WABPAY TERMS & CONDITIONS (“Agreement”).
(1) Any merchants or individuals signing up on WabPay.com through our sign up link https://www.wabpay.com/account/signup the “Merchant”; and
(2) BLACK TIE HOLDINGS LTD, a company registered in England and Wales with registration no. 10387462 . and whose registered office is at Office 32, 19-21 Crawford Street, London W1H1 PJ, United Kingdom. (“WabPay”)
(A) WabPay will provide the Merchant with Services enabling the Merchant’s Customers to make payments through one or more Payment Schemes through any gateways that are in the possession of Black Tie Holdings Ltd in accordance with this Agreement.
(B) The Merchant understand and agrees that Black Tie Holdings Ltd is making the payment collections on behalf of the Merchant from its customers and then remunerating back to the merchants the proceeds less charges and fees in accordance with this Agreement.
IT IS HEREBY AGREED:
1. APPLICABLE SERVICES
1.1 The applicable Services are as set out in the following table.
Schedule # Annex # YES/NO Comments
Services 1 Payment Link 1 YES
Services 2 QR code 2 YES
Services 3 Shopping Cart 3 YES
Services 4 POS System 4 YES
Services 5 Virtual Machine 5 YES
Services 6 API Integration 6 Yes
Services 7 Prepaid Debit MasterCard 7 Yes
Services 8 BttPay App Payment 8 Yes
1.2 WabPay shall provide the Services in relation to Customers making purchases at the following websites of the Merchant:
As per Sign Up and Know Your Customer (KYC) done.
1.3 The Merchant shall, where receiving the Services, trade under one name:
As per Sign Up and Know Your Customer (KYC) done.
2.1 Except as otherwise set forth in this Agreement, the terms below shall be defined as follows:
2.1.1 “Merchant Centre” means the administration and reporting tools forming part of the Services and made available to the Merchant via online access to the Merchant Account;
2.1.2 “API” means application programming interface;
2.1.3 “Application Form” means the application form provided by WabPay and as completed by the Merchant under which the Merchant applies for the provision of the Services;
2.1.4 “Applicable Laws” means all statutes, statutory instruments, laws, regulations, orders, rules, directions, judgments, directives and determinations made by a legislature, regulatory or other public authority with binding effect in force from time to time (having regard to related guidance and codes of practice issued by a regulatory authority or other public body), applicable to a party and relevant to this Agreement, including those regarding:
(a) distance selling agreements;
(b) customer information;
(c) sale of goods and/or services by the Merchant in connection with Payment Transactions; and
(d) the execution and performance by the Merchant of its obligations under this Agreement;
2.1.5 “Business Day” means any day (other than a Saturday, Sunday or public holiday in England and Wales) on which banks are open for business in London, England or Wales;
2.1.6 “Commencement Date” means the date of this Agreement;
2.1.7 “Confidential Information” means all confidential information, in whatever form (including written or oral), disclosed by one party to the other, including but not limited to, financial, marketing and personnel information, techniques, processes, trade secrets, know-how, designs, methodologies, schematics, ideas, analyses, statistics, performance information, user documentation, internal documentation, details of planned or current products or services, customer or supplier details, computer records or software, specifications, models, prototypes, compositions, samples or other information that is or may be either applicable to or related in any way to the business or affairs of such party or which is marked confidential or secret. Confidential Information includes the Merchant Operating Instructions, Proprietary Information and contents of this Agreement;
2.1.8 “Customer” means any Member or other person who purchases, or attempts to purchase, goods or services from the Merchant;
2.1.9 “Fines” means any and all fines, levies, costs, expenses, charges, assessments or other liabilities of any nature which the relevant Payment Scheme Facilitator requires the Merchant or WabPay to pay or which are otherwise directly or indirectly recovered from WabPay by the Payment Scheme Facilitator at any time and which arise as a result of the Merchant’s breach of this Agreement;
2.1.10 “Merchant Account” means an online stored value account registered with WabPay in the name of the Merchant
2.1.11 “Merchant Information” means information provided in the Application Form and any other information, documents, websites and data provided by the Merchant at the request of WabPay or (via WabPay) a Payment Scheme Facilitator to satisfy Know-Your-Client (“KYC”) requirements, to allow assessment of the Merchant’s application and to monitor the on-going suitability of the Merchant to receive the Services;
2.1.12 “Payout” means any payment made from WabPay to Merchant
2.1.13 “Payment Transaction” means any payment from a Customer to a Merchant (or vice versa where the context requires) enabled by the Services;
2.1.14 “Chargeback” means a demand by a credit card provider for a merchant to make good the loss on a fraudulent or disputed transaction.
2.1.15 “Refund” means merchant ask to give back the amount charge to the customer
2.1.16 “Dispute” means when customer is not satisfied with the services or product catered by the merchant and they request for a refund
3. THIS AGREEMENT
3.1 The following documents are incorporated into and form part of this Agreement:
3.1.1 any terms set out in the Application Form;
3.1.2 the terms and conditions of this Agreement; and
3.1.3 the Schedules (including the Annexes) attached hereto.
3.2 In the event of any inconsistency between the terms and conditions of this Agreement and the provisions of any of the Schedules or any terms in the Application Form, the provisions of the relevant Schedule(s) shall take precedence over the terms of the Application Form and the terms and conditions of this Agreement.
4.1 This Agreement shall commence on the Commencement Date and shall continue in force until terminated by either party giving to the other not less than 30 days’ notice in writing to terminate this Agreement.
4.2 Notwithstanding the Merchant’s submission of a completed Application Form to WabPay, WabPay shall not be obliged to provide the Services in whole or in part unless and until WabPay notifies the Merchant in writing that WabPay has unconditionally accepted the Merchant’s application for the provision of the Services by WabPay. Where such notice is given, WabPay’s obligation to provide the Services shall commence on the date of such notice or, if different, the date specified in such notice.
4.3 In the event that WabPay notifies the Merchant in writing that WabPay has not accepted the Merchant’s application for the provision of the Services, this Agreement shall terminate with immediate effect on the date of such notice.
5.1 WabPay shall provide the Services with reasonable care and skill and in accordance with this Agreement.
6. MERCHANT OBLIGATIONS
6.1 Without prejudice to its other obligations under this Agreement, the Merchant shall perform its obligations under this Agreement in a competent and business-like manner, with due care, skill and diligence and at its own expense.
6.2 The Merchant acknowledges and agrees that acceptance of Remittances originating through a Payment Scheme is deemed acceptance of the Rules relating to that Payment Scheme and the Merchant shall comply with any such Rules in addition to this Agreement. In the event of a conflict between the Rules and provisions of this Agreement in relation to any Payment Transaction originating through that Payment Scheme or the provision of another Service related to that Payment Scheme, the Rules shall take precedence.
6.3 The Merchant shall immediately notify WabPay in writing in the event of any material change to the Merchant Information, with full details of such change and any supporting documentation reasonably required by WabPay.
6.4 The Merchant shall provide any Auditing Party, at reasonable times, and on reasonable notice of not less than ten (10) calendar days’ notice such cooperation and access to the Merchant’s Information, its Website(s), its premises, employees and relevant records and books as the Auditing Party may require for the purposes of:
6.4.1 auditing the Merchant’s compliance with the terms of this Agreement, Applicable Laws or the Rules;
6.4.2 an Auditing Party discharging its functions and obligations under Applicable Laws or the Rules; or
6.4.3 WabPay’s on-going risk management processes and procedures.
6.5 The notice period referred to in clause 6.4 shall not apply:
6.5.1 in the case of urgency or where any Auditing Party suspects fraud on the part of the Merchant, in which case no notice shall be required;
6.5.2 where a regulator or other body with authority over WabPay or a Payment Scheme Facilitator requires access or assistance on less or no notice; or
6.5.3 where a Payment Scheme Facilitator has rights of access on shorter on no notice under the Rules or any arrangements to WabPay.
6.6 The Merchant may only add a new Website with the prior written consent of WabPay.
6.7 WabPay may from time to time vary the specifications for Merchant Information or its criteria for merchants to receive Services. Upon request from WabPay, the Merchant shall provide additional information about the Merchant’s business including security procedures to the extent that such information is required by WabPay or a Payment Scheme Facilitator.
6.8 The Merchant shall only use the Services to process Payment Transactions in relation to goods or services that:
6.8.1 the Merchant has supplied, or has contractually agreed to supply, to a Customer;
6.8.2 are of the nature specified in the Merchant Information, and are rendered as part of the Merchant’s normal business operations as stated in the Merchant Information;
6.8.3 are sold through a Website(s) (or other) points of sale approved in advance by WabPay;
6.8.4 are not sold on behalf of Third Parties; and
6.8.5 are not in the list in clause 6.9 below. Please click on Prohibited Businesses for the complete list.
6.9 The Merchant shall ensure that it does not use the Services for Payment Transactions relating to:
6.9.1 any goods or services that are illegal or the promotion, offer, or marketing of which is illegal or that are offered in connection with illegal, obscene or pornographic content, depict children or minors in sexual postures, or depict means of propaganda or signs of unconstitutional organizations glorifying war or violating human dignity;
6.9.2 any goods or services, the promotion, offer, or marketing of which would violate copyrights, industrial property rights or other Third Party rights, including by way of example the right to one’s own image, name and personal rights;
6.9.3 archaeological findings;
6.9.4 drugs, narcotics, or hallucinogens;
6.9.5 ponzi, pyramid or any other “get rich quick” schemes;
6.9.6 goods that are subject to any trade embargo;
6.9.7 media that is harmful to minors and violates Applicable Laws and, in particular, the provisions in respect of the protection of minors;
6.9.8 body parts or human remains;
6.9.9 protected animals or protected plants;
6.9.10 weapons or explosive materials; or
6.9.11 any other goods or services which WabPay reasonably considers would:
(a) have an adverse effect on WabPay’s image or reputation as a result of providing Services in respect of such goods and services; or
(b) be prohibited by the Rules and/or by a Payment Scheme Facilitator.
10. The Merchant shall not:
6.10.1 supply any other person with equipment to enable them to effect Payment Transactions nor present to WabPay any Payment Transaction Data which was not originated as a result of a Payment Transaction between a Customer and the Merchant; or
6.10.2 accept Payment Transactions for goods or services whilst trading under any company or business name other than the name specified on page 1 of this Agreement without the express prior written consent of WabPay, to be requested as specified in the Merchant Operating Instructions.
6.11 The Merchant shall, where so required by the Rules, procure that Guarantees are promptly given by such person or persons as WabPay may require in respect of all or any of the Merchant’s obligations and liabilities under this Agreement.
6.12 The Merchant will make and maintain written records, for each Payment Transaction submitted to WabPay, of the Payment Transaction Data collected by or through the Merchant and shall provide such records to WabPay on request. The Merchant shall (except to the extent prohibited by Applicable Laws) continue to do so for a period of one (1) year after termination of this Agreement, or such longer period as may be required by Applicable Laws.
6.13 The Merchant agrees to co-operate with WabPay in respect of, and authorizes WabPay to investigate, any suspected illegal or fraudulent activity, including without limitation, returning to WabPay any amount that the Merchant holds to the credit of a Customer that WabPay suspects is the subject of any illegal or fraudulent activity and providing WabPay with information on any Customer’s transactions with the Merchant.
6.14 If the Merchant uses the Services as a payroll payment method, the Merchant shall be solely responsible for deducting and remitting all applicable source deductions, withholdings and taxes thereon, as well as dealing with all enquiries from its employees. The Merchant is responsible for compliance with all Applicable Laws governing payment of wages or otherwise concerning terms of employment, including the permissibility under Applicable Laws of the use of the Services for this purpose.
6.15 The Merchant shall ensure that the correct WabPay logos provided by WabPay are clearly and visibly displayed at all times on each Payment Page and each cashier page of the Website, and furthermore WabPay shall appear as the first payment option (after debit and credit cards) on such pages. For the purpose of this paragraph, “Payment Page” shall mean any page of the Website where (i) information in relation to payment options is displayed or (ii) where payment choices may be made.
6.16 The Merchant shall at all times comply with its obligations in relation to the provision of goods and/or services by the Merchant to Customers. By submitting Payment Transaction Data to WabPay, the Merchant warrants to WabPay that the related goods, services or other facilities will be supplied in accordance with any agreement between the Merchant and the relevant Customer. Moreover, the Merchant shall issue an order confirmation and/or invoice to Customers for all Payment Transactions.
6.17 With respect to Customers, the Merchant shall be solely responsible for compliance with identity and age verification, where applicable, and geolocation and other obligations imposed on the Merchant due to the nature of its business under Applicable Law.
6.18 The Merchant must not prevent or impede Customers from using two factor authentication procedures (or similar authentication procedures) when making payments to the Merchant.
6.19 The Merchant must not retain the Secure ID numeric passcode of any Customer.
6.20 The Merchant will promptly notify WabPay if:
6.20.1 any information, including Merchant Information, it has provided to WabPay has changed materially or is no longer accurate or is materially incomplete;
6.20.2 the Merchant ceases to be the owner or operator of any of the Website(s); or
6.20.3 there are other URLs of the Merchant/proposed Website(s) in addition to those specified in the Agreement, which are intended to be used for processing the Merchant’s Payment Transactions. Such URLs/Website(s) may only be used for processing payments once they have been reviewed and approved by WabPay.
6.21 The Merchant will give WabPay notice in writing a reasonable time in advance of any changes proposed by it in respect of the Merchant Bank Account (including, without limitation, the location of the branch at which such account is held).
6.22 The Merchant agrees to adequately display the promotional sign(s) and any other materials provided by the Payment Scheme Facilitator or WabPay for use on its Website payment pages and to only use names or designs approved in advance by WabPay to indicate that Payment Schemes are accepted for payment and processed by WabPay in a secure internet environment. The Merchant shall not use any other material referring to WabPay or any other name associated with the Services or Payment Schemes without WabPay’s prior written approval.
7.1 The Service Charges payable by the Merchant to WabPay are set out in Schedule 1 (Service Charges) and the applicable Annexes in Schedule 2 (Services).
7.2 Unless stated otherwise, all Service Charges, fees, charges and other payments to be made by the Merchant under this Agreement are exclusive of VAT and any other relevant taxes, which shall in addition be paid by the Merchant.
7.3 WabPay reserves the right to vary the Service Charges and/or introduce new charges in addition to the Service Charges at any time upon giving the Merchant not less than thirty (30) days’ prior written notice before such variation comes into effect.
7.4 Any such variation or new Service Charge is deemed to have been accepted by the Merchant and shall come into effect automatically at the date stated in WabPay’s notice unless the Merchant gives WabPay written notice to terminate this Agreement at any time after receiving the notice from WabPay and before the variation would otherwise come into effect under this clause 7.4, such notice of termination to be effective immediately before the time the notice of variation would have had effect.
7.5 The Merchant authorises WabPay to debit from the Merchant Account all Service Charges as well as any VAT and any other sums due to WabPay under this Agreement.
8.1 WabPay may at any time without notice to the Merchant, set-off any liability of the Merchant to WabPay against any liability of WabPay to the Merchant (including, but not limited to, any Remittance), whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement. If the liabilities to be set-off are expressed in different currencies, WabPay may convert either liability at a market rate of exchange it can reasonably obtain for the purpose of the set-off. WabPay may also, at any time, without notice to the Merchant, set-off any liability of the Merchant (whether such liability is present or future, liquidated or unliquidated, and whether or not such liability arises under this Agreement) to WabPay against any amount then attributed to the Merchant and held in a Merchant Account.
8.2 All amounts due under this Agreement shall be paid by the Merchant to WabPay in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.3 Any exercise by WabPay of its rights under clause 8.1 shall be without prejudice to, and shall not limit or affect, any other rights or remedies available to WabPay under this Agreement or otherwise.
9. THE BANK ACCOUNT
9.1 The Merchant acknowledges and agrees that the a Bank Account is not an actual deposit account but is instead a bookkeeping entry reflective of funds that are attributed to the Merchant and segregated from WabPay’s own funds and pooled with funds representing balances attributed to other WabPay merchants in an account held by or on behalf of WabPay. Any interest earned on the pooled account will be the property of WabPay. The Merchant acknowledges and agrees however, that the funds in a Bank Account do not constitute deposits as defined in the Isle of Man Regulated Activities Order 2011 and are not covered by any compensation scheme. The Merchant further acknowledges and agrees that WabPay is, without further notice to the Merchant, entitled to deduct amounts attributed to the Merchant and held in a Merchant Account for the purposes of clause 8.1 above.
9.2 The Merchant acknowledges and agrees that in the absence of any manifest error all entries to a Merchant Account page will be deemed conclusive for the purposes of calculating a Remittance unless an entry with which the Merchant has any concern is disputed in good faith by the Merchant in writing within thirty (30) calendar days of receipt of the Remittance. In the event that the Merchant disputes an entry within such thirty (30) calendar day period and as a result any errors on the part of WabPay in calculating the Remittance are discovered, WabPay will promptly notify the Merchant of such errors. If such error results in WabPay owing any amount to the Merchant, WabPay will promptly pay such amount to the Merchant. If such error results in the Merchant owing any amount to WabPay, the Merchant will promptly pay such amount to WabPay.
9.3 Subject to clause 6.13 hereof, WabPay shall not seek to recover from the Merchant any amounts credited to a Merchant Account that represent Reversed Transactions. The foregoing shall not apply if the Merchant is in breach of any term of this Agreement.
10.1 WabPay shall retain in the Merchant Account a balance equal to all amounts transferred to the credit of the Merchant Account during the immediately preceding 7 day period (the “Reserve”).
10.2 WabPay reserves the right to require the Merchant to increase the Reserve from time to time during the term of this Agreement, upon notice to the Merchant, to address any anticipated risk of loss or liability to WabPay.
10.3 The Reserve shall be held by WabPay for the term of this Agreement.
10.4 Following termination of this Agreement, WabPay shall transfer to the Merchant Bank Account any Reserve and the amount of any Remittances not yet due as at the date of termination, within eight (8) months of termination.
11.1 Subject to clauses 11.2 to 11.6 below (inclusive) and the automatic Remittance setting enabled in the Merchant Centre, WabPay shall on the Remittance Date send to the Merchant Bank Account the relevant Remittance less the Reserve
11.2 WabPay shall be entitled to deduct amounts equal to the following from any Remittance or Reserve:
11.2.1 subject to clause 9.3, any Chargeback/Reversed Transactions and Fines;
11.2.2 any Service Charge or charges or amounts due to WabPay under this Agreement
11.2.3 any amount that represents any losses or expenses incurred by WabPay as a result of the Merchant being in breach of this Agreement;
11.2.4 any potential liability of the Merchant under this Agreement;
11.2.5 any liability of the Merchant to WabPay as contemplated by clause 8; and
11.2.6 the amount of any claim by a Member against the Merchant which WabPay, acting reasonably, determines is proportionate and substantiated.
11.3 If WabPay becomes aware of any claims, any action in connection with this Agreement or any Fines (in each case, whether actual or potential) for which the Merchant may be liable, or concludes that any such claims, action or Fines may arise, WabPay may (notwithstanding any other provisions of this Agreement) delay making any Remittance which would (but for this clause 11.3) be due to the Merchant until either:
11.3.1 the relevant liability is incurred (when WabPay shall pay to the Merchant the balance of the Remittance, if any, after deducting the amount of such liability); or
11.3.2 WabPay is satisfied that no such liability will be incurred.
11.4 Where WabPay has any reasonable suspicion that a Payment Transaction may be fraudulent or involves other criminal activity, WabPay has the right to suspend the processing of that Payment Transaction or withhold payment to the Merchant of the related Remittance until the satisfactory completion of WabPay’s or any Third Party’s investigation.
11.5 The Merchant shall not be entitled to any interest or any other compensation whatsoever in respect of any Remittance held by WabPay for any period for which payment may be deferred under this clause 11 or otherwise withheld under clause 10.
11.6 The Merchant shall not be entitled to any payout for a period of 15 working days in any instance a chargeback arise.
12. SECURITY OVER FUNDS
12.1 WabPay may at any time require the Merchant to grant WabPay, or procure that a person satisfactory to WabPay provides, WabPay with a Guarantee, security and/or indemnity in respect of the Merchant’s obligations (including contingent or potential obligations) from time to time under this Agreement.
12.2 WabPay may also at any time require the Merchant to grant, or procure the granting to WabPay of, security (other than guarantees or indemnities) in such form as WabPay may require, including a requirement to put funds into the Merchant Bank Account and/or any other account which WabPay may specify (including a trust or deposit account which WabPay may establish for such purpose) and over such assets (and free of other security interests and other rights) to secure to WabPay’s satisfaction the performance of the Merchant’s obligations (including contingent or potential obligations) from time to time under this Agreement.
12.3 Without prejudice to any other provision of this Agreement, any failure by the Merchant to comply with any requirement under this clause 12 shall constitute a material breach of this Agreement for the purposes of clause 20.
13. REPRESENTATIONS AND WARRANTIES BY MERCHANT
13.1 The Merchant represents and warrants that as at the time of entering into this Agreement and on an ongoing basis:
13.1.1 it will at all times comply with all Applicable Laws and will not receive or transfer funds, nor otherwise use the Merchant Account or the Services in connection with any illegal, fraudulent or deceptive activity, including without limitation, for money laundering or terrorist financing;
13.1.2 all of the Merchant Information provided to WabPay by the Merchant is true, accurate and complete;
13.1.3 it has and will maintain all required rights, powers, authority, permits, capabilities, consents, licences, permissions and authorisations to enter into this Agreement, and to perform its obligations hereunder and toward its Customers including minors; and
13.1.4 it does not intend to use and shall not use the Services to enable purchases from (or payments to) Third Parties.
14.1 The Merchant shall indemnify and keep WabPay (and the directors, officers, employees, agents and subcontractors of any and/or all of them) (together the “Indemnified Parties”) fully indemnified, on demand and at all times, from and against any and all claims, damages, causes of action, proceedings, demands, charges, fines, losses, liabilities, obligations, expenses, penalties and costs (including legal costs calculated on a full indemnity basis) for which it is permitted under Applicable Laws for the Indemnified Parties to be indemnified and which are attributable to any act, omission, default, delay, negligence or breach of statutory duty by or on the part of the Merchant, and which the Indemnified Parties suffer or incur arising out of or in connection with:
14.1.1 any breach by the Merchant of any material representation or warranty under this Agreement;
14.1.2 any breach of, or non-compliance by the Merchant with Applicable Laws;
14.1.3 any breach of, or non-performance or negligent performance of, this Agreement by the Merchant; or
14.1.4 any claim made against any of the Indemnified Parties by a Third Party arising out of or in connection with WabPay acting on the direct instructions of the Merchant.
14.3 For the avoidance of doubt, if a claim is brought against the Indemnified Parties by a Customer, a Payment Scheme Facilitator or any other Third Party, WabPay shall be entitled to settle or otherwise deal with it at its sole discretion.
15.1 Without prejudice to clause 5.1 and WabPay’s other obligations under this Agreement, WabPay does not warrant that the Services will meet any particular requirements or that their operation will be entirely error-free or that all defects are capable of correction or improvement. Except as expressly set out in this Agreement, all conditions, warranties and representations, expressed or implied by (i) statute; (ii) common law; or (iii) otherwise, in relation to the Services, including without limitation, any warranty of fitness for a particular purpose, merchantability and non- infringement, are hereby expressly disclaimed except to the extent that they cannot be disclaimed under Applicable Law. In the absence of fraud, no oral or written information or advice given by WabPay or its agents or licensees shall create a warranty or give rise to any other liability other than as expressly set out in this Agreement.
15.2 WabPay, its affiliates, subsidiaries, agents and subcontractors shall not be liable for any claim, loss or damage including any unauthorised withdrawals from the Merchant Account to the extent caused by any error on the Merchant’s part or by the Merchant’s failure to activate any of the Merchant Account security features, including but not limited to Secure IP, as detailed in the Merchant Account User Guide.
15.3 WabPay, its affiliates, subsidiaries, agents and subcontractors shall not be liable to the Merchant or any Third Party for the following loss or damage, whether arising in tort (including negligence), contract, breach of statutory duty or otherwise, and even if foreseeable by WabPay, any indirect, special, consequential or incidental loss of profits, business, contracts, computer equipment, goodwill, production, or anticipated savings howsoever caused, arising out of, or in connection with, any supply, failure to supply or delay in supplying any of the Services or otherwise in connection with this Agreement (including fundamental breach or breach of a fundamental term) or any other theory of law.
15.4 Neither party shall be liable to the other in respect of any breach of this Agreement caused by any revocation or alteration of any licence, permission, consent or authorisation governing the operation of the Services or Payment Scheme Facilitators, or caused by a failure of internet or telephone connections.
15.5 All remedies conferred upon or reserved in favour of a party are cumulative and are in addition to any other remedy given hereunder or existing at law or in equity.
15.6 If the Merchant is a partnership, each partner shall be jointly and severally liable under this Agreement.
16. MERCHANT DISPUTES
16.1 The Merchant acknowledges and agrees that WabPay does not act as the buyer or seller of goods or services bought or sold by the Merchant through the Services. The Merchant agrees that any dispute regarding any goods or services purchased or sold by the Merchant through use of the Services is between the Merchant and the Third Party that purchased or sold the goods or services (including a Customer), and agrees that WabPay shall not be a party to any such dispute.
16.2 Each party shall take all reasonable steps to assist the other party in handling a claim by a Customer.
16.3 The Merchant shall provide WabPay with such reasonable assistance as requested from time to time by WabPay for the prevention and detection of fraud and will inform WabPay promptly of any and all material change in the nature or size of its business.
17. INFORMATION SECURITY
17.1 The Merchant shall comply at all times with the identification and security policies and procedures provided by WabPay to the Merchant from time to time, and take all relevant steps required therein to minimize the risk of fraud and have due regard to all recommendations therein. WabPay may amend the policies and procedures by notice to the Merchant.
17.2 The Merchant shall create a Password and Account key to access the Merchant Account. It is the Merchant’s responsibility to keep and treat the Merchant Account log-in name, Password and Account key and other credentials and information specific to the Merchant Account confidential and in a safe and secure place. This includes ensuring the ongoing safety and security of the Merchant Account log-in details on any computer or other device used to access the internet.
18. DATA PROTECTION
18.1 To the extent that WabPay processes the personal data of Customers and any prospective customers of the Merchant or any personal data within the Payment Transaction Data, WabPay shall:
18.1.1 do so only in accordance with this Agreement and on the instructions of the Merchant (except to the extent that it is required to do otherwise by Applicable Laws);
18.1.2 have in place appropriate technical and organizational security measures to protect such data against unauthorized or unlawful processing and accidental loss, destruction or damage;
18.1.3 be permitted to transfer any such personal data outside the European Economic Area including to a country that is not deemed to provide an adequate level of protection for personal data by the Information Commissioner’s Office or another regulatory body;
18.1.4 assist the Merchant within a reasonable timescale as may be determined by WabPay with all subject information requests which may be received from the Customers and any prospective customers of the Merchant. Should WabPay receive any such requests directly, WabPay will inform the Merchant that it has received the request and forthwith forward the request to Merchant. WabPay will not respond in any way to such a request, except on the instructions of the Merchant;
18.1.5 promptly notify the Merchant of any event involving an actual compromise of the security, confidentiality or integrity of such personal data, including but not limited to any unauthorized access or use or any loss such personal data (“Personal Data Security Breach”). WabPay shall also provide the Merchant with a description of the Personal Data Security Breach, and to the extent that it has such information, the type of data that was the subject of the Personal Data Security Breach, the identity of each affected person or class of persons, and the cause of the breach, as soon as such information can be collected or otherwise becomes available.
19.1 During the term of this Agreement and for five (5) years thereafter, each party agrees to maintain the confidentiality of any Confidential Information of the other party to the same extent that it protects its own Confidential Information and to use such Confidential Information only as permitted under this Agreement. Each party agrees to take all reasonable precautions to prevent any unauthorized disclosure or use of the Confidential Information of the other and shall only disclose such Confidential Information to its employees, consultants, agents or contractors with a need to know and who are parties to agreements containing confidentiality undertakings substantially the same as the terms contained in this clause.
19.2 Each party shall put in place processes and physical and information technology security systems sufficient to protect any Confidential Information in its possession. The foregoing restrictions on use and disclosure shall not apply with respect to Confidential Information that: (i) becomes rightfully known to the receiving party without restriction from a source other than the disclosing party; (ii) is independently developed by the receiving party without use of the Confidential Information and without the participation of individuals who have had access to the Confidential Information, as evidenced by written records; or (iii) is required by Applicable Laws to be used or disclosed.
19.3 The Merchant shall not compile or use any lists of Customers or Members or any other information relating to WabPay’s business (which includes any information contained in this Agreement) except for the purposes of this Agreement.
19.4 The Merchant shall not make or send any public announcement, communication or circular concerning this Agreement unless it has first obtained WabPay’s written consent.
20. SUSPENSION AND TERMINATION
20.1 WabPay may suspend or terminate this Agreement in whole or in part at any time with immediate effect by giving notice to the Merchant if:
20.1.1 the Merchant breaches clause 6 or a representation or warranty, fails to pay an amount when due under this Agreement, or is in material breach of this Agreement;
20.1.2 the Merchant breaches the Rules;
20.1.3 the total amount of any Chargeback/Reversed Transactions at any time exceeds an amount that is 0.5% of all Payment Transactions during the same week;
20.1.4 an encumbrancer takes possession or a receiver, manager or administrative receiver is appointed over any of the property or assets of the Merchant;
20.1.5 the Merchant makes or proposes any voluntary arrangement with its creditors generally or becomes subject to an administration order;
20.1.6 the Merchant goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom agrees to be bound by or assume the obligations imposed on the Merchant under this Agreement);
20.1.7 the Merchant becomes insolvent or any step is taken for its liquidation, winding-up, receivership, administration, administrative receivership or dissolution (or anything analogous to the foregoing occurs in any jurisdiction);
20.1.8 anything analogous to any of the foregoing under the Applicable Laws of any jurisdiction occurs in that jurisdiction in relation to the Merchant;
20.1.9 the Merchant ceases, or threatens to cease, to carry on business;
20.1.10 the Merchant’s business or conduct is considered by WabPay to be disreputable or capable of damaging WabPay’s or a Payment Scheme Facilitator’s reputation by association;
20.1.11 any other change in the Merchant’s circumstances (including a deterioration in or change to the Merchant’s financial position) or in the nature of its business or in the goods and/or services supplied by the Merchant to Customers occurs which WabPay considers materially adverse to the continuance of the Services;
20.1.12 a change of Control, pursuant to an agreement or understanding (whether formal or informal), of the Merchant occurs;
20.1.13 WabPay is required or requested to make such suspension or termination by any Payment Scheme Facilitator;
20.1.14 any Guarantee or security granted to WabPay by the Merchant or a guarantor in connection with this Agreement ceases to be enforceable or is withdrawn;
20.1.15 WabPay becomes entitled to terminate any agreement with, or enforce any security from, the Merchant or any group company of the Merchant’s;
20.1.16 Services are suspended or cease to be provided in whole or in part by a Payment Scheme Facilitator;
20.1.17 a Force Majeure Event continues for more than 3 (three) successive calendar months;
20.1.18 the Merchant uses the Services in relation to payments for purchases from Third Parties;
20.1.19 the Merchant does not have or no longer has sufficient regulatory licences, consents or permits required for operating its business; or
20.1.20 based on the Merchant Information and any other information provided or obtained pursuant to clause 6, in WabPay’s reasonable opinion, the Merchant is not suitable to receive the Services.
20.2 Where circumstances entitle WabPay to terminate or suspend this Agreement in whole or in part, WabPay shall not be obliged to do so. Any failure by WabPay to exercise any right of termination or suspension under this Agreement shall not have the effect that WabPay in general or in the future has waived the exercise of such right or that it approves of the Merchant’s behaviour giving rise to such right or that it waives any claims against the Merchant.
21. FORCE MAJEURE
21.1 If a party (the “Affected Party”) is prevented or hindered in, or delayed from, performing any of its obligations under this Agreement (other than a payment obligation) by a Force Majeure Event:
21.1.1 the Affected Party’s obligations under this Agreement are suspended while the Force Majeure Event continues and to the extent that it is prevented, hindered or delayed;
21.1.2 as soon as reasonably possible after the start of the Force Majeure Event, the Affected Party shall notify the other party in writing of the Force Majeure Event, the date on which the Force Majeure Event started and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement;
22.1 The Merchant may not assign, transfer or sub-license any of its rights, duties or obligations under this Agreement, in whole or in part, to any person or entity without the prior written consent of WabPay.
22.2 WabPay may assign any or all of its rights, duties and obligations under this Agreement to an entity that WabPay directly or indirectly Controls, is controlled by or is under common Control with, or any Third Party acquiring all or substantially all of the assets relating to this Agreement.
23.1 This Agreement is severable in that if any provision is determined to be illegal, invalid or unenforceable by any court of competent jurisdiction, such provision shall be deemed to have been removed without affecting the remaining provisions of this Agreement, which shall remain in full force and effect.
24. ENTIRE AGREEMENT
24.1 This Agreement sets out the entire agreement and understanding between the parties and supersedes all prior agreements, understandings or arrangements (whether oral or written) in respect of the subject matter of this Agreement.
25. JURISDICTION/GOVERNING LAW
25.1 This Agreement and any dispute, claim or obligation (whether contractual or non- contractual) arising out of or in connection with it, its subject matter or formation shall be governed by, construed and interpreted in accordance with England and Wales.
25.2 The parties irrevocably agree that, for WabPay’s benefit only, the England and Wales courts shall have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) arising out of or in connection with this Agreement, its subject matter, formation or the legal relationships established by or in connection with it. Accordingly, any proceedings by or against WabPay in respect of such claim or matter must be brought in the England and Wales courts. Nothing in this clause shall limit the right of WabPay to take proceedings against the Merchant in any other court of competent jurisdiction, nor the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction. To the extent permitted by law, WabPay may take concurrent proceedings in any number of jurisdictions.
1. SERVICE CHARGES
1.1 The Service Charges payable by the Merchant in respect of Payment Transactions processed by WabPay for each different type of Service are set out in the applicable Annex to Schedule 1 (Services) and comprise:
1.1.1 Per Transaction fee : A fixed fee ranging from (2.8% – 6.5%) + SGD/USD/GBP/MYR 2 associated with any successful Payment Transaction processed by WabPay.
1.1.2 Per Holdback fee : A fixed fee ranging from (5% – 30%) associated with any successful Payment Transaction processed by WabPay.
1.1.3 * Currency Conversion fee : A fixed fee of 2.5% on top of market rate for any successful Payment transaction made by the Merchant.
* If applicable when transacting in currencies not in SGD
2. ADDITIONAL CHARGES
2.1 The Service Charges payable by the Merchant in respect of Payment Transactions processed by WabPay for each different type of Service are set out in the applicable Annex to Schedule 2 (Services) and comprise:
All Transactions (failed)
5 % of the amount of the refunded transaction
(when the Transaction is disputed by the Final Customer)
(when the Transaction disputed by the Final Customer is then challenged by the PARTNER)
Administrative fees for a reconciliation
Last Updated: 13 December 2017