It is recorded that:
the merchant wishes to market and sell its goods and/or services using the ‘Service’; and the merchant wants to appoint Nedbank as its acquiring bank in order to effect settlement of the purchase of such goods and/or services using the ‘Service’, subject to the terms and the conditions set out below.
1.1 Clause headings are for ease and convenience only and must not be used to interpret the Agreement.
1.2 Words and expressions will bear the meanings assigned to them and related expressions will bear corresponding meanings.
1.3 Any reference to the singular includes the plural and vice versa, any references to natural persons include legal persons and vice versa, and references to any gender include the other genders.
1.4 The validity and interpretation of the Agreement will be governed by the laws of the Republic of South Africa.
2.1 'Amex' means American Express®.
2.2 'AMT' stands for authenticated mobile PIN and means a Card Not Present bank-PIN-authenticated mobile transaction.
2.3 'Business' means the business as you have described on the first page of the Agreement.
2.4 'Card' means a credit or debit card issued by an issuing bank, which will include a Visa, MasterCard and Amex card.
2.5 'Card Scheme’ includes MasterCard, VISA and Amex.
2.6 'Card Not Present' means a Card payment transaction processed without the presence of a physical Card, either by way of a manual entry of Card details or online capture of Card details for E-commerce transactions, in other words where the physical Card has not been swiped, dipped or tapped by means of a reader.
2.7 'Chargeback' means a procedure where an issuer charges a Transaction back to the acquiring bank and subsequently debits you in accordance with the card Scheme rules.
2.8 'Chargeback Fee' means an administration fee that we charge you for processing a Chargeback.
2.9 'Commencement Date' means the date you sign the Agreement.
2.10 'Customer' means the consumer making a purchase from you by using the Service.
2.11 '3D Secure' means an authentication method approved by a Card Scheme that enables the secure processing of payment card transactions in E-commerce.
2.12 'E-commerce' means electronic commerce and includes a transaction performed by means of electronic media in a non-face-to-face environment.
2.13 'Intellectual Property' means any knowhow (not in the public domain), invention (whether patented or not), design, trademark (whether or not registered), software or copyright material (whether or not registered), processes, process methodology (whether patented or not), and all other identical or similar intellectual property as may exist anywhere in the world that is not in the public domain and any applications for registration of such intellectual property.
2.14 'Intellectual Property Rights' means, in relation to any Intellectual Property, all and any proprietary rights thereto, or any other right, title, authority or entitlement held by any party in respect thereof, whether under licence or otherwise.
2.15 'MasterPass' means Nedbank MasterPass™.
2.16 'M-commerce' means an E-commerce transaction performed through wireless and/or mobile electronic media.
2.17 'Merchant Device' means a point-of-sale (POS) device, mobile phone or tablet.
2.18 'Merchant Portal' means the NedPay website that you can access, among other things, to check Transactions and access reports.
2.19 'Payment Amount' means the amount the Customer will pay you for the goods and/or services you sell to him.
2.20 'Personal Information' means identification documents, business registration documentation or tax documents, your Transaction information as well as information relating to you or an identifiable, living, natural person, which includes, but are not limited to, any identifying number, symbol, email address, physical address, telephone number, location information, online identifier or other particular assignment to the person and the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person.
2.21 'Process' means any operation or activity or any set of operations, whether or not by automatic means, concerning Personal Information, including:
2.21.1 the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation or use of information;
2.21.2 the dissemination by means of transmission, distribution or making available in any other form of information; or
2.21.3 the merging, linking, as well as restriction, degradation, erasure or destruction of information.
2.22 'QR Code' means a Quick Response Code generated to enable you to process Transactions. It is a machine-readable code consisting of either an array of black and white squares or a linked numeric code, typically used for storing URLs or other information. The QR Code can be a Static QR Code or a Dynamic QR Code:
2.22.1 'Static QR Code' means a QR code that has a predetermined value or will allow the Customer to input a value; and
2.22.2 'Dynamic QR Code' means a QR code that is linked to specific purchases.
2.23 'Service' means this product we provide to you, which allows you, through the System, to receive Payment Amounts from Customers using Money Message.
2.24 'Smart Device' means a compatible electronic device operated by the Customer, including a smartphone or tablet.
2.25 'System' means the system that belongs to us that provides the functionality for the Service and includes the Merchant Portal.
2.26 'Transaction' means a monetary transaction in terms of which you accept payment of the Payment Amount through the MasterPass App and the Service.
2.27 'URL' means a Uniform Resource Locator and is a reference (an address) to a resource on the internet.
2.28 The words 'we', 'us' and 'our' mean Nedbank Limited (Reg No 1951/000009/06).
2.29 Nedbank Limited (Reg No 1951/000009/06) operates as American Express Cards under licence in South Africa.
2.30 'Website' means pages on the internet belonging to you and holding your information.
2.31 The words 'you' and 'your' mean the merchant reflected on the first page of the Agreement.
3. The service
3.1 Customers will use scan a QR Code or pay via a secure url through the platform to perform a Transaction.
3.2 The Service will automatically accept Payment Amounts from compatible Visa, MasterCard and Amex-issued Cards.
3.3 All Service Transactions will be authenticated either by 3D Secure, AMT or another accepted authentication method.
4.1 The Agreement will come into force on the Commencement Date and will remain in force until terminated, for any reason, by either party on 30 days' written notice.
4.2 We may suspend the Service or terminate the Agreement immediately for regulatory or statutory reasons.
4.3 Termination of the Agreement will not affect any obligations or rights of either party existing before or on the date of termination.
5.1 If you breach or otherwise default on any obligations in terms of the Agreement, we will give you 5 (five) days' written notice to remedy such breach. If you fail to comply within 5 (five) days, or if you are unable to remedy the breach, we will be entitled either to suspend the Service or to terminate the Agreement without further notice. Alternatively, we may insist on immediate performance and/or payment from you of all obligations or amounts you owe us under the Agreement, without prejudice to any other legal rights we may have, including the right to claim damages.
5.2 If you are non-compliant with any Card Scheme rules, act illegally in any manner, do not pay any amount as specified in Annexure A hereto, submit high levels of fraudulent Transactions or Chargebacks, breach any Intellectual Property Rights or protection of Personal Information obligations as set out in the Agreement, commit any act of insolvency or effect a compromise or composition with creditors, or if a creditor institutes insolvency proceedings against you, we will have the right to suspend the Service and/or terminate the Agreement immediately.
6. Your rights and obligations
6.1 You agree to conclude Transactions in compliance with the terms and conditions of the Agreement and in a manner that complies with all laws, rules and regulations.
6.2 You specifically agree to comply with all Card Scheme rules. Should your chosen Service require the use of a Merchant Device, you must procure a compatible Merchant Device and you will be responsible for paying any associated costs in relation to the Merchant Device.
6.3 You must, at your own cost, provide telecommunication connectivity and data to facilitate the Service and you are liable for any data costs you need to incur to be able to use the Service.
6.4 You must check all Transaction details and Transaction reports and notify us of any alleged discrepancies immediately when you become aware of the discrepancies, but no later than 30 (thirty) days of the date of the relevant Transaction(s).
6.5 You may only Process Customers' Personal Information in compliance with all laws and regulations and you specifically agree not to Process Customer Personal Information unless you obtain the Customer's consent.
6.6 You may not sell, store, provide, exchange or divulge any Customer Personal Information.
6.7 You undertake to display all promotional material we supply to you, indicating that you accept MasterPass Transactions, and to replace or remove such material immediately when we request you to do so.
6.8 We may require you to offer certain rewards to Customers at our cost and on our behalf, and you agree to cooperate with us fully in order to implement these rewards offerings and any associated campaigns.
6.9 You may not charge more than your normal cash price for the goods and/or services in order to subsidise any fees or costs you may incur when processing Transactions.
6.10 You may reverse a Transaction, but it is not possible for you to process a refund.
6.11 You may not cede, assign or otherwise transfer any rights or obligations conferred on you by virtue of the Agreement, and you specifically agree that you will not allow another merchant to make use of the Service at any time.
6.12 You must notify us if your contact or banking details change.
6.13 You may not change your Nominated Bank Account without first giving us 7 (seven) days' written notice.
6.14 You agree that you will always be responsible for the actions of your employees, in other words if your employee uses the Service to commit fraud, you will take responsibility for the consequent losses.
6.15 You may communicate with us through the Merchant Portal.
6.16 You must ensure that you operate the Merchant Portal with the necessary skill and care, and not allow any unauthorised persons to access the Merchant Portal.
6.17 Should we introduce new capabilities to the Service or Merchant Portal, you undertake to operate these in a diligent manner with the necessary skill and care.
7. Your personal information
7.1 To use the Service you must provide us with the Personal information we request from you when you apply for the Service or any other Personal Information we may request from you from time to time. If you do not or cannot provide us with any required Personal Information, we may suspend or terminate your account immediately. We may delay settlement of any Transactions until we have received all documentation we require from you.
7.2 You authorise us to:
7.2.1 take all steps as we may deem necessary to verify the Personal Information you submit to us;
7.2.2 retain and process any Personal Information you provide to us;
7.2.3 furnish any confidential information relating to any account operated by you with us for any reason to any person (including, without limitation, any credit bureau) in accordance with generally accepted banking practice; an
7.2.4 visit your business premises if and when necessary.
7.3 You give us consent that we may share your Personal Information with any third parties to render the Service to you.
7.4 You grant us consent to disclose your Personal Information to any Card Scheme, card issuer and other financial institution for use in any fraud prevention schemes.
7.5 You also grant us consent to disclose your information to the Member Alert to High-Risk System and to the Merchant Performance Reporting Service for the purpose of helping us and other card issuers to identify merchants who are, or are suspected of being, or are likely to become, involved in fraud or in any other fraud prevention matter.
8. Your business
8.1 You undertake to accept Cards in payment for goods and/or services relating only to the Business, which goods and/or services may not be sold or produced outside the Republic of South Africa and may not be sold or produced in contravention of any common-law, statutory or regulatory provision. You must notify us in writing within 3 (three) working days if there is any change in the nature of your Business or in the ownership of your business.
8.2 In the event of such changes, irrespective of any clause to the contrary in the Agreement, we will be entitled to:
8.2.1 terminate the Agreement immediately without giving notice or reasons; or
8.2.2 continue with the Agreement, subject to any amendments that we consider appropriate, including our right to re-sign the necessary documents and agreements, and reassess you.
9. Use of the service for transactions through your website
9.1 You may choose to use the service to accept Transactions on your Website.
9.2 Your Website must contain all necessary details to enable Customers to make an informed decision when making a purchase, including:
9.2.1 a comprehensive description of the goods or services on offer;
9.2.2 comprehensive details of return and refund policies;
9.2.3 customer service contact details, including email address and telephone number;
9.2.4 the total price of the goods or services on offer, including any relevant taxes and delivery charges (all prices quoted must be in South African rand);
9.2.5 a disclosure to the Customer that you, not the supplier of the goods or service, are the merchant of record and responsible for fulfilment of the Transaction; and
9.2.6 your full name and online address.
9.3 You must notify the Customer that you are responsible for transactions, products and services, direct customer service, the resolution of disputes and all terms and conditions of sale.
9.4 You confirm that the URL reflected on the first page of this Agreement is your current URL and you must inform us in writing within 3 (three) working days if you change this URL.
9.5 You must comply with all applicable laws regarding import and export transactions performed over the internet.
9.6 You will be responsible for paying any charges or additional charges levied by Telkom or other government/non-government body authorised to control any connections that your infrastructure needs to function properly.
9.7 You agree to implement security standards in the manner we prescribed.
9.8 We will not be party to any dispute between you and any service provider you appoint to establish your internet infrastructure.
9.9 We will also not be liable for any damage you suffer as a result of any failure or malfunction of this infrastructure.
9.10 We will not be liable for damage caused by a network breakdown, system failure or equipment malfunction, or by the destruction of or damage to facilities caused by power failures or similar occurrences. We will also not be liable for loss or damage caused by events beyond our control and/or the fact that you are unable to gain access to your infrastructure or to use it.
10. Our rights and obligations
10.1 We will provide you with access to the Merchant Portal, QR Code(s) and necessary promotional material, subject to our Intellectual Property Rights.
10.2 We will process Transactions that purportedly come from you, and we will collect, analyse and relay information generated in connection with Transactions.
10.3 We reserve the right to hold back Transactions and we reserve the right to decline any authorisation, without giving any explanation or reason therefore.
10.4 We may monitor your Transactions and may suspend or close the Service if there is a high level of Transaction Chargebacks or suspected fraudulent activity.
10.5 We reserve the right to levy a charge, the percentage of which will be determined with reference to the fraud basis points generated by the Card Schemes, and which will be debited to your Nominated Bank Account.
10.6 Should fraudulent transactions account for more than 8% (eight percent) of your sales turnover in any month, we will be entitled to review the Agreement, suspend the Service or terminate the Agreement without prejudice to any other rights that we have.
10.7 We have the right to debit your Nominated Bank Account.
10.8 We may impose Transaction limits at any time.
11.1 Any Transaction may be charged back to you by reason of:
11.1.1 a Customer dispute;
11.1.2 a Transaction reversal;
11.1.3 actual or suspected lack of authorisation;
11.1.4 unlawful or suspicious Transactions; or
11.1.5 Transactions processed outside the terms of the Agreement.
11.2 It is your responsibility to request Transaction information from us if a Customer disputes a Transaction or raises a Chargeback.
11.3 You will be liable to us for the full amount of the Chargeback amount as well as any associated fees, penalties and charges.
11.4 We will debit the Transaction amount from your Nominated Bank Account or any other bank account holding sufficient credit in your name.
11.5 We may hold the Transaction amount in advance for potential Chargebacks until the Chargeback process has been completed.
11.6 You agree that you will assist us to investigate any Transactions and that we will share Personal Information with the relevant Customers, Issuers, financial institutions and regulators as required to investigate a Chargeback.
11.7 You agree and accept full Chargeback liability for all fraud incurred on any Card at your establishment, whether or not the Chargeback is regarded as a result of fraudulent Card usage.
12. Fees and settlement
12.1 We will deposit all Payment Amounts into your Nominated Bank Account.
12.2 Deposits into the Nominated Bank Account will be regarded as payment of money into this account only once each Transaction has been honoured.
12.3 We are entitled to charge the merchant commission, fees and charges that are provided for in Annexure A.
12.4 We will bill you monthly for amounts specified in Annexure A and you will be liable for and must pay us these amounts on a monthly basis.
12.5 We will, at our sole discretion, determine the commission, fees and charges. These may be revised from time to time, and we will notify you thereof, which notification may be included in, but will not be limited to, a letter, statement message or a statement insert.
12.6 We reserve the right to levy other fees at any time, but will notify you 1 (one) month before they become applicable.
12.7 All amounts specified in Annexure A will exclude VAT and are payable free of any deductions or setoff.
12.8 We will keep a record of Transactions and you will have access to Transaction records through the Merchant Portal.
12.9 We will provide you with a statement reflecting the merchant commission, fees and charges debited or any other amount credited to the Nominated Bank Account.
12.10 If we do not provide you with such a statement from time to time, this will not constitute a waiver of our right to claim the commission, fees or charges concerned.
12.11 You must query any payment that does not reflect in the Nominated Bank Account within a period of 7 (seven) days of the date of settlement.
12.12 We reserve the right to withhold settlement of Transactions while investigating potential irregularities.
12.13 We reserve the right to net-settle your account at our sole discretion. 'Net-settle' means the Transaction value less the fees.
12.14 You hereby acknowledge and agree that we will be entitled to debit the Nominated Bank Account with all the amounts specified in the Agreement for a period of not more that 180 (one-hundred and eighty) days from the date of cancellation of the Service.
13. Intellectual property
13.1 We grant you a non-assignable and non-exclusive licence to use the Service.
13.2 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 MasterPass logos, the MasterPass App, Merchant Portal and QR Code(s).
13.3 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 thereof, or otherwise attempt to reproduce the MasterPass App, Merchant Portal and QR Code, their respective content, including any Intellectual Property therein, their respective designs, any updates to the proprietary features and/or any proprietary features in relation to them, or any parts of them.
14.1 We will not accept liability for incorrect Transaction details you submit to us.
14.2 We do not guarantee uninterrupted availability of the Service.
14.3 We do not accept liability for failed Transactions if Transactions fail for reasons beyond our control, including, but not limited to, a telecommunication connectivity failure.
14.4 We do not warrant that the Service will be error-free nor that the Service will perform to any particular standard.
14.5 You use the Service at your own risk.
14.6 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.
15.1 You indemnify us against:
15.1.1 all losses, liabilities, damages or expenses that we may sustain or incur as a result of, or attributable to, any claim instituted by anyone in connection with your act(s) or omission(s) in terms of the Agreement or in connection with our act(s) or omission(s) relating to the Agreement, unless the claim arose as a direct or indirect consequence of our gross negligence or wilful misconduct;
15.1.2 any liability arising from any dispute you may have with a Customer in respect of any goods and/or services you sell the Customer using the Service;
15.1.3 any claim by a Customer pertaining to your use of the Customer's Personal Information;
15.1.4 all claims, expenses and other liabilities suffered or incurred by us as a result of any third-party claims initiated and/or instituted against us relating to your unauthorised use of Intellectual Property.
16. Service of notices and legal process
16.1 The parties choose their respective physical addresses furnished on the first page of the Agreement, or such other address as either party may notify to the other in writing, as domicilia citandi et executandi (the address at which each party must serve legal notices).
16.2 All notices to be delivered in terms of the Agreement must be in writing and delivered by hand and will be regarded as having been received on the date of delivery.
17.1 The Agreement, as we may amend it from time to time, constitutes the entire agreement between the parties in respect of the subject matter.
17.2 We may add to, amend or replace all or any of the terms and conditions of the Agreement by giving notice thereof. We will communicate any amendments to you by email and will use the email address you provide to us on the Agreement application form. If you do not agree to the amendments so communicated to you, you may, subject to any outstanding obligations you may have and subject to the terms of the Agreement, terminate the Agreement by giving us notice to that effect. If you do not terminate the Agreement, you will be deemed to have accepted the amendment(s) or new terms and conditions.
17.3 A certificate of indebtedness signed by our authorised manager will be regarded as sufficient proof of the particulars included in it for purposes of provisional sentence, summary judgment or any other purpose.
17.4 No failure, delay, relaxation or indulgence on our part in exercising any power or right conferred on us by the Agreement will operate as a waiver of such power or right, nor will it change or cancel any of the terms and conditions of the Agreement.
17.5 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.
17.6 The terms of the Agreement will, in respect of each part, be deemed to be entire, separate and severable and separately enforceable in the widest sense from the rest of the Agreement.
17.7 Should any provision of the Agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of the Agreement will continue to be of full force and effect.
17.8 The Agreement is subject to the rules and regulations of the Card Schemes relating to card acquiring procedures, as amended from time to time.
17.9 You confirm that you have read the terms and conditions of the Agreement and that you understand them and that the Agreement correctly reflects our intentions and constitutes all arrangements entered into between us.
17.10 If the Agreement is in conflict with another acquiring agreement you have with us, the terms of the Agreement will be subordinate
MERCHANT COMMISSION/TRANSACTION FEE/ADMINISTRATION FEE/OTHER FEES
The merchant commission (MSC) payable by the merchant to Nedbank for card Transactions processed using the Service will be an amount equal to 2.75 % of the aggregate daily transfers to the nominated bank account. An additional fee of R2 will apply for each “Request to Pay” (RTP).
Nedbank reserves the right to vary the MSC and transaction fee and any other fees provided for in the agreement on written notification to the merchant, which notification may be included in but will not be limited to a letter, statement message or a statement insert.