General

terms and conditions

1. INTERPRETATION AND DEFINITIONS

1.1 In this agreement, unless the context indicates otherwise, the following applies: 

1.1.1 Natural persons include juristic entities (incorporated or unincorporated) and vice versa. 

1.1.2 Headings are for convenience only and must not be used to interpret the agreement. 

1.1.3 Expressions in the General Merchant Terms and Conditions have the same meaning in the product terms and conditions and related annexures, schedules, and merchant documents, unless defined otherwise.  The terms and conditions below are the general provisions applicable to processing card transactions, you must read these terms and conditions in conjunction with the relevant product terms and conditions.

1.1.4 If a provision in a definition is a substantive provision giving rights to or imposing obligations on a party, regardless of whether it appears in the definitions clause only, it will be a substantive provision of the agreement. 

1.1.5 Reference to a statutory enactment must be interpreted as a reference to that enactment (as amended or substituted) at the start date of the agreement. 

1.1.6 Reference to ‘days’ means calendar days, unless qualified by the word ‘business’.

1.1.7 Unless specifically stated otherwise, any number of days will be determined by excluding the first and including the last day. If the last day falls on a Saturday, Sunday or public holiday, it will be the following business day. 

1.1.8 Where figures are referred to in numerals and in words and there is any conflict between the two, the words shall prevail; 

1.1.9 reference to payments refers to that payment as being in South African rands (ZAR). You must adhere to the South African Reserve Bank’s (SARB’s) financial limits for ZAR when processing payments in foreign currency.

1.1.10 No provision in the agreement must be interpreted against or to the disadvantage of a party because that party has or is deemed to have structured, drafted and/or introduced that provision. 

1.1.11 The words ‘include’ and ‘including’ mean ‘include without limitation’ and ‘including without limitation’. The use of the words ‘include’, ‘includes’ and ‘including’ followed by a specific example or examples must not be interpreted as limiting the meaning of the general wording preceding it.

1.1.12 The agreement is subject to the Financial Intelligence Centre Act (FICA), 38 of 2001; Consumer Protection Act (CPA), 68 of 2008; Protection of Personal Information Act (POPIA), 4 of 2013; and all other legislation and regulations as well as the card network rules and card industry requirements (as amended). 

1.2 Definitions 

Unless expressly indicated otherwise, the words and expressions below mean the following:

2. INTRODUCTION

2.1 The agreement regulates the relationship between the parties as it relates to the services as set out in clause 5. 

2.2 The agreement sets out the general terms of the services and consists of various annexures that set out the specific terms of the card acceptance products, which must be read together with these general terms and conditions.

2.3 Our relationship and the agreement are subject to the card network rules and all applicable laws. By entering into the agreement, you agree to be bound by all of them at all times.

3. YOUR BUSINESS

3.1 Your warrant that your business is as described in the cover page of this agreement, and you undertake to accept cards in payment of goods and/or services relating to your business only and within South Africa only.

3.2 The goods and/or services you offer may not be sold or produced in contravention of the agreement, applicable law, common-law provisions or the card network rules.

3.3 You must notify us in writing of any change in the nature of your business or a change in the ownership or beneficial control of your business within three business days. 

3.4 The card networks restrict and/or prohibit certain industries. Therefore, if you are dishonest with regards to your business or if you supply goods and/or services that are not aligned with the disclosed business, we may view that as a material breach of the agreement and terminate it accordingly.

4. DURATION

4.1 The agreement will come into force on the start date, subject to its provisions, and will endure for an initial period of one year (initial period).

4.2 If you want to terminate the agreement when the initial period expires, you must inform us at least 90 days before the expiry date. If you do not inform us within 90 days of the expiry date, the agreement will continue indefinitely until it is terminated in line with the provisions set out in the agreement. 

4.3 Termination of the agreement will not affect any existing obligations that you may have towards us, and will not affect our rights in terms of the agreement. 

4.4 Each annexure to this agreement will endure for the period set out in clause 4.1, subject to the further provisions of clause 4.

5. SERVICES

5.1 The services that we provide in terms of the agreement are the following:

5.1.1 The ability to accept and process transactions through using the card acceptance products.

5.1.2 Clearing and settlement services, which entail –

5.1.2.1 debit and credit card clearing and settlement by us, in terms of which you receive payment from a cardholder for goods and/or services; and 

5.1.2.2 our paying the amounts due to you and retaining the amounts that you owe us in terms of the agreement.

5.1.3 Supply and support services, which entail –

5.1.4 support in respect of the debit and credit card clearing and settlement services referred to in clause 5.1.2;

5.1.5 billing and invoicing; and

5.1.6 any services that are as set out in the annexures.

5.2 The acceptance of American Express cards will automatically be activated upon your acceptance of this agreement.  This only means that you will be able to accept Amex as a payment method, you will only be billed, in accordance with the fee schedule for Amex transactions, if and when you accept Amex as a payment method.

6. YOUR OBLIGATIONS

6.1 In providing your goods and/or services, you agree to the following:

6.1.1 You will display and disclose all information necessary for the cardholder to make an informed decision, including the total price, the cost of any taxes and delivery charges that apply. 

6.1.2 You will not process a transaction if it does not relate to a genuine transaction for goods and/or services that you provide. 

6.1.3 You will accept all valid cards that a cardholder presents in payment for the goods and/or services.

6.1.4 You will process transactions originating within South Africa and denominated in South African rands only.

6.1.5 You will supply goods and/or services at your ordinary price and will not add extra charges or set any minimum or maximum transaction amount for a particular transaction.

6.1.6 You will not require a cardholder to pay a surcharge or a part of a discount of yours or any related finance charges in connection with a transaction.

6.1.7 You will make comprehensive details of return and refund policies available to cardholders and disclose to them that you (not the original manufacturer or supplier of the goods and/or services) are the merchant of record and responsible for fulfilment of the transaction. 

6.2 In addition to the above, you must do the following:

6.2.1 Comply with all legislation regulating your business, products and services, including the Consumer Protection Act, 68 of 2008, and the Electronic Communications and Transactions Act, 25 of 2002. 

6.2.2 Check the expiry date of every card before you process a transaction.

6.2.3 Ensure that you have procedures in place for all transactions to prevent or reduce invalid transaction and/or fraudulent transactions.

6.2.4 At all times when accepting a card adhere to the card network rules, applicable laws, and the agreement. 

6.2.5 Keep copies of all signed sales vouchers for at least 180 days from the date of the transactions.

6.2.6 Not attempt to limit your liability by requesting or inducing cardholders to waive their dispute rights in your favour.

6.2.7 Provide us with a monthly report, or at any other interval as we may determine and communicate to you from time to time, detailing changes in your URL’s which you use to sell goods or services, the status of any illegal activity where a card is or was used as a means of payment, and the tracking and resolution of complaints that relate to you selling goods or services where a card was used as the payment mechanism. 

7. AUTHORISATION

7.1 The authorisation process that must be followed for each card acceptance product is as set out in the relevant annexures for each product.

7.2 An authorisation granted under any provision of this clause 7 or any annexure does not constitute evidence or a warranty that:

7.2.1  we will eventually make the payment;

7.2.2 the card is valid;

7.2.3 the card is genuine (ie that the card is not counterfeit); and/or

7.2.4 the person presenting the card is the actual cardholder.

7..3 Authorisation is merely an indication that the account linked to the card has enough money to pay for the card transaction on the authorisation date and that the card has not been reported lost or stolen at the time the card is presented for payment. Authorisation does not mean that a card transaction may not be subject to a chargeback. An authorisation also does not mean that payment will ultimately be made following the actions or inactions of a third party participating in the payment process.

7.4 All budget transactions require authorisation.

7.5 You must ensure that the transaction will take place on the same date the authorisation was given, unless we have given prior written consent to your processing the transaction on a different day. Certain categories of merchants are exempt from this rule.

7.6 The floor limit for all transactions will be R0, unless we have agreed otherwise in writing. 

7.7 We have the right to increase, decrease or cancel your floor limit at any time at our discretion without giving reasons by giving you written notice.

7.8 We reserve the right to decline an authorisation request for any reason. We will endeavour to provide you with reasons for that decision but are not obliged to do so.

8. OUR RIGHTS AND OBLIGATIONS

8.1 We will pay to you electronically the value of all goods and/or services that you have supplied once the transaction has been authorised, less the agreed merchant service commission, which is payable by you. However, in the event of excessive chargebacks, bankruptcy, fraud, suspected fraud, invalid transactions or unfulfilled transactions, we may retain the money. 

8.2 We are authorised to debit any other account that you have with us or with any other financial institution with the fees and charges set out in the agreement if we are unable to debit your nominated account.

8.3 We may apply set-off to any amount that we must pay in terms of this agreement against any amount that you owe us, whether in terms of this agreement or otherwise. We may not apply set-off to amounts that you owe to us arising from any possible commercial banking relationship that may exist between the parties.

8.4 In addition to any obligation specified in this agreement, we will:

8.4.1 give you monthly statements (electronic or paper-based) detailing all activity, relating to this agreement, on your nominated account; and 

8.4.2 keep you informed of any changes in our operational policies or the card network rules that affect you. 

9. INVALID TRANSACTIONS

9.1 We may, at our discretion, choose to treat invalid transactions as valid, but without prejudice to our right to treat any later similar transactions as invalid transactions.

9.2 We may charge back invalid transactions as described in clause 12.

9.3 We may debit the value of invalid transactions against your nominated account at any time or recover it from you in any other way.

10. FRAUDULENT TRANSACTIONS

10.1 The onus is on you to implement fraud prevention measures and to establish processes and controls aimed at combating, preventing and detecting fraud when processing transactions. You must ensure that you are adequately protected against fraud activities.

10.2 You must not honour transactions and/or accept cards that you know or suspect are fraudulent transactions, fraudulent cards or transactions that are not authorised by the customer.

10.3 If a fraudulent transaction or a suspected fraudulent transaction occurs, or if we suspect that a transaction is for any reason suspicious, invalid, erroneous or illegal, we are irrevocably authorised to:

10.3.1 withhold or delay settlement of the transaction; 

10.3.2 recover the value of the transaction from you by debiting your nominated account, even if it is held at another bank, or by applying set-off or net-settling amounts due to you with the value of the fraudulent transaction and losses that we incurred or suffered as a result of or in connection with the fraudulent, invalid, erroneous or illegal transaction that you have processed, and you indemnify us against all losses in this regard;

10.3.3 place a hold on your nominated account; 

10.3.4 pledge an amount equal to an estimate of any potential losses that we may incur as a result of the fraudulent, invalid or suspicious transaction; 

10.3.5 suspend the acquiring service and products; or 

10.3.6 terminate the agreement immediately without prior notice and without prejudice to any other rights in law.

11. REFUND PROCEDURE

11.1 If a cardholder asks for a refund and/or you are required to refund the cardholder in terms of legislative provisions and/or because you reasonably believe that the cardholder is entitled to a refund, you must process the refund to the card used for the transaction or any other card issued to the cardholder.

11.2 Notwithstanding clause 11.1 you may choose to refund the cardholder in cash.

11.3 All refunds will be done at your own risk.

11.4 You must calculate the amount of any refund at the refund date using the prevailing exchange rate (where applicable). Any fees due to us resulting from the transaction will remain due and payable to us.

12. CARDHOLDER DISPUTES AND CHARGEBACKS

12.1 Disputes and chargebacks will be dealt with in terms of the card network rules and the prevailing provisions.

12.2 The cardholder may dispute transactions within 180 days of the transaction date. In some instances this period may be longer.

12.3 We reserve the right to charge back the amount of disputed transactions directly to your nominated account on receiving the dispute.

12.4 Reasons for chargebacks include, but are not limited to the following: 

12.4.1 Actual or suspected lack of authorisation.

12.4.2 Unlawful or suspicious transactions.

12.4.3 Goods and/or services not having been delivered.

12.4.4 Goods and/or services not being to the agreed standard or quality.

12.4.5 A transaction being fraudulent or invalid.

12.4.6 A transaction not having been processed in line with the card network rules. 

12.5 You will be liable to us for the full chargeback amount as well as any Nedbank and/or card network fees relating to chargebacks.We will debit the transaction amount against your nominated account or any other bank account in your name with enough credit.

12.6 We may hold the transaction amount in advance for potential chargebacks until the chargeback process has been completed.

12.7 You are liable for all chargebacks as well as their resolution with the cardholder and issuing bank. We will not intervene on behalf of you, the cardholder or the issuing bank and will not become involved in a dispute between you and a cardholder. We will assist only in the exchange of documents between you and the issuing bank.

12.8 If you want to dispute a chargeback, you must submit all the relevant and necessary documents to us on request within the stipulated time frames. If you do not submit the documents to us at all or within the stipulated time frames, the chargeback will be upheld.  Nedbank does not determine the outcome of the chargeback or dispute.

12.9 The card networks prescribe certain thresholds relating to chargebacks and fraudulent transactions. If these thresholds are exceeded, the card networks may charge fines and/or penalties, for which you will be liable. It may also result in us terminating the agreement or reviewing and amending it.

12.10 You agree and accept full chargeback liability for all fraud established on a card, regardless of whether the chargeback is regarded as being the result of fraudulent card use.

13. LIABILITY SHIFT

13.1 If you have complied with the authorisation procedures as set out in the agreement and annexures, the liability for any resultant chargebacks will shift from you to the issuing bank.

13.2 However, if you do not follow the necessary processes, the liability for any resultant chargeback will shift from the issuing bank to you and you will be liable for the chargebacks.

13.3 Liability shift occurs only when a chargeback arises from the authorisation process relating to the transaction. A cardholder may still raise a chargeback if the dispute relates to the services rendered or the goods provided.

14. MERCHANT SERVICE COMMISSION, FEES AND CHARGES

14.1 We are entitled to charge the merchant service commission, fees and charges as set out in the fee schedule.

14.2 We will provide you with a statement reflecting the merchant service commission, fees and charges debited or any other amount credited to your nominated account. This statement will be paper-based or electronic.

14.3 If we do not provide you with a statement, it will not be a waiver of our claims to the merchant service commission, fees or charges concerned.

14.4 It is your obligation to dispute statement within 90 days after the statement date in order for us to review your dispute and address your dispute.  If you fail to raise a dispute within the indicated time, it will be deemed that you are in agreement with the relevant statement. 

14.5 We will determine the percentage of the merchant service commission at our discretion. We may review this percentage, and will notify you of any changes.

14.6 We reserve the right to levy other fees at any time but will always notify you accordingly one month before they become applicable.

14.7 All amounts specified in the cover page of this agreement are payable free of any deductions or set-off.

14.8 You acknowledge and agree that we will be entitled to debit your nominated account with all the amounts specified in the agreement within 180 days of the date of the cancellation of this agreement.

14.9 If we are unable to debit your nominated account, we will net-settle you.

15. DEBITING YOUR ACCOUNT

15.1 You nominate the bank account set out in the cover page of this agreement for the debiting of any fees as it relates to the agreement.

15.2 We may debit your nominated account, at whichever bank this account is held, with the following:

15.2.1 Refunds due to a cardholder in line with the refund procedure set out in clause 9, 10, 11 and/or 12.

15.2.2 The value of reversals of invalid transactions.

15.2.3 Rentals for software and/or devices and/or fees for the provision of merchant facilities.

15.2.4 The merchant service commission as detailed in the fee schedule.

15.2.5 Refunds to a cardholder not attended to by you. 

15.2.6 The value of disputed transactions that cardholders brought to our attention.

15.2.7 Interest at our prime overdraft rate on any amount that you owe us. 

15.2.8 The value of transactions performed with a cancelled or otherwise invalid card.

15.2.9 Fees and/or fines and/or penalties that the card networks or industry regulatory bodies charge for excessive chargebacks or other disputes relating to you and/or your failure to comply with regulatory requirements or any other fee, fine or penalty levied by such a regulatory body or organisation due to your failure to adhere to this agreement.

15.3 You must pay an administration fee for each payment that is due to us that your bank has returned unpaid.

15.4 You undertake to notify us immediately in writing or by email of any changes in the details of your nominated account. This notification must reach us at least 10 business days before the change will come into effect. You waive any right to claim damages from us if the damages result from non-compliance with this clause.

15.5 The amounts referred to in the agreement may be subject to exchange rate variations, where applicable.

15.6 VAT will be payable on all fees referred to in the agreement and the fee schedule, where applicable, unless otherwise stated.

15.7 We reserve the right to terminate the agreement immediately if your bank returns a payment for whatever reason.

15.8 We reserve the right to change any other fees provided for in the agreement by giving you written notice, which could be a letter, statement message, statement insert or something else.

15.9 You agree and acknowledge that if your facility is cancelled, we may debit your nominated account with all the amounts specified in the agreement within 180 days of the date of the cancellation.

16. PCI DSS

16.1 When processing card transactions, you must comply with PCI DSS and therefore do the following:

16.1.1 Consult the PCI DSS website (https://www.pcisecuritystandards.org/Merchants/). 

16.1.2 At your own cost agree to and do comply with all the requirements of PCI DSS, which are available at https://www.pcisecuritystandards.org.

16.1.3 Report all instances of a data compromise, as defined by PCI DSS, to us immediately but not later than 24 hours from the time you became aware of the incident.

16.1.4 Ensure that identified breaches of the PCI DSS are rectified within six months of the reported breach.

17. WARRANTIES

17.1 By presenting transactions to us for payment, you warrant and continue to warrant the following:

17.1.1 No proceedings have started or are threatened against you that would or could restrain you from entering into the agreement or from providing the goods and/or services.

17.1.2 All statements of fact contained in them are true.

17.1.3 The goods and/or services concerned were supplied at your normal cash price, which does not include additional charges or element of credit.

17.1.4 The transaction between you and a cardholder is legal and conforms to the laws of South Africa.

17.1.5 The goods and/or services supplied in terms of the transactions are not in conflict with the laws of South Africa or the card network rules. 

17.1.6 There has been full compliance with the terms of the agreement.

17.1.7 You indemnify us against any claim or liability that may arise from a dispute between you and a cardholder about goods and/or services supplied, with the onus being on you to provide satisfactory evidence to us that the cardholder had authorised the debit from their account.

17.1.8 You indeed supplied the goods and/or services referred to in the transactions to the cardholder at the agreed location and within the agreed period.

17.1.9 You have full capacity and authority to enter into and perform your obligations under the agreement in terms of your constitutive documents and applicable law, and are not subject to any legal or contractual restrictions or limitations in this regard.

17.1.10 You have not been induced to enter into the agreement by any prior representations, warranties or guarantees, whether oral or in writing, except as expressly contained in the agreement.

17.1.11 If you are - 

17.1.11.1 a legal person or trust, you are incorporated in terms of the relevant laws of South Africa and registered in line with South African law; or 

17.1.11.2 a natural person, you are a South African citizen and domiciled in South Africa or are a permanent resident of South Africa or a foreign citizen holding the necessary permits and visas to conduct business in South Africa; or

17.1.11.3 a partnership, the majority of the partners are South African citizens and domiciled in South Africa and the main business of the partnership is conducted in South Africa.

17.2 In addition to the other undertakings, you unconditionally and irrevocably undertake to do the following: 

17.2.1 Inform us promptly in writing –

17.2.1.1 of any alterations to your constitutional documents;

17.2.1.2 of any change in the present shareholding or ultimate beneficial control relating to your voting rights;

17.2.1.3 of any other events or circumstances relating to business rescue proceedings in respect of you or your members or by an affected person as set out in the Companies Act, 71 of 2008 (the Companies Act), or at the instance of the court pursuant to a court order starting business rescue proceedings (whether the proceedings are anticipated, threatened or have started), and immediately provide us with the full details of the proceedings; copies of all relevant documents, including applications, notices of meetings and resolutions, and any steps that you are taking or proposing to take in respect of the proceedings; and

17.2.1.4 if you have received notices from the Companies and Intellectual Property Commission (commission’) in terms of sections 22(2) and 22(3) of the Companies Act.

17.2.2 Deliver to us written notice of a board or members’ meeting of yours to approve a resolution as set out under section 129 of the Companies Act within five business days before the date on which it will held, together with the details of the date and place at which the meeting will be held. You agree that we will be entitled to attend the meeting at our discretion. If we attend the meeting, we will have the right, subject to applicable laws, to be consulted in respect of the appointment of an appropriate business rescue practitioner.

17.2.3 Inform us in writing before entering into a merger, a demerger or an amalgamation. On receipt of this notice we may terminate the agreement immediately. 

17.2.4 Comply with section 75 (disclosure of financial interest) of the Companies Act in respect of all agreements you contemplate and, in the event of non-compliance, obtain a ratifying extract from the shareholders.

17.2.5 If applicable, promptly deliver the written notice as set out in section 129(7) of the Companies Act to us. 

17.2.6 Promptly comply with the requirements of section 11(3)(b) (RF companies) and section 13(3) of the Companies Act in respect of any special conditions contained in your memorandum.

18. PROTECTION OF PERSONAL INFORMATION

18.1 If you have access to, store (including in digital form) or communicate (including any digital communication) personal information relating to the data subjects, you must:

18.1.1 treat the personal information as confidential;

18.1.2 not disclose the personal information to any third party, unless we have authorised the disclosure in writing;

18.1.3 ensure that any person who has lawful access to the personal information has signed a legally binding non-disclosure agreement; 

18.1.4 take appropriate, technical and/or organisational measures to ensure the integrity of the personal information and to ensure that it is secured and protected against unauthorised or unlawful processing, accidental loss, destruction or damage, alteration, disclosure or access by – 

18.1.4.1 having regard to any requirement in law or stipulated in industry rules or in codes of conduct or by a professional body; and

18.1.4.2 taking all necessary steps to -

18.1.4.2.1 at least every 12 months identify all internal and external risks to the personal information and provide us with a detailed written audit report within 30 days of having completed your investigations, whether the investigations happen as frequently as every 12 months or more frequently;

18.1.4.2.2 implement and maintain appropriate safeguards against the identified risks;

18.1.4.2.3 regularly verify that the safeguards have been implemented effectively and, where there has been a change of your environment regarding cyber or privacy during the tenure of the agreement, provide a written report to us within two days after the change of that environment; 

18.1.4.2.4 accord the same levels of privacy and confidentiality for a natural person who is the data subject to a juristic person who is the data subject; and

18.1.4.2.5 comply with any audit requirements that we impose in respect of the personal information.

18.2 Notification of a security breach

18.2.1 You must:

18.2.1.1 notify our information officer or the Nedbank relationship manager by sending an email to privacy@nedbank.co.za (as referred to in the Nedbank Group PAIA (Promotion of Access to Information) Manual posted on our website) immediately but within 24 hours of becoming aware or suspecting any unauthorised or unlawful use, disclosure or processing of personal information; and

18.2.1.2 at your own cost take all necessary steps to mitigate the extent of the loss or compromise of the personal information and restore the integrity of the affected information systems as quickly as possible and - 

18.2.1.2.1 give us all the necessary information that we may request pursuant to the security breach and help us meet any regulatory requirements and obligations in respect of the personal information;

18.2.1.2.2 in consultation with us and where required by law notify any legally mandated authority or data subjects; and

18.2.1.2.3 help us (in any format that we may require) comply with any requests for access to personal information from data subjects.

18.3 Permitted processing of personal information

You must process the personal information of data subjects in line with the agreement.

19. CONFIDENTIAL INFORMATION AND DATA SECURITY

19.1 The parties agree and undertake in favour of each other to keep the confidential information confidential, except as permitted (i) by the agreement, (ii) by prior written consent, (iii) by law, or (iv) if the confidential information is in the public domain. The parties will protect each other’s confidential information in the manner of a reasonable person protecting their own confidential information.

19.2 The confidentiality obligations in terms of this clause 19, with respect to each item of confidential information, will start on the date on which the information is disclosed or otherwise received and will endure indefinitely after the termination of the agreement for as long as the confidential information remains confidential.

19.3 Neither party will use or permit the use of the confidential information for any purpose other than for the purpose of the agreement and in particular not to use or permit the use of the confidential information, whether directly or indirectly, to obtain a commercial, trading, investment, financial or other advantage over the other party or otherwise use it to the detriment of the other party. 

19.4 The parties will not copy or reproduce the confidential information by any means without the prior written consent of the disclosing party, it being recorded that any copies of the confidential information will be and remain the property of the disclosing party. The parties may disclose confidential information to attorneys or auditors, provided that the disclosure is reasonably required for purposes of conducting that party’s business activities. The party must then ensure that the recipient of the confidential information maintains the confidentiality.

19.5 Each party will ensure that its employees or contractors engaged in terms of the agreement are under an equivalent obligation of confidentiality to that imposed by the agreement on the parties, and will use commercially reasonable efforts to ensure that no employees or contractors will be in breach of that obligation and that any employee or contractor who is in breach is prevented from continuing the breach.

19.6 In the event that either party is required to disclose the confidential information by law, the party receiving the request to disclose information will:

19.6.1 advise the other party prior to disclosure, if possible;

19.6.2 take steps to limit the extent of the disclosure to the extent that it lawfully and reasonably practically can;

19.6.3 afford the other party a reasonable opportunity, if possible, to intervene in the proceedings; and

19.6.4 comply with the other party’s requests as to the manner and terms of the disclosure.

19.7 You may receive or have access to our confidential information and will therefore adopt appropriate technical and/or organisational security measures to:

19.7.1 prevent any unauthorised person from having access to computer systems processing or storing our confidential information, especially with regard to –

19.7.1.1 unauthorised reading, copying, alteration or removal of storage media;

19.7.1.2 unauthorised data input and unauthorised disclosure, alteration or erasure of our stored confidential information; and

19.7.1.3 unauthorised use of data-processing systems by means of data transmission facilities; and

19.7.2 ensure that authorised users of a data-processing system can access only our confidential information to which their access rights refer;

19.7.3 record which of our confidential information has been communicated, when and to whom;

19.7.4 ensure that our confidential information being processed on behalf of third parties can be processed only in the manner that we or the third party has prescribed;

19.7.5 ensure that, during communication of our confidential information and transport of storage media, the data cannot be read, copied or erased without authorisation; and

19.7.6 design your organisational structure in such a manner as to comply with industry best-practice data protection requirements.

19.8 The security measures set out above must be recorded in a plan and must be presented to us on demand. 

19.9 The content and existence of the agreement constitute confidential information and must be treated as such.

19.10 The obligations in this clause will endure even if the agreement has been terminated.

20. INTELLECTUAL PROPERTY

20.1 The parties to the agreement acknowledge that all intellectual property rights presently vesting in the respective parties at the date of signature of the agreement will continue to vest in those parties.

20.2 The parties undertake not to use one another’s intellectual property in any publication, advertisement, signage, media, circular or similar medium without the written approval of the other party.

20.3 Any intellectual property that we develop during the subsistence of the agreement for purposes of the services as set out in the agreement will vest exclusively with us.

20.4 We grant you a non-assignable and non-exclusive licence to use the service.

20.5 Subject to any intellectual property rights held by any other third parties, we retain all intellectual property and intellectual property rights in and to all intellectual property in connection with the service and specifically to any Scan to Pay logos, the Scan to Pay app, the Merchant Portal and QR codes.

20.6 You may not copy, republish, distribute, adapt, modify, alter, decompile, reverse-engineer or attempt to derive the source code of works or create a derivative of the source code, or otherwise try to reproduce the Scan to Pay app, the Merchant Portal or QR codes, their respective content, including any intellectual property in the content, their respective designs, any updates to the proprietary features and/or any proprietary features in relation to them, or any parts of them.

21. REGULATORS’ AND OUR AUDIT RIGHTS

21.1 We and/or our agents and/or our internal or external auditors will have the right to audit you at any time to determine whether you comply with the agreement. These audit rights include the right of access to systems, procedures and software; vulnerability testing of systems, procedures and software; and inspection of the physical security of your premises. You will offer reasonable assistance and cooperation to us and/or our agents and/or our internal or external auditors for the carrying out of the auditing exercise.

21.2 To the extent that you engage an independent auditor to carry out an audit of your operations, you agree to provide us with the relevant copies of the audit reports of all those audit exercises on request.

21.3 You acknowledge that as a banking group, we have to comply with directives and guidelines from the South African Reserve Bank (SARB), other regulators and the card networks. Accordingly, any of our regulators, including SARB, will have the same audit rights as set out in this clause 21. If a regulator wants to do an audit of you, you must inform us to the extent allowed in law.

22. DISCLAIMER

22.1 We will not accept liability for incorrect transaction details you submit to us.

22.2 We do not guarantee uninterrupted availability of the service.

22.3 We do not accept liability for failed transactions if transactions fail for reasons beyond our control, including a telecommunication connectivity failure.

22.4 We do not warrant that the service will be error-free or that the service will perform to any particular standard.

22.5 You use the service at your own risk.

22.6 If you do not notify us of changes to your contact details, we will not be liable for any loss you may suffer if we cannot contact you or if you do not receive notifications or other documents or information from us.

23. BREACH

23.1 Unless stated otherwise in the agreement, if either party commits a breach of this agreement and fails to remedy it within seven days of written notice, the notifying party will be entitled to terminate the agreement, without prejudice to any rights that the party may have.

23.2 If (i) a causal event (as defined below) occurs in respect of you; or (ii) you do not adhere to applicable laws; or (iii) you breach any term or condition of any licence, authorisation or consent required for the provision of the services, which breach we, at our discretion, consider to be prejudicial or potentially prejudicial to us, we will be entitled to terminate the agreement and/or any transaction document immediately on written notice to you. The termination will be without any liability to us and without prejudice to any claims that we may have for losses against you.

23.3 For the purposes of the agreement, a causal event is:

23.3.1 a compromise, scheme of arrangement or composition by you with any or all your creditors;

23.3.2 your liquidation, whether provisionally or finally, or the start of business rescue proceedings in relation to your business; 

23.3.3 a default or cessation, or a reasonable prospect of default or cessation (as the case may be), of your normal line of business;

23.3.4 the commission of an act or an omission that is an act of insolvency by an individual in terms of the Insolvency Act, 24 of 1936, or the existence of circumstances that would allow for the winding up of your business in terms of the Companies Act and/or in terms of section 68 of the Close Corporations Act, 69 of 1984, as the case may be;

23.3.5 your disposal of a material portion of your undertaking or assets;

23.3.6 any change of control of your business, and this change of control will be accepted to have occurred in circumstances where, subsequent to the start date, any person (whether natural, juristic, or otherwise) acquires the ability, by virtue of ownership, rights of appointment, voting rights, management agreement, or agreement of any kind, to control or direct (directly or indirectly) your board or executive body or decision-making process or management as set out in the Companies Act; or

23.3.7 your conduct or alleged conduct or your association or alleged association to a third party that, at our discretion, could result in reputational risk to us, provided that the causal events will be accepted to be causal events if we consider these events, at our discretion, to be detrimental to you for sound business reasons.

24. TERMINATION

24.1 After expiration of the initial period, you may terminate the agreement on a calendar month’s written notice to us. You will then be responsible for the remaining responsibilities in respect of the services and products that we have delivered and for all losses incurred as a result of your actions and/or omissions.

24.2 We may terminate the agreement (in whole or in part) without cause or incurring liability at any time by giving you at least 30 days’ prior written notice indicating the termination date. Notwithstanding the foregoing, should we deem it necessary to do so we may terminate this agreement with immediate effect.  Our rights in terms of this clause will not be affected by any force majeure event.

24.3 The termination of one annexure will not affect the validity of any other annexure, unless stated otherwise in the annexure. However, all annexures will terminate when the agreement terminates.

24.4 When the agreement terminates, the clauses in the agreement will continue to apply to transactions that you processed on or before the termination date. Termination of the agreement will not affect any rights and/or obligations of the parties that arose in terms of the agreement on or before the termination date. 

25. JURISDICTION

The agreement is governed by the laws of South Africa and all disputes, actions and other matters in connection with it will be determined in line with those laws.

26. LIMITATION OF LIABILITY

26.1 If a breach of any of the provisions of the agreement happens, you will be liable to us for all losses that we have sustained as a result of the breach.

26.2 We will not in any way be liable to you or any third party for any indirect, special and/or consequential losses that you or a third party have sustained.

26.3 Neither party’s direct or indirect liability is limited for fraud or theft by it or its employees, death or personal injury caused by you or your employees or authorised subcontractors or any liability arising from a breach or an indemnity given in respect of a party’s obligations, in relation to confidential information, intellectual property rights and applicable law.

27. FORCE MAJEURE

27.1 No party will be liable to the other for any losses resulting from non-performance of its obligations if and to the extent that the non-performance is caused by events not within the control of that party, provided that the non-performance could not have been prevented by reasonable precautions. ‘Reasonable precautions’ by way of example include making provision for alternative electrical power during temporary electrical power outages so that each party can continue performing its obligations.

27.2 If any event under clause 27.1, at our discretion, substantially prevents performance of the services, we may, at our option: (i) procure the services from another source; or (ii) terminate the agreement or any portion of it without liability. To the extent applicable, the charges payable under the agreement will then be adjusted to reflect the terminated services.

27.3 If either party (invoking party) cannot fulfil any of its obligations in terms of the agreement as envisaged in 27.1 and/or as a result of an act of God, strike, war, riots, fire, flood, legislation, insurrection, sanctions, trade disputes or economic embargo or any similar cause beyond the reasonable control of the invoking party (any event from here is called a force majeure), the invoking party will immediately give written notice of the force majeure to the other party:

27.3.1 specifying the cause and anticipated duration of the force majeure; and

27.3.2 promptly on termination of the force majeure confirming that the force majeure has ended.

27.4 Performance of these obligations will be suspended from the date on which notice is given in terms of subclause 27.3.1 until the date on which notice is given in terms of subclause 27.3.2.

27.5 The invoking party will not be liable for any delay or failure in the performance of any obligation in terms of the agreement or for loss or damage due to or resulting from the force majeure during the period referred to in subclause 27.3 above, provided that:

27.5.1 the invoking party uses and continues to use its best efforts and takes all reasonable steps to perform it obligations and provides the necessary notices as specified in clause 27.3; and

27.5.2 if the force majeure continues for more than 30 days, the other party will be entitled to cancel the agreement on the expiry of the 30 days with immediate effect on written notice. The other party will not be able to claim damages against the invoking party as a result of the delay or failure in the performance of any obligations under this agreement due to or resulting from the force majeure, except as otherwise stated in this agreement.

27.5.3 The provisions of this clause do not derogate our rights in terms of clause 24.

28. DOMICILIA AND NOTICES

28.1 You choose the physical address as set out in the cover page of this agreement as your domicilium citandi et executandi and, for the purposes of giving or sending any notice through electronic communication, the last email address that you have given us. 

28.2 We choose 135 Rivonia Road, Sandown, Sandton, 2196, as our domicilium citandi et executandi and, for the purposes of giving or sending any notice through electronic communication, the last email address that we gave you.

28.3 Any notice addressed to a party at its physical or postal address must be sent by prepaid registered post, delivered by hand or sent by email. 

28.4 Any notice will be deemed to have been given and received as follows: 

28.4.1 If it was posted, seven days after the date it was posted (or on the next business day if no postal services are available on that day).

28.4.2 If it was hand-delivered, on the day of delivery. 

28.4.3 If it was faxed or emailed, on the date of the sending of the fax or email. 

28.5 Regardless of anything to the contrary contained in this clause 28, a written notice or communication that a party actually received will be adequate written notice or communication to that party, even if it was not sent or delivered to its chosen domicilium citandi et executandi or in a way provided for in this clause 28.

29. AMENDMENT TO THE AGREEMENT

29.1 During the term of the agreement we may revise and update it or discontinue or otherwise modify (temporarily or permanently) the services and/or any part of your access to it. We reserve the right to make these changes effective immediately if it is necessary to maintain the integrity and security of the services and related systems, and to comply with the card network rules, legislation, regulations and industry requirements.

29.2 The latest version of the agreement and annexures are available on our website and this version will at all times be the agreement that governs our relationship.

29.3 You are obligated to review any changes to the agreement and must contact us if you require clarity on any of the provisions.

29.4 Material amendments to the agreement will be communicated to you through a telephone call, written notice, statement messages or SMSs.

29.5 If you do not agree to an material amendment, you must inform us in writing or telephonically if you want to terminate the agreement within five days after having received our notice.

29.6 If you do not notify us of your intention to terminate the agreement, your continued use of the services after that will serve as confirmation that you have receive adequate notice of the material amendments and have accepted the amended agreement. All transactions processed after material changes have been made to the agreement will be governed by the amended agreement.

29.7 In the event that additional card acceptance facilities are activated for you, either at your request or our mutual agreement, confirmation will be sent to you in writing by Nedbank.

30. GENERAL

30.1 The agreement, which we may amended from time to time, constitutes the entire agreement between the parties in respect of the subject matter, correctly reflects the intention of the parties and constitutes all arrangements entered into between them.

30.2 A certificate of indebtedness signed by any manager of ours will be regarded as sufficient proof of the particulars included in the certificate for the purposes of provisional sentence, summary judgment or any other purpose.

30.3 No failure, delay, relaxation or indulgence on our part in exercising any power or right conferred on us in terms of the agreement will be a waiver of that power or right, and it will not change or cancel any of the terms and conditions of the agreement.

30.4 Unless expressly stated otherwise, the agreement (in whole or in part), any share or interest in it, or any rights or obligations conferred on you may not be ceded, assigned or otherwise transferred without our prior written consent.

30.5 You acknowledge that, apart from what is recorded in the agreement, we have given no warranty (express or implied) concerning our obligations under the agreement or in respect of any provisions contained in it.

30.6 We will not be liable for any corrupted computer data or vouchers lost in transit, whatever the cause.

30.7 We will be entitled, at our discretion and without notifying you, to consolidate any or all your Nedbank accounts. A partial consolidation will not prevent us from claiming from you any amount excluded in the consolidation.

30.8 We may, for any reason, set off amounts due and payable to us against amounts that we may owe you from any account that you have with us. You must immediately pay to us any net amount that is still payable to us after set-off.

30.9 The terms of the agreement in respect of each part will be accepted as whole, separate, severable and separately enforceable in the widest sense from the rest of the agreement. 

30.10 The parties acknowledge that each clause of the agreement is separate. If a clause is or becomes illegal, invalid and/or unenforceable for any reason, it must be treated as if it had not been included in the agreement. This will not result in the remainder of the agreement being illegal, invalid or unenforceable. 

30.11 The agreement is subject to the card acquiring rules and regulations of the card networks (as amended).