4.2. the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation;

19.2.4.3. the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information;

19.2.4.4. is disclosed with the written approval of the disclosing party.

19.2.5. Notwithstanding the obligations set forth in this clause, each party may disclose Confidential Information of the other party:

19.3. to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or

19.4. on a "need-to-know" basis under an obligation of confidentiality substantially similar in all material respects to those confidentiality obligations to its legal counsel, accountants, contractors, consultants, banks and other financing sources.

19.2.4.1. is in or enters the public domain without breach of this Agreement;

19.2.4.2. the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation;

19.2.4.3. the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information;

19.2.4.4. is disclosed with the written approval of the disclosing party.

19.2.5. Notwithstanding the obligations set forth in this clause, each party may disclose Confidential Information of the other party:

19.3. to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or

19.4. on a "need-to-know" basis under an obligation of confidentiality substantially similar in all material respects to those confidentiality obligations to its legal counsel, accountants, contractors, consultants, banks and other financing sources.
RIGHTS OF THIRD PARTIES
20.1. Any person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act or any amendment thereto to enforce any term of this Agreement.

21. GOVERNING LAW AND COMPLIANCE

21.1. This Agreement shall be governed by and construed in all aspects in accordance with the laws of Kenya and the parties hereto irrevocably submit to the exclusive jurisdiction of the courts of Kenya

21.2. The parties hereto each undertakes to comply with all laws and regulations as may be applicable to the performance of its obligations under this Agreement.

21.3. The Merchant hereby expressly agrees not to directly or indirectly deal in the following product/s or service/s at any time during the tenure of this Agreement.

SCHEDULE 1:

Transaction fees shall be 0.5% of the amount paid by merchants’ users of the Pesaswap system.

If payment is made by card, the transaction fees shall include the bank transaction fees.

SCHEDULE 2:

The Merchant confirms that their operations are conducted at all times in compliance with applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Merchant or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.

Without prejudice whatsoever to the Pesaswap’s other rights & privileges the Merchant bind themselves unequivocally to be solely liable for including but not limited to any legal actions and suits, and to make good to the Pesaswap immediately upon demand damages suffered by Pesaswap directly or owing to claims by any third party, the Central Bank of Kenya and any other statutory or competent authorities for any breach of any terms of this Agreement, including the dealing in the following:

a. Adult goods and services which includes pornography and other sexually suggestive materials (including literature, imagery and other media); escort or prostitution services. Apparatus such as personal massagers/vibrators and sex toys and enhancements.

b. Body parts, which includes organs or other body parts – live, cultured/preserved or from cadaver.

c. Cable TV descramblers and black boxes which includes devices intended to obtain cable and satellite signals for free

d. Child pornography in any form.

e. Copyright unlocking devices which includes Mod chips or other devices designed to circumvent copyright protection

f. Copyrighted media, which includes unauthorized copies of books, music, movies, and other licensed or protected materials

g. Copyrighted software which includes unauthorized copies of software, video games and other licensed or protected materials, including OEM or bundled software

h. Counterfeit and unauthorized goods which includes replicas or imitations of designer goods; items without a celebrity endorsement that would normally require such an association; fake autographs, counterfeit stamps, and other potentially unauthorized goods

i. Drugs and drug paraphernalia which includes illegal drugs and drug accessories, including herbal drugs including but not limited to salvia and magic mushrooms

j. Drug test circumvention aids which includes drug cleansing shakes, urine test additives, and related items

k. Endangered species, which includes plants, animals or other organisms (including product derivatives) in danger of extinction

l. Gaming/gambling which includes lottery tickets, sports bets, memberships/ enrolment in online gambling sites, and related content

m. Government IDs or documents which includes fake IDs, passports, diplomas, and noble titles

n. Hacking and cracking materials which includes manuals, how-to guides, information, or equipment enabling illegal access to software, servers, websites, or other protected property

o. Illegal goods which includes materials, products, or information promoting illegal goods or enabling illegal acts

p. Miracle cures which includes unsubstantiated cures, remedies or other items marketed as quick health fixes

q. Offensive goods which includes literature, products or other materials that: a) Defame or slander any person or groups of people based on race, ethnicity, national origin, religion, sex, or other factors b) Encourage or incite violent acts c) Promote intolerance or hatred.

r. Offensive goods, crime which includes crime scene photos or items, such as personal belongings, associated with criminals

s. Prescription drugs or herbal drugs or any kind of online pharmacies which includes drugs or other products requiring a prescription by a recognized and licensed medical practitioner in Kenya or anywhere else.

t. Pyrotechnic devices and hazardous materials which includes fireworks and related goods; toxic, flammable, and radioactive materials and substances.

u. Regulated goods which includes air bags; batteries containing mercury; Freon or similar substances/refrigerants; chemical/industrial solvents; government uniforms; car titles; license

v. plates; police badges and law enforcement equipment; lock-picking devices; pesticides; postage

w. meters; recalled items; slot machines; surveillance equipment; goods regulated by government or other agency specifications

x. Securities, which includes stocks, bonds, mutual funds or related financial products or investments.

y. Tobacco and cigarettes which includes cigarettes, cigars, chewing tobacco, and related products

z. Traffic devices, which includes radar detectors/ jammers, license plate covers, traffic signal changers, and related products

aa. Weapons, which includes firearms, ammunition, knives, brass knuckles, gun parts, and other armaments

bb. Wholesale currency, which includes discounted currencies or currency, exchanges

cc. Live animals or hides/skins/teeth, nails and other parts etc of animals.

dd. Multi-Level Marketing schemes or Pyramid / Matrix sites or websites using a matrix scheme approach

ee. Any intangible goods or services or aggregation/consolidation business.

ff. Work-at-home information

gg. Drop-shipped merchandise

hh. Any product or service, which is not in compliance with all applicable laws and regulations both local and international including the laws of Kenya.

Thank you and welcome to Pesaswap!