MOJOPAY MERCHANT AGREEMENT MERCHANT AGREEMENT

Introduction

PLEASE READ THE FOLLOWING AGREEMENT, ALONG WITH ITS TERMS AND CONDITIONS, (THE “MOJOPAY TERMS AND PRIVACY POLICY”) CAREFULLY BEFORE ACCESSING OR USING THE MOJOPAY SERVICES. NOTE THAT THIS AGREEMENT AND CONDITIONS CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU (THE MERCHANT) AND MOJOPAY (THE SERVICE PROVIDER).

YOU MAY NOT ACCESS OR USE ANY MOJOPAY SERVICES UNLESS YOU AGREE TO ABIDE BY ALL OF THE TERMS AND CONDITIONS AS CONTAINED IN THIS AGREEMENT.

Please read the contents of this document carefully and print the copy sent to your email and/or retain this information electronically for your records.

This Merchant Service Agreement (“Agreement”) is a legal agreement between MojoPay Ghana LTD (and where the context requires its Affiliates, agents and Assigns) (hereinafter referred to as “MOJOPAY”)  and You (hereinafter referred to as the “Merchant”), as a user in order for You,  to receive Payment Processing and related Services as provided by MOJOPAY and as set out in this Agreement, and the MOJOPAY Website.

MojoPay, and Merchant are herein referred to collectively as “Parties” and individually as a “Party”.

Whereas:

1. MOJOPAY is an integrated payment and transaction processing company that provides technology integrations, advisory products and services, and transaction processing and payment infrastructure to individuals, government bodies and corporate organizations across various sectors.
2. MOJOPAY is in collaboration with Acquiring Banks, Issuing Banks, Payment Schemes, Mobile Network Operators, payment processing companies other Scheme Owners and Partners to provide  Payment processing  Methods to Merchants.
3. The Merchant is desirous to partner with MOJOPAY to process   payments to and from its Customers and to have access to the Payment Methods.

Now It Is Hereby Agreed As follows:

1. Definitions

In this Agreement, the following definitions apply:

“Acquiring Bank” means the financial institution/bank that processes credit or debit Card payments on behalf of a Merchant and “Banks” shall be construed accordingly;

“Affiliate” means, in relation to any Party, any entity in the same group as that Party, including but not limited to a subsidiary or a holding company of that Party and any direct or indirect subsidiaries of such holding company;

 “Agreement” means this Merchant Service Agreement and any addendums, supplements, appendices, amendments, modifications, extensions and revisions therein;

“Applicable Law(s)” includes but is not limited to all legislation, laws, regulations, rules, directives, approvals, codes, policies, guidelines, requirements, and notices (together “rules”) of any competent regulatory entity, including without limitation, all rules with respect to payments, data protection, data privacy and data security, and any successor rules amending, consolidating or replacing such rules, that is applicable to the deployment or operation the Services to be provided pursuant to this Agreement, and any court decision having the force of law in Ghana that may in anyway impact on the Services to be provided pursuant to this Agreement;

“Bank” means the financial institution designated by the Merchant to MOJOPAY and to which MOJOPAY settles all monies due and owing to the Merchant;

“Business Day” means any day other than Saturday, Sunday, or a public holiday on which banking institutions in Ghana are open for business;

“Card” means a prepaid virtual and/or physical debit or credit card issued by an Issuing Bank which is branded with one or more marks or signage of a Payment Scheme, from which payments may be made on the MOJOPAY Platform;

“Cardholder” means any authorized user of a Card who uses the Card to carry out a Card Transaction on the MOJOPAY Platform;

“Chargebacks” means the reversal of a transaction or request for repayment in respect of a transaction previously settled and/or remitted that comes from an MNO, the Bank, Payment Scheme or other financial institution.

The reasons for Chargebacks include (but are not limited to):

1. the transaction amount not being authorized;
2. the End User/Cardholder alleging:
   1. non-participation in the transaction; or
   2. non-authorization of the transaction; or
   3. non-receipt of goods and/or services purchased;
3. cancelled or uncompleted pre-authorized transaction; or
4. suspected fraud on account.

“Confidential Information” means all information relating to the Disclosing Party which is obtained, whether in writing, pictorially, in machine readable form or orally or by observation in connection with this Agreement, including but without limitation, financial information, know-how, processes, ideas, intellectual property (irrespective of its registrability or patentability status), schematics, trade secrets, technology, customer list (potential or actual) and other customer-related information, sales statistics, market, market intelligence, marketing and other business strategies and other commercial information of a confidential nature but does not include information which is known to the Receiving Party without any limitation or restriction on use or disclosure before receipt of such information from or on behalf of the disclosing party or becomes publicly available, other than as a breach of this Agreement, or becomes lawfully available to the Receiving Party from a third party free from any confidentiality restriction or any information required to be disclosed under any relevant law or any binding judgment or order of court or arbitration tribunal or any  regulations or under direction from any relevant Regulatory Authority;

“MOJOPAY Platform” means the MOJOPAY infrastructure that authorizes payments for and on behalf of Merchants;

“MOJOPAY Terms and Conditions” means collectively the terms and conditions set forth in this Agreement, as may be amended from time to time, including all exhibits, schedules and addendum thereto, the Privacy Policy and the Terms of Use of the MOJOPAY Platform on the MOJOPAY Website as may be in place from time to time;

“Customers ” means patrons of the Merchant in relation to a payment Transaction processed using the MOJOPAY Platform, and may be used interchangeably with “End Users”;

“Data” shall mean characters, symbols and binary on which operations are performed by a computer which may be stored, processed or transmitted in the form of electronic signals or other technological means and stored in any format or any device;

“Data Protection Act” means the Data Protection Act of Ghana 2012, (Act 843);

“Disclosing Party” means any one of the Parties under this Agreement who discloses Confidential Information to the other Party to this Agreement;

“Effective Date” means the date this Agreement becomes effective and shall be construed to be the date on which the Merchant accepted the MOJOPAY Terms and Conditions together with its Privacy Policy;

“Fines” means any and all fines, levies, costs, expenses, charges, assessments or imposition of liabilities of any nature which the Payment Schemes or other financial institution require either the Merchant or MOJOPAY to pay or which are otherwise directly or indirectly recovered from MOJOPAY at any time and which relate to any aspect of this Agreement (including the provision of the Services hereunder);

“Force Majeure” means any event or circumstance whatsoever which is not within the reasonable control of the affected Party including (without limitation) Act of God, strikes, thefts, fire, explosion, riot, insurrection or other civil disorder, war (whether declared or not), or military operations, international restrictions, any requirement of any international authority, any requirement of any government or other competent local authority and any court order;

“Fraudulent Transactions” shall include but are not limited to:

• Any purchase of goods and services and/or Transaction arising from the use of Mobile wallet, Card or other form of electronic money by a person other than the authorized holder of that account or Card;
• Use of mobile wallet, Card or other form of electronic money that is not authorised in terms of the rules governing the issuance and use of such Payment Method;

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or 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;

“Issuing Bank” means a financial institution that issues Cards under the authority of the relevant Payment Scheme;

“MNO” means a mobile network operator;

“Payment Method” shall mean the various means of enabling payments through the MOJOPAY Platform by End Users to Merchants including Cards, online bank transfer, direct debit, mobile payment and e-money;

“Payment Scheme” means Visa, MasterCard, American Express, Discover® Global Network and any Affiliates thereof or any other Card payment network (including any local schemes thereof) and/or such other schemes governing the issue and use of credit, debit, charge, purchase or any other Cards or payment methods, as approved and notified by MOJOPAY to the Merchant in writing or on the MOJOPAY websites from time to time;

“Payment Scheme Rules” means individually and collectively, any and all applicable rules, regulations, standards and operating guidelines issued by any Payment Scheme, as amended and restated from time to time;

“PCI-DSS” means the Payment Card Industry Data Security Standards;

“Receiving Party” means any person receiving Confidential Information from the Disclosing Party;

“Refund” means a return of an amount to an End User or the reversal of any other payment pursuant to a request or instruction from the Merchant to MOJOPAY;

“Regulatory Authority” means any regulator or other public body having supervisory or regulatory authority over MOJOPAY and/or the Merchant;

“Risk Deposit Amount” means the amount of money held by MOJOPAY on account of the Merchant and which may be used to offset any amount, debt or liability of the Merchant where reasonably required;

“Services” means the service to be rendered by MOJOPAY to the Merchant;

“Tax” means VAT including NHIL, GETFund Levy, Covid-19 Levy, E-Levy; withholding tax, and any other levy that may from time to time be imposed by a Regulatory Authority and “Taxes” shall be construed accordingly”;

“Transaction(s)” shall mean an authorisation request made by an authorized person to initiate a payment using the Services;

“User Acceptance Test” (UAT) means the last phase of testing of the MOJOPAY Platform integration to ensure functionality according to specification.

1.2.             In this Agreementhis Agreement, unless the context otherwise requires, words importing one gender includes all other genders and words importing the singular include the plural and vice versa.

1.3.             In this Agreement, a reference to:

1.3.1. A document in the agreed form” is a reference to a document in a form approved and for the purposes of identification signed by or on behalf of the Parties;

1.3.2. A statutory provision includes a reference to;

1.3.2.1.    The statutory provision as modified from time to time (whether before or after the date of this Agreement); and

1.3.2.2.    Any subordinate legislation made under the statutory provision (whether before or after the date of this Agreement);

1.4.             A person includes a reference to any individual, body corporate, unincorporated association or partnership; and in the case of an individual, to that person’s legal personal representatives, successors or assigns;

1.5.             A clause or annex is, unless the context otherwise requires, a reference to a clause or annex to this Agreement;

1.6.             All references to the singular shall include the plural and vice versa;

1.7.             One gender shall include all other genders;

1.8.             The words “including” and “in particular” shall be deemed to be followed by the expression “(but not limited to)”;

1.9.             An account means an account and any sub-accounts of that account and as each may be substituted, renewed, re-designated, replaced or renumbered;

1.10.          The clause headings in the Agreement have been inserted for convenience only and shall not be taken into account in its interpretation;

1.11.          Words and expressions defined in any sub-clause, shall for the purposes of the clauses of which the sub- clause forms a part, bear the meaning assigned to such words and expressions in that sub-clause;

1.12.          If any definition is a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to it as if it were a substantive clause in the body of the Agreement, notwithstanding that it is only contained in the interpretation clause;

1.13.          If any period is referred to in this Agreement by way of reference to a number of days, the days shall be reckoned exclusively of the first and exclusively of the last day except the last day falls on a Saturday, Sunday or public holiday in which case it shall be made on the previous Business Day;

1.14.          Any payment which is due to be made under this Agreement which falls on a day which is not a Business Day, shall be made on the first Business Day thereafter, except if it falls in the next month, in which case it shall be made on the previous Business Day;

1.15.          A person who is not a party to this Agreement has no right to enforce any term of this Agreement; and

1.16.          The Appendices/Addendums/Annexes/Exhibits/Schedules form part of this Agreement and shall have the same force and effect as if set out in the body of this Agreement and references to this Agreement include the Annexes.

2.    Non-exclusivity

2.2.                  MOJOPAY hereby grants the Merchant the non-exclusive right to channel its Customers through the MOJOPAY Platform.

 

3.    Data Security

3.2. Each Party is responsible for ensuring Data security on their platform/website and for all Data and Confidential Information acquired pursuant to this Agreement. Each Party shall be and shall remain compliant with all Applicable Laws to the extent applicable to that Party and prior to such Party accessing any Payment Method.

 

4.    Term

4.2. This Agreement shall commence from the date on which the Merchant accepts the MOJOPAY Terms and Conditions and shall continue in force unless otherwise terminated by either party.

 

5.    Scope of Services

5.2. The Service to be performed include using the MOJOPAY technology and Platform to facilitate:

5.2.1.   Merchant’s receipt of payment for its services from its Customers;

5.2.2.   the collection, processing and disbursement of electronic money by Merchants to its Customers through a combination of any of the Payment Methods; and

5.2.3.   the disbursement of funds to the End Users from Merchants through a combination of any of the Payment Methods.

6.    MOJOPAY’s Obligations

6.2. MOJOPAY hereby agrees to:

6.2.1.   work with Acquiring Banks, MNO’s and Scheme Owners to ensure that settlements of all monies to be collected by or on behalf of the Merchant are handled in a timely manner in accordance with Applicable Law and Payment Scheme Rules;

6.2.2.   integrate the MOJOPAY Platform with the Merchant’s electronic payment systems and provide to the Merchant the Services for which the Merchant enrolls pursuant to this Agreement and payment of the applicable Fees;

6.2.3.   transmit Transaction Data to Acquiring Bank, MNOs, Scheme Owners or Relevant Authority and or in accordance with Applicable Laws and as may be required to facilitate Transactions;

6.2.4.   ensure adequate fraud protection and compliance with regulatory requirements; provided that MOJOPAY cannot guarantee that unauthorised third parties will never be able to defeat those measures or use such personal information for improper purposes. MOJOPAY will however take all reasonable and commercially achievable measures to address any security breach as soon as it becomes aware;

6.2.5.   grant to the Merchant and the Merchant hereby accepts from MOJOPAY, a limited, non-exclusive, non-transferable license and right to use the MOJOPAY Platform subject to the Merchants acceptance of the MOJOPAY Terms and Conditions;

6.2.6.   provide the Merchant with access to the Payment Methods that the Merchant signs up to;

6.2.7.   settle all monies collected by/on behalf of Merchant to Merchant’s Bank account; 

6.2.8.   provide the Merchant with a secure reporting portal or dashboard to view logs of Transactions processed on a real-time basis to assist in accounts reconciliation and the resolution of any chargeback disputes;

6.2.9.   provide the Services as described and contemplated in this Agreement; except for scheduled maintenance or temporary emergency outages and reserving the right to modify, enhance and/or suspend the Services upon a thirty (30) Business Days’ written notice to the Merchant in advance; or as may be indicated on the MOJOPAY Website.

6.2.10.                   provide the Merchant with access to standardised reports regarding the Merchant's Transactions processed;

6.2.11.                   advise Merchant by email of the start date and upon successful completion of any pre-go live UAT, to carry out a controlled end-to-end test in a live environment with selected internal users only within the Merchants organization for an agreed period (typically one or two weeks) in order to certify that the entire project implementation is successful and satisfactory with sign off by the Merchant;

6.2.12.                   provide post-implementation technology support to the Merchant on a discretionary basis; and

7.     The Merchant’s Obligations

7.2. The Merchant hereby agrees to:

7.2.1.   provide all necessary assistance as may be reasonably required by MOJOPAY in relation to the provision of the Services;

7.2.2.   utilise the MOJOPAY Platform integration solely for the purpose of the Service;

7.2.3.   where applicable, bear the Set-Up Fees for the integration required for the implementation of the Services where applicable;

7.2.4.   ensure that the Merchant retains a commercial banking relationship with one or more reputable Banks or financial institutions. The terms of such relationship shall be determined solely by Merchant and its Bank or financial institution;

7.2.5.   settle Bank charges, including but not limited to account maintenance fees and wire transfer fees that may be incurred by MOJOPAY in furtherance of the purposes of this Agreement;

7.2.6.   where applicable, fulfill all orders for products sold and/or services rendered by the Merchant to Customers on the Merchant’s website(s) or otherwise via the MOJOPAY Platform;

7.2.7.   keep its login details to the Transaction dashboard confidential and to notify MOJOPAY immediately upon learning of any unauthorised use of its username and/or password;

7.2.8.   maintain satisfactory business practices in conjunction with use of the Services;

7.2.9.   review all Transactions on its account on a regular basis and notify MOJOPAY immediately of suspected unauthorised activity or breach of information security that may have an adverse effect on MOJOPAY or its Customers;

7.2.10.                   resolve Chargeback disputes within the stipulated timelines as provided by Regulatory Authorities and/or Payment Scheme Rules and be liable for any Transaction where it fails to respond within the stipulated period for resolving a Chargeback dispute;

7.2.11.                   respond to all disputes, Chargeback and fraud enquiries not later than one (1) Business Day of receipt of such enquiry from MOJOPAY;

7.2.12.                   immediately report all suspected or deemed fraudulent Transactions to MOJOPAY and the relevant Regulatory Authorities and in all instances within the specified time period as prescribed by law;

7.2.13.                   process Transactions and Data promptly and respond to Customer queries promptly;

7.2.14.                   retain all receipts and documentation related to Transactions for the minimum period prescribed by the Applicable Law in a Territory;

7.2.15.                   assign a unique Transaction ID to every Transaction to enable tracking and dispute resolution;

7.2.16.                   give MOJOPAY the right to contact the Merchant’s Customers, where necessary, to investigate certain types of Transactions, especially those that are inconsistent or irregular or otherwise deviate from what is standard or expected;

7.2.17.                   if and where applicable, maintain at its own cost a functional website with the Merchant’s shopping cart/payment engine clearly displayed on such website as well as all point-of-sale materials in accordance with the relevant Payment Scheme Rules and to indicate that the Merchant accepts approved Cards and Payment Methods for payments for goods and services;

7.2.18.                   refrain from performing the prohibited activities listed in Appendix 3:

7.2.19.                   to carry out any agreed upon end to end UAT in a live environment with selected internal users only within the Merchant’s organization and not the general public to certify the completion and acceptance of the project under review;

7.2.20.                   to close the project, following successful implementation of a UAT, by signing off a project ‘go-live’ document provided to it by MOJOPAY, for this purpose, before releasing Merchant’s project (service) to the general public;

7.2.21.                   offer the MOJOPAY Platform to its Customers as a payment route for electronic Money, e-wallet, Cards and tokens or other Payment Methods originated through Transactions; and

7.2.22.                   to work with MOJOPAY to implement the 3D-Secure authentication on its site to certify Customer Transactions.

 

7.3. In order to ensure continued compliance with the requirements of the Bank of Ghana as well as Applicable Laws, the Merchant understands and accepts that MOJOPAY provides its Services subject to the written approvals, directives, notices or authorisations as may be issued by the Bank of Ghana and the Payment Scheme Rules from time to time along with other competent authorities. The Merchant further accepts that MOJOPAY may make any such changes to the Services or this Agreement as are strictly necessary to ensure compliance with the Bank of Ghana’s requirements and Applicable Laws and the continuous provision of the Services to the Merchant.

7.4. The Merchant acknowledges that the Cards created on the MOJOPAY Platform are the property of MOJOPAY, and will be subject to cancellation at any time by MOJOPAY or the Issuing Bank, as required by Applicable Law, or, on a case-by-case basis, where MOJOPAY and/or the Issuing Bank believes that the Card is being used for fraudulent or illegal purposes provided that MOJOPAY shall immediately notify the Merchant of such cancellation.

7.5. The Merchant agrees that it will be liable to MOJOPAY, a relevant MNO and or Issuing Bank and responsible for all reasonable expenses associated with and any losses from over limit processing or reasonable expenses incurred by MOJOPAY or Issuing Bank in seeking fraud or unauthorized Transaction recovery under Applicable Law that was a result of the Merchant’s action or inaction including actions of the Merchant’s employees.

 

8.    Service Fees and Settlement Processes

8.2. Fees due in respect of the Services are as set out on the MOJOPAY Website from time to time.

8.3. MOJOPAY shall pay to the Merchant’s bank account the amount due and accruing to the Merchant from Transactions less the Transaction fee and any applicable Taxes on a T+1 basis.

8.4. MOJOPAY shall maintain a record of all Transactions regarding payments processed on behalf of the Merchant on the Portal to enable the Merchant monitor in real-time all the Transactions relating to its account,

8.5. The Parties agree that at the end of each month, MOJOPAY shall forward to Merchant a reconciliation report showing all Transactions performed for that month.

8.6. The Parties further agree that on the first Business Day in each week, MOJOPAY shall pay into the Bank account, the amount received in respect of the previous week’s Transactions, after deduction of the Service Fees, applicable Taxes and any other sums due to MOJOPAY. MOJOPAY shall however not be liable to Merchant or its Merchants or End Users for any delay in settlement which arise as a result of circumstances beyond MOJOPAY’s reasonable control.

8.7. The Merchant hereby gives MOJOPAY full permission and authorization to  receive all settlements and collections on its behalf, from the Acquiring Bank or other competent authority, and to liaise with such Acquiring Bank or competent authority, in order to make all due settlements to it, and on its behalf, through the MOJOPAY platform.

 

9.    Chargebacks and Refunds

9.2. If applicable, the Merchant acknowledges and agrees that in certain circumstances an MNO,  Acquiring Bank and/or Issuing Bank, Payment Scheme or other financial institutions may (i) refuse to settle a Transaction or (ii) impose Chargebacks on MOJOPAY.

9.3. The Merchant agrees that it may be required to reimburse MOJOPAY for Chargebacks where the Merchant has received settlement in respect of the relevant Transaction(s). Where applicable, the Merchant must respond to account holder disputes and requests for refunds and handle Chargebacks in accordance with Applicable Laws.

9.4. The Merchant agrees that MOJOPAY may send non-settled Transactions received from the Merchant’s Customers to a Relevant Authority for the purpose of checking and in the case of an objection and/or opposition to executed Transactions by an Acquiring Bank and/or Issuing Bank or other authority concerned for any reason, MOJOPAY shall not be bound to pay the Merchant any amounts relating to such Transactions during the period such Transactions are being disputed and/or reconciled.

9.5. All Chargebacks shall correspond to the whole or part of the settlement value of the original Transactions and MOJOPAY shall not be required to refund an MNO or transaction  charge on the Transaction value.

9.6. Where Chargebacks occur, MOJOPAY may immediately debit the Merchant’s position or make a reversal from the Merchant’s bank account and/or make a deduction from any remittance and /or Merchant invoice.to recover the amount charged back.

9.7. A Chargeback represents an immediate liability from the Merchant to MOJOPAY and where the full amount of any Chargebacks and/or any Chargeback costs are not debited by MOJOPAY from the Merchant bank account or deducted from any remittance or invoiced as referred to in the previous clause, then MOJOPAY shall be entitled to otherwise recover from the Merchant by any means, the full amount of such Chargebacks or Chargeback costs (or the balance thereof, as the case may be).

9.8. MOJOPAY shall not be obliged to investigate the validity of any Chargebacks by any MNO, Acquiring Bank and/or Issuing Bank, Payment Scheme or other financial institution, whose decision shall be final and binding in respect of any Chargebacks.

9.9. As Chargebacks may arise a considerable period after the date of the relevant Transaction(s), MOJOPAY shall remain entitled to recover Chargebacks and Chargeback costs from the Merchant in respect of all Chargebacks, even after the Termination of the contractual relationship established hereunder between the Merchant and MOJOPAY.

9.10.               MOJOPAY may immediately terminate this Agreement and the Services provided hereunder if MOJOPAY in its sole opinion considers that the total value of Refunds and/or Chargebacks is unreasonable.

9.11.               The Merchant agrees and confirms that it shall remain solely liable after the Termination of this Agreement for all Chargebacks, Refunds, penalties, losses, damages or cost incurred by MOJOPAY, an MNO, Acquiring Bank, an Issuing bank and/or Customers and for all claims and proceedings arising against MOJOPAY with respect to a verified Transaction

9.12.               Where MOJOPAY receives a Chargeback or refund request from a Merchant, it shall within 72 hours investigate the offending Transaction and effect the refund of the Transaction value less the transaction charges to the Customer. It is the obligation of the Merchant to inform its Customer(s) of the procedure and timelines, and the result of a request. MOJOPAY shall have no liability whatsoever to a Customer of the Merchant on a Chargeback/refund request.

 

10.Set Off and rights to Defer and/or Suspend

10.2.               MOJOPAY may, without notice, set off any debts or liabilities due from the Merchant to MOJOPAY under this Agreement against any debts or liabilities owed by MOJOPAY to the Merchant, regardless of the place of payment or currency of either obligation. If the obligations are in different currencies, MOJOPAY may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

10.3.               MOJOPAY may defer any settlement or any other sum due to the Merchant to the extent that MOJOPAY considers necessary or appropriate to protect their ability to recover the Fees and/or the sums or any other liability (actual or anticipated) of the Merchant in connection with this Agreement.

10.4.               If MOJOPAY has reasonable suspicion that a Transaction may be fraudulent or involve other criminal activity, MOJOPAY may suspend the processing of that Transaction and any connected, Transaction, or withhold settlement until the satisfactory completion of any investigation. The Merchant shall not be entitled to any interest or other compensation whatsoever in respect of suspension or delay in receiving Payment.

10.5.               The exercise by MOJOPAY 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 MOJOPAY is otherwise entitled (by operation of law, contract, or otherwise).

 

11.Warranties

11.2.               The Merchant warrants that it:

11.2.1.                   has not had an agreement with a Scheme Owner, MNO, Issuing Bank or other payment service provider or Relevant Authority terminated upon request and/or demand by such Scheme Owner or  Regulatory Authority.

11.2.2.                   shall not submit any Transaction to the MOJOPAY Platform that the Merchant knows or ought to have known (i) is a Prohibited Activity, illegal, fraudulent or restricted for authorization, or (ii) not authorized by an account or Cardholder.

11.2.3.                   will conduct appropriate due diligence on all its End-Users.

11.2.4.                   shall fully cooperate with any investigation initiated by a Regulatory Authority or Scheme Owner that may be conducted on the Merchant until such time the investigation is completed.

11.2.5.                   will use the Services in good faith, in accordance with the terms of this Agreement and Conditions and in accordance with all Applicable Laws and Payment Scheme Rules. In particular, the Merchant will not use the Services in a manner that that could result in a violation of anti-money laundering, counter terrorist financing and similar legal and regulatory obligations.

11.3.               The Merchant warrants that neither it nor its employees responsible for the Merchant’s obligations under this Agreement have been subject to the following:

11.3.1.                   Criminal conviction (except minor traffic offenses and other petty offenses) in Ghana or in any foreign country;

11.3.2.                   National or state tax offences, liens, or any foreign tax offences or liens;

11.3.3.                   Administrative or enforcement proceedings commenced by any Regulatory Authority, in Ghana, or in any other country; or

11.3.4.                   An order, decree, declaration, injunction, or judgment in any proceeding or lawsuit, alleging fraud, dishonesty or deceptive practice on the part of the Merchant or such employees.

11.4.               The Parties each warrant that they are duly registered and licensed (where applicable), and have the full capacity, regulatory approvals and corporate authorisations to enter into this Agreement and to discharge the obligations and responsibilities created herein.

11.5.               The Parties each further warrant that no rights or obligations under this Agreement constitute a breach of any existing law, regulation, patent, copyright, or other intellectual property in its respective country or countries of domicile and operation, including each Territory.

11.6.               The Parties warrant that in the case of any third-party software used in respect of this Agreement, that they have respectively the required licence and rights to grant a sub-licence to use such third-party software.

11.7.               Each Party warrants to the other that this Agreement constitutes legal, valid and binding obligations, enforceable against it in accordance with the terms and obligations herein and that no provision of this Agreement is in conflict with any of the respective Party’s obligations under its constitutional documents, Applicable Laws or any other document, charter or agreement to which the Party is respectively subject.

11.8.               The Parties shall keep each other indemnified against all actions, claims, proceedings and all legal cost or other expenses arising out of any breach of the above warranties or out of any claim by a third party based on any facts which if substantiated would constitute such a breach or a breach of other relevant legal or contractual duties.

11.9.               MOJOPAY neither warrants that the use of the MOJOPAY Platform or the operation thereof will be uninterrupted nor error free, however, MOJOPAY warrants that it shall use its best endeavours to ensure that the MOJOPAY Platform functions optimally at all times and within generally accepted industry standards during the term of this Agreement.

11.10.           Except as set forth in this Agreement, MOJOPAY makes no express or implied representations or warranties with respect to the Payment Methods and related Services or their condition, ability, fitness for any particular purpose or use by the Merchant or its Customers.

 

Disclaimer:

EXCEPT FOR THE WARRANTIES SPECIFICALLY SET FORTH IN THES TERMS, EACH PARTY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MARKETABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES.

 

 

12. Indemnity

12.2.               Each Party (the “Indemnifying Party”) shall indemnify and hold the other Party, its Affiliates, employees and agents (collectively, the “Indemnified Parties”) harmless from and against any damages, loss, expenses, claims or liabilities the Indemnified Parties may incur:

12.2.1.                   with respect to any negligent act or omission by, or willful misconduct of, the Indemnifying Party or that of its employees or agents provided however that such negligent act can be situated in the normal course of employment of that employee or agent;

12.2.2.                   the violation of any Applicable Law by the Indemnifying Party or its employees; and/or;

12.2.3.                   In connection with any third party claims, actions, demands and/or losses to the extent that such losses result from any breach of this Agreement by such Indemnifying Party.

12.3.               This clause shall not be construed to limit or exclude any other claims or remedies to which Indemnified Parties may be entitled to hereunder, in law or equity.

 

13.Fraudulent Transactions

13.2.               Fraudulent Transactions shall include but not be limited to:

13.2.1.                   Any purchase of goods and services and/or a Transaction arising from the use of a Card by a person other than the authorized Cardholder;

13.2.2.                   Any use of a Card that is not authorized in terms of the rules governing the issuance and use of Cards; and

13.2.3.                   Any use of a Payment Method that is not authorized by the payer.

13.3.               In the event that fraudulent Transactions account for more than 0.10% of the Merchant’s sales turnover in any one (1) month, MOJOPAY may, in addition to any other remedy available to it, unilaterally terminate this Agreement forthwith and/or request the Merchant to delist the affected End-User from the use of the MOJOPAY Platform and terminate the its agreement with the affected End-User.

13.4.               Merchant agrees that it will always be responsible for the fraudulent actions of its Customers, agents and employees including fraudulent acts or omission not traceable to the contributory negligence of MOJOPAY.

 

14.Further Assurances

14.2.               At all times after the date hereof the Parties shall at their own expense execute all such documents and do such acts and things as may be reasonably required for the purpose of giving full effect to this Agreement.

 

15.Confidentiality

15.2.               In providing the Services contemplated hereunder, both Parties may receive and have access to certain information belonging to the other Party which the other Party may designate as Confidential Information. Both Parties agree that all Confidential Information is and shall remain the property of the Party providing the information and the Party receiving or gaining access to such information shall use all reasonable and prudent means to safeguard such Confidential Information, including all means required by law. Furthermore, neither Party shall copy, publish, disclose to others, or use such Confidential Information for any purpose other than the fulfilment of its obligations under this Agreement or where required by law.

15.3.               Each of the Parties on behalf of itself and its employees, officers, directors, Affiliates, and agents, hereby agrees that Confidential Information made available to it will not be disclosed or made available to any third party, agent or employee for any reason whatsoever, other than to: (i) its employees on a “need to know” basis, (ii) its Affiliates on a “need to know” basis, provided that they are subject to a confidentiality agreement which shall be no less restrictive than the provisions of this clause 16; and (iii) as required by Applicable Law or as otherwise permitted by this Agreement, either during the term of this Agreement or after the Termination of this Agreement, provided that prior to any disclosure of any Party’s Confidential Information as required by law, the party subject to the requirement shall notify the other Parties of all, if any, actual or threatened legal compulsion of disclosure, and any actual legal obligation of disclosure immediately upon becoming so obligated and shall cooperate with the other Parties’ reasonable, lawful efforts to resist, limit, or delay such disclosure.

15.4.               Upon Termination of this Agreement, or at any time upon the request of the other Party, each Party shall return all Confidential Information in the possession of such Party or in the possession of a third party (over which such Party has or may exercise control).

15.5.               In the event of any breach of the obligations under this clause 16, each Party acknowledges that the other Party may have no adequate remedy at law, and in addition to such other remedies as may be available to the other Party, the other Party may seek to obtain injunctive relief.

15.6.               This clause 15 shall survive any Termination or expiration of this Agreement.

 

16.Limitation of Liability

16.2.               The liability of MOJOPAY to the Merchant, whether in contract, negligence, and other tort, by way of indemnity or otherwise arising out of or in connection with this Agreement shall be subject to the financial limits set out below:

16.2.1.                   In no event shall MOJOPAY be liable to the Merchant in excess of any amount that has accrued to MOJOPAY in the form of fees from Transactions emanating by virtue of this Agreement, in the month immediately preceding the date the first such claim arises.

16.2.2.                   No liability shall be raised against MOJOPAY more than two (2) years after the accrual of the cause of such liability. It is further agreed that the limitations on liability, expressed herein, shall inure to the benefit of and apply to all parents or holding companies (both direct and indirect), subsidiaries and Affiliates of MOJOPAY.

16.2.3.                   MOJOPAY will not be liable for the actions or inactions of any third party not acting on the instructions of MOJOPAY; neither will MOJOPAY be liable for actions or inactions not directly traceable to it.

17.Anti-Corruption and Anti-Money Laundering

17.2.               Each Party hereby undertakes that, at the date of this Agreement, itself, its directors, officers, employees or Affiliates have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with this Agreement and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so.

17.3.               Each Party shall comply with all applicable anti-bribery and anti-corruption Laws in force within each Territory as well as the Foreign Corrupt Practices Act of the United States of America and the Bribery Act 2010 of the United Kingdom and all applicable anti-bribery and anti-corruption regulations and codes of practice.

17.4.               The Merchant together with its customers, directors, officers, employees, or agents, shall not use its relationship with MOJOPAY to attempt to disguise sources of illegally obtained funds, or to engage in any activity which is prohibited under the relevant Anti-Money Laundering legislation. Merchant further represents and warrants that no such attempt of the sort described in this clause has been made prior to the date of this Agreement.

17.5.               The Merchant shall ensure that this clause 17 is observed in all relationship with its customers.

18. Termination

18.2.               Either Party may terminate this Agreement without cause at any time without prior notice.

18.3.               Either Party may terminate this Agreement forthwith by giving notice in writing to the other Party if:

18.3.1.                   the other Party takes any step or action to enter into administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), or is being wound up (whether voluntarily or by order of a court, unless for the purpose of a solvent restructuring), has a receiver appointed to administer any of its assets or ceases to carry on business or, if any step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or

18.3.2.                   the other Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

18.4.               This Agreement may also be terminated forthwith by any of the Parties on giving written notice to the other, if the other Party is in material breach of the terms of this Agreement and has failed to rectify such breach (in the case of a breach capable of being remedied) within ten (10) Business Days of receiving a written notice requiring it to do so.

18.5.               MOJOPAY may terminate this Agreement and delist the Merchant where the Merchant is identified as a source of fraudulent activity or causes damage to MOJOPAY’s brand or the Acquiring Bank, Issuing Bank and/or Payment Schemes or upon instruction from the Acquiring Bank, Issuing Bank and/or Payment Schemes whether financial or otherwise.

18.6.               On Termination, the Parties shall be discharged from any liability for further performance of its obligations under this Agreement and shall be entitled to be paid the accrued sum for any successful Transaction prior to such Termination and any other outstanding amounts determined in accordance with the terms of this Agreement.

18.7.               Any Termination of this Agreement (however occasioned) shall not affect any accrued rights or liabilities of any of the Parties nor shall it affect the coming into force or the continuance in force of any provisions of this Agreement which are expressly or by implication intended to come into effect or continue in force on or after such Termination.

18.8.               Upon Termination of this Agreement the Merchant’s right to use the MOJOPAY Platform shall automatically be revoked and MOJOPAY shall retain the Merchant records for a period of five (5) years after such Termination.

19.Force Majeure

19.2.               If any of the Parties hereto is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control (including but not limited to an Act of God, Natural Disaster, or Civil Disorder) the Party unable to fulfil its obligations shall immediately give notice in writing of this to the other Party and shall do everything in its power, including but not limited to accepting assistance from third parties or the other Party, to resume full performance.

19.3.               If the period of incapacity exceeds two (2) months, then this Agreement shall automatically terminate unless Parties expressly agree otherwise in writing.

20. Relationship Between Parties

20.2.               The relationship between the Parties hereto shall be one of collaboration for the single purpose of the business relationship herein created.

20.3.               This Agreement shall not in any way constitute a partnership or joint venture between the Parties or constitute either Party an agent of the other.

20.4.               This Agreement is not intended to confer on any person other than MOJOPAY and the Merchant, any express or implied benefit or burden.

21.Intellectual Property

21.2.               Nothing set forth in this Agreement shall constitute a transfer or assignment by one Party to the other 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.

21.3.               All Intellectual Property Rights in or related to the MOJOPAY Platform are and will remain the exclusive property of MOJOPAY, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the MOJOPAY Platform is used or licensed. The Merchant shall not take any action that jeopardizes MOJOPAY's proprietary rights or acquire any right in the MOJOPAY Platform, or any Confidential Information, as defined herein. Unless otherwise agreed on a case-by-case basis, MOJOPAY will own all rights in any copy, translation, modification, adaptation or derivation of the MOJOPAY Platform or other items of Confidential Information, including any improvement or development thereof.

22.          Data Protection

22.2.              Each Party hereby undertakes and covenants that:

22.2.1.                 It shall take all reasonable steps, actions and processes required to protect the privacy and integrity of the personal data of each other’s End Users. The Parties further agree to use the personal data of their End Users for the lawful purposes of this Agreement and to ensure that all collected data are processed and used in accordance with (i) the Data Protection Act, 2012, (Act 843); and (ii) any other data protections laws to which a data subject may be subject.

22.2.2.                 It shall only process data that is relevant to give effect to this Agreement and that it shall not use or allow to be used any such data acquired from the other Party for a purpose other than is necessary to give effect to this Agreement.

22.2.3.                 It is licensed by the Data Protection Commission of Ghana and that it has the right to process End Users data in accordance with Act 843.

 

23.          Suspension

23.2.              Notwithstanding any other provision of this Agreement, MOJOPAY may immediately suspend the provision of the Services to the Merchant under this Agreement or the benefit of the same to any Merchants, or any payments or settlement required under this Agreement, if it:

23.2.1.                 Acting in good faith receives information which gives it reasonable grounds to believe that there has been a breach by Merchant of any undertaking in this Agreement; or

23.2.2.                 believes in good faith that Merchant’s or any Merchant’s account has been compromised, and if there has not been a breach of an undertaking, MOJOPAY shall notify Merchant of such suspension within 24hours thereafter, to enable MOJOPAY and Merchant to take all necessary measures to resolve the breach.

23.3.              MOJOPAY shall not be liable to Merchant for any claims, losses, costs or damages related to its decision to suspend the Services and thereby withhold payments resulting from a breach of this Agreement or a compromise of Merchant’s interface.

 

24.          Survival

24.2.               The following provisions shall remain in force after termination;

24.3.               Clause 15 (Confidentiality) for a period of three years;

24.4.               This clause 24 (Survival);

24.5.               Clause 20 (Relationship Between Parties);

24.6.               Clause 31 (Whole Agreement);

24.7.               Clause 32 (Governing law).

 

25.Dispute Resolution

25.2.               MOJOPAY shall not be involved in any disputes that may arise between the Merchant and any of its End-Users, unless such dispute specifically relates to Transaction settlement.

25.3.               In the event of a dispute between Parties with respect to any issue arising out of or relating to this Agreement in any manner, including but not limited to the breach thereof, resolution of which cannot be amicably achieved by the Parties through negotiation within thirty (30) days shall be resolved by arbitration under the Arbitral Rules of the Alternative Disputes Resolution Act, 2010  (Act 798) before a single arbitrator chosen by the mutual Agreement of the Parties or where impracticable by the chairman of the Ghana Arbitration Center and the seat of arbitration shall be Accra/The proceedings shall be in the English language.

25.4.               The decision of the arbitrator shall be final and binding on the Parties and Parties agree to be bound by it. Such decision shall be rendered within thirty (30) days of the close of hearing.

25.5.               The cost of arbitration shall be borne equally by the Parties.

25.6.               The Arbitral award rendered by the arbitrator shall be entered in any court of competent jurisdiction as judgment. No award of punitive damages by the arbitrator may be enforced.

26.No Assignment

26.2.               MOJOPAY may assign, sublicense or transfer the Agreement at its sole discretion and without the prior approval of the Merchant provided that MOJOPAY shall give the Merchant a months’ prior written notice of such assignment.

26.3.               Merchant shall not assign, sub-license or otherwise transfer its rights and obligations under this Agreement without the prior written consent of MOJOPAY, such written consent not to be unreasonably withheld.

27. Waiver

27.2.               The respective rights of the Parties (whether arising under this Agreement or under the Applicable Law) shall not be capable of being waived or varied otherwise than by an express waiver or variation in writing; and in particular any failure to exercise or any delay in exercising any of such rights shall not operate as a waiver or variation of that or any other such right; any defective or partial exercise of any of such right shall not preclude any other or further exercise of that or any other such right; and no act or course of conduct or negotiation on the part of either Party shall preclude them from exercising any such right or constitute a suspension or variation of such right.

28.Severance

28.2.               In the event that any provision of this Agreement is declared by any Applicable Law, judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or irrelevant that provision shall to the extent required by such law or authority, be severed from this Agreement and rendered ineffective so far as is possible without modifying the remaining provisions of this Agreement.

29.Whole Agreement

29.2.               Save for the MOJOPAY Terms of Use and Privacy Policy, and Payment Scheme Rules of this Agreement, this Agreement contains the whole agreement between the Parties with respect to the subject matter hereof and supersedes any prior written or oral agreement between them in relation to its subject matter and the Parties confirm that they have not entered into this Agreement upon the basis of any representation that are not expressly incorporated herein and the MOJOPAY Terms and Conditions.

 

30. Governing Law

30.2.               This Agreement shall be governed by the Laws and courts of Ghana.

31. Acceptance and Variation

31.2.               The Merchant hereby agrees that by entering into any Transaction using the MOJOPAY Platform they shall be deemed to accept the latest terms and conditions appearing on MOJOPAY’s Website, as may be updated from time to time, which shall form the Agreement between the Parties.

32.Notices

32.2.               Any notice required or permitted by this Agreement to be given to either Party by the other shall be given by electronic mail, and addressed to:

MOJOPAY

Contact Us Menu on the MOJOPAY Website or

Telephone: +233 30 226 3014
Email: support@MojoPaygh.com
Attention: Head of Legal and Compliance


MERCHANT
As set out in Appendix 1

 

      Accepted by The Merchant

 

      By:    

      Designation:         

 

;