3.1. In accessing and using the HelloPay Platform, the Merchant must not:

3.1.1. breach any Applicable Laws or such internal policies of HelloPay;

3.1.2. breach this Merchant Agreement or any other terms and conditions which govern the Merchant’s relationship with HelloPay;

3.1.3. send any communication or submit any information to HelloPay that is false, misleading, deceptive or which may bring the name of HelloPay and/or any of its Affiliates into disrepute;

3.1.4. infringe the rights of HelloPay, its Affiliates and/or any third party;

3.1.5. disassemble, decompile, reverse-engineer, or create derivative works based on the whole or any part of the HelloPay Platform;

3.1.6. distribute spam, chain letters, or promote pyramid schemes;

3.1.7. distribute viruses or other harmful technology which may cause harm to HelloPay, the HelloPay Platform, its Affiliates, other Merchants or any other third party;

3.1.8. attempt to impose or contribute to imposing an unreasonable load on HelloPay’s infrastructure or interfere with the proper working of the HelloPay Platform;

3.1.9. copy, modify, or distribute HelloPay, or any other person’s, content without their consent;

3.1.10. harvest or otherwise collect information about other Merchants, without their consent;

3.1.11. copy, modify, or distribute rights or content from the HelloPay Platform;

3.1.12. bypass any security measures on the HelloPay Platform; and

3.1.13. continue any conduct that may constitute any fraudulent activities, money laundering, terrorist financing, round-tripping, corruption or any other criminal activity, illegal use, or abuse of the HelloPay System.

3.2. The Merchant agrees to defend HelloPay against any claims or legal proceedings against us as a result of the Merchant breaching any part of the Merchant Agreement;

3.3. HelloPay may in its sole and absolute discretion have the right to reverse or suspend any suspected “Fraudulent Transaction”, performed on the HelloPay Platform (including the suspension and hold on any amounts owing to the Merchant). Furthermore, the Merchant’s access to the HelloPay Platform may be terminated with immediate effect for any reason, including but not limited to fraud or suspected fraud and the Merchant may be reported to the relevant authorities for prosecution.

3.4. In some circumstances, the “Card Issuer” will have the right under the scheme rules to refuse to settle a transaction or to seek reimbursement of a transaction which has already been settled:

3.4.1. if HelloPay has not yet paid the Merchant concerning that Transaction, HelloPay will not be required to pay the Merchant with respect to that transaction; or

3.4.2. if HelloPay has already paid the Merchant concerning that transaction, the Merchant will have to pay it back to HelloPay;

3.4.3. This is referred to as a “Chargeback”. This is the case even where the Transaction has been authorised and processed as a valid transaction but the Merchant subsequently informs HelloPay that the transaction is not. If the Merchant has to pay HelloPay back for a Chargeback, such amount will be debited from the Merchant card swipes and net settled. Should that not be sufficient to settle HelloPay, HelloPay is entitled to deduct the relevant amount from the Merchant’s nominated bank account.

3.5. Transactions involving the following are prohibited on the HelloPay Platform:

3.5.1. items or substances which are illegal and/or prohibited by Applicable Laws;

3.5.2. Weapons or ammunition of any kind;

3.5.3. bars, Cocktail Lounges, Discotheques, Nightclubs and Taverns;

3.5.4. alcoholic beverages;

3.5.5. Merchandise and Services: The customer is a financial institution;

3.5.6. Adult Content (services and Websites);

3.5.7. Cryptocurrency;

3.5.8. any item which may violate any person’s rights (including intellectual property rights);

3.5.9. any other items which HelloPay deems to be dangerous or inappropriate, acting in our sole discretion; and

3.5.10. any other industries as restricted by the relevant Card Schemes.

3.6. By using and continuing to use the HelloPay Platform, including the POS Device, or any one of the functionalities within the HelloPay Platform, the Merchant hereby consents to receive push notifications, marketing material and messages on both the POS Device and any associated applications on the HelloPay Platform.

4.1.1. Rental: The Merchant may not defer or withhold payment of any rental or fee or amount due to HelloPay, whether on the basis of setoff or counterclaim or for any other reason.

4.1.2. Should HelloPay terminate this Merchant Agreement and the Merchant disputes such termination, the Merchant must continue to pay to HelloPay all rentals (including VAT) on the due date. HelloPay’s acceptance of these rentals will be without prejudice to its right of termination, though disputed, or any other claim or right that it may have in relation to the Merchant.

4.1.3. The basic monthly rental will be deducted from the Merchant card swipes. Should there be insufficient funds to settle HelloPay, the monthly rental will be debited from the nominated bank account on the last day of every month, which debit is hereby irrevocably authorised by the Merchant. HelloPay will, at its sole discretion, be entitled to amend the rental amount on giving the Merchant prior notice of the new rental.

4.1.4. Purchase: The Merchant may purchase the device by making a once-off payment when registering on the Merchant Platform.

4.2. The Merchant acknowledges that the Merchant’s POS Device will only be linked upon being successfully KYC’d and screened.

4.3. The Merchant and the Merchant’s contracted agents warrant that the Merchant have not been terminated from settlement of Card Swipes by any association, financial institution or determined to be in violation of any of the rules and regulations of the Card Associations unless disclosed to us in writing.

4.4. The Merchant agrees not to use the Merchant’s own merchant accounts for personal Card Transactions;

4.5. The Merchant agrees to conduct regular monitoring of the Merchant’s sponsored business with a view to inhibiting any illegal activity or changes in business activities;

4.6. Invalid Transaction: The Merchant shall not process Card Swipes that the Merchant knows or suspects to be (i) fraudulent or (ii) not authorised by the cardholder or (iii) illegal or (iv) prohibited or non-compliant with the obligations set out in the association and/or Payments Association of South Africa Rules (a referred to as an “Invalid Transaction”). With respect to this requirement, the Merchant will be responsible for the actions of the Merchant’s employees while acting in the Merchant’s employ or in the course of this employment or on the occasion or for his employment, even if the employee has exceeded the powers conferred upon him or has even acted contrary to or in breach of the order or instructions given to him by the Merchant or the Merchant’s officers or agents. The Merchant must be able to prove, by evidence of a terminal capture that the Card was present at the time of a sale. Should a Transaction be regarded as an “Invalid Transaction” or incomplete, HelloPay has the right to charge each such Invalid Transaction or incomplete transaction back to the Merchant and then the Merchant will be held liable for all losses incurred as a result of the “Invalid Transaction” or incomplete Transaction. HelloPay further has the right to immediately terminate the relevant Merchant Agreement.

4.7. Unless required by law, the Merchant shall not, under any circumstances retain any cardholder data, including CVV/CVC/4DBC number, the expiry date of the card or the card number. The Merchant may not sell, purchase, provide or otherwise disclose Transaction information or other personal information to anyone. The Merchant must keep all Platforms and media containing information in a manner which is secure and have in place sufficient and continuous safeguards so as to prevent access by or disclosure to any unauthorised party. The Merchant must destroy all information not necessary to retain, in a manner that will render the data unreadable.

4.8. EMV chip card transactions must be processed as follows:

4.8.1. The cardholder must be present when the card is being processed and verify the transaction by entering his/her valid PIN into the POS Device.

4.8.2. Transactions may be processed online or offline by inserting the chip card into the POS Device.

4.8.3. The Merchant must ensure that chip card transactions are performed in a secure environment;

4.9. An EMV transaction will be incomplete:

4.9.1. if the card is taken out of the slot before the transaction is completed; and/or

4.9.2. if the chip technology fails during the transaction; and/or

4.9.3. if the telecommunications are interrupted during the transaction flow.

4.10. Contactless payments:

4.10.1. maybe processed only on a contactless POS Device;

4.10.2. must be processed online;

4.10.3. cannot be charged back and any incorrect contactless payment must be refunded to the cardholder;

4.10.4. are subject to a floor limit which may be reviewed from time to time at HelloPay’s discretion;

4.10.5. over a prescribed amount will require the cardholder to enter a PIN.

4.11. If an account compromise occurs, the Merchant must notify HelloPay immediately.

4.12. The Merchant warrants that the business it operates for purposes of POS Device, is a bona fide business, as disclosed to HelloPay and verified by HelloPay during the onboarding process.

4.12. The Merchant warrants that the business it operates for purposes of POS Device, is a bona fide business, as disclosed to HelloPay and verified by HelloPay during the onboarding process.

4.13. The Merchant shall ensure that it complies with the Payment Card Industry Data Security Standards.

4.14. The Merchant acknowledges that it is specifically prohibited from engaging in any of the following brand-damaging activities:

4.14.1. An increase in card-not-present Transactions, a range of illegal products, and deceptive marketing practices that expose HelloPay, its Affiliates or its acquiring banks to regulatory, financial, litigation, and brand risk. Threats come from a variety of sources including but not limited to:

4.14.2. The sales of infringing products;

4.14.3. Unlawful sales of pharmaceutical products;

4.14.4. Unlawful sales of tobacco and electronic smokeless tobacco products;

4.14.5. Prohibited gambling activities;

4.14.6. Engaging in activities or practices that are deceptive or misleading or that reflect unfavourably upon the good name, goodwill, reputation or image of any of the Associations or that in any way are contrary to applicable law;

4.14.7. Transactions related to internet adult digital content.

4.15. The Merchant Undertakes To:

4.15.1. accept all Cards presented by a customer for goods and/or services;

4.15.2. comply with all HelloPay’s rules, manuals, policies and processes related to the HelloPay Platform;

4.15.3. provide HelloPay with all reports and documents or information as may be required in terms of any applicable laws;

4.15.4. make sure that all the Merchant’s personnel who process Transactions are sufficiently trained and skilled to do so;

4.15.5. not process any Transaction that does not relate to a genuine and legal Transaction for goods and/or services;

4.15.6. only process Card Swipes that are in amounts denominated in South African Rand;

4.15.7. accept each valid Card that is presented to it by the rightful cardholder in payment for goods and/or services;

4.15.8. not add any extra charges or set any minimum or maximum Transaction amount for any particular Transaction;

4.15.9. retain a copy of both the signed and the unsigned sales voucher along with the receipt for a period of at least 180 (one hundred and eighty) days from the date of the Transaction;

4.15.10. obtain our approval to relocate the POS Device to an address other than what has been registered on the Merchant’s profile;

4.15.11. only use the POS Device to process Transactions for the entity whose details are registered on the profile. HelloPay may hold the Merchant liable for any claims made against us or losses incurred, if the Merchant allows other non-contracted entities and/or third parties to use the POS Device;

4.15.12. ensure that each voucher issued by the Merchant carries the Card Swipe date and includes sufficient details to identify the Card Swipe;

4.15.13. not sell, store, provide, exchange or divulge any information relating to the Card and/or the customer;

4.15.14. not allow a customer to split Transactions;

4.15.15. not charge parts of a single Transaction on different dates in order to bypass authorisation or take any other measures that would have this effect;

4.15.16. a Floor Limit for Card Swipes is specific to the Merchant’s risk profile and will be determined and applied by HelloPay as decided from time to time.

5.1. The Merchant accepts the fees, charges and rates as updated from time to time and agrees that the use of the POS Device will be subject to the fees as provided for by HelloPay.

5.2. The Merchant agrees that all payments will be made by deducting the amounts from the Merchant’s daily Card Swipes. Should that be insufficient to settle HelloPay, HelloPay is entitled to debit from the Merchant’s HelloPay designated Bank Account to cover the fees, charges or other amounts due in terms of this Merchant Agreement.

5.3. Should the Merchant not have sufficient funds in the Merchant’s HelloPay nominated Bank Account, the Merchant hereby authorises HelloPay to deduct such fees, charges or other amounts due in terms of this Merchant Agreement, from the Merchant’s secondary Bank Account by way of a debit order.

6.1. The Merchant irrevocably authorises HelloPay to debit the nominated Bank Account, as referred to in the application form, with the following:

6.1.1. The Merchant’s commission.

6.1.2. Adjustments for any errors, whether on the part of the Merchant or HelloPay.

6.1.3. Reversals of invalid Transactions.

6.1.4. Adjustments in respect of fraudulent entries/items.

6.1.5. Any dishonoured deposits.

6.1.6. Any penalty levied by a Card scheme for the contravention of its regulations and/or operational risk parameters.

6.1.7. All HelloPay service and other charges prevailing at the time, including stamp duties, VAT, Chargeback fees, transaction fees, stationery fees, setup fees and other charges relating to this Merchant Agreement.

6.1.8. Equipment rental, insurance and other rental-related fees.

6.1.9. Chargebacks.

6.1.10. POS Device rental, if applicable.

6.2. HelloPay is authorised to debit any other account of the Merchant held at any of HelloPay’s Affiliates, including Hello Paisa (Pty) Ltd, or any other financial institution with items listed in clause 6.1 above in the event that debits to the nominated Bank Account are unsuccessful.

7.1. HelloPay shall deliver the POS Device to the Merchant and, where necessary, assist the Merchant with installation and sufficient technical and commercial assistance in respect of training, at its own cost. Should the representative/agent insist on the Merchant paying a fee, the Merchant agrees to hold HelloPay harmless and call HelloPay merchant support on 010 109 5251.

8.1. HelloPay will provide the VAS products, as offered from time to time, to the Merchant for resale to the Merchant’s customers. The products are sold to the Merchant at face value less the Merchant’s commission. The Merchant thus earns immediate commission on the sale of the VAS product.

8.2. The Merchant acknowledges that the Products and/or conditions of sale attached to the Products may originate from the third-party utility providers. HelloPay may therefore be obligated by various terms and conditions enforced by such third-party utility providers, and HelloPay is consequently entitled to add, remove and/or amend any Product listed on the HelloPay Platform, conditions and/or procedures attached to the sale of the Products to consumers, any feature or benefit on/to the HelloPay Platform as well as the fees and commissions applicable to the sale of the Products. In the event that the Merchant does not agree to any amendments, the Merchant’s sole remedy is to terminate the Merchant Agreement by formal notification as contemplated in clause 1.5 herein.

9.1. Use of the HelloPay Platform by the Merchant shall be at the sole risk of the Merchant and the Merchant hereby indemnifies and holds HelloPay harmless against any expense, liability, loss, claim or proceeding whatsoever arising out of or in connection with the use of the HelloPay Platform by the Merchant and/or any third party.

9.2. The HelloPay Platform shall at all times remain the property of HelloPay.

9.3. Risk in and to the POS Device shall pass to the Merchant upon delivery of the POS Device to the Merchant who shall be liable for any loss, theft, or damage to the POS Device. HelloPay reserves the right to deduct any monies owed to the Merchant to settle such loss up to a value not exceeding the market value of the POS Device.

10.1. Any transaction may be charged back to the Merchant by reason of:

10.1.1. a customer dispute;

10.1.2. a transaction reversal;

10.1.3. actual or suspected lack of authorisation;

10.1.4. unlawful or suspicious transactions; or

10.1.5. Transactions processed outside the terms of this Merchant Agreement.

10.2. The Merchant must request Transaction information from HelloPay if a customer disputes a Transaction or raises a Chargeback.

10.3. The Merchant will be liable to HelloPay for the full amount of the Chargeback amount as well as any associated fees, penalties and charges.

10.4. HelloPay will debit the transaction amount against the Merchant’s nominated bank account or any other bank account holding sufficient credit in the Merchant’s name.

10.5. HelloPay may hold the transaction amount in advance for potential Chargebacks until the Chargeback process has been completed.

10.6. The Merchant agrees to assisting HelloPay with investigating any transactions and to HelloPay sharing personal information with the relevant customers, issuers, financial institutions and regulators as required to investigate a Chargeback.

10.7. The Merchant agrees and accepts full Chargeback liability for all fraud incurred on any card at its establishment, whether or not the Chargeback is regarded as being the result of fraudulent card usage.

11.1. The Merchant must at all times when processing card Transactions comply with PCI DSS and therefore must adhere to the following:

11.1.1. not copy or store any customer card data in any form whatsoever;

11.1.2. will under no circumstances tamper with or attempt to open the POS Device;

11.1.3. will inspect the POS Device from time to time and that if the Merchant detects any evidence of tampering with the POS Device, the Merchant will immediately inform HelloPay and furthermore that the Merchant will not attempt to tamper with or open a POS Device themselves;

11.1.4. will ensure that the whereabouts of the POS Device is known to the Merchant at all times and that in the event of one being lost, the Merchant will immediately inform HelloPay;

12.1. The Merchant is the only authorised user of the accounts and/or applications registered to the Merchant’s name, within the HelloPay Platform. The Merchant is not permitted to allow any other person to use the Merchant’s accounts within the HelloPay Platform.

12.2. The Merchant confirms that if the correct user details (e.g. password, biometrics or code) are entered when any of the Merchant’s accounts within the HelloPay Platform are accessed, HelloPay will assume that the Merchant is the person accessing the Merchant’s account(s) and the Merchant will be responsible for such use and any Transactions related thereto.

12.3. The Merchant must notify HelloPay immediately if the Merchant discovers or suspects that the Merchant’s account(s) has been compromised or suspects unauthorised use thereof. Until the Merchant does so, the Merchant’s account(s) will not be secure and the Merchant will be liable for the use of the Merchant’s account(s) and any Transactions related thereto.

12.4. If HelloPay suspects that the Merchant’s account(s) has been compromised, or suspects unauthorised use of the HelloPay Platform, suspects Fraudulent use or Transactions, or use in breach of this Merchant Agreement, HelloPay may communicate with the Merchant via the Merchant’s registered email address or via other secure means agreed between the Merchant and HelloPay. HelloPay may need to verify the Merchant’s identity as part of this process.

13.1. The Merchant acknowledges and agrees to utilise the HelloPay Platform in good faith and to utilise the HelloPay Platform solely as set out herein.

13.2. Where the Merchant breaches any of the warranties herein, and/or utilises the HelloPay Platform or any functionality therein, for any other purpose or in a manner which contravenes the Merchant Agreement, its duty of good faith to HelloPay and/or HelloPay’s reputation, then HelloPay shall be entitled to, amongst other things:

13.2.1. suspend the operation of the POS Device;

13.2.2. terminate the Merchant Agreement with immediate effect;

13.2.3. suspend and/or terminate the Merchant’s use of the HelloPay Platform or any functionality therein; and/or

13.3. Contravention of the Merchant’s duty of good faith to HelloPay and/or HelloPay’s reputation shall include circumstances where, regardless of whether the Merchant financially gains from his/her/its conduct, the Merchant:

13.3.1. contravenes any Applicable Law, HelloPay’s internal policies and/or the Merchant Agreement;

13.3.2. interferes with HelloPay’s or any third party’s rights;

13.3.3. commits or is suspected of committing fraud or any other suspicious activity, whether intentionally or negligently, and whether or not proven guilty;

13.3.4. commits any abuse, misuse, or unauthorised use of the goods and/or services provided by HelloPay.

13.4. The Merchant warrants that nominated account details provided to HelloPay, are true and correct, are for bank accounts which are legitimate and not fraudulent, and that payments liquidated into that Bank Account are final and irrevocable. For the avoidance of doubt, HelloPay will not be liable for any erroneous payments to the Merchant’s Bank Account, nor for any damage, loss or the like arising from an erroneous payment, incorrect bank details and/or a fraudulent Bank Account.

14.1. To the fullest extent permitted by law, HelloPay disclaims and excludes all representations, warranties and guarantees, whether implied or express and whether arising by law, contract or a course of dealings between the Merchant and HelloPay.

14.2. HelloPay does not guarantee the continuous or uninterrupted operability of the HelloPay Platform and/or POS Device. There may be periods of downtime for maintenance and upgrade work (whether on a scheduled or unscheduled basis). HelloPay is not responsible for the security of information that the Merchant chooses to communicate with HelloPay while it is being transmitted or for any data lost during transmission.

14.3. Subject to the above, in no event shall HelloPay, our agents, officers, employees or sub-contractors be liable to the Merchant for any loss or corruption of data, software or hardware; loss of anticipated savings; loss of profit or economic losses; indirect, special or consequential losses.

14.4. HelloPay will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations that are caused by any act or omission of a third party or events outside our reasonable control.

14.5. The Merchant acknowledges and agrees that it shall be liable for:

14.5.1. the risk of any loss or damage, suffered as a result of using the HelloPay Platform and which loss is occasioned as a result of any theft, attempted theft, fraudulent tampering, attempted tampering, fraud, attempted fraud, vandalism, theft of and/or attempts to access, intercept and steal personal details and/or information or cash from the Merchant or any third party;

14.5.2. the risk of any loss or damage suffered due to the theft of the Merchant’s consumer’s banking details;

14.5.3. the risk of any loss or damage suffered due to the theft of the Merchant’s personal details provided by the Merchant in respect of HelloPay Platform;

14.5.4. risk of any loss or damage arising from or to the POS Device;

14.5.5. the risk of any loss or damage, suffered by the Merchant, third party or its consumers due to any unauthorised interception and/or monitoring of information by a third party of the Merchant, its consumers, or financial institution information;

14.5.6. the risk of any loss or damage, suffered by the Merchant or its consumers due to any failed, late or delayed Transactions, save where either the Merchant or its consumer can show that any loss or damage was due to the gross negligence of HelloPay and/or a defect in the HelloPay Platform which has been caused solely by HelloPay and subject always to the provisions and defences permitted under the CPA;

14.5.7. the risk of any damage in the case of a network breakdown, system failure or equipment malfunction or damage to facilities caused by power failures or similar events or loss or damage caused by events beyond HelloPay’s control;

14.5.8. the risk of any loss, damage or claims arising out of any Transactions other than electronic Transactions or Transactions not prescribed in the Merchant Agreement, suffered by the Merchant in the event that the Merchant processes manual Transactions.

15.1. The Merchant must at all times comply with Applicable Laws and such HelloPay internal policies.

15.2. The Merchant indemnifies and holds HelloPay harmless against any loss or liability it may suffer as a result of non-compliance by the Merchant.

15.3. The Merchant acknowledges that it is illegal to overcharge for any Product and therefore undertakes not to upsell any Product. The Merchant hereby indemnifies HelloPay against any claims, loss or expense incurred by HelloPay as a result of the Merchant’s failure to comply with this undertaking.

15.4. The Merchant indemnifies HelloPay and its Affiliates against all risk, loss, damage or claims arising out of the processing of Transactions and/or its use of the HelloPay Platform. For the avoidance of doubt, the Merchant assumes all liability and all risk associated with Transactions and its use of the HelloPay Platform and POS Device, save where the Merchant can prove that any loss or damage was due to the gross negligence or wilful misconduct of HelloPay or which has been caused solely by HelloPay.

16.1. The Merchant may not and shall not transfer or assign any or all of its rights or obligations under this Merchant Agreement without the prior written consent of HelloPay.

16.2. The Merchant may not and shall not hand over the POS Device(s) or its use of the HelloPay Platform to any third party without the prior written consent of HelloPay.

17. PERSONAL INFORMATION

17.1. By agreeing to the terms of this Merchant Agreement, the Merchant hereby gives HelloPay consent to process the Merchant’s Personal Information as provided for herein for the purpose of HelloPay performing the obligations related to the vetting the Merchant, credit checks and product offering. The processing of the Merchant’s Personal Information shall be done in accordance with the relevant data protection legislation applicable to the Merchant’s use of the HelloPay Platform, including the Protection of Personal Information Act, 2013.

17.2. HelloPay will process Personal Information belonging to the Merchant from time to time in connection with the Merchant’s use of the HelloPay Platform. The Merchant hereby consents to us (including our principals, agents, employees and contractors) processing such Personal Information.

17.3. In processing the Merchant’s Personal Information, HelloPay undertakes to:

17.3.1. comply with all Data Protection Legislation;

17.3.2. use best commercial endeavours to prevent a data security breach;

17.3.3. maintain appropriate technical and organisational security measures to protect the security of Personal Information, having considered the:

17.3.3.1. nature of the Personal Information;

17.3.3.2. the harm that might result from loss of the Personal Information;

17.3.3.3. state of technological development;

17.3.3.4. cost of implementing any measures; and

17.3.3.5. notify the Merchant on becoming aware of any data security breach pertaining to the Merchant’s Personal Information.

17.4. To the extent that the Merchant is required to process Personal Information belonging to us and/or to any third parties pursuant to the Merchant’s use of the HelloPay Platform, the Merchant must ensure the Merchant does so only in accordance with applicable Data Protection Legislation. The Merchant must not, by act or omission, place us in violation of any Data Protection Legislation, and the Merchant indemnifies us to the fullest extent permitted by law for any loss or damage which is caused to any person as a result of the Merchant’s non-compliance with applicable Data Protection Legislation.

17.5. HelloPay may process the Merchant’s Personal Information for, amongst others, the following reasons:

17.5.1. provide the HelloPay Platform to the Merchant;

17.5.2. provide the POS Device to the Merchant;

17.5.3. to conduct a credit enquiry about the Merchant with any credit bureau or credit provider;

17.5.4. for our business administration purposes;

17.5.5. to improve the HelloPay Platform; and

17.5.6. to market our products and services to the Merchant, in accordance with applicable Data Protection Legislation.

17.6. HelloPay may store some information (commonly known as a “cookie”) on the Merchant’s device when the Merchant visits or accesses the HelloPay Platform. This enables us to recognise the Merchant during subsequent visits. The type of information gathered is non-personal (such as the IP address of the Merchant’s computer, the date and time of the visit, which pages were browsed and whether the pages have been delivered successfully). Apart from merely establishing basic connectivity and communications, HelloPay may also use this data in aggregate form to develop customised services tailored to the Merchant’s individual interests and needs. It is possible (depending on the browser the Merchant is using), to be prompted before accepting any cookies, or to prevent the Merchant’s browser from accepting any cookies at all. However, this may cause certain features of the HelloPay Platform to be inaccessible.

18.1. All Intellectual Property will be the sole and exclusive property of HelloPay. The Merchant acknowledges, and warrants in favour of HelloPay, that the Merchant does not, and will not acquire, any right, title, or interest in and to the Intellectual Property.

18.2. The Merchant will not use the Intellectual Property except as expressly set out in the Merchant Agreement. The Merchant may not modify, sell, copy, sub-license or allow third-party access to, any of the Intellectual Property.

18.3. The Merchant must ensure that all promotional and advertising material as may be provided by HelloPay to the Merchant from time to time, is always displayed in accordance with HelloPay’s directions and requirements.

19.1. The Merchant shall be deemed to be in breach of the Merchant Agreement if:

19.1.1. the Merchant breaches any of the terms of the Merchant Agreement;

19.1.2. the Merchant does not pay the amounts owed to HelloPay under the Merchant Agreement on time (including any penalties owing);

19.1.3. any judgment or order is made against the Merchant;

19.1.4. The Merchant has provided HelloPay with false, fraudulent or incorrect information (“misrepresentation”), which information was material to HelloPay entering into the Merchant Agreement with the Merchant.

19.1.5. a creditor attaches or takes possession of, or a distress, execution, sequestration or other similar process for the enforcement of creditors’ rights is levied or enforced upon or against any material part of the assets, rights or income of the Merchant; and/or

19.1.6. the Merchant becomes insolvent or stops or suspends payment of, or admits inability to pay, its debts generally as and when they fall due or is unable to pay its debts as and when they fall due or commences negotiations with its creditors generally with a view to the general readjustment or re-scheduling of all or part of its indebtedness to such creditors or proposes or enters into any composition or other arrangement for the benefit of its creditors generally, or proceedings are commenced in relation to the Merchant under any Applicable Law, internal policies, regulation or procedure relating to the reconstruction or readjustment of debts.

19.2. Consequences of Default: In the event that the Merchant is in default of the Merchant Agreement, irrespective of any clause to the contrary in the Merchant Agreement, HelloPay reserves the right to do the following:

19.2.1. withhold settlement of Transactions until such time as that the default has been rectified;

19.2.2. hold the Merchant liable and debit the Merchant’s Nominated Bank Account notwithstanding that such account may be held at another bank; apply set-off or net settle amounts owing by the Merchant to HelloPay; and

19.2.3. terminate the Merchant Agreement immediately, without prior notice to the Merchant and without prejudice to any other rights in law.

19.3. HelloPay may further rely on any of the remedies available to it in law.

20.1. HelloPay shall be entitled to terminate this Merchant Agreement, at any time and with immediate effect, without prejudice to any other rights it may have hereunder or in law, by providing the Merchant with notice of such termination if:

20.1.1. any judgment is granted against the Merchant or the Merchant’s guarantor or surety and such judgment is not satisfied within 15 (fifteen) Business Days thereafter or any of the Merchant’s guarantor’s and/or surety’s asset(s) are attached under a warrant of execution;

20.1.2. the Merchant is sequestrated, placed under Debt Review or administration, or other than for the purposes of reconstruction or amalgamation, placed under voluntary or compulsory winding up or insolvency, or receivership or under the equivalent of any of the foregoing;

20.1.3. The Merchant makes any arrangement or composition with the Merchant’s creditors generally, or ceases or threatens to cease to carry on business or disposes of any of the Merchant’s material assets other than in the normal course of business;

20.1.4. there is any change in ownership in the Merchant’s business and the Merchant has not advised HelloPay in writing in accordance with the Merchant Agreement;

20.1.5. if the Merchant sells or otherwise transfers the whole or a majority of the Merchant’s assets;

20.1.6. a substantial part of the Merchant’s property becomes subject to levy, seizure, assignment or sale for or by any creditor or governmental agency;

20.1.7. the Merchant takes any action intended to commence Business Rescue proceedings, Debt Review or be placed under administration;

20.1.8. there is a change in classification of the Merchant’s business i.e., the nature of the Merchant’s business changes and the Merchant omitted to advise HelloPay in writing of such change;

20.1.9. if the Merchant or the Merchant’s guarantor or surety is: provisionally or finally sequestrated/liquidated (voluntarily or compulsorily); placed under Business Rescue; or, being a partnership, dissolved;

21.1. HelloPay is entitled to cancel, terminate, or suspend the Merchant’s use of the HelloPay Platform in respect of all Transactions or selected types of transactions immediately, or any combination of these actions, as may be permissible in law, without prejudice to any of our other rights (that is, without barring or limiting any future action), if:

21.1.1. the Merchant has breached any of the terms of this Merchant Agreement or the provisions of any other of these terms between HelloPay and the Merchant;

21.1.2. the Merchant fails and/or refuses to abide by the terms of this Merchant Agreement or other instructions from HelloPay;

21.1.3. The Merchant does not pay the amounts owing to HelloPay under the Merchant Agreement on time (including any penalties owing);

21.1.4. HelloPay has reason to believe that the HelloPay Platform has been or is likely to be misused;

21.1.5. HelloPay suspects any illegal and/or fraudulent use of the HelloPay Platform and/or its functionalities;

21.1.6. the Merchant has provided HelloPay with false or inaccurate information;

21.1.7. HelloPay is required to, by law, do so; or

21.1.8. HelloPay needs to protect its interests or the interests of a third party.

21.2. HelloPay reserves the right to terminate or suspend the Merchant’s access to and use of the HelloPay Platform upon 7 days written notice, without any liability to the Merchant or any third party.

22.1. Informal dispute resolution: Prior to the initiation of formal dispute resolution procedures, the Parties shall first attempt to resolve their dispute informally as follows:

22.2. Upon the written request of a party, any dispute that arises between the parties shall be referred to a designated internal party. The parties shall discuss the problem and attempt to resolve the dispute without the necessity of any formal proceeding.

22.3. Should the parties not resolve the dispute within a period of 14 (fourteen) days from the date of receipt of the written request, either party may refer the matter for formal dispute resolution as set out in clause 22.6.

22.4. Formal proceedings for the resolution of a dispute may not be commenced until the earlier of the parties referred to above concluding in good faith that amicable resolution through continued negotiation of the matter does not appear likely, or 14 (fourteen) days after the matter has been referred to them.

22.5. Proceedings in terms of this clause shall not be construed to prevent a party from instituting formal proceedings earlier to avoid the expiration of any applicable limitations period, or to preserve a superior position with respect to other creditors.

22.6. Formal Dispute Resolution: Save in respect of those provisions of this Merchant Agreement, which provide for their own remedies, which would be incompatible with arbitration, a dispute that arises in regard to –

22.6.1. the interpretation of; or

22.6.2. the carrying into effect of; or

22.6.3. any of the parties’ rights and obligations arising from; or

22.6.4. the termination or purported termination of the Merchant Agreement or arising from the termination of the Merchant Agreement; or

22.6.5. the rectification or proposed rectification of the Merchant Agreement or on any other matter arising from the Merchant Agreement, (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction), shall be submitted to and decided by arbitration.

22.7. That arbitration shall be held –

22.7.1. at a seat in Pretoria;

22.7.2. in accordance with the commercial rules of the Arbitration Foundation of Southern Africa (AFSA);

22.7.3. by 1 arbitrator appointed by the Foundation;

22.7.4. in the English language.

22.8. The arbitrator shall be, if the matter in dispute is principally –

22.8.1. a legal matter, an impartial practising advocate of not less than 15 (fifteen) years’ standing, or an impartial practising attorney of not less than 15 (fifteen) years’ standing;

22.8.2. an accounting matter, an impartial practising chartered accountant of not less than 15 (fifteen) years’ standing;

22.8.3. any other matter, an independent person agreed upon between the Parties.

22.9. The parties shall keep the evidence in the arbitration proceedings and any order made by any arbitrator confidential unless otherwise contemplated herein.

22.10. The arbitrator shall be obliged to give his award in writing fully supported by reasons.

22.11. The provisions of this clause are severable from the rest of the Merchant Agreement and shall remain in effect even if the Merchant Agreement is terminated for any reason.

22.12. The arbitrator shall have the power to give default judgment if any party fails to make submissions on due date and/or fails to appear at the arbitration.

23.1. HelloPay reserves the right to make changes to these terms and conditions forming part of the Merchant Agreement as and when HelloPay deems it necessary in its sole discretion.

23.2. HelloPay may at its discretion notify the Merchant of any material change(s), including details of when any such changes will come into effect. It is the Merchant’s responsibility to keep up to date and comply with the latest version of these terms and conditions by regularly checking the website/App/Merchant’s Portal from time to time.

23.3. The continued use of the HelloPay Platform and/or POS Device, after any amendment to these terms and conditions forming part of the Merchant Agreement, constitutes the Merchant’s acceptance of such amended terms and conditions. If the Merchant does not accept the updated terms and conditions forming part of the Merchant Agreement, the Merchant must immediately stop using the HelloPay Platform.

24.1. If HelloPay fails to enforce any of its rights hereunder, that does not result in a waiver of that right.

24.2. If any provision of the Merchant Agreement is found to be unenforceable, all other provisions shall remain unaffected.

24.3. The Merchant Agreement may not be varied by the Merchant except with HelloPay’s prior express written consent.

24.4. The Merchant Agreement and any document expressly referred to therein represents the entire agreement between the Merchant and HelloPay in relation to the subject matter hereof. If there is a conflict between the English version of the document and any other translation, the English version will take precedence.

24.5. Upon request, HelloPay will provide the Merchant with a copy of this Merchant Agreement or any part of the information contained herein. The Merchant can download these terms from the website/App/Merchant Portal at any time.

24.6. No third party has the right to enforce any terms of this Merchant Agreement.

24.7. The laws of the Republic of South Africa shall govern the interpretation, validity and effect of the Merchant Agreement and the use of the HelloPay Platform notwithstanding the Merchant’s domicile, residence or physical location.

24.8. The Merchant hereby consents and submits to the jurisdiction of The High Court of South Africa, Gauteng Division in any action or proceeding instituted under or related to this Merchant Agreement.

25.1. The User can contact HelloPay on 010 109 5251. Alternatively, the User can contact HelloPay on the Whatsapp line on 065 106 3876. HelloPay will communicate with the User in English.

25.2. The Merchant may, alternatively, send an email to [email protected].