This pawaPay terms and conditions includes this introduction, the General Terms, Definitions, and incorporated pricing and settlement service level agreements (the "Agreement”) and forms a legal agreement among Payments Techco OÜ (“PT”, “pawaPay” or “we”); the Payment Providers; and the entity or sole proprietor on whose behalf the pawaPay account is created (“you”, “your” or “Merchant”) to receive the Services or any other business services offered by us and our Payment Providers.
The Payment Providers are party to this Agreement for the purposes of (a) providing the Services in the Territories (as Section 2.1 of the General Terms describes). Each reference in this Agreement to “us” or “we” means PT, except to the extent that the reference relates to providing Services, in which case the words means the relevant Payment Provider. This Agreement states the terms and conditions that apply to your use of our service. This Agreement is effective upon the date you first access or use the Services (“Effective Date”) and continues until you or pawaPay terminates it (this period, the “Term”). Capitalised terms used in this Agreement that are not defined inline are defined in the Definitions.
You and pawaPay agree as follows:
1. Your pawaPay Account.
1.1. Eligibility. Only businesses (including sole proprietors) and non-profit organisations located are eligible to apply for a pawaPay Account and use the Services. You and your Representative must not attempt to create a pawaPay account on behalf of or for the benefit of a user whose use of the pawaPay Services was suspended or terminated by pawaPay, unless we approve otherwise.
1.2. Business Representative. You and your Representative individually affirm to us that: your Representative is authorised to open your account on your behalf and to bind you to this Agreement; andyour Representative is ana director, chief executive officer,senior manager or otherwise has significant responsibility for the control, management or direction of your business, whether Merchant or Merchant Affiliate.. We may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority. With respect to 2.3 below, you confirm to us that where any new jurisdiction is added, your Representative in that jurisdiction will agree to these terms of service.
1.3. Sole Proprietors. If you are a sole proprietor, you and your Representative also affirm that your Representative is personally responsible and liable for your use of the Services and your obligations to Customers, including payment of amounts you owe under this Agreement.
1.4. Age Requirements. If you are a sole proprietor, and you are not old enough to enter into a contract on your own behalf (which is commonly but not always 18 years old), but you are 13 years old or older, your Representative must be your parent or legal guardian. If you are a legal entity that is owned, directly or indirectly, by an individual who is not old enough to enter into a contract on their own behalf, but the individual is 13 years old or older, your Representative must obtain the consent of either your board or an authorised officer. The approving board, authorised officer, parent or legal guardian is responsible to pawaPay and is legally bound to this Agreement as if it had agreed to this Agreement itself. You must not use the Services if you are under 13 years of age.
2. Services and Support.
2.1. With effect from the Effective Date, we shall provide you the Services, either directly or indirectly via our Payment Providers, in the Territory. In all cases, Payments Techco shall be responsible and liable for the acts and omissions of each Payment Provider (including its employees) to the same extent as if such acts or omissions were by Payments Techco or its employees and shall be responsible for all fees and expenses payable to any Payment Provider.
2.2. The Payment Provider shall hold the funds paid by the End User to the Merchant for the relevant goods and services, in the Payment Provider Wallet, then funds will flow into the Payment Provider’s bank account.
2.3. In the event that you require our Services in a new jurisdiction, if a new entity is required in that jurisdiction, the new entity shall be bound by these Terms and Services.
3.1. The Merchant will pay Payments Techco on agreed pawaPay fee:
3.1.1. A fee for collections from End User mobile money wallets and reflected in the Payment Provider Wallet (the "Collection Fee"); [and/or]
3.1.2. A fee for disbursements and refunds processed from the Payment Provider Wallet to End User wallets (the "Disbursement Fee");
(The Collection Fee and the Disbursement Fee together represent the "[pawaPay Fee] pawapay.io/fees"].
3.2. Payments TechCo shall deduct the pawaPay Fee on a transaction by transaction basis in local currency. Payments Techco shall convert the disbursement fee into local currency using the Google finance rate applicable on the last day of the month preceding the month the price is to be applied. The local currency pricing will be rebased monthly.
3.3. Where pawaPay invoices for the pawaPay fee is in Euros, the exchange rate applied will be the exchange rate available on the google finance platform on the last day of month preceding the month being billed for.
3.4. Where the merchant is being settled in foreign currency, pawaPay shall apply a spread on the exchange rate applied when converting the merchant’s local currency to the foreign currency.
3.5 The Merchant hereby acknowledges and agrees that all pawaPay fees are exclusive of VAT, duties, levies, or any similar charges that may be applicable.The Merchant hereby acknowledges and agrees that the pawaPay fees are net of any Tax. Where the Merchant is required to account for any Taxes on the fee, the Merchant will gross up the pawaPay fee accordingly.
3.6. The Merchant hereby acknowledges and agrees that it shall bear and pay any and all Taxes due and payable under Applicable Law by the Merchant in the Territory to the relevant Tax Authority. Payments Techco shall not assume any obligation to pay any of the Merchants Taxes within the Territory.
3.7. The Merchant agrees that Payments Techco may increase its prices periodically to counter inflation. The Merchant shall be notified in writing at least a month in advance.
4. Costs and Expenses
4.1. Any fees incurred by the Payment Providers under the MNO Contracts relating to the Services being provided by Payments Techco shall be charged at cost against the Payment Provider Wallet Pass Through Fees. The current Pass Through Fees per market can be found here.
4.2. The Merchant agrees that the Pass Through Fees may be deducted from the relevant Payment Provider Wallet as they are incurred.
4.3. The bank charges relating to the final settlement shall be borne by the Merchant.
5. Payments Techco Obligations
5.1. Payments Techco shall:
5.1.1 provide the Services.
5.1.2 provide reasonable cooperation with the Merchant in all matters relating to the Services, and comply with the Merchant’s reasonable and lawful instructions;
5.1.3. follow its archiving procedures for End Users data in accordance with its internal policies and applicable regulation. In the event of any loss or damage to End Users data, the Merchant’s sole and exclusive remedy against Payments TechCo shall be for Payments TechCo to use reasonable commercial endeavours to restore the lost or damaged End Users data from the latest back-up of such End Users data maintained by Payments TechCo in accordance with its archiving procedure. Payments TechCo shall not be responsible for any loss, destruction, alteration or disclosure of End Users data caused by any third party (except those third parties sub-contracted by Payments TechCo to perform services related to End Users data maintenance and back-up for which it shall remain fully liable);
5.1.4. ensure the maintenance, during the Term, of all necessary licenses and consents required for Payments Techco or the Payment Providers (as the case may be) to provide the Services and comply with all Applicable Laws, and, if requested by the Merchant, provide copies of such licenses and consents;
5.1.5. ensure that the Merchant is settled within the settlement SLAs detailed in and into the bank account specified by the merchant in the onboarding;
5.1.6. not knowingly do or omit to do anything which may cause any member of the Merchant Group to lose any license, authority, consent or permission on which it relies for the purposes of conducting its business;
5.1.7. notify the Merchant in writing immediately upon the occurrence of a Change of Control of Payments Techco or any of its Payment Providers;
5.1.8. notify the Merchant immediately if it becomes aware of any event which may cause delay to the delivery of the Services;
5.1.9. ensure that the Payments Techco Relationship Manager, if one is appointed, liaises directly with the Merchant Key Contact or as the Merchant Key Contact instructs in writing.
5.2. This Agreement shall not prevent Payments TechCo from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
6. Merchant’s Obligations
6.1. Merchant shall:
6.1.1. cooperate with Payments Techco and Payment Provider in all matters relating to the Services;
6.1.2. appoint a key contact person at Merchant to liaise with the Payments Techco Relationship Manager in respect of the Services (the “Merchant Key Contact”);
6.1.3. notify Payments Techco in writing immediately upon the occurrence of a Change of Control of the Merchant;
6.1.4. notify Payments TechCo in writing immediately upon the occurrence of a change in any of the information provided in the know your client form or in any of the supporting documents submitted during the onboarding process;
6.1.5. notify Payments Techco in writing immediately upon change of the bank account details provided.
6.1.6. comply with Data Privacy Laws;
6.1.7. in compliance with the ABC Laws in the Territory, operate an effective and robust AML/CTF compliance programme;
6.1.8. identify the End User and verify the End User’s identity using reliable, independent source documents, data or information;
6.1.9. upon request of Payments Techco or the Payment Provider (as the case may be) provide Payments Techco or the Payment Provider (as the case may be) with all documents necessary to enable Payments Techco or the Payment Provider (as the case may be) to perform its Know Your Client verification checks;
6.1.10. ensure the quality and stability of its own systems and connection to the Payments Techco API are suitable;
6.1.11. respond to all fraud enquiries not later than 1 (one) Business Day in the relevant country in the Territory of receipt of such enquiry;
6.1.12. except as may be allowed by any Applicable Law and except to the extent expressly permitted under this Agreement, the Merchant shall not:
6.1.12.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
6.1.12.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
6.1.12.3. access all or any part of the Software in order to build a product or service which competes with the Services being provided by Payments Techco; or
6.1.12.4. use the Software to provide services to third parties; or
6.1.12.5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party except the permitted users, or
6.1.12.6. attempt to obtain, or assist third parties in obtaining, access to the Software; or
6.1.12.7. introduce or permit the introduction of any virus or vulnerability into Payments Techco’s network and information systems;
6.1.13. ensure that its products do not include, either in whole or in part, any goods, services or other products which are unlawful, in contravention with any Applicable Law or otherwise listed on any MNOs prohibited products list, which list shall be made available to the Merchant;
6.1.14. comply with the MNOs processes for accepting and processing payments that a MNO may prescribe from time to time;
6.1.15. comply with the MNO’s branding guidelines which will be made available to the Merchant;
6.1.16. not;
6.1.16.1. impose surcharges or other such additional charges on an End User in relation to a transaction; or
6.1.16.2. impose terms on an End User in relation to a payment which are in Payment TechCo’s reasonable opinion less favourable than the terms applicable to other similar payment methods or payments accepted by other merchants, including in respect of the terms applicable to reversals;
6.1.17. ensure that it maintains appropriate records including receipts for a period of six (6) years from the date of each transaction (or any other period as required under Applicable Law) providing the following information:
6.1.17.1. the date and time of each payment or reversal; a transaction; or
6.1.17.2. the payment or reversal amount and currency;
6.1.17.3. the related products or service sold; and
6.1.17.4. details of the location or site for the sale and the Merchant ID;
6.1.18. accept, acknowledge and agree that any of the records kept in accordance with sub-clause 6.1.22 must be provided within one (1) Business Day to the MNO upon their reasonable request;
6.1.19. transfer sufficient start up funds to the relevant MNO Wallet to enable the Services to be carried out by Payments Techco or the relevant Payment Provider (as the case may be); and
6.1.20. provide Payments Techco, as reasonably requested, timely and accurate forecasting of future traffic volumes, including peak hour (burst), weekly, monthly and quarterly volumes on a per mobile network operator basis.
7. Anti-Money Laundering
7.1. Each of the Parties shall be responsible for implementing and shall implement such policies, procedures or internal controls (including know your client and anti-money laundering measures) as are reasonably necessary to ensure compliance with its legal and regulatory obligations in connection with the delivery and receipt of the Services. Neither Payments Techco nor any of the Payment Providers shall be obliged to provide the Services if they are not satisfied with any such policies, procedures or controls or the implementation thereof by the Merchant under such legal and regulatory obligation.
7.2. Upon request, the Merchant shall provide to Payments Techco or the relevant Payment Provider (as instructed by Payments Techco) with such information and reasonable assistance as may be necessary for Payments Techco or the relevant Payment Provider (as the case may be) to comply with its legal or regulatory compliance obligations, subject to applicable privacy, confidentiality and other laws.
7.3. Without limiting the foregoing, and subject to Applicable Laws, the Merchant shall share and provide Payments Techco or the relevant Payment Provider (as the case may be) access to information to facilitate its anti-money laundering efforts (including information regarding patterns, remitters, beneficiaries in the Service, suspicious transactions and policies, procedures, audits and internal controls).
8. Term and Termination
8.1. The Services shall be provided by Payments Techco from the Effective Date and shall continue in force until terminated in accordance with the terms of this Agreement (the “Term”).
8.2. Either Payments Techco or the Merchant may terminate the Services by giving the other Party not less than one (1) month’s written notice (the “Notice Period”).
8.3. For the avoidance of doubt, if either Party has issued a notice to terminate this Agreement prior to Payments Techco or the Payment Provider (as the case may be) commencing with the payment integration services for an Existing Country, there will be no obligation for the Merchant to move forward with the integration process with Payments Techco for those outstanding Existing Countries.
8.4. Without prejudice to any rights that have accrued under this Agreement or any other rights or remedies, the Merchant may at any time terminate this Agreement with immediate effect by giving written notice to the other Parties if for any reason whatsoever:
8.4.1. Payments Techco (or a Payment Provider) commits a material breach of any term of this Agreement and fails to remedy that breach (if such breach is remediable) within a period of 30 days after being notified in writing to do so; or
8.4.2. an Insolvency Event occurs in relation to Payments Techco; or
8.4.3. Payments Techco suspends or ceases to carry on all or a substantial part of its business; or
8.4.4. any warranty given by Payments Techco in Clause 16 (Warranties) is found to be materially untrue or misleading.
8.5. Without prejudice to any rights that have accrued under this Agreement or any other rights or remedies, the Merchant may at any time terminate the Services provided for a particular country in the Territory with immediate effect by giving written notice to Payments Techco if:
8.5.1 the relevant Payment Provider fails to hold all necessary licences and consents required to provide the Services and comply with all Applicable Laws in its country in the Territory; or
8.5.2. the relevant Payment Provider fails to comply with the Policies;
8.5.3. the relevant Payment Provider loses or misuses the money sitting in the relevant Merchant Wallet;
8.5.4. the relevant Payment Provider fails to comply with any government regulation concerning its existence and its operations.
8.6. Without prejudice to any rights that have accrued under this Agreement or any other rights or remedies as a matter of law or otherwise, Payments Techco may at any time terminate this Agreement with immediate effect by giving written notice to Merchant if for any reason whatsoever:
8.6.1 the Merchant fails to pay any amount due under this Agreement on the due date for payment and remains in default more than 15 days after being notified in writing to make such payment; or
8.6.2. the Merchant commits a material breach of any term of this Agreement and fails to remedy that breach (if such breach is remediable) within a period of 30 days after being notified in writing to do so; or
8.6.3. an Insolvency Event occurs in relation to Merchant; or
8.6.4. the Merchant suspends or ceases to carry on all or a substantial part of its business; or
8.6.5 any warranty given by the Merchant in Clause 14 (Warranties) is found to be materially untrue or misleading.
9. Actions post termination or expiry of this Agreement
9.1. To the extent this Agreement is terminated before all pawaPay Fees have been paid by Merchant to Payments Techco, the Parties hereby agree that Payments Techco shall, within seven (7) days of the termination date of the Agreement, provide the Merchant with an invoice for the Services provided during the period of time for which no pawaPay Fees have been paid. This period shall constitute the final billing period.
9.2. To the extent this Agreement is terminated and there are funds sitting in any of the Merchant Wallets, Payments Techco shall, subject to Payments Techco rights under clause 10.1, procure that the Payment Providers shall, within seven (7) days of the termination date of the Agreement, pay the balance of funds in the relevant Merchant Wallet to the Merchant (as the case may be).
9.3. On termination of this Agreement, Clauses 2 (Definitions and Interpretation), 10 (Set-Off), 12 (Confidentiality), 13 (Data Protection), 15 (Limitation of Liability), 16 (Intellectual Property), 20 (Severance), 23 (Third Party Rights) and Clauses 25 (Entire Agreement) to 27 (Governing law and dispute resolution) inclusive shall continue in force and effect.
9.4. Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
10. Set-Off
10.1. For the purpose of the set off, Payments Techco is entitled to defer any settlement or any other sum due to the Merchant to the extent that Payments Techco considers necessary or appropriate to protect their ability to recover pawaPay Fees or any other liability (actual or anticipated) of the Merchant in connection with this Agreement.
10.1. If the pawaPay Fees or any other liability are in different currencies to the currencies held on behalf of the Merchant, Payments Techco may convert the unpaid pawaPay Fees or any other liability at the prevailing Google finance rate for the purpose of the set-off.
10.2. The exercise by Payments Techco of any of its rights under this clause shall be without prejudice to any other rights or remedies (including but not limited to set-off) to which Payments Techco is otherwise entitled (by operation of law, contract, or otherwise).
11. Set-Off
11.1. Payments Techco shall indemnify and keep indemnified an amount equal to all demands, actions, claims, proceedings, judgement, or arbitration sum (however procured) liabilities (whether under contract, tort, criminal or otherwise) damages, costs, and expenses including fines, penalties, interests, reasonable legal costs (each calculated on a full indemnity basis) and other reasonable professional fees, and any VAT or other taxes payable in relation to any such matter, circumstance or item (together the “Losses”) in each case which may be suffered by the Merchant or arising directly as a result of the loss or misuse by Payments Techco or any of its Payment Providers (or their directors, officers or other approved representatives) of monies represented on the Merchant Wallets.
11.2. The Merchant shall indemnify and keep indemnified an amount equal to all demands, actions, claims, proceedings, judgement, or arbitration sum (however procured) liabilities (whether under contract, tort, criminal or otherwise) damages, costs, and expenses including fines, penalties, interests, reasonable legal costs (each calculated on a full indemnity basis) and other reasonable professional fees, and any VAT or other taxes payable in relation to any such matter, circumstance or item (together the “Losses”) in each case which may be suffered by Payments Techco or a Payment Provider (or their directors, officers or other approved representatives) arising directly as a result of the breach by the Merchant (or their directors, officers or other approved representatives) of Clauses 7 (Anti-Money Laundering), 12 (Confidentiality), 13 (Data Protection), 14 (Warranties) and 16 (Intellectual Property) of this Agreement.
12. Confidentiality
12.1. Each Party undertakes that it shall not at any time disclose to any person thAne terms of this Agreement, any information about the other Party or its Affiliates business, including but not limited to its products, services, systems, designs, operations, procedures, prices, customers, suppliers, Software, Intellectual Property Rights, or other aspects of its business, (hereinafter referred to as “Confidential Information”), except as permitted by Clause 12.2, or information that:
12.1.1 is or becomes publicly known other than through any act or omission of the receiving Party;
12.1.2 was in the other Party's lawful possession before the disclosure;
12.1.3 is permitted to by the disclosing party to be disclosed;
12.1.4 is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or
12.1.5 is independently developed by the receiving Party, which independent development can be shown by written evidence.
12.2. A Party may disclose the confidential information:
12.2.1. to its employees, officers, sub-contractors, consultants, representatives or advisers (“Permitted Representatives”) who need to know such information for the purposes of exercising the Party’s rights or carrying out its obligations under or in connection with this Agreement. Each Party shall ensure that its Permitted Representatives to whom it discloses the confidential information comply with this Clause 14, and in any event, shall be responsible for any breach made by them;
12.2.2. Payments Techco may be required to disclose the terms and conditions of this Agreement to the applicable MNO in accordance with the MNO Know-Your-Client policies. Payments Techco or its Payment Providers are entitled to make this disclosure.
12.2.3. Payments Techco may disclose the confidential information (or parts thereof) to the Payment Providers so that they can perform their obligations under or in connection with this Agreement. Payments Techco shall ensure that the Payment Providers to whom it discloses the confidential information comply with this Clause 14, and in any event, shall be responsible for any breach made by them;
12.2.4. as may be required by law, a court of competent jurisdiction or any governmental or Regulatory Authority; or
12.2.5. if each of the Parties agrees in writing to such disclosure.
12.3. No Party shall use any confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement
13. Data Protection
Unless otherwise defined in this Agreement, capitalised terms in this Clause 13 shall have the meaning given to such terms in the GDPR.
13.1. Where one Party (the “Personal Data Provider”) provides to the other Party (the “Personal Data Receiver”) or otherwise grants the Personal Data Receiver access to, Personal Data under this Agreement:
13.1.1. the Personal Data Provider warrants and represents that all Personal Data has been provided to the Personal Data Receiver in compliance with all applicable laws on personal data protection in each jurisdiction it operates;
13.1.2. the Personal Data Provider has received their clients express written consent to offer the Personal Data Providers services;
13.1.3. the Personal Data Receiver acknowledges that they shall be acting as a data processor (as defined under the GDPR), in respect of all data Processing activities to be performed by them in respect of such Personal Data;
13.1.4. the Personal Data Receiver shall in its collection, Processing, disclosure or other use of Personal Data adhere to the requirements of all applicable laws on the use of Personal Data;
13.1.5. the Personal Data Receiver shall only Process and use such Personal Data for the purposes of performing its obligation under this Agreement (the “Authorised Purpose”) and in accordance with the instructions of the Personal Data Provider;
13.1.6. the Personal Data Receiver shall not, except in connection with the Authorised Purpose or where instructed in writing by the Personal Data Provider: (i) disclose any Personal Data to any third party; (ii) allow any third party to Process the Personal Data; (iii) make any copies or compilations of Personal Data; or (iv) retain any Personal Data;
13.1.7. the Personal Data Receiver shall implement, establish and maintain appropriate technical and organisational measures including safeguards to protect Personal Data against unauthorised or unlawful processing of such Personal Data and against accidental loss or destruction of or damage to such Personal Data including safeguards in its platform. The safeguards shall be no less rigorous than the most rigorous practices of the Personal Data Receiver for similar types of information.
13.1.8. the Personal Data Receiver shall promptly notify the Personal Data Provider where there is any loss, theft, tampering or any unauthorised, inappropriate or unlawful access or processing of any such Personal Data;
13.1.9. the Parties agree that the transfer of any Personal Data between the Parties in connection with this Agreement, including the Personal Data sent in money transfer instructions, is necessary for the performance of the Parties' respective obligations under this Agreement; and
13.1.10. the Parties agree to assist each other with all subject information requests which may be received from the data subjects of the Personal Data.
14. Warranties
14.1. The Merchant represents and warrants that it has not been subject to the following:
14.1.1. criminal conviction (except Petty Offences) in any country;
14.1.2. federal or state tax lien, or any foreign tax lien;
14.1.3. any ongoing dispute with or investigation by any Tax Authority or, as far as the Merchant is aware, any threatened audits, investigations, disputes, inquiries, enquiries, or other administrative or judicial proceedings with respect to the liability of the Merchant for any Taxes, and there are no matters under discussion with any Tax Authority with respect to the liability of the Merchant for any Taxes;
14.1.4. administrative or enforcement proceedings commenced by the Securities and Exchange Commission, any Regulatory Authority, in any country;
14.1.5. restraining order, decree, injunction, or judgement in any proceeding or lawsuit, alleging fraud or deceptive practice on the part of the Merchant;
14.1.6. any action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Merchant with respect to any Applicable Laws relating to anti-money laundering is pending or, to the best knowledge of the Merchant threatened.
14.2. Each of the Parties represents and warrants to the other that:
14.2.1. it is duly organised and validly existing under the laws of the jurisdiction of its organisation or incorporation;
14.2.2. It has the necessary licences to carry out the Business, and has shared the same with Payments Techco;
14.2.3. it has full power and authority and has obtained all necessary authorities and consents to enter into and perform its obligations under this Agreement and such other agreements and arrangements referred to in this Agreement; and
14.2.4. the signing of this Agreement and the performance of its obligations under this Agreement and the other agreements and arrangements referred to in this Agreement will not result in a breach of any other agreement or arrangement to which it is a party, nor give rise to any right of termination of any other agreement or arrangement to which it is a party.
14.3. The following definitions shall apply to Clause 14.4:
Adequate Procedures: adequate policies and procedures, as referred to in any applicable ABC Laws and any guidance issued by any authority in the Territory or other applicable authority under Applicable Law.
Associated Person: in relation to a company, a person (including an employee, agent or subsidiary) who performs or has performed services for or on that company’s behalf.
Government Entity: (i) any national, state, regional, or local government, and any government agency or department, or political party; (ii) any entity or business that is owned or controlled by any of those bodies listed in subcategory (i); or (iii) any international organisation such as the United Nations or the World Bank; and
Government Official: (i) any officer, employee, or representative (including anyone elected, nominated, or appointed to be an officer, employee, or representative) of any Government Entity, or anyone otherwise acting in an official capacity on behalf of a Government Entity; (ii) any political party, political party official, or political party employee; (iii) any candidate for public office; (iv) any royal or ruling family member; or (v) any agent or representative of any of those persons listed in subcategories (i) through (iv).;
14.4. Each of the Parties warrants and represents to the other that:
14.4.1. neither it nor any of its Associated Persons is or has at any time engaged in any activity, practice or conduct which would constitute an offence under the ABC Laws.
14.4.2. neither it nor any of its Associated Persons has, directly or indirectly, offered, paid, promised, or authorised the giving of money or anything of value to, or bribed, any:
A. Government Official;
B. person or entity; or
C. other person or entity while knowing or having reason to believe that some portion or all of the payment or thing of value will be offered, given, or promised, directly or indirectly, to a Government Official or another person or entity;
D. influenced any act or decision of such Government Official or such person or entity in his/her or its official capacity, including a decision to do or omit to do any act in violation of his/her or its lawful duties or proper performance of functions; or
E. induced such Government Official or such person or entity to use his/her or its influence or position with any Government Entity or other person or entity to influence any act or decision;
in order to obtain or retain business for, direct business to, or secure an improper advantage;
14.4.3. neither it nor any of its Associated Persons is or has been the subject of any investigation, inquiry or enforcement proceedings by any court, governmental, administrative or regulatory body or any customer regarding any offence or alleged offence under the ABC Laws, and no such investigation, inquiry or proceedings have been threatened or are pending and there are no circumstances likely to give rise to any such investigation, inquiry or proceedings;
14.4.4. neither it nor any of its Associated Persons has been excluded from participation in a public contract as a result of being convicted of bribery or corruption under the ABC Laws.
15. Limitation of liability
15.1. References to liability in this Clause 15 include every kind of liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
15.2. Nothing in this Clause 15 shall limit the Merchant’s payment obligations under this Agreement.
15.3. Nothing in this Agreement limits any liability which cannot legally be limited, including liability for fraud or fraudulent misrepresentation.
15.4. Save in the case of Clause 7 and 14.1, Payments Techco’s total liability to the Merchant shall not exceed the pawaPay Fees paid to Payments Techco by the Merchant in the three (3) months preceding the date such cause of action arose.
15.5. Save in the case of Clauses 7, 12, 13, 14, 16 the Merchant’s total liability to Payments Techco shall not exceed the amount of pawaPay Fees paid to Payments Techco by the Merchant in the six (6) months preceding the date such cause of action arose.
15.6. Unless the Merchant notifies Payments Techco that it intends to make a claim in respect of an event within the notice period, Payments Techco shall have no liability for that event. The notice period for an event shall start on the day on which the Merchant became, or ought reasonably to have become, aware of the event having occurred and shall expire six (6) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
15.7. Notwithstanding anything else in this Agreement, no Party to this Agreement nor any of its directors, employees, contractors or agents shall have any liability to any other Party for any indirect or consequential losses (including, but not limited to, loss of profits; loss of business; loss of anticipated savings or earning; loss of personal property or possessions) arising under or in connection with this Agreement.
16. Intellectual Property
16.1. Nothing set forth in this Agreement shall constitute a transfer or assignment by one Party to another Party of any Intellectual Property Rights owned or otherwise controlled by such Party, and each Party hereby retains all of its rights, title and interest in such Intellectual Property Rights.
16.2. The Software is, and shall remain, the property of Payments Techco or the relevant member of the Payments Techco Group (or the appropriate third-party rights-owner(s), if any).
16.3. The Merchant shall not acquire any rights in or to the Software.
16.4. The Merchant shall do, and execute or arrange for the doing and executing of, each necessary act, document and thing that Payments Techco may consider necessary or desirable to perfect the right, title and interest of Payments Techco in and to the Software.
16.5. The Merchant shall use all reasonable endeavours to prevent any infringement of the Software, by its personnel,, and shall promptly report to Payments Techco any such infringement that comes to its attention.
16.6. The Merchant shall not make any copies of the Software.
16.7. The Merchant shall not give access to the Software through any network or otherwise of computers to users who are not employees or agents of the Merchant.
16.8. The Merchant may not make adaptations or variations of the Software without the prior written consent of Payments Techco.
16.9. The Merchant may not disassemble, decompile, reverse translate or in any other manner decode the Software.
16.10. The Merchant acknowledges Payments Techco’s absolute right, title and interest in and to all Intellectual Property Rights as may subsist in the Software. The Merchant hereby assigns to Payments Techco any and all goodwill and related or similar rights in the Software accruing during the Term. The Merchant agrees to execute any confirmatory assignment or similar document as may be reasonably requested to evidence such transfer.
17. Costs
17.1. Each Party shall bear its own legal costs of, and incidental to, the negotiation, preparation, settling, signing and implementation of this Agreement.
18. No partnership or agency
18.1. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership between the Parties or constitute any Party the agent of another Party.
18.2. Each Party confirms that it is acting on its own behalf and not for the benefit of any other person.
19. Force Majeure
19.1. The Parties acknowledge that on 11 March 2020, the World Health Organisation declared that the spread of COVID-19 amounted to a global pandemic (the “COVID-19 Pandemic”). The Parties further acknowledge that the COVID-19 Pandemic continues to exist at the date of this Agreement. Notwithstanding the definition of Force Majeure Event, the Parties acknowledge and agree that, for the purpose of this Agreement, the COVID-19 Pandemic shall not be deemed a Force Majeure Event.
19.2. The Relying Party invoking this clause shall notify the other Parties in writing within five (5) Business Days of the occurrence of the Force Majeure Event (the “Written Notice”). The Written Notice shall include the effects, or the reasonably anticipated effects, on the Relying Party’s ability to perform; including as much detail as available, as well as the relief sought by the Relying Party.
19.3. During the Force Majeure Event, the Parties will jointly use reasonable commercial efforts to mitigate the effects of the Force Majeure Event.
19.4. Provided the Relying Party provides such Written Notice in accordance with clause 19.2 above, no Party shall be in breach of this Agreement nor liable for any losses, damages or other costs resulting from the delay in performing, or failure to perform, any of its obligations under this Agreement, if such delay or failure results from a Force Majeure Event.
19.5. Should the Relying Party be prevented from carrying out its contractual obligations as a result of a Force Majeure Event lasting continuously for a period of 120 (one hundred and twenty) days, any Party shall have the option to terminate this Agreement on written notice to the other Parties. No Party shall have a claim against the other Parties for delays or non-fulfilment under this Agreement.
19.6. A Force Majeure Event shall not operate to suspend any payment obligation(s) accrued by a Party prior to the written notice of a Force Majeure Event.
20. Severance
20.1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of this Agreement.
20.2. If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. Third Party Rights
Other than to an extent a Payment Provider is required to carry out any actions under this Agreement, a person who is not a Party to this Agreement shall have no rights or benefits under this Agreement.
22. Counterparts
22.1. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
22.2. No counterpart shall be effective until each Party has executed and delivered at least one counterpart.
23. Entire agreement
23.1. This Agreement (together with any documents referred to in it) constitutes the entire agreement between the Parties and supersedes and extinguishes all previous discussions, correspondence, negotiations, drafts, agreements, promises, assurances, warranties, representations, arrangements and understandings between the parties, whether written or oral, relating to the subject matter of this Agreement.
23.2. Each Party acknowledges that in entering into this Agreement (and any documents referred to in it), it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement or those documents.
23.3. Nothing in this Clause 23 shall limit or exclude any liability for fraud.
24. Assignment
24.1. No Party shall assign, transfer, mortgage, charge, sub-contract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement (or any other document referred to in it) without the prior written consent of the other Parties save that Payments Techco may assign its rights and obligations under this Agreement to any Affiliate.
25. Notices
25.1. A notice given to a Party under or in connection with this Agreement:
25.1.1. shall be in writing and in English (or be accompanied by an accurate translation into English); and
25.1.2. shall be sent to the relevant Party for the attention of the contact and to the email address specified in Clause 25.2, or such other email address or contact as that Party may notify to the other in accordance with the provisions of this Clause 25.
25.2. The email addresses for service of notices are:
25.2.1. Payments Techco legal@pawapay.io
25.2.2. For the Merchant, we shall send all notices with the administrator accounts registered with our platform.
25.2.3. Delivery of a notice is deemed to have taken place (provided that all other requirements in this Clause 25 have been satisfied):
25.2.4. at the time of transmission; and
25.2.5. if deemed receipt under the previous paragraphs of this Clause 25.32 is not within business hours (meaning 9.00 am to 5.30 pm on a Business Day) at 9.00 am on the next Business Day. For the purposes of this Clause, all references to time are to local time in the place of deemed receipt.
25.3. To prove service, it is sufficient to prove that the notice was properly addressed and sent to the email address of the recipient and that the sender did not receive an automated delivery failure notification (which shall not include an automated response such as an out-of-office response) within 24 hours of sending the email.
25.4. If a Party is unable or not permitted to send a notice by email, it may send the notice by pre-paid courier to the address of the relevant Party stipulated on Page 1 of this Agreement (or to such other address as that Party may notify in writing to all of the Parties) and it shall be deemed to arrive on signature of a delivery receipt.
25.5. A Party may change its details for service of notices as specified in Clause 25.2.1 and 25.4 by giving written notice to the other Parties. Any change notified pursuant to this Clause 25.5 shall take effect at 9.00 am on the later of:
25.5.1. the date (if any) specified in the notice as the effective date for the change; andthe date (if any) specified in the notice as the effective date for the change; and
25.5.2. five Business Days after deemed receipt of the notice of change.
25.6. For the purpose of service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution, service by email will not be an acceptable means of service.
26. Waiver
26.1. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and signed by the person waiving such right or remedy. Any such waiver shall apply only to the circumstances for which it is given and shall not be deemed a waiver of any subsequent breach or default.
26.2. A failure or delay by any person to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.
No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
26.3. A person that waives a right or remedy provided under this Agreement or by law in relation to one person, or takes or fails to take any action against that person, does not affect its rights or remedies in relation to any other person.
27. Governing law and dispute resolution
27.1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
27.2. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred by either Party, first to the respective relationship managers for resolution. If the dispute is not resolved by the relationship managers within thirty (30) days of referral, either Party may give written notice of the dispute to the other (a “Dispute Notice") and upon receipt of a Dispute Notice, the Parties shall refer the dispute to and have it finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this Clause:
27.2.1. the number of arbitrators shall be one;
27.2.2. the seat, or legal place, of arbitration shall be London; and
27.2.3. the language to be used in the arbitral proceedings shall be English.
SCHEDULE 1 – SERVICES
A. ..
- System Uptime: Unless otherwise agreed to in writing by both parties, Payments Techco undertakes that the Payments Techco system on which the Services are provided, function properly and efficiently and that a 99% average uptime functionality of the Payments Techco system is maintained over any one (1) calendar month period, provided that any failure is not due to:
- a Force Majeure Event;
- any failure in any network or telecommunications service on which the services depend; or
- where major system upgrades are being undertaken and where such events have been communicated to the Merchant; and
- System maintenance: Any scheduled maintenance, modifications and upgrades requiring downtime will be done where the usage of the Payments Techco system is low (normally between the hours of midnight and 4am (CET)), except those necessitated by service outages.
B. Support
Unlimited 24/7 operational support is available to the Customer via the Help widget found on the pawaPay portal.
Updates to all service issues impacting payment performance from either Payments Techco’s own systems or those of the MNOs are provided via the Company's website https://status.pawapay.cloud/. Updates are provided at least every 60 minutes on those issues. Where service issues are identified on MNO systems, rather than that of Payments Techco, and the same issues have been identified for 24 consecutive hours, the frequency of updates will be reduced to once at least every six (6) hours until the issue is resolved by the MNO.
SCHEDULE 2 – SETTLEMENT SLAs.
A. Cross Border Settlement
B. Local Settlement
Definitions
“ABC Laws” means any Applicable Law relating to bribery, corruption or money laundering;
“Affiliates” means any person Controlled by, Controlling or under common Control with a party and “Control” means the power to direct, directly or indirectly, the management of another person or entity;
“Applicable Laws” means all laws, regulations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all judgments, orders, notices, instructions, decisions and awards of any court or competent authority or tribunal and all codes of practice having force of law, statutory guidance and policy notes in the Territory;
“AML/CFT” means Anti Money Laundering and Countering the Finance of Terrorism;
“Business Day” means a day in the Territory or Estonia, when banks in capital city of the Territory and Tallinn are open for business;
“Change of Control” means an event, transaction, or circumstance, other than an internal re-organisation of a Party and its Affiliates or an increase in the share capital of a Party or its Affiliates which directly or indirectly results in the holding beneficially of more than fifty percent (50%) of the issued share capital of the company;
“Data Privacy Laws” means the General Data Protection Regulation ((EU) 2016/679) (GDPR) and the applicable data privacy laws in the Territory;
“Effective Date” shall mean the day that the Merchant agrees to these terms and conditions and when the Payments Techco compliance team has approved their onboarding;
“End Users” means the individual customers of the Merchant in the Territory;
“Force Majeure Event” means any circumstance which is not reasonably within the control of the Party affected thereby (the “Relying Party”) and which the Relying Party is unable to reasonably prevent, avoid or overcome, which may include, but shall not be limited to: (i) acts of God, flood, drought, earthquake or other natural disaster; (ii) epidemic, pandemic, disease, illness or any public health emergency of international concern (“PHEIC”); (iii) terrorist attack, civil war, civil commotion or riots, war, armed conflict, imposition of sanctions, embargo; (iv) nuclear, chemical or biological contamination or sonic boom; (v) any law or any action taken by a government or public authority imposing an export or import restriction, quota or prohibition; (vi) collapse of buildings, fire or explosion; (vii) any strikes, industrial action; lockouts of work essential to the fulfilment of this Agreement, or deadlocks in labour or trade dispute (other than, in each case, by the party seeking to rely on this clause, or companies in the same group as that party); and (vii) any circumstances or like cause of whatsoever nature;
“Good Industry Practice” means the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant industry or business sector;
“Group” means in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group;
“Holding Company” means a company is a holding company of another company, if that company: (i) does not carry out any activities other than operating as a holding company; (ii) holds the majority of the voting rights in it; or (iii) is a member of it and has the right to appoint or remove a majority of its board of directors; or (iv) is a member of it and controls alone, under an agreement with other members, a majority of the voting rights in that company; or (v) if it is a holding company of a company that is itself a holding company of that other company;
“Insolvency Event” means any of the following in relation to the relevant Party, Payment Provider (as the case may be):
a. the relevant Party or Payment Provider (as the case may be) suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts as they fall due;
b. the relevant Party or Payment Provider (as the case may be): (i) commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts; or (ii) makes a proposal for or enters into any compromise or arrangement with its creditors, other than for the sole purpose of a scheme for a solvent amalgamation of that relevant Party or Payment Provider (as the case may be) with one or more other companies or the solvent reconstruction of that relevant Party or Payment Provider (as the case may be);
c. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the relevant Party or Payment Provider (as the case may be) other than for the sole purpose of a scheme for a solvent amalgamation of that relevant Party or Payment Provider (as the case may be) with one or more other companies or the solvent reconstruction of that relevant Party or Payment Provider (as the case may be);
d. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the relevant Party or Payment Provider (as the case may be);
e. the holder of a floating charge over the assets of that relevant Party or Payment Provider (as the case may be) has become entitled to appoint or has appointed an administrative receiver;
f. a person becomes entitled to appoint a receiver over the assets of the relevant Party or Payment Provider (as the case may be) or a receiver is appointed over the assets of such relevant Party or Payment Provider (as the case may be);
g. a creditor or encumbrancer of the relevant Party or Payment Provider (as the case may be) attaches or takes possession of (or a distress, execution, sequestration or other such process is levied or enforced on or sued against) the whole or any part of its assets and such attachment or process is not discharged within 14 days;
h. any event occurs, or proceeding is taken, with respect to the relevant Party or Payment Provider (as the case may be) in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (a) to (g) above (inclusive);
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“LCIA Rules” means the rules governing the London Court of International Arbitration;
“Merchant Wallet” means the MNO Wallet held by the Merchant in each Territory;
“Mobile Network Operator” or “MNO” means the operator of mobile money payment services in the Territory;
“MNO Contract” means the contracts entered into between either the Payment Provider or the Merchant (as the case may be) and the MNO in its respective country within the Territory for the purpose of operating mobile money payment services;
“MNO Wallet” means the account registered, either in the name of the Payment Provider or the Merchant (as the case may be), in each country in the Territory, through which payments are processed;
“Payment Providers” means the companies appointed by Payments Techco to operate and perform the payment processing services for Payments Techco in the Territory;
“Payment Provider Wallet” means the MNO Wallet held by each Payment Provider in the Territory;
“Petty Offence” means a minor offence or misdemeanour which may not be subject to a jury trial and the penalty for which does not exceed imprisonment for a period of 6 months, or a fine as set out in the relevant Applicable Law, or both;
“Process” or “Processing” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Regulatory Authority” means any regulator or other public body having supervisory or regulatory authority over Payments Techco, the Payment Providers, or the Merchant;
“Representative” means an individual submitting your application for a pawaPay account.
“Services” means, where relevant;
- the collection of funds from mobile money wallets of End Users to the relevant MNO Wallets; or
- settlement of the Merchant funds from the Territory to the jurisdiction of the Merchant’s choosing; or
- disbursements of Merchant funds from the relevant MNO Wallet
“Software” means the payments processing software developed by Payments Techco, together with any and all improvements, corrections, modifications, updates, enhancements or other changes, whether or not included in the current retail version;
“Subsidiary” means a company that (i) is held by a company, either 50% or more, within a specific group of companies (ii) is a company that is a subsidiary of another company if that other company is a holding company (as defined above), or if it is a subsidiary of a company that is itself a subsidiary of that holding company;
“Tax” means all forms of tax, including but not limited to, any levy, impost, duty or other charge, fee, deduction or withholding of a similar nature (including any penalty or interest payable in connection with the failure to pay, or delay in paying, any of these);
“Tax Authority” means any government, state or municipality or any local, state, federal or other authority, body or official, anywhere in the Territory exercising a fiscal, revenue, customs or excise function;
“Territory” means the countries, where the Merchant requires the Services offered by the relevant Payment Provider;
“VAT” means value added tax or goods and services tax or any equivalent tax chargeable in the Territory .