Nuvending - Sales Force Automation system

MERCHANT TERMS & CONDITIONS

About our terms of service

Welcome to Sales Force Automation (“SFA”). We developed this multi-channel payment service (the “Service”) to make it easy for you to accept payments from your customers across a range of payment types and channels, so you can focus on your own products and services. We are committed to making business as straightforward as possible. We have made the agreements you sign as easy to understand and fair for both parties as possible. We operate as both a technology business and as a regulated financial institution, this can mean our agreements are complex in areas - if you don’t understand anything please let us know and we will explain it and see if we can improve the agreement in the future.

When you accept payments, you may need card terminals for face to face transactions and a range of technical services that link call-centers and websites to the same payment infrastructure. These are standard terms and your order will determine which elements of the contract are relevant to your configuration. Any terms that relate to services you do not purchase, will not be applied.

NOW IT IS AGREED as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definition

In this Agreement unless the contrary intention appears in writing, the following terms shall have the respective assigned meanings:

“Acquirer” means an institution that processes the Payment Card and/or e-money transactions on behalf of the Merchant which enables the Merchant to accept Payment Cards and/or e-money as the mode of payments by their customers;

“Agreement” means this master merchant agreement including its schedules,

Appendices or annexures;

“BNM” means Bank Negara Malaysia which was established on 26 January 1959, under the Central Bank of Malaysia Act 2009;

“BCP” means business continuity plan;

“Business Day” means any day which is not a Saturday, Sunday or public holiday in Kuala Lumpur, Malaysia

“Card Schemes” means payment networks linked to Payment Cards of which a bank or any other eligible institution can become a member;

“Chargeback Event” means a reversal of a completed Payment Transaction previously credited to the Merchant’s Account;

“Commencement

Date” means the date specified under Item 3 of Schedule1;

“Confidential

Information” means information that

(a) is by its nature confidential; or

(b) is communicated by the disclosing Party to the confidant as confidential; or

(d) includes but is in no way limited to:

(i) materials including the financial, the corporate and the commercial information of any Party;

(ii) any material which relates to the affairs of a third party;

(iii) information relating to the strategies, practices and procedures of any Party and any information

(iv) in the Merchant’s possession relating to a Party;

(v) Personal Data, but does not include anything which the confidant establishes;

(I) was in the public domain at the time it was received by the confidant;

(II) entered the public domain after being received by the confidant; or

(III) that the Confidential Information was disclosed pursuant to the terms of this Agreement, unless it entered the public domain due to a breach of confidentiality by the confidant; or which the confidant establishes was received by it from another person before or after it was received from the Company, if the other person did not breach any Law or agreement by giving it to the confidant.

“Correctly Rendered

Invoice” means an invoice that is rendered where:

(a) the amount claimed in the invoice is due for payment and correctly calculated in Ringgit Malaysia;

(b) the Agreement reference number is clearly printed;

(c) the invoice is set out as an itemized account, which enables the Company to ascertain what the invoice covers and the Revenue payable;

(d) the invoice is accompanied by documentary evidence that signifies that acceptance (where appropriate) has occurred in accordance with the Agreement; and

(e) the invoice is sent to the address as specified;

“Company Commission

Fee” means the Company Commission Fee payable by the Company to the Merchant under this Agreement as specified;

“DRP” means disaster recovery plan;

“e-money” means electronic money which is exchanged electronically over a technical device such as a computer or mobile phone. E-money in circulation operates as a pre-paid bearer instrument;

“Force Majeure

Event” means a circumstance beyond the reasonable control of a Part that results in that Party being unable to perform an obligation on time. A Force Majeure Event includes without limitation;

(a) natural events like fire, flood, or earthquake; or

(b) national emergency; or

(d) war;

“FSA” means Financial Services Act 2013;

“Government

Agency” means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity;

“Key Personnel” means the Merchant’s key Personnel as listed;

“Laws” means all laws including rules of common law, principles of equity statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, mandatory codes of conduct, writs, orders, injunctions and judgments;

“Merchant” means the party which is a retailer and / or provider of goods and / or services (including any physical retail stores, online platforms or other modes of supply which is sought to be acquired or acquired by the Merchant pursuant to the terms and conditions of this Agreement;

“Merchant

Agreement” means an agreement between Merchant and the Company that provides the terms pursuant to which the Merchant is authorized to accept Payment Card;

“Merchant

Application” means the duly completed Merchant Application Form and Merchant Agreement submitted by the Company for Merchant’s approval;

“Merchant

Application Form” means the form provided by the Merchant to the Company to be filled in by the Company;

“Monthly Report” means monthly statement generated by the Company which indicates the total number of Merchant Application Forms submitted by the Merchant and approved by the Company in writing;

“Payment Card” means a valid card (credit/debit/prepaid/charge/virtual card) and / or any other payment instrument bearing the symbols and programme marks together with other emblems, slogans, insignia and copyrights as adopted by Card Schemes;

“PDPA” means Personal Data Protection Act 2010;

“Personal Data” means any information that relates directly or indirectly to an individual who can be identified from that information or from other information in the possession of the Merchant including but not limited to a Personnel of the Company;

“Personnel” means employees, secondees, agents, principals and contractors who are individuals;

“POSM” means Point Of Sales Materials;

“Recovery Time

Objectives” means the targeted duration of time or a service level specified by GKASH within which the business process must be restored after a disaster or disruption;

“Service” means the services to be provided by Merchant to Company as stipulated in Clause 3 and Schedule 1 of this Agreement;

“Subsidiary” has a meaning assigned to under Section 4 of the Companies Act 2016 [Act 777];

“Tax” means:

(a) any tax, levy, impost, duty, fee, deduction, compulsory loan or withholding; or

(b) any income, stamp or transaction duty, tax or charge, which is assessed, levied, imposed or collected by any Government Agency and includes any interest, fine, penalty, charge, fee or other amount imposed on or in respect of any of the above; and

“Term” means the term as specified.

1.2 Interpretation

In this Agreement, unless the context requires otherwise:

(a) headings are for convenience only and do not affect the interpretation of the Agreement;

(b) words importing the singular include the plural and vice versa;

(c) other parts of speech and grammatical forms of a word or phrase defined in the Agreement have a corresponding meaning;

(d) words importing a gender include any gender;

(e) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Government Agency;

(f) a reference to a clause is a reference to a clause of, the Agreement;

(g) a reference to anything (including, but not limited to, any right) includes any part of that thing, but nothing in this Clause 1.2(g) implies that performance of part of an obligation constitutes performance of that obligation;

(h) a reference to a right includes a power, authority, discretion, benefit or remedy conferred on a Party by the Agreement or any applicable law;

(i) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, whether passed by the same or another Government Agency with legal power to do so,

(j) and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;

(k) a reference to a Party to a document includes that Party’s successors and permitted assigns;

(l) the word “including” and any similar expression does not imply any limitations;

(m) a reference to month is to a calendar month; and

(n) no rule of construction applies to the disadvantage of a Party solely because that Party was responsible for the preparation of the Agreement or any part of it.

2. TERM

This Agreement shall commence on the Commencement Date and shall remain in force for the Term unless earlier terminated in accordance with the terms and conditions of this Agreement.

3. SERVICES

During the Term, the Merchant shall provide the Services as set out in Schedule 1 to the Company.

4. NON-EXCLUSIVE SERVICE

Merchant acknowledges and agrees that its appointment under this Agreement is non-inclusive and that the Company may appoint other persons to conduct and may itself conduct the activities referred to in Clause 3.

5. STATUS OF MERCHANT

Except as expressly otherwise provided in the Agreement, Merchant is not a partner or an agent of the Company, and Merchant must not contract with any Merchant or any other third party, make any representation or warranty or otherwise incur any liability, on behalf of the Company.

6. THE COMPANY COMMISSION FEE AND PAYMENT

6.1 The Company Commission Fee

During the Term and in consideration of the Merchant performing its obligations under this Agreement, the Company shall pay to the Merchant, where relevant and applicable, the Company Commission Fee stipulated under Schedule 3A of this Agreement within the timeline as specified.

6.2 Rights to Set-Off and Deduct by the Company

Any charges or other damages, losses, and expenses which are recoverable by the Company from the Merchant, may be deducted from any money then due from the Merchant under this Agreement. If the money is insufficient for that purpose, the balance remaining unpaid shall be a debt due by the Merchant to the Company and may be recovered from Merchant by the Company in any court of competent jurisdiction.

6.A. CHARGEBACK EVENT

6.A.1 Where an event resulting in a Chargeback occurs, then upon a claim for refund from the Company or pursuant to a demand by the Company requiring the Company to make good the amount of monies paid for a fraudulent or otherwise disputed transaction affecting the Merchant subject to and upon the occurrence of the events resulting in the reversal of a completed Payment Transaction, then, as a consequence of this, the Company would need to debit from the Merchant’s Account to recover the Revenue or part of it paid to the Merchant and / or reconcile any differences.

6.A.2 Where an event resulting in a Chargeback occurs and the amounts related to such Chargeback has been overpaid to the Merchant, the Merchant shall repay on demand all such amounts to the Company and until full repayment by the Merchant of the said sum, such amount and all costs incurred in the enforcement of the Company’s rights under this Agreement (including solicitor costs) shall be a debt due from the Merchant to the Company and interest shall accrue thereon at the rate of 1.5% per month on a monthly rests basis or such other rate or rates as the Company shall determine at its absolute discretion from time to time from the date of demand to the date of full settlement of such amount and credit to the Merchant’s Account. Where the Company is required to reconcile any differences in the sum owed to the Merchant as a consequence of the event resulting in a Chargeback, the Company shall promptly do so.

7. TAX, COSTS AND EXPENSES

7.1 Tax

(a) Merchant must pay any Tax, which is payable in respect of the execution, delivery, performance, release, discharge, amendment, enforcement or attempted enforcement or otherwise of the Agreement.

(b) Merchant must pay any fine, penalty or other cost in respect of a failure to pay any Tax described in Clause 7.1(a).

7.2 Each Party must pay its own costs and expenses in respect of the negotiation, preparation, execution and delivery of the Agreement. The stamp duty of this Agreement shall be borne by the Merchant.

7.3 Any action to be taken by Merchant in performing its obligations under the Agreement must be taken at its own cost and expense, unless otherwise expressly provided in the Agreement.

8. REPRESENTATIONS AND WARRANTIES

8.1 Merchant represents and warrants, and it is an essential term of the Agreement, that:

(a) the execution of the Agreement by the Merchant has been properly authorized;

(b) Merchant is entitled to enter into the Agreement and perform its obligations under the Agreement;

(c) Merchant is duly incorporated and has full corporate power to execute, deliver and perform its obligations under the Agreement and will continue to do so throughout the duration of this Agreement;

(d) the Agreement constitutes a legal, valid and binding obligation of Merchant enforceable in accordance with its terms by appropriate legal remedy;

(e) the Agreement does not conflict with or result in the breach of or default under any provision of its constitution or any provision of any Law to which it is subject;

(f) to Merchant’s knowledge there are no actions, claims, proceedings or investigations pending or threatened against it, or by it, which may have a material effect on the subject matter of the Agreement; and

(g) the Merchant has and will maintain all licenses, authorizations, consents, approvals and permits required by applicable Laws in order to perform its obligations under the Agreement.

(h) the Merchant warrants and undertakes to the Company that it shall not engage in or be involved in any of the following ‘Prohibited Activities’ in the course of performing the merchant acquiring services pursuant to this Agreement:

i) activities related or associated to pornography;

ii) any sexual services and sexual harassment;

iii) illegal gambling or betting;

iv) illegal downloads;

v) prescription drugs (unless the merchant is duly licensed;

vi) any imitation/fake/replica goods or services or those otherwise infringing the intellectual property rights of others; or

vii) other goods or services the offering or provision of which is illegal under the governing laws of this Agreement

viii) the Merchant warrants that it is reliable and competent to perform and carry out the obligations pursuant to the terms of this Agreement.

(i) in respect of Merchant’s procured by the Merchant to the best of the Merchant’s knowledge, the Merchant is not in any way involved or dealing with any Unlawful Activity or illegal business which may adversely affect the interest or reputation of the Company including but not limited to strict compliance with Section 4 of the Anti-Money Laundering, Anti-Terrorism Financing And Proceeds of Unlawful Activities Act, 2001 of Malaysia.

8.2 No express representations or warranties by the Company

Merchant represents and warrants that no representations or warranties were made or given to it by the Company or any other person in relation to the Agreement.

8.3 Implied representations and warranties

In relation to any services supplied by the Company to the Merchant under the Agreement, no condition or warranty is implied in the Agreement other than a condition or warranty implied by statute which may not be excluded by private agreement.

8.4 Warranties Separate

Each of the representations and warranties contemplated by the Agreement is to be construed independently of the others and is not limited by reference to any other representation or warranty.

9. MERCHANT’S OBLIGATIONS

The Merchant shall perform the obligations specified in Schedule 2 in accordance with the terms of this Agreement.

10. THE COMPANY’S OBLIGATIONS

The Company shall perform the obligations specified in Schedule 6 in accordance with the terms of this Agreement.

11. MERCHANT DATA

11.1 Merchant acknowledges and agrees that all information relating to the Merchant which comes into the knowledge, is disclosed or communicated to the Merchant or obtained by the Merchant in the course of performing the Services pursuant to this Agreement shall at all times remain the absolute property of the Company.

11.2 Following the termination of this Agreement for whatsoever reason, the Merchant shall upon receipt of the Company’s written request, return to the Company, such Merchant data and all documents dealt with in the course of this Agreement in accordance with Clause 17.

11.3 The Merchant shall segregate the Merchant’s data from the data of the Merchant and its customers.

11.4 The Merchant shall only grant access rights to the Merchant’s data to its employees on a need to know basis.

12. CONFIDENTIALITY

12.1 Except to the extent necessary to comply with any statutory requirements relating to the disclosure of Confidential Information and subject to Clause 12.3 below, neither Party shall make public, disclose or use any Confidential Information of the other Party except in accordance with this Agreement, unless the other Party gives its prior written consent.

12.2 Each Party may disclose the Confidential Information of the other Party to its Personnel where the disclosure is essential to carrying out their duties for the purposes of this Agreement, provided, such Party binds such Personnel to terms at least as restrictive as those stated in this Agreement.

12.3 The Company shall be entitled to disclose this Agreement to its investors or potential investors, financier or potential financier and their advisors in relation to:

(a) an investment or potential investment in the Company or its related corporation as defined in the Companies Act 2016;

(b) funding or potential funding for the Company or its related corporation; or

12.4 Each Party shall ensure that any Confidential Information of the other Party is used solely in connection with, or for the purposes of fulfilling its obligations under, this Agreement.

12.5 By providing Personal Data of the Merchant’s employees, officers, agents, sub-contractor or any individuals, the Merchant confirms and warrants that the Merchant has provided notice to and obtained all consents necessary for the Company to, collect, record, hold, store, use and disclose that Personal Data in connection with this Agreement. The Merchant shall indemnify the Company for any loss or damage which may arise, directly or indirectly, as a result of the Merchant’s breach of this Clause.

12.6 In addition to the confidentiality obligation provided in Clauses 12.1 to 12.4 herein, the Merchant shall comply with the secrecy provisions specified under Section 133 of the FSA.

12.7 This Clause 12 shall survive the termination or expiry of the Agreement.

13. PRIVACY

13.1 The Merchant must (and must ensure that its Personnel) comply with:

(a) any applicable privacy or data protection Laws including PDPA;

(b) the privacy procedures or policies which form part of the Company’s guidelines, directions or policies.

13.2 The Merchant:

(a) must take all reasonable steps to ensure that the Personal Data is protected against misuse and loss, and from unauthorized access, modification or disclosure;

(b) must deploy technical and organizational measures to ensure compliance with all applicable privacy and data protection Laws and to inform the Company if any of the measures are breached;

(d) must not and ensure that its Personnel must not, directly or indirectly use the Personal Data except to the extent necessary to perform its obligations under this Agreement;

(e) must not disclose the Personal Data whether directly or indirectly to any person without the prior written consent of the Company;

(f) must ensure that its internal operating systems only permit properly authorized Personnel to access the Personal Data;

(g) must not do anything or omit to do anything that will cause the Company to breach any Laws; and

(h) must not transfer Personal Data outside Malaysia without the Company’s prior written consent

13.3 On termination or expiry of the Agreement, the Master Merchant must promptly return to the Company or; if requested by the Company, destroy all copies of the Personal Data, in which case any right to use, copy or disclose that Personal Data ceases.

13.4 This Clause 13 shall survive and continue after any expiration or termination of this Agreement.

14. INDEMNITY

14.1 The Merchant indemnifies the Company against any claim or action made or brought by the Merchant’s Personnel and any damage, loss, liability, cost, charge, expense, outgoing or payment which the Company pays, suffers, incurs or is liable for, in connection with any such claim or action.

14.2 The Merchant indemnifies the Company against any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment which the Company pays, suffers, incurs or is liable for, in connection with any act or omission of the Merchant, Key Personnel or its Personnel, including but not limited to, any breach of contract or negligence.

15. LIABILITY

15.1 The Company’s Liability

(a) Any liability of the Company for loss or damage on contract, strict liability or otherwise, however caused (including but not limited to, by the negligence of the Company), suffered by the Merchant in connection with the Agreement is limited to the Revenue paid by the Company to the Merchant from which the cause of action arose.

(b) The limitation specified in Clause 15.1(a) is an aggregate limit for all claims, whenever made.

15.2 Exclusion of consequential loss

The Company excludes all liability to the Merchant for all:

(a) special, indirect or consequential loss or damage; and

(b) loss of profits, loss of revenue and loss of goodwill, arising out of or connected in any way with the Agreement.

16. TERMINATION

16.1 Either Party may terminate this Agreement by giving at least ninety (90) days’ prior written notice to the other Party without providing any reason.

16.2 Without prejudice to the rights contained in this Agreement, the Company may, in its absolute discretion terminate or suspend this Agreement immediately by notice to the Merchant on the occurrence of any of the following events:

(a) in the event that termination of this Agreement is necessitated by any directive or regulation from BNM or any authority having jurisdiction over the matters contemplated under this Agreement or due to any adverse findings by such authorities;

(b) by reason of any change in applicable Laws, ordinances, rules or regulations, it shall become unlawful for the Merchant to perform any of its obligations herein or to continue with the performance of its obligations under this Agreement;

(d) the Merchant has been in breach of this Agreement (other than by a breach in any material respect of any of its obligations under this Agreement) and, in the Company’s reasonable opinion, the breach:

(i) cannot be rectified; or

(ii) is capable of being rectified and shall remain unrectified by the Merchant for a period of thirty (30) days after being notified to do so;

(e) a judgment in any amount is obtained against the Merchant, or any distress, attachment, execution or other process of a Government Agency is issued against, levied or enforced on any of the Merchant’s assets;

(f) the Merchant suspends payment of its debts generally, or is or becomes unable to pay its debts when they are due, or is or becomes unable to pay its debts;

(g) the Merchant enters into, or resolves to enter into, any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;

(h) the Merchant ceases, or threatens to cease, to carry on business;

(i) a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the Merchant’s assets or undertakings, an application or order is made for the winding up or dissolution of the Merchant, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the Merchant, except for the purpose of an amalgamation or reconstruction which has the Company’s prior consent;

(j) the Merchant becomes a Subsidiary of another corporation other than with the prior written approval of the Company;

(k) the Merchant, or any of its Personnel, is convicted of a criminal offence;

(l) fraudulent act committed or misrepresentation by the Merchant;

(m) the Merchant fails to notify the Company of such changes as required under Item 1(o) of Schedule 2 of this Agreement;

(n) there have been material misrepresentations by or concerning the Merchant; or

(o) the Merchant, in the reasonable opinion of the Company, brings the Company into disrepute.

(p) the Merchant’s failure to comply with Item 1(r) of Schedule 2 of this Agreement.

17. TERMINATION TRANSITION PLAN

17.1 When this Agreement expires, or if the Agreement is terminated, the Master Merchant must:

(a) immediately cease to conduct the Services;

(b) immediately cease the use of the Confidential Information and deliver to the Company all Confidential Information in its possession or control;

(d) co-operate with the Company to ensure an orderly wind down of operations; and

(e) provide all other assistance required by the Company to transition the performance of the activities performed by the Merchant under this Agreement to the Company or a third party.

17.2 The Merchant shall acquire a minimum of thirty (30) Merchants per month, failing which the Company reserves the right to terminate this Agreement.

18. BUSINESS CONTINUITY MANAGEMENT

18.1 The Merchant must maintain a documented and adequately resourced BCP and DRP to ensure the continuation of the Services, in the event of disruptions affecting the Services.

18.2 The Merchant must ensure the continuity of the Services within the Recovery Time Objectives as agreed between the Parties.

18.3 The Merchant shall at the written request of the Company, declare its state of business continuity readiness annually.

18.4 The Merchant shall provide a copy of its BCP and DRP documents to the Company upon request.

18.5 The Merchant shall ensure that testing is conducted on its BCP and DRP at least annually and twice a year, respectively, and notify the Company of the test results and actions to be undertaken to address any gaps.

18.6 The Merchant shall notify the Company immediately in the event when significant changes are made to its BCP and DRP or encounters other circumstances that might have a serious impact to the Services.

18.7 The Merchant agrees that authorized personnel identified by the Company or any regulatory authority (including but not limited to BNM) is allowed to review the Business Continuity Management of the Master Merchant.

19. PROHIBITION AND ENFORCEABILITY

19.1 Any provisions of, or the application of any provision of, the Agreement of any right which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.

19.2 Any provision of, or the application of any provision of, the Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, illegality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

19.3 Where any clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in the Agreement.

20. NOTICES

20.1 All notices given and service of legal process pursuant to this Agreement shall be in legible writing and in English, and may be delivered personally or sent by facsimile or by ordinary post to the address or facsimile of the other Party as specified or such other address or facsimile number as such Party may specify in writing from time to time.

20.2 Any notice or communication or demand or service of legal process given pursuant to this Agreement shall be deemed to have been received:

(a) If by personal delivery, at the time of delivery;

(b) If by ordinary post, three (3) Business Days after posting; and

(c) If by facsimile transmission, on the day of transmission if a transmission report states that it was sent in full and without error.

21. RECORDS AND AUDIT

21.1 The Merchant shall conduct its operations and provide the Services in conformity with generally accepted security, safety practices and industry standards and written instructions provided by the Company.

21.2 The Merchant shall keep full and proper books of accounts and records showing clearly all transactions to which this Agreement relates for a period of seven (7) years, or longer if required by Law.

21.3 The Merchant shall allow GKASH, its authorized representatives, professional advisors (including its external auditors) or agents to conduct the necessary audits at any time and the Merchant shall render its full cooperation.

21.4 The Merchant shall allow BNM’s authorized examiner appointed for the purpose of examination by virtue of FSA to have access to any relevant documents and information in the possession of the Merchant relating to the services provided under this Agreement for the purpose of conducting the said examination.

21.5 The Merchant must be able to isolate and clearly identify the Company’s information, documents and records and other assets such that in adverse conditions, all documents, records and information given by the Company to the Merchant may either be removed from the Merchant’s possession in order for the Company to continue its business operations, or to be deleted, destroyed or rendered unusable.

21.6 If an audit or inspection reveals any breach of the Agreement by the Merchant, then the Merchant must take remedial action including complying with any reasonable directions or instructions from the Company.

21.7 Subject to Clause 21.6, each Party will bear its own costs associated with audits and inspections.

21.8 If an audit or inspection reveals that the Merchant has breached the Agreement, the Merchant will be responsible for the Company’s audit and inspection costs and must promptly reimburse the Company for those costs following any request by the Company to do so.

22. WAIVERS

22.1 Waiver of any right under the Agreement must be in writing and executed by the Party granting the waiver.

22.2 A failure to exercise or delay in exercising, or a partial exercise of, a right under the Agreement does not result in a waiver of that right.

23. FORCE MAJEURE

23.1 A Party is excused from performing its obligations to the extent it is prevented by a Force Majeure Event.

23.2 Each Party must make all reasonable efforts to minimize the effects of the Force Majeure Event.

23.3 If the Merchant is prevented by the Force Majeure Event from performing its obligations under the Agreement for thirty (30) days or such other period as the Parties agree in writing, then the Company may in its sole discretion immediately terminate the Agreement by giving fourteen (14) days’ notice in writing of termination to the Merchant.

23.4 If the Force Majeure Event has continued uninterrupted for two (2) months and the Merchant’s performance of its obligations are affected by the Force Majeure Event, the Merchant may terminate the Agreement by giving fourteen (14) days’ notice in writing of termination to the Company.

24. ENTIRE AGREEMENT

This Agreement, any exhibits, schedules or appendices attached or referred to shall constitute the entire agreement between the Parties with respect to the Services to be provided and supersedes all prior oral or written communications or agreements of the Parties with respect to the Services. All exhibits, schedules or appendices attached to this Agreement are integral parts of this Agreement. If there is a conflict between these exhibits, schedules or appendices and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall prevail.

25. VARIATION

25.1 Subject to Clause 25.2, except as expressly otherwise provided in the Agreement, a variation of any term of the Agreement must be in writing and executed by the Parties.

25.2 A variation of any of the terms referred to in Clause 25 will not be effective unless made with the written consent of the Company.

26. ASSIGNMENT AND NOVATION

26.1 The Company may require the Merchant to enter into a novation deed in the form specified by the Company to novate the Company’s rights and obligations under the Agreement to the Company’s related corporation.

26.2 The Merchant may not assign any of its rights or obligations under the Agreement without the Company’s prior written consent.

27. SUCCESSORS IN TITLE

This Agreement shall be binding upon the respective successors in title and permitted assigns of the Parties.

28. MERCHANT SUB-CONTRACTORS

28.1 The Merchant acknowledges that its appointment pursuant to this Agreement is solely in a personal capacity.

28.2 The Merchant must not sub-contract or delegate the conduct of the Services or any other of its obligations under this Agreement to any person, except as expressly permitted by this Agreement or with the Company’s prior written consent.

29. FURTHER ASSURANCES

Each Party must do all things and execute all further documents necessary to give full effect to this Agreement.

30. CUMULATIVE RIGHTS

The Company’s rights arising under this Agreement are cumulative and do not exclude any of the Company’s other rights.

31. NO PARTNERSHIP OR AGENCY

Nothing in this Agreement shall create or be deemed to create a partnership or the relationship of employer and employee between the Parties.

32. TIME OF THE ESSENCE

Time for the performance of the obligations under this Agreement shall be of the essence.

33. GOVERNING LAW AND JURISDICTION

33.1 The Agreement is governed by the Laws of Malaysia.

33.2 Each Party irrevocably submits to the non-exclusive jurisdiction of the courts of Malaysia.

34. COMPLIANCE WITH SECTION 216 OF THE COMPANIES ACT 2016 [ACT 777]

The Merchant shall comply with Section 216 of the Companies Act 2016 in the capacity of a delegate of the Company’s instructions pursuant to the terms of this Agreement.

35. MERCHANT’S LIABILITY FOR LOSSES AND / OR PENALTIES IMPOSED BY CARD SCHEMES

The Merchant shall be liable for all and any losses and / or penalties that may be imposed by the Card Schemes pursuant to the guidelines issued by the Card Schemes and / or any other Regulatory Authorities.

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SCHEDULE 1

(attaching and forming an integral part of this Agreement)

(SERVICES)

The Merchant shall provide the following Services under this Agreement:

1. Solicit and recruit qualified merchants for the Company’s merchant acquiring business;

2. Prior to entering into this Agreement, the Merchant shall fill out a Merchant Application Form which is essentially a form setting out inter alia, the personal and business details of the Master Merchant and the Merchant’s bank account information amongst other details.

3. Upon the completion of filling out the Merchant Application Form, a background check or due diligence shall be performed upon the Merchant to adhere to the compliance requirements of the industry as set by BNM.

4. Such decision to accept or reject each Merchant shall be at the sole discretion of the Company. The Company shall have the right, in its sole discretion, to terminate, suspend or otherwise close any Merchant. A Merchant shall be considered accepted once it has entered into a Merchant Agreement between the Merchant and the Company.

5. The Merchant shall duly and diligently provide the merchant acquiring services as stated in Schedule 3 which shall include the acquisition of merchants and performing after sales service to the Acquired Merchants.

6. This Agreement and the Merchant’s participation in the merchant acquiring program offered by and through the Company shall not encompass any form of foreign currency exchange or conversion and all transfer of monies, e-money or legal tender hereunder between the Parties shall only be in Ringgit Malaysia. Unless indicated otherwise, all Revenue and other monetary amounts are quoted in Ringgit Malaysia.

7. Obtain the completed the Merchant Application Form and all supporting documents based on the participation criteria of the Company which is made known to the Merchant in writing from time to time;

8. Submit the completed Merchant Application Form and supporting documents to the Company based on the following timelines:

No.

Type of Submission

Timeline for submission (calculated from the date of Merchant’s receipt of completed Merchant Application Form and supporting documents)

Electronic

Within one (1) Business Day

ii.

Manual

Within three (3) Business Days

9. Submit additional documents and/or information within five (5) Business Days upon receipt of such request from the Company, failing which the Merchant Application shall be rejected; and

10. Provide to all potential Merchant or Merchants, all information and material as may be required to enable such potential Merchant or Merchants to understand fully and effectively all the terms and conditions of the Merchant Agreement.

SCHEDULE 2

(attaching and forming an integral part of this Agreement)

(MERCHANT’S OBLIGATIONS)

1. Without limitation to any of the Merchant’s obligations in this Agreement, Merchant shall:

(a) Actively promote the Company’s merchant acquiring services and shall refer any person or entity that expresses an interest in obtaining merchant acquiring services to the Company.

(b) In the event that the Merchant appoints any subcontractor under this Agreement, the Company shall be notified immediately and the Merchant shall be responsible to the Company for such subcontractor’s compliance with the terms of this Agreement.

(c) Carry out its obligations under this Agreement in a professional manner and shall not affect the goodwill of the Company.

(d) Agree to fully co-operate and to assist the Company in the obligation to perform a Customer Due Diligence upon the Merchant sought to be acquired pursuant to the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 and to comply with all the relevant provisions of the stated Act pursuant to the terms of this Agreement.

(e) Provide (or allow access, as the case may be), the Company with such information and / or copies of documents relating to the Merchant’s and / or the Merchant’s corporate structure and constitution, incorporation and statutory documents, nature of business, financial information, shareholders, directors, partners, members, key employees, and / or beneficiaries.

(f) Provide to the Company upon reasonable request with information and / or copies of documents (or if requested, certified true copies) relating to the financial and / or operational status of the Merchant and / or the Merchant sought to be acquired.

(g) Inform the Company without undue delay of any material change in the Merchant and / or the Merchant sought to be acquired, including but not limited to changes in:

i) its nature of business, including its business model or the goods or services that it provides;

ii) its corporate structure, including constitution, shareholding, change in management or control;

iii) any licensing requirements to which the Merchant and / or the Merchant sought to be acquired is subject including any changes or revocation of any license or approvals which it requires for its business or otherwise which may have an adverse impact on the Merchant and / or the Merchant sought to be acquired and / or the Company’s compliance with the applicable regulatory laws; and / or

iv) any other things that, on a reasonable and objective basis, shall be prejudicial or have an adverse effect on the provision of the merchant acquiring services or to the Company.

(h) Exercise reasonable care, skill and diligence in discharging its obligations hereunder this Agreement;

(i) Ensure that its obligations to the Company will be performed by a sufficient number of experienced, qualified, competent, trained and efficient Personnel;

(j) Provide daily and monthly report to the Company of the Merchant Application submitted to the Company. The report shall contain information such as name of Merchant, Merchant company or business registration number, date of application collected from the Merchant and date of submission of application to the Company or any other information as may be required by the Company from time to time;

(k) Provide all such information as the Company may reasonably request in connection with the provision of the Services (whether financial, statistical information, reports, analysis or otherwise);

(l) Not do anything in the performance of the Services that would likely adversely injure the reputation of the Company or which may cause any damage or loss to the Company’s reputation;

(m) Comply with all laws, relevant regulatory requirements and the Company’s policies in relation to the Services, which will be notified by the Company to the Master Merchant from time to time;

(n) Ensure that it shall at all times act professionally, honestly, ethically and sincerely in the course of soliciting Merchants;

(o) Give written notice to the Company within ten (10) Business Days in the event of any changes in:

(1) The roles of the Key Personnel;

(2) The managerial authority or responsibility of Key Personnel; or

(3) The ownership, management or control of Merchant including any transfers of shares or changes in the partnership or in the composition of the board of directors, which shall in reasonable opinion of the Company substantially change control of the Merchant;

(p) Not at any time solicit, accept, give or attempt to give cash, gifts or any other benefits in cash or in kind to or from potential Merchant or Merchants. The Merchant shall not have any agreement or arrangement or understanding whether direct, indirect, formal, informal, written or oral with any third party whereby they receive payments or gifts or make payments or make gifts in connection with solicitation of Merchants; and

(q) Not, in any manner whatsoever, make any representations to potential Merchants in respect of whether the application to be the Company’s Merchant will be approved or in respect of relaxation or waiver of any terms or conditions without the prior written consent of the Company.

(r) Ensure that all Merchants at all times conspicuously display the Company POSM at their premises.

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SCHEDULE 3

(attaching and forming an integral part of this Agreement)

(PROVISION OF MERCHANT ACQUIRING SERVICES)

Provision of Merchant Acquiring Services

The Merchant shall provide the following services:

1. Scope of Services

1.1. Provide their employee or subcontractor details of the personnel involved in the required services. All employees or subcontractors are subject to the following screening:

1.1.1. Employee background checks;

1.1.2. Financial check where appropriate.

1.2. Provide the necessary information and to conduct the due diligence as requested by the Company regarding their employees or subcontractors from time to time.

1.3. Acquire the Merchants which shall therein utilize the Company payment services in accordance with terms and conditions agreed between the Company and the Merchant.

1.4. Provide the relevant training to the Merchants acquired which shall include cashier training, training on payment notification, accessing the merchant portal for transactions and any other relevant matters.

1.5. Provide the following additional services upon request by the Company:

1.5.1. Negotiate with selected Merchants to run any deals by the Company with partnering Merchant on ad-hoc basis.

1.5.2. Assist the Company to liaise with local authorities for license and compliance for event and roadshow.

1.5.3. Coordinate with third party vendors on supply, printing and logistics, if requested by the Company.

In the event the Merchant may incur any additional cost in the provision of the additional services, the Merchant shall submit the estimated cost to the Company prior to incurring such cost for the Company’s approval. The Company shall not be liable to bear any such cost whatsoever unless and until the Master Merchant has obtained the Company’s consent or approval in writing.

2. Reporting

The Merchant shall provide a weekly report within three (3) days from the end of each calendar week (Saturday) which shall contain the following information:

a. Number of new Merchants acquired within each calendar week;

b. Type of business and location of merchant;

c. Any other information the Company may require from time to time.

The Merchant shall provide a report summary upon termination, lapse or expiry of this Agreement. The report shall contain the information contained in the weekly report.

3. Acquired Merchant

For the avoidance of doubt, a merchant shall be deemed to be acquired (hereinafter referred to as the “Acquired Merchant”) upon the following taking place:

a. Merchant approved by the Company in accordance to the Company’s merchant on-boarding process;

b. The Merchant’s terminal or account has been activated;

c. The Merchant has provided the necessary training to the Merchant; and

d. The Merchant’s name has been submitted in the weekly acquisition report.

4. After Sales Support

4.1. The Merchant is required to perform after sales support for their Acquired Merchant.

4.2. For the avoidance of doubt, the Company has the sole discretion to decide whether the Merchant has performed its after sales support to the Company’s expectation if in the sole opinion of the Company, the Merchant has failed in performing its obligations in servicing the Merchant.

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SCHEDULE 6

(attaching and forming an integral part of this Agreement)

(THE COMPANY’S OBLIGATIONS)

1. Without limiting the Company’s other obligations in this Agreement, the Company shall:

(a) Handle the processing of Merchant Applications and the Company shall have the sole and absolute discretion to approve or reject any reason whatsoever;

(b) Upon receipt of the complete Merchant Application Form and supporting documents from the Merchant, conduct the necessary checking and approvals;

(c) Furnish to the Merchant its decision on the Merchant Application within ten (10) Business Days of its receipt of the completed Merchant Application Form (excluding the Business Day where the Company receives the completed Merchant application form and supporting documents from Merchant) as to whether the Merchant’s Application is approved or declined; and

(d) Provide the Monthly Report to the Merchant in the manner specified in Item 3 of Schedule 3 of this Agreement.

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