FINCLUDE TRANSACTION PROCESSING TERMS AND CONDITIONS

These are the general terms and conditions governing the use of the FINCLUDE MERCHANT SERVICES [hereinafter referred to as “FMS”] the owner and holder of all related rights including but not limited to Intellectual Property rights that vests in the FINCLUDE Transaction Platform [hereinafter referred to as “FINCLUDE”] as cashless payment method to employ at participating Vendors [hereinafter referred to as “the Vendor”].

Background

A FINCLUDE is a registered Third Party Payment Processor (TPPP) registered under the South African Reserve Bank´s payment agency PASA.

B. FMS offers this third party payment processing to Vendors, the terms of participation being embodied in this document.

C. The terms and conditions for FINCLUDE users are governed within this agreement.

D. All transactions, products and vouchers available via FINCLUDE or any affiliate including the FINCLUDE System, movement of monetary value and processing of payments as well as other access to online documentation and processes [hereinafter collectively, the "Services"] are subject to the terms and conditions stated below.

E. By using FMS you as a participating user of a Vendor will become a user of the FINCLUDE virtual payment method, and agrees to be bound by this Agreement.  

1. Interpretation

   1. In this Agreement:

      1. All monetary amounts are stated exclusive of VAT and are payable in South African currency. 

      2. The singular includes the plural and vice versa.

      3. References to any "party" means a party to this Agreement and includes the successors in title, executors, administrators and other assignees (as the case may be) of that party.

      4. Where a party consists of more than one person the liability of those persons in respect of the terms of this Agreement is joint and several.

      5. References to any document (however described) shall include references to that document as modified, novated, supplemented, varied or replaced from time to time.

      6. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. 

      7. In these Terms and Conditions, the following terms shall have the following meanings:

2. Interpretation

   1. "Account" means the Vendor name and identifying particulars supplied to FINCLUDE at the commencement of this Agreement.

   2. "Agreement" means this agreement as amended from time to time including schedules as may be added and other terms included by reference.

   3. "Business" means all activities associated with the FINCLUDE portal or web-service for administrators, transactions including purchases and refunds as well as other future developments of the functionality, the Services and Intellectual Property associated with the platform.

   4. "Confidential Information" means all information acquired or created by FINCLUDE during the course of or in connection with the Business including information about FINCLUDE, the Business, its’ processes, systems, equipment, dealings, transactions, policies, finances, organisation or personnel, or about those of its suppliers and clients or anyone associated with it or them, unless that information is readily available to the public, and shall include (but not be limited to) FINCLUDE principles, policies, procedures, Intellectual Property and other documents, or other material which FINCLUDE may direct you to treat as Confidential Information.

   5. "Intellectual Property" means all intellectual property rights to FINCLUDE whether in relation to the platform, its’ functions and the Services or otherwise and includes all or any of the following:

      1. all the trademarks and -names of FINCLUDE;

      2. the technical and other information or expertise devised, developed or acquired by FINCLUDE or its employees or other applied in the development, servicing and sale of the Services and in the management and operation of the Business; and

      3. any present or future processes of FINCLUDE which relate to the Services or its assembly and application for the provision of any such processes.

   6. “Monetray Value” means an amount equivalent to the cash value as deposited into the FINCLUDE bank account in favour of the User, employed and turned over within the System to effect trade with the Vendor, which value will be transferred from and received into virtual wallets and virtual Vendor Accounts at real-time intervals as trade occurs within the System as a results of purchases by the User of the Services.

   7. "Notice" means any notice given pursuant to clause 16 hereof.

   8. “Point of Sale Device” means the terminal provided to the Vendor by FMS to enable virtual trade and transactioning within the FINCLUDE System.

   9. "Processes" include devices, processes, products, techniques or technologies.

   10. "Services" means the access to process mobile transactions through the platform, the movement of monetary value and processing of payments and also access to an administration area on the FINCLUDE web, to view transaction reports, update details, request refunds, and perform other administrative tasks relating to transactions processed via FINCLUDE as well as other access to online documentation and processes, which includes support via telephone or email.

   11. “System” means the software applications, electronic architecture and any required interfaces, services contracted in, access to the internet, usage of the virtual arena available to Users and hardware required to produce the functionalities within the FINCLUDE Systems application.

   12. "FINCLUDE" refers to the virtual payment method and other Services as offered via this mobile platform by FMS. 

   13. “User” means ANY user that uses the functionality of the FMS either directly or indirectly by engaging the system via a system or web front-end, device or a cashier.

   14. 1.21 “Vendor” means the Company that is licensed by FINCLUDE to deploy the FMS;

   15. "You" includes all persons entering this Agreement with FMS and FINCLUDE as participating Vendor and where the context allows includes your partners, employees, agents and other associates.

3. Formation of contract

The Vendor as represented warrants that it is able to enter into a legally binding and enforceable contract with FMS concerning FINCLUDE and agrees and acknowledges that it has entered into a legally binding and enforceable contract with their user of FMS by way of using the FMS agrees to the Terms and Conditions set out by FMS concerning the terms and conditions for participating in FINCLUDE.

4. System and Transaction Fees

   1. During the term of this Agreement the Vendor must pay to FMS the fees detailed as follows:

      1. Monthly rental of the POS-device outlined in the pricing schedule A per month payable in advance.

      2. The transaction fee outlined in the pricing schedule A per transaction value of the turnover generated through the System as a result of sales incurred at the Vendor’s point of sale device.

      3. Transaction fees will be deducted from the monetary value accumulated within the System from the turnover generated by the transaction incurred at the Vendor’s point of sale, and such reduced value will be transferred in the equivalent Cash Value to the Vendor’s bank.

      4. The Vendor authorises FINCLUDE to deduct all value payable to FINCLUDE, as determined by FINCLUDE, under this Agreement from the Accumulated Value prior to making an electronic fund transfer of Cash Value via the FINCLUDE bank account.

   2. The Vendor will pay for the transfer of data within the System via a cellular provider.

   3. The Vendor will pay for the related costs associated with linking the POS-device with the SA banking platform.

   4. The Vendor warrants that it understands and agrees to the fee structure as outlined in this Agreement. The Vendor warrants that it understands and agrees that all transactions sent to the FINCLUDE System, whether successful or unsuccessful, purchase or refund, will be charged at the rates set out on the System above.

   5. FINCLUDE in its sole and absolute discretion reserves the right to change any Fees charged for the Services or use of the System at any time. In the event of an increase in a Fee that Fee will become payable from 7 days after Notice in respect of the fee is posted on the website above or given to the Vendor verbally, in writing or otherwise communicated to the Vendor.

   6. Should FINCLUDE introduce a new Service, any Fees for the use of that Service will be applicable from the commencement of the Service on the System and by using that Service the Vendor warrants that it agrees to the Fees applicable to such new Service.

5. System Security 

FINCLUDE adheres to industry standards for security amongst others:  

1. Data encryption;

2. Personal data protection;

3. The User agrees to use due care and diligence when using the FMS;

6. Restricted Use

   1. The Vendor and the User may not and warrants that it will not:

      1. Copy, produce, transmit, transcribe, store in a retrieval system, or translate in any language (natural or computer) any part of the System or the Services;

      2. Transfer or attempt to transfer any part of the System or Services or the right to access it or otherwise make it available to any other person;

      3. Attempt to discover the FINCLUDE source code;

      4. Sublicense, rent or lease any portion of the System or the Services; 

      5. Use the System or the Services for any illegal purpose;

      6. Allow the Vendor account to be used by another person for any purpose;

      7. Allow use of the System and Services by any unauthorised person;

7. FINCLUDE warranty

   1. FMS warrants that the use of any or all of the Intellectual Property according to this Agreement in connection with the System or Services will not result in the infringement of proprietary or third party rights.

   2. The System is provided by FMS on an "as-is" basis and the only obligations on FMS are set out in this Agreement.  FMS gives no warranty or condition, express or implied other than those expressly set out herein. FMS does not warrant that the functions contained in this System and the Services provided will be uninterrupted, always available or error free, that defects will be corrected, or that this System, or FINCLUDE hardware will always be free of viruses or other harmful components or programs.

   3. FMS does not warrant or make any representations regarding the accessibility or the use or the results of the use of this System or the Services or the completion of transactions. FMS does not warrant that any bank or financial institution will complete a transaction.  FMS accepts no liability associated with such risks.  You agree that you accept these risks and indemnify and expressly hold harmless FMS, its employees or representatives in respect of such risks.

8. Privacy and Confidentiality

   1. The Vendor acknowledges and undertakes to FMS that:

   2. all information, documents, data and any other material which is provided by FMS to the Vendor or its directors, officers, employees and agents in connection with this Agreement and all copies of such information, documents, data and material made by the Vendor is and remains the property of FMS.

   3. The Vendor will use the Confidential Information for the sole purpose of the exercise of the rights and performance of the obligations under this Agreement.

   4. The Vendor will only disclose the Confidential Information to such of its officers, employees, agents and advisers to whom it is necessary to disclose the Confidential Information for the purposes of this Agreement and the use of the System and the Services.

   5. The Vendor will, and will procure that its agents and other advisers will, return to FMS all Confidential Information at the end of the term or on termination of this Agreement.

   6. Without limiting the generality of the foregoing, FMS Confidential Information shall include information which the Vendor is directed to treat as confidential and shall include (but not be limited to) FMS documents, client lists, client cards, principles, policies and procedures or other documents came into the possession of the Vendor in the course of  this Agreement.

   7. FMS is committed to maintaining the privacy and security of its customers’, Users’, participating Vendors’ and other stakeholders’ personal and private information submitted to the System. FINCLUDE will not collect or use such information without obtaining the relevant consent.

   8. FMS will never make available customers, User, participating Vendor or other stakeholder information to other organisations or parties including other companies in the FMS Group unless the relevant and informed consent has been obtained.

   9. Different Mobile or Prepaid Services may have its’ own privacy policies due to the nature of such services or products which may demand a deviation from this policy. These specific policies will apply to and exclusively govern the use of the particular Service via the FMS’s FINCLUDE System.

9. Limitation of Liability

Neither FMS nor any of its directors, officers, employees, agents or representatives, shall be liable towards the Vendor for any loss, damages, liability, claim, cost or expense (collectively "Loss"), howsoever arising from the use of the Services in terms of this Agreement, unless such Loss was suffered by the Vendor as a direct consequence of the wilful misconduct or negligence of FMS in performing the Services and provided that the liability for such Loss shall not exceed an amount equal to the aggregate of the Fees paid by the Vendor at the time such Loss occurs.

10. Waiver

The failure by FMS to enforce at anytime or for any period anyone or more of the Terms or Conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement and practice of the parties which differs from the terms of this Agreement shall constitute any waiver of FMS rights.