ELECTRONIC PAYMENT SERVICES AGREEMENT TERMS AND CONDITIONS
Entered into between
PayAccSys Services (Pty) Ltd
Reg. No. 2000/025565/06
WHEREAS the Service Provider makes an Electronic Payment Service ("service") available to the Client, and WHEREAS the Client wishes to make use of the service. THEREFORE the Parties agree as follows:
1. Nature of Service
The Service Provider acts as an intermediary for the Client by processing suitable, accurate information collected and submitted by the Client in respect of any payment/s being made to a third Party.
2. Use of the Electronic Service via PayAccSys Online Application ("POA")
2.1 An Implementation Schedule (As per new client/company registration form) is to be completed by the Client in respect of all their relevant company details.
2.2 The Client acknowledges and accepts that they will acquire the relevant hardware and software necessary to connect to the Internet in order to access the PayAccSys Online Application ("POA"). The costs of all related hardware, software and connectivity charges, as well as the maintenance thereof shall be borne by the Client.
2.3 The Client shall remit a data file via the POA containing the suitable, accurate information as referred to in clause 1.1, in the agreed-upon file layout format selected as per new client/company registration form.
2.4 The data file and funds, including fees shall reach PayAccSys prior to the date and time as stipulated in the processing times in the Electronic Pricing Schedule (Annexure A). PayAccSys accepts no responsibility for a delay in the service where the cut-off times are not strictly adhered to.
2.5 It is the responsibility of the Client to confirm receipt of the data file and funds, including fees by PayAccSys. Proof of payment shall be sent via email to data@PayAccSys.com prior to the date and time as stipulated in the Electronic Pricing Schedule (Annexure A).
2.6 Any change of information as contained in the Implementation Schedule (As per new client/company registration form) must be notified, in writing, to the Service Provider within ten (10) business days of said change PROVIDED THAT such notification must not be given to the Service Provider later than 10 days before the cut-off time for any Service in terms of this Agreement. This will enable the Service Provider to update the POA in order to process the data accurately. The Service Provider accepts no responsibility for any errors and associated bank charges where the data changes were not timely communicated to the Service Provider.
3. Tariffs and Fees
3.1 The Client shall pay the fees due as set out in the Electronic Pricing Schedule (Annexure A). Fees are due and payable and shall be paid, together with the transmission of the data file and funds prior to any service being rendered by the Service Provider. The Service Provider shall be entitled to withhold performing any Services under this agreement if the fees are not paid, in full, when due.
3.2 The Client shall be advised of any changes to the fee structure, in writing, one (1) month prior to such change being effected.
4. Commencement and Duration
4.1 This agreement shall commence on the date of last signature hereof and shall remain in force until terminated by either Party in writing as per clause 4.2 below.
4.2 Either Party is entitled to terminate this agreement for whatsoever reason by giving the other Party at least thirty (30) days? written notice to that effect and this agreement will then terminate upon the last day of the aforesaid written notice ("Termination Date"). During the notice period the Parties shall remain obliged to perform in terms of this agreement.
4.3 The Client shall remain liable to the Service Provider for any fees due or costs incurred by the Service Provider as at the date of termination.
4.4 Any excess funds (if applicable) held by the Service Provider on behalf of the Client on the Termination Date, shall be refunded within thirty (30) days after all costs and fees have been settled and the Service Provider shall be entitled to set off any outstanding costs and fees against any amounts due to the Client.
4.5 The termination of this agreement shall not prejudice the validity or enforceability of indemnifications in respect of damages and/or losses and/or claims of any nature whatsoever and howsoever arising.
5. Liability of the Service Provider
5.1 The Service Provider, its sub-contractors, officers, directors, employees, agents and independent contractors (collectively referred to in this clause 5.1 as the "Indemnified Parties ") shall not be liable to the Client or any Third Party for any loss, liability, damage, expense (whether direct or indirect, consequential, special, general or otherwise and whether for loss of profits, revenue, data or goodwill) which may be suffered by the Client or such Third Party as a result of or which may be attributable, directly or indirectly to:
1 errors in the data and/or data files provided by the Client;
2 malfunctioning of the Client's computer hardware or IT systems;
3 defects in the Client's software components that are used for the functioning of the Client's computer system;
4 malfunctioning of the Client's telephone system;
5 force majeure events, being acts of God, civil unrest and/or labour unrest;
6 failure of fixed line and cell phone infrastructure beyond the reasonable control of the Service Provider;
7 an "off-line? scenario or any other defect in the Service Provider's banking institutions computer system that is beyond the reasonable control of the Service Provider;
8 the incorrect and/or late execution of any instructions of the Client as a result of any of the circumstances mentioned in this clause 5.1, as well as the Client not adhering to the time constraints mentioned in the Electronic Pricing Schedule (Annexure A) for whatsoever reason;
9 instructions from the Client or Third Party to credit any account(s) of the Client with an amount to which the Client is not legally entitled from the account of a Third Party;
10 any damage or loss caused by any person who gained unauthorized access to the Client's computer system, by using computer hardware and/or computer software in the possession or under the control of the Client; and/or
11 fraud or theft by persons not under the direct supervision and control of the Indemnified Parties;
12 transaction recalls initiated by the Client after the transactions have been sent to the Service provider's banking institution for payment and which are not capable of being recalled prior to payment, resulting in payment to the beneficiary and the Client indemnifies and holds the Indemnified Parties harmless against all and any claims by any Third Party, including its employees arising out of the circumstances mentioned in this clause 5.1. The Service Provider will endeavor to notify the Client as soon as reasonably possible after any of the events in 5.1.1 to 5.1.12 comes to the attention of the authorised person within the Service Provider.
5.2 The Client acknowledges that no additional representations, other than those contained in this agreement have been made by the Service Provider and that no guarantees have been received, other than the security of the data file once uploaded onto the Service Provider's software.
5.3 Notwithstanding anything contained in this agreement, in the event that the Indemnified Parties or any one of them is found liable for any proven liability in terms of this agreement, the liability of the Indemnified Parties shall be limited, in aggregate to R50 000.00 per incident and R250 000.00 in the aggregate for multiple claims.
6. Additional Obligations of the Client
6.1 The Client undertakes to submit all data and funds to the Service Provider timeously as per the processing times set out in the Electronic Pricing Schedule (Annexure A). Should the data file and funds not be delivered in full according to the agreed date and time, the Service Provider will be entitled to deviate from the Schedule. Whilst the Service Provider undertakes to make every reasonable effort to adhere to the Schedule, it is and remains the responsibility of the Client to ensure that all funds and data files for processing shall be delivered to the Service Provider timeously and in full.
6.2 The Client undertakes to ensure that all computer software and computer hardware under its control are and will be free of any computer viruses. Should the Client send virus-infected diskettes and/or data files via line linkage to the Service Provider, the Client shall indemnify the Service Provider against any damages and/or losses sustained by any Party whatsoever.
6.3 Rejected transactions will be treated as a normal EFT transaction for which the Client will be liable for the transaction cost. Funds will be returned to the homing account of the Client as per the Online User Details contained in new client/company registration form. Any change/s to details as contained in new client/company registration form must be communicated by the Client to the Service Provider within fourteen (14) days of such change.
7. Proprietary and Other Rights
7.1 The proprietary rights and copyright in respect of all programmes, documents and material that the Service Provider makes available to the Client in order to fulfill the obligations contained in this agreement shall at all times and under all circumstances, remain vested in the Service Provider.
7.2 The Client undertakes not to make known or available to any person or organization, other than to the Client's duly authorized representatives and / or employees having a need to know, any programmes, documents, material or any part/s thereof without the written approval of the Service Provider.
7.3 The Client shall indemnify the Service Provider against any action or law suit that may be brought against the Service Provider in consequence of breach of copyright and/or patent rights due to programmes and/or documents being divulged by the Client to Third Parties. In the event of any such action being taken, the Client undertakes to compensate the Service Provider on demand for all the costs, including legal fees on the scale as between attorney and own client, that the Service Provider may incur and/or damages and/or losses that the Service Provider may sustain or be ordered to pay.
7.4 It is an express condition of this agreement that the Client shall in no way make or allow to be made any copy of any computer programme, document or material which the Service Provider makes available to the Client, without the prior written consent of the Service Provider. The Service Provider reserves its right to request the Client to provide a sworn affidavit to this effect.
7.5 Neither of the Parties to this agreement shall have the right to cede any of their respective rights in terms of this agreement to a Third Party without the written approval of the other Party.
8.1 For the purpose of this agreement, the Parties elect the following addresses, which shall not be a postal address, as their domicilia citandi et executandi at which all legal notices shall be delivered:
As per new client/company registration form
10 Niblick Way
Contact Person: SS Snyman
8.2 The Parties shall be entitled to change the above addresses, provided that such changed address shall only be effective on receipt by the other party of a written notice of such change of address.
8.3 All written notices given in terms of this agreement by one Party to the other shall be deemed to have been duly given, provided they were sent to the domicilium of such Party, and further:
1 If by letter, 7 (seven) days after having been posted;
2 If delivered by hand, on date of receipt;
3 If by telefax or e-mail, at the time of transmission.
Any notice actually received by either Party hereto shall be deemed to have been given correctly in terms of this clause 8.
9. Breach of contract
9.1 Save as otherwise provided in this Agreement, should a Party ("the Defaulting Party") commit a material breach of any material provision of this Agreement and should such breach -
1 be incapable of remedy; or
2 be capable of being remedied and should such Party fail to remedy such breach within 14 (fourteen) days after receiving written notice from another Party the ("Aggrieved Party") requiring the Defaulting Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law, to cancel this Agreement or to claim immediate specific performance of all of the Defaulting Party's obligations whether or not due for performance, in either event without prejudice to the Aggrieved Party's right to claim damages.
10. Alternate Dispute Resolution
Notwithstanding anything contained herein, if any dispute of whatsoever nature arises pursuant to this agreement or its termination, and is incapable of being remedied amicably, either Party shall require, by written notice to the other, that the dispute be referred for determination to an expert as agreed by the Parties, failing which, as decided by the Arbitration Foundation of South Africa ("AFSA"). The Parties shall use their best endeavors to procure that the decision of the expert shall be given within twenty-one (21) days or so soon thereafter as possible. The expert's decision shall be final and binding on the Parties, shall be carried into effect and may be made an order of any competent court at the instance of any of the Parties. The cost of such appointee/s shall be part of the costs of the proceedings.
11.1 This document constitutes the sole record of the agreement between the Parties in relation to its subject matter.
11.2 No Party shall be bound by any representation, warranty, promise or the like not recorded in this document.
11.3 No addition to, variation, novation or agreed cancellation of this agreement shall be of any force or effect unless in writing and signed by or on behalf of the Parties.
11.4 No suspension of a right to enforce any term of this agreement and no agreement to suspend any compliance with a Party's obligations shall be of any force or effect unless in writing and duly signed by or on behalf of the Parties.
11.5 No indulgence which a Party may grant to another Party shall constitute a waiver of any of the rights of the grantor unless in writing and signed by both Parties.
11.6 All costs, charges and expenses of any nature whatever which may be incurred by a Party in enforcing its rights in terms of this agreement, including without limiting the generality of the a foregoing, legal costs on the scale of attorney and own client and collection commission, irrespective of whether any action has been instituted, shall be recoverable on demand from the Party against which such rights are successfully enforced and shall be payable on demand.
11.7 The provisions of this agreement shall be binding upon the successors-in-title- and the permitted assigns of the Parties.
11.8 All provisions in this agreement are, notwithstanding the manner in which they have been put together or linked grammatically, severable from each other. Any provision of this agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatsoever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions of this agreement shall be of full force and effect. The Parties declare that it is their intention that this agreement would be executed without such unenforceable provisions if they were aware of such unenforceability at the time of its execution.
11.9 No remedy conferred by this agreement is intended, unless specifically stated, to be exclusive of any other remedy which is otherwise available at law, by statute or otherwise. Each remedy shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law, by statute or otherwise. The election of any one or more remedy by a Party shall not constitute a waiver by such Party of the right to pursue any other remedy available at law.
11.10 Save as expressly set out elsewhere in this agreement, no Party shall be entitled to cede or assign its rights or obligations under this agreement to any Third Party without the prior written consent of the other Parties.
11.11 No provision of this agreement constitutes a stipulation for the benefit of any person who is not a Party to this agreement unless the provision in question expressly provides otherwise.
This agreement may be executed in any number of counterparts and by the different Parties on separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts together shall constitute one and the same instrument.
13. Data Collection
13.1. The Client shall submit relevant data to PayAccSys in good time according to the specified processing dates, times and methods for the specific services
13.2. The Client undertakes to ensure that the data furnished to PayAccSys is complete, accurate,
Not misleading and updated where necessary and hereby indemnifies PayAccSys from any obligation to verify the completeness, accuracy or correctness of any such data. The Client hereby confirms that:
13.2.1. The personal information of the data subjects provided by the Client to PayAccSys is justified by virtue of section 11(1)(b) of the POPI Act in that it is necessary to carry out actions for the conclusion or performance of a contract to which the relevant data subject is a party;
13.2.2. It has collected the personal information directly from the data subject in terms of Section
12(1) of the POPI Act and that direct collection from the Data Subject by PayAccSys is therefore unnecessary as contemplated in terms of sections 12(2)(c) and (f) of the POPI Act;
13.2.3. PayAccSys does not have to inform the Data Subject when collecting personal information seeing as it is not reasonably practicable in the circumstances of the particular case as envisaged in section 18(4)(e) of the POPI Act.
13.2.4. The Client acknowledges that PayAccSys relies solely on the data provided by the Client for the third party when receiving any cessions from the Client and therefore PayAccSys is not obliged to determine whether the name of the third party and/or the account number, branch clearing code or card number of such a third party refer to the same person.
Annexure A - Electronic Payment Pricing Schedule
Web-based Interface Need Internet Access Own Cost
TRAINING & SUPPORT
Registration and Telephonic Support R500,00 (once off sign on fee)
PAYMENTS ONE DAYE SERVICE SSVS RTC
0 - 100 transactions R 4.75 R 5.25 R 30.00
101 - 1000 transactions R 4.50 R 5.00 R 30.00
1001 - 3000 transactions R 4.00 R 4.50 R 30.00
3001 - 6000 transactions R 3.50 R 4.00 R 30.00
6001 - 10 000 transactions R 3.00 R 3.50 R 30.00
10 000+ transactions R 2.75 R 3.25 R 30.00
Transaction recalled after sent to bank (the success of this process is not guaranteed but will still be charged for) R 450.00 Excl. VAT per transaction.
STD BANK, NEDBANK, ABSA, FNB Clients
Bank rejection refunds or any refunds to your bank account will be charged at a fee of R3.40 (Excl VAT) per EFT refund.
PROCESSING TIMES DATE FILES AND DEPOSITS TO BE RECEIVED BY PAYACCSYS NO LATER THAN:
OD Payments - One Day Payments
(Funds will reflect and be available in all beneficiaries account 01h00-03h00 on date selected) Cut-off times for files and cleared funds before 15h00 daily.
SSVS Payments - Same Day Soonest Value
(Funds will reflect and be available in all beneficiaries account 19h00-23h00 on date selected) Cut-off times for files and cleared funds before 15h00 daily.
RTC Payments - Real Time Clearing
(Funds will reflect and be available in all beneficiaries account within 60 minutes from the moment the funds have been matched to the relevant batch on the selected action date) Cut-off times for files and cleared funds before 15h00 daily.
CPM Payments - Cell Phone Payments
(Voucher number and pin will be sent to all beneficiaries cell numbers within 60 minutes from the moment the funds have been matched to the relevant batch on the selected action date) Cut-off times for files and cleared funds before 15h00 daily.
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