PixelPay's Merchant Service Agreement
Pixelpay Merchant Services Agreement
This Merchant Services Agreement governs your use of the Services as a merchant (“Merchant”) of Pixelpay. You are advised to read the terms very carefully. You can reach out to our merchant success team at [email protected] for any clarifications you may require.
1. General
1.1 This Agreement sets out the basis on which Pixelpay will provide to the Merchant, processing, reconciling, and reporting of payment transactions and other related operations in accordance with this Agreement or as otherwise agreed by the Parties in writing from time to time (“Services”). This Agreement may be supplemented by specific terms approved and notified by Pixelpay to the Merchant in writing from time to time.
1.2 Pixelpay may subcontract or delegate the performance of its obligations under this Agreement to third parties including any of its Affiliates and may, at its discretion, inform the Merchant. However, Pixelpay shall remain responsible for the actions of the subcontractee or delegatee.
1.3 The Agreement constitutes the entire agreement between the Parties in respect of the Services and supersedes any previous agreement, whether express or implied.
2. Definitions and Interpretation
2.1.1 In this Agreement:
“Acquirer” means a licensed commercial bank in the Federal Republic of Nigeria which is responsible for maintaining the Merchant Bank Account.
“Affiliate” means, in relation to either Party, any entity in the same group as that Party, including but not limited to a subsidiary or a holding company of that Party and any direct or indirect subsidiaries of such holding company.
“Agreement” means this Agreement, any Service supplements, including any appendices, amendments, modifications, extensions, and revisions to this Agreement.
“Applicable Laws” means all provisions of statues, laws, rules, codes, treaties, ordinances, directives, directions, injunctions, awards and/or regulations in the jurisdiction(s) of operation of either Party, including that from any court, governmental, intergovernmental or supranational authority, or self-regulatory organization, and including requests, guidelines or decisions from regulators or associations as amended and re-enacted from time to time which are applicable to either of the Parties.
“Business Day” means a day other than a Saturday or a Sunday on which banks are open for business in Lagos State, Nigeria or a public holiday declared by the Federal Government of Nigeria.
“CBN” means the Central Bank of Nigeria.
“Card Scheme” includes MasterCard, Verve or Visa,Afrigo and other similar schemes which govern the issue and use of any payment methods acceptable by Pixelpay.
“Card Scheme Rules” means any and all rules, regulations, standards, and operating guidelines issued by any Card Scheme, as amended and restated from time to time which are applicable to the Merchant.
“Chargeback” means a circumstance where a Card Scheme or other financial institution requires repayment in respect of a transaction previously settled and/or remitted to the Merchant, notwithstanding that authorization may already have been obtained.
“Confidential Information” means any and all written, oral visual, machine-readable or other tangible or intangible forms of information (whether patentable or copyrightable or not), data, techniques, plans, strategies, opportunities or trade secrets which is not generally available to the public as disclosed or delivered by either Party (the “Disclosing Party”) to the other Party (“Receiving Party”) whether before or after the Effective Date.
“Customer” means a customer of the Merchant in relation to a payment transaction processed using the Services.
“Customer Data” means data relating to Customers that (a) the Merchant provides to Pixelpay in connection with the Services, or (b) Pixelpay generates on the basis of those data.
“Data” means documents, records, and any other data of any kind relating to the transactions.
“Fees” means all fees, charges and other payments to be made by the Merchant to Pixelpay from time to time as stipulated by Pixelpay.
“Fines” means any and all fines, levies, costs, expenses, charges, assessments or imposition of liabilities of any nature which the Card Schemes or other financial institution require either the Merchant or Pixelpay to pay or which are otherwise directly or indirectly recovered from Pixelpay at any time and which relate to any aspect of this Agreement (including the provision of the Services hereunder).
“Further Guidance” means any and all internal or external documents, guidance, policies, and processes outlined or published by Pixelpay in relation to the Services.
“Pixelpay Website” means www.pixelpayhq.com.
“Merchant Bank Account” has the meaning given to it in section 5.3.
“Payment” means the relevant payment due to the Merchant from Pixelpay on the Payment Date in respect of the transactions.
“Payment Date” means (i) T+1 for local card transactions.
“Refund” means a return of an amount to a customer’s account or the reversal of any other payment pursuant to a request or instruction from the Merchant to Pixelpay.
3. Rights and obligations of Pixelpay
3.1 Pixelpay will, in consideration for the Fees and compliance by the Merchant with the terms of this Agreement, provide the Services with reasonable skill and care, in accordance with the terms of this Agreement, Applicable Law and Card Scheme Rules and for the duration of this Agreement.
3.2 Where the Merchant requires that Pixelpay provides it with an additional service other than those contemplated at the Effective Date, the Merchant shall submit a written request to Pixelpay for such additional service and Pixelpay shall have no obligation to provide such additional services to the Merchant until it has received the written request from the Merchant. Notwithstanding anything to the contrary in this Agreement or otherwise, Pixelpay shall be entitled to request additional documentation or require the Merchant to sign an addendum to this Agreement before onboarding the Merchant on such additional service. Pixelpay may, at its sole discretion, refuse to grant such a request without reason.
3.3 Pixelpay may cancel, suspend or modify one, some or all of the Services without prior notice to the Merchant and with immediate effect if Pixelpay, either unilaterally, or the advice of a Card Scheme or the instruction of a regulatory authority, reasonably considers it necessary or desirable to do so. Pixelpay will, where practicable, notify the Merchant within 72 hours (excluding public holidays and weekends) of any such cancellation, suspension, or modification.
3.4 In order to ensure continuous compliance with the requirements of the CBN and any other regulatory body which has or may have oversight functions over Pixelpay, the Merchant understands and accepts that Pixelpay provides its Services subject to the written approvals, directives, notices, or authorizations as may be issued by the CBN (or any such other regulatory authority, where applicable) directly to Pixelpay from time to time. The Merchant further accepts that Pixelpay may make any such changes to the Services or this Agreement as are necessary to ensure compliance with the regulatory directive. Pixelpay will, where practicable, notify the Merchant within 72 hours (excluding public holidays and weekends) of any such change.
4. Payments, Fees, Charges
4.1 Pixelpay shall maintain a record of all the transactions carried out by Pixelpay on behalf of the Merchant. The Merchant shall be able to monitor all the transactions relating to its account.
4.2 Pixelpay shall, on each Payment Date, send by direct bank transfer to the Merchant Bank Account any Payment after the deduction of the Fees due to it.
4.3 Pixelpay is entitled to recover the Fees and the sums set out in section 4.4 by:
•deduction from the next Payment due to the relevant Merchant;
•debit from the relevant Merchant Bank Account, in accordance with section 5.4 below;
•invoice (in which case such sums will be payable by the Merchant in accordance with the terms of the invoice); and/or
•any combination of the above.
4.4 Pixelpay is entitled to recover and withhold:
•any Refunds;
•any Chargebacks and any Fines;
•any amounts required to cover any:
Chargeback costs, Fines, taxes, levies, value-added tax (VAT), withholding taxes and any liability relating to a transaction or;
a.Chargeback costs, Fines, taxes, levies, value-added tax (VAT), withholding taxes and any liability relating to a transaction or;
b.liability of the Merchant under this Agreement; and
c.any other charges or amounts incurred by or due to Pixelpay under or in connection with this Agreement.
4.5 If the value of the Fees and the categories of claims which Pixelpay is entitled to recover as set out in section 4.4 exceed the aggregate value of a Payment due to the Merchant on any Payment Date, the shortfall may be deducted (together with any accrued interests) on the next Payment Date. In addition, the relevant Pixelpay payment provider/partner reserves the right to require immediate payment of all or part of such shortfall at any time (together with interest).
4.6 Pixelpay is entitled to defer any Payment or any other sum due to the Merchant to the extent that Pixelpay, in its absolute discretion, considers necessary or appropriate to protect its ability to recover the Fees and/or the sums set out in section 4.4 or any other liability (actual or anticipated) of the Merchant in connection with this Agreement.
4.7 Pixelpay may amend the Fees by providing 30 calendar days’ prior written notice. Such change will become effective on the calendar day immediately following the end of this period except a notice of objection is received from the Merchant before the expiration of the timeline. The Merchant understands that failure to agree to the revised fees may result in a suspension or termination of a part or all of the Services, as applicable.
4.8 If Pixelpay has reasonable suspicion that a transaction may be fraudulent or involve other criminal activity, Pixelpay may suspend the processing of that, and any connected transaction, or withhold Payment until the satisfactory completion of any investigation.
4.9 The Merchant shall not be entitled to any interest or other compensation whatsoever in respect to suspension or delay in receiving Payment.
5. Obligations of the merchant
5.1 The Merchant shall comply with Applicable Laws and relevant Card Scheme Rules. The Merchant shall not act in contravention of or cause Pixelpay to act in contravention of any Card Scheme Rules to which Pixelpay is subject.
5.2 The Merchant shall only accept payments and/or process Refunds:
•from Customers in connection with goods and/or services supplied by the Merchant; or
•in respect of goods and services which:
a.commonly fall within its business as identified in its request to Pixelpay for the Services, and
b.the customer would reasonably expect to receive; and
•and in respect of goods or services the provision of which is in accordance with Applicable Law.
5.3 The Merchant shall, at all relevant times, maintain a bank account in a reputable bank acceptable to Pixelpay in the Merchant’s name, into which the Merchant will receive the Payments, and from which the Merchants may make payments to Pixelpay (“Merchant Bank Account”).
5.4 The Merchant shall provide immediate notice of (i) any unauthorized third-party use of the Services; and/or (ii) any event which might lead to such unauthorized use.
5.5 The Merchant shall take all reasonable steps to assist Pixelpay in handling any claim or query raised by any other third party in relation to the Services.
5.6 The Merchant shall immediately notify Pixelpay of any act, omission or error which does or may adversely affect the Merchant’s ability to perform their obligations under this Agreement or cause loss or damage to Pixelpay (including but not limited to any material change in the nature or extent of the Merchant’s business).
5.7 The Merchant acknowledges and agrees to abide by this Agreement and any other policy, rules or instruction by Pixelpay, and ensure that all equipment and software it uses in connection with the transactions and the storage and/or processing of Data complies with, any payment application data security standards of any relevant Card Scheme as updated from time to time. The Merchant shall ensure that any of its agents, sub-contractors or any third parties used by it in relation to the transactions is aware of and shall comply with the terms of this section.
5.8 The Merchant shall immediately notify Pixelpay on becoming aware of any actual or suspected security breach relating to any Data. As soon as reasonably practicable, the Merchant shall identify and remediate the source of such a security breach and take any additional steps required by Pixelpay. This section shall not prejudice any other remedies available to Pixelpay under this Agreement.
5.9 The Merchant shall comply with any additional security, authentication, risk control, or other requirements imposed by Pixelpay or a Card Scheme, including but not limited to where that Merchant is, in the opinion of Pixelpay and/or the Card Scheme, engaged in high-risk activities.
5.10 The Merchant shall not engage in any practice prohibited by any of the Card Scheme Rules unless permitted by Applicable Law.
6. Chargebacks
6.1 The Merchant acknowledges and agrees that in certain circumstances, a chargeback claim may be brought against it either directly to Pixelpay or to any financial institution. It also acknowledges that a financial institution or Card Scheme may refuse to settle a transaction for whatever reason.
6.2 The Merchant agrees that it may be required to reimburse Pixelpay for Chargebacks where it has accepted payment in respect of the relevant transaction.
6.3 The Merchant must respond to chargeback disputes or refunds within 12 hours after a notice from Pixelpay failing which the dispute shall be resolved against the Merchant and Pixelpay shall bear no liability or be obligated to provide any further assistance in respect of the resolved claim.
6.4 All Chargebacks shall correspond to the whole or part of the settlement value of the original transaction or, if applicable, at the option of Pixelpay, to an amount converted to the settlement currency from the currency of Chargeback by the Card Scheme or other financial institution to Pixelpay at the rate of exchange quoted by Pixelpay for settlement purposes on the day the Chargeback is processed.
6.5 In the event that the Merchant disputes the claim, the Merchant undertakes that Pixelpay is entitled to withhold the funds due to the Merchant from Pixelpay, or the Merchant’s funds in its wallet with Pixelpay, pending the resolution of the Chargeback claim. Notwithstanding, Pixelpay shall be entitled to recover any other costs, expenses, liabilities, or Fines incurred as a result of or in connection with such Chargeback (“Chargeback Costs”).
6.6 Pixelpay shall not be obliged to investigate the validity of any Chargeback by any Card Scheme or other financial institution, whose decision shall be final and binding in respect of any Chargeback.
6.7 Pixelpay shall remain entitled to recover Chargebacks and Chargeback Costs from the Merchant in respect of all Chargebacks that arise within 180 days after the relevant transaction, even where such timeline is after the termination of the contractual relationship between the Merchant and Pixelpay.
6.8 Pixelpay may immediately pass on and recover from the Merchant any Fines or further charges incurred as a result of or in connection with Chargeback Costs and/or terminate this Agreement and the Services provided hereunder if Pixelpay in its sole opinion considers that the total value of Refunds and/or Chargebacks is unreasonable.
6.9 It is the Merchant’s responsibility to prove to Pixelpay’s satisfaction that the debit of a customer’s account was authorized by such a customer.
6.10 The Merchant must at all times maintain a chargeback and refund threshold of 0.5% on Pixelpay platform failing which Pixelpay may, upon notifying the Merchant, (i) shift any liability arising from non-compliance with the threshold to the Merchant; and/or (ii) discontinue the provision of the Services to the Merchant altogether without any further notice.
6.11 The Merchant understands that it is its duty to monitor its activities to ensure it does not exceed this threshold within thirty (30) calendar days.
6.12 The Merchant agrees to process returns of, and provide refunds and adjustments for, products sold and/or payment collected through its merchant site in accordance with this Agreement, the Acquirer’s instructions, and relevant Card Schemes. The Merchant understands that all refunds must be routed through the same Acquirer payment gateway through which the transaction was made. In the event that the Merchant initiates refunds through any other mode, the Merchant shall be fully liable for all Chargebacks raised in respect of the transaction.
6.13 The Merchant agrees and confirms that it shall remain solely liable after the termination of the Agreement for all Chargebacks, refunds, penalties, loss, damages or cost incurred by Pixelpay, Acquirers, Card Schemes and/or Customers and for all claims and proceedings arising against Pixelpay and/or an Acquirer with respect to the Agreement.
7. Set-off
7.1 Pixelpay may, upon notice to the Merchant, set off any debts or liabilities due from the Merchant or Merchants Affiliates to Pixelpay or any of its Affiliates under this Agreement against any debts or liabilities owed by Pixelpay or any of its Affiliates to the Merchant or Merchant Affiliates, regardless of the place of payment or currency of either obligation. If the obligations are in different currencies, then Pixelpay may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
7.2 The exercise by Pixelpay of any of its rights under this section shall be without prejudice to any other rights or remedies (including but not limited to set-off) to which Pixelpay or its Affiliates are otherwise entitled (by operation of law, contract, or otherwise).
8. Fraud prevention
8.1 Pixelpay may require the Merchant to put in place certain anti-money laundering, combating the financing of terrorism (AML/CFT) and fraud prevention services (“AML/CFT and Fraud Prevention Services”). The Merchant shall ensure to abide by the terms of such AML/CFT and Fraud Prevention Services.
8.2 The Merchant acknowledges and agrees that the processing of transactions and/or the making of Payments may be delayed and/or suspended in a connection where Pixelpay or any Pixelpay Affiliate has a reasonable suspicion that a transaction may be fraudulent or involve other criminal activity.
8.3 The Merchant must not submit, and Pixelpay must not accept, any transaction that the Merchant and/or Pixelpay either know is, or should have known was, illegal. For the avoidance of doubt, for the purposes of section 8.3, the Merchant is deemed to be responsible for the conduct of its employees, agents, and representatives.
8.4 The Merchant shall at all times provide Pixelpay with reasonable assistance on request for the prevention and detection of fraud or other criminal activity in respect of transactions.
9. Representations and warranties
9.1 The Merchant represents and warrants to Pixelpay as follows:
•The Merchant is a company duly incorporated, organized, and/or authorized and in good standing under the laws of the state, region, or country of its organization.
•The Merchant shall continue to hold valid licenses, consents and approvals required for its to provide its services, and such as have been requested by Pixelpay during the onboarding of the Merchant, throughout the duration of the Agreement.
•The Merchant shall not provide to any third party, the API or documentation, or any other proprietary software or information, or any technology or process whatsoever, provided by Pixelpay to it in connection with this Agreement.
•The Merchant understands that at all times Pixelpay retains full right to the API and other software or technology owned by it.
•The Merchant has full capacity, power, and authority to abide by this Agreement and to exercise its rights and perform its obligations hereunder.
•All corporate action required to enter into this Agreement by the Merchant and the exercise by it of its rights and the performance by it of its obligations under this Agreement has been duly taken.
•This Agreement is valid, binding, and enforceable against the Merchant in accordance with its terms and no provision of this Agreement is in conflict with any of the Merchant’s obligations under its constitutional documents, Applicable Law, or any other document, charter or agreement to which the Merchant is subject.
•The Merchant will use the Services in good faith, in accordance with the terms of this Agreement and in accordance with all Applicable Law, Card Scheme Rules and Further Guidance. In particular, the Merchant will not use the Services in a manner that could result in a violation of anti-money laundering, counter-terrorist financing, and similar legal and regulatory obligations.
•The Merchant shall comply with any technical specifications available on the Pixelpay Website, which Pixelpay reserves the right to modify at any time.
•Pixelpay is not part of, nor participates in sales and procurement contracts executed between the Merchant and its Customers. The Merchant shall comply with consumer obligations, data privacy obligations, tax obligations, exchange obligations, or any other obligation established in mandatory Applicable Law. The Merchant is responsible for acknowledging and meeting the legislation in force and applicable to its activity in the countries where it operates and uses the Services.
9.2 Pixelpay represents to the Merchant that Pixelpay has the power and authority to enter into this Agreement and to perform its obligations.
10. Information
10.1 The Merchant shall at all times immediately disclose to Pixelpay such information as Pixelpay may reasonably require for the provision of the Services, including (but not limited to) any information required to satisfy the reporting or other obligations (including financial obligations) of the Merchant under this Agreement, any Card Scheme Rule and / or Applicable law.
10.2 The Merchant shall immediately notify Pixelpay of any material change in such information, including any material change in the financial position of the Merchant for the duration of the provision of the Services.
10.3 Pixelpay may retain such information as long as it may be required by Applicable Law or as per the contractual obligation with Pixelpay whichever is greater.
10.4 Subject to Applicable Law, Pixelpay may use information, collect information and share information with their Affiliates, Card Schemes, fraud prevention agencies, and criminal enforcement authorities to the extent Pixelpay may reasonably consider necessary or appropriate for the provision of the Services and/or compliance with this Agreement, Applicable Law, Card Scheme Rules and Further Guidance.
10.5 The Merchant acknowledges and agrees that:
•Card Schemes to which Pixelpay discloses information may (i) maintain databases (which may be available to third parties including regulators and other authorities) containing information regarding the conduct of transactions by merchants; and/or (ii) categorize undesirable conduct of merchants; and
•If any of the Services or this Agreement is terminated pursuant to section 17, relevant Card Schemes may, subject to Applicable Law, be notified and may retain such information in accordance with their normal practice.
10.6 Pixelpay shall have no liability to the Merchant for any inaccuracy in the information provided to any third parties pursuant to this section 10, provided it acted in good faith.
11. Data management and protection
11.1 The Merchant shall abide by Applicable Law, and its contractual and other obligations to its customers, in providing Customer Data to Pixelpay and processing Customer Data through the use of the Services.
11.2 Pixelpay may not use or disclose Customer Data except as permitted by section 11.3.
11.3 Pixelpay may use and disclose Customer Data, in accordance with Applicable Law, for the following purposes: (a) providing, improving and developing the Services; (b) market research and trend analysis; (c) taking steps to prevent, detect or prosecute fraud and other offenses and/or to comply with Applicable Law; (d) sending marketing and other communications to Customers; and (f) other purposes authorized by the Merchant in this Agreement or applicable Jurisdiction Specific Conditions or otherwise in writing. Pixelpay may also take steps to derive anonymized Customer Data from identifiable Customer Data, and may use and disclose anonymized Customer Data, for any lawful purposes, in accordance with Applicable Law.
11.4 The Merchant undertakes and warrants to Pixelpay that it has obtained the requisite consent of the Customers for Pixelpay to utilize the Customer Data for the purposes listed in section 11.3 and any other purpose which may be agreed by the Parties. Notwithstanding the foregoing, where required by Pixelpay, the Merchant shall provide such information and offer such choices to, and obtain such consents from, its Customers as are reasonably required to enable Pixelpay to use and disclose the Customer Data as set out in section 11.3 in accordance with Applicable Law. Where a required consent to (or failure to exercise an opt-out from) use of Customer Data for any of the purposes specified in section 11.3 cannot be made a condition to processing a transaction under Applicable Law, the Merchant shall (i) nonetheless use reasonable endeavors to facilitate Customer choices allowing such use and disclosure; (ii) immediately notify Pixelpay of any other lawful basis under which it is sharing the data; and (ii) promptly notify Pixelpay in writing of any required consent which is withheld or subsequently withdrawn and any opt-out choice which is exercised.
Every liability of a Data Controller in respect to the Customer Data collected pursuant to sections 11.3 and 11.4 are hereby undertaken, and are, to be borne by the Merchant.
11.5 Where Pixelpay acts as a processor on behalf of the Merchant in respect of this Agreement:
11.5.1 Pixelpay shall:
•only process those Customer Data on the instructions of the Merchant; and
•have in place appropriate technical and organizational measures to protect those Customer Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular (but not only) where the processing involves the transmission of data over a network, and against all other unlawful forms of processing; and
11.5.2 The Merchant instructs Pixelpay to take such steps in the processing of those Customer Data as Pixelpay considers necessary or desirable for the provision of the Services.
12. Intellectual property
12.1 All intellectual property rights relating to the Services are owned by and vest exclusively in Pixelpay and its Affiliates. The information given by the Merchant to its clients concerning the Services does not create any intellectual property or other rights on the part of the Merchant over the Services or their functionalities, or, without limitation, over the trademarks, trade names, goodwill, domain names, websites, computer software (source or object code), data, logos, images, copyrighted materials, patents, inventions, know-how, or any other information, owned by Pixelpay, their Affiliates, and/or their suppliers or subcontractors.
12.2 The Merchant shall comply with any and all relevant Card Scheme Rules relating to the trademarks, data, logos, images, copyrighted materials, or any other protected intellectual property of such Card Scheme (“Marks”).
12.3 Any use of a Mark by the Merchant in advertising, acceptance decals, or signs, must be in accordance with any Card Scheme Rules, including the Card Scheme’s reproduction, usage, and artwork standards, as may be in effect from time to time.
12.4 The Merchant use or display of any Mark will terminate effective with the termination of this Agreement or upon notification to the Merchant by the relevant Card Scheme to discontinue such use or display.
12.5 Notwithstanding the above, the Merchant gives Pixelpay and / or the Service Provider(s) the right to use its name or company name, and also to mention its business activity, in any promotions or advertising concerning the Services, regardless of the type of advertising or media used.
13. Confidentiality
13.1 During the term of this Agreement and for two years from the date that this Agreement is terminated, the Receiving Party may not use Confidential Information for a purpose other than the performance of its obligations under this Agreement. In particular, the Receiving Party may not disclose Confidential Information to a person except with the prior written consent of the Disclosing Party or in accordance with the provisions of this section 13.
13.2 During the term of this Agreement the Receiving Party may disclose Confidential Information to any of its directors, other officers, employees, agents, Affiliates, delegates, sub-contractors, and customers on a strictly need-to-know basis to the extent that disclosure is necessary or desirable for the purposes of this Agreement. The Receiving Party shall ensure that any such recipient is made aware of and complies with the Receiving Party’s obligations of confidentiality under this Agreement as if such recipient was a Party to this Agreement.
13.3 sections 13.1 and 13.2 do not apply to Confidential Information:
•which is at the date of this Agreement, or at any time after that date becomes, publicly known other than by the Receiving Party’s or other recipient’s breach of this Agreement;
•which can be shown by the Receiving Party to the Disclosing Party’s satisfaction to have been known by the Receiving Party before disclosure by the Disclosing Party to the Receiving Party. Or
•to the extent required by Applicable Law provided that in these circumstances the Receiving Party shall advise the Disclosing Party of the same prior to such disclosure, in order for the Disclosing Party to take whatever steps it deems necessary to protect its interest in this regard.
13.4 If the Receiving Party receives a notice from a governmental authority or faces legal action to disclose Confidential Information received under this Agreement, then the Receiving Party shall promptly, if not prohibited by law/notice/governmental authority, notify the Disclosing Party of the same such that the Disclosing Party may have the opportunity to intercede, obtain a protective order and contest such disclosure and, upon request, shall cooperate with the Disclosing Party in contesting such a disclosure. Further, the Parties agree that in the event the Receiving Party is required to disclose the Confidential Information pursuant to the legal action, notice, order, it shall not disclose any Confidential Information in excess of the legal requirement and to any other person.
14. Limitation of liability of Pixelpay
14.1 All obligations on Pixelpay arising out of or in connection with this Agreement are obligations to use reasonable efforts and not obligations to achieve a specific result.
14.2 Except as set out in this Agreement or prescribed by law, all conditions, warranties and representations, expressed or implied by (i) statute, (ii) common law or (iii) otherwise, in relation to the Services are excluded.
14.3 Pixelpay is not liable to the Merchant under any circumstance, whether for negligence, breach of contract, misrepresentation or otherwise, for:
14.3.1 loss or damage which is incurred by the Merchant as a result of:
a.third party claims;
b.viruses, malicious or disruptive codes, power cuts or service interruptions or other IT or hardware or software problems or faults;
c.decisions by any relevant court, regulatory or other authority or the operation of Applicable Law; and/or
d.loss of profit, goodwill, business opportunity or anticipated saving suffered by the Merchant;
14.3.2 indirect, consequential, punitive, exemplary or similar loss or damage (including damage to reputation) suffered by the Merchant; and/or
14.3.3 loss or damage which may be the consequence, wholly or partially, of a breach by the Merchant of this Agreement.
14.4 The entire liability of Pixelpay under or in connection with this Agreement whether for negligence, breach of contract, misrepresentation or otherwise, is limited, in respect of each event or series of connected events, to the total Fees (Appendix A) paid by the Merchant under this Agreement to Pixelpay during the twelve (12) month period immediately preceding the event that gave rise to the claim.
14.5 Nothing in this Agreement shall operate to exclude or restrict the liability of Pixelpay for death or personal injury or for any matter which such liability cannot be lawfully excluded or limited.
14.6 Notwithstanding any provision to the contrary, in relation to any obligations that Pixelpay may have that arise, Pixelpay shall not be liable in the event that abnormal and unforeseeable circumstances beyond their control prevent them from fulfilling their obligations under this Agreement.
15. Indemnity
15.1 The Merchant shall indemnify, and keep indemnified Pixelpay and their Affiliates, officers, employees and agents (each an “Indemnified Party”), immediately on demand against each loss, liability or cost (including, without limitation, that incurred defending or settling a claim alleging such a liability) which they incur as a result of:
15.1.1 any breach of the terms of this Agreement, improper use of the Services, violation of Applicable Law or Card Scheme Rules, conduct categorized as undesirable by any Card Scheme, or violation of the rights of any third party, by the Merchant, any of their Affiliates or any person acting on their behalf;
15.1.2 use of the API by an agent or affiliate of the Merchant which results in any claim, demand, fine or court action which may be brought against Pixelpay or a liability being incurred by Pixelpay in respect of any part of this Agreement; and/or
15.1.3 processing of Customer Data by an Indemnified Party as may reasonably be necessary to provide the Services.
15.2 For the avoidance of doubt, the Merchant shall fully, irrevocably and unconditionally indemnify Pixelpay from and against any liability which may be incurred by Pixelpay as a result of the use of Pixelpay’s API by an agent of the Merchant.
15.3 Nothing in this section 15 restricts or limits the general obligation at law for an Indemnified Party to take reasonable efforts to mitigate losses.
16. Security / Deposit / Rolling Reserve
16.1 Pixelpay reserves the right to require that the Merchant provide (or procure the provision of) security in such form and over such assets for a period of 180 days, usually between 10% to 20% of the settlement due to the Merchant, as Pixelpay shall require to secure the performance of the Merchant’s actual, contingent or potential obligations under this Agreement or otherwise in connection with the Services. Such security may take the form of collateral (in the form of retained Payments or otherwise), a rolling reserve (especially for card transactions), a guarantee or indemnity. Pixelpay reserves the right to unilaterally call for an increase to the level of security held.
16.2 Pixelpay may require that any security provided be supplemented or replaced at any time.
16.3 Where the need for the security does not arise within the holding period with Pixelpay, Pixelpay shall credit the Merchant’s account with the same on the 181st day.
16.4 At the time of termination, Pixelpay may retain such amount from the security (if any) and Payment payable to the Merchant as may be determined by Pixelpay to cover Chargeback risk, refund risk or any potential loss, damages, penalties, cost that may be incurred by Pixelpay for a period of 180 Business Days. In the event that such retained amount is not sufficient to cover all outstanding amounts of the Merchant post-termination, the Merchant shall ensure that it pays Pixelpay all pending amounts within 5 (five) Business Days of receiving the demand notice and shall at all times keep Pixelpay indemnified in this respect.
17. Inspection
17.1 The Merchant shall permit the authorized representatives of Pixelpay and/or the Acquirers to carry out physical inspections of the place(s) of business or other facilities of the Merchant to verify if the Merchant is in compliance with its obligations hereunder.
17.2 If the Merchant refuses such inspection or provides inaccurate, untrue, or incomplete information, or fails to comply with the terms and conditions of this Agreement, Pixelpay reserves the right to suspend or terminate the Pixelpay Services with immediate effect.
18. Term and termination
18.1 Unless otherwise agreed, this Agreement has an initial term of one year (“Initial Term”) unless terminated or suspended as provided for in the Agreement. Unless either party gives written notice to terminate the Agreement (not later than 30 days prior to the end of the Initial Term or any successive periods) this Agreement is automatically renewed for successive one year periods.
18.2 A Party (“Initiating Party”) may terminate this Agreement with immediate effect by written notice to the other Party (“Breaching Party”) if any of the following events take place or is expected to take place:
•The Breaching Party is in material breach (whether or not a repudiatory breach) of an obligation under this Agreement and, if the breach is capable of remedy, the Breaching Party has failed to remedy that breach within 30 days after receipt of written notice of the breach;
•The Breaching Party has passed a resolution for its winding up or a court of competent jurisdiction has made an order for the Breaching Party’s winding up or dissolution;
•An administration order has been made in relation to the Breaching Party or a receiver, or an encumbrancer has been appointed to take possession of or sell, assets of the Breaching Party;
•The Breaching Party has made an arrangement or composition with its creditors generally or has made an application to a court of competent jurisdiction for protection from its creditors generally; or
•Any other procedure having a similar effect to the above is initiated.
18.3 Pixelpay may suspend or terminate this Agreement by written notice to the Merchant with immediate effect if Pixelpay is of the opinion that any of the following events have taken place or are expected to take place:
1.The Merchant ceases to carry on business;
2.The Merchant merges with any other person or in any other way changes the persons who have the ability to direct, guide or otherwise influence its affairs;
3.Pixelpay is unable to recover the Fees (Appendix A) or other sums set out at section 4.3 for any reason, or considers that the total value of Refunds and/or Chargebacks is unreasonable;
4.Pixelpay determines that continuing to provide the Services to the Merchant represents an increased risk of loss or liability or risk to reputation to Pixelpay or any of its Affiliates;
5.the Merchant engages in any trading practices or other activity which might give rise to fraud or any other criminal activity or suspicion of fraud or any other criminal activity;
6.security granted by the Merchant under this Agreement ceases to be sufficient, enforceable or available;
7.any claim or action in connection with this Agreement or the Services hereunder is threatened or commenced by either Party;
8.the Merchant breaches any Card Scheme Rules;
9.where any Card Scheme Rule would otherwise be broken by either the Merchant or Pixelpay; or
10.Pixelpay is required or requested to do so by any Card Scheme or another financial institution or Pixelpay is subject to Fines from any Card Scheme, other financial institutions, or any other third party arising from the provision of the Services.
18.4 A Card Scheme may limit, suspend, or terminate this Agreement and the Services provided hereunder by notice to the Merchant with immediate effect if that Card Scheme, in its absolute discretion, so decides.
18.5 Termination of this Agreement, does not affect a Party’s accrued rights and obligations at the date of termination.
18.6 Sections 4.2, 4.3, 5.1, 5.7, 5.9, 5.10, 5.11, 6, 7, 10.3, 10.4, 10.5, 10.6, 12, 13, 14, 15 and 16.3 shall survive termination of this Agreement.
18.7 Each Party’s further rights and obligations shall cease immediately on termination except as otherwise specified in this Agreement, except that those sections, the survival of which is necessary for the interpretation or enforcement of this Agreement, shall survive termination of this
18.8 Agreement, and shall continue in full force and effect.
18.9 If a Service is terminated for any reason, the Merchant will pay all Fees (Appendix A) payable up to the termination date.
18.10 The Merchant undertakes to provide Pixelpay with evidence of commencement of the renewal process for every license and/or approvals which require renewal, within 30 days from the date of expiration of that license or approval. The Merchant understands that Pixelpay may terminate this Agreement immediately or suspend the provision of the service where such is not provided to it.
19. Transfer and assignment
The Merchant may not assign, transfer or purport to assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Pixelpay (such consent not to be unreasonably withheld or delayed). Subject to section 1.2, Pixelpay may assign, transfer or purport to assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Merchant.
20. Force Majeure
20.1 Neither Pixelpay nor the Merchant shall be in breach of this Agreement or liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (such affected party, the “Affected Party” and such event, a “Force Majeure Event”). In such circumstances, the Affected Party shall be entitled to a reasonable extension of the time for performing such obligations.
20.2 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 details and effect of the Force Majeure Event. As soon as reasonably possible after the end of the Force Majeure Event, the Affected Party shall resume performance of its obligations under this Agreement.
20.3 The Affected Party shall make all reasonable efforts to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Agreement.
21. Notices
21.1 Except for the service of proceedings, a notice under or in connection with this Agreement (a “Notice”):
•shall be in writing; and
•may be delivered personally or sent by electronic mail or first class post, or pre-paid recorded delivery, (and airmail if overseas) to the Party due to receive the Notice at its address set out in section 25 or to another address specified by that Party by not less than seven days’ written notice to the other Party.
21.2 Unless there is evidence that it was received earlier or later a Notice is deemed given:
•if sent by electronic mail, the next Business Day assuming that no notification of failure to deliver the electronic mail was received by the sending party;
•if sent by post, except airmail, two Business Days after posting it; and
•if sent by airmail, six Business Days after posting it.
22. Miscellaneous
22.1 Pixelpay may revise the provisions in this Agreement or introduce additional Agreement at any time and from time to time. Pixelpay shall notify the Merchant of any revision or addition to the Agreement in accordance with section 21 at least 30 calendar days before the date such revision or addition is to become effective. Each such amendment shall be binding on the Merchant from the effective date of that amendment.
22.2 If any provision in this Agreement becomes illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
22.3 Should Pixelpay fail or delay in exercising any right or remedy under this Agreement, such failure or delay shall not constitute a waiver of that right or remedy. A waiver is only effective if made in writing in accordance with section 20 of this Agreement. A waiver is only effective in respect of the particular circumstances for which it is given.
23. Relationship between the parties
The relationship between Pixelpay and the Merchant is on a principal-to-principal basis. Nothing contained herein shall be deemed to create any association, partnership, joint venture or relationship of principal and agent or master and servant, or employer and employee between the Parties hereto or any affiliates or subsidiaries thereof or to provide either Party with the right, power or authority, whether express or implied to create any such duty or obligation on behalf of the other Party.
24. Governing Law and Enforcement
24.1 This Agreement and any non-contractual obligations arising out of or in connection with it are governed by laws of the Federal Republic of Nigeria.
24.2 Any disputes between the parties arising from or related to this Agreement shall be settled by arbitration in accordance with the Lagos State Arbitration Law 2009. The arbitration venue shall be Lagos and the language shall be English.