Legal Terms and Conditions
1. WALLETTEC’S STANDARD TERMS AND CONDITIONS OF BUSINESS
In this Agreement, the context clearly indicates a contrary intention, the words herein below defined shall have the meanings assigned to them, and similar expressions shall bear corresponding meanings:
1.2 "activation" means the enabling of the software on the designated system by Wallettec to enable the Merchant to operate the software in terms of this Agreement;
1.3 "Agreement" means collectively the Schedule and these terms and conditions;
1.4 "charges" means the setup fee, monthly service charges, usage charges and any other charges pertaining to the provision of Wallettec services, and other services howsoever described, by Wallettec to the Merchant as detailed in clause 4 from time to time;
1.5 "setup fee" means the charge levied by Wallettec on the Merchant and connection for activating a Merchant’s service;
1.6 "Bank" shall mean the bank or mobile money provider or financial service provider to which Wallettec is sending the transaction for authorization and settlement on behalf of the Merchant;
1.7 "Merchant" means the party whose particulars appear on the Schedule;
1.8 "Wallettec" shall mean Wallettec (Pty) Ltd. Registration Number 2014/012687/07
1.9 "a month" shall mean a period that commences at 0h00 on a particular day (determined by Wallettec from time to time) of a calendar month and shall endure until 0h00 on the same day of the following calendar month.
1.10 "monthly service charge" means the monthly subscription required by Wallettec in consideration for the Merchant’s access to and use of the Wallettec services as detailed in a clause 4 from time to time;
1.11 "Effective date" means the date the Merchant registers and accepts the Wallettec Terms of Business via the Wallettec website or the date specified in the Schedule, whichever is the later;
1.12 "Wallettec services" means any solution made accessible to the Merchant by Wallettec in terms of this Agreement.
1.13 "order" means an order placed by a Merchant to Wallettec as per the Schedule or in any other form approved by Wallettec for the provision and/or installation of tis solutions or services;
1.14 "the Schedule" means the order or application from section of this Agreement and to which these terms and conditions are attached or printed overleaf;
1.15 "Merchant" means that party whose particulars appear on the Schedule;
1.16 "usage charges" means the charges charged by Wallettec to the Merchant for recorded usages of its services, as published in the clause 4 from time to time;
1.17 "transaction" means any transaction concluded between a business merchant and consumer facilitated through the use of the Software.
2 COMMENCEMENT AND TERMINATION
2.1 The Agreement shall commence on Effective Date and except as otherwise provided in the Agreement, and run month to month and continue unless the Merchant files a full calendar month written notice of termination.
2.2 Wallettec reserves the right to terminate this Agreement forthwith on written notice to the Merchant in the event of the bank in terms of which Wallettec is authorized and empowered to give the Merchant access to the Wallettec services being terminated for whatsoever reason.
2.3 Notwithstanding the use of agents or other intermediaries by Wallettec, the order by the Merchant is an offer made by the Merchant to Wallettec and will be considered once received by Wallettec. Wallettec’ s acceptance of the offer (if it does accept) shall be by way of signing this Agreement.
2.4 Wallettec’s set up fee is nonrefundable and will be charged in the month following receipt of the Merchant agreement irrespective of Merchant id being issued.
3 INTERGATION AND WALLETTEC SERVICES
3.1 The order placed by the Merchant on Wallettec is subject to the approval of Wallettec in their sole discretion. If Wallettec does not approve the order, it shall not be under any obligation to the Merchant to give reasons for its decision.
3.2 Wallettec shall utilize its best endeavors to promptly comply with any supply and/or delivery and/or integration requirements recorded in the order, but shall not be liable to the Merchant in the event that such supply and/or delivery and/or installation is delayed or cancelled, for whatsoever reason. Wallettec may in its discretion refer the Merchant to a third party who may undertake the installation in its own name for and on behalf and not as an agent of Wallettec. The Merchant waives all and any claims from whatsoever cause arising against Wallettec or any other party arising out of the provision of its services.
3.3 The Merchant shall be responsible for obtaining all necessary approval and authorities imposed by any competent authority and required for the purpose of any such supply and/or delivery and/or installation, and the Merchant hereby indemnifies Wallettec against any claim or liability suffered by Wallettec by reason of such approval and authorities not having been obtained, whether arising as a consequence of the conclusion or implementation of this Agreement or otherwise.
3.4 The Merchant hereby warrants and undertakes in favor of Wallettec that the Merchant:
3.5 shall not use or allow the Wallettec services to be used for any improper, immoral or unlawful purposes nor in any way which may cause injury or damage to persons or property or an impairment or interruption to the Wallettec services.
3.6 Recognize that no right, title or interest in the software, issued to the Merchant vests in the Merchant.
3.7 No chargeback, refund and/or any other payment return shall be made to the Subscriber/Payer without the Merchant’s prior consent. In case such payment return is made by the authorized third parties’ sole decision without the Merchant’s prior consent, Wallettec shall notify the Merchant in writing about the payment return defining the Subscriber’s ID, the sum of payment return and its reason.
3.8 Wallettec shall notify the Merchant in writing about any kind of fraud defining the Subscriber’s ID, the sum of fraudulent payment and its reason.
3.9 Wallettec shall not be entitled to suspend the acceptance of payments from Payers for the Merchant 's products without prior written notice to the Merchant, with the obligatory explanation of reasons.
4.1 In consideration for the provision of the Wallettec services, and any other services supplied by Wallettec to the Merchant, the Merchant shall affect payment to Wallettec of the applicable charges as detailed in the clause 4.2, and whether or not the Wallettec services have been or are being utilized by the Merchant.
4.2 The Merchant will be liable for the following charges
4.2.1 For a detailed breakdown of the fees please see the Fee Breakdown section.
4.3 You warrant that you understand and agree to the fee structure which can be found in clause 4.2 and you warrant that you understand and agree that all transactions sent to the Wallettec Payment Gateway, whether successful, purchase or refund will be charged.
4.4 Unless varied in the Schedule,
4.4.1 fees will be deducted from the transaction amount in real time. The Merchant will be notified in such cases.
4.5 Notwithstanding the provisions of clause 4.4 Wallettec may at any time on reasonable written notice to the Merchant vary its invoicing and payment procedures and requirements.
4.6 Wallettec shall pass to the Merchant information about funds accepted from Payers in payment for the Merchant's products, and shall do so electronically in the approved formats using the approved communication means and networks.
4.6.1 Within 5 (five) business days of the calendar month immediately following the reporting month, the Wallettec shall submit for the Merchant's approval the Wallettec 's Monthly Report executed in the format stipulated herein (TRANSACTION REPORT FORMAT) with the information about the sum of transactions made in the previous month, the amounts of Wallettec 's fee deducted by Wallettec and the amount of payments due to the Merchant. Wallettec's Monthly Report is sent from Wallettec’s e-mail email@example.com.
4.6.2 Should the Merchant have objections in connection with the Monthly Report, the Merchant shall make them known to Wallettec in writing form within 5 working days.
4.6.3 In case Wallettec fails to submit Monthly Report in the said period of time, the Merchant is entitled to act according to clauses 4.6.1 and 6.5 of the Agreement.
4.6.4 The Merchant is entitled to make the Monthly Report based on its own data according to the format specified in (TRANSACTION REPORT FORMAT).
5.1 Upon receipt of official liquidation instructions via the Wallettec portal, Wallettec shall liquidate the funds upon request via wire transfer. Wallettec shall not cover the prevailing bank transfer fees, but shall make the fees known from time to time, as instructed by their banking partners.
5.2 Automated liquidation can be setup to happen on a weekly basis or a monthly basis.
5.3 If the Merchant changes its listed bank account details Wallettec needs to be notified in writing of the new bank account details.
5.4 Bank transfers can take up to 3 banking days to initiate in the relevant countries.
5.5 Wallettec cannot be held liable for transfer delays caused by the banks or any financial institution or regulatory body within the country the money is being transferred from.
5.6 Wallettec’s system will inform the Merchant’s system about the accepted payment in the transaction currency.
5.7 International Bank transfers will be done in local currency and conversion will be done by the receiving bank. If its requested that the transfer is done in any other currency the Merchant must notify Wallettec in writing. The conversion will be done by the transferring bank and the rate will be presented to the Merchant for approval.
6.1 If the Merchant fails to make any payment in cleared funds within 7 (seven) days of the due date of the invoice, Wallettec may (without prejudice to Wallettec’s other rights or remedies) suspend the Service until all amounts payable to it have been paid.
6.2 Wallettec may at any time, on written notice to the Merchant and in any manner whatsoever, immediately suspend the Merchant’s access to the Wallettec services in the event that the Merchant fails to perform any of his obligations, or breaches any terms of this agreement.
6.3 Wallettec reserves the right to require the Merchant to effect payment of any applicable reconnection charges pursuant to the restoration of Wallettec services suspended in the circumstances contemplated in clause 6.1 and/or 6.2.
6.4 In the event that the Merchant’s access to the Wallettec services is suspended, the Merchant shall still be liable for the monthly service charges during any such period of suspension.
6.5 Notwithstanding any provision of this Agreement, the Merchant shall be entitled to suspend performance of the Agreement in its sole discretion in any of the following cases:
6.5.1 Wallettec fails to submit Monthly Report within the period mentioned in clause 4.4 of the Contract;
6.5.2 Wallettec fails to transfer the amount of payments within 3 banking days after Merchant’s request.
6.6 A Party informs the other party about such suspension and its reason and determines a period to remedy the breach. The Agreement shall be entitled to terminate the Agreement if a breaching party doesn’t cure the breach in the determined time.
7 LIMITATION OF LIABILITY
7.1 Nothing in the Agreement shall exclude or limit the liability of either party;
7.1.1 for death or personal injury resulting from the negligence of that party or its directors, officers, employees, contractors or agents; or
7.1.2 in respect of fraud or of any statements made fraudulently by that party or its directors, officers, employees, contractors or agents.
7.2 Subject to clause 7.1 above, either party shall not be liable to the other party whether in contract (including under any indemnity or warranty), in tort (including negligence), under statute or otherwise for any:
7.2.1 loss of profit;
7.2.2 loss of revenue;
7.2.3 loss of anticipated savings;
7.2.4 loss or corruption of data;
7.2.5 loss of contract or opportunity;
7.2.6 loss of goodwill; or
7.2.7 integration to Wallettec and or other systems or operational costs associated with the Merchant’s use of the Services;
7.2.8 expenses incurred by the Merchant in relation to or in connection with the Merchant’s website and or the content thereon;
7.2.9 costs associated with payment disputes; or
7.2.10 indirect or consequential loss of whatever nature including any loss of a type described in sub-clauses 7.2.1 to 7.2.11 above which could be regarded as indirect or consequential and whether or not reasonable foreseeable, reasonably contemplatable, or actually contemplated by the parties at the time of execution of the Agreement.
7.3 Subject to clause 6 above the parties agree that:
7.4 Wallettec does not accept any responsibility for the accuracy of Transaction Data or any liabilities to the Merchant or other third party for any inaccuracies or misrepresentations contained in the Transaction Data.
7.5 Wallettec will use its best endeavors to procure that the Merchant’s use of the Service will be secure, timely, uninterrupted, error-free and that the Service will meet the Merchant’s requirements. Wallettec does however not represent or warrant that the Merchant’s use of the Service will be secure, timely, uninterrupted, error-free or that the Service will meet the Merchant’s requirements. For the avoidance of doubt, Wallettec does not give any representation or warranty that the Service will alert the Merchant to, avert or prevent occurrences of fraudulent use of payment methods and the Merchant acknowledges that it should obtain insurance against such fraudulent behavior. The Service is provided on an "as is" and "as available" basis and for commercial use only.
7.6 Except as expressly provided in these Terms of Business, all warranties, conditions, representations or other terms implied by statute or common law are excluded to the fullest extent possible by law.
7.7 Any typographical, clerical or other error or omission in any promotional material or other information issued by Wallettec (including information on Wallettec’s websites) shall be subject to correction as soon as practicable.
8.1 If a party ("Defaulting Party") commits any breach of this Agreement and fails to remedy such breach within 10 (ten) business days ("Notice Period") of receipt of written notice requiring the breach to be remedied, then the party giving the notice ("Aggrieved Party") will be entitled, at its option –
8.2 to claim immediate specific performance of any of the Defaulting Party’s obligations under this Agreement, with or without claiming damages, whether or not such obligation has fallen due for performance and to require the Defaulting Party to provide security to the satisfaction of the Aggrieved Party for the Defaulting Party’s obligations; or
8.3 to terminate this Agreement, with or without claiming damages, in which case written notice of the termination shall be given to the Defaulting Party, and the termination shall take effect on the giving of the notice. Neither party shall be entitled to terminate this Agreement unless the breach is a material breach. A breach will be deemed to be a material breach it is capable of being remedied, but is not remedied within the Notice Period; or it is incapable of being remedied or is not remedied within the Notice Period, and payment in money will compensate for such breach but such payment is not made within the Notice Period.
8.4 The parties agree that any costs awarded will be recoverable on an attorney-and-own-client scale unless the Court specifically determines that such scale shall not apply, in which event the costs will be recoverable in accordance with the High Court tariff, determined on an attorney-and-client-scale.
8.5 Both parties shall be entitled forthwith without notice, to terminate this Agreement in the event the other Party is sequestrated, liquidated, or placed under judicial management, whether provisionally or finally, and whether voluntarily or compulsory.
8.6 Without detracting from any of the other provisions of this clause 7, in the event of a breach of any provisions of this Agreement or the Merchant prematurely terminating this Agreement and Wallettec electing to cancel same, the Merchant shall be liable to effect payment to Wallettec of all the monthly service charges which would have been payable to Wallettec in respect of the remainder of the period of this Agreement.
8.7 The Parties shall make every effort to resolve disputes arising out of or in connection with this Agreement. Disputes and disagreements shall be executed in the form of written claims. The receiving Party shall review claims within 10 (ten) business days from their receipt. If the Parties fail to reach agreement, their disputes and disagreements shall be resolved in the jurisdiction of the Cape of Good Hope Provincial Division of the High Court of South Africa.
9 BRAND MANAGEMENT
9.1 The Parties grant each other rights to use each other’s trademarks, service marks, corporate style elements and designs for purposes stipulated herein. The Parties agree to delegate the abovementioned rights to third parties with the prior written consent of the Party-rightholder. Placement of trademarks, service marks, elements of corporate style and designs on websites and in information materials of the Parties requires the prior written approval of the relevant Party.
9.2 This Agreement does not grant the Merchant any rights in connection with the Trademarks (registered or otherwise) of Wallettec
9.3 The Merchant shall not in any manner represent that the Merchant has any proprietary rights in the Intellectual Property.
9.4 Wallettec may change the Intellectual Property which you are permitted to utilize at any time for any reason.
9.5 The Merchant may not use the Intellectual Property in a manner which may place the Intellectual Property at risk of loss or loss of value to Wallettec.
10 WAIVER & SEVERABILITY
10.1 Failure by either party to exercise or enforce any right conferred by the Agreement shall not be deemed to be a waiver of any such rights, nor operate so as to bar the exercise or enforcement thereof or of any other right on any later occasion. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement shall remain in full force and effect.
10.2 Each provision of the Agreement is severable and distinct from the other. If a provision of the Agreement is or becomes to any extent illegal, invalid or unenforceable in any jurisdiction, it shall to that extent be deemed not to form part of the Agreement but shall not affect
10.2.1 the legality, validity or enforceability in that jurisdiction of any other term of the Agreement; or
10.2.2 the legality, validity or enforceability in other jurisdictions of that or any other provision of the Agreement.
11 DATA PROTECTION & CONFIDENTIALITY
11.1 The Parties shall not disclose the conditions of this Agreement to any third parties. The Parties shall not disclose information obtained in the course of performing of this Agreement, including information that constitutes a commercial secret of either Party, the technology of accepting funds in payment, any other information which disclosure may cause losses or damage the business reputation of the Parties. Such information may be disclosed to a third party only with the Parties' mutual consent.
11.2 The Merchant acknowledges and accepts Wallettec may;
11.2.1 disclose information to the Schemes, Acquirers and or 3rd party systems as is required in connection with the processing of these transactions in order to perform fraud checks
11.2.2 Refer to Wallettec’s Privacy Policies for information on data collection and use
12 FORCE MAJEURE
12.1 Neither party shall be liable to the other party or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform any of its obligations, if the delay or failure was due to any cause beyond the party’s reasonable control including (without limitation) flood, fire, acts of terrorism, civil disturbance, acts of any government or authority, revocation of any license or consent, default of any supplier or sub-contractor, failure of any power supply, theft, malicious damage, strike lock-out or industrial action, or the failure of any machine computer data processing system or communication link or by any other circumstance whatever beyond its reasonable control.
13.1 In the event of the Merchant failing to effect payment of any amounts due in terms of this Agreement on due date, without derogating from Wallettec’s rights in terms of clause 7, the Merchant shall be liable to effect payment of interest to Wallettec on the amount at the maximum permissible rate from time to time as set forth in the Prescribed Rate of interest Act 55 of 1975, as amended, or any other applicable legislation.
13.2 All prices and charges in this Agreement are exclusive of Tax and any other applicable tax or duty, the liability for which shall vest with the Merchant.
13.3 The rights and obligations of the Merchant in terms of this Agreement may not be ceded or delegated to any third party. The rights and obligations of Wallettec in terms of this Agreement maybe ceded and delegated by it to any other party without any written notice to the Merchant.
13.4 Wallettec may change the terms and conditions of this Agreement as a result in changes in tax laws, regulations, the terms and conditions of the license issued to the bank and the terms and conditions of any agreement between the bank and any other p arty to this Agreement or circumstances or event similar to the aforesaid. Wallettec shall notify the Merchant of any changes as contemplated herein in writing.
13.5 This Agreement may be modified or amended in writing only. The writing is to be signed by both Parties.
13.6 This document contains the entire agreement between the parties regarding the matters contained herein, and no other warranties, undertakings and/or representations have been made by Wallettec or any purported agent of Wallettec.
13.6.1 No indulgence, leniency or extension of time which Wallettec may show to the Merchant shall in any way prejudice Wallettec or preclude Wallettec from exercising any of its rights in the future.
13.6.2 This Agreement and all matters or disputes arising here from or incidental hereto shall be governed and construed in accordance with the laws of South Africa.
13.7 No alteration, cancellation or variation which the Merchant may be entitled to make to the Schedule shall be of any force or effect unless 60 (Sixty) days written notice of such alteration, cancellation or variation is given to Wallettec.
13.8 At any time during the term of the Agreement, either Party to this Agreement may terminate it unilaterally for any reason or no reason by sending the other Party at least 60 (sixty) days' advance written notice before the expected date of termination. In this case the Wallettec's right to accept payments shall cease on the date when this Agreement is terminated.
13.9 In the event of termination, the Parties shall perform all mutual settlements and payments in full within one month from the date of termination.
13.10 Termination shall not relieve either Party of obligations incurred prior thereto including all payment obligations under this Agreement.
13.11 The Parties shall inform each other in writing about changes to their bank account details, addresses, telephone numbers and other information necessary for performing the Agreement within two business days' time from the date of such changes.
14.1 Wallettec may modify the agreement by giving 30 days’ (or as soon as possible) written notice if the modification is as a consequence of legal regulatory, tax or Scheme changes and or other circumstances reasonably beyond Wallettec’s control.
14.2 Any written notice may be delivered in person or sent by email, post, airmail to:
14.2.1 the Merchant at the address shown in Wallettec’s records as notified by the Merchant from time to time; and
14.2.2 Wallettec at firstname.lastname@example.org or such email address as may be notified to the Merchant from time to time
14.3 Notices shall be deemed duly given 48 hours after posting by first class post (72 hours if second class and airmail), or immediately if delivered in person or if by email or fax then at the time of transmission if within normal business hours failing which the start of the next business day.
14.4 The Merchant agree that Wallettec may act on email notices or instructions which reasonably appear to emanate from the Merchant or Merchant authorized employee or agent.
14.5 For the purposed of this clause 14, "notice" shall include any request, demand, instruction, communication or other document.