MERCHANT AGREEMENT - RETAIL
This Agreement is made together with the date of this application between:
IPAY88 (M) SDN. BHD. (Company No. 521817-M) a company incorporated in Malaysia and having its principal place of business at Suite 2A-18-2, 18th Floor, Block 2A, Plaza Sentral, Jalan Stesen Sentral 5, 50470 Kuala Lumpur (hereinafter called “iPay88”) of the one part;
A company incorporated in Malaysia with the company information stated in Section C of iPay88 Retail application form, annexed hereto as Appendix A (hereinafter called “The Company”) of the other part;
(A) iPay88 is involved in the provision of payment platform to facilitate the payment processing (collectively referred to as “Service”). The provision of the Services is governed by the terms and conditions in the agreements executed or to be executed between iPay88 and the relevant financial institutions, including but not limited to the Standards (as hereinafter defined).
(B) The Company is engaged in the operation of retail outlets and provision of products and/or services as may be available at the retail outlets
(C) The Company is desirous of appointing iPay88 for the provision of the Service and other related products and services subject to and based on the terms and conditions as set out in this agreement.
NOW THIS AGREEMENT WITNESSETH as follows: –
- Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires the following terms shall have the following meanings:-
“ADC” means Account Data Compromise event which would occur or likely to be occurred in accordance with the Standards;
“Agreement” means this Agreement and all the schedules hereto;
“Banned and High Risk Industries” means any banned and high risk industries as determined by Card Association and/or the Bank from time to time. Please refer to Appendix B as attached for a non-exhaustive list of the banned and high risk industries;
“BRAM” means the document containing the Business Risk Assessment and Mitigation compliance programme developed by MasterCard details thereof available at mastercardonline.com;
“Business Day” means any day (excluding Saturdays, Sundays and public holidays) on which banks in Kuala Lumpur and Selangor Darul Ehsan are open for business;
“Card Associations” means VISA, MasterCard and/or any other card associations that the Bank may subscribe with from time to time;
“Card member” means a person to whom has been issued and whose name is embossed on a Credit/Debit Card and whose signature appears thereon as an authorized user.
“Commencement Date” means the date of this Agreement;
“Company’s Information” means as any information that the Company provides to iPay88 or other users in the registration, payment process, stores or other features of iPay88’s Service or any other information provided by the Company in connection with the Service;
“Credit Card” means any validly issued and unexpired VISA credit card bearing the VISA logo and/or other relevant service marks licensed by VISA or any validly issued and unexpired Mastercard credit card bearing the Mastercard logo and/or other relevant service marks licensed by MasterCard International, issued by any bank, financial institution or Card Association, with the name, Card validity period and Card account number of the Cardmember imprinted or embossed on the Card, which Card pursuant to this Agreement may be used by the Cardmember as a means of payment for purchases of and charges relating to the purchase of Goods and/or Services.
“Customer” means the natural person or legal entity(ies) who or which has/have purchased products and/or services from the Company;
“Debit Card” means any validly issued and unexpired VISA debit card bearing the VISA logo and/or other relevant service marks licensed by VISA or any validly issued and unexpired Mastercard debit card bearing the Mastercard logo and/or other relevant service marks licensed by MasterCard International, issued by any bank, financial institution or Card Association, with the name, Card validity period and Card account number of the Cardmember imprinted or embossed on the Card, which Card pursuant to this Agreement may be used by the Cardmember as a means of payment for purchases of and charges relating to the purchase of Goods and/or Services.
“Excessive Charge back Program” means a set of program provided by the Card Associations for the Bank to closely monitor, on an ongoing basis, its chargeback performance at the iPay88 and the Company’s level and to determine promptly when iPay88 or the Company has exceeded or is likely to exceed monthly chargeback thresholds;
“Fees” means the fees payable by the Company to iPay88for the Service more particularly stated in the Annexure 1 of iPay88 Retail application form hereto excluding the banking charges imposed on iPay88 and shall include any revised Fees which may be agreed by both parties in writing from time to time.
“Marks” means the names, logos, trade names, logotypes, trademarks, service marks, trade designations, and other designations, symbols and marks, including but not limited to any one of the Card Associations’ brand mark and name mark, that any one of the Card Associations and/or its affiliates or subsidiaries own, manage, license, or otherwise control and make available for use by the Bank and other authorized entities;
“MasterCard” means MasterCard International Incorporated, a company organized under the State of Delaware having its office and principal place of business at 2000 Purchase Street, Purchase, NY10577-2509, United States of America of which the Bank is a member institution;
“Payment Card Industry-Data Security Standard (PCI-DSS)” means a set of comprehensive requirements for enhancing payment account data security which was developed by the founding payment brands of the Payment Card Industry Security Standards Council to protect account data;
“Personal Data” has the meaning ascribed to it in the Personal Data Protection Act, 2010 which means any information in respect of commercial transactions, which;-
(a) is being processed wholly or partly by means of equipment operating automatically in response to instructions given for that purpose;
(b) is recorded with the intention that it should wholly or partly be processed by means of such equipment; or
(c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system,
that relates directly or indirectly to a data subject, who is identified or identifiable from that information or from that and other information in the possession of a data user, including any sensitive personal data and expression of opinion about the data subject; but does not include any information that is processed for the purpose of a credit reporting business carried on by a credit reporting agency under the Credit Reporting Agencies Act 2010
“PIN” means in relation to a Cardmember, the personal identification number required to gain access to a terminal to give a transaction instruction.
“Pin Pad” means a device that enables the Cardmember to enter a PIN at a terminal.
“Specified Persons” means:
(a) the State of Israel or its residents; or
(b) any entity owned or controlled, directly or indirectly, by the State of Israel or its residents including any authority or agency of the State of Israel in whatever name or style.
“Standards” means any laws, bylaws, rules, policies and the operating regulations and the procedures of the Card Associations and the Bank, including but not limited to any manuals, guides or bulletins, as may be amended from time to time;
“The Bank” means any participating financial institutions where iPay88 maintains its transaction processing via the bank gateway;
“VISA” means Visa International Service Association; a company organized under the State of Delaware with its principal office at 3125 Clearview Way, San Mateo, CA94402, United States of America of which the Bank is a member institution;
1.2 Words bearing the singular in this Agreement shall include the plural and vice versa.
1.3 Titles and headings in this Agreement are used for convenience and ease of reference only, and in no way define, limit, extend or describe the scope and intent of this Agreement or of its provision.
1.4 All Recitals and Appendices hereto in this Agreement shall be read and construed as an essential part of this Agreement.
1.5 “Parties” shall mean iPay88 and the Company and “Party” shall mean any of them.
The Company hereby appoints iPay88 for the provision of the Service in accordance with the terms of this Agreement for the duration of the term as defined in Clause 19.1 below and iPay88 hereby agrees to accept the appointment for the provision of the Service to the Company.
3.1 In providing the Service, the parties agree that
(a) iPay88 shall act as a facilitator to help the Company accept payments from the Customer;
(b) iPay88 will act in accordance with written instructions of the Company’s authorized representatives provided that such instructions are within the scope of the Service to be provided by iPay88; and
(c) iPay88 acts solely as a payment switching service provider by creating, hosting, maintaining and providing its Service to the Company. iPay88 does not have any control over the products or services that are transacted by the Company. Accordingly, iPay88 does not have any onus or liability whatsoever to ensure that the buyers or sellers that transacts with the Company with will actually complete the transaction.
3.2 Notwithstanding the provision of the Service by iPay88 and any of the terms of this Agreement to the contrary, the Company acknowledges that:-
(a) iPay88 is not a bank and the Service as provided by iPay88 is a payment switching service rather than a banking service, and
(b) iPay88 does not act in the capacity of a trustee, fiduciary party or escrow agent in respect of the Company’s funds, but it acts as a custodian only. The Company agrees that it shall not receive interest or other earnings on the funds handled or processed by iPay88 on behalf of the Company and that iPay88 shall be entitled to the interest accrued on such funds (if any)
3.3 The Company shall at its own cost and expense register with the Bank and/or Card Associations and to obtain a merchant account prior to the provision of the Service by iPay88 to the Company.
3.4 The Company hereby agrees that:-
(a) The Card Associations may at any time, immediately and without advance notice, prohibit the Company from using any of the Card Associations’ Marks for any reason whatsoever;
(b) The Card Associations shall be entitled to enforce any provision of the Standards and to prohibit the Company from engaging in any conduct that the Card Associations deem that the said conduct will damage or create a risk of damage to the Card Associations, including but not limited to any damage to its reputation, or conduct that could adversely affect the integrity of the Card Associations’ systems;
(c) The Company will not take any action against iPay88 or the Card Associations or the Bank to injunct and interfere with the Card Associations’ right as mentioned in Clause 3.4 (a) and (b) hereof.
- Requirements of Transactions
The Company hereby agrees that the sales transactions must contain the following information or feature(s):
(a) Complete description of the products and/or services offered by the Company;
(b) Indicate if there is any guarantees and/or warranties granted by the supplier and/or manufacturer for such products and/or services;
(c) Specify or indicate the return / refund policy and terms and conditions of sale and purchase of the products and/or services, which must be acknowledged by the Customers;
(d) Provide the particulars of the customer service contact including the Company’s address, email address & contact number;
(e) Specify that the transaction currency, cost of products and/or services and the delivery and/or shipping charges shall be in the currency of Malaysia, Malaysian Ringgit (MYR);
(f) Export restriction (if known);
(g) Delivery policy;
(i) Security capabilities & policy for transmission of payment transaction details;
(j) Legal restriction (if known);
- Completion of Transactions
In accepting and honouring the card for payment, the Company shall examine the Card Associations Marks or any distinctive features of the card and ensure the following procedures are strictly observed and complied with:-
(a) The transaction receipt shall be completed with the embossed data / legends of the card including the following:-
(i) the imprinted name, validity / expiry date of the card and card account number of the Customer using the suitable imprinter;
(ii) the date of transaction;
(iii) the total price of the transaction (including any applicable taxes payable whether currently in force or to be implemented and chargeable by law);
(iv) the authorization / approval code, if any;
(v) the Company’s name, address or place of business; and
(vi) a description of products sold and/or services offered in detail sufficient to identify the transaction.
(b) The transaction authorization shall be done via;
(i) The Company shall obtain the signature of the Customer (if so required) in the appropriate place of the transaction receipt and shall always compare to ascertain that such signature and photograph (if any) shall be identical to that appearing on the Customer’s card provided always that if such identification is uncertain, or in the event the signature and photograph differs or in the event the Company believes there to be a discrepancy in the signature and photograph, the Company shall contact iPay88 or Bank for instructions; or
(ii) For all transactions effected via Debit Card or Credit Card that require PIN, the Company shall ensure that the Customer shall have key-in the PIN via the Pin Pad to authorize the completion of a transaction.
(c) All transaction receipt shall be drawn in Ringgit Malaysia.
(d) All entries and signatures (if so required) on the transaction receipt shall be eligible on all copies thereof and the Company shall at the time of the delivery of products and/or performance of services deliver a true and completed copy thereof to the Customer, retain one (1) of the same for itself and present the remaining of the same to iPay88 or Bank upon request.
(e) The Company shall ensure that the card so presented is valid and unexpired.
- Remittance of payments by iPay88
6.1 The Company hereby irrevocably authorizes iPay88 to cause all funds received on behalf of the Company by iPay88 in connection with the Service to be deposited on its behalf in the iPay88’s banking accounts. iPay88 shall thereafter remit all such funds received by iPay88 free of interest less any Fees payable to iPay88 to the Company either via cheque to the Company or internet online fund transfer (if applicable) or telegraphic transfer to the bank account(s) maintained by the Company in accordance with the agreed settlement schedule as stated in the Fee Schedule of the iPay88 Retail application form.
6.2 The frequency of payment and date of payment as set out in Clause 6.1 above may be varied in writing by the parties.
6.3 The Company hereby agrees that iPay88 and/or the Bank has absolute discretion not to remit all such funds received by iPay88 and/or the Bank to the Company if iPay88 and/or The Bank reasonably believe that any of the following events has or might have occurred:-
(a) Product is returned by the Customer or service is not rendered by the Company for any reason whatsoever;
(b) Dispute, chargeback, fraud, forgery and/or suspicious transactions;
(c) The Company is unable to furnish any document or record related to the transaction upon request of the Bank and/or iPay88;
(d) There has been a breach of this Agreement by the Company or the Company is suspected, expected, assumed or believed to be in breach of any of its obligations under this Agreement, or of any security measures or guidelines issued by the Bank;
(e) Non-compliance by the Company with regards to the transaction that may damage the goodwill of the Card Associations or reflect negatively on the Cards Associations’ Marks;
(f) If this Agreement is terminated by iPay88 for any reason whatsoever.
The parties hereby agree that iPay88 shall not be held liable in any manner whatsoever in the event there is a dispute between the Company and any of the Customer, unless it can be reasonably proven by the Company that such dispute arose, directly or indirectly, from the negligence, fraudulent act, default, breach and/or omissions committed by iPay88 in the provision of the Service under this Agreement.
- No Warranty
iPay88 shall use its best efforts to ensure that requests for debits and credits involving bank accounts, cards, and check issuances are processed in a timely manner. Notwithstanding the foregoing, iPay88 makes no representations or warranties, whether expressed or implied, regarding the length of time required to complete the process of such transactions because the Service is largely dependent upon many factors beyond its control including but not limited to delays in the banking system or the local or international mail service.
- Disclaimer and Limitation of Liability
9.1 The Company shall not hold iPay88 and its holding company, affiliates, subsidiaries, employees and its suppliers liable in any way for any losses or liabilities and shall indemnify iPay88 against any claims brought by Card Associations, Bank, any regulatory body, any governmental or non-governmental authorities or any third party for matters caused by, directly or indirectly, by the Company or any third parties relate to the Company in connection with the use of or access to the Service. The Company shall forthwith reimburse iPay88 for any fine imposed and all costs (legal or otherwise) and/or damages incurred by iPay88.
9.2 iPay88 and the Company shall under no circumstances be liable to the other, its holding company, subsidiaries, employees and its suppliers for any act or omission on the part of any third parties not within the control of the either Party.
Subject to Clauses 7 and 9 herein, the defaulting party hereto agrees to indemnify and hold the non-defaulting party, its holding company, subsidiaries, affiliates, officers, directors and employees harmless from any claim or demand made or incurred by any third party due to or arising out of the defaulting party’s breach of any of the terms of this Agreement or the violation of any provisions of law in connection with the transactions contemplated under this Agreement.
- Violations by the Company
If the Company engages in any of the following, iPay88 shall be entitled, at its sole discretion, to limit the Service provided to the Company or immediately terminate the Service and this Agreement by notice in writing to the Company:
(a) Using the Service to receive payments for any sexually oriented or obscene materials or services in violation of iPay88’s policy;
(b) Using the Service to receive payments for any narcotics, other controlled or illegal substances, steroids or prescription drugs in violation of any laws;
(c) Using the Service to receive payments for wagers, gambling debts or gambling winnings, regardless of the location or type of gambling activity;
(d) Using the Service to receive payments for any replica products;
(e) Using the Service to receive payments for any firearms, ammunition, high capacity magazines, tasers, air guns;
(f) Using the Service to receive payments for any fireworks or pyrotechnic devices or supplies;
(g) Attempts to tamper, hack, modify or otherwise corrupt the security or functionality of Service;
(h) Using the Service for money laundering activities;
(i) Using the Service for pyramid scheme program;
(j) Using the Service for any illegal or immoral activities, including but not limited to violate the Countries laws, Bank Negara Malaysia, Bank and Card Associations rules;
(k) Damage the goodwill or reflect negatively on the Card Associations brand, including but not limited to violate the BRAM compliance program;
(l) Deal in the currency of Israel;
(m) Deal with Specified Persons which comprise the residents, authorities, agencies & instrumentalities & any entities owned or controlled, directly or indirectly, by Israel;
(n) Deal with the persons belonging to or associated with the Taliban, Osama bin Laden and Al-Qaeda organization pursuant to the United Nations Security Council Resolutions relating to Taliban, Osama bin Laden and Al-Qaeda organization; and/or
(o) Involve in any of the Banned and High Risk Industries, which shall be updated from time to time as stated in Appendix B.
The Company and iPay88 agree that the damages that iPay88 will sustain as a result of the above behavior by the Company will be substantial, including (without limitation) fines and other related expenses from its payment processors and service providers and damage to its reputation, but may be extremely difficult and impracticable to ascertain and that damages may not be an adequate remedy for such breach by the Company. The Company further acknowledges that iPay88 shall be entitled to all equitable relief, including but not limited to injunctions and specific performance, in the event of any such breach or threatened breach by the Company.
12.1 The Company shall pay iPay88 the Fees as set forth in the Fee Schedule stated inthe Annexure 1 of the iPay88 Alipay Retail application form or iPay88 Retail application form. iPay88 shall be entitled to deduct all Fees payable to it from thefunds received by iPay88 on behalf of the Company as set out in Clause 6.1 above.
12.2 All Fees will be assessed in the currency of the payment. The Company’s account andall transactions are made and displayed in Ringgit Malaysia unless other wise specified and may be subject to exchange rates.
- Receiving Payments
13.1 Credit Card Funded Payments
By accepting a credit card payment, the Company agrees that if there is reversal occurs on a credit card funded payment made to its account, iPay88 will reverse the payment and debit the Company’s account balance that is maintained with iPay88 to pay for the reversal. The Company shall not take any legal action against iPay88 due to non-payment as caused by this reversal. If there are insufficient funds in the Company’s account balance, the Company agrees to reimburse iPay88 through other means within fourteen (14) days from the date of receipt of the notification in writing.
13.2 Refused Payments
Any payments sent through iPay88 that are denied or unclaimed by a recipient will be returned to the Company (a) on the date of such denial in respect of denied payments, or (b) thirty (30) days after the date the payment is sent in respect of unclaimed payments.
- Warranties in respect of Company ‘s Information
14.1 The Company is solely responsible for the Company’s Information and the Company acknowledges that iPay88 acts solely as a passive conduit for the online distribution and publication of the Company’s Information. Notwithstanding the foregoing, iPay88 shall not use any of the Company’s Information for any other purpose which is not related to the provision of the Service pursuant to the terms of this Agreement without the consent of the Company.
14.2 The Company shall use its best endeavor to ensure that the Company’s Information and the Company’s activities (including its payments and receipt of payments) that are transacted through the iPay88 Service shall not:
(a) be false, inaccurate or misleading;
(b) be fraudulent or involve the sale of counterfeit or stolen items;
(c) be related in any way to gambling and/or gaming activities, including but not limited to payment or the acceptance of payments for wagers, gambling debts or gambling winnings, regardless of the location or type of gambling activity (including online and offline casinos, sports wagering and office pools);
(d) violate this agreement as defined under Clause 11 herein;
(e) infringe any third party’s copyright, patent, trademark, trade secret or other property rights or rights of publicity or privacy;
(f) violate any law, statute, ordinance, contract or regulation (including, but not limited to, those governing financial services, consumer protection, unfair competition, antidiscrimination, or false advertising);
(g) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing;
(h) be obscene or contain child pornography;
(i) contain any viruses, trojan horses, worms, time bombs cancelbots, easter eggs, cryptolocker or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or other personal information; or
(j) jeopardize any reputation or liability for iPay88 or cause iPay88 to lose (in whole or in part) the services of iPay88 or other suppliers.
- Representations, Undertakings and Covenants of the Company
15.1 The Company hereby undertakes and covenants as follow:
(a) To obtain at its own cost and expense necessary license or permit and own proper facility, equipment, inventory, agreement, personnel and other capabilities to conduct business;
(b) Shall have legal or legitimate rights to sell and market such products or perform such services as offered to the Customer;
(c) Shall not offer any products and/or services at a price lower than the market rate, or use promotional tactics which are not commercially reasonable or acceptable;
(d) Shall not impose or require Customer to pay any surcharge, commission, transaction cost, or any other contemporaneous finance charge in connection with the card transaction whether through any increase in price or otherwise, or any other term and condition imposed on any of the Customer desirous of using the card as opposed to any other method of payment in making payment to the Company;
(e) The Bank reserves the rights to participate from time to time, in promotions with any vendors or suppliers featured in the retail outlets;
(f) To be responsible and financially liable for all transactions and liable for all acts, omissions, Customer’s disputes and/or chargebacks, fraud or suspicious transactions, and other customer service-related issues caused by the Company;
(g) Not to transfer and/or attempt to transfer any of the Company’s financial liability by way of asking or requiring Customers to waive their dispute rights;
(h) To provide the Bank, Card Associations and/or iPay88 with the necessary information, documents and records of the transaction and Customer;
(i) To comply with the Standards and all relevant laws and regulations;
(j) To participate and give full co-operation in an audit with regards to the program / Standards in relation to fraud control upon request by the Bank, Card Associations and/or iPay88;
(k) Shall not deal directly with the Bank and/or Card Associations;
(l) In the event that the products and/or services are categorized as “high risk business” such as Digital item (IDD card, mobile reload card, digital music, video, information, software, instant downloadable item and eBook), Event (one-time seminar, conference, expo and online ticket) and Fast Moving Consumer Goods (pharmaceuticals, consumer electronics, packaged food products and drinks), the Company shall perform necessary verification with the Customer and to submit the relevant verification documents to iPay88 within three (3) business days after the card transaction date, failing which, the Company shall reverse the card transaction and perform secret key verification for all instant downloadable items or activation of services;
(m) Shall forthwith resolve any claims or complaints made by the Customer in respect of any purchase of the products and/or services from the Company directly with the Customer;
(n) Shall not export or re-export any of the products and/or services without the appropriate approval from the relevant authorities and foreign government licenses;
(o) Shall comply with all applicable export or import laws of whatever jurisdictions, including without limitation, restrictions on the export of encryption software and the export or import of products and/or services to and from embargoed countries.
- Inspection at the Company ‘s Premises
The Bank, Card Associations and/or iPay88 shall be entitled to enter any of the Company’s premises with or without prior notice to audit and inspect the software, hardware, system records, procedures and/or any part of its system with a view to ascertaining whether the setting-up, operation, maintenance, security and integrity thereof or any other matter related thereto may adversely affect the Bank’s, Card Associations’ and/or iPaay88’s interests or iPay88’s rights under this Agreement. All costs and expenses incurred thereon shall be borne by the Company and shall be debited into the Company’s account.
- Confidentiality and Intellectual Property Rights
17.1 All information that the Company may obtain from or through iPay88 in connection with or in the course of its use of the Service, whether intended or by accident, shall be kept confidential and the Company shall not disclose such information or use the same other than disclosure to authorized third parties or as obviously contemplated under this Agreement or with iPay88’s express written consent.
17.2 All information that iPay88 may obtain from or through the Company in connection with or in the course of the provision of the Service, whether intended or by accident, shall be kept confidential and iPay88 shall not disclose such information or use the same other than disclosure to authorized third parties or as obviously contemplated under this Agreement or with the Company’s express written consent.
17.3 The Company acknowledges that the copyright, designs, trademarks and other intellectual property rights comprised in the information, text, graphics, scripts, software, technology, music, sound, photograph or any other materials or works used on, comprised or contained in the iPay88 Payment System, iPay88 software and the iPay88 Marks (collectively “the Materials”) are the sole and exclusive property of iPay88 and/or its licensors.
17.4 The Company further agrees and undertakes that save as expressly permitted in this Agreement it shall not without iPay88’s prior written consent:
(a) reproduce, copy, reverse compile, adapt, modify, distribute, commercially exploit, display, broadcast, hyperlink or transmit in any manner or by any means or store in an information retrieval system any part of the Materials; or
(b) create or use derivative works from the Materials.
17.5 iPay88 acknowledges that the copyright, designs, trademarks and other intellectual property rights comprised in the information, text, graphics, scripts, software, technology, music, sound, photograph or any other materials or works used on, comprised or contained in the Company System and the Company Marks (collectively “the Company Materials”) are the sole and exclusive property of the Company and/or its licensors.
17.6 iPay88 further agrees and undertakes that save as expressly permitted in this Agreement it shall not without the Company’s prior written consent:
(a) reproduce, copy, reverse compile, adapt, modify, distribute, commercially exploit, display, broadcast, hyperlink or transmit in any manner or by any means or store in an information retrieval system any part of the Company Materials; or
(b) create or use derivative works from the Company Materials.
- Privacy and Security
- Term & Termination
19.1 The term of this Agreement shall commence on the Commencement Date and, unless earlier terminated or extended as provided below, shall end twenty four (24) months later (“Term”) provided that this Agreement shall be automatically renewed on a yearly basis upon expiry thereof unless either party provides written notice of termination to the other party at least thirty (30) days prior to the end of the then current Term.
19.2 This Agreement may be terminated as follows:
(a) If a Party (hereinafter referred to as “the Defaulting Party”):
(i) shall hereto commit or permit any material breach of any of the obligations herein contained and on its part to be performed or observed and shall not have remedied such breach (if capable of remedy) within fourteen (14) days after written notice shall have been given to it by any other Party requiring such remedy;
(ii) shall go into voluntary liquidation otherwise than for the purpose of reconstruction or amalgamation or an Order of Court is made for its compulsory liquidation or being an individual shall become bankrupt or have a receiving order made against any of his assets;
(iii) shall enter into any composition or arrangement with its creditors
(iv) shall have a receiver appointed over the whole or any part of its under taking or assets;
(v) shall suffer any encumbrances taking possession of or a receiver ortrustee being appointed over the whole or any part of its undertaking,property or assets; or
(vi) shall have an order made against it or have a resolution passed for its winding-up, otherwise than for the purpose of a reconstruction oramalgamation previously approved by the other Party.
then and in any such event (hereinafter referred to as an “Event of Default”) the Party not in default (the “Non-Defaulting Party”) shall be entitled (but shall not be obliged) to give notice in writing to terminate this Agreement to the Defaulting Party within fourteen (14) days from the date of which the Non-Defaulting Party becomes aware of the occurrence of the Event of Default
19.3 This Agreement shall be terminated automatically and immediately without any prior notice if any of the following events shall occur:
(a) When the Company or any of its directors and/or business owners of the Company has been blacklisted by the Bank and/or Card Associations;
(b) The Card Associations de-register iPay88 or the Bank ceases to be a member of the Card Associations for any reason whatsoever;
(c) The Company involves in fraudulent, counterfeit, suspicious and/or wrongful activity;
(d) The Company enters into another agreement under a new name with the intention to circumvent the provisions of the Standards;
(e) The Company carries out activity that causes the Bank and/or iPay88 toviolate the Standards; or
(f) The Company performs any other activity that may result in undue economic hardship or damage to the goodwill of the system of the Card Associations;
(g) Irregular transactions by the Company, excessive chargebacks, which listedunder Excessive Chargeback Program, non-compliance with any applicabledata security standards, as determined by iPay88, Card Associations, the Bank,or an actual or suspected data security standards, or any other circumstances which, in the discretion of iPay88, the Bank and/or Card Associations, may increase the risk exposure of such parties or otherwise present a direct or indirect financial or security risk to such parties;
(h) A violation by the Company of any laws and/or Standards; or
(i) The Company processes more than United State Dollars One Hundred Thousand (USD100,000.00) only annually (based upon the date its account isapproved) for any cards and does not enter into a merchant agreement directly with the Bank.
19.4 Upon the termination of this Agreement, the following provisions shall apply:
(a) Any pending transactions to be performed under the Service will be cancelled.
(b) The Company may not use closure of its account as a means of evadinginvestigation – if an investigation is pending at the time the Company closes itsaccount, iPay88 may continue to hold its funds for up to 180 days asappropriate to protect iPay88 against the risk of reversals. If the Company islater determined to be entitled to some or all of the funds in dispute, iPay88will release those funds to the Company within 30 days. The Company will remain liable for all obligations related to its account even after such accountis closed.
If the Company does not access its account for a period of three years, it will beterminated by iPay88 without further notice. After the date of termination, iPay88 will use the accounts and/or address information the Company provided to try to send the Company any funds that iPay88 is holding in custody for the Company. If that information is not correct, and iPay88 is unable to complete the payment to the Company, its funds will be subject to the laws applicable to unclaimed property and monies.
- Remedies and iPay88’s Right to Collect from the Company
20.1 If any of the following events occur:
(a) the Company commits a breach of any of the terms of this Agreement asprovided herein;
(b) iPay88 is unable to verify or authenticate any information provided by the Company to iPay88 and the Company refuses to co-operate or assist iPay88 toverify and authenticate such information;
(c) iPay88 believes with reasonable cause that the Company’s account or activities pose a significant credit or fraud risk to iPay88;
(d) iPay88 believes with reasonable cause that the Company’s actions may cause financial loss or legal liability for iPay88 or its users; or
(e) The Company’s use of the Company’s iPay88 account is deemed by iPay88, Bank or Card Associations to constitute abuse of the card system or aviolation of card rules. For the avoidance of doubt, even if they have been recorded as completed in the recent activity or history transaction log of the Company’s account, transactions are not considered completed until the fundshave been charged to the customer’s funding source (for payments) or postedto the customer’s bank account (for withdrawals), then, without limiting other remedies,
iPay88 shall be entitled at its discretion to take any of the following actions andremedies: (i) to hold on the funds in the Company’s account, (ii) to limit the fundingsources and payments, (iii) to limit access to an account and any or all of the account’sfunctions (including but not limited to the ability to send money or making withdrawals from the account), (iv) to limit withdrawals, (v) to indefinitely suspendor close its account and (vi) refuse to provide the Service to the Company.
20.2 In addition thereto, iPay88 reserves the right to hold the funds beyond the normal distribution periods for transactions it reasonably deems suspicious or for accounts conducting high transaction volumes to ensure integrity of the funds.
20.3 If iPay88 closes the Company’s account pursuant to this Clause 20, iPay88 will notify the Company by giving a written notice and pay to the Company all of the unrestricted funds held in its iPay88’s account. In addition thereto, iPay88 shall have a lien over the Company’s account and iPay88 shall set-off against the monies in such accounts held with iPay88 in respect of all sums due and owing to iPay88 pursuant tothe terms of this Agreement.
The parties may not transfer any rights or obligations it may have under thisAgreement without the prior written consent of the other party. This agreement shall be binding upon and inure to the benefit of the parties, their legal representatives, successors, and permitted assignees.
- Credit Report
The Company agrees that iPay88 may order and review the Company’s credit report with the sole purpose of assessing its fitness to hold a iPay88 account and/or its abilityto use the Service or features thereof.
Each Party represents to the other that:
(a) it has all requisite power and authority to enter into this Agreement and tocarry out the transactions contemplated hereby;
(b) it has the rights, licenses, permits and power to perform all obligationsincurred by it under this Agreement;
(c) the execution, delivery and performance of this Agreement are duly authorized;
(d) this Agreement has been duly executed and delivered by it and is a valid and binding obligation of it; and
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby do not conflict with orviolate its constituent documents, any other contract or agreement to which itis a party, any applicable laws or any order or judgment of any court orgovernmental authority.
- Information, Data Security and Protection
24.1 Where either Party receives any personal data from the Customer, it shall ensure that itfully complies with the provisions of the Personal Data Protection Act, 2010 (“the Act”)and only deals with the data to fulfil its obligations under this Agreement.
24.2 Each Party shall indemnify to the other for any breach of the Act which renders the latter liable for any costs, fines, claims or expenses howsoever rising.
24.3 Each Party shall take all reasonable steps to ensure that all its partners, contractors, employees or agents comply with this clause and the provisions of the Act where theyare processing any of the personal data of the Customer.
24.4 The Company must ensure the security and confidentiality of the Customer’sinformation at all time and protect from any unauthorized access or the use of such confidential information that could result in substantial harm to the Customer and violation of the Standards, including without limitation, the PCI-DSS. The Company shall also ensure that it complies with PCI-DSS and the Payment Application DataSecurity Standard (PA-DSS).
24.5 In the event that the system or environment of the Company was compromised orvulnerable to compromise (at the time the ADC Event or Potential ADC Event occurred), the Company shall be fully responsible to resolve all outstanding issues andliabilities to the satisfaction of the Card Associations notwithstanding any subsequent change in the iPay88’s and Bank’s relationship with the Company after the occurrence of the ADC Event or Potential ADC Event.
24.6 The Company shall forthwith notify iPay88 when the Company becomes aware of anADC Event or Potential ADC Event in or affecting any system or environment of the Bank, iPay88 or the Company. The Company is deemed to be aware of an ADC Event or Potential ADC Event when the Company first becomes aware of an ADCEvent or Potential ADC Event. The Company is deemed to be aware of an ADCEvent or Potential ADC Event under circumstances that include, but are not limited to, any of the following:
(a) the Company is informed, through any source, of the installation or existenceof any malware in any of its systems or environments, no matter where suchmalware is located or how it was introduced;
(b) the Company receives notification from the Card Associations or any othersource that the Company has experienced an ADC Event or Potential ADCEvent; or
(c) the Company discovers or, in the exercise of reasonable diligence, should havediscovered a security breach or unauthorized penetration of its own system or environment.
24.7 When the Company becomes aware of an ADC Event or Potential ADC Event, the Company shall forthwith take the necessary actions to resolve the said event, unlessotherwise directed in writing by the Card Associations.
25.1 All taxes and other charges imposed or to be imposed by the governments or such other competent authorities in respect of the provision of Service or in connection with this Agreement shall be borne by the Company and the Company shall reimburse and indemnify iPay88 for the payment of the same in respect of the provision of Service or in connection with this Agreement.
25.2 If as a result of the introduction of new laws, by-laws rules or regulations or the amendment of the existing laws, by-laws rules or regulations which may be levied by the Government of Malaysia, the parties hereto shall comply with the new laws and pay at such rate as may be determined by the Government of Malaysia.
26.1 All notices, statements, demands, requirements or other communications and documents required or permitted to be given, served or delivered to any Party under this Agreement (hereinafter referred to as a “Communication”) shall be in writing in the English language and shall be either delivered by hand or sent by pre-paid certified or registered mail (airmail in the case of all international Communication), with return receipt requested, to that Party at its address stated below or sent by facsimile machine to its facsimile number stated below or to such other address or facsimile number as that Party may from time to time have notified the other Party as being its address or facsimile number for purposes of this Agreement to the exclusion of all previously applicable addresses and facsimile numbers. A Communication once given, served or delivered shall be irrevocable without the consent of the recipient, which may be given or withheld, in its absolute discretion.
|If to iPay88||Address||:||Suite 2A-18-2, 18th Floor |
Block 2A, Plaza Sentral
Jalan Stesen Sentral 5
50470 Kuala Lumpur.
|For the Attention of||:||Executive Director|
|If to Company||Address||:||[●]|
|Tel. No||:||[●] As per details stated in|
|Fax No.||:||[●] Section C & D of iPay88|
|E-mail Address||:||[●] Retail application form|
|For the Attention of||:||[●]|
26.2 A Communication shall be deemed to have been given, served or delivered:-
(a) if delivered by hand, upon delivery;
(b) if sent by mail, after three (3) Business Days of postage;
(c) if sent by facsimile machine, one hour after its transmission if such time is during business hours in the place of its receipt or, if it is not, on the openingof business on the next succeeding day in the place of its receipt, subject to itshaving in fact been received in legible form and with a copy thereof being sentby post;
(d) If sent by electronic mail, twenty four (24) hours after e-mail is sent.
- Force Majeure
27.1 Neither parties shall be liable for any cost or otherwise, for any delay and/or failure in the execution of their respective obligations hereunder if such cost, delay or failure is due to Force Majeure, which for the purposes of this Agreement shall mean any unforeseeable event or cause not within the control of the party affected which that party is unable to prevent, avoid or remove.
27.2 The events falling within Force Majeure include but are not limited to:-
(a) war (whether declared or not), hostilities, invasion, armed conflict act offoreign enemy, riot, insurrection, strike, revolution or usurped power; and
(b) acts of terrorism, sabotage or criminal damage; and
(c) nuclear explosion, radioactive or chemical contamination or ionizingradiation; and
(d) natural catastrophes including but not limited to earthquakes, floods andexceptionally inclement weather and subterranean spontaneous combustion;and
(e) Pressure waves caused by aircraft or other aerial devices travelling at sonic orsupersonic speeds.
Provided that an event of Force Majeure shall not include economic downturn, nonavailabilityor insufficient funds, or lack of financing on the part of the affectedparty to carry out its obligations under this Agreement.
27.3 If either party is prevented or delayed in the performance of any obligation under thisAgreement by events of Force Majeure, the affected party shall give written noticethereof to the other Party within seven (7) days of the happening of such event,specifying the details constituting Force Majeure and the anticipated period duringwhich such prevention, interruption or delay may continue.
27.4 Where possible the parties shall diligently mitigate or remove the effects of Force Majeure. Either party upon receipt of the notice of Force Majeure shall conferpromptly with the other and agree upon a course of action to remove or alleviate sucheffect and shall seek reasonable methods of resuming full performance of its obligations and achieving the objectives under this Agreement.
28.1 Any waiver of any rights under this Agreement shall not be valid unless in writingand signed by a duly authorized representative of each Party.
28.2 Waiver by either party of any breach of the terms and conditions of this Agreement tobe performed by the other party shall not be construed as waiver of any other breachof the same or any other terms or conditions.
- Governing Law
This Agreement is governed by, and shall be construed in accordance with, the lawsof Malaysia, and the parties hereby agree to submit to the non-exclusive jurisdictionof the Court of Malaysia.
Time is of the essence of this Agreement.
Each party shall bear their own solicitors’ costs in respect of this Agreement and thestamp duty incidental to this Agreement shall be borne by the Company.
This Agreement sets forth and shall constitute the entire agreement between theparties hereto with respect to the subject matter hereof and shall supersede any and allpromises, representations, warranties or other statements whether written or oral madeby or on behalf of one party to the other of any nature whatsoever or contained in anyleaflet, brochure or other document given by one party to the other concerning suchsubject matter. This Agreement may not be released, discharged, supplemented,amended, varied or modified in any manner except by an instrument in writing signedby each of the parties hereto. As from the date of this Agreement, all previousarrangements, agreements, compromise, commitments, negotiation and moratoriumexecuted hereto shall be superseded by this Agreement.
Any of the terms conditions stipulations provisions covenants or undertakingscontained herein which are illegal void prohibited or unenforceable in any respectunder the law governing this Agreement or its performance, such illegality, invalidity or unenforceability shall be ineffective to the extent of such illegality voidnessprohibitions or unenforceability without invalidating the remaining provisions hereofand any such illegality, voidness, prohibition or unenforceability shall not invalidate or render illegal void or unenforceable any other terms conditions stipulationsprovisions covenants or undertakings contained herein.
Unless expressly provided otherwise, in the event of any inconsistency between anyprovisions in this Agreement and the Standards, the Standards shall prevail unlesssuch other agreement provides explicitly to the contrary.
The following clauses of this Agreement will survive any expiration or termination of this Agreement: 9 (Disclaimer and Limitation of Liability), 10 (Indemnification), 13 (Receiving Payments), 16 (Inspection at the Company’s Premises), 17 (Confidentiality and Intellectual of Property Right), 21 (Remedies and iPay88’s Right to Collect from Company), 25 (Information, Data Security and Protection) and 30 (Governing Law).