INSTANT EFT SERVICE AGREEMENT
1.1 Paid2Day: We are a South African company providing online payments solutions, with registration number 2021 / 771421 / 07 .
1.2 Paid2Day Merchants: You will become a Paid2Day Merchant once we approve your application and we accept your offer to enter into an Agreement with us for the supply of our Services.
2.1 The headings and subheadings in the Agreement are for reference purposes only and do not limit the scope of each section.
2.2 Parts in bold and underlined are for emphasis purposes only. You should pay special attention to these parts as they have especially important consequences for you.
3 LEGAL RELATIONSHIP OF THE PARTIES
The relationship between Paid2Day Merchants and Paid2Day
3.1 Once you become a Paid2Day Merchant, you will enter into a legally binding contract between Paid2Day and yourself (the Agreement).
3.2 Therefore, you must read, agree with, and accept all of the terms and conditions contained in the Agreement before applying as a Merchant.
3.3 By completing the application process, you are regarded as having read and agreed to all of the terms contained in the Agreement, without modification. Furthermore, your use of our InstantEFT Service (the Service) specifically indicates your acceptance, without modification, of the Agreement.
The relationship between Paid2Day, Paid2Day Merchants and Payers
3.4 Your customers who make payments to you through the use of our Services (Payers) are not a party to the Agreement.
3.5 Paid2Day is not a party to any transactions between Merchants and Payers and we do not have any control over the conduct of Merchants and Payers.
3.6 As a Merchant, you understand and agree that:
3.6.1 you bear the risk of transacting with Payers (including where payments are made by Payers to unintended recipients or payments reflect the incorrect amounts due to the input of incorrect information by Payers);
3.6.2 we do not provide any guarantees or representations regarding the manner in which Payers and other Merchant’s conduct themselves and we are not liable in any way for the conduct of other Merchants or Payers;
3.6.3 we give no representation or warranties regarding the identity of any Payers;
3.6.4 any disputes which may arise between a Payer and a Merchant arise between the Payer and the Merchant and we are not obliged to intervene or attempt to resolve such dispute/s.
4 THE NATURE OF OUR BUSINESS
4.1 Paid2Day acts as a payment solution provider by facilitating the making and receiving of online payments by offering Services to both Merchants and Payers.
4.2 Despite the Services available to you, you understand and agree:
4.2.1 we are not a bank and do not offer banking or financial services. Any online banking facilities available through use of our Services creates legal rights and obligations between you and such banks or, between your Payers and such banks;
4.2.2 we are not a remittance business or a money transfer service (although we may offer such services through our partners or service providers); and
4.2.3 our Services are subject to the terms and conditions imposed by the banks, payment processors and third party service providers.
5 APPLICATION AND ELIGIBILITY
5.1 In order to benefit from our Services, you must apply for a Paid2Day Account by completing our application process, including providing us with any relevant completed documentation that we may require from you.
5.2 You are only eligible to open a Paid2Day Account if:
5.2.1 you are an individual resident in the Republic of South Africa, who is at least 18 years old and has the legal capacity to conclude legally binding contracts; or
5.2.2 you are a juristic person (legal entity) and the individual applying for the Paid2Day Account on the legal entity’s behalf must (i) be at least 18 years old, (ii) a resident in the same country as the legal entity (iii) have the legal capacity to conclude legally binding contracts, and (iv) be duly authorised to conclude contracts on the legal entity’s behalf. The legal entity must be duly incorporated, validly existing and in good standing under the laws of South Africa and its country of incorporation, as the case may be.
5.3 It is important that you understand that you are not automatically entitled to a Paid2Day Account or to use of our Services. Your application for a Paid2Day Account with us is an offer to us by you to enter into an agreement with us for the supply of our Services. This means that we are not obliged to accept your application and we reserve the right, acting reasonably, to (i) perform credit checks on you (ii) refuse to provide you with a Paid2Day Account and/or (ii) deny you access to the Services available to Merchants, as the case may be.
5.4 Beneficial ownership of your Paid2Day Account by a third party is not permitted. This means that you may not act as an agent for another person or open a Paid2Day Account for another person.
5.5 You are responsible for ensuring that your website or software application (or both) is operational and ready for business, and that it complies with all applicable legislation, rules and regulations (including, for example, all necessary banking approvals).
6 COMMENCEMENT & DURATION
The Agreement shall commence with effect from the date of activation of the Service by Paid2Day i.e. the date on which Paid2Day provides you with your API credentials, and shall endure until either of us terminates the Agreement in accordance with clause 19 below.
7 THE SERVICE
7.1 The Service enables you, as a Merchant, to receive online payments from your customers (i.e. Payers) via electronic funds transfer (EFT) and to receive instant payment notifications of those payments. Such EFT payments must be made through one of the South African banks supporting the Service, currently being Standard Bank, ABSA Bank, Nedbank, Capitec, Investec, Bidvest, African Bank, Thyme Bank and First National Bank.
7.2 How the Payer Makes Payment
7.2.1 At the time of checkout on your website or Paid2Day’s redirect responsive payment page, a Payer will be provided with an option to make a payment to you using the Service.
7.2.2 If the Service is selected, the Payer will be redirected to a page provided by Paid2Day, or its authorised service provider, or stay on your website with our “self-host” option in order to select his/her bank (limited to the banks described in clause 7.1 above).
7.2.3 After the bank is selected, the Payer will be required to enter his/her online banking credentials in order to login and proceed with the transaction. The Payer will then be directed to an online ‘once off payment screen’ provided by Paid2Day or its authorised service provider. The ‘once off payment screen’ will be pre-populated with your merchant store name, transaction reference(s) and the transaction amount. The Payer selects either their cheque, savings or credit card accounts from which to make payment.
7.2.4 Once the Payer has confirmed his/her details, the Payer’s bank will provide the Payer with a one-time PIN via SMS or USSD push notification. The Payer will be required to enter such one-time PIN or approve the USSD push notification and confirm payment.
7.2.5 Once the Payer has confirmed payment, the Payer’s chosen bank will match the payment to your Payer’s transaction and Paid2Day will send you an instant payment notification that payment from such Payer has been successful, expired or failed, as the case may be.
7.3 Proceeds of the successful EFT payments will be made directly into your chosen bank account as provided in your application.
7.4 At the end of each billing period, you will be invoiced the Services Fees as set out in clause 9 below and in accordance with the terms set out in your application.
8 GUARANTEES AND IMPOSED TRANSACTION LIMITS
8.1 Paid2Day or its authorised service provider guarantee payments in the amounts set out below and in terms of the following:
8.1.1 Guarantee up to R5 000.00 (five thousand rand) for FNB, Bidvest Bank, African Bank and Tyme Bank; R10 000.00 (ten thousand rand) per single payment from Investec and Capitec; and R100 000.00 (one hundred thousand rand) per single payment from Standard Bank, Nedbank and Absa.
8.1.2 This guarantee applies to traditional eCommerce Merchants and to the strongest extent excludes all high risk Merchants offering sports betting, cfd/fx trading, cryptocurrency and/or quasi cash, digital wallets or any digital value such as airtime and/or electricity.
8.1.3 This guarantee excludes any fraud due to a sim swop or email account take over.
8.1.4 All Payments guaranteed by Paid2Day or its authorised service provider is strictly subject to your receiving account being in good standing with your bank. Paid2Day guarantees that the client has made the payment successfully and Paid2Day or its partners will not be held responsible if blocked/reversed by the customer paying bank or rejected by your receiving bank for whatever reason.
8.2 Paid2Day or its authorised service provider impose an upper limit of R500 000.00 (five hundred thousand rand) on any given single transaction which will be accepted through the Service.
8.3 Paid2Day or its authorised service provider may freeze or suspend your access to the Service for an indefinite period if there is suspicion of any illegal activity taking place or for any other reason whatsoever.
9 SERVICE FEES
9.1 Unless otherwise agreed in writing, the specific Service Fees applicable to you are as set out in our Documentation that we provide you during your application process as well as on our website.
9.2 It is your responsibility to familiarise yourself with the Service Fees and the date of payment of the Service Fees.
9.3 The Service Fees comprise an ongoing variable fee expressed as a percentage of the value of each EFT transaction successfully processed.
9.4 The Service Fees are calculated after each successful EFT transaction has been processed and will be invoiced cumulatively monthly in arrears. Your first invoice will include the Service Fees accumulated during your first month of using the Service, regardless of your commencement date.
9.5 You are liable for the Service Fees levied on each EFT payment successfully processed irrespective of whether such payment is thereafter refunded to the Payer.
9.6 Changes to the Service Fees
9.6.1 We reserve the right to amend or vary the Service Fees and charges from time to time on 30 (thirty) days prior written notice to you, by emailing you the revised Service Fees.
9.6.2 When we notify you of any adjustments to the Service Fees, you are entitled to terminate the Service on written notice to us prior to the date on which the adjustments come into effect, in accordance with clause 19 below. If you do not terminate the Service after the adjustments come into effect, the adjustments apply to you from the date they come into effect.
9.7 No Set-off or Deductions
You are not entitled to withhold any payment of any Service Fees due to Paid2Day by reason of any alleged breach of the Agreement by Paid2Day or for any other reason whatsoever. In addition, you may not apply set-off to or demand any discount, rebate or reduction in respect of any Service Fees owed to Paid2Day.
9.8 Payment Defaults
Should you fail to pay any amount to Paid2Day on the due date for payment, then Paid2Day may, without prejudice to any of its other rights in law or under the Agreement:
9.8.1 charge interest at prime + 10% (the prime rate published by Paid2Day’s bankers from time to time plus ten percent) on the overdue amount, calculated from the due date until the date of payment (both dates inclusive), which interest, if charged, will be capitalised monthly; and/or
9.8.2 take all such further steps as may be necessary to recover the outstanding amount from you, including without limitation using external debt collection agencies or attorneys, at your cost; and/or
9.8.3 recover from you any additional expenditure incurred by Paid2Day relating to the tracing and/or collection of unpaid amounts, which costs shall be for your account; and/or
9.8.4 inform any credit bureau of your payment default; and/or
9.8.5 suspend our Services and your access to your Paid2Day Account as described in clause 18.
9.9 Payment Queries or Disputes
9.9.1 You may direct any billing or account queries to us as set out on our website.
9.9.2 In the event of any dispute arising between us regarding the determination of the amounts owing by you under any invoice presented to you by Paid2Day and we are unable to resolve such dispute within fourteen (14) days of the dispute arising, the dispute will be addressed in accordance with provisions of clause 23.
9.9.3 Notwithstanding such dispute(s), you remain liable to pay the undisputed amount(s) of such invoices in accordance with the Agreement.
10 YOUR OBLIGATIONS
10.1 You agree to use the Services stipulated above solely for the purposes of receiving legitimate and lawful payments.
10.2 You will not use any of the Services for any unlawful activity.
10.3 You agree to manage your Paid2Day Account in accordance with the terms and conditions of the Agreement and all applicable laws, regulations and ordinances (Applicable Laws). It is your responsibility to ensure that you comply with all Applicable Laws. You understand that any failure to comply with any Applicable Laws may result in your criminal prosecution, penalties and/or fines.
10.4 You shall conduct your business, and carry on all related or ancillary activities with the highest ethical standards. You shall not do business with any person which involves bribes, payoffs, payments (or offers thereof) by way of inducement or reward (whether to do any act or to refrain from doing any act or to show favour or disfavour or otherwise) or any other similar improper or unethical practices.
10.5 You have not and will not, in connection with the activities contemplated by the Agreement, make any payment or transfer of value which has the purpose or effect of (i) public or commercial bribery; (ii) acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business; or (iii) otherwise obtaining an improper advantage for Paid2Day or its affiliates.
10.6 Paid2Day reserves the right to immediately terminate the Agreement in the event that you fail or you are suspected to have failed to comply with the provisions of this clause 10, in accordance with clause 19.
11 COLLECTION AND PROCESSING OF INFORMATION
11.1 When registering for and maintaining a Paid2Day Account, you will be required to provide certain personal and other information to us including, in certain instances, information of your users and/or Payers (collectively Your Information). This to enable us to provide the Services to you.
11.2 We will collect, process, transfer, collate, organise, update, store and distribute (collectively Process) Your Information in accordance with the Agreement and the laws of the Republic of South Africa.
11.3 By disclosing or submitting Your Information to us,
11.3.1 you consent to us Processing Your Information for the purposes described herein;
11.3.2 you understand that you are responsible for ensuring that your users (including Payers) have provided prior consent to us Processing their information; and
11.3.3 you warrant that you have obtained such prior consent from your users (including Payers).
11.4 You are responsible for ensuring the accuracy of Your Information and that Your Information is correct. We are not responsible for checking the accuracy of any aspect of Your Information, files or records you provide to us and we will not be liable for any payment-related-errors made resulting from errors or incorrect information in your files or records.
11.5 Should Your Information change, please inform us and provide us with updates to Your Information as soon as reasonably possible to enable us to update Your Information.
11.6 You understand and agree that we may engage carefully selected third parties, such as credit reporting agencies or identity verification companies in order to review your credit report so as to assess your eligibility to hold a Paid2Day Account and your ability to use the Services or associated features.
11.7 You authorise Paid2Day, directly or through our authorised third parties, to make any inquiries we consider necessary to validate your identity and registration. This may include (i) requiring you to provide us with scanned documentation such as a government issued identification card, (ii) ordering a credit report and performing other credit checks or verifying Your Information provided against third party databases. However, because user verification on the Internet is difficult, we cannot and do not guarantee any Merchant’s or Payer’s identity.
11.8 You are solely responsible for securing all data in your possession or under your control.
12 SECURITY AND RISKS
12.1 Your Security Obligations
12.1.1 Username and Password: As a registered Merchant, you will be required to select a unique username and password which you have to use in order to sign into your Paid2Day Account made accessible on our website. If you are a Legal Entity, you may also have to designate a specific number of users to your Paid2Day Account. It is your responsibility to keep your username and password secret and secure at all times. You warrant that you will not disclose your username and password to any other persons, or enable any other persons to otherwise access your Paid2Day Account, unless specifically authorised by you within the scope of your business. If you are a Legal Entity, you further warrant and ensure that the persons authorised by you to access your Paid2Day Account do so within the scope of their authority and do not disclose your username and password to any unauthorised person or enable any unauthorised person to otherwise access your Paid2Day Account.
12.1.2 Fraudulent or Irregular Activities: Should you believe that your username or password has become compromised, that someone has accessed your Paid2Day Account without your authority or you suspect any security breach, phishing attack, misuse, irregularity, fraudulent transaction, or any other suspicious activity that may be connected with attempts to commit fraud or other illegal activities through the use of your website or application, you must contact us immediately. You agree to co-operate fully with Paid2Day to investigate any suspected unlawful, fraudulent or suspicious activities.
12.1.3 Phishing: Please be aware of ‘phishing’ attacks where criminals attempt to obtain Your Information by sending you an email, masquerading as an email from Paid2Day, asking you to access your account or verify information via links in the email, or diverting you to a fake Paid2Day website. It is important to remember that Paid2Day will never ask you to confirm your password, username or other sensitive information by clicking on any links in an email. We are not liable for any loss of whatsoever nature arising from any phishing email that may be sent to you.
12.1.4 3D Secure: 3D Secure is a protocol developed by the card schemes (for example, Visa offers 3D Secure under the name Verified by Visa and MasterCard offers it as MasterCard SecureCode). 3D Secure improves the security of Internet payments. It allows you, as a Merchant, to authenticate cardholders through the cards’ issuers. 3D Secure reduces the chance of fraud when using supported cards and improves transaction performance. If you do not use 3D Secure you expose yourself to risk and you will be liable for fraudulent transactions even if the transaction was authorised by other means. Please note: Even if transactions are passed through 3D Secure, in the event that there are an excessive number of chargebacks, you, as the Merchant, may exceed the thresholds prescribed by card associations and as a result, you could be liable to fines from the card associations.
12.1.5 Additional Fraud Protection: If you are a Merchant that falls within Paid2Day’s high risk merchant category based on merchant category codes assigned to classify businesses by payment card processors such as Visa and MasterCard (also known as MCC codes), we recommend you implement additional fraud protection. In particular, you understand that if you do not implement additional fraud protection, you are solely responsible for all other losses that may arise as a result of you having elected to process transactions without additional fraud protection. To learn more about additional fraud protection Services, please contact us for more information.
12.2 Our Security Obligations
12.2.1 Paid2Day secures the integrity and confidentiality of Your Information and transactional information with reference to appropriate, reasonably accepted technological and organisational standards acceptable at the time of the transaction and the type of the transaction concerned.
12.2.2 Paid2Day’s service complies with PCI DSS, which sets out the industry standards for maintaining a secure environment in the payment industry. The PCI DSS compliance certificate is available for viewing on request.
12.2.3 All Your Information is stored in our secure Payment Card Industry (PCI) environment. Whilst all Your Information stored by Paid2Day meets the requirements of the security standards prescribed by the Payment Schemes, we are not responsible and/or liable for any of Your Information stored and/or processed outside of Paid2Day’s secure PCI environment.
12.2.4 Paid2Day Processes Your Information and its transactional information on computers and servers located in South Africa and the Republic of Ireland.
12.2.5 We use independent third parties to verify and certify privacy principles and our registration documents.
12.2.6 Paid2Day reserves the right to take any actions as may be regarded as necessary at any time to preserve the security and reliable operation of Paid2Day’s network infrastructure and you undertake that you will not do or permit anything to be done which may compromise Paid2Day’s security.
13 INTELECTUAL PROPERTY RIGHTS
13.1 All the content, trademarks, data, information or information contained in any materials or documents (Documentation) or used in relation to the Services, including but not limited to any and all copyrighted works, software, databases, text, graphics, icons, designs, hyperlinks, domain names, information and agreements (Content), are the property of or licensed to Paid2Day and as such are protected from copying and infringement by local and international legislation and treaties. The Content may not be reproduced, distributed or copied by any means, whether electronically or otherwise, without our prior written permission.
13.2 Any and all intellectual property rights subsisting in the Documentation (including Integration Documents), Content, Services and their underlying software (Software), the Agreement, or otherwise developed by or on behalf of Paid2Day, including all patents, rights in inventions, rights in designs, trademarks, trade and business names and all associated goodwill, rights to sue for passing off or for unlawful competition, copyright, moral rights and related rights, rights in databases, topography rights, domain names, rights in information (including know how and trade secrets) and all other similar or equivalent rights subsisting now or in the future in any part of the world, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights for their full term (Intellectual Property Rights), vests in Paid2Day, its licensors or suppliers, as the case may be, and all rights not expressly granted are reserved.
13.3 Although Paid2Day grants you, for the duration of the Service, a limited, non-exclusive, non-transferable right and licence to use the Service and its underlying Software in accordance with the provisions of the Agreement, you acknowledge that you have no claim of any nature in and to the Intellectual Property Rights. You accordingly agree not to copy, duplicate, reproduce, transmit, modify, reverse engineer, decompile, or disassemble the Service, including the Software and/or Integration Documents, any user manuals and/or any printed material associated with the Service or any portion thereof in any way whatsoever and shall only use it for the purpose for which it is supplied.
13.4 You will not at any time during or after termination or cancellation of the Agreement dispute the validity or enforceability of such rights, or cause to be done any act or thing contesting or in any way impairing or tending to impair any part of any of the Intellectual Property Rights and shall not counsel or assist any other person to do so.
13.5 You may not use or alter any trademarks, trade or business names, designs or logos forming part of the Intellectual Property Rights, including our Paid2Day Trade Marks or do (or fail to do) anything that could adversely affect our rights in the Paid2Day Trade Marks or their value and you agree to fully reimburse us for any loss or damage that we suffer as a result of any use by you of our Paid2Day Trade Marks which is not in accordance with the Agreement.
13.7 You are obliged to comply with all laws applicable to any intellectual property rights (including without limitation, trade secrets, copyright, trademarks, registered designs and patents) in respect of any data, files and/or information accessed, retrieved or stored by you through your use of the Services.
13.8 If, while the Agreement is in force, you make any improvement to any aspect of Paid2Day’s Intellectual Property Rights (Improvement), you will promptly inform Paid2Day thereof in writing and will assign all rights in such Improvement to us and will assist us to obtain patent, design, copyright and all similar forms of protection for such Improvement at our expense wherever we may choose to obtain such protection. All intellectual property rights in respect of such Improvement will be deemed to be included in the Intellectual Property Rights in terms of the Agreement.
14.1 You may obtain software and other information relating to the Services which is confidential and proprietary to Paid2Day (Proprietary Information). Such Proprietary Information may include, but is not limited to, trade secrets, know how, inventions, techniques, processes, programmes, schematics, software source documents and data. You will at all times, including following termination of the Agreement, keep all such Proprietary Information in confidence and will not disclose or use such Proprietary Information other than as expressly authorised under the Agreement, nor will you disclose the Proprietary Information to third parties without our prior written consent. You further agree to immediately return to Paid2Day or destroy and confirm in writing that you have destroyed all Proprietary Information (including copies) in your possession, custody or control upon termination of the Agreement at any time and for any reason.
14.2 The obligations of confidentiality in this clause 14 will not apply to the extent that information (i) has entered the public domain through no fault of your own; (ii) prior to disclosure was already rightfully in your possession; (iii) subsequent to disclosure is obtained by you on a non-confidential basis from a third party who has the right to disclose such information; (iv) is subsequently or independently developed by you without reference to the Proprietary Information disclosed hereunder; or (v) is required to be disclosed by law or any regulatory authority with jurisdiction or pursuant to a court order, so long as (if this is possible in the circumstances) you give Paid2Day adequate notice and the ability to challenge or limit such disclosure.
14.3 You will not make any announcement, provide any press release, use Paid2Day’s Trade Marks or otherwise disclose any information to the press or other media concerning Paid2Day’s services, Software or the terms of the Agreement without the prior written approval of Paid2Day, except for any release necessitated by the rules of any stock exchange or any other regulatory authority with jurisdiction.
15.1 Whilst we take all reasonable steps within our control to make our Service available to you on a consistent and continuous basis, we cannot always guarantee or warrant fault free Services.
15.2 As far as the law allows, we offer our Service “as is” and on an “as available” basis without warranties or implied by statute, common law or otherwise (including satisfactory quality and fitness for purpose). You understand and agree that we do not guarantee or warrant that:
15.2.1 the Service is merchantable, of satisfactory quality, accurate, fit for your particular purposes or needs;
15.2.2 the Service will operate error-free;
15.2.3 the Service is accessible (either directly or through third-party networks) at all times or locations of your choosing, including that the connection between your computer, system, terminal or other electronic devices and the acquiring bank will be 100% uninterrupted; or
15.2.4 the time it will take to complete a transaction will remain consistent because the Service is largely dependent upon many factors beyond Paid2Day’s reasonable control, including (but not limited to) delays by the banks and its facilities.
15.3 You understand and acknowledge that, in addition to the terms set out herein, the Service shall always be subject to the terms and regulations imposed by Paid2Day’s payment processors and service providers as well as those of your bank.
16 LIMITATION OF LIABILITY
16.1 As far as the law allows and subject to clause 16.2, in no event will Paid2Day be liable for:
16.1.1 financial or similar loss of any kind, including, for example, loss of profits, business, estimated savings, chargeable time or goodwill;
16.1.2 any interruption to your business (including interruption to Services) or loss of or damage to information;
16.1.3 loss or damage suffered by you which we could not have reasonably known about at the time you entered into the Agreement; and/or
16.1.4 losses you suffer as a result of using the Service other than as described in the Agreement.
16.2 Except only in the event where actual financial loss is suffered as a direct result of Paid2Day’s system malfunction and/or human error will Paid2Day be liable for such actual financial loss.
16.3 Paid2Day will not be held responsible for incorrect banking details provided by you which may lead to funds being transferred to the incorrect party.
16.4 You shall be liable for all costs incurred by Paid2Day in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.
16.5 You acknowledge that the allocation of risk and responsibility as set out in the Agreement is reasonable because it accords with:
16.5.1 Paid2Day’s inability to control how, and for what purposes, you use the Services;
16.5.2 Paid2Day not having developed any of the Services specifically for you;
16.5.3 the fact that, while Paid2Day follows good industry practice, it is not economically feasible for Paid2Day to exhaustively test any software that supports the Services; and
16.5.4 the Service Fees, if any, paid by you for the Services.
16.6 As far as the law allows, and subject to paragraph 15.7, our maximum aggregate liability under, or in connection to the Agreement, for each and every claim arising out of the same cause or source, shall not exceed the Service Fees paid by you in respect of such Service during the 12 (twelve) month period in which the cause of action arose (the first such 12 (twelve) month period in respect of the Service in question to commence on the Service commencement date as specified in the Agreement).
16.7 Nothing in the Agreement will prevent or limit your, or Paid2Day’s, liability in respect of:
16.7.1 fraudulent or wilful misconduct;
16.7.2 death or personal injury arising out of its negligence;
16.7.3 any matter which such liability cannot be lawfully excluded or limited.
17.1 As far as the law allows, you indemnify and hold harmless Paid2Day, its parent, subsidiaries, affiliates, officers, licensors, directors and employees, against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses (including but not limited to attorneys’ fees) arising from your use of and access to the Service, your violation of any term of the Agreement (including the documents incorporated by reference), your violation of any third party right, including without limitation any copyright, trademark, trade secret or other property or privacy right or any claim that your content caused damage to a third party.
17.2 This clause 17 will survive termination, modification or expiration of the Agreement and your use of the Service.
18 SUSPENSION OF SERVICES
18.1 Notwithstanding any of our rights set out in clause 19 below, our Services to you may be suspended and your access to the Paid2Day Account may be denied if:
18.1.1 you breach any of the terms and conditions of the Agreement until such time as you have remedied the breach, provided we have given you notice of such breach;
18.1.2 you use the Services unlawfully;
18.1.3 on our reasonable discretion, your use of the Services is considered by us, our banks or authorised service providers as unlawful or potentially unlawful;
18.1.4 you do not pay all the amounts due to you on or before the due date for payment.
18.2 We will notify you before we suspend our Services. If our Services are suspended, you may terminate the Service in accordance with the termination provisions below, paying specific attention to clause 19.2.
18.3 You will continue to be liable for payment of the Service Fees during any suspension period and Paid2Day reserves the right to charge you an additional re-connection fee should you request Paid2Day to restore the Service.
19.1 Without limiting any other rights and remedies that Paid2Day may have in law or under the Agreement, Paid2Day may immediately terminate the Agreement in the event that you commit one or more of the following events of default:
19.1.1 you breach (including non-payment of undisputed amounts due by you) any term or condition of the Agreement and you fail to remedy such breach within 7 (seven) days of Paid2Day notifying you of such breach;
19.1.2 you do or allow any act or omission which adversely affects the operation of Paid2Day’s Services, including our network infrastructure;
19.1.3 you use the Services unlawfully or for any illegal activities;
19.1.4 you fail to comply with Applicable Laws ;
19.1.5 you commit any act of insolvency in terms of the Insolvency Act, 1936 or, being a Legal Entity, commit an act which would be such an act of insolvency if committed by a natural person;
19.1.6 you are declared bankrupt or take steps to place yourself, or are placed in provisional or final liquidation or judicial management or administration, or enter into or attempts to enter into any scheme similar to or in the nature of a composition, compromise or scheme of arrangement, release or novation with any or all of your creditors, or take steps to de-register yourself or are de-registered or you contemplate, consider, discuss or agree to any business rescue proceedings;
19.1.7 our licence to act as System Operator is revoked or terminated for any reason whatsoever.
19.2 You may terminate the Services on 30 (thirty) days prior written notice to Paid2Day (the notice period). In accordance with clauses 9.6 and 22.2, if you terminate the Agreement due to a change in Service Fees or a change in the Agreement, as the case may be, your notice period must be initiated prior to the date on which the relevant adjustments come into effect, however, once initiated, the notice period may run after the date on which the relevant adjustments come into effect.
19.3 Without limiting any other rights and remedies you may have in law or under the Agreement, you may immediately terminate the Agreement in the event that we commit one or more of the following acts of default:
19.3.1 we breach any term or condition of the Agreement and we fail to remedy such breach within 7 (seven) days of you notifying Paid2Day of such breach;
19.3.2 we commit any act of insolvency in terms of the Insolvency Act, 1936;
19.3.3 we are declared bankrupt or we are liquidated.
19.4 You strictly agree that we will only accept and process cancellations for the Service if all monies due to us have been paid by you.
20 CONSEQUENCES OF TERMINATION
20.1 If the Service is terminated for any reason, you are responsible to pay all Service Fees payable by you up to the termination date.
20.2 If the Service is terminated for any reason, you shall immediately cease to access or use the Service, its underlying Software and related Documentation and you are required to either destroy or return to Paid2Day (as Paid2Day may direct) any copies of the Software and Documentation provided to you by Paid2Day.
20.3 You shall remove any reference to Paid2Day or the Service, including the Paid2Day Trade Marks from all your promotional and corporate materials, including all your electronic communications and websites. To the extent that Paid2Day displays any of your Merchant Marks, Paid2Day shall remove any such reference to you from our website or marketing materials.
20.4 In the event that you are able to utilise the Service following termination, the terms and conditions of the Agreement will apply to you and you will be liable to pay the full usage costs to Paid2Day.
20.5 Termination of the Agreement shall be without prejudice to either party’s rights or obligations which arose prior to the termination date and in this regard, you shall be entitled to utilise the Service following termination to the extent required in order to exercise such rights and fulfil such obligations. However, you acknowledge that such use of the Service after termination of the Agreement shall in no way constitute a revival or a novation of the Agreement and Paid2Day shall incur no liability of whatsoever nature to you or to any third party arising out of your continued use of the Service after termination of the Agreement.
20.6 The termination of the Agreement shall in no way affect any provisions which succeed termination of the Agreement, whether expressly provide that they will operate after any such termination or by way of necessity such provisions are required to succeed termination of the Agreement, even if the provisions themselves do not expressly provide for this.
20.7 Any and all suspensions and/or terminations, if any, will in no way prejudice any rights that Paid2Day may have under the Agreement and/or any relevant law pursuant to any internal and/or external investigations and/or findings against you.
21 FORCE MAJEURE
21.1 Whilst we aim to provide uninterrupted Services, this cannot be guaranteed. Interruptions may be caused by factors beyond our reasonable control including, but not limited to, an event of fire, lightning, explosion, electricity and utility services, flood, hurricane, act of G-d, war, terrorism, civil disorder, delivery failures, failure of communications networks and facilities, including the Internet, epidemics, plagues, strikes; boycotts, and lock-outs of all kinds and go-slows (excluding boycotts, strikes, lock-outs and go-slows by or of Paid2Day’s own personnel) or any other event beyond our reasonable control (a Force Majeure Event).
21.2 If we are prevented or restricted directly or indirectly from carrying out all or any of our obligations under the Agreement due to a Force Majeure Event, we shall be relieved of our obligations during the period that such event and its consequences continue, but only to the extent so prevented and we shall not be liable for any delay or failure on the performance of any obligations hereunder or loss or damages, either general, special or consequential which the Merchant may suffer due to or resulting from such delay or failure, provided always that we (i) shall give written notice to you of any such inability to perform or interruption to our Services and (ii) shall use reasonable endeavours to mitigate the effects and duration of the Force Majeure Event.
21.3 Upon termination of the Force Majeure Event, giving rise to such non-performance, we shall give you written notice.
21.4 We shall not be entitled to invoke this clause 21 if we failed to take all steps and precautions which could reasonably be expected to have been taken, in order to prevent such act or event occurring and in order to mitigate and minimise the effect of such event.
21.5 Should the Force Majeure Event continue for a period of more than 14 (fourteen) days, then you are entitled to terminate the affected Service with immediate effect.
21.6 We will, wherever possible, provide advance written warning via email of any known or planned interruptions and will try to ensure any interruption is kept as brief as possible.
21.7 In no event will Paid2Day be legally liable to you for any failure by you and/or your third party service providers (including banks) or any of your and/or third party service providers’ systems, network and/or equipment which has an impact on the Services.
22 CHANGES TO THE AGREEMENT
22.1 Any part of the Agreement (including other policies or documents incorporated by reference), may be changed from time to time by Paid2Day upon reasonable notice to you. Upcoming material changes will be emailed to you 30 (thirty) days prior to their effective date.
22.2 If you do not agree to the changes made, you are entitled to terminate the Agreement on written notice to us prior to the date in which the changes come into effect, in accordance with clause 19 above. If you do not terminate the Agreement after the adjustments come into effect, the adjustments apply to you from the date they come into effect.
23 COMPLAINTS AND DISPUTES
23.1 Should you have any concerns or issues relating to the provision of the Services, please contact us via our website.
23.2 Should a dispute of any nature whatsoever arise between you and Paid2Day on any matter provided for in or arising out of the Agreement and such dispute is not resolved then, save for urgent or interim relief which may be granted by a competent court, such a dispute may be submitted to confidential arbitration in terms of the expedited rules of the Arbitration Foundation of South Africa. Arbitration proceedings shall be conducted in Johannesburg in English. The expedited arbitration rules may be downloaded from http://www.arbitration.co.za/downloads/expedited_rules.
24 GOVERNING LAW AND JURISDICTION
The Agreement is governed by the laws of the Republic of South Africa. Subject to clause 23 above, you and Paid2Day submit to the non-exclusive jurisdiction of the South African courts.
25 ADRESSES FOR NOTICES
25.1 All legal notices given in terms of the Agreement will be in writing and all notices may be sent to the addresses you have provided in your Application Form. Any change in your address will only be effective if and when we receive written notification of your change in address.
25.2 Paid2Day chooses as its physical address for all purposes, including legal notices, under the Agreement, the following address: 60A 1st Road, Hyde Park, Johannesburg 2196.
25.3 Where communications are made electronically, as provided for in accordance with the Agreement, such communications shall be deemed to have been received within 48 hours after having been sent, save where the sender knows that delivery thereof has failed.
26 ELECTRONIC COMMUNICATIONS
26.1 To the fullest extent permitted by applicable law, you consent to receiving the Agreement or any part thereof, and any other agreements, notices and/or other communications (Communications) from Paid2Day regarding your Paid2Day Account and your use of the Services, electronically. Electronic Communications may be posted on the website and/or sent to the e-mail address we have on record for you. Please print a copy of each Communication and retain it for your records.
26.2 Paid2Day reserves the right to, but assumes no obligation, provide Communications in paper format.
26.3 You agree that in the event of a dispute between you and Paid2Day or between you and any other Merchant or Payer, Paid2Day’s electronic records of your transactions, the Agreement, your application, any identity verification information provided in a paper format and subsequently scanned or otherwise converted into an electronic format, and any other information stored or created electronically shall be admissible in a court of law or in relation to a law enforcement or regulatory investigation or prosecution.
27.1 Paid2Day is entitled to assign the Agreement to any third party without your consent other than if such assignment would be to your detriment, but for security reasons, you may not cede, assign or otherwise transfer the Agreement or any of your rights or obligations thereunder to any other person without obtaining Paid2Day’s prior written consent thereto.
27.2 If either of us fails or delays the exercise of any rights or remedies under the Agreement, we will not be deemed to have waived (i.e. given up) those rights or remedies in any way.
27.3 If a court or similar body decides that any wording in the Agreement is invalid or unenforceable, that decision will not affect the rest of the Agreement, which will remain binding on both of us. However, if the wording that is invalid or unenforceable can be made valid and enforceable by deleting part of it, we will both treat the wording as if it is deleted, so that the remainder of the wording in question becomes valid and enforceable.
27.4 The Agreement (including your application and the Agreement and other documents or policies incorporated into the Agreement) is the entire agreement between you and Paid2Day with respect to your use of the Service, and supersedes all documentation, information and other communications (in each case whether spoken or written) between us with respect to such access and use.
27.5 If the Consumer Protection Act, 2008 (CPA) applies to the Agreement, it is not intended that any of the provisions herein contravene anything contained in the CPA. All the provisions herein must be treated as being qualified, to the extent necessary, to ensure the provisions of the CPA are complied with.