End User License Agreement
This Agreement was last updated on the 15th of May 2023 and replaces all prior agreements between the Parties.
- Interpretation and definitions
1.1. Unless otherwise indicated or the contrary appears from the context, the following words shall bear the meanings assigned to them in terms of this clause and cognate expressions shall bear corresponding meanings:
1.1.1. “Acquirer” means a member of the payment industry, usually a Bank, who acquires from End-User merchants to whom it provides reconciliation and settlement services, and who contracts with Payment Facilitators to directly or indirectly enter Card Transactions from End-User merchants into interchange. The specific Acquirer shall be identified on the Term Sheet.
1.1.2. “AddPay” means AddPay (Pty) Ltd., a private company with limited liability (registration no.: 2019/463070/07) and duly incorporate in accordance with the laws of the Republic of South Africa.
1.1.3. “AddPay’s Website” means the website operated by AddPay, located at the domain or subdomain addpay.co.za, as updated from time to time.
1.1.4. “Administrator” is the person designated by the End-User to be responsible for that End-User’s use of the Services in compliance with this Agreement and any applicable Term Sheets.
1.1.5. “Affiliate” means, in relation to a Party, any company or legal entity that directly or indirectly (whether through one or more intermediaries) controls, is controlled by or is under the common control with that Party or its successors in title from time to time (in this regard, “control”, and each variation of that term, means the power to determine the direction of the management or material policies of a company or legal entity, whether through ownership of voting shares, agreement or otherwise including direct or indirect beneficial ownership of 50% (fifty percent) or more of the voting shares of a company or legal entity).
1.1.6. “AFSA” means the Arbitration Foundation of South Africa.
1.1.7. “Agreement” means this End-User Licence Agreement together with any schedules or annexures thereto.
1.1.8. “Applicable Laws” means all applicable laws, rules, industry codes, regulations, formal regulatory guidelines and standards, and any other subordinate legislation made by any relevant regulatory body with binding effect in force from time to time within the Territory and applicable to the Parties to this Agreement.
1.1.9. “Association Rules” means all applicable laws, by-laws, rules, regulations, standards, operating guidelines and procedures issued by any Association for South Africa (specifically Eurocard, MasterCard and Visa) from time to time relating to Cards, Card Transactions, any other payment method and payment or the processing of Transaction data relating thereto, as amended, extended, consolidated or supplemented from time to time, and any current waivers or exemptions agreed to with the Associations. The current version of the Association Rules can be access at https://usa.visa.com/dam/VCOM/download/about-visa/visa-rules-public.pdf
1.1.10. “Associations” means the card associations (specifically Eurocard, MasterCard and Visa) supported by Acquirers from time to time for the purpose of processing Transactions.
1.1.11. “Auditors” means the auditors appointed by AddPay from time to time.
1.1.12. “Bank” means a registered bank, banking group or similar type of financial institution as defined in the Banks Act 94 of 1990, and any applicable law in the Territory.
1.1.13. “Business Profile” refers to the End-User’s virtual portfolio that contains the information the End-User provided during the onboarding process, and to which a reference tag is allocated so that the End-User can be identified in the administration of payment instructions and for the reconciliation and settlement of the End-User’s account.
1.1.14. “Card” means any payment card issued by an Issuer to a Cardholder and supported by the relevant Association.
1.1.15. “Cardholder” means any Payer in whose name a Card is issued by an Issuer.
1.1.16. “Card Information” means personal information associated with a Cardholder, including their name, Card number, expiration date and/or security code.
1.1.17. “Card-Not-Present (CNP) Transaction” refers to a transaction in respect of which neither the Cardholder nor the credit/debit Card is physically present at the POS at the time of the Transaction.
1.1.18. “Chargeback” refers to a Transaction that –
126.96.36.199. an Association, Issuer or other financial institution has refused to settle in terms of its rights under the Association Rules;
188.8.131.52. has been settled but subsequently reversed because the Cardholder has successfully disputed the transaction.
1.1.20. “Console” refers to the End-User’s interface used to access the Services platforms by means of its Business Profile login details, for ‘Admin’ purposes such as monitoring and interacting with transaction data produced by its use of the Services.
1.1.21. “Court” means a court of competent jurisdiction within the Republic of South Africa.
1.1.22. “Effective Date” means the date on which the End-User signs this Agreement or the date on which the End-User commences use of the Services, whichever is the earliest.
1.1.23. “End-User” is a Party to this Agreement whose Business Profile is active and administered on the Services platforms provided and licenced by AddPay to extend Services from Acquirers to Payers.
1.1.24. “End-User Data” means the data processed by AddPay when (i) inputted by the End-User, or on the End-User’s behalf, during the onboarding process and (ii) related to the End-User’s business Transactions and processes and used for the purpose of using or facilitating during the use of the Services in terms of this Agreement.
1.1.25. “Europay, Mastercard, and Visa (EMV)” means the standard for interoperation between chip cards and Point-of-Sale terminals and ATMs which allow for the authentication of credit and debit card payments.
1.1.26. “Excessive Chargeback Merchant” is an End-User whose card payment transactions exceed or are approaching specific chargeback thresholds for card payments as stipulated by a Card Scheme.
1.1.27. “Excessive Fraud Merchant” is an End-User whose card payment transactions exceed or are approaching specific fraudulent thresholds for card payments as stipulated by a Card Scheme.
1.1.28. “Excessive Mobile Data Usage” means, in respect of each POS device, mobile data usage over AddPay-issued sims in excess of 30 megabytes per month.
1.1.29. “Fraudulent Transaction” means any transaction that constitutes fraud, either in terms of statute or the common law, irrespective of whether an authorisation code number had been provided.
1.1.30. “Helpdesk” means AddPay’s helpdesk contactable at email@example.com
1.1.31. “Intellectual Property” means all of AddPay’s intellectual property rights of whatever nature including, without limitation, the rights in and to trademarks, service marks, trade names, domain names, logos, get-ups, patents, provisional patents, inventions (whether patentable or not), know-how (including confidential industrial and commercial information and techniques in any form), utility models, registered and unregistered design rights, copyright, semi-conductor topography rights, database rights, rights in respect of any new or existing compilation of any data or information not covered under any existing copyright, any structured analysis, reports, application and any resulting know-how, use or any other results originating or flowing from or as a consequence of data being made available in respect of any of the forementioned or part thereof, and all similar proprietary rights which may subsist in any part of the world including where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registration and any Confidential Information or processes relating to that subject matter.
1.1.32. “Instruction” means a direction to execute an action, given by either Party to the other.
1.1.33. “Issuer” means a Bank or other entity that issues Cards to Cardholders.
1.1.34. “Merchant” means an End-User who has concluded an End-User Licence Agreement with AddPay and who is authorised to accept Cards and/or Card Information as payment for goods or services.
1.1.35. “Nominated Account” means the primary South African bank account chosen by the End-User during the onboarding process which will be debited with charges owed and used by the Acquirer for settlement of transactions, the details of which are set out in the End-User’s Business Profile.
1.1.36. “PASA” means the Payment Association of South Africa.
1.1.37. “Party” means either AddPay or the End-User, and “Parties” means both AddPay and the End-User.
1.1.38. “Payer” means a generic term for a customer of the End-User who makes payments in either the card-present or the card-not-present environments.
1.1.39. “Payment Facilitator” means a Service Provider registered with an Acquirer to facilitate the acquiring of Transactions by the Acquirer from sub-merchants, and by doing so provides a service.
1.1.40. “Payment System Management Body” means a body recognised by the SARB in terms of section 3 (1) of the NPS Act with the object of organising, managing and regulating the participation of its members in the payment system.
1.1.41. “PCI DSS” means the auditable set of payment card industry data security standards specified by card associations from time to time, which you can access at websites such as www.pcisecuritystandards.org
1.1.42. “Personal Information” means personal information as defined in POPIA, and any applicable law in territory and/or in any other jurisdiction where the Services are provided and used.
1.1.43. “Personnel” means, as the context requires, any independent contractor, sub-contractor, agent or consultant of a Party.
1.1.44. “Point of Sale (POS)” means the physical location, or online address, where a financial Transaction is completed.
1.1.45. “POPIA” means the Protection of Personal Information Act 4 of 2013.
1.1.46. “POS Device” refers to any equipment and accessories installed at a physical POS to facilitate card-present transactions and includes the authorised Cashier App that is installed on such equipment to enable payment functionality.
1.1.48. “Regulator” means the SARB, PASA or any other regulatory body having jurisdiction.
1.1.49. “Return and Refund Policy” means the Return and Refund Policy available on AddPay’s Website.
1.1.50. “Rules” include Payment Scheme Rules as well as any rules of PCI SSC if applicable (including PCI DSS), the Payment System Management Body or the Issuer, as may be amended from time to time.
1.1.51. “Sanctions List” means the lists of specially designated nationals or entities (or equivalent) held by a Sanctioning Body or authority, and/or any other sanctions lists that the Acquirer or AddPay may from time to time deem necessary or required to screen, verify and process transactions.
1.1.52. “Sanctioned Country” means a country or territory which is subject to a general export, import, financial or investment embargo under Trade Control Laws.
1.1.53. “Sanctioned Transaction” means either the use by the ISO or the ISO Merchant of amounts in an account for the purpose of financing directly or indirectly the activities of any person which is on a Sanctions list or which is in a Sanctioned Country, and/or the contribution or making available of amounts paid from an account to any person, if the ISO or the ISO Merchant has actual knowledge that such person intends to use such funds for the purpose of financing the activities of any person which is in a Sanctioned Country and/or is on a Sanctions List, in each case to the extent that such financing or provision of funds would be prohibited by Sanctions.
1.1.54. “SARB” means the South African Reserve Bank.
1.1.55. “Services” means all or any of the commerce products, services, functionalities and platforms supplied to the End-User in terms of this Agreement.
1.1.56. “Settlement” refers to the complete discharge of funds transfer obligations between the End-User and the Acquirer, which is governed by the terms of the End-User’s merchant agreement with the Settler.
1.1.57. “Term Sheet” means the dynamic term sheet which sets out terms and fees relating to the Acquirer, POS Devices and Services as set out in this Agreement.
1.1.58. “Territory” means the Republic of South Africa.
1.1.59. “Trade Control Laws” means any –
184.108.40.206. economic or financial sanctions administered by the United States Office of Foreign Assets Control, the United States State Department, any other agency of the United States Government, the United States, the European Union, any country belonging to the European Union, the United Kingdom or any other national economic sanctions authority; and
220.127.116.11. the United States, European Union, United Kingdom, national laws relating to the use, export, re-export, or transfer controls including the United States Export Administration Regulations.
1.1.60. “Transaction” means a monetary transaction in terms of which a Payer tenders the payment amount in exchange for goods or service offered by the End-user. A Transaction can include the following: (i) A Transaction entered into by a Payer with a Merchant through the Merchant’s website; (ii) A Transaction entered into by a Payer with the End-User POS Device (which may be attended or unattended); (iii) A Transaction entered into by a Payer with the End-User which results in the issuing of an eReceipt.
1.1.61. “Transaction Data” means all data, including Personal Information, that is supplied by a Payer to the End-User and which is used to process the Transaction.
1.1.62. “VAT” means value-added tax, chargeable in terms of the Value-Added Tax Act 89 of 1991.
1.1.63. “Virus” means a device or thing, including any software, code, file or programme, which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or in part or otherwise); or adversely affect the End-User’s experience, including worms, Trojan horses, viruses and other similar things and devices.
1.2. Unless expressly indicated or the contrary appears from the context, an expression that denotes –
1.2.1. one gender, where relevant, includes all genders;
1.2.2. a natural person, where relevant, includes a juristic person and vice versa;
1.2.3. the singular, where relevant, includes the plural and vice versa.
1.3. This Agreement is subject to all Applicable Laws, Trade Control Laws, Association Rules (in as far as the same do not conflict with the Applicable Laws) and AddPay’s contractual relationships with Acquirers, Issuers, regulators (including the SARB and PASA) and administrative bodies having jurisdiction.
1.4. Any reference to statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force and having been made under it.
1.5. Any reference to clauses and annexures is to the clauses and annexures of this Agreement; references to paragraphs are to paragraphs of the relevant annexures of this Agreement.
1.6. Any reference to a Party shall, where the context requires, be a reference to that Party and its employees and/or Personnel.
1.7. If any provision in a definition is a substantive provision conferring rights or imposing and/or limiting obligations on or of a party, then, notwithstanding that it is only in this definitions clause, effect shall be given to it as if it were a substantive provision in the body of this Agreement.
1.8. Unless expressly indicated otherwise, when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first day and inclusively of the last day unless the last day is not a business day, in which case the last day shall be the next succeeding business day.
1.9. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will continue to operate after such expiration or termination or which must of necessity continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
1.10. Nothing contained in this Agreement shall be interpreted or construed as creating an employment, agency, representation or partnership agreement between the Parties, and the End-User shall have no right, power or authority to incur any liability to bind or incur any liability on behalf of AddPay.
1.11. The terms and provisions of this Agreement shall be read as a whole and, where any contradictions, whether actual or perceived, may appear, it shall be the End-User’s responsibility to address and seek clarity in respect of same directly with AddPay.
- Scope of this Agreement
2.1. The terms and conditions of this Agreement set out the respective rights and obligations of AddPay and the End-User in connection the provision and use of the Services. A copy of this Agreement will be sent to the End-User by email on the Effective Date. The End-User’s attention is specifically drawn to the provisions of clause 19 which entitle AddPay to amend or supplement the terms and conditions of this Agreement on notice from time to time.
2.2. By initiating and completing the onboarding process, the End-User makes and offer to do business with AddPay, which offer AddPay may, at its sole discretion, either accept or decline.
2.3. When the End-User makes use of an Acquirer’s payment services for the purposes of reconciliation and settlement of their account, the terms and conditions of this Agreement are subject to the terms of the merchant agreement between the Acquirer and the End-User.
2.4. An End-User with an annual card payment turnover exceeding the threshold set by PASA (currently R1 600 000.00 (one million six hundred thousand rand) at the commencement of this Agreement must make use of the Acquirer’s merchant agreement, and AddPay’s systems cannot do, nor be responsible for, the reconciliation and settlement of the account of such End-User.
2.5. If an End-User initially makes use of aggregation Services for the reconciliation and settlement of their account but subsequently exceeds the forementioned threshold, that End-User must conclude a merchant agreement with the Acquirer within thirty (30) days of exceeding the threshold. Failure to comply with the provisions of this clause 2 5 shall constitute a material breach of this Agreement.
- Commencement and termination
3.1. For the purposes of this Agreement, clicking on the acceptance button during the onboarding process shall constitute an electronic signature as defined in the Electronic Communications and Transactions Act 25 of 2002. The End-User is hereby made aware that by clicking the acceptance button during the onboarding process, it confirms that –
3.1.1. it has read and understand the terms and conditions of this Agreement; and
3.1.2. it agrees to be bound by the terms and conditions of this Agreement as from the Effective Date (including any amendments and additions to or deletions from these terms and conditions, from time to time after the Effective Date).
3.2. This Agreement shall commence on the Effective Date and shall continue indefinitely thereafter unless or until terminated in accordance with the provisions set out below.
3.3. Without prejudice to any other rights or remedies in law, this Agreement may be terminated –
3.3.1. by either Party, without liability to the other, if the other Party commits a breach of any of the terms and conditions of this Agreement and fails to remedy that breach within 7 (seven) days of that Party being notified in writing of the breach;
3.3.2. immediately by AddPay, in its discretion, if –
18.104.22.168. empowered and/or instructed to by an Acquirer or Association;
22.214.171.124. the End-User engages in any activity that may create the risk of harm or loss to the goodwill of the payment system (including the sale and/or provision of harmful or undesirable goods and/or services);
126.96.36.199. the End-User engages in any activity that poses a compliance, reputational or associated risk to AddPay or an Acquirer;
188.8.131.52. the End-User’s business practices and/or exemption item activity are such that they create a substantial risk of loss or harm to the payment system, including participating in fraudulent, illegal or otherwise prohibited activity;
184.108.40.206. the End-User has contravened any security measure or does not have the requisite authority in terms of any legal requirement;
220.127.116.11. any representation made or warranty given by the End-User under this Agreement, or to any other person in connection with the Services, is materially incorrect or false;
18.104.22.168. the End-User, being an individual, publishes a notice of voluntary surrender, dies, is placed under administration, commits and act of insolvency or has any proceedings brought against it in terms of the Insolvency Act 24 of 1936;
22.214.171.124. the End-User, being a juristic person, is wound-up, liquidated, dissolved, deregistered or passes a resolution providing for such an event, is unable to pay its debts as they fall due, enters into business rescue proceedings in terms of the Companies Act 71 of 2008, has judgment granted against it by a Court for the attachment of assets or for the payment of any amount which is not satisfied with 7 (seven) days after the date on which it is issued or attempts to compromise with any of its creditors or attempts to defer payment of debts owing to its creditors;
126.96.36.199. required to by the Applicable Laws;
3.3.3. in all other circumstances, by either Party giving not less than 30 (thirty) days’ written notice to the other Party.
3.4. Should the End-User give notice in terms of clause 3.3.1., such notice shall be accompanied by electronic communication to AddPay detailing those Transactions which AddPay is entitled to continue to process, pay and collect, arising from any Instructions received by AddPay prior to termination.
3.5. Should AddPay terminate this Agreement for any reason, it shall provide the End-User with assistance (only if necessary and to the extent required) to effect an orderly termination of the Services.
3.6. AddPay may terminate any Term Sheet in operation pursuant to this Agreement by giving the End-User not less than 30 (thirty) days’ written notice. Should AddPay terminate any Term Sheet in terms of this clause 3.7., the validity of this Agreement shall remain unaffected and the fees that the End-User must pay to AddPay shall exclude any fees attributable to the Term Sheet so terminated.
3.7. On termination of this Agreement for any reason:
3.7.1. Any Term Sheet operating pursuant to this Agreement shall simultaneously terminate.
3.7.2. Th End-User shall immediately pay to AddPay all amounts and fees outstanding as at the date of termination.
3.7.3. All licences and permissions granted under this Agreement shall terminate.
3.7.4. The End-User shall immediately cease all use of the Services and AddPay’s Refund and Returns Policy shall apply.
- General licence to use the Services
4.1. Subject to the terms and conditions of this Agreement, AddPay hereby grants to the End-User a non-exclusive, non-transferrable, non-sub-licensable and revocable licence to use the Services.
4.2. The End-User acknowledges that the Services are leased and not sold, and for this purpose, the End-User acknowledges that all rights, title and interest in and to the Intellectual Property shall continue to vest in AddPay and that the End-User shall not, under any circumstances, acquire any right, title or interest in or to the Intellectual Property.
4.3. AddPay may at any time replace, modify or discontinue the Services or any component thereof on reasonable notice to the End-User. Notwithstanding the provisions of this clause 4.3., AddPay shall have the right to immediately implement any change to the Services or any component thereof where the same is necessary to maintain the integrity and/or security of its systems or to comply with the Applicable laws and/or instructions issued by Associations, Acquirers or Regulators.
4.4. AddPay may sub-contract or delegate the performance of its obligations in terms of this Agreement to third parties and/or Affiliates. Notwithstanding the provisions of this clause 4.4., AddPay shall remain liable for all of its obligations in terms of this Agreement.
4.5. Notwithstanding the provisions of clause, or any other clause in this Agreement, the End-User shall have no entitlement whatsoever to access or use the Services unless and until the End-User –
4.5.1. has provided all information and documentation to satisfy all legal requirements in connection with the use of the Services;
4.5.2. has provided all information and documentation necessary to open a Business Profile as required for the use of the Services;
4.5.3. has appointed and electronically invited an Administrator who has the authority to give Instructions, install and use the Services; and
4.6. The End-User may choose to initiate any one or multiple Services during the onboarding process and at any time after the conclusion of this Agreement. The fees payable by the End-User to AddPay are calculated and adjusted in accordance with the End-User’s choice of Services, whether during the onboarding process or at any time after the conclusion of this Agreement.
4.7. By using the Services, the End-User accepts and agrees to be bound by the terms and conditions of this Agreement. It is recorded that the End-User has been advised to not sign this Agreement if it does not accept and agree to be bound by the terms and conditions hereof. The onus to speak shall be on the End-User if it does not understand any of the terms and conditions of this Agreement.
4.8. The End-User acknowledges and agrees that it shall use the Services in accordance with the Applicable Laws and the Association Rules (including all technical and procedural requirements). To this end, the End-User undertakes to familiarise itself with the Applicable Laws and the Association Rules regarding the use of the Services.
4.9. In respect of the Services, the End-User –
4.9.1. is only entitled to use the Services for its own business purposes and may not permit any other person, save for its authorised employees, to use the Services;
4.9.2. must ensure that only its employees who have been authorised to do so will perform the merchant supervisor function;
4.9.3. may not, cause or permit any other person to –
188.8.131.52. modify or reverse engineer the whole or any part of the Services;
184.108.40.206. create derivative works of the Services;
220.127.116.11. sub-licence the Services to third-parties or Affiliates;
18.104.22.168. use the Services contrary to the law or in any way not permitted in terms of this Agreement;
22.214.171.124. insert any Virus or other type of harmful code into AddPay’s infrastructure or platforms;
126.96.36.199. cede, delegate, assign, transfer, make over, charge, sub-contract or deal in any other manner deal all or any of its rights and or obligations in terms of this Agreement.
4.10. Any non-compliance by the End-User with the provisions of this clause 4 shall constitute a material breach of this Agreement.
- Authorisation and security measures
5.1. The End-User acknowledges that AddPay is not a Bank. To this end, the End-User hereby appoints AddPay as its administrative agent to allow the Services to connect the End-User to a Bank’s payment processing services.
5.2. The End-User shall be responsible for obtaining and maintaining Approvals required for the purposes of this Agreement.
5.4. The End-User shall comply with all security requirements and PCI DSS security procedures and protocols communicated to it by AddPay.
5.5. The End-User shall store access and login credentials and passwords to all Services in a secure manner to prevent unauthorised access by or disclosure to any person other than its authorised personnel.
5.6. AddPay shall not be responsible for verifying the authority of any person who accesses the or logs in to any platform provided as a Service, or of any person who initiates a Transaction, when that person uses a valid Password, Username and/or Security Certificate or other applicable security measures.
5.7. The Administrator, as appointed by the End-User, shall be responsible for the actions of any person acting or ostensibly acting on behalf of the End-User.
5.8. Any Instruction placed by the End-User is subject to AddPay’s approval, in its sole discretion. If AddPay does not approve an Instruction, it shall notify the End-User as soon as is reasonably practicable.
5.9. The End-User shall immediately notify AddPay of any –
5.9.1. unauthorised use of the Services which comes to its attention;
5.9.2. event which is likely to lead to unauthorised use of the Services;
5.9.3. actual or suspected security breach relating to Transaction Data or End-User Data;
5.9.4. act or omission which adversely affects (or may affect) the End-User’s ability to perform its obligations in terms of this Agreement or which may cause loss or harm to AddPay.
5.10. In the event of any unauthorised use of the Services, the End-User shall use its best efforts to terminate such unauthorised use and to retrieve any part of the Services in the possession or control of the person and/or entity engaging in such unauthorised use.
5.11. The End-User shall immediately notify AddPay of any legal proceedings initiated by or against the End-User in connection with any unauthorised use of the Services. AddPay hereby reserves the right to participate, at its sole discretion, in any such legal proceedings and, should AddPay elect to participate, the End-User shall provide to AddPay all information and assistance as AddPay may reasonably request.
5.12. Any non-compliance by the End-User with its obligations in terms of this clause 5 shall entitle AddPay to immediately suspend the End-User’s access to and use of the Services, report the End-User to the relevant authorities and/or terminate this Agreement without prejudice to any other rights or remedies in law.
- POS Devices
6.1. The End-User may elect to lease or purchase a POS Device. The End-User acknowledges and agrees that, irrespective of whether it elects to lease or purchase a POS Device, AddPay shall retain all rights, title and interest in and to the Intellectual Property and that the End-User shall not, in any way whatsoever, acquire any rights, proprietary or otherwise, in or to the Intellectual Property.
6.2. Should the End-User elect to lease a POS Device, the following provisions, read in conjunction with the Term Sheet, shall apply and constitute a written Agreement of Lease between the Parties shall apply:
6.2.1. When the End-User elects to lease a POS Device and signs this Agreement, an agreement of lease in respect of the POS Device shall be constituted between the Parties.
6.2.2. The agreement of lease shall subsist on a month-to-month basis and be terminable on 1 (one) calendar month’s notice in writing from either Party to the other Party.
6.2.3. The End-User shall pay to AddPay the monthly rental set out in the Term Sheet. The rental amount shall be debited monthly in advance from the End-User’s Nominated Account on the first banking day of each consecutive month during the currency of the agreement of lease.
6.2.4. The End-User may not defer or withhold payment of any rental amount owing, whether by set-off, counterclaim or for any other reason. Any non-compliance by the End-User with the provisions of this clause 6.2.4. shall entitle AddPay to immediately terminate the agreement of lease.
6.2.5. Risk in and to the POS Device shall pass to the End-User on delivery of the POS Device to the End-User or the End-User’s nominated party.
6.2.6. The End-User shall, at its own cost, comprehensively insure the POS Device. Insurance contemplated in this clause 6.2.6. shall, at minimum, cover theft, loss, damage and malfunction of a POS Device. Should the End-User not comprehensively insure the POS Device, it shall be liable to AddPay for any loss or damage to the POS Device and AddPay shall be entitled to apply set-off, net-settlement and/or debit the End-User’s Nominated Account with the full value of the repair or replacements costs.
6.2.7. The End-User shall immediately notify AddPay in writing of any loss or damage to the POS Device. Any non-compliance by the End-User with the provisions of this clause 6.2.7. shall immediately entitle AddPay to terminate this agreement of lease.
6.2.8. AddPay shall not be liable for –
188.8.131.52. damage caused by any malfunctioning POS Device; or
184.108.40.206. any loss or damage caused by events beyond its control and/or the End-User’s inability to use the POS Device.
6.2.9. Should the End-User not use the POS Device for a period of at least 3 (three) consecutive months, AddPay may immediately terminate the agreement of lease.
6.2.10. If the End-User leases the premises from which it conducts its business and at which the POS Device will be kept, it shall, at the Effective Date, immediately inform the landlord of the leased premises in writing that AddPay is the owner of the POS Device to negate any residual hypothec that the landlord may have in respect thereof. It is recorded for the avoidance of doubt that AddPay does not consent to the POS Device being kept on any leased premises until such time as the landlord thereof has been informed in writing of AddPay’s ownership of the POS Device.
6.2.11. At the termination the agreement of lease, or the termination of this Agreement for any reason, the End-User shall immediately return the POS Device to AddPay in accordance with the Return and Refund Policy. Should the End-User fail or refuse to immediately return the POS Device, the End-User hereby irrevocably authorises AddPay, by using the Services, to apply set-off, net-settlement and/or debit the End-User’s Nominated Account with the full value of the replacement cost.
6.3. Should the End-User elect to purchase a POS Device, the following provisions, read in conjunction with the Term Sheet, shall apply:
6.3.1. When the End-User elects to purchase a POS Device and signs this Agreement, an agreement of sale in respect of the POS Device shall be constituted between the Parties.
6.3.2. The End-User shall pay to AddPay the purchase price as set out in the Term Sheet.
6.3.3. Risk in and to the POS Device shall pass to the End-User on delivery of the POS Device to the End-User or the End-User’s nominated party.
6.3.4. All ownership rights in and to the Intellectual Property, Services and software installed on the POS Device, such as the Cashier App, the licenced connectivity SIMs and application functionality are reserved.
6.4. Regarding the hardware components of a POS Device, the End-User shall –
6.4.1. accept deliver of and production preparation (if any) on the POS Device;
6.4.2. satisfy itself that the POS Device is suitable, in good condition and working order within 7 (seven) business days after delivery;
6.4.3. care for and use the POS Device diligently and for purpose for which it was designed, compliant with any Instructions issued AddPay from time to time;
6.4.4. keep the POS Device charged, dry, clean and free from dust, exposure to extreme temperatures and fumes;
6.4.5. provide electrical charging points and other connections necessary for the operation of the POS Device;
6.4.6. not sell (or make any other dispossession), remove or move the POS Device, including from one of its sales outlets to another, without AddPay’s prior written consent; and
6.4.7. permit AddPay physical or online access to the POS Device on reasonable notice.
6.5. AddPay shall not provide the Services unless and until the End-User complies with the provisions of clause 6.4.
6.6. The End-user is responsible for the training of its authorised personnel in respect of the intended and lawful usage of the POS Device as set out in this Agreement.
- Maintenance and support services
7.1. The End-User acknowledges and agrees that AddPay will perform maintenance and upgrades of the Services from time to time and that this may result in interruptions, delays and/ or errors in the Services. AddPay shall use its best efforts to communicate any planned maintenance in advance but does not warrant that notification will always be given.
7.2. Subject to clause 7.1., AddPay shall notify the End-User of material upgrades, updates, enhancements and/or new releases to and of the Services, and shall deliver such upgrades, updates, enhancements and/or new releases remotely within a reasonable time after such items become available.
7.3. The End-User shall be entitled to contact AddPay for user support in respect of the Services (including any updates thereto), which support will first be provided telephonically or via the Helpdesk.
7.4. The End-User shall promptly report any errors, faults or defects in the Services by escalating such errors, faults or defects via the Helpdesk.
7.5. The End-User acknowledges that certain POS Device components (including SD memory cards, touchscreens and SIM card contracts) have a limited lifespan and will need to be replaced over time.
7.6. Any alteration or addition to ensure the proper functioning of the POS Device (including repair and maintenance) as required by law or the End-User before, during or after deliver of the POS Device may be carried out remotely. Any physical repairs or maintenance required may only be carried out by qualified AddPay-approved technicians as specified in the Refunds and Returns Policy.
7.7. The POS Device is covered by a manufacturer’s warranty for 12 (twelve) months, beginning at the Effective Date or the date on which the POS Device is activated, whichever occurs first. At the expiration of the manufacturer’s warranty, the End-User shall assume liability for all out-of-warranty costs associated replacement, repairs and maintenance to the POS Device.
7.8. Should a POS Device malfunction in circumstances where the End-User or the End-User’s employees maltreated, neglected or incorrectly operated the POS Device, the End-user shall pay the call-out fee as agreed by the Parties.
7.9. AddPay shall not be obliged to perform, and the End-User shall have no entitlement to demand, maintenance and support where –
7.9.1. the error, fault or defect arose from an unauthorised modification made to the POS Device by the End-User;
7.9.2. the End-User failed to use the Services in accordance with this Agreement;
7.9.3. the End-User failed to use the latest versions of the Services.
- Returns and refunds
8.1. If a Cardholder returns any goods to the End-User and the End-User refunds the Cardholder, the End-User shall complete a POS Device terminal refund transaction and may not make a cash refund to the holder of a credit Card.
8.2. The Refunds and Returns Policy available on AddPay’s website shall apply to the Services.
- Processing of Transactions
9.1. AddPay will not process a transaction to the End-User without positive confirmation of the Payer’s payment.
9.2. AddPay reserves the right to impose certain limits, in compliance with the Applicable Laws, Association Rules and Acquirer instructions regarding the flow of funds in the system, including funds sent, funds received and funds withdrawn. The details of such limits shall be displayed on the applicable Term Sheet.
9.3. The End-User may not process any credit-pull Transactions using the POS Card-Present Service if the End-User can only rely on the card number and details that the Cardholder provides to it without the Cardholder presenting the Card. In such cases, the End-User must make use of the credit-push Card-Not-Present Services to process the Transaction.
9.4. In each instance of the End-User presenting a Transaction for processing, the End-User warrants that –
9.4.1. the information regarding the transaction is true and correct;
9.4.2. it has used the POS Device electronic authorisation function for all authorisations;
9.4.3. it has not split or disguised Transactions or otherwise acted in such a way as to avoid obtaining authorisation;
9.4.4. the Transaction will be processed to a bank account denominated in South African Rands;
9.4.5. it has not attempted to limit its liability by requiring the Cardholder to waive his right to dispute the Transaction;
9.4.6. the End-User has delivered the goods and/or supplied to services forming the subject matter of the Transaction to the Cardholder at the End-User’s normal cash price with no additional charges;
9.4.7. the transaction between the End-User and the Payer is not in any way whatsoever unlawful; and
9.4.8. the Cardholder/Payer has authorised the transaction.
9.5. The End-User hereby indemnifies and holds AddPay and any third-party harmless against any claim of whatever nature by the Payer or any other third-party in respect of the goods deliver and/or the services supplied.
9.6. Notwithstanding authorisation given in respect of any transaction, AddPay does not warrant –
9.6.1. the validity or lawfulness of the Transaction;
9.6.2. the validity or genuineness of the Card presented by the Payer;
9.6.3. the identity or capacity of the person presenting the card;
9.6.4. that the intended Transactions will not be declined, whether immediately or at a later date; or
9.6.5. that the Transaction will not be subject to a Chargeback.
9.7. The End-User agrees to accept for payment each debit and credit Card of the approved brands that a Payer presents to it.
9.8. In the processing of Transactions, any sales voucher or POS-generated receipt will be invalid if –
9.8.1. the Transaction does not comply with the terms and conditions of this Agreement;
9.8.2. the Payer has returned the goods for which he paid the End-User in circumstances where he is entitled to do so in terms of the law or an agreement he has with the End-User; or
9.9. Notwithstanding the provisions of clause 9.8., AddPay may, at its sole discretion, elect to treat and such Transaction as valid.
- Charges and payment for Services
10.1. Use of the Services is subject to payment, as consideration, of the fees set out in the Term Sheet.
10.2. The End-User shall pay to AddPay the fees set out in the Term Sheet in relation to the provision, connection, operation and proper functioning of the Services. For the avoidance of doubt, “fees” shall include the full value of any invalid Transaction, Chargebacks and investigative and administrative costs, fines, penalties and any other loss incurred by AddPay or a third-party in connection therewith.
10.3. The End-User acknowledges and agrees that any amount paid by AddPay to it in error or to which it, whether in law or otherwise, has no entitlement shall immediately constitute a debt that it owes to AddPay and hereby authorises and irrevocably instructs AddPay to immediately debit such an amount from any of the End-User’s bank accounts (including the End User’s Nominated Account). If there are insufficient funds in the End-User’s bank accounts, the End-User shall immediately on demand reimburse AddPay for all amounts referred to in this clause 10 3.
10.4. All amounts payable by the End-User to AddPay are subject to exchange rate fluctuations (where applicable) and VAT shall be payable on all fees.
10.5. Where the End-User is required to make payment to AddPay by way of a debit order, and if the End-User cancels the debit order without AddPay’s prior written consent, this will constitute a material breach of this Agreement.
10.6. A monthly statement will made be available to the End-User on the Services platform and/or emailed to the End-User’s Administrator whose duty it shall be to ensure that the content thereof is correct. Unless a query is raised within 30 (thirty) days from the date on which the monthly statement was received by the End-User’s Administrator, the content thereof shall be deemed correct.
10.7. Transaction fees shall be net settled and subscription fees shall be payable monthly in arrears. The End-User hereby authorises and instructs AddPay to debit its Nominated Account for any amount it owes to AddPay in terms of this Agreement, with interest charged on any amount outstanding.
10.8. Interest charged on any amount outstanding shall be calculated using the Prime Overdraft Rate and shall accrue commencing on the date on which the amount became payable until the date on which the amount is paid.
10.9. If, in its sole discretion, AddPay determines that the End-User has misused the Services or otherwise used the Services in an excessive manner compared to the End-User’s anticipated standard use (including instances of Excessive Mobile Data Usage), AddPay reserves the right to recover additional charges from the End-User which shall be calculated as the actual cost of the Services in excessive of the End-User’s anticipated standard use.
10.10. If any matter, disagreement or dispute between the Parties arising from or in connection with this Agreement is referred to the Auditors and/or arbitration as envisaged in clause 22, or if either Party commences legal proceedings against the other Party, then the End-User shall not, pending the settlement of any such matter, disagreement or dispute, be entitled to withhold payment, including the cancellation and/or reversal of any authorised debit order, of any fees or amounts due and payable by it to AddPay in terms of this Agreement. Should the End-User withhold any payment in conflict with the provisions of this clause 10 10, this shall (i) constitute a material breach of this Agreement and (ii) entitle AddPay to immediately impose a Penalty in respect of each instance of breach.
11.1. The End-User shall implement fraud prevention measures and establish processes and controls aimed at combating, preventing and detecting fraud when processing Transactions and shall ensure that Payers are adequately protected against fraudulent activities.
11.2. If at any time during the End-User’s use of the Service, AddPay reasonably suspects or determines that, based on prima facie evidence, the End-User has used the Services to commit or perpetuate fraudulent or illegal activity, AddPay shall have the right to immediately, for an indefinite period or until the matter can be dealt with appropriately –
11.2.1. delay the processing of the Transaction;
11.2.2. delay the withdrawal of funds in the system;
11.2.3. freeze or suspend any account in the system (including the suspension of settlement to the End-User); and
11.2.4. terminate this Agreement without prior notice and without prejudice to any other rights or remedies in law.
11.3. In the event of a fraudulent Transaction (including a suspected fraudulent Transaction), AddPay shall be entitled to recover the full value of the fraudulent Transaction, administrative costs and any other fines or further charges in connection with the fraudulent Transaction from the End-User by debiting any of the End-User’s bank accounts (irrespective of the bank at which the account is held), applying set-off or net settlement.
11.4. The End-User shall be responsible for all Transactions and for any error and/or fraud committed by the End-User’s employees or any other person who uses the supervisor function.
11.5. Without prejudice to any other obligations in terms of this Agreement, the Parties shall cooperate in good faith as reasonably necessary to investigate possible or alleged instances of fraud, money laundering, terrorist financing, corruption or any other illegal activity, illegal use or abuse of the Services and shall take such steps as may be necessary to stop and prevent such abuse.
- Invalid Transactions and Chargebacks
12.1. A Transaction shall be invalid in, without limitation, the following instances:
12.1.1. An act or omission by the End-User, its employees or Personnel that results in a loss or Chargeback.
12.1.2. The Card used in the Transaction was presented by someone other than the lawful holder of that Card.
12.1.3. The End-User accepted a Card to process a Transaction where that Card was defaced, blank, illegible or where the embossed legends were not readable nor legible.
12.1.4. The End-User accepts a Card for a purpose other than to process a current Transaction.
12.1.5. The Transaction has been duplicated.
12.1.6. The Transaction has been split, disguised or otherwise presented in such manner so as to avoid obtaining authorisation.
12.1.7. A Transaction in respect of which the End-User does not have a Receipt or eReceipt, or the Receipt is illegible.
12.1.8. A Transaction in respect of which the Receipt or eReceipt is materially incomplete or different from the Receipt or eReceipt provided to the Payer
12.1.9. A Transaction in respect of which the End-User forged or laundered a Receipt or eReceipt.
12.1.10. A Transaction which does not comply with the obligations set out in the Association Rules or as issued by a Regulator.
12.1.11. A Transaction for which the goods or services were not delivered or supplied.
12.1.12. A Transaction in respect of which the delivery or supply of the goods or services is illegal or otherwise fraudulent.
12.1.13. A Transaction performed an employee of the End-User who was not authorised to do so.
12.1.14. The End-User fails to provide evidence of Payer authorisation in respect of a disputed Transaction to the satisfaction of the Acquirer.
12.1.15. A Transaction, or the manner in which it was carried out, conflicts with or violates the terms and conditions of this Agreement.
12.1.17. AddPay receives a claim regarding a Transaction, or any goods or services provided by the End-User. This claim could be from the Cardholder or Issuer and includes a claim in respect of faulty goods or services, non-receipt of goods or services, goods or services not as described or a cancelled Transaction.
12.1.18. A Transaction is not genuine, is illegal or in any other way invalid.
12.1.19. The End-User issues any credit to a Cardholder to avoid being deemed an Excessive Chargeback Merchant.
12.1.20. The End-User is adjudged to be an Excessive Chargeback Merchant and/or and Excessive Fraud merchant by any Acquirer or Card Scheme.
12.2. In the event of that an invalid Transaction, AddPay shall have the right to immediately –
12.2.1. charge each such Transaction back to the End-User and the End-User shall be liable for all losses incurred as a result of the invalidity of the Transaction; and
12.2.2. terminate this Agreement without prejudice to any other rights or remedies in law.
12.3. In the event of a Chargeback and/or reversal:
12.3.1. Where AddPay has not yet settled the End-User in respect of that Transaction, AddPay shall be entitled withhold the full value of the Transaction and delay payment into the End-User’s Nominated Account. For the avoidance of doubt, AddPay shall also be entitled to withhold the full value of all potential Chargebacks until such time as that potential Chargeback is finally assessed, the period under the Applicable Laws or Association Rules during which a Cardholder may dispute the Transaction has prescribed or expired or until AddPay, in its sole discretion, determines that the potential Chargeback will not occur.
12.3.2. Where AddPay has settled the End-User in respect of that Transaction, the End-User accepts and acknowledges that the Chargeback constitutes a debt that it owes to AddPay and hereby authorises and irrevocably instructs AddPay to immediately debit the Chargeback amount, administrative costs and any other fines or further charges in connection with the Chargeback from any of the End-User’s bank accounts (including the End-User’s Nominated Account). If there are insufficient funds in the End-User’s bank accounts, the End-user shall immediately on demand reimburse AddPay for all amounts set out in this clause 12.3.2.
12.4. Irrespective of whether AddPay has settled the End-User in respect of a Chargeback, AddPay may –
12.4.1. adjust the fees set out in the Term Sheet;
12.4.2. modify or suspend the End-User’s access to the Services or terminate this Agreement.
12.5. AddPay shall have no obligation to investigate the validity of any Chargeback and may accept the decision of the Association, Issuer or other financial institution as final and binding.
12.6. If AddPay, in its sole discretion, determines or is informed by an Acquirer or any Association that an End-User has become, or is becoming, an Excessive Chargeback Merchant or an Excessive Fraud Merchant, the End-User shall, within 5 (five) days of receipt of notice from AddPay –
12.6.1. provide detailed reasons for the number of individual Chargebacks or incidents of fraud, as applicable, with respect to card payments; and
12.6.2. outline/detail the measures the End-User is taking to reduce the number of individual Chargebacks or incidents of fraud (as applicable);
12.6.3. comply with AddPay’s Instructions to implement measures to reduce the number of individual Chargebacks or incidents of fraud (as applicable).
12.7. Any non-compliance by the End-User with the provisions of clause 12.6. shall constitute a material breach of this Agreement.
12.8. The End-User shall pay to, or refund (where applicable), AddPay on demand for all costs, fees and expenses (including legal costs incurred on the scale as between attorney-and-own-client) and other out-of-pocket expenses (including VAT and other similar taxes) which AddPay incurs in connection with –
12.8.1. the investigation of any invalid Transactions or Chargebacks; and
12.8.2. maintaining and enforcing AddPay’s rights in terms of this Agreement.
12.9. AddPay may set-off any amount it owes to the End-User against any amount that the End-User owes to AddPay in respect of any account that the End-User holds with AddPay, as may be permissible in law. The End-User shall immediately pay to AddPay any amount still owing after set-off.
12.10. AddPay may consolidate all accounts that the End-User holds with it, as may be permissible in law.
12.11. AddPay shall have no responsibility or obligation whatsoever to obtain payment from or otherwise deal with a Cardholder or Issuer.
12.12. This clause 12. shall continue to operate after the termination of this agreement for any reason whatsoever.
- Proprietary information, data and confidentiality
13.1. The End-User acknowledges and agrees that AddPay owns all rights in and to and all data generated by the Services. Except as expressly stated herein, AddPay does not grant the End-User any rights to or in patents, copyright, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other intellectual property rights, other rights or licences in respect of the Services.
13.2. The End-User shall only be entitled to use the Services as provided for in this Agreement, and shall not, or cause any other person to –
13.2.1. modify, vary, copy, reproduce, convert, tamper with, by-pass, reverse engineer or create derivative works of the Services; or
13.2.2. assign, sub-licence, copy, publish or distribute the Services to third parties.
13.3. The End-User shall hold all Confidential Information to which it has been granted access in terms of this Agreement or by virtue of its use of the Services, whether such Confidential Information was accessed prior to or after the Effective Date, in confidence.
13.4. The End-User warrants that it shall not reveal or disclose, or allow any other person (including its employees or Personnel) to reveal or disclose, Confidential Information, other than in compliance with the terms and conditions of this Agreement. To this end, the End-User shall take all such steps as are necessary to prevent Confidential Information falling into the hands of an unauthorised third party.
- Liabilities and indemnities
15.1. The End-User indemnifies and holds AddPay, its Affiliates, officers, employees and Personnel harmless immediately on demand against each loss, liability or cost arising as a result of the End-User’s –
15.1.1. breach of the any of the terms and conditions of this Agreement, Association Rules or Instructions given by AddPay or the Acquirer; or
15.1.2. violation of the rights of third parties.
15.2. In the event of any other non-compliance by the End-User with the terms and conditions of this Agreement (including failure or refusal to train authorised employees regarding the use of the Services), any unlicenced programming efforts or actions by the End-User or in the event of computer error, the End-User indemnified and holds AddPay harmless, and as a stipulation for their benefit indemnifies and holds all Acquirers and Issuers harmless against any direct monetary loss which the End-User may suffer or for which the End-User becomes liable, which shall be for the End-User’s account.
15.3. If two or more persons sign this Agreement as one End-User, their liability shall be in solidum.
15.4. If this Agreement is not signed by all authorised signatories of the End-User (for example, when the End-User is a partnership, trust or close corporation), this Agreement shall nevertheless be binding on the person who has signed this Agreement.
15.5. The Parties agree that, to the maximum extent permissible in law, neither AddPay nor its employees or Personnel shall be liable for any loss or harm suffered by the End-User in connection with –
15.5.1. the End-User’s use of the Services;
15.5.2. hacking, tampering or other unauthorised access to or use of the Services;
15.5.3. network breakdowns;
15.5.4. systems failures;
15.5.5. malfunctions of Services provided as a platform;
15.5.6. errors, mistakes or inaccuracies of the Services;
15.5.7. destruction or damage to facilities caused by power outages or similar occurrences;
15.5.8. any claims arising out of or in connection with the End-User’s commission, implementation, use or possession of any part of the Services or data generated thereby.
15.6. If the End-User qualifies as a consumer in terms of the Consumer Protection Act 68 of 2008, the limitation of liability provided for in clause 15.5. shall not apply to any loss directly or indirectly caused through the gross negligence of AddPay or third-party service providers with whom AddPay has contracted to provide the Services.
15.7. To the extent that AddPay is liable for any loss or harm suffered by the End-User, such liability shall be limited to direct and/or general damages. AddPay shall in no way whatsoever be liable to the End-User for any indirect and/or special damages, loss of profit, goodwill, business opportunity or other damages or losses resulting from the use or non-use of the Services by the End-User, nor for any loss or harm arsing out of fraud or any fraudulent misrepresentation.
15.8. The End-User acknowledges and agrees that its ability to access and use the Services is dependent upon services provided by third parties (including internet telecommunication services) and that AddPay shall have no liability to the End-User for –
15.8.1. the performance of such third-party services;
15.8.2. any loss or harm suffered by the End-user as a result of any third-party failure to provide third party services.
15.9. To the extent that AddPay is liable for any loss or harm suffered by the End-User, such liability shall be limited to direct and/or general damages. AddPay shall in no way whatsoever be liable to the End-User for any loss of profit, goodwill, business opportunity or other damages or losses resulting from the use or non-use of the Services by the End-User, nor for any loss or harm arising from fraud or any fraudulent misrepresentation.
15.10. The End-User acknowledges that the Applicable Laws, Association Rules or an Acquirer may prevent or delay the processing of any specific request, Transaction or Instructions. AddPay shall in no way whatsoever be liable to the End-Use in respect of any non-receipt of funds by any recipient where the Transaction in connection therewith is delayed or blocked. Any loss arising from any delay or cancellation shall be for the End-User’s account.
15.11. AddPay shall have no obligation to provide any Services relating to Transactions via POS Devices in circumstances where the POS Device has been lost, stolen, or damaged beyond commercial repair, until such time as the POS Device is replaced.
16.2. The End-User acknowledges and agrees that all warranties given in terms of this Agreement are given on the basis that they are –
16.2.1. unconditional and irrevocable;
16.2.2. effective as at the effective Date or the date on which the POS Device is activated, whichever occurs first; and
16.2.3. are material and have induced AddPay to enter into this Agreement.
16.3. AddPay warrants that the Services shall be compliant in all material aspects with the relevant descriptions and suitable for the purposes set out in this Agreement and applicable Term Sheet. To this end, AddPay warrants that the Services shall be –
16.3.1. reasonably free from errors, Viruses, “Trojan horses”, malicious code and defects in materials, workmanship and design;
16.3.2. of proper quality, consistent with generally accepted industry practices, procedures and standards in AddPay’s particular area of expertise;
16.3.3. provided in a skilful, timely and professional manner by qualified personnel; and
16.3.4. non-infringing of the Intellectual Property of third parties.
16.4. AddPay warrants that it is the authorised provider of the Services and shall comply with PCI DSS.
16.5. AddPay acknowledges and agrees that it is responsible for –
16.5.1. the security of Cardholder Data that it possesses or otherwise stores, processes or transmits on behalf of the End-User, or to the extent that it could impact the security of the Cardholder data environment; and
16.5.2. managing and maintaining all PCI DSS requirements that AddPay is responsible for in terms of this Agreement.
16.6. AddPay represents and warrants to the End-User that it has been certified as a Level 1 service provider per PCI DSS (or any successor certification established by PCI DSS) and covenants that it will maintain such certification.
16.7. To the extent permissible in law, AddPay does not warrant that –
16.7.1. the Services will meet the End-User’s expectations;
16.7.2. the Services will be available at any particular time or location, uninterrupted or secure;
16.7.3. the Services are absolutely free from Viruses or other harmful components.
16.8. The End-User warrants that –
16.8.1. it is not a payment service provider;
16.8.2. it has obtained and familiarised itself with the Association Rules published by the Associations from time to time;
16.8.3. it is otherwise eligible to register for and use the Services, it has legal capacity and has taken all necessary corporate actions to enter into and perform in terms of this Agreement;
16.8.4. all information that it has given and will give to AddPay is correct;
16.8.5. it will implement and at all times maintain and comply with appropriate security safeguards in compliance with Applicable Laws, MasterCard, Visa and the PCI DSS requirements;
16.8.6. it has obtained all licences and certificates applicable to the use and functionality of the Services as required by this Agreement, the applicable Term Sheets, and the law (including in terms of the NPS Act, EMV standards, PCI DSS or any other regulatory or legal requirements imposed by any competent authority, inter alia those required for the purposes of Transactions or third-party services and/or installations);
16.8.7. it shall not engage in any practice or activity prohibited by the Applicable Laws, the Association Rules or an Acquirer;
16.8.8. it has informed AddPay of any previous merchant agreements it concluded with other financial institutions including any restrictive conditions contained in those agreements and the reasons why those agreements were terminated;
16.8.9. it consents to and authorises AddPay to investigate the End-Users’ previous merchant agreements and creditworthiness to evaluate, assess, and approve its application;
16.8.10. it will not withhold compliance with its obligations, including its payment obligations, for any reason whatsoever, including but not limited to any period during which the Service is not in proper working order;
16.8.11. it is solely responsible for Instructions, actions and communications undertaken or transmitted under the End-User’s account, and furthermore agrees that it shall not use the Services in such a way that is in violation of any applicable law or regulation or this Agreement;
16.8.12. it will not in any way whatsoever circumvent AddPay and shall abide by principles regarding non-circumvention, including but not limited to any use of Confidential Information or Intellectual Property of which it may become aware during the term of this Agreement;
16.8.13. it will retain supporting information for all POS terminal generated transactions for a period of at least 180 (one hundred and eighty) calendar days;
16.8.14. it is aware that the POS Devices are fitted with tamper detection that will shut down the POS Device if the POS Device is tampered with or the SIM cards are interfered with; and
16.9. The End-User warrants that it complies with and will continue to comply with Sanctions and will not enter into any Sanctioned Transactions, nor with any person on a Sanctions List.
16.10. The End-User warrants that upon presenting a Transaction in terms of this Agreement –
16.10.1. it has supplied the goods and/or services to the value stated on the Transaction receipt to the Payer;
16.10.2. it shall provide satisfactory evidence to AddPay and/or the Acquirer that the Card payment was authorised by the Cardholder and/or Payer, and
16.10.3. it indemnifies AddPay and/or the Acquirer against any claim or liability that may arise from a Transaction dispute.
- Waiver of rights
17.1. No relaxation or indulgence granted or given by AddPay to the End-User shall be deemed to be a waiver of any of AddPay’s rights in terms of this Agreement and any such relaxation or indulgence shall not be deemed to be a novation of any of the terms and conditions of this Agreement or applicable Term Sheet.
- Impossibility to perform
18.1. If a Party is temporarily prevented or restricted, directly or indirectly, from carrying out all or any of its obligations in terms of this Agreement or applicable Term Sheet (the “Affected Party”) by any cause beyond the reasonable control of that Party, the Affected Party will be relieved of its obligations to the extent and for the duration of the causal event.
18.2. Written notice of any inability to perform must be given by the Affected Party to the other Party within forty-eight (48) hours of the start of the causal event, provided that the obligation to give notice will be suspended to the extent necessitated by such event.
18.3. An Affected Party must apply their best efforts to end the circumstances giving rise to their inability to perform, as expediently as possible.
18.4. Immediately upon termination of the circumstances, the Affected Party must give written notice to the other Party. Failure to do so constitutes a breach of this Agreement.
18.5. If AddPay is permanently prevented from performing its obligations under this Agreement due to any cause beyond its reasonable control, AddPay will give written notice to the End-User within forty-eight (48) hours of the impossibility arising, provided that the obligation to give notice will be suspended to the extent necessitated by the circumstances.
- Amendments, additions and deletions
19.1. The End-User acknowledges and agrees that the provision of Services in terms of this Agreement is subject to all Applicable Laws, Association Rules and AddPay’s contractual and/or statutory relationships with Acquirers, Regulators and other administrative bodies having jurisdiction, and AddPay’s legitimate business interests. Accordingly, the End-User agrees that AddPay shall have the right to, without notice and at its sole discretion, amend, add to or delete from the terms and conditions of this Agreement.
19.2. It shall be the responsibility of the End-User to check and confirm whether there have been any changes or amendments to this Agreement from time to time, and the date on which such change or amendment took effect, when logging into the Cashier App.
19.3. If AddPay amends, add to or deletes from the terms and conditions of this Agreement and/or the fees set out in the Term Sheet as provided for in clause 19.1., the End-User shall be entitled to terminate this Agreement on 30 (thirty) days’ written notice to AddPay.
19.4. The End-User shall be deemed to have accepted any amendment, addition to or deletion as contemplated above unless it gives notice as provided for in clause 19.3.
20.1. Where any Party commits a breach of any of the terms of this Agreement, the other Party must send written notice requiring the Party in breach to rectify such breach within a period of seven (7) days after the receipt of such notice requiring it to do so.
20.2. If a Party is guilty of a breach of any of the terms of this Agreement and fails to rectify such breach, the other Party may terminate this Agreement as provided for in clause 3 without prejudice to any other rights or remedies in law.
20.3. Should the End-User default in any of its obligations in terms of this this Agreement, AddPay shall be entitled to charge the End-User reasonable banking and/or administration fees in respect of all amounts payable in terms of this Agreement (including the administration fee for each payment due to AddPay returned unpaid by the End-User’s bank where the debit order for the fees is rejected).
20.4. The End-User agrees and acknowledges that the payment of these fees may be dealt with on net settlement basis.
21.1. If the End-User does not make use of the Service for a period of 3 (three) consecutive months, the End-User’s Business Profile shall be regarded as dormant.
21.2. In the event of dormancy, AddPay reserves the right to immediately and without prejudice to any other rights or remedies in law –
21.2.1. suspend the End-User’s access to and use of the Services;
21.2.2. terminate this Agreement without prior notice to the End-User;
21.2.3. debit the End-User’s nominated account and apply set-off for all fees due by the End-User to AddPay.
- Dispute resolution
22.1. Any matter, disagreement or dispute between the Parties arising from or in connection with this Agreement, and which is not resolved between them, shall at the instance of either Party be referred to the Auditors for investigation and a decision.
22.2. All costs associated with the referral of a matter, disagreement or dispute between the Parties to the Auditors shall be for the account of the End-User, irrespective of which Party insists on such a referral. If the Auditors make a determination favouring the End-User, AddPay shall reimburse the End-User for the costs associated with the referral.
22.3. The decision of the Auditors shall be communicated to the Parties in writing within 15 (fifteen) calendar days after both Parties have had the opportunity, in accordance with an informal procedure to be determined the Auditors, to state their case.
22.4. The Parties shall have 5 (five) calendar days from the date on which the decision of the Auditors is communicated to them to deliver a written objection thereto, failing which the decision of the Auditors shall be final.
22.5. If a written objection to the decision of the Auditors is validly and timeously communicated by either Party to the other Party, the matter shall be referred to arbitration in accordance with the AFSA rules, which arbitration shall be administered by AFSA. For the purpose of this clause 22.5., a written objection shall constitute a written demand for arbitration.
22.6. Should AFSA, as an institution, not be operating at the time or not accepting requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the AFSA rules for commercial arbitration (as last used) before an arbitrator appointed by agreement between the Parties. If there is no agreement between the Parties regarding the appointment of the arbitrator, either Party may call upon the Chairperson of the Cape Town Chamber of Commerce to nominate the arbitrator, provided that –
22.6.1. if the nature of the dispute relates to matters of law, the arbitrator shall be a practising attorney or advocate within the Republic of South Africa and shall have at least 10 (ten) years’ experience; or
22.6.2. if the nature of the dispute relates to matters of accounting, the arbitrator shall be a practising Public Accountant within the Republic of South Africa and shall have at least 10 (ten) years’ experience.
22.7. The arbitration shall be held in Cape Town.
22.8. The arbitrator shall be entitled to –
22.8.1. determine and settle any formalities and procedures, which shall be in an informal and summary manner, that is, it shall not be necessary to carry out and observe either the usual formalities and procedures or the strict rules of evidence.
22.8.2. investigate, or cause to be investigated any matter, fact or thing that the arbitrator considers necessary or desirable to in connection with any matter referred to him for decision;
22.8.3. decide the matter referred to him for decision in accordance with what he considers just and equitable in the circumstances, having regard to the purpose of this Agreement;
22.8.4. make such an award (including an award of specific performance, interdict, damages, penalty and/or cost of arbitration or otherwise as he may deem fit and appropriate.
22.9. The arbitration proceedings shall be held expeditiously after it has been demanded by either Party and must be completed with 21 (twenty-one) days after having been so demanded.
22.10. The decision of the arbitrator shall, subject to clause 22.11., be final and binding on the Parties.
22.11. Either Party shall be entitled to appeal the decision of the arbitrator in terms of the AFSA rules for commercial arbitration.
22.12. Nothing contained in this clause 22. shall prevent either Party from applying to a Court for urgent or interim relief or for judgment in relation to a liquidated claim.
22.13. The Parties agree that this clause 22. shall be binding on them notwithstanding the termination or cancellation of this Agreement.
22.14. The Parties further agree that the written demand for arbitration in terms of this clause 22. that the matter be referred to arbitration is deemed as legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act 69 of 1969.
- Consent to the processing of Personal Information in terms of POPIA
24.1. It is recorded that this document reflects the entire agreement between the Parties. Each Party acknowledges that, in entering into this Agreement, it does not do so in reliance on any express or implied representation, warranty or other provision except as expressly provided for herein, and that the conditions, warranties or other terms implied by statute or the common law are expressly excluded from this Agreement. Neither Party shall have any right or remedy arising from any undertaking, warranty or representation not included in this Agreement.
24.2. The Parties acknowledge and agree that it has been free to secure independent legal advice as to the nature and effect of this Agreement and that it has either taken such legal advice or dispensed with the necessity of doing so. Moreover, the Parties acknowledge that each provision of this Agreement and any restrictions contained herein are reasonable in all circumstances.
24.3. The relationship between the Parties, inter se, shall be governed exclusively in terms of this Agreement.
24.4. Save as expressly provided for in this Agreement, no purported cancellation hereof shall be of any force and effect unless reduced to writing and signed by the Parties.
24.5. This Agreement shall be governed and construed in accordance with the Laws of the Republic of South Africa, as read with the relevant Card Scheme Rules.
24.6. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity, legality or enforceability of the remaining provisions of this Agreement. If any invalid, illegal or unenforceable provision of this Agreement would be valid, legal or enforceable if some part thereof were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.