This document shall be referred to as the General Terms & Conditions and shall comprise of provisions in support of the Switchlink Merchant Agreement (“Agreement”). It shall be read together with and form part of the entire Agreement
- DEFINITIONS AND INTERPRETATIONS
“Acquiring Bank” means the financial institution/bank institution that processes credit or debit card payments on behalf of a merchant.
“Affiliate” means, in relation to any Party, any entity in the same group as that Party, including but not limited to a subsidiary or a holding company of that Party and any direct or indirect subsidiaries of such holding company;
“Agreement” means this Merchant Service Agreement and any supplements, appendices, amendments, modifications, extensions and revisions therein;
“API” means Application Program Interface belonging to Switchlink for the purpose of providing the Services;
“Card” means a prepaid virtual and/or physical card issued by Issuing Bank, which is branded with one or more marks or signage of a Payment Scheme, offered by Switchlink to its Merchants on the Switchlink Platform;
“Cardholder” means any authorized user of a card who uses the card to carry out a card transaction on the Payment Gateway;
“Card Payments” means a Payment made by a Customer to Switchlink via VISA, MasterCard and any other card scheme approved by the Merchants and undertaken through the Bank;
“Chargeback” means a demand by a Customer for a Switchlink Merchant to make good the loss on a fraudulent Card Payment transaction;
“Confidential Information” means all information relating to the Disclosing Party which is obtained, whether in writing, pictorially, in machine readable form or orally or by observation in connection with this Agreement, including but without limitation, financial information, know-how, processes, ideas, intellectual property (irrespective of its registrability or patentability status), schematics, trade secrets, technology, customer list (potential or actual) and other customer-related information, sales statistics, market, market intelligence, marketing and other business strategies and other commercial information of a confidential nature but does not include information which is known to the Receiving Party without any limitation or restriction on use or disclosure before receipt of such information from or on behalf of the disclosing party or becomes publicly available, other than as a breach of this Agreement, or becomes lawfully available to the Receiving Party from a third party free from any confidentiality restriction or any information required to be disclosed under any relevant law or any binding judgment or order of court or arbitration tribunal or any stock exchange regulations or under direction from any relevant regulatory authority;
“Customers” means patrons of the Merchant in relation to a payment transaction processed using the services;
“Disclosing Party” means any one of the Parties under this Agreement who discloses Confidential Information to the other Party to this Agreement;
“Fines” means any and all fines, levies, costs, expenses, charges, assessments or imposition of liabilities of any nature which the Payment Schemes or other financial institution require either the Merchant or Switchlink to pay or which are otherwise directly or indirectly recovered from Switchlink at any time, and which relate to any aspect of this Agreement (including the provision of the Services hereunder).
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Issuing Bank” means a financial institution that issues cards under the authority of the relevant Payment Scheme;
“Merchant” means an end user customer that uses Switchlink Services in the conduct of its business of selling goods or providing services to the public;
“MNOs” means the mobile network operators licensed to provide mobile telephony services in the relevant country;
“Payment Gateway” means the infrastructure and e-commerce service of Switchlink that authorizes payments for merchants;
“Payment Scheme” means Visa, MasterCard, American Express, Discover Global Network and any Affiliates thereof or any other card payment network (including any local schemes thereof) and/or such other schemes governing the issue and use of credit, debit, charge, purchase or any other cards or payment methods, as approved and notified by Switchlink to the Merchant in writing or on the Switchlink websites from time to time;
“Payment Methods” as referred to in this Agreement shall mean using one or more of the following modes of payment which can be used by Customers to make payments through the Payment Gateway: (a) Mobile Money Transfer facilities offered by MNOs; (b) Bank Account (online, ATM and payment through teller) and (c) Any other mode of payment as may be made applicable by Switchlink Africa from time to time;
“Receiving Party” means any person receiving Confidential Information from a Party under this Agreement;
“Refund” means a return of an amount to a Customer or the reversal of any other payment pursuant to a request or instruction from the Merchant to Switchlink;
“Regulatory Authority” means any regulator or other public body having supervisory or regulatory authority over Switchlink or the Merchant;
“Services” means services to be provided by Switchlink on the terms set out in the Merchant Agreement;;
“Switchlink Account” means an account opened by Switchlink for purposes of the service for which Switchlink will provide the details to the Merchant;
“Switchlink’s Terms and Conditions” means collectively the terms and conditions set forth in this Agreement, as may be amended from time to time, including all exhibits, schedules and addendum thereto and the terms and conditions of the Payment Gateway
“Switchlink Technology” means the applications, software, databases, systems, and equipment (including improvements and upgrades 2 thereto) utilized by Switchlink for the purposes of providing the Services and includes the Payment Gateway;
“Transaction” means a single Payment by a Customer to the Merchant;
“USSD” means Unstructured Supplementary Service Data a communication protocol for transmitting information via mobile phone networks and other telecommunication channels.
- CARD CHARGEBACKS
In the event that a Customer requests its issuing bank to lodge any chargeback requests:
2.1 The Merchant shall provide the chargeback amount to the relevant bank to be held until the chargeback process is completed and the any disputes in relation thereto resolved.
2.2. The Party determined to be liable for fraud upon proper investigations having been undertaken and duly completed shall bear the chargeback costs.
2.3. Where the Merchant informs the bank to decline a chargeback request and either Switchlink or the relevant bank so requires, the Merchant shall provide evidence that the goods/services were paid for/delivered.
2.4. Where the Merchant has made refunds to the Customer the evidence shall be provided to the Bank and Switchlink.
2.5. The evidence or justification shall be provided to the bank and/or Switchlink in a timely manner.
Switchlink hereby grants the Merchant the non-exclusive right to channel its customers through the Payment Gateway.
This Agreement shall come into force on the Signature Date and shall continue to subsist unless terminated by either party in accordance with this clause.
- OBLIGATIONS OF PARTIES
- Work with Acquiring Bank to ensure that settlements of all monies collected by the Merchant is handled in a timely manner in accordance with Applicable Law and Payment Scheme Rules;
- Grant to the Merchant and the Merchant hereby accepts from Switchlink, non-exclusive, non-transferable license and right to the Switchlink API and accompanying integration technical specification in respect of this Agreement subject to the Merchant’s acceptance of the Switchlink’s Terms and Conditions;
- Work with the Merchant to provide the requisite integration technical specification and APIs in respect of the Payment Gateway subject to the Merchant’s acceptance of Switchlink’s Terms and Conditions;
- Work with the Merchant to provide fraud protection and compliance support to the Merchant subject to the Merchant’s acceptance of the Switchlink’s Terms and Conditions;
- Set-up the Merchant on Switchlink Payment Gateway;
- Provide technology support to the Merchant on a discretionary basis;
- Handle settlement of all monies collected by Merchants to Merchant’s bank account in Merchant’s preferred bank;
- Provide adequate technical support for the test duration where applicable during the implementation of the task stated in clause 5.11 above.
- Respond to all fraud enquiries not later than one (1) Business Day of receipt of such enquiry,
- Promptly notify Switchlink of any security breach, misuse, irregularity, suspected fraudulent transaction or suspicious activities that may be connected with attempts to commit fraud or other illegal activity through the use of Merchant’s site and the corrective action the Merchant has taken;
- Authorize Switchlink to debit the nominated bank settlement account for the full value plus other lawful charges in respect of all lawful transaction where the Cardholder is adjudged by the Payment Scheme to be entitled to a refund;
- Ensure adequate fraud protection and compliance to regulatory and Payment Scheme rules and requirements;
- Notify Switchlink of any change in the Merchant’s registered office address, Merchant’s activities and/or line of business prior to such change.
- Put in place appropriate security measures to monitor, control and prevent fraud on Merchant website;
- Fully responsible for its employees’ actions while in the Merchant’s employ;
- An undertaking to ensure the security of Cardholders’ information and not to violate the privacy of Cardholders who transact on its site.
- An undertaking to respond to all customer enquiries/issues within one (1) Business Day;
- Promote the Payment Gateway services to its Customers;
- Utilize the integration specification document and APIs in respect of the Payment Gateway provided by Switchlink in the prescribed manner;
- Fully comply with all applicable payment scheme rules and government regulations in relations to the transaction entered herein.
- Provide immediate notice of
(i) any unauthorized third-party use of the Services or any third party that may have access to cardholder data; and/or
(ii) any event which might lead to such unauthorized use;
- Immediately notify Switchlink of any act, omission or error which does or may adversely affect the Merchant’s ability to perform their obligations under this Agreement or cause loss or damage to Switchlink (including but not limited to any material change in the nature or extent of the Merchant’s business).
- Comply with any additional security, authentication, risk control or other requirements imposed by Switchlink or a Payment Scheme, including but not limited to where that Merchant is, in the opinion of Switchlink and / or the Payment Scheme, engaged in high risk activities.
- Comply with Applicable law and any relevant Payment Scheme Rules to which the Merchant is subject. The Merchant shall not act in contravention of or cause Switchlink to act in contravention of any Payment Scheme Rules to which Switchlink is subject.
- Responsible for and liable to Switchlink and Issuing Bank for all reasonable expenses associated with and any losses from over limit processing or reasonable expenses incurred by Switchlink or Issuing Bank in seeking fraud or unauthorized transaction recovery under Applicable Law that was a result of the Merchant’s action or inaction including actions of the Merchant’s employees.
- SET OFF
Switchlink may, without notice, set off any debts or liabilities due from the Merchant to Switchlink under this Agreement against any debts or liabilities owed by Switchlink to the Merchant, regardless of the place of payment or currency of either obligation. If the obligations are in different currencies, Switchlink may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
Switchlink is entitled to defer any settlement or any other sum due to the Merchant to the extent that Switchlink considers necessary or appropriate to protect their ability to recover the Fees and/or the sums or any other liability (actual or anticipated) of the Merchant in connection with this Agreement.
If Switchlink has reasonable suspicion that a transaction may be fraudulent or involve other criminal activity, Switchlink may suspend the processing of that transaction and any connected, transaction, or withhold settlement until the satisfactory completion of any investigation. The Merchant shall not be entitled to any interest or other compensation whatsoever in respect of suspension or delay in receiving Payment.
The exercise by Switchlink of any of its rights under this clause shall be without prejudice to any other rights or remedies (including but not limited to set-off) to which Switchlink is otherwise entitled (by operation of law, contract, or otherwise).
7.1 The Merchant warrants that it has never had an agreement with a payment scheme provider which was terminated upon request and/or demand by the payment scheme provider or any regulatory authority.
7.2 The Merchant warrants that it shall not submit any transaction that the Merchant knows is illegal, fraudulent or restricted for authorization, or not authorized by the cardholder.
7.3 The Merchant warrants it will conduct appropriate due diligence on all Customers.
7.4 The Merchant warrants that it shall fully cooperate where any forensic investigation is being conducted on the Merchant until such time the investigation is completed.
7.5 The Merchant warrants it will use the services in good faith, in accordance with the terms of this Agreement and in accordance with all Applicable Law and Payment Scheme Rules. In particular, the Merchant will not use the services in a manner that that could result in a violation of anti-money laundering, counter terrorist financing and similar legal and regulatory obligations.
7.6 The Merchant warrants that the Merchant has not been subject to the following:
- Criminal conviction (except minor traffic offenses and other petty offenses) in Kenya or in any other foreign country.
- Administrative or enforcement proceedings commenced by the Securities and Exchange Commission, any Regulatory Authority, in Kenya, or in any other country; or
- Restraining order, decree, injunction, or judgment in any proceeding or lawsuit, alleging fraud or deceptive practice on the part of the Merchant.
7.7 The parties warrants that they are duly registered and licensed (where applicable), and have the full capacity, regulatory approvals and corporate authorization to enter into this Agreement and discharge the obligations and responsibilities created herein.
7.8 The parties further warrant that no element of this transaction constitutes a breach of any existing law, regulation, patent, copyright, or other intellectual property in its country or countries of domicile and operation.
7.9 The parties warrant that in the case of any third-party software used in respect of this Agreement, that they have the required license and the right to grant a sub-license to use such third-party software.
7.10 Each Party warrants to the other that this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with the terms and obligations therein and no provision of this Agreement is in conflict with any of the Party’s obligations under its constitutional documents, Applicable Law or any other document, charter or agreement to which the Party is subject,
7.11 The Parties shall keep each other indemnified against all actions, claims, proceedings and all legal cost or other expenses arising out of any breach of the above warranties or out of any claim by a third party based on any facts which if substantiated would constitute such a breach or a breach of other relevant legal or contractual duty.
7.12 Switchlink neither warrants that the use of the Payment Gateway or the operation thereof will be uninterrupted nor error free, however, Switchlink warrants that it shall use its best endeavors to ensure that the Payment Gateway functions optimally at all times and within generally accepted industry standards during the term of this Agreement.
7.13 Except as set forth in this clause 8, Switchlink makes no express or implied representations or warranties with respect to the Payment Gateway and related services or their condition, merchantability, fitness for any particular purpose or use by the Merchant or the Merchant’s customers.
8.1 Either Party shall indemnify and hold the other Party, its Affiliates, employees and agents harmless from and against any damage, loss, expense, claims or liability that Party may incur:
8.2 With respect to any negligent act or omission by, or willful misconduct of, the Party’s employees or agents to the extent however that such negligent act can be situated in the normal course of employment or appointment.
8.3 The violation of any applicable law, statute or regulation by the Parties or their personnel.
8.4 In connection with any third party claims, actions, demands and/or losses to the extent that such losses result from any breach of this Agreement by such indemnifying Party.
8.5 The Merchant shall indemnify and hold Switchlink harmless from and against any damage, loss or liability that Switchlink may incur as a result of:
- Negligent or wilful misconduct of the Merchant and/or its employees, Affiliates, employees and agents.
- Any warranty, condition, representation, indemnity or guarantee granted by the Merchant with respect to the Payment Gateway with respect to the limited warranties specified in clause 8;
- Any omission or inaccuracy in the Merchant’s advertisements or promotional materials that relate to the Payment Gateway,
- Any modification of or addition to the Payment Gateway not provided or approved by Switchlink or;
- The Merchant’s failure to comply with the terms and conditions of this Agreement or any part thereof.
This section will not be construed to limit or exclude any other claims or remedies to which Switchlink may be entitled hereunder or in law or equity.
- FRAUDULENT TRANSACTIONS
Fraudulent transactions shall include but not be limited to:
9.1 Any purchase of goods and services and/or transaction arising from the use of a card by a person other than the authorized cardholder.
9.2 Use of a card that is not authorized in terms of the rules governing the issuance and use of cards.
9.3 Merchant agrees that it will always be responsible for the actions of the Merchant’s customers and the Merchant’s employees including fraudulent acts or omission not traceable to the contributory negligence of Switchlink.
- LIMITATION OF LIABILITY
10.1 In no event shall Switchlink be liable to the Merchant in excess of any amount that has accrued to Switchlink from transactions emanating by virtue of this Agreement, in the month immediately preceding the date the first such claim arises.
10.2 No liability shall be raised against Switchlink more than two (2) years after the accrual of the cause of such liability, therefore. It is further agreed that the limitations on liability, expressed herein, shall inure to the benefit of and apply to all parents (both direct and indirect), subsidiaries and Affiliates of Switchlink.
10.3 Switchlink will neither be liable for the actions or inactions of any third party not acting on the instructions of Switchlink nor be liable for the actions or inactions not directly traceable to it.
- TERMINATION AND EFFECT OF TERMINATION
Either Party may terminate this Agreement forthwith by giving’ notice in writing to the other Party if:
11.1 The other Party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
11.2 The other Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
11.3 If the other Party is in material breach of the terms of this Agreement and has failed to rectify such breach (in the case of a breach capable of being remedied) within ten (10) Business Days of receiving a written notice requiring it to do so.
11.4 Switchlink may terminate this Agreement and delist the Merchant where the Merchant is identified as a source of fraudulent activity or causes damage to Switchlink’s brand or the Acquiring Bank and Payment Schemes or upon instruction from the Acquiring Bank and Payment Schemes whether financial or otherwise.
11.5 Either Party may terminate this Agreement at any time on giving one (1) month’s written notice to the other Party.
11.6 On Termination, the Parties shall be discharged from any liability for further performance of its obligations under this Agreement and shall entitle either Party to be paid the accrued sum for any successful transaction prior to such termination.
11.7 Any termination of this Agreement (however occasioned) shall not affect any accrued rights or liabilities of any of the Parties nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
11.8 Upon termination of this Agreement the Merchant’s right to use the Payment Gateway shall automatically be revoked and Switchlink shall retain the merchant records for a period of five (5) years after such termination.
12.1 Each party shall maintain Confidential Information in strict confidence and shall not use Confidential Information except (a) as necessary to perform its obligations under the Agreement, or (b) as required by a court or governmental authority. Confidential Information includes proprietary technical and business information, Preliminary Works, and any other information marked “Confidential.”
12.2 In maintaining confidential information confidential, the receiving party shall provide secure storage for all such Confidential Information in the Receiving Party’s possession or control and apply at least the same security measures or degree of care as that which it would apply to its own confidential or proprietary information
12.3 Each party shall also ensure that Confidential Information is only accessed by the respective party’s staff on a need-to-know basis. Any person to whom Confidential Information is disclosed pursuant to this agreement shall be informed by the respective party of the confidential nature of the Confidential Information and shall be bound by obligations equivalent to those contained in this Agreement, and the respective party shall procure the compliance by such persons with such obligations.
Exception: Confidential Information does not include (a) any information that is in the public domain, (b) becomes publicly known through no fault of the receiving party, or (c) is otherwise known by the receiving party before obtaining access to it under this Agreement or properly received from a third party without an obligation of confidentiality.
- FORCE MAJEURE
13.1 If any of the Parties hereto is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control (including but not limited to an Act of God, Natural Disaster, or Civil Disorder) the Party unable to fulfil its obligations shall immediately give notice in writing of this to the other Party and shall do everything in its power, including but not limited to accepting assistance from third parties or the other Party, to resume full performance.
13.2 If the period of incapacity exceeds two (2) months, then this Agreement shall automatically terminate unless Parties expressly agree otherwise in writing
- INTELLECTUAL PROPERTY
14.1 Nothing set forth in this Agreement shall constitute a transfer or assignment by one Party to another Party of any Intellectual Property Rights owned or otherwise controlled by such Party, and each Party hereby retains all of its rights, title and interest in such Intellectual Property Rights.
14.2 All Intellectual Property Rights in or related to the Payment gateway are and will remain the exclusive property of Switchlink, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Payment gateway is used or licensed. The Merchant shall not take any action that jeopardizes Switchlink’s proprietary rights or acquire any right in the Payment gateway, or the Confidential Information, as defined herein. Unless otherwise agreed on a case-by-case basis, Switchlink will own all rights in any copy, translation, modification, adaptation or derivation of the Payment gateway or other items of Confidential Information, including any improvement or development thereof.
- NO ASSIGNMENT
15.1 The rights benefits or obligations under this Agreement may not be assigned or otherwise transferred in whole or in part without the prior written consent of all the Parties but shall be binding upon and inure to the benefit of each of the Parties and, where so permitted, their assigns or other transferees.
15.2 Switchlink may sub-contract or delegate the performance of its obligations under this Agreement to third parties including any of its Affiliates; however, the Merchant shall remain responsible for the performance of its duties under this Agreement.
- DATA PROTECTION
16.1. Each Party shall take all appropriate technical and organizational security measures to ensure that Data supplied by the other Party (“Discloser’s Data”) is protected against loss, destruction and damage, and against unauthorized access, use, modification, deletion, disclosure or other misuse.
16.2. Each Party shall take reasonable steps to identify all reasonably foreseeable internal and external risks posed to the Discloser’s Data under its possession or control and establish and maintain appropriate safeguards against any risks identified. The safeguards shall be updated continually in response to new risks or deficiencies in previously implemented safeguards.
16.3. Each Party further warrants, represents and undertakes that it shall ensure that its technology, including all databases, systems, network and equipment on which the Discloser’s Data is processed as part of providing the Services, shall at all times be in a standard no less than the standards which are in compliance with the best industry practice for the protection, control and use of the Discloser’s Data and conform to the disclosing Party’s reasonable requirements.
16.4 Each Party shall indemnify the other from and against all claims, actions, proceedings, costs (including attorneys’ fees), expenses, losses, damages and liabilities by the other Party arising out of or in connection to a breach of this clause subject to any limitations as to liability as may be provided in this Agreement.
17.1 The Client shall solely determine, collect, remit and declare all taxes and income resulting from or in consequence of using the Services to the relevant tax authority and to pay all taxes levies, and fees due on such income. Safaricom shall not be liable to the Client for any failure by the Client to comply with its obligations under this clause and the Client shall indemnify Safaricom from any loss or damage arising from any failure to comply with its obligations under this clause.
17.2 Each Party shall bear and be responsible for its own taxes, charges, impositions,or levies imposed by law.
The respective rights of the Parties (whether arising under this Agreement or under the applicable law) shall not be capable of being waived or varied otherwise than by an express waiver or variation in writing; and in particular, any failure to exercise or any delay in exercising any of such rights shall not operate as a waiver or variation of that or any other such right; any defective or partial exercise of any of such right shall not preclude any other or further exercise of that or any other such right; and no act or course of conduct or negotiation on the part of either Party shall preclude them from exercising any such right or constitute a suspension or variation of such right.
In the event that any provision of this Agreement is declared by any applicable law, judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or irrelevant It shall to the extent required by such law or authority, be severed from this Agreement and rendered ineffective so far as is possible without modifying the remaining provisions of this Agreement.
- DISPUTE RESOLUTION
- Any dispute arising out of or in connection with this Agreement shall in the first instance be referred to the Parties’ chosen Representatives for discussion and resolution at an inter–Party meeting to be held seven (7) Business Days after notification (by either Party) of a dispute.
20.2 If the dispute is not resolved, it may be referred for arbitration in Nairobi, by one Arbitrator to be agreed on by the Parties, and in the absence of agreement, to be appointed by the Chairperson of the Kenya Branch of the Chartered Institute of Arbitrators. The provisions of the Arbitration Act shall apply to all such arbitration proceedings. Such arbitration proceedings shall, so far as permitted by law, be final and binding on the Parties.
- GOVERNING LAW
The construction, validity, and performance of this Agreement shall in all respects be governed and
construed in accordance with the laws of the Republic of Kenya.