PAYMENT PROCESSING SERVICES AGREEMENT
THIS PAYMENT PROCESSING SERVICES AGREEMENT ("Agreement") is entered into by and between the Contracting Entity ePay Swift which shall be hereinafter referred to as "ePay") and the entity applying for Merchants Status on one hand (hereinafter referred to as The Merchant) and the The Merchants Customers on the other.
A. ePay is an Internet-based payment processing service provider pursuant to which ePay facilitates the Merchant in payment processing of all kind of online payment methods as part of the ePay Payment Processing Services (defined below).
B. In addition, ePay will provide an exclusive platform through which the Merchant will facilitate funds flow between themselves and their respective customers. In simple terms, ePay is a payment service provider for the Merchant and its customers.
C. As a condition precedent to entering into this Payment Processing Services Agreement and obtaining the ePay Payment Processing Services, the Merchant agrees to conduct a reasonable KYC vetting of its customers
D. This Agreement sets out the terms and conditions under which the Merchant may utilize the ePay Payment Processing Services.
In this Agreement, unless clearly inconsistent with or otherwise indicated by the context:
A. "Account" means the account that ePay will establish for the Merchant and its approved customers upon this Agreement becoming effective.
B. “Agreement” means this Payment Services Agreement, including all exhibits and other agreements, and documents incorporated herein.
C. “Bank Account” means the bank account from the Merchant customers from which they will be uploading money into their ePay accounts from and/or receive the money they withdraw from their ePay accounts. This will also mean the bank account the Merchant specifies to receive its Payouts.
D. “Customer” means the buyer of the Merchant product or service.
E. "ePay Website" means ePaywift.com/merchant
F. “ePay Payment Processing Services” means the gateway services offered by ePay which provides the Merchant with the software and connectivity required to allow its customers upload funds into their respective ePay accounts using the deposit options provided by ePay for the purpose of sending the said funds to the Merchant ePay account and to receive payments from the Merchant through the said accounts for the purpose of withdrawing into their bank accounts or mobile wallets.
H. “Payout” means the amount due to the Merchant from the Merchant Transactions minus ePay fees or other amounts due to ePay.
I. “Refund” means a refund issued by the Merchant through the ePay system or through the Merchant API access.
J. "Registration Form" means the online form that the Merchant or Customer has to complete in order to open an Account with ePay.
K. "Application Form" means the online form that the Merchant has to complete in order to apply for a Merchant Account through which they can use the ePay Payment Processing Services.
L. "Account upgrade" means the action of giving more account privileges to the users of ePay Website. After a successful registration process, all accounts are accorded “buyer” account. The Merchant on the other hand is required to fill the Merchant Application form. Once the form is approved, the Merchant will be provided a link through which to upload the required documents after which the Merchant account is approved.
3. ACCEPTANCE AND EFFECTIVE DATE
This Agreement, as it may be amended from time to time, becomes effective upon the Merchant acceptance of this Payment Processing Services Agreement by checking the "I Accept" box on the ePay Payment Service Platform upon account registration/signup. The same shall apply for the Merchant Customers.
A. Upon a successful online account registration, ePay will provide a document upload link through which the Merchant will upload the following documents:
1. Clear copy of the company registration certificate or current business license
2. Clear copy of the ID
of 1 (one) Company Director
B. ePay may establish an Account for the Merchant upon completion of the Online Registration Form and prior to the upgrading of the Merchant account to the Merchants status. The Merchant agrees to comply with any and all reasonable requests for further information by ePay.
C. The Merchant authorizes ePay, directly or through third parties, to make any inquiries or take any actions ePay considers necessary to validate the Merchant identity and verify information that the Merchant has provided to ePay.
D. In the event that the Merchant fails to provide additional information, as requested by ePay or ePay is unsuccessful in receiving satisfactory information for ePay to verify the Merchant identity, ePay reserves the right to terminate this Agreement with immediate notice to the Merchant, cease to provide access to the ePay Payment Processing Services, and refuse or rescind any payment by the Merchant Customers.
5. PAYMENT OF FEES
A. Deposited funds by customers will not attract any fees. Withdrawn funds will however attract Transaction fees as per the fees schedule.
6. PAYOUTS, AND RIGHT TO OFF-SET
A. Subject to the terms of this Agreement, ePay will remit funds to the preferred settlement account by the Merchant less any fees owed to ePay by the Merchant under this Agreement.
A. ePay, in its sole discretion, may place a Reserve on a portion of the Merchant Payouts in the event that ePay believes that there is a high level of risk associated with the Merchant business. If ePay places a Reserve on the Merchants Payouts, ePay will provide the Merchant with notice specifying the terms of the Reserve. The terms may require that a certain percentage of the Merchants Payouts are held for a certain period of time, that a fixed amount of the Merchants Payouts are withheld from Payout to the Merchant, or such other restrictions that ePay determines in its sole discretion. ePay may change the terms of the Reserve at any time by providing the Merchant with written notice of the new terms.
B. ePay may hold a Reserve as long as it deems necessary, in its sole discretion, to mitigate any risks related to the Merchant Transactions. The Merchant agrees that it will remain liable for all obligations related to the Merchant Transactions even after the release of any Reserve.
8. RESTRICTED ACTIVITIES, LIMITATIONS ON CUSTOMER TRANSACTIONS AND ON SERVICES
A. In connection with the Merchant use of the ePay Payment Processing Services, the Merchant must confine itself to offering ONLY the Services described on the Merchants Application form to its Customers. In any case, Pornography and and Gambling are strictly forbidden on this platform.
B. ePay may in its sole discretion:
(i) refuse to process Transactions to specific Customers; (ii) limit or restrict Transactions to a minimum amount; (iii) impose limits on the amount or number of Transactions which may be transacted by certain Customers during any time period; (iv) request additional validation information from Customers; (v) refuse to process Transactions to Customers with a prior history of questionable transactions; or (vi) impose certain limits or restrictions on Transactions or Reserves on specific Accounts, either temporarily or permanently, which are more restrictive than limits placed on other Accounts of other Customers;or (vii) hold funds originating from a customer's credit card(s), directly or via a third party like PayPal for a period not less than 14 days before a refund is effected. We do not accept credit card payments.
9. REPRESENTATIONS, WARRANTIES AND UNDERTAKING BY MERCHANT
The Merchant hereby warrants, represents and undertakes that:
A. The Merchant has the full power and authority to execute, deliver and perform this Agreement.
B. The Merchant is duly organized, authorized and in good standing under the laws of the Republic of Kenya and is duly authorized to do business in all other jurisdictions where the Merchant business operates.
C. All information and data the Merchant provides to ePay, or for which it engages a third party to provide to ePay is complete, true, and accurate in all aspects and the Merchant has the right to communicate such information.
D. It is the responsibility of the Merchant to conduct thorough KYC on their customers to ascertain their true identity and most importantly, ascertaining the source of their funds in compliance to the Anti Money Laundering Law of the Republic of Kenya.
E. All instructions/requests in regards to customer account upgrade, transactions or proposed changes of the Merchant related information on the ePay Website will be done in writing from the Merchant email address on ePay website records. The Merchant will therefore be required to sign an email indemnification form.
F. The Merchant conducts a bona fide business and is in compliance in relation to the conduct of its business with all applicable National statutory and legal requirements related to the activities of the business for which the Merchant is using ePay Online Payment Services.
G. The Merchant shall immediately advise ePay of any event of Data Compromise by the Merchant or by anyone on its behalf or under its control.
H. The Merchant shall not refuse to cooperate in a legal investigation or audit that may be required by any Law Enforcement Agency.
I. That the Merchant will not submit any transaction for processing through the ePay website which does not represent a bona fide, permissible Transaction as outlined in this Agreement or which inaccurately describes the product or services being paid for.
10. PRESENTATION OF A TRANSACTION AND VERIFICATION OF INFORMATION
A. The presentation of a Transaction to ePay in term of this Agreement will be a warranty by the the Merchant that: (i) The Merchant has supplied the product or services to the value stated on the receipt/agreement with the Customer; (ii) no fictitious and/or fraudulent Transactions were processed by the Merchant to increase the Merchant cash flow; (iii) the Transaction is not illegal; (iv) the Transaction has been authorized by the Customer; and (v) there has been due compliance with all the terms of this Agreement.
B. If ePay believes that the Merchant Transactions pose an unacceptable level of risk, that the Merchant has breached the terms of this Agreement, or that the Merchant Account has been compromised, ePay may suspend or limit the Merchant ability to use the ePay Payment Processing Services, refuse to process any Transaction, reverse a Transaction, hold the Merchant Payouts, and contact the Merchant Customers to verify Transactions and reduce potential fraud and disputes. ePay will provide the Merchant with advance notice of its actions and resolution steps, unless there is an immediate need to take actions such as a security threat, potential fraud, or illegal activity.
C. The Merchant agrees to collaborate with ePay regarding any monitor or inspection conducted by ePay with respect to proper use of the ePay Payment Processing Services, compliance of this Agreement and any applicable laws. The Merchant shall provide, at no cost to ePay, all assistance reasonably requested in relation to any audit.
D. ePay has the right, but not the obligation, to monitor any activity and content associated with ePay Website and Services. The Merchant hereby consents to allowing ePay representatives to examine the Merchant website and suggest reasonable changes on matters that could contradict or compromise content(s) of this agreement.
E. ePay may report any activity that it suspects is a violation of any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect ePay systems, the Merchant and Customers, or to ensure the integrity and operation of ePay business and systems, ePay may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
F. The Merchant shall retain all records (including reports and/or data) obtained or generated by the Merchant during the course of this Agreement, for a period as required in terms of any applicable law and/or any rules.
12. MERCHANTS PERSONAL INFORMATION, DATA SECURITY COMPLIANCE
A. the Merchant consents to ePay collecting its Personal Information from it and where lawful and reasonable, from public sources for credit fraud and compliance purposes, as well as for the purposes set out below.
B. If the Merchant gives ePay Personal Information about or on behalf of another person, it confirms that it is authorized to: (i) give ePay the Personal Information; (ii) if the Personal Information is of another person, receive any privacy notices on their behalf.
C. With respect to all Customer Data and/or Personal Information that is owned by the Merchant, the Merchant hereby grants ePay a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use Personal Information for the following purposes: (i) providing and improving the ePay Payment Processing Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data and/or Personal Information has been anonymized and aggregated with other Customer Data and/or Personal Information; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with Kenyan laws.
14. TRADEMARK LICENSE AND PUBLICITY
A. ePay hereby grants the Merchant a revocable, non-exclusive, non-transferable license to use ePay trademarks used to identify the ePay Payment Processing Services (the “Trademarks”) solely in conjunction with the use of the ePay Payment Processing Services. Upon expiration or termination of this Agreement, the Merchant will immediately cease all display, advertising and use of all of the Trademarks.
B. The Merchant hereby grants ePay permissions to use the Merchant name and logo in its marketing materials including, but not limited to use on ePay Website, in customer listings, in interviews and in press releases.
15. INTELLECTUAL PROPERTY
A. Other than the express licenses granted by this Agreement, ePay does not grant any kind of right or license to the ePay Payment Processing Services or any Intellectual Property Rights of ePay. Each party shall retain all ownership rights, title, and interest in and to its own products and services and all Intellectual Property Rights therein, subject only to the rights and licenses specifically granted herein. The Merchant shall in no way represent, except as specifically permitted under this Agreement, that it has any right, title or interest in or to the ePay Intellectual Property.
16. CONFIDENTIAL INFORMATION
A. The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the ePay Payment Processing Services or the Merchant and the knowhow, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party.
B. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party obligations under this section or by breach of a third party confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third partys confidentiality obligations; or (iv) is independently developed by the receiving party.
C. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing partys Confidential Information; (ii) not use the disclosing partys Confidential Information in any fashion except to perform its duties hereunder or with the disclosing partys express prior written consent; (iii) disclose the disclosing partys Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving partys internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure.
A. the Merchant agrees to indemnify, defend, and hold harmless ePay, its parent, affiliates, officers, directors, agents, employees and suppliers from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorneys fees and cost of defense) they may suffer or incur as a result of (i) the Merchants breach of this Agreement or any other agreement the Merchant enter into with ePay in relation to the Merchant use of the ePay Payment Processing Services; (ii) the Merchants use of the ePay Payment Processing Services; and/or (iii) the Merchants violation of any applicable law, regulation, or Association Rules and requirements.
18. LIMITATION OF LIABILITY
A. ePay SHALL NOT BE LIABLE TO THE MERCHANT OR A CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ePay PAYMENT PROCESSING SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS, EVEN IF ePay HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. ePay ASSUMES NO LIABILITY FOR THE MERCHANTS FAILURE TO PERFORM IN ACCORDANCE WITH THIS AGREEMENT OR ANY RESULTS CAUSED BY ACTS, OMISSIONS OR NEGLIGENCE OF THE MERCHANT, A SUBCONTRACTOR OR AN AGENT OF THE MERCHANT OR AN EMPLOYEE OF ANY ONE OF THEM, NOR SHALL ePay HAVE ANY LIABILITY FOR CLAIMS OF CUSTOMERS, INCLUDING, BUT NOT LIMITED TO, CLAIMS OF THIRD PARTIES ARISING OUT OF OR RESULTING FROM, OR IN CONNECTION WITH, THE MERCHANTS SERVICES, MESSAGES, PROGRAMS, PROMOTIONS, ADVERTISING, INFRINGEMENT OR ANY CLAIM FOR LIBEL OR SLANDER OR FOR VIOLATION OF COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS.
19. DISCLAIMER OF WARRANTIES
A. THE ePay PAYMENT PROCESSING SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. ePay DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ePay OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ePay OBLIGATIONS.
B. THE MERCHANT ACKNOWLEDGES THAT THE ePay PAYMENT PROCESSING SERVICES ARE A COMPUTER NETWORK BASED SERVICES WHICH MAY BE SUBJECT TO OUTAGES AND DELAY OCCURRENCES. AS SUCH, ePay DOES NOT GUARANTEE CONTINUOUS OR UNINTERRUPTED ACCESS TO THE ePay PAYMENT PROCESSING SERVICES. THE MERCHANT FURTHER ACKNOWLEDGES THAT ACCESS TO THE ePay WEBSITE OR TO THE ePay PAYMENT PROCESSING SERVICES MAY BE RESTRICTED FOR MAINTENANCE. ePay WILL MAKE REASONABLE EFFORTS TO ENSURE THAT TRANSACTIONS ARE PROCESSED IN A TIMELY MANNER; HOWEVER, ePay WILL NOT BE LIABLE FOR ANY INTERRUPTION, OUTAGE, OR FAILURE TO PROVIDE THE ePay PAYMENT PROCESSING SERVICES.
A. The Merchant shall pay, indemnify, and hold ePay harmless from (i) any sales, use, excise, value-added, or similar tax or duty, and any other tax or duty not based on ePay income, and (ii) all government permit fees and similar fees which ePay may incur with respect to this Agreement. Such taxes, fees and duties paid by the Merchant shall not be considered a part of, a deduction from, or an offset against, payments due to ePay under this Agreement.
21. TERM AND TERMINATION
A. The term of this Agreement shall commence on the Effective Date and shall continue on until terminated as set forth herein. The Merchant may terminate this Agreement, without cause, by providing ePay with notice of the Merchants intent to terminate, or by ceasing to use the ePay Payment Processing Services.
B. ePay may terminate this Agreement or suspend services to the Merchant if any of the following occurs: (i) ePay is required by an order from a regulatory body to cease providing services to the Merchant; (ii) ePay believes that the Merchant has breached this Agreement, or is likely to do so; (iii) If ePay determines that the Merchants use of the ePay Payment Processing Services carries an unacceptable amount of risk or (iv) any other legal, reputational, or risk-based reason exists, in ePay sole discretion.
C. In the event that ePay must terminate this Agreement, ePay shall provide the Merchant with written notice as soon as reasonably practicable.
D. After termination by either party as described above, the Merchant shall no longer have access to, and shall cease all use of the ePay Payment Processing Services. Any termination of this Agreement does not relieve the Merchant of any obligations to pay any fees, costs, penalties or any other amounts owed by the Merchant to ePay as provided under this Agreement, whether accrued prior to or after termination.
22. CHOICE OF LAW AND JURISDICTION
A. This Agreement shall be subject to the laws of the Republic of Kenya.
B. The courts of the Republic of Kenya shall have exclusive jurisdiction over all disputes arising in relation to this Agreement.
A. Notices to the Merchant: the Merchant agrees that ePay may provide notices to the Merchant by posting them on ePay Website or emailing them to the Merchant. Notices posted on ePay Website or emailed shall be considered to be received by the Merchant within one (1) Business Day of the time it is posted to ePay Website or emailed to the Merchant.
B. Notices to ePay: Notices to ePay shall be considered valid only if sent by emailing them to the official email address as stipulated in this agreement (support@ePaywift.com). Furthermore the email must originate from the official the Merchant email on the ePay website records.
24. GENERAL PROVISIONS
A. Independent Contractors: The relationship of ePay and the Merchant is that of independent contractors. Neither the Merchant nor any of its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of ePay, nor do they have any authority to bind ePay by contract or otherwise to any obligation. None of such parties will represent anything to the contrary, either expressly, implicitly, by appearance or otherwise.
B. Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.
C. Waiver: No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.
E. Amendment: ePay may amend this Agreement at any time by posting a revised version of it on ePay Website. The revised version will be effective at the time ePay posts it. In addition, if the revised version includes a substantial change, ePay will provide the Merchant with 30 days prior notice of any substantial change by posting notice on ePay Website. If the Merchant does not consent to the updated terms, the Merchant may terminate this Agreement by providing ePay with notice in the manner indicated in this Agreement. If the Merchant provides ePay with termination notice within 30 days of the date of update, then the Merchant current terms and conditions shall apply during this notice period.
F. Entire Agreement: This Agreement sets forth the entire agreement and understanding of the parties hereto in respect to the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.
G. Survival: Any terms which by their nature should survive, will survive the termination of this Agreement.
I. Recording Calls: ePay may, without further notice or warning and in its discretion, monitor or record telephone conversations the Merchant or anyone acting on its behalf has with ePay or its agents for quality control and training purposes or for its own protection.