Terms and Conditions
entered into and between
AddPay (Pty) Ltd Reg 2019/463070/07
AddPay Trust Reg. IT1901/2016(C)
of 6 Meson Street, Techno Park
And the Client
Hereinafter “The User”
TERMS AND CONDITIONS OF THIS AGREEMENT
Please read these terms and conditions carefully. By using AddPay’s products and services, you ‘The User’ are indicating acceptance to being bound by these Terms and Conditions herein.
1. DEFINITIONS AND INTERPRETATION
1.1 Unless out of context:
“Agreement” means this agreement, which may be changed from time to time, and includes all Annexures that form part of it;
“AddPay” The terms “we” and “AddPay” are used interchangeably and refer to AddPay itself and all individuals and/or entities acting directly on behalf of AddPay;
“Administrator” means, a person nominated and invited by the Client to perform functions on behalf of the The User;
“Business Day” means any day other than a Saturday, Sunday or statutory public holiday in the Republic of South Africa;
“Client” means the Client and/or Merchant whose profile has been utilised for the enrolment and whose details are recorded on the Term Sheet, and any New Client and/or Merchant;
“Customer” means the Client’s customer;
“Customers Bank” means a bank or other financial institution with which the Customer conducts bank accounts used to process Transactions;
“EFT” means an Electronic Funds Transfer;
“EMV” is the abbreviation for Europay, MasterCard and Visa, which enables issuers, retailers and consumers to use chip cards and POS devices with added security;
“Fees” means charges that AddPay is entitled to debit from the Client’s nominated bank account, including but not limited to any service, transaction fees and administration charges;
“Hacking” means the illegal accessing of the User’s or AddPay’s computer systems, whether through the gross negligence of AddPay or not, to destroy, disrupt or carry out illegal activities;
“Instruction” means an electronic instruction received by AddPay for the purposes of these Terms and Conditions;
“New Client” means a Client who becomes a party to these Terms and Conditions after signature with the consent of the Client and AddPay;
“Merchant Commission” means the fees payable by the Merchant and/or Client to AddPay;
“Nominated Account” means the nominated bank account or account nominated by the Client and/or Merchant for purposes of clause 4;
“Online Profile” means the electronic platform made available to Clients for the purposes of accessing the services.
“Party” means AddPay and/or the Client or User, and not the Customer;
“Password” means the alphanumeric characters used by each Client to access the Services via the Online Profile;
“PCI DSS” means Payment Card Industry Data Storage Standards as stipulated by the card associations from time to time;
“Policy” means a set of rules and actions to which the Parties shall abide in providing Services;
“Products” means any hardware device and/or software supplied by AddPay;
“Protocol” means the set of rules to which a Client shall comply to access the Services;
“Services” means the services available in terms of these Terms and Conditions;
“Service Operator” means a party that operates a system used to provide a service in respect of payment instructions for multiple parties;
“Terms and Conditions” means this Electronic Terms and Conditions document together with all schedules, protocols and Addenda;
“Term Sheet” means the price list detailing the fees charged for Services;
“Transaction” means any transaction performed as a result of an Instruction;
“The User” the terms “The User” and “You” are used interchangeably and refer to all individuals and/or entities accessing AddPay for any reason;
1.2 Unless out of context, an expression which denotes:
1.2.1 any gender includes the other genders.
1.2.2 a natural person includes an artificial person and vice versa.
1.2.3 any word and expression defined in any clause shall, unless the application of the word or expression is specifically limited to the clause in question, bear the meaning ascribed to the word or expression throughout this Agreement.
1.2.4 the singular includes the plural and vice versa.
2.1 These Terms and Conditions shall commence upon activation of the Client’s account by AddPay, subject to;
2.1.1 The Client shall access the services on providing AddPay with all information and documents to satisfy AddPay’s legal requirements regarding any Administrator and any other relevant persons authorised to initiate a Transaction.
2.1.2 The Client shall appoint and electronically invite an Administrator to use the Services.
2.1.3 The Client shall provide all necessary documentation for Merchant Account and/or other third-party service providers as required for the Services.
3. AUTHORITIES AND SECURITY MEASURES
3.1 The Client is responsible for obtaining and maintaining all necessary approval and authorities imposed by any competent authority and required for the purpose of any Transaction and/or third-party service and/or installation, and the Client hereby indemnifies AddPay against any claim or liability suffered by reason of such approval and authorities not having been obtained.
3.2 The Client agrees to comply with all security procedures and Protocols that are put in place by AddPay and communicated to the Client.
3.3 Any loss suffered by the Client as a result of or arising out of failure to comply with clause 3.2 is for the Client’s account.
3.4 The Client acknowledges that AddPay is not a bank and that the Services connect the Client to a registered bank’s payment processing services, and that AddPay is not acting as a trustee, fiduciary or escrow with respect to the Client’s funds, and therefore the Client hereby appoints AddPay as an administrative agent in this regard.
3.5 An instruction placed by the Client is subject to AddPay’s approval in their sole discretion. If AddPay does not approve an instruction, it will inform the Client accordingly.
4. CHARGES AND PAYMENTS
4.1 AddPay will display the fees for providing Services to the Client in advance. Fees may be varied in terms of clause 10.
4.2 Transaction fees are payable in arrears. AddPay will debit the fees upon transferring the Client’s funds into their Nominated Account, and/or may collect the fees directly from the Clients Nominated account.
4.3 If there are any changes to any law that increases AddPay’s costs, then AddPay is entitled to charge the Client any additional amounts to compensate AddPay for the extra cost.
4.4. In the event that AddPay requires payment for the services provided to the Client to be made by debit order, the Client will commit a breach of this Agreement if the Client:
4.1.1 cancels any such debit orders without the written consent of AddPay;
4.1.2 changes banking details upon which the debit order relies without giving AddPay prior notification of such change and providing AddPay with the new banking details.
4.5 A monthly statement shall be emailed to the address registered by the Client. It shall be the duty of the Client to check the statement in order to ensure that the contents thereof are correct. Unless a query is raised in respect of the contents of a statement within thirty days from date thereof the contents shall be deemed as correct.
4.6 The Client hereby authorises AddPay to debit any bank account held by the Client for the costs owed by the Client in terms of this Agreement.
4.7 AddPay shall be entitled to charge reasonable banking and/or administration fees in the event of the Client defaulting in its payments or any other of its obligations as set out in this Agreement.
4.8 Any migration from one package to another shall for the duration of this Agreement be subject to AddPay’s approval and AddPay shall be entitled to levy fees for such migrations.
5. 5 PROCESSING OF TRANSACTIONS
5.1 The Client is responsible for all actions of any person acting or purporting to act on behalf of the Client.
5.2 AddPay need not enquire as to the authority of any person who accesses the facility or initiates a Transaction, provided that use is made of a valid Password, Username and/or Security Certificate or other security measures applicable.
5.3 AddPay shall apply its standard security procedures to verify any Password and Username and security measures put in place by AddPay from time to time.
5.4 AddPay will not process a Transaction to the User without positive confirmation of the Customer’s payment.
5.5 A statement of Transactions provided by an employee of AddPay shall be sufficient proof of such Transactions.
5.6 AddPay reserves the right to impose certain limits with regards to the flow of funds in the system including, but not limited to: funds sent, funds received, and funds withdrawn. Details of what these limits are will be available on the Site and shall always be in compliance with Regulatory Limits.
5.7 AddPay reserves the right to delay the withdrawal of funds in the system and reserves the right to freeze or suspend any account in the system for an indefinite period if there is a reasonable suspicion of illegal and/or fraudulent activity taking place.
6. INSTALLATION AND USE OF EQUIPMENT:
6.1 The Merchant shall take delivery of all Equipment that forms part of this agreement at Merchant’s nominated premises.
6.2 Should the Merchant or any legislation or by-law determine, either before, during or after the delivery of the Equipment, that any alteration or additions are required to the Equipment to ensure the proper installation and functioning of the Equipment, then such alteration shall be carried out only by technicians approved by AP.
6.3 The Merchant must:
6.3.1 Accept delivery and production preparation, if any, of the Equipment by AP or its agent at Merchant’s premises;
6.3.2 Satisfy itself as to its working order and condition and suitability within ten working days of taking receipt of the equipment;
6.3.3 Care for the Equipment in a proper, diligent and careful manner and subject to any instructions issued by AP; and in the manner and for the purpose for which it was designed;
6.3.4 Keep the Equipment charged, dry, clean and free from dust, extreme temperature and harmful fumes; and maintain the Equipment in good working order and a good state of repair, fair wear and tear excluded;
6.3.5 Not sell, dispose of, or part with possession, remove or move the Equipment without the prior written consent of AP.
6.4 The Merchant shall ensure that only qualified technicians approved by AP shall repair and render maintenance services in respect of the Equipment. The costs of any out-of-warrantee repair and maintenance will be borne by Merchant.
6.5 The Merchant shall permit AP and/or its authorised agents to have access (including remote internet access) to inspect the Equipment at all reasonable times.
6.6 The Merchant shall obtain all licenses and certificates applicable to the use and enjoyment of the Equipment and Merchant shall not use the Equipment in contravention of this Agreement or of any regulations stipulated by any relevant authority.
6.7 AP shall not under any circumstances be liable to the Merchant in respect of any damage to any person or property of whatever nature and however arising, whether direct or consequential or special, or general, resulting from the Merchant’s possession, use of data from the Equipment; or any installation by AP on the Equipment.
7.1 It is recorded that this Agreement specifically applies to the Services as specified in the Service Schedule and does not include any payment in respect of extended maintenance plans.
7.2 It is also recorded that certain Equipment components such as SD memory cards, touchscreens and SIM card contracts have a limited lifespan, and that they may need to be replaced in the course of time.
7.3 Merchant shall not be entitled to withhold compliance with its obligations under this Agreement, nor its payment obligations for any reason whatsoever, including but not limited to any period during which the Equipment is not in proper working order and/or not working.
8. OWNERSHIP OF DATA
8.1 It is recorded that the Data produced by the use of the AP Systems and Equipment belongs to the Merchant, and that Data relating to Incident Reports shall be stored in AP’s servers for a maximum period of 5 years.
9. INSURANCE OF EQUIPMENT:
9.1 All risk in and to the Equipment shall pass to the Merchant on the date on which the Merchant takes delivery thereof and shall remain with the Merchant.
9.2 It is recorded that it is the Merchant’s responsibility to comprehensively insure and keep the Equipment so insured against all insurable risks at its own cost.
9.3 In the event of any of the Equipment being lost, stolen, or in the opinion of AP, damaged beyond economical repair, then AP shall be absolved from providing Services relating to such equipment, until such Equipment is replaced by an AP accredited Installer.
9.4 In the event that the Agreement is terminated due to loss of Equipment, the Merchant shall immediately pay all amounts outstanding in respect of the Initial Service Period plus the notice period, plus VAT.
10. EQUIPMENT RENTAL:
10.1 In the event that the Merchant agrees to rent equipment from AddPay or any of its authorised agents, the Merchant may not defer or withhold payment of any rental or fees or any amount due to AddPay, whether by basis if setoff, or counterclaim or for any other reason.
10.2 The basic monthly rental will be debited to the nominated bank account monthly, on the last banking day of the month.
11. WAIVER OF RIGHTS:
11.1 Any latitude or extension of time that may be allowed by AP to the Merchant in respect of any payment or punctual compliance and performance in terms of the provisions of this Agreement, or any other indulgence that may be extended by AP to the Merchant, shall not prejudice any of AP’s rights under this Agreement or operate as a waiver or novation of such right. The Merchant hereby indemnifies and holds AP harmless against any and all claims whatsoever and however arising in connection with the installation and commissioning of the Equipment. No latitude or indulgence by AP, shall be of any force or effect unless reduced to writing and signed by both AP and the Merchant.
12. PROPRIETARY RIGHTS AND CONFIDENTIALITY
12.1 All copyright and ownership of systems provided by AddPay remains vested in AddPay and may not be copied, reproduced, varied, modified or converted in any way. All rights not expressly granted, are reserved. To obtain permission for the commercial use of any content on this site contact AddPay at firstname.lastname@example.org.
12.2 The Parties will not disclose information of a confidential nature relating to Services to any other person, except that a party may disclose information which would otherwise be confidential if: required to do so by law; disclosed to the professional advisors of a party; that has come into the public domain through no fault of that party; or if the other party has given prior written approval for the disclosure.
13. WARRANTIES AND INDEMNITIES
13.1 The Client warrants that:
13.1.1 all information that it has given and will give to AddPay is correct;
13.1.2 its Administrators have the authority to give Instructions;
13.1.3 it has read and understood, and will abide by these Terms and Conditions;
13.1.4 it agrees to be solely responsible for actions and communications undertaken or transmitted under the Client’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.
14. LIABILITY AND INDEMNITY
14.1 AddPay has no liability for any loss, expense, damage or cost incurred by, or any claim made against, any Client arising directly or indirectly out of these Terms and Conditions, the Services or the use or operation of the Services unless arising directly from a wilful or grossly negligent act of AddPay or its employees or as a result of any fraudulent act by AddPay or its employees. AddPay’s liability is limited to the amount of the direct money loss that the Client proves that it has sustained.
14.2 The Client indemnifies AddPay and as a stipulation for their benefit likewise indemnifies the third-party bank and undertakes to hold each of them harmless against any direct money loss they may suffer or become liable for arising from non-compliance by the Client with these Terms and Conditions, computer error, unauthorized use of the Services by the Client and/or any other person authorized or purporting to act on behalf of the Client, resulting in incorrect, unauthorized wrongful Transactions;
14.3 The Client acknowledges that (notwithstanding any contradicting statements in these Terms and Conditions) independent laws, rules, and/or regulations may prevent or delay the processing of any specific request or Instruction; and the Client will hold AddPay harmless for non-receipt of funds by any recipient, where the transaction is delayed or blocked, and any loss/profit arising from each delay or cancellation will be for the Client’s account in terms of these Terms and Conditions.
14.4 The Parties are not liable to each other for any indirect or consequential loss or damage, including loss of profit, of revenue, of anticipated savings, of business transactions, of goodwill or of other contracts whether arising from negligence or breach of contract.
15. IMPOSSIBILITY TO PERFORM
15.1 If a Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under these Terms and Conditions from any cause beyond the reasonable control of that Party, the Party affected will be relieved of its obligations during the period that such event and its consequences continue but only to the extent prevented. Written notice of any such inability to perform must be given by the affected Party within 48 (forty-eight) hours of the occurrence (provided that the obligation to give notice will be suspended to the extent necessitated by such event).
15.2 A Party invoking clause 9.1 must use reasonable endeavours to bring to an end the circumstances giving rise to the inability to perform, and on termination of the circumstances must immediately give written notice to the other Party.
16.1 AddPay may, in its reasonable discretion, after having given the Client 30 days written notice, amend its Services, fees, hardware or software requirements. Such amendments shall be notified to the Client electronically.
16.2 The Client will be deemed to have accepted any such variation, unless the Client gives notice of termination of these Terms and Conditions in terms of clause 18.1 within such 30 (thirty) day period.
17.1 Without prejudice to any other right, any party may terminate these Terms and Conditions if any other party commits a breach of any of the terms and conditions and fails to rectify such breach within a period of 14(fourteen) calendar days after receipt of written notice requiring it to do so.
18. TERMINATION OF THE TERMS AND CONDITIONS
18.1 The Client may terminate these Terms and Conditions at any time by giving AddPay 30 (thirty) days’ written notice of termination.
18.2 AddPay may terminate any Service by providing any Client with 60 (sixty) days’ written notice of termination of such Service. These Terms and Conditions, excluding the Service in question, will continue in full force save that the charges will exclude any charges attributable to the Service which has been terminated.
18.3 Notice of termination by any Client must be accompanied by written notification to AddPay detailing those transactions that AddPay will be entitled to continue to process and pay and collect arising from Instructions that were received by AddPay prior to termination.
19. DISPUTE RESOLUTION
19.1 Any matter, disagreement or dispute arising between the Parties in connection with these Terms and Conditions that are not resolved between them shall at the instance of either AddPay or the Client be referred to auditors of AddPay for investigation and a decision. The decision must be conveyed to the Parties in writing. If written objection to the decision is not received by the other Party/ies to the dispute within 30 (thirty) calendar days of the date of receipt of such notice, the decision of the auditors will be final.
19.2 If the objection is lodged within 30 (thirty) calendar days, the disagreement or the dispute will be referred for adjudication by three arbitrators, one appointed by each Party, and the third, who shall be the chairman, selected by the two appointed arbitrators and failing agreement by the Chairman of the Cape Town Chamber of Commerce. If it is a legal matter, the expert must be a practicing advocate or attorney of at least 10 (ten) years standing, or if it is an accounting matter, a practising chartered accountant of at least 10 (ten) years standing.
19.3 The person so appointed shall act as an expert and not as an arbitrator, and that person’s decision is final.
19.4 Nothing prevents the matter, disagreement or dispute being referred by agreement to arbitration or to court or to any other form of dispute resolution.
20. GOVERNING LAW
20.1 These Terms and Conditions are governed by the laws of the country where AddPay has its registered place of business, as outlined at the head of these Terms and Conditions. The Parties submit to the exclusive jurisdiction of the Magistrates Court in respect of any matter arising in connection with the Service.
21. NO ASSIGNMENT
21.1 No right or interest under these Terms and Conditions may be ceded, assigned, transferred, or sub-licensed by the Client without the prior written consent of AddPay, which will not be unreasonably withheld or delayed.
22.1 For purposes of communication and correspondence, any Party may change its address as set out at the head of these Terms and Conditions to any other address by giving written notice of change of the address to the other Party.
22.2 All written communications by mail must be sent to the address referred to above and if sent by pre-paid registered post, will be deemed to have been received within 10 (ten) Business Days after the date of posting unless the contrary is proved. The written communication shall be deemed to have been received on the day of delivery if delivered by hand or email.
22.3 Electronic instructions and notices will be sent to the email address of the registered Administrator.
23.1 No party may rely on any warranty or representation not expressly set out in these Terms and Conditions.
23.2 These Terms and Conditions contain all of the provisions agreed on by the Parties with regard to the Services.
23.3 No variation or cancellation of these Terms and Conditions and no waiver of any right under these Terms and Conditions will be effective unless in writing and signed by the Parties.
23.4 No relaxation by a Party of any of its rights in terms of these Terms and Conditions will prejudice or be a waiver of its rights (unless it is a written waiver).
23.5 In the event of AddPay instituting legal proceedings against the Client to recover amounts due and/or take any other legal steps arising out of this Agreement, the Client shall be liable for all legal costs on the scale as between attorney and own client and/or any collection costs.
23.6 All AP warranties and representations, unless otherwise stated, are given as at the date of signature of each Service Schedule from time to time and for the duration thereof.
24. JOINT LIABILITY:
24.1 If two or more Merchants sign this Agreement as the Merchant, their liability shall be joint and several. If this Agreement is not signed by all persons named as the Merchant above, and/or if a partnership by all partners, and/or if a close corporation by all members, then this Agreement shall nonetheless be valid and binding on the Merchant who has signed this Agreement.
25. THE PROTECTION OF PERSONAL INFORMATION:
25.1 AP may, and the Merchant expressly consents to the use of the Merchant’s personal information to open, administer and operate the Merchant’s account; provide any combination of services, analysis, advice or intermediary service linked to the Merchant’s account; monitor and analyse the Merchant’s data; carry out statistical, credit and other analyses to identify potential risks and trends; and develop new products and services.