Welcome to pawaPay!
The pawaPay terms of service includes this introduction, the General Terms, Definitions, and incorporated pricing and settlement service level agreements (together the “Agreement”) and forms a legal agreement between Payments Techco OÜ (as owner of the contracts), the Payment Provider(s) (together hereinafter referred to as “pawaPay”) , “us” or “we” and the entity or sole proprietor for whom the pawaPay account is created (“you”, “your” or “Merchant”) to receive the Services and/or any other business services offered by us.
Reference to Services in this Agreement are to pawaPay’s different service offerings as described on our website, unless specified otherwise. This Agreement states the terms and conditions that apply to your use of the Services.
You and pawaPay agree as follows:
1. Your pawaPay Account.
1.1. Eligibility. Only legal persons(businesses, partnerships, (including sole proprietors) and non-profit organisations) are eligible to apply for a pawaPay Account and use the Services.
1.2. Creating an account for another person. You and your Representative must not attempt to create a pawaPay account for or on behalf of any third party.
1.3. Age of majority. You must be both: (i) at least 18 years of age, and (ii) the age of majority under the laws of your jurisdiction, in order to create a pawaPay account.
1.4. Representative. You and your Representative individually and collectively affirm to us that:
1.4.1. your Representative, who has accepted these Terms of Service, is authorised to open an account on your behalf and to bind you to this Agreement;
1.4.2. your Representative is authorised to pass, in any form, to us critical information around your settlement preference and settlement bank account (or any other payment/settlement account preferred); and
1.4.3. your Representative is a director, chief executive officer, senior manager or otherwise has significant responsibility for the control, management or direction of your business. We may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority.
1.4.4. Sole Proprietors. If you are a sole proprietor, you and your Representative 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.
1.4.5. Business Type. These General Terms apply to you exclusively where your Business does not offer the services captured under our Schedules. To the extent that your Business falls within those business types, the applicable Schedule shall, in addition to the General Terms, automatically apply to you. These General Terms and any applicable Schedule shall be read together as one complete document. Where a provision in these General Terms is contradicted by a provision in an applicable Schedule the term within the applicable Schedule shall apply in precedence to the relevant provision within the General Terms.
2. Commencement date
This Agreement is effective from the date that the Merchant accepts these General Terms (and for the avoidance of doubt, acceptance may be by electronic and/or digital signature). The commencement of the Services shall be deemed to be at the point that you activate your account in the production environment(“Commencement Date”). This Agreement shall remain in full force and effect until you or pawaPay terminate it (such period the “Term”).
3.1. With effect from the Commencement Date, pawaPay shall provide the Services to the Merchant, in the Territory.
3.2. Compliance Checks. The making available of any account by us and the depositing of funds into that account by you shall not constitute confirmation that our Compliance Checks are complete. We will advise you when they are complete. Upon successful completion of our Compliance Checks (provided that you have satisfied the Compliance Checks) you will thereupon be able to benefit from the full range of Services that we offer.
3.3. Should a situation arise where you have not passed our Compliance Checks, we will notify you in writing to discuss next steps.
3.4. Changes to the Services. Due to local regulatory requirements and Applicable Laws, we may need to modify the way we provide or deliver the Services under any local territorial conditions. This may include withdrawing some Services entirely from you or assisting you in establishing alternative means of receiving payments. By entering into this Agreement, you confirm that you are aware and will maintain awareness of all local regulatory requirements and Applicable Laws that apply to the provision of the Services.
3.5. To the extent permitted by Applicable Law, we shall hold the Merchant funds in the pawaPay Wallet , then funds will flow into our account from which they will be settled to the Merchant.
3.6. Where there is a restriction to hold your funds in our wallet or bank account, we shall provide you reasonable assistance to open a Merchant Wallet with the respective MNO.
4. pawaPay Fee
4.1. The Merchant agrees that it shall make payment of the relevant fees as detailed below:
4.1.1. Standard Services: Where the Merchant has signed up to our Standard Services, it shall pay pawaPay the relevant pawaPay fee set out on our Website (and which can be found here).
4.1.2. Premium Services: Where the Merchant has signed up to our Premium Services, the fees applicable shall apply (together the “pawaPay Fee”).
4.2. pawaPay shall deduct the pawaPay Fee on a transaction-by-transaction basis in local currency. The Payment Provider shall convert the pawaPay 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.
4.3. Where it is not permitted for the pawaPay Fee to be levied against the Merchant by deduction from funds as provided in 4.2 above, pawaPay shall send an invoice to the Merchant for the pawaPay Fee in Euros. The pawaPay fee will be converted to Euros using the exchange rate available on the Google finance platform on the last day of month preceding the month being billed for.
4.4. The Merchant acknowledges and agrees that all pawaPay Fees are exclusive of Taxes. Where pawaPay is required by law to levy any Tax on the pawaPay Fee, we shall add it onto the pawaPay fee. Neither party shall assume any obligation to pay the other party’s Taxes within the Territory.
4.5. The Merchant agrees that pawaPay may increase its Fees from time to time. Where pawaPay increases its Fees, it shall provide the Merchant with at least one months’ written notice providing details of the changes that will be applied.
5. Costs and expenses
5.1. Any fees charged under the MNO Contracts by the MNOs relating to the operation of the Merchant Wallet shall be charged at cost against the Merchant Wallet (“Pass Through Fees”). The current Pass-Through Fees per market can be found at our website.
5.2. The Merchant agrees that the Pass-Through Fees may be deducted from the pawaPay Wallet or Merchant Wallet as they are incurred.
5.3. The bank charges relating to the final settlement shall be borne solely by the Merchant.
6. pawaPay Obligations
6.1. pawaPay shall:
6.1.1. provide the Services in accordance with the terms of this Agreement;
6.1.2. provide reasonable cooperation with the Merchant in all matters relating to the Services, and (at its sole discretion) shall comply with the Merchant’s reasonable and lawful written instructions;
6.1.3. ensure that all necessary licences and consents are in place to provide the Services and comply with all Applicable Laws;
6.1.4. endeavour, as far as possible, that the Merchant is settled within the settlement SLAs operated by the Payment Provider in the relevant territory into the bank account (or any other payment/settlement account) specified by the Merchant;
6.1.5. notify the Merchant within five (5) Business Days in writing, as soon as a MNO has notified pawaPay of any price changes to the MNO Contracts;
6.1.6. notify the Merchant within twelve (12) hours if it becomes aware of any event which may cause delay to the delivery of or disruption to the Services;
6.1.7. for Merchants using the Premium Service, appoint a dedicated relationship manager at pawaPay (the “pawaPay Relationship Manager”); and
6.1.8. ensure that the pawaPay Relationship Manager liaises directly with the Merchant Key Contact or as the Merchant Key Contact instructs in writing.
7. Merchant's Obligations
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.
7.1.1. upon receiving full payment, perform or provide the services or goods that an End User has paid for;
7.1.2. to the extent required, enter into a binding agency agreement with its subsidiaries and affiliates, who require the Services, in order to act on their behalf;
7.1.3. cooperate with pawaPay in all matters relating to the Services;
7.1.4. appoint a key contact person at the Merchant to liaise with the pawaPay Relationship Manager in respect of the Services (the “Merchant Key Contact”);
7.1.5. where relevant, pay the pawaPay Fee within 14 days from receipt of the invoice as provided for by clause 4.3;
7.1.6. upon request by pawaPay, immediately provide pawaPay with all documents necessary to enable pawaPay or the Payment Provider to perform its Know Your Client verification checks including but not limited to any licences, consents required to perform its business;
7.1.7. ensure the quality and stability of its own systems and connection to the pawaPay API are suitable;
7.1.8. notify pawaPay within 7 calendar days of any changes to its licences, consents, regulatory approvals or ability to deliver the services as prescribed by law;
7.1.9. notify pawaPay, at least 7 calendar days prior, of any changes to the Merchant’s service offering that may affect the volume of payments that may require processing;
7.1.10. respond to all fraud enquiries not later than 1 (one) business day of receipt of such enquiry;
7.1.11. 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;
7.1.12. comply with MNO branding guidelines linked here;
7.1.13. where the Services includes disbursements, transfer sufficient start-up funds to the pawaPay Wallet or Merchant Wallet to enable the Services to be carried out by pawaPay.
7.2. The Merchant shall not:
7.2.1.1. 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;
7.2.1.2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
7.2.1.3. access all or any part of the Software in order to build a product or service which competes with the Services being provided by pawaPay;
7.2.1.4. other than as permitted under this Agreement, use the Software to provide services to third parties;
7.2.1.5. licence, 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;
7.2.1.6. attempt to obtain, or assist third parties in obtaining, access to the Software;
7.2.1.7. introduce or permit the introduction of any virus or vulnerability into pawaPay network and information systems; or
7.2.1.8. impose terms on an End User in relation to a payment which are in pawaPay’s reasonable opinion less favourable than the terms applicable to other similar services accepted by End Users including in respect of the terms applicable to payment reversals.
8. Anti-Money Laundering, Anti-Bribery and Anti-Corruption
Anti-Money Laundering
8.1. Each Party 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 necessary to ensure compliance with its legal and regulatory obligations in connection with the delivery and receipt of the Services. Neither pawaPay nor any member of its Affiliates 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.
8.2. Upon request, the Merchant shall provide to pawaPay such information and assistance as may be necessary for pawaPay to comply with its legal or regulatory compliance obligations, subject to applicable privacy, confidentiality and other laws.
8.3. Without limiting the foregoing, and subject to Applicable Laws, the Merchant shall share and provide pawaPay 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).
8.4. pawaPay reserves the following rights where we have received written instructions by any Regulator to do so:
8.4.1. refuse a Merchant’s access rights to the Merchant Account;
8.4.2. temporarily suspend a Merchant account;
8.4.3. terminate a Merchant account; and/or
8.4.4. transfer a Merchant’s funds as instructed by a Regulator to an account specified by a Regulator.
8.5. pawaPay reserves all the rights in Clause 8.4. where it believes that a Merchant, a merchant Affiliate or sub-Merchant is, or may be engaged in any fraudulent activity.
Anti-Bribery and Anti-Corruption
8.6. The parties shall during the term of this Agreement:
8.6.1. comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
8.6.2. not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
8.6.3. establish, maintain and enforce its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements;
8.6.4. notify the other party (in writing) if it becomes aware of any breach of Clause 8.6.2 or has reason to believe that it has received a request or demand for any undue financial or other advantage in connection with the performance of this Agreement; and
8.6.5. immediately notify the other party (in writing) if a foreign public official becomes an officer or employee of it, or acquires a direct or indirect interest in it.
8.7. pawaPay shall ensure that any of its agents, consultants, contractors, subcontractors or other persons engaged in performance of its obligations under this Agreement do so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on pawaPay. pawaPay shall be responsible for the observance and performance by such persons and shall be directly liable for any breach by such persons.
8.8. For the purpose of this Clause 8 the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
9. Term and Termination
9.1. The Services shall be provided by pawaPay from the Commencement Date and shall continue in force until terminated in accordance with the terms of this Agreement.
9.2. Either pawaPay or the Merchant may terminate the Services by giving the other Party not less than one (1) month’s written notice (the “Notice Period”).
9.3. 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:
9.3.1. pawaPay 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 20 days after being notified in writing to do so; or
9.3.2. an Insolvency Event occurs in relation to pawaPay; or
9.3.3. pawaPay suspends or ceases to carry on all or a substantial part of its business; or
9.3.4. any warranty given by pawaPay in Clause 16 (Warranties) is found to be materially untrue or misleading.
9.3.5. pawaPay 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
9.3.6. pawaPay loses or misuses the money sitting in the relevant Merchant Wallet; or
9.3.7. the relevant Payment Provider fails to comply with any government regulation concerning its existence and its operations.
9.4. Without prejudice to any rights that have accrued under this Agreement or any other rights or remedies as a matter of law or otherwise, pawaPay may at any time terminate this Agreement with immediate effect by giving written notice to Merchant:
9.4.1. for any reason whatsoever and without any duty to give reasons to the Merchant;
9.4.2. if 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
9.4.3. if the Merchant fails to comply with any government regulation concerning its existence and its operations; or
9.4.4. if 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 20 days after being notified in writing to do so; or
9.4.5. if an Insolvency Event occurs in relation to the Merchant ; or
9.4.6. if the Merchant suspends or ceases to carry on all or a substantial part of its business; or
9.4.7. if the Merchant fails to hold all necessary licences and consents required to operate its respective business in its country in the Territory;
9.4.8. if any warranty given by the Merchant in Clause 15 (Warranties) is found to be materially untrue or misleading.
9.4.9. if the Merchant breaches Clauses 8 (Anti-Money Laundering, Anti-Bribery and Anti-Corruption and 13 (Confidentiality).
10. Actions post termination or expiry of this Agreement
10.1. To the extent this Agreement is terminated before all pawaPay Fees have been paid by the Merchant to pawaPay, the Parties hereby agree that pawaPay 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.
10.2. To the extent this Agreement is terminated and there are funds sitting in any of the pawaPay Wallet, pawaPay shall, subject to pawaPay rights under Clause 11.1, within fourteen (14) days of the termination date of the Agreement, pay the balance of funds in the pawaPay Wallet or Merchant Wallet to the Merchant (as the case may be).
10.3. On termination of this Agreement, Clauses 2 (Definitions and Interpretation), 11 (Set-Off), 13 (Confidentiality), 14 (Data Protection), 16 (Limitation of Liability), 17 (Intellectual Property), 21 (Severance), 22 (Third Party Rights) and Clauses 23 (Entire Agreement) to 28 (Governing law and dispute resolution) inclusive shall continue in force and effect.
10.4. 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.
11. Set-Off
11.1. For the purpose of set-off, pawaPay is entitled to defer any settlement or any other sum due to the Merchant to the extent that pawaPay 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.
11.2. If the pawaPay Fees or any other liability are in different currencies to the currencies held on behalf of the Merchant, pawaPay may convert the unpaid pawaPay Fees or any other liability at the prevailing Google finance rate for the purpose of the set-off.
11.3. The exercise by pawaPay 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 pawaPay is otherwise entitled (by operation of law, contract, or otherwise).
12. Indemnities
12.1. pawaPay shall subject to Clause 16 (Limitation of Liability) 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 “Merchant’s Losses”) in each case which may be suffered by the Merchant arising directly as a result of the loss or misuse by pawaPay (or their directors, officers or other approved representatives) of monies represented on the Merchant’s designated wallet.
12.2. The Merchant shall indemnify and keep indemnified an amount equal to all demands, actions, claims, proceedings, judgments, or arbitration sums (however procured) liabilities (whether under contract, tort, criminal or otherwise), damages, costs, and expenses including fines, penalties, interest, 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 “pawaPay Losses”) in each case which may be suffered by pawaPay (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 1.4.2, 7 (Merchant Obligations) 8 (Anti-Money Laundering, Anti-Bribery and Anti-Corruption), 13 (Confidentiality), 14 (Data Protection), 15 (Warranties) and/or 17 (Intellectual Property) of this Agreement.
13. Confidentiality
13.1. Each Party undertakes that it shall not at any time disclose to any person the 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 13.2, or information that:
13.1.1. is or becomes publicly known or generally available to the public other than through any act or omission of the receiving Party;
13.1.2. was in the other Party's lawful possession before the disclosure;
13.1.3. is permitted (confirmed in writing to the disclosing party) as authorised by the disclosing party to be disclosed to the extent so authorised in that confirmation;
13.1.4. is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
13.1.5. is agreed between the parties in writing that it is not confidential; or
13.1.6. is developed by or for the receiving Party independently of the information disclosed, and which independent development can be shown by written evidence.
13.2. A Party may disclose the confidential information:
13.2.1. to its employees, officers, contractors, 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 13, and in any event, shall be responsible for any breach made by them;
13.2.2. pawaPay 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. pawaPay is entitled to make this disclosure.
13.2.3. pawaPay may disclose the confidential information (or parts thereof) to its Affiliates so that they can perform their obligations under or in connection with this Agreement. pawaPay shall ensure whom it discloses the confidential information comply with this Clause 13, and in any event, shall be responsible for any breach made by them;
13.2.4. as may be required by law, a court of competent jurisdiction or any governmental or Regulatory Authority; or
13.2.5. if each of the Parties agrees in writing to such disclosure.
13.3. 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.
14. Data protection
The Parties to this Agreement are governed by the terms of pawaPay’sData Processing Agreement, which can be found here and shall be deemed to form part of this Agreement. For the avoidanceof doubt, the Merchants acceptance of this Agreement shall constitute anacceptance of the Data Processing Agreement.
15.Warranties
15.1. The Merchant represents and warrants that neither it nor its directors, contractors or employees have been subject to the following:
15.1.1. criminal conviction (except Petty Offences) in any country;
15.1.2. federal or state tax lien, or any foreign tax lien that may reasonably have an impact on the Merchant fulfilling its obligations under this Agreement;
15.1.3. any ongoing dispute with or investigation by any Tax Authority (other than routine disputes in the ordinary course of business) 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 or financial penalties in any form;
15.1.4. administrative or enforcement proceedings commenced by any Regulatory Authority in any country;
15.1.5. restraining order, decree, injunction, or judgement in any proceeding or lawsuit, alleging fraud or deceptive practice on the part of the Merchant;
15.1.6. 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 and the Merchant undertakes that it shall give notification promptly in the event that there is a change of circumstances and any of the warranties stated above could not be repeated at the time such notification is given.
15.2. The Merchant further represents and warrants that it has procured the relevant approvals to bind its subsidiaries and Affiliates to this Agreement, to the extent such subsidiaries and Affiliates require our Services hereunder.
15.3. Each of the Parties represents and warrants to the other that:
15.3.1. it is duly organised and validly existing under the laws of the jurisdiction of its organisation or incorporation;
15.3.2. It has the necessary licences and approvals to carry out the Business as intended in this Agreement, and shall share the same with pawaPay within two (2) Business Days upon request;
15.3.3. 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
15.3.4. the signing of this Agreement and the performance of its obligations under 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.
15.4. The following definitions shall apply to Clause 15.5:
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 anyoneelected, nominated, or appointed to be an officer, employee, or representative)of any Government Entity, or anyone otherwise acting in an official capacity onbehalf of a Government Entity; (ii) any political party, political partyofficial, or political party employee; (iii) any candidate for public office;(iv) any royal or ruling family member; or (v) any agent or representative ofany of those persons listed in subcategories (i) through (iv).
15.5. Each of the Parties warrants and represents to the other that:
15.5.1. 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.
15.5.2. neither it nor any of its Associated Persons has or shall during the course of this Agreement, 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.
15.5.3. neither it nor any of its Associated Persons has or shall during the course of this agreement influence 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
15.5.4. neither it nor any of its Associated Persons has or shall during the course of this Agreement induce 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;
15.6. in order to obtain or retain business for, direct business to, or secure an improper advantage;
15.6.1. 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;
15.6.2. 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.
16. Limitation of liability
16.1. References to liability in this Clause 16 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.
16.2. Nothing in this Clause 16 shall limit the Merchant’s payment obligations under this Agreement.
16.3. Nothing in this Agreement limits any liability which cannot legally be excluded or limited, including liability for:
16.3.1. death or personal injury caused by negligence;
16.3.2. fraud or fraudulent misrepresentation; and
16.3.3. breach of terms implied by section 2 of the Supply of Goods and Services Act 1982.
16.4. Save for in the case of Clause 7.1, 14 (Data Protection), 15 (Warranties), 16.3, and 17 (Intellectual Property) pawaPay’s total liability to the Merchant shall not exceed the pawaPay Fee paid to pawaPay by the Merchant in the six (6) months preceding the date such cause of action arose.
16.5. Save for in the case of Clauses 7.2, 13 (Confidentiality), 14(Data Protection), 15(Warranties), 16.3 and 17(Intellectual Property), the Merchant’s total liability to pawaPay shall not exceed the amount of pawaPay Fee paid to pawaPay by the Merchant in the six (6) months preceding the date such cause of action arose.
16.6. Nothing in this Agreement shall limit the Merchant’s liability under the following Clauses:
16.6.1. Clause 13 (Confidentiality);
16.6.2. Clause 14 (Data Protection);
16.6.3. Clause 15 (Warranties);
16.6.4. Clause 16 (Intellectual Property); and
16.6.5. Clause 17 (Costs).
16.7. Unless the Merchant notifies pawaPay that it intends to make a claim in respect of an event within the notice period, pawaPay 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.
16.8. 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.
17. Intellectual Property
17.1. 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.
17.2. The Software is, and shall remain, the property of pawaPay or the relevant member of the pawaPay Group (or the appropriate third-party rights-owner(s), if any).
17.3. The Merchant shall not acquire any rights in or to the Software.
17.4. The Merchant shall immediately do and execute or arrange for the doing and executing of, each necessary act, document and thing that pawaPay may consider necessary or desirable to perfect the right, title and interest of pawaPay in and to the Software.
17.5. The Merchant shall use all reasonable endeavours to prevent any infringement of the Software, by its personnel and shall immediately report to pawaPay any such infringement that comes to its attention.
17.6. Neither the Merchant nor any of its affiliates or Representatives shall make any copies of the Software.
17.7. Neither the Merchant nor any of its affiliates or Representatives shall give access to the Software through any network or otherwise of computers to users who are not employees or agents of the Merchant.
17.8. Neither the Merchant nor any of its affiliates or Representatives may make adaptations or variations of the Software without the prior written consent of pawaPay.
17.9. Neither the Merchant nor any of its affiliates or Representatives may disassemble, decompile, reverse translate, in any other manner decode or attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of the Software.
17.10. The Merchant acknowledges pawaPay’s absolute right, title and interest in and to all Intellectual Property Rights as may subsist in the Software. The Merchant hereby assigns to pawaPay 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.
18. Costs
18.1. Each Party shall bear its own legal costs of, and incidental to, the negotiation, preparation, settling, signing and implementation of this Agreement.
19. No partnership or agency
19.1. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership between the Parties or constitute (subject to Clause 3.2) any Party the agent of another Party.
19.2. Each Party confirms that it is acting on its own behalf and not for the benefit of any other person.
20. Force Majeure
20.1. Force Majeure Event means any circumstance not within a Party's reasonable control including, without limitation:
20.1.1. acts of God, flood, drought, earthquake or other natural disaster;
20.1.2. epidemic or pandemic;
20.1.3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
20.1.4. nuclear, chemical or biological contamination or sonic boom;
20.1.5. any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
20.1.6. collapse of buildings, fire, explosion or accident; and
20.1.7. any labour or trade dispute, strikes, industrial action or lockouts (other than in each case specific to the party seeking to rely on this Clause, or companies in the same group as that party);
20.1.8. non-performance by suppliers, contractors or subcontractors (other than by companies in the same group as the party seeking to rely on this Clause);
20.1.9. interruption or failure of utility service including loss of access to the internet of a service delivered through the internet;
20.1.10. the suspension for any reason of banking and funds transfer facilities or service otherwise than where the suspension is specifically directed at Payments Merchant.
20.2. Provided it has complied with Clause 20.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
20.3. The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
20.4. The Affected Party shall:
20.4.1. as soon as reasonably practicable after the start of the Force Majeure Event but no later than 7 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
20.4.2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
20.5. If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 4 weeks, the party not affected by the Force Majeure Event may terminate this Agreement by giving 30 days’ written notice to the Affected Party.
21. Severance
21.1. 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.
21.2. 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.
22. Third Party Rights
22.1. Any person who is not a Party to this Agreement shall have no rights or benefits under this Agreement.
23. Counterparts
23.1. 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.
23.2. No counterpart shall be effective until each Party has executed and delivered at least one counterpart.
24. Entire agreement
24.1. 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.
24.2. 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.
24.3. Nothing in this Clause 24 shall limit or exclude any liability for fraud.
25. Assignment
25.1. The Merchant shall not 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 pawaPay.
26. Notices
26.1. A notice given to a Party under or in connection with this Agreement:
26.1.1. shall be in writing and in English (or be accompanied by an accurate translation into English); and
26.1.2. shall be sent to the relevant Party for the attention of the contact and to the email address specified in Clause 26.2, or such other email address or contact as that Party may notify to the other in accordance with the provisions of this Clause 26.
26.2. The email address for service of notices for pawaPay is legal@pawaPay.io
26.2.1. The email address for service of notices for the Merchant shall be an email of the director or Business Representative, or any email designated as such by a director or Business Representative.
26.3. Delivery of a notice is deemed to have taken place (provided that all other relevant requirements in this Clause 26 have been satisfied):
26.3.1. at the time of transmission; and
26.3.2. if deemed receipt under the previous paragraphs of this Clause 26.3 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.
26.4. 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.
26.5. 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.
26.6. A Party may change its details for service of notices as specified in Clause 26.2 and 26.5 by giving written notice to the other Parties. Any change notified pursuant to this Clause 26.6 shall take effect at 9.00 am on the later of:
26.6.1. the date (if any) specified in the notice as the effective date for the change; and
26.6.2. five Business Days after deemed receipt of the notice of change.
26.7. 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.
27. Waiver
27.1. 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.
27.2. 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.
27.3. 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.
28. Governing law and dispute resolution
28.1. 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.
28.2. 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:
28.2.1. the number of arbitrators shall be one;
28.2.2. the seat, or legal place, of arbitration shall be London; and
28.2.3. the language to be used in the arbitral proceedings shall be English.
28.3. The provisions of Clause 28.2 are without prejudice to the rights of either party to take any judicial proceedings against the other party in circumstances that present an immediate material risk to that party and for this purpose the parties submit to the non-exclusive jurisdiction of the Courts of England and Wales.
This Agreement has been entered into on the Commencement Date.
Appendix A
Definitions and Interpretation
In this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:
“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;
“Commencement Date” has the meaning ascribed to it Clause 2.1.
“Compliance Checks'" means all the verifications and checks done by pawaPay internal compliance team on the Merchant’s during the due diligence phase.
“Data Privacy Laws” means:
(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the party is subject, which relates to the protection of personal data
” shall have the meaning given to such term in Clause 3.1;
“End Users” means the individual customers of the Merchant in the Territory;
“EU GDPR” means the General Data Protection Regulation (EU) 2016/679.
“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;
“Insolvency Event” means any of the following in relation to the relevant Party:
a. the relevant Party, 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:
(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, Payment Provider with one or more other companies or the solvent reconstruction of that relevant Party, Payment Provider;
(ii) 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, Payment Provider other than for the sole purpose of a scheme for a solvent amalgamation of that relevant Party, Payment Provider with one or more other companies or the solvent reconstruction of that relevant Party, Payment Provider ;
(iii) 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, Payment Provider;
(iv)the holder of a floating charge over the assets of that relevant Party, Payment Provider has become entitled to appoint or has appointed an administrative receiver;
(v)a person becomes entitled to appoint a receiver over the assets of the relevant Party, Payment Provider or a receiver is appointed over the assets of such relevant Party, Payment Provider ;
(vi)a creditor or encumbrancer of the relevant Party, Payment Provider
(vii)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;
(viii)any event occurs, or proceeding is taken, with respect to the relevant Party, Payment Provider in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (i) to (vii) 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 and the MNO in its respective country within the Territory for the purpose of operating mobile money payment services;
“pawaPay Wallet” means the MNO wallet held by our Payment Providers in the Territory;
“Payment Providers” means the third-party companies appointed by Payments Techco to collect, hold and perform the payment processing services for Payments Techco in the Territory;
● For Benin, KERRY PAYMENTS BENIN SARLU, a company incorporated under the laws of Benin with company number RB/COT/21 B 29009 and having its registered office at Maison Gohoungo, Quartier Godomey Houala Jomey Carrefour du marché Houenoussou, Cotonou, Benin;
● For Burkina Faso KERRY PAYMENTS BURKINA FASO SARLU, a company incorporated under the laws of Burkina Faso, with company number BF-OUA-01-2022-B13-5083 and having its registered office at 11 BP 838 OUAGADOUGOU CMS, Burkina Faso;
● For Cameroon, KERRY PAYMENTS SARLU , a company incorporated under the laws of Cameroon with company number RC/DLA/2020/B/3845 and having its registered office at Carrefour Ancien PMUC, Akwa Douala ,Cameroon;
● For Congo Brazzaville, KERRY PAYMENTS BRAZZAVILLE SARL, a company incorporated under the laws of Congo Brazzaville with company number CG-PNR-01-2022-B12-00265 and having its registered office at Pointe-Noire, Centre-Ville, 243 Avenue Général De Gaulle, Tour Mayombe 10è Etage, entrée A porte 33, B.P 430, Congo Brazzaville;
● For Côte d’Ivoire, KERRY PAYMENTS COTE D’IVOIRE SARLU , a company incorporated under the laws of Côte d’Ivoire with company number ABJ-03-2021-B13-01993 and having its registered office at 02 BP 512 Abidjan 02, Côte d’Ivoire;
● For DRC, KERRY PAYMENTS RDC SARLU a company incorporated under the laws of Democratic republic of Congo with company trade number CD/LSH/RCCM/21-B-00126 with its registered office at 9B Av. Luvua-Kambove, Lubumbashi, Haut-Katanga;
● For Ghana, QUIDEXPLUS LIMITED, a company incorporated under the laws of Ghana with company number CS060212020 and having its registered office at 6th Floor, The Octagon Barnes Rd, Accra Central, Ghana;
● For Guinea Bissau, KERRY PAYMENTS GUINEA BISSAU SARLU, a company incorporated under the laws of Guinea Bissau with company number S10304760 and having its registered office at Rue Justino Lopes lot n.74, Guinea Bissau;
● For Guinea Conakry, KERRY PAYMENTS GUINEA CONAKRY SARLU, a company incorporated under the laws of Guinea Conakry with company number GN.TCC.2021.B.13521 and having its registered office at Kipé T2, Immeuble Brandon, Près de la Pharmacie Afia, Guinea Conakry;
● For Kenya, QUIDEXPLUS KENYA LIMITED, a company incorporated under the laws of Kenya with company number PVT 7LU5GVJA and having its registered office at WAIYAKI WAY, BUILDING: ABC PLACE BLOCK B, Nairobi, Kenya;
● For Lesotho, QUIDEXPLUS LESOTHO LIMITED, a company incorporated under the laws of Lesotho with company number 86343 and having its registered office at Lccul Complex, Old School Road, Maseru West, Maseru, 100, Lesotho;
● For Malawi, ATLAS DIGITAL SERVICES LIMITED, a company incorporated under the laws of Malawi with company number 1012911 and having its registered office at Sacranie Gow & Company, Realty House, Churchill Road, Limbe, Malawi, P.O. Box 5133, Limbe, Malawi;
● For Rwanda, QUIDEXPLUS RWANDA LIMITED, a company incorporated under the laws of Rwanda with company number 113531160 and having its registered office at Block B 9th floor, M. Peace plaza building, Nyarugenge, Nyarugenge, Umujyi wa Kigali, Rwanda;
● For Senegal, KERRY PAYMENTS SENEGAL SUARL, a company incorporated under the laws of Senegal with company number SN.DKR.2021.B.25318 and having its registered office at 7943, SICAP LIBERTE 6, DAKAR;
● For Sierra Leone, KERRY PAYMENTS SL Limited, a company incorporated under the laws of Sierra Leone with company number SL010623KERRY17788 and having its registered office at 49 Waterloo Street, Freetown Sierra Leone;
● For Tanzania, MADINA TECHGROUP LIMITED, a company incorporated under the laws of the United Republic of Tanzania with company number 139831 and having its registered office at Number 18, Block Number 24, Plot number 436, Malik Road, 11103, Upanga Magharibi, Dar Es Salaam;
● For Uganda, QUIDEXPLUS UGANDA LIMITED, a company incorporated under the laws of Uganda with company number 80020003645221 and having its registered office at PLOT 49 NTINDA ROAD.NTINDA, KAMPALA and the Postal Address is P.O BOX 107797. KAMPALA. UGANDA; and
● For Zambia, SMARTPAY SOLUTIONS LIMITED, a company incorporated under the laws of Zambia with company number 81659 and having its registered office at 377A Bishops Road, Kabulonga, Lusaka, Zambia.
“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;
“Premium Services” means the premium pawaPay Services as set out on the pawaPay Website;
“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;
“Representative” means a director or individual authorised by your company to act on behalf of your company and bind it to any agreements;
“Regulatory Authority” means any regulator or other public body having supervisory or regulatory authority over pawaPay, the Payment Provider, or the Merchant;
"Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any sanctions from international organizations such as but non limited to, OFAC or FAFT.
“Services” means the Standard and Premium pawaPay services as detailed on the pawaPay Website here:
▪ the collection on behalf of the Merchant of funds from mobile money wallets of End Users;
▪ where required, the settlement of the Merchant funds from the Territory to the jurisdiction of the Merchant’s choice (provided that such country is not a Sanctioned Country or outside of pawaPay’s capacity); and
▪ disbursements of Merchant funds from either pawaPay Wallet or Merchant Wallet, to the Merchant’s required bank account or nominated wallet.
“Software” means the payments processing software developed by pawaPay together with any and all improvements, corrections, modifications, updates, enhancements or other changes, whether or not included in the current retail version;
“Standard Services” means the standard pawaPay Services as detailed on the pawaPay Website;
“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, withholding tax 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 Africa;
“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
“VAT” means value added tax or goods and services tax or any equivalent tax chargeable in the Territory;
“Website” means the pawaPay website which can be found here.
SCHEDULE 1 – FINANCIAL SERVICES
This Schedule to the General Terms is applicable to Merchants who operate in financial services including, but not limited to, banks, payment services providers, insurance companies, microfinance banks, microfinance institutions. The terms of this Schedule should be read together and in conjunction with the General Terms.
1. Merchant’s Obligations
1.1. In addition to the Merchant obligations in the General Terms, the Merchant or its Representative shall provide the following information to pawaPay in a monthly report within the first 5 business days of each month.
1.1.1. A list of all the merchants that have been onboarded and the onboarding date;
1.1.2. The Merchant website;
1.1.3. A confirmation that industries of the Merchants that have been onboarded do not contravene the business types set out in this Schedule 1 (Financial Services) above;
1.1.4. The transaction volume and value of each Merchant;
1.1.5. Where the merchants are licensed, the Merchant shall require approval from the pawaPay compliance department before proceeding with the onboarding;
1.2. With respect to paragraph 1 above, the Merchant or its Representative shall:
1.2.1. provide any document requested within three (3) Business days including the Know your Customer documentation collected by the Merchant. pawaPay reserves the right (in its sole discretion) to disconnect the counterparty or the counterparties merchants where the counterparty fails to provide such documentation.
1.2.2. comply with the Data Privacy Laws;
1.2.3. in compliance with the ABC Laws in each Territory requested, operate an effective and robust AML/CFT compliance programme (subject to audit by pawaPay);
1.2.4. perform the following tasks in respect of End Users (“Onboarding Screening”):
1.2.4.1. identify the End User and verify the End User’s identity using reliable, independent source documents, data or information;
1.2.4.2. where appropriate based on an assessment of AML/CFT risks, obtain information on the purpose and intended nature of the business relationship between the End User and the Merchant;
1.2.4.3. screen new End Users to confirm that they are not listed among the names listed on the general lists provided by a reputable provider of such lists (e.g. Dow Jones) which may be conducted using “offline” lists (the "Watchlists");
1.2.4.4. conduct sanction list screening against lists of individuals and entities whose assets must be blocked, rejected or frozen pursuant to Applicable Law in the Territory (if any) (referred to as "Local Watchlists");
1.2.4.5. screen existing End Users on a daily basis to confirm that they are not listed among any new names that are added to the Watchlists and Local Watchlists;
1.2.4.6. adopt and adhere to, as a minimum, stringent Anti-Bribery and Corruption policies;
1.2.4.7. complete sufficient transaction monitoring of End-User activity to enable reasonable detection of activity which may be considered suspicious, and which indicates a potential money laundering, terrorist financing and/or fraud risk. In respect of this, due diligence information collected from the Merchant, including business type and expected transaction value sizes and volumes must be used when conducting such monitoring;
1.2.4.8. to the extent that any Onboarding Screening or transaction monitoring indicates that a new or existing End User is an AML/CFT risk or is on the Watchlists or equivalent, the Merchant shall notify pawaPay immediately;
1.2.4.9. upon request of pawaPay, provide pawaPay, with all documents necessary to enable pawaPay to perform its Know Your Customer verification checks;
1.2.4.10. ensure that it maintains appropriate records including receipts for a period of ten (10) years from the date of each transaction (or any other period as required under Applicable Law) providing the following information:
1.2.4.10.1. the date and time of each payment or reversal;
1.2.4.10.2. the payment or reversal amount and currency;
1.2.4.10.3. the related products or service sold; and
1.2.4.10.4. details of the location or site for the sale and the Merchant ID; and
1.2.4.11. accept, acknowledge and agree that any of the records kept in accordance with sub-Clause 1.6.6. must be provided within one (1) Business Day to the MNO upon their reasonable request.
1.3. Where the Merchant or its Representative (as the case may be) is unable to comply with its obligations set out in this Clause 1 (Merchant Obligations), the parties agree that pawaPay may (in its sole discretion) suspend the Merchant’s access to the Services until the Merchant or its Representative is able to demonstrate compliance with this Clause 1.
Without limiting its rights or remedies under this Agreement, pawaPay may terminate this Agreement with no liability to the Merchant where the Merchant or its Representative does not comply with the obligations set out in this Clause 1 (Merchant Obligations) and where, following suspension of the Services by pawaPay the Merchant or its Representative is still unable to demonstrate compliance with this Clause 1 (Merchant Obligations).
SCHEDULE 2 – INTERMEDIARY MERCHANTS
This Schedule to the General Terms is applicable to merchants who in accordance with procedures required by pawaPay onboard sub-merchants on their platform, such as, but not limited to, e-commerce platforms. The terms of this Schedule are read together and in unison to the General Terms. Where aspects are not covered in this Schedule, aspects in the General Terms shall cover it.
Definitions
"Regulated Merchant” or “Regulated Sub Merchant” means a Merchant or Sub Merchant who is required to hold a specific licence from an Authority to carry out its business in its territory and where failure to hold such licence would mean the business carried out by the Merchant or Sub Merchant is unlawful.
“Services” mean, where relevant;
▪ the collection of funds from mobile money wallets of End Users to the pawaPay Wallet or Merchant Wallets; or
▪ settlement of the Merchant or Sub Merchant funds from the Territory to the jurisdiction of his choice, provided that such country is not a Sanctioned Country or in pawaPay’s capacity; and
▪ disbursements of the Merchant or Sub Merchant funds from the pawaPay Wallet or Merchant Wallet.
“Sub Merchants” means merchants onboarded on the Merchant’s platform;
1. Services
1.1. With effect from the Commencement Date, pawaPay shall provide to the Merchant and the Sub Merchant, the Services in the Territory. Our Services in this paragraph are contingent on the existence of an agreement between the Merchant and the Sub Merchant which includes setting out the terms governing pawaPay relationship with the Sub Merchant (the Appendix). The form of the Appendix is included in this agreement, and in any event, shall be on terms no less onerous than the terms set out in the General Terms.
1.2. pawaPay reserves the right to disable the provision of the Services to any Sub Merchant who fails to comply with the terms of the Appendix or does not pass Compliance Checks.
1.3. To the extent that the Merchant fulfils its obligations under this Agreement (and this Schedule 2) pawaPay shall be liable for any and all obligations owed by pawaPay to a Sub Merchant by virtue of such Sub Merchants being onboarded onto the Merchant’s platform.
1.4. Where an issue arises with regards to the Services provided to a Sub Merchant under this Agreement, and pawaPay (in its sole discretion) determines that such issue arises out of an act or omission by the Merchant, the parties agree that the Merchant shall be solely liable for the costs associated with remedying such issue and any losses incurred by the Sub Merchant.
2. Merchant’s Obligations
2.1. In addition to the Merchant obligations in the General Terms, the Merchant shall:
2.1.1. ensure that it enters into an agreement with each Sub Merchant (on terms no less onerous than the General Terms) that includes the Appendix. For the sake of clarity, the Appendix to this Agreement shall be form part of the Merchant’s agreement with the Sub Merchant;
2.1.2. Merchant shall provide the following information of each Sub Merchant in a monthly report:
2.1.2.1. A list of all the Sub Merchants that have been onboarded
2.1.2.2. The onboarding date for each sub merchants
2.1.2.3. The industry
2.1.2.4. The websites
2.1.2.5. The collection volume
2.1.2.6. The disbursement volume
2.1.2.7. Total volume.
2.1.3. The report referenced in 2.1.2. shall be shared with pawaPay within the 5 first business days of the month to the following address: compliance@pawapay.co.uk
2.1.4. Prior to the onboarding of any betting Sub-Merchant, the Merchant shall provide pawaPay with the following
2.1.4.1. a valid betting licence in the name of the Sub-Merchant; and
2.1.4.2. the certificate of incorporation of the Sub-Merchant.
2.1.5. Any failure to comply with this obligation may result in the temporary suspension of our services to you. If reporting is not received after 7 days without any justified reason, pawaPay reserves the right to unilaterally terminate the contract with immediate effect in accordance with Clause. In the event that the Merchant wishes to enrol a Regulated Sub merchant the Merchant must send a copy of its licence and the documents specified in 2.1.6. below, to pawaPay. For all cases of onboarding of a Regulated Merchant without a licence pawaPay reserves the right to terminate this Agreement with immediate effect.
2.1.6. With respect to 2.1.2., the Merchant shall provide any document requested within three (3) Business days. pawaPay reserves the right to disconnect the Merchant or the Sub Merchants where the Merchant fails to provide such documentation.
2.1.7. Subject to 2.1.4., the Merchant shall identify the Sub Merchant and verify the Sub Merchant’s identity using reliable, independent source documents, data or information provide pawaPay with all documents necessary to enable to perform its Know Your Client verification checks on the Sub Merchant within a week of onboarding a new Sub Merchant. The documents to be collected from the Sub Merchant shall include but not be limited to:
2.1.7.1. Certificate of incorporation;
2.1.7.2. Articles of association; and
2.1.7.3. Identification documentation for directors and ultimate beneficial owners
2.1.8. The Merchant shall ensure that it maintains appropriate records including receipts for a period of ten (10) years from the date of each transaction (or any other period as required under Applicable Law) providing the following information:
2.1.8.1. the date and time of each payment or reversal;
2.1.8.2. the payment or reversal amount and currency;
2.1.8.3. the related products or service sold; and
2.1.8.4. details of the location or site for the sale and the Merchant ID.
APPENDIX 1 - SUB MERCHANT TERMS AND CONDITIONS
1. Services and Support
1.1. The terms and conditions below are provided in order to facilitate the receipt by you of the Services made available through pawaPay. In entering into a contract with us you agree that pawaPay may enforce directly against you the following terms and conditions.
1.2. With effect from the Commencement Date, we shall provide you the Services in the Territory.
1.3. pawaPay shall hold the funds paid by the End User to You for the relevant goods and services, in the pawaPay Wallet, where upon funds will flow into the pawaPay bank account.
1.4. You shall not be entitled to receive the Services without first undergoing KYC and providing the requested KYC documents. In the event that you are not approved through the KYC process you may be requested to provide further information or your agreement to be provided with the Services may be terminated at the option of pawaPay.
1.5. We reserve the right to disable the provision of the Services if you fail to comply with the terms of this Appendix and you agree that in such circumstances you will indemnify and hold harmless pawaPay and any affected local Payment Provider in relation to any third party claims that may be advanced against any of these companies by reason of such non compliance.
2. pawaPay Obligations
2.1. pawaPay shall:
2.1.1. provide the Services;
2.1.2. provide reasonable cooperation with You in all matters relating to the Services;
2.1.3. 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, Your sole and exclusive remedy against pawaPay 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 pawaPay in accordance with its archiving procedure. pawaPay 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 pawaPay to perform services related to End Users data maintenance and back-up for which it shall remain fully liable);
2.1.4. ensure the maintenance, during the Term, of all necessary licenses and consents required for pawaPay to provide the Services and comply with all Applicable Laws, and, if requested by You, provide copies of such licenses and consents;
2.1.5. ensure that You are settled within the settlement SLAs detailed in and into the bank account specified by the merchant in the onboarding;
2.1.6. notify You immediately if it becomes aware of any event which may cause delay to the delivery of the Services;
2.1.7. ensure that the pawaPay Relationship Manager, if one is appointed, liaises directly with You in writing.
2.2. This Appendix shall not prevent pawaPay 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 Appendix.
3. Your Obligations
3.1. You shall:
3.1.1. cooperate with pawaPay in all matters relating to the Services;
3.1.2. notify pawaPay in writing immediately upon the occurrence of a Change of Control;
3.1.3. notify pawaPay 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;
3.1.4. notify pawaPay in writing immediately upon change of the bank account details provided.
3.1.5. comply with Data Privacy Laws;
3.1.6. in compliance with the ABC Laws in the Territory, operate an effective and robust AML/CTF compliance programme;
3.1.7. identify the End User and verify the End User’s identity using reliable, independent source documents, data or information;
3.1.8. upon request of pawaPay, provide pawaPay with all documents necessary to enable pawaPay to perform its Know Your Client verification checks;
3.1.9. ensure the quality and stability of Your systems and connection to the pawaPay API are suitable;
3.1.10. respond to all fraud enquiries not later than 1 (one) Business Day in the relevant country in the Territory of receipt of such enquiry;
3.1.11. except as may be allowed by any Applicable Law and except to the extent expressly permitted under this Appendix, You shall not:
3.1.12. 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
3.1.13. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.1.14. access all or any part of the Software in order to build a product or service which competes with the Services being provided by pawaPay; or
3.1.15. use the Software to provide services to third parties; or
3.1.16. 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
3.1.17. attempt to obtain, or assist third parties in obtaining, access to the Software; or
3.1.18. introduce or permit the introduction of any virus or vulnerability into pawaPay’s network and information systems;
3.2. ensure that Your 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 You;
3.3. comply with the MNOs processes for accepting and processing payments that a MNO may prescribe from time to time;
3.4. comply with the MNO’s branding guidelines which will be made available to You;
3.5. not:
3.5.1. impose surcharges or other such additional charges on an End User in relation to a transaction; or
3.5.2. impose terms on an End User in relation to a payment which are in pawaPay’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 payment reversals;
3.6. ensure that You maintain 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:
3.6.1. the date and time of each payment or reversal;
3.6.2. the payment or reversal amount and currency;
3.6.3. the related products or service sold; and
3.6.4. details of the location or site for the sale and Your ID;
3.7. accept, acknowledge and agree that any of the records kept in accordance with sub-Clause 3.1.16 must be provided within one (1) Business Day to the Payment Provider following a request that they be provided by the MNO.;
3.8. transfer sufficient start up funds to the pawaPay Wallet or Merchant Wallet to enable the Services to be carried out by pawaPay; and
3.9. provide pawaPay, as reasonably requested, timely and accurate forecasting of future traffic volumes, including peak hour (burst), weekly, monthly and quarterly volumes by transaction values on a per mobile network operator basis.
4. Anti-Money Laundering
4.1. 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. pawaPay shall be obliged to provide the Services if they are not satisfied with any such policies, procedures or controls or the implementation thereof by You under such legal and regulatory obligation.
4.2. Upon request, You shall provide to pawaPay with such information and reasonable assistance as may be necessary for pawaPay to comply with its legal or regulatory compliance obligations, subject to applicable privacy, confidentiality and other laws.
4.3. Without limiting the foregoing, and subject to Applicable Laws, You shall share and provide pawaPay 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).
5. Term and Termination
5.1. The Services shall be provided by pawaPay from the Effective Date and shall continue in force until terminated in accordance with the terms of this Appendix (the “Term”).
5.2. You acknowledge that each of us is entitled to and that you are aware that pawaPay may terminate the Services provided to you through us by not less than one (1) month’s written notice (the “Notice Period”).
5.3. For the avoidance of doubt, if any Party has issued a notice to terminate the Service prior to pawaPay commencing with the payment integration services for an Existing Country, there will be no obligation for You to move forward with the integration process with pawaPay for those outstanding Existing Countries.
5.4. Without prejudice to any rights that have accrued under this Appendix or any other rights or remedies, You may at any time terminate this Appendix with immediate effect by giving written notice to the other Parties if for any reason whatsoever:
5.4.1. pawaPay commits a material breach of any term of this Appendix 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
5.4.2. an Insolvency Event occurs in relation to pawaPay; or
5.4.3. pawaPay suspends or ceases to carry on all or a substantial part of its business; or
5.4.4. any warranty given by pawaPay in Clause 11 (Warranties) is found to be materially untrue or misleading.
5.5. Without prejudice to any rights that have accrued under this Appendix or any other rights or remedies, You may at any time terminate the Services provided for a particular country in the Territory with immediate effect by giving written notice to pawaPay; if:
5.5.1. pawaPay shall all necessary licences and consents required to provide the Services and comply with all Applicable Laws in its country in the Territory; or
5.5.2. pawaPay fails to comply with the Policies;
5.5.3. pawaPay loses or misuses the money sitting in Your designated wallet;
5.5.4. pawaPay fails to comply with any government regulation concerning its existence and its operations.
5.6. Without prejudice to any rights that have accrued under this Appendix or any other rights or remedies as a matter of law or otherwise, pawaPay may at any time terminate this Appendix with immediate effect by giving written notice You if for any reason whatsoever:
5.6.1. You fail to pay any amount due under this Appendix on the due date for payment and remains in default more than 15 days after being notified in writing to make such payment; or
5.6.2. Your contractual relationship with [Name of Merchant] is terminated; or
5.6.3. You commit a material breach of any term of this Appendix 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
5.6.4. an Insolvency Event occurs in relation to You; or
5.6.5. You suspend or cease to carry on all or a substantial part of its business; or
5.6.6. any warranty given by You in Clause 11 (Warranties) is found to be materially untrue or misleading.
6. Actions post termination or expiry of this Appendix
6.1. To the extent this Appendix is terminated before all pawaPay Fees have been paid by You to pawaPay, the Parties hereby agree that pawaPay shall, within seven (7) days of the termination date of the Appendix, provide You 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.
6.2. To the extent this Appendix is terminated and there are funds sitting in any of your Wallets, pawaPay shall, under Clause 7.1, procure that, within seven (7) days of the termination date of the Appendix, pay the balance of funds in the relevant Wallet to You (as the case may be).
6.3. On termination of this Appendix, Clauses 2 (Definitions and Interpretation), 7 (Set-Off), 9 (Confidentiality), 10 (Data Protection), 12 (Limitation of Liability), 13 (Intellectual Property), Clauses 15 (Third Party Rights) to Clause 17 (Governing Law and Dispute Resolution) inclusive shall continue in force and effect.
6.4. Termination of this Appendix 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 Appendix which existed at or before the date of termination.
7. Set-Off
7.1. For the purpose of the set off, pawaPay is entitled to defer any settlement or any other sum due to You to the extent that pawaPay considers necessary or appropriate to protect their ability to recover pawaPay Fees or any other liability (actual or anticipated) of You in connection with this Appendix.
7.2. If the pawaPay Fees or any other liability are in different currencies to the currencies held on behalf of You, pawaPay may convert the unpaid pawaPay Fees or any other liability at the prevailing Google finance rate for the purpose of the set-off.
7.3. The exercise by pawaPay 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 pawaPay is otherwise entitled (by operation of law, contract, or otherwise).
8. Indemnities
8.1. You 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 “pawaPay Losses”) in each case which may be suffered by pawaPay (or their directors, officers or other approved representatives) arising directly as a result of the breach by You (or Your directors, officers or other approved representatives) of Clauses 3 (Your Obligations) 4 (Anti-Money Laundering), 9 (Confidentiality), 10 (Data Protection), 11 (Warranties) and 12 (Intellectual Property) of this Appendix.
9. Confidentiality
9.1. Each Party undertakes that it shall not at any time disclose to any person the terms of this Appendix, 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 9.2, or information that:
9.1.1. is or becomes publicly known or generally available to the public other than through any act or omission of the receiving Party;
9.1.2. was in the other Party's lawful possession before the disclosure;
9.1.3. is permitted to by the disclosing party to be disclosed;
9.1.4. is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
9.1.5. is agreed between the parties in writing that it is not confidential; or
9.1.6. is independently developed by or for the receiving Party, independently of the information disclosed, and which independent development can be shown by written evidence.
9.2. A Party may disclose the confidential information:
9.2.1. 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 Appendix. Each Party shall ensure that its Permitted Representatives to whom it discloses the confidential information comply with this Clause 9, and in any event, shall be responsible for any breach made by them;
9.2.2. pawaPay may be required to disclose the terms and conditions of this Appendix to the applicable MNO in accordance with the MNO Know-Your-Client policies. pawaPay are entitled to make this disclosure.
9.2.3. pawaPay 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 Appendix. pawaPay shall ensure to whom it discloses the confidential information comply with this Clause 9, and in any event, shall be responsible for any breach made by them;
9.2.4. as may be required by law, a court of competent jurisdiction or any governmental or Regulatory Authority; or
9.2.5. if each of the Parties agrees in writing to such disclosure.
9.3. 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 Appendix.
10. Data Protection
The Parties to this Agreement are governed by the terms of pawaPay’s Data Processing Agreement, which can be found here and shall be deemed to form part of this Agreement. For the avoidance of doubt, the Merchants acceptance of this Agreement shall constitute an acceptance of the Data Processing Agreement.
11. Warranties
11.1. You hereby represent and warrant that You have not been subject to the following:
11.1.1. criminal conviction (except Petty Offences) in any country;
11.1.2. federal or state tax lien, or any foreign tax lien;
11.1.3. any ongoing dispute with or investigation by any Tax Authority or, as far as You are aware, any threatened audits, investigations, disputes, inquiries, enquiries, or other administrative or judicial proceedings with respect to Your liability for any Taxes, and there are no matters under discussion with any Tax Authority with respect to the liability of You for any Taxes;
11.1.4. administrative or enforcement proceedings commenced by the securities regulator or any similar Regulatory Authority, in any country;
11.1.5. restraining order, decree, injunction, or judgement in any proceeding or lawsuit, alleging fraud or deceptive practice on Your part;
11.1.6. any action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving You with respect to any Applicable Laws relating to anti-money laundering is pending or, to the best of Your knowledge threatened.
11.2. Each of the Parties represents and warrants to the other that:
11.2.1. it is duly organised and validly existing under the laws of the jurisdiction of its organisation or incorporation;
11.2.2. It has the necessary licences to carry out the Business, and has shared the same with pawaPay;
11.2.3. it has full power and authority and has obtained all necessary authorities and consents to enter into and perform its obligations under this Appendix and such other agreements and arrangements referred to in this Appendix; and
11.2.4. the signing of this Appendix and the performance of its obligations under this Appendix and the other agreements and arrangements referred to in this Appendix 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.
11.3. The following definitions shall apply to Clause 11.4:
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).
11.4. Each of the Parties warrants and represents to the other that:
11.4.1. 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.
11.4.2. 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;
11.4.3. 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;
11.4.4. 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.
12. Limitation of liability
12.1. References to liability in this Clause 12 include every kind of liability arising under or in connection with this Appendix including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.2. Nothing in this Clause 12 shall limit Your payment obligations under this Appendix.
12.3. Nothing in this Appendix limits any liability which cannot legally be limited, including liability for:
12.3.1. death or personal injury caused by negligence;
12.3.2. fraud or fraudulent misrepresentation; and
12.3.3. breach of terms implied by section 2 of the Supply of Goods and Services Act 1982.
12.4. Save in the case of Clause 4 (Anti-Money Laundering), and 11.1, pawaPay’s total liability to You shall not exceed the pawaPay Fees paid to pawaPay by You in the three (3) months preceding the date such cause of action arose.
12.5. Save in the case of Clauses 4 (Anti-Money Laundering), 8 (Indemnity), 10 (Data Protection), 11 (Warranties) and 13 (Intellectual Property), Your total liability to pawaPay shall not exceed the amount of pawaPay Fees paid to pawaPay by You in the six (6) months preceding the date such cause of action arose.
12.6. Nothing in this Appendix shall limit Your liability under the following Clauses:
12.6.1. Clause 9 (Confidentiality);
12.6.2. Clause 10 (Data Protection);
12.6.3. Clause 11 (Warranties); and
12.6.4. Clause 13 (Intellectual Property).
12.7. Unless You notify pawaPay that You intend to make a claim in respect of an event within the notice period, pawaPay shall have no liability for that event. The notice period for an event shall start on the day on which You 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.
12.8. Notwithstanding anything else in this Appendix, no Party to this Appendix 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 Appendix.
13. Intellectual Property
13.1. Nothing set forth in this Appendix 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.
13.2. The Software is, and shall remain, the property of pawaPay (or the appropriate third-party rights-owner(s), if any).
13.3. You shall not acquire any rights in or to the Software.
13.4. You shall do and execute or arrange for the doing and executing of, each necessary act, document and thing that pawaPay may consider necessary or desirable to perfect the right, title and interest of pawaPay in and to the Software.
13.5. You shall use all reasonable endeavours to prevent any infringement of the Software, by its personnel, and shall promptly report to pawaPay any such infringement that comes to its attention.
13.6. You shall not make any copies of the Software.
13.7. You shall not give access to the Software through any network or otherwise of computers to users who are not Your employees or agents.
13.8. You may not make adaptations or variations of the Software without the prior written consent of pawaPay;
13.9. You may not disassemble, decompile, reverse translate or in any other manner decode the Software.
13.10. You acknowledge pawaPay’s absolute right, title and interest in and to all Intellectual Property Rights as may subsist in the Software. You hereby assign to pawaPay any and all goodwill and related or similar rights in the Software accruing during the Term. You agree to execute any confirmatory assignment or similar document as may be reasonably requested to evidence such transfer.
14. Third Party Rights
Other than to an extent a Payment Provider is required to carry out any actions under this Appendix, a person who is not a Party to this Appendix shall have no rights or benefits under this Appendix.
15. Entire agreement
15.1. This Appendix (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 Appendix.
15.2. Each Party acknowledges that in entering into this Appendix (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 Appendix or those documents.
15.3. Nothing in this Clause 15 shall limit or exclude any liability for fraud.
16. Assignment
16.1. 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 Appendix (or any other document referred to in it) without the prior written consent of the other Parties save that pawaPay may assign its rights and obligations under this Appendix to any Affiliate.
17. Governing law and dispute resolution
17.1. This Appendix 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.
17.2. 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:
17.2.1. the number of arbitrators shall be one;
17.2.2. the seat, or legal place, of arbitration shall be London; and
17.2.3. the language to be used in the arbitral proceedings shall be English.
17.3. The provisions of paragraph 17.2 are without prejudice to the rights of either party to take any judicial proceedings against the other party in circumstances that present an immediate material risk to that party and for this purpose the parties submit to the non-exclusive jurisdiction of the Courts of England and Wales.