1.1 Kazang Connect, a division of Main Street 1723 (Pty) Ltd (“Kazang”) operates an electronic vending platform, which inter alia, facilitates cashless payment instructions and/or payment collection services through its network of vendors (“Kazang Vendors”). The party detailed in the signature schedule (“Schedule”) to which these terms and conditions are attached, referred to herein as the “Supplier” provides goods and/or services to the Kazang Vendors.
1.2 These terms and conditions read together with the Schedule are referred to as the “Agreement” and Kazang and the Supplier are referred to as the “Parties” and either one is a “Party”.
1.3 In terms of this Agreement, Kazang shall provide the “Payment Service” to the Supplier, in terms of which Kazang shall facilitate “Transactions”, being cashless payment instructions initiated by the Supplier, and whereby Kazang pays the Supplier on behalf of the Kazang Vendor for the goods and/or services provided by the Supplier to the Kazang Vendor in question. The Parties agree as set out below.
2 APPOINTMENT AS AGENT
2.1 The Supplier hereby appoints Kazang for the duration of this Agreement as its agent pursuant to the Directive, 1 of 2007, within the National Payment System in Respect of Payments to Third Persons issued by the National Payment System Division of the SARB and published under General Notice 1110 in Government Gazette 30261 of 6 September 2007 or any further directive/s in respect of Payments to Third Persons (the “Directive”) applicable to the Payment Service.
2.2 This appointment shall apply to all Kazang Vendors who purchase goods and/or services from the Supplier and who wish to make use of the Payment Service. Kazang shall not be obliged to obtain a separate authority from the Supplier in respect of any one or more Kazang Vendor/s for the use of the Payment Service.
This Agreement shall commence on the date on which the last of the Parties signs the Schedule (“Signature Date”) and shall continue indefinitely with either Party being entitled to terminate this Agreement, for any reason whatsoever, by providing the other Party with not less than 1 (one) months’ written notice.
4 IMPLEMENTATION AND PROCESS
4.1 Kazang shall procure that its system (the “Kazang System”) is developed and implemented to properly and effectively facilitate the Payment Service and enable the submission, communication, processing, authorisation and recording of the Transactions in a secure prompt and efficient manner, including compliance with applicable laws.
4.2 Kazang shall ensure that where Transactions are received on the Kazang System, Kazang shall make payment, on behalf of the Kazang Vendor to the Supplier, of the “Transaction Amounts” which represent the monetary amount due by the Kazang Vendor to the Supplier in consideration for the supply of goods and/or services to the Kazang Vendor.
4.3 The Supplier shall co-operate and provide Kazang with all information, data, and know-how applicable to the Payment Service and/or Transactions so that Kazang is able to develop and implement the Kazang System to accommodate the submission, communication, processing, authorisation and recording of the Transactions properly and effectively.
4.4 The Supplier shall on an on-going basis provide Kazang with its relevant updated details and payment reference information to be used upon initiation of the payment instruction, which shall be populated into the Kazang System.
4.5 Kazang shall not be responsible for validating and/ or verifying the accuracy of the relevant payment reference information provided by the Supplier. Reconciliation of the payments received from Kazang Vendors by way of the Payment Service shall be the sole responsibility of the Supplier. Any dispute in this regard shall remain between the Kazang Vendor and the Supplier in an independent forum.
4.6 The authorisation of the Transaction is subject to the Kazang Vendor having the required Transaction Amount available in credit by depositing funds into Kazang’s bank account and Kazang loading such funds onto its e-wallet housed on the Kazang System. Kazang is expressly indemnified against any loss, expense or damages incurred by the Supplier as result of such Transaction being declined as a result hereof. Any dispute in this regard shall remain between the Kazang Vendor and the Supplier in an independent forum.
5 THE SUPPLIER OBLIGATIONS
5.1 Without derogating from those obligations as otherwise provided for in this Agreement, the Supplier shall be responsible for and undertakes to.:
5.1.1 Manage the supply of the goods and/or services to the Kazang Vendors;
5.1.2 Manage all the registration, accounts, statements, invoicing, delivery notes/receipts or otherwise between the Supplier and the Kazang Vendor in respect of the goods and/or services delivered to the Kazang Vendors, including any complaints, queries and/or disputes in relation to the delivery and keep complete records of all such documents for at least 5 (five) years; and
5.1.3 Maintain all licences, authorisations, permissions, and consents (including from any authorities or principal banks) as may be required by applicable law to authorise Kazang to process, store and share Transactions hereunder, and upon request, provide Kazang with written proof thereof, and immediately notify Kazang in writing of expiry or termination of any such licence, authorisation, permission, or consent.
6 KAZANG’S OBLIGATIONS
6.1 Without derogating from those obligations as otherwise provided for in this Agreement, Kazang will be responsible for and undertakes to:
6.1.1 Procure the processing, facilitating and submission of Transactions by the Kazang Vendors through the Kazang System in accordance with the terms of this Agreement;
6.1.2 Make available to the Supplier, on a daily basis, up to date reports reflecting the total Transaction Amounts pursuant to the Transactions authorised by the Kazang System on the previous day;
6.1.3 Retain records, for a period of 5 (five) years, of all Transactions, including the date, amount, and beneficiary of the Transactions.
7 TRANSACTION FEE
7.1 In consideration for the service provided by Kazang in terms of the Agreement, the Supplier shall pay a fee per Transaction processed by Kazang through the Kazang System (“Transaction Fee”).
7.2 The Transaction Fee and Transaction Amount are exclusive of all applicable value added tax.
7.3 The Transaction Fee due to Kazang shall be based on each Transaction authorised by the Kazang System and is reflected on the Schedule. The Transaction Fee is subject to review by Kazang from time to time and shall escalate annually with effect from the 1st of March each year in accordance with the Consumer Price Index (“CPI”) for the Republic of South Africa (all areas) as published by Statistics South Africa or its successor-in-title from time to time. Kazang shall be entitled in its sole discretion to amend the Transaction Fee upon notice to the Supplier.
7.4 The Transaction Amounts and Transaction Fee shall be payable in terms of either the ‘gross settlement method’ or the ‘net settlement method’, as selected and agreed upon by the Parties on the Schedule.
7.5 In terms of the gross settlement method:
7.5.1 Kazang shall, on a daily basis, make payment and transfer to the Supplier’s bank account all Transaction Amounts accumulated during the previous day, which has been authorised by the Kazang System pursuant to the Transactions.
7.5.2 Kazang shall send the Supplier, at the end of each month, an invoice reflecting the total Transaction Fee amount due to Kazang in respects of the Transactions authorised by the Kazang System for that month in accordance with the reports referred to in clause 6.2, calculated from the first to the last day of that month.
7.5.3.The Supplier shall, within thirty days, after receipt of the invoice as referred to in clause 7.5.2, make payment and transfer to Kazang’s bank account, such amount due to Kazang as provided on the invoice.
7.5.4 In terms of the net settlement method:
7.5.5 Kazang shall, on a daily basis, make payment and transfer to the Supplier’s bank account all Transaction Amounts accumulated during the previous day, which has been authorised by the Kazang System pursuant to the Transactions, less the Transaction Fee on those Transaction Amounts.
8 CONFIDENTIAL INFORMATION
8.1 Each Party (“Receiving Party”) must treat and hold as confidential all Confidential Information which they may receive from the other Party (“Disclosing Party”), or which becomes known to them in pursuit of this Agreement.
8.2 The Receiving Party agrees that in order to protect the proprietary interests of the Disclosing Party, unless expressly agreed otherwise in writing:
8.3 The Receiving Party will not disclose the Confidential Information to any third party for any reason or purpose whatsoever without the prior written consent of the Disclosing Party;
8.4 The Receiving Party will only make the Confidential Information available to the Receiving Party’s officers, employees, and professional advisors and then only on a strictly need-to-know basis. The Recipient shall at all times remain liable for any actions of such officers, employees, and professional advisors;
8.5 The Receiving Party will only use the Confidential Information and ensure that its officers, employees, and professional advisors only use the Confidential Information for the purpose for which it was disclosed and to execute its rights or obligations under this Agreement;
8.6 The Receiving Party agrees that it shall protect the Confidential Information disclosed pursuant to the provisions of this Agreement using the same standard of care that it applies to its own proprietary, secret or Confidential Information and that the Confidential Information shall be stored and handled in such a way as to prevent any unauthorised disclosure thereof.
9 INTELLECTUAL PROPERTY
9.1 Intellectual Property Rights of the Parties shall at all times remain the sole property of such Party.
9.2 No rights or licences with respect to the Intellectual Property Rights of either Party or its licensors are granted in terms of this Agreement, save that each Party may use materials and information made available to it by the other Party insofar as may be necessary to enable the processing of Transactions.
9.3 Neither Party is granted any right, title, interest, licence to or in the trademarks of the other Party for any purpose and neither Party may sub-licence any of its rights to use the other Party’s trademarks, except if expressly authorised to do so by the other Party.
10.1 Kazang shall have no liability to the Supplier pursuant to this Agreement and the use by the Supplier and/or a Kazang Vendor of the Payment Service, whether in contract or delict save in the event of Kazang’s gross negligence and in that event, limited to claims for direct, foreseeable damages. Notwithstanding anything to the contrary contained herein, save in the event of the Kazang’s gross negligence (as set out above) the Supplier hereby gives Kazang an indemnity against and shall hold it harmless from all claims, liability, damage, loss, penalty, expense, and cost (including legal costs on an attorney and own client scale) of any nature whatsoever which the Supplier may sustain as a result of or attributable to its use of the Payment Service or participation therein.
10.2 Notwithstanding anything to the contrary contained in this Agreement, neither Party shall be liable to the other Party for any other indirect, incidental, special or consequential loss or damage of any kind and shall not be required to indemnify the other Party in respect of such loss or damage.
10.3 If Kazang is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by any cause beyond its reasonable control (“force majeure”), it shall, to the extent so prevented, be relieved of its obligations hereunder during the period of such events and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damage of whatsoever nature which the Supplier may suffer including due to or resulting from such delay or failure.
11.1 Both Parties warrant and represent that it is duly authorised and has and shall maintain all such licences, authorisations, permissions and consents as may be required to authorise and appoint Kazang to process the Transactions and relevant information as contemplated under this Agreement.
11.2 Kazang shall have the right to immediately suspend its processing of Transactions if such processing is or becomes unlawful, including to the extent necessary if any of the licences, authorisations, permissions, or consents required by either Party to permit the processing or facilitating of Transactions is not granted or is insufficient or terminates without being renewed.
12 DOMICILIA AND NOTICES
12.1 The Parties choose their respective physical and email addresses as per the Schedule as their domicilium citandi et executandi (domicilium).
12.2 Any notice given by either Party to the other of them which is delivered by hand during the normal business hours of shall be rebuttably presumed to have been received by the Addressee at the time of delivery.
12.3 Any notice given by either Party to the other of them, which is transmitted by email shall be rebuttably presumed, to have been received on the date of successful transmission thereof, provided that there is proof of no “out of office” response to the email received.
13 DISPUTE RESOLUTION
Should any dispute arise between the Parties in relation to this Agreement or any issue arising therefrom:
13.1 The authorised representatives as appointed by each Party shall meet as soon as reasonably practical (but no less than 5 (five) days of such meeting being requested in writing by either Party) to try resolve the dispute and shall, if required by either Party, continue to negotiate for at least 5 (five) consecutive days (or such period as agreed between the Parties in writing);
13.2 If the dispute has not been resolved within 5 (five) days of the meeting, either Party may refer the dispute to arbitration in Cape Town in the English language in accordance with the commercial rules of AFSA.
13.3 Notwithstanding the above, the Parties agree that:
13.4 Should any dispute related to Transactions, Transaction Amounts and/or Transaction Fees arise between the Parties, the daily reports provided by Kazang, as referred to in terms of clause 6.2, and the information reflected on the Kazang System shall have preference;
13.5 Any dispute related to Transactions, Transaction Amounts and/or Transaction Fees must be declared by a Party within 2 (two) months of date of payment of the respective Transaction, Transaction Amount and/or Transaction Fee, failing which that Party shall forfeit, in totality, any claim it may have in relation to said Transaction, Transaction Amount and/or Transaction Fee; and
13.6 Where the Kazang Vendor advises Kazang of an error regarding a specific Transaction Amount, Kazang shall within 2 days of notice from the Kazang Vendor, request the Supplier provide proof that the Supplier provided goods and/or services to the Kazang Vendor in question. Where the Supplier fails to provide such proof within 2 days of request, Kazang shall, in its sole discretion, be entitled to reverse the Transaction Amount.
Kazang shall be permitted to use the Supplier’s trademarks on any promotional, marketing or advertising materials (whether electronic or printed), without first obtaining the Supplier’s prior written approval thereto.
15 PROTECTION OF PERSONAL INFORMATION
15.1 The Parties shall at all times comply with all applicable data protection and privacy laws, including but not limited to the Protection of Personal Information Act, 2013 (“POPI Act”).
15.3 The Supplier hereby warrants that it (i) shall only use the Personal Information received from Kazang for the purpose of this Agreement, and (ii) will not provide any Personal Information to any third parties for any purpose whatsoever including inter alia mailing lists, advertising, profiling, or data mining, and will only provide and/or share information or data to any third party with the explicit prior written consent from Kazang.
15.4 The Supplier may not subcontract its rights or obligations under this Agreement with respect to complying with the POPI Act, without the prior written consent of Kazang. Where a subcontractor, of either Party, fails to fulfil its obligations under the subcontractor agreement, that Party (who subcontracted its rights or obligations) shall remain fully liable to the other Party for the fulfilment of its obligations under this Agreement.
15.5 Both Parties shall implement appropriate technical and organisational measures to adequately protect the Personal Information against misuse and loss in accordance with the requirements of the POPI Act.
15.6 The Supplier shall co-operate as requested by Kazang to enable Kazang to comply with any exercise of rights by a Data Subject (as defined in the POPI Act) under the POPI Act.
15.7 The Supplier shall notify Kazang promptly, and in any case within twenty-four (24) hours, upon becoming aware of or reasonably suspecting a breach of Personal Information providing Kazang with sufficient information which allows Kazang to meet any obligations to report such a breach under the POPI Act.
15.8 The Supplier shall indemnify and hold harmless Kazang against all losses, fines and sanctions arising from any claim by a third party or regulatory authority arising from any breach of this clause, including any administrative fines that may be imposed by relevant regulatory authority.
16.1 This Agreement correctly reflects the intention of the Parties and embodies the entire agreement between the Parties with respect to the subject matter hereof and no variation, alteration, consensual cancellation, rectification, or novation of or addition to or waiver of any rights under this Agreement including this and any other clause hereof shall be of any force or effect unless reduced to writing and signed by the Parties.
16.2 No Party has relied on or been induced by any representation made by any other Party or its agent in entering into this Agreement other than the representations reduced to writing and contained herein.
16.3 No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement including this and any other clause hereof or any agreement or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against any Party in respect of its rights under this Agreement, nor shall it operate so as to preclude such Party thereafter from the exercising its rights strictly in accordance with this Agreement.
16.4 The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply.
16.5 This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa.