SCHEDULE B
MERCHANT GENERAL TERMS AND CONDITIONS
bSecure (Private) Limited (“bSecure”)operates an electronic platform which facilitates and streamlines the process by way of which Merchants and Customers can conduct e-commerce and also provides checkout solution services to Merchants operating their own electronic platform online to facilitate transactions between customers and such merchants. These Merchant General Terms and Conditions along with Annexures thereto (“Terms”), as modified by the Merchant Agreement and the Policies, govern the bSecure Services rendered to the Merchant by bSecure. Please read the Terms carefully. By availing the bSecure Services, you agree that you have read, understood and accepted the Terms including any additional terms and conditions and any Policies referenced herein. If you donot agree with the Terms, please do not avail the bSecure Services.
1. DEFINITIONS AND INTERPRETATIONS
1.1 Capitalized terms used in these Terms shall have the meanings assigned to them below:
1.1.1 Affected Party: shall have the meaning ascribed thereto in Clause 19.2 hereof.
1.1.2 Agreed Terms: shall have the meaning ascribed thereto in Clause 2.1 hereof.
1.1.3 Applicable Law: any constitution, statute, regulation, rule, ordinance, enactment, judgment, order, code, decree, directive, notification, having the force of law and any decision of or determination by a competent authority, now or hereafter in effect, in each case as amended, re-enacted or replaced to the extent applicable to a Party.
1.1.4 Appointed Email Address: the email address specified by the Merchant on the Merchant Portal as the email address to which all correspondence relating to the bSecure Platform or the Agreed Terms may be sent by bSecure.
1.1.5 bSecure: shall have the meaning ascribed thereto in the Preamble above.
1.1.6 bSecure Bank Account: the bank account specified by bSecure on the Merchant Portal as the account wherein the payments are to be made to bSecure by the Merchant in accordance with the Agreed Terms.
1.1.7 bSecure Marketplace Services: the provision of the bSecure Platform that acts as an intermediary to facilitate sale and purchase of goods or services between a Merchant and a Customer as set out in Annexure B of these Terms.
1.1.8 bSecure Platform: the platform operated by bSecure which facilitates and streamlines the process by way of which a Customer purchases goods or services from a Merchant.
1.1.9 bSecure Services means the Checkout Solution Services, Platform Services and other ancillary services.
1.1.10 bSecure Wallet: means the wallet maintained by bSecure in favour of the Merchant reflecting the amounts pre-paid by the Merchant to bSecure from time to time, and utilized by bSecure, in accordance with the Agreed Terms.
1.1.11 Change Notice: shall have the meaning ascribed thereto in Clause 22.1.1 hereof
1.1.12 Checkout Solution Services: the provision of a software solution to the Merchant(s) as detailed in Annexure A of these Terms.
1.1.13 Checkout Solution Services Terms: the specific terms and conditions applicable to the provision of Checkout Solution Services by bSecure to the Merchant as set out in Annexure A of these Terms.
1.1.14 Customer(s): any person who is purchasing goods or services from the Merchant and has initiated a Transaction in respect of such order.
1.1.15 Customer Contract: a contract entered into between the Merchant and a Customer governing the sale of goods and/or services.
1.1.16 Confidential Information: any and all information disclosed in a manner clearly indicating its confidential nature or which, in the absence of such indication, would under the circumstances appear to a reasonable person to be confidential or proprietary. Such information shall include but not be limited to information relating to operations, plans, strategies (including but not limited to geographic expansion plans, target customer segment, merchant acquisition strategy, recruitment strategy, and corporate acquisition strategy), concepts, proposals, intentions, know-how, trade secrets, market information, copyright and other intellectual property rights (whether registered or not), software, market opportunities, organizational internal chart, corporate structure chart, details of customers and potential customers, details of competitors and potential competitors, business and/or financial affairs including any such information relating to, disclosed or provided by a Party.
1.1.17 Disclosing Party: the Party making a disclosure pursuant to Clause 9 hereof.
1.1.18 Intellectual Property: means and includes any and all intellectual property of whatever nature and kind, including without limitation, patents, registered designs, logos, trademarks and service marks (whether registered or not), rights in the nature of unfair competition rights, copyrights, database rights, design rights, and all similar property rights (whether tangible or intangible).
1.1.19 Fees: shall have the meaning ascribed thereto in Clause 3 of the Merchant Agreement.
1.1.20 Force Majeure Event: shall have the meaning ascribed thereto in Clause 19.1 hereof.
1.1.21 Fraud and Risk Monitoring Tools: applications developed by bSecure that perform a number of checks on the Transactions according to a series of risk settings and rules and flag transactions as potentially fraudulent.
1.1.22 Marketplace Terms: the specific terms and conditions applicable to the provision of Platform Services by bSecure to the Merchant as set out in Annexure B of these Terms.
1.1.23 Merchant: a person selling its products or services online to Customers and who has entered into the Merchant Agreement with bSecure. The Merchant is the vendor of the products or services.
1.1.24 Merchant Agreement: the Merchant Agreement between bSecure and the Merchant for the provision of bSecure Services to the Merchant.
1.1.25 Merchant Bank Account: the bank account specified by the Merchant on the Merchant Portal as the account wherein the Settlement Funds are to be transferred.
1.1.26 Merchant Portal: The electronic application that enables a Merchant to manage, process and review Transactions and provides an interface between bSecure and the Merchant.
1.1.27 Objection Notice: shall have the meaning ascribed thereto in Clause 22.1.3 hereof
1.1.28 Personal Information: means personal information or data, whether true or not, and whether recorded in a material form or not, about a person whose identity is apparent, or can be reasonably be ascertained, from the information or data, processed by either Party in connection with these Agreed Terms.
1.1.29 Policies: means the policies of bSecure, as updated from time to time, in respect of, inter alia, refunds, chargebacks, data protection, intellectual property and which can be accessed from bSecure’s official website.
1.1.30 Recipient: the party or person receiving information pursuant to Clause 9 hereof.
1.1.31 Settlement Funds: shall have the meaning ascribed thereto in Clause 2.2 of Annexure B of these Terms.
1.1.32 Specific Terms: means the Checkout Solution Services Terms and the Platform Services Terms.
1.1.33 Signup Process: the process pursuant to which the Merchant shall be able to register with the bSecure Platform and accessible from bSecure’s official website.
1.1.34 Terms: shall have the meaning ascribed thereto in the Preamble above.
1.1.35 Transactions: an online purchase of goods or services from the Merchant by a Customer using bSecure Services.
1.1.36 Transaction Data: means any data that is exchanged between the Merchant and bSecure for execution of the Transactions and records of the same.
1.1.37 Transaction Taxes: All taxes payable in respect of a Transaction including but not limited to customs duties, sales tax, excise tax, value-added tax and any other duties, fees or charges arising from any Transaction.
1.2 References in these Terms to “Clauses” and “Annexures” are references to Clauses and Annexures of and to the Merchant Agreement read with these Terms and references to sub-clauses or paragraphs are unless otherwise stated, references to sub-clauses or paragraphs of the Clauses or Annexures in which the reference appears.
1.3 Unless the context otherwise requires, the singular shall include the plural and vice versa and the masculine includes the feminine and neuter genders and vice versa.
1.4 The headings and sub-headings used in these Terms are for convenience only and shall not affect the construction or the interpretation of these Terms.
1.5 Any reference in these Terms to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.6 A reference to a person shall be construed so as to include their respective successors and assigns from time to time.
2. SCOPE
2.1 The provision of the bSecure Services shall be governed by these Terms, as supplemented and may be modified by the Merchant Agreement and the Policies (“Agreed Terms”).
2.2 In the event of any conflict or inconsistency between the Merchant Agreement, these Terms, or other schedules and/or addendums executed pursuant to the Agreed Terms from time to time, the same shall be resolved by giving precedence to the Merchant Agreement. Further in the event of any conflict between the General Terms and the Specific Terms, the same shall be resolved by giving precedence to the Specific Terms.
2.3 The Merchant acknowledges that the bSecure Services can only be provided if the Merchant complies with all Applicable Law, requirements, procedures and formalities relating to the bSecure Services including but not limited to the bSecure Platform. As such, the provision of the bSecure Services to the Merchant is subject to compliance by the Merchant of all procedures and obligations particularized in the Agreed Terms.
2.4 The Merchant understands and agrees that bSecure does not accept any risk or responsibility relating to the success or failure of the Merchant’s business and bSecure shall never be liable to compensate the Merchant for any loss of revenue, profits or any economic loss.
2.5 The Merchant appoints bSecure as its commission agent in accordance with the Agreed Terms.
3. ACCESS TO THE bSecure PLATFORM AND MERCHANT PORTAL
3.1 Following the execution of the Merchant Agreement, the Merchant will be required to open an account on the bSecure Platform by completing the Signup Process.
3.2 Subject to the completion of the Signup Process, bSecure shall enable the Merchant to access and update the Merchant Portal and complete the registration process. As part of the registration process, the Merchant will be asked to create a username/user ID and password to access the Merchant Portal. The Merchant hereby agrees that it shall not share its username or password with any third party and shall be solely responsible for the safety and security of its username and password, if any. Any misuse of the username and password shall be at the sole cost and consequence of the Merchant.
3.3 The Merchant shall be responsible for ensuring that all information relating to the Merchant appearing on the Merchant Portal, including but not limited to address, bank account number and Appointed Email Address, is maintained up to date. Any changes in the particulars of the Merchant appearing on the Merchant Portal must be immediately updated by the Merchant. The Merchant acknowledges that the information on the Merchant Portal will be used for the purposes of finalizing orders and payments and bSecure shall in no event be liable to the Merchant or the Customer for any claim, loss or charge resulting from the Merchant’s information on the Merchants Portal being outdated or inaccurate.
3.4 Any correspondence or communication received through the Merchant Portal and/or from the Appointed Email Address shall be presumed to originate from and have been made by the Merchant and bSecure shall be entitled to rely on such correspondence or communication.
4. TRANSACTIONS
4.1 Where any transaction in respect of a Merchant’s goods or services is being processed, bSecure shall show the goods or services as being sold by the Merchant and not by bSecure. The Merchant acknowledges and agrees that bSecure operates independently of the Merchant and under no circumstances functions as a seller, buyer, dealer, middleman, manufacturer, broker agent or merchant of the Merchant’s product of services and bSecure makes no representations or warranties and does not ensure the quality, safety or legality of any Merchant product or service.
4.2 bSecure shall use information relating to the description and price of goods and services, provided by the Merchant or obtained from the Merchant’s website to conclude a Transaction on behalf of the Merchant through the bSecure Platform.
4.3 Customers will be given one or more payment options in the use of the bSecure Services such as making payments electronically or paying cash on delivery. In case a Customer wishes to pay electronically such payment shall be made through a third party payment services provider on behalf of the Merchant. In the event the Customer chooses to pay cash on delivery, it shall be the Merchant’s responsibility to arrange for collection of cash on delivery.
4.4 bSecure may offer additional promotions/discounts over and above the price set by the Merchant and the Merchant agrees that this shall in no event mean that the goods or services are being sold or provided by bSecure. The amount of such additional discount shall be funded by bSecure or its partner and not by the Merchant. Any fees charged by bSecure in respect of a Transaction will however be considered as being included in the Merchant’s quoted price for the good or service and will be deducted therefrom.
4.5 bSecure reserves the right to use, reproduce, modify, adapt, publish, translate, create and distribute any content that the Merchant provides.
4.6 The contract of sale in respect of any Transaction processed on the bSecure Platform shall be exclusively between the Merchant and the Customer on terms proposed by the Merchant and bSecure shall not be a party to such contract.
4.7 bSecure shall not be responsible for, resolving or mediating any disputes between the Merchant and a Customer, unless explicitly set out in the Agreed Terms or agreed between the Parties involved.
4.8 The Merchant shall ensure that the terms of the Customer Contract do not conflict with the provisions of the Agreed Terms.
5. FRAUD AND RISK CONTROLS
5.1 All Transactions processed by bSecure may be screened by the Fraud and Risk Monitoring Tools.
5.2 The Parties acknowledge that the Fraud and Risk Monitoring Tools do not guarantee the prevention of fraudulent Transactions, nor the prevention of resulting fines and as such, bSecure reserves the right to, at its discretion, reasonably change the risk settings and rules in the event bSecure deems the settings and rules employed, as part of the Fraud and Risk Monitoring Tools, insufficient to appropriately flag potentially fraudulent Transactions.
5.3 Transactions can be cancelled by the Merchant after having been authorized. The final responsibility for accepting or cancelling a Transaction will remain with the Merchant except cancellations pursuant to Clause 5.4 of these Terms. In the event a Transaction is cancelled, the Merchant will be obligated to offer a full refund to the Customer. However, bSecure shall not be liable to return the fee paid in respect of a Transaction and if such fee is portion of a price paid by the Customer, the Merchant shall be liable to refund the amount equal to entire fee from its own resources.
5.4 The Merchant shall be responsible for cancelling a Transaction suspected to be fraudulent or otherwise, in contravention of Applicable Law. However, bSecure reserves the right to reject or cancel Transactions that it has reasonable grounds to suspect to be fraudulent or otherwise in contravention of Applicable Law.
5.5 Notwithstanding anything to the contrary in the Agreed Terms, bSecure reserves the right to withhold and/or defer payouts to the Merchant related to Transactions if such Transactions are suspected to be fraudulent, or otherwise in contravention of Applicable Law.
5.6 The Merchant shall cooperate with any investigation carried out by bSecure or any other competent authority in respect of any Transaction.
6. PROVIDING MERCHANT SUPPORT
6.1 In the event, the Merchant experiences problems with the bSecure Services, it may notify bSecure through the Merchant Portal.
6.2 bSecure shall investigate and notify the Merchant whether the problem is resulting from the bSecure Services, determine the severity of the problem and use reasonable efforts to remedy the problem to the extent possible. bSecure shall notify the Merchant upon the resolution of any request directed to it.
7. MERCHANT OBLIGATIONS
7.1 The Merchant agrees to the following obligations and restrictions:
7.1.1 The Merchant shall not sell any goods or services prohibited by the Agreed Terms, Applicable Law or as bSecure may notify from time to time.
7.1.2 The Merchant shall ensure that the goods or services sold are compliant with Applicable Law. In this regard, the Merchant shall, at its own cost, procure all formal consents, waivers, approvals, authorizations, exemptions, registrations and/or licenses necessitated by Applicable Law for bSecure to conclude the Transactions. If so required by bSecure, the Merchant shall provide any written certification of compliance with Applicable Law promptly upon, and no later than within two (2) days of receipt of a written request from bSecure in respect thereof. If bSecure, in its sole discretion, has cause to believe that the Merchant has, will be, or is using the bSecure Services in violation of Applicable law, bSecure reserves the right to, if applicable, immediately hold funds in reserve, to refuse to accept further orders, and/or terminate the Agreed Terms immediately.
7.1.3 The Merchant shall inform bSecure promptly, and no later than within ten (10) business days, after it becomes aware of any unauthorized or incorrectly executed Transaction and/or refund.
7.1.4 The Merchant shall not host, display, upload, modify, publish, transmit, update or share any information which infringes any patent, trademark, copyright, proprietary rights, third party’s trade secrets, rights of publicity, or privacy, is fraudulent or involves the sale of counterfeit or stolen items.
7.1.5 The Merchant shall not offer or sell the following goods or services, without limitation on the bSecure Platform:-
(i) Firearms;
(ii) Alcoholic beverages;
(iii) Explosives;
(iv) Pornography materials and services of any kind whatsoever;
(v) Banned/illegal drugs;
(vi) Fireworks or pyrotechnic devices or supplies;
(vii) Hazardous materials, combustibles, corrosives;
(viii) Gambling transactions;
(ix) goods or services that are part of a multi-level marketing scheme;
(x) Matrix sites or sites using a matrix scheme approach; and
(xi) Any good or service which is not in compliance with all Applicable Laws.
7.1.6 The Merchant shall at all times comply with applicable guidelines and policies set by local and international card schemes (such as Visa Inc. or Mastercard Inc. or PayPal), bSecure or any of bSecures service providers. The Merchant shall be fully liable for all penalties imposed by card schemes (such as Visa Inc., Mastercard Inc. or PayPal), State Bank of Pakistan, or any other governmental or regulatory authority on account of any breach of such applicable guidelines and policies by the Merchant.
7.1.7 The Merchant may prominently display, on its website and in other online marketing materials, if applicable, a logo, image, text, markings, or code provided by bSecure from time to time. However, the Merchant shall not use any Intellectual Property belonging to bSecure without the prior written approval of bSecure.
7.1.8 The Merchant shall disclose its privacy policy as part of the Customer Contract and ensure that it conducts its business in accordance with the terms of its privacy policy. In this regard, the Merchant shall not at any time require the Customer to provide the Merchant with any details of the accounts held by them with the bSecure Platform including, the passwords, account number, card numbers and PIN which may be assigned to the Customer by bSecure from time to time. Further, the Merchant shall ensure or cause to be ensured the confidentiality of any and all information submitted by a Customer on a Merchant’s website, and at a minimum, ensure or cause to be ensured that there are proper encryption and security measures in line with industry best standards on all Merchant websites so as to prevent any hacking into the information of the Customer and/or other data. The Merchant shall bear the cost of loss and/or damage that may arise as a result of breach of its obligations to Customers in respect of the confidentiality of information submitted by them, including but not limited to, any act which is beyond the control of a Merchant such as any hacking into a Merchant’s website. If any data is lost, stolen, damaged or otherwise compromised, the Merchant shall notify bSecure of the same immediately upon the Merchant having notice thereof, and thereafter, the Merchant shall, in consultation with bSecure, take immediate steps to remedy the situation and prevent its recurrence.
7.1.9 The Merchant shall take all precautions as may be feasible or as may be directed by bSecure to ensure that there is no breach of security and that the integrity of the link between the Merchant’s website and the bSecure Platform is maintained at all times during the term of the Merchant Agreement.
7.1.10 The Merchant shall ensure the accuracy and/or validity of the prices and any other charges and/or other information relating to the goods or services, which are sold through the bSecure Platform or included on the Merchant’s website.
7.1.11 The Merchant shall take all such measures as may be required to rectify any deficiency in the goods or services provided by the Merchant. Notwithstanding the generality of the foregoing, the Merchant shall forthwith compensate the Customer for any loss caused to the Customer due to any deficiency in the goods or services provided by the Merchant which cannot be resolved.
7.1.12 The Merchant shall be solely responsible, where applicable, for obtaining any necessary consent for the collection, use, disclosure and transfer of Transaction Data and Personal Information as required by Applicable Laws (including laws related to data protection) and the Agreed Terms. The Merchant shall comply with all data protection and security obligations prescribed under Applicable Laws in respect of Transaction Data and Personal Information.
7.1.13 The Merchant shall comply with all instructions, in writing, whatsoever given to the Merchant by bSecure in connection with any Transaction. In this regard, the Merchant shall, inter alia, provide any Transaction Data, financial information or Personal Information it may have in respect of a Transaction to bSecure within seven (7) business days of receipt of a written request from bSecure in respect thereof.
7.1.14 The Merchant shall setup, maintain, and upgrade, the security, and integrity of its computer system(s) at its own cost and liability.
7.1.15 If the Merchant wishes to upgrade or change the version or type of its software and/or hardware or any other part of its computer system, it shall notify bSecure fifteen (15) business days prior to such change and allow such change to be tested with the bSecure Platform as soon as possible before implementation.
7.1.16 The Merchant shall not describe itself as an agent or representative of bSecure. In this regard, the Merchant shall take all necessary steps and/or precautions to ensure that the goods or services offered by the Merchant on its website or otherwise are not mistaken or misrepresented as being associated with or being offered by bSecure. Further, the Merchant shall not make any representations to Customers or any third party or to give any warranties which may require bSecure to undertake to or be liable for, whether directly or indirectly, any obligation and/or responsibility to Customers or any third party.
7.1.17 The Merchant shall not directly or indirectly, mischaracterise or disparage bSecure, bSecure’s reputation, representatives, or affiliates.
8. DISPUTES IN RELATION TO TRANSACTIONS
8.1 All disputes, differences or questions with respect to any matter arising out of or relating to the Transactions are covered in the Checkout Solution Service Terms or Platform Service Terms.
9. CONFIDENTIALITY OBLIGATIONS
9.1 A Recipient receiving Confidential Information pursuant to the Agreed Terms shall:
9.1.1 use the Confidential Information only for the purposes of the Agreed Terms;
9.1.2 not disclose Confidential Information to any third party, unless legally required or specifically authorized under the Agreed Terms, without the prior written consent of the Disclosing Party;
9.1.3 disclose Confidential Information only to such of its representatives that have a need to obtain or to have access to such Confidential Information and that are obliged by a written confidentiality agreement to keep such information in confidence;
9.1.4 protect and safeguard Confidential Information against unauthorized disclosure and access to a standard that it applies to its own confidential information and in any case with reasonable skill and care;
9.1.5 only make such copies of the Confidential Information as is necessary for the purpose of the Agreed Terms;
9.1.6 promptly inform the Disclosing Party, to the extent permitted by law, of any breach or suspected breach of any of the obligations hereunder; and
9.1.7 upon request in writing from the Disclosing Party and at the Disclosing Party’s cost, immediately deliver to the Disclosing Party all copies of all or part of the Confidential Information (regardless of the form in which, or the medium on which, it is stored) or shall destroy such information and confirm in writing (which includes email) that all copies of such information have been so delivered or destroyed as requested.
9.2 Clause 9.1 shall not apply to information which:
9.2.1 the Recipient knew or possessed before the Disclosing Party disclosed it to the Recipient;
9.2.2 is or becomes publicly known, other than as a result of a breach of the terms of the Agreed Terms by the Recipient or by anyone to whom the Recipient disclosed it;
9.2.3 the Recipient obtains from a third party, and the third party was not under any obligation of confidentiality with respect to the Confidential Information; and
9.2.4 is independently developed by, or for the Recipient, or by the Recipient’s representatives who have not had any direct or indirect access to, or use, or knowledge of, the Disclosing Party’s Confidential Information.
9.3 The restrictions contained in this Clause 9 shall continue to apply for a period of three (3) years after the termination of the Agreed Terms.
10. TERMINATION
10.1 bSecure shall have the right to suspend the provision of the bSecure Services in the event the total outstanding amount due and payable by the Merchant to bSecure exceeds PKR 10,000/- (Pakistani Rupees Ten Thousand only).
10.2 bSecure may terminate these Agreed Terms with immediate effect in the event:
10.2.1 the Merchant is in breach of any of the provisions of these Agreed Terms or Applicable Law.
10.2.2 if the Merchant files a petition for bankruptcy, becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or a receiver is appointed for the Merchant or its business, or the Merchant goes into liquidation either voluntarily (otherwise than for reconstruction or amalgamation) or compulsorily.
10.2.3 The Merchant ceases or threatens to cease to carry on its business.
10.3 bSecure may terminate these Agreed Terms at any time by giving one (1) month’s prior written notice to the Merchant.
10.4 The Merchant may terminate these Agreed Terms:
10.4.1 at any time by giving two (2) month’s prior written notice to bSecure; or
10.4.2 with immediate effect in accordance with Clause 22 hereof.
10.5 The Merchant’s access to the Merchant Portal shall be revoked at the expiry of thirty (30) days from the effective date of termination of the Agreed Terms.
10.6 Termination shall not release or affect the accrued liabilities of the Parties, and the Agreed Terms shall remain fully operative so far as any obligations or liabilities incurred by a Party prior to the effective date of such termination are concerned. Any outstanding undisputed payments of the Fees that became due before termination shall continue to remain so after termination as well.
11. REPRESENTATIONS AND WARRANTIES
11.1 The Merchant represents and warrants to bSecure that:
11.1.1 it is a validly organized and validly existing company in good standing under the laws where its principal office is located;
11.1.2 it has obtained and shall maintain any and all licenses, permits and registrations required under the Applicable Law to conduct its business in all jurisdictions where it sells the goods or services, and shall inform bSecure immediately should this change;
11.1.3 it is competent to enter into these Agreed Terms and Customer Contracts and its entry into these Agreed Terms and the Customer Contracts and the performance thereof have been duly authorized by all necessary corporate action and constitutes a valid and binding agreement of the Merchant, enforceable against the Merchant in accordance with the terms thereof and the execution, delivery and performance of these Agreed Terms and any Customer Contract will not violate any provisions of Applicable Law;
11.1.4 it has duly paid all customs duties, excises tax and any other tax on the import, manufacture or production of the goods sold by it;
11.1.5 all information furnished to bSecure including but not limited to all information on the Merchant Portal is accurate and up to date;
11.1.6 to the best of its knowledge, there is no action, suit or proceeding at law or in equity now pending or threatened by or against or affecting the Merchant which would affect the rights and obligations of the Parties under these Agreed Terms;
11.1.7 its directors, shareholders and ultimate beneficial owners have never been convicted of a criminal offence and are not currently subject of any investigation relating to any criminal offence; and
11.1.8 it is not, in any way, actively involved in money laundering or financing of terrorist or criminal activities or any other illegal activity.
12. bSecure’s RIGHTS
12.1 bSecure shall have the right to verify and investigate all Transactions, to examine the Merchant’s, records (electronic or otherwise) relating to the Transactions and to verify the payment of Transaction Taxes. For this purpose, the Merchant shall preserve all records pertaining to such Transactions and the Transaction Tax relating thereto for the period required by Applicable Law and shall include in such record such information as may be notified by bSecure.
12.2 bSecure shall be entitled to prohibit the display of any material on the bSecure Platform and the Merchant's websites if the act or manner of such display is contrary to any Applicable Law, regulation, government policy, order or guideline including all applicable foreign laws and regulations or which is detrimental or harmful to the interest of payment schemes and bSecure, in the sole and exclusive opinion of bSecure.
12.3 bSecure shall be entitled to publish notices, disclaimers and indemnities on the Merchant‘s website in the manner and extent deemed necessary by bSecure in accordance with bSecure’s internal operational, risk & compliance and/or guidelines and Policies. The Merchant shall render the necessary modifications to the Merchant’s website within seven (7) days of bSecure requesting the same.
12.4 bSecure shall at all times have the absolute right to suspend its provision of the bSecure Services envisaged under these Agreed Terms, with prior written notice of thirty (30) business days to the Merchant, citing clear reasons for the need for such suspension.
13. INDEMNITY
13.1 The Merchant agrees to indemnify and hold harmless bSecure (and its respective directors, officers, affiliates, agents, successors and assigns) from and against any and all losses, liabilities, claims, deficiencies, costs, damages and expenses (including, without limitation, reasonable legal fees, charges and disbursements) suffered, incurred or resulting from and/or arising in connection with any actions or omissions of the Merchant that is contrary to Applicable Laws or the Agreed Terms including but not limited to:
13.1.1 any inaccuracy in or breach of the representations, warranties or covenants made by the Merchant in the Agreed Terms;
13.1.2 any infringement in respect of the Intellectual Property of any third party;
13.1.3 any third party claims in respect of the sale of the Merchant’s goods or services;
13.1.4 any third party claims that are in any way related to bSecure’s reliance on the Merchant providing Transaction Data or Personal Information; and
13.1.5 any third party claims against bSecure in respect of suspension, failure or other form of cessation of Merchant’s operations.
14. LIMITATION OF LIABILITY
14.1 To the extent permitted under Applicable Law, bSecure shall not be liable in contract, tort (including negligence or breach of statutory duty) or otherwise for any indirect or consequential loss or damage of any kind including punitive or exemplary damages or for any loss of profit or loss of contract, loss of goodwill or reputation, loss of opportunity, loss of revenue or third party loss whether foreseeable or otherwise.
14.2 Subject to Clause 14.3, bSecure’s total liability (and its respective employees, directors, agents and representatives) arising out of or in connection with the Agreed Terms, whether in contract or in tort or other legal theory, shall not exceed the total amount of the Fees paid to bSecure by the Merchant under the Agreed Terms.
14.3 bSecure shall not be liable for any of the following:
14.3.1 acts or omissions of any fees charged by third parties payment service providers or any other third party that may provide services in relation to a Transaction;
14.3.2 any action taken by bSecure for the completion of the Transaction in reliance of any information received from the Merchant or third parties;
14.3.3 any dispute arising from the suspension or refusal to process a Transaction which bSecure reasonably believes to be made fraudulently or without proper authorization;
14.3.4 unavailability of the bSecure Services due to hardware, software or internet connection not working properly;
14.3.5 unforeseen circumstances preventing the proper performance, despite any reasonable precautions taken by bSecure. Such circumstances may include, but are not limited to, acts of God, power outages, fire, flood theft, equipment breakdowns, hacking attacks, internal mechanical or systems failures as well as downtimes of the bSecure Platform; and
14.3.6 any dispute between the Merchant and the Customer.
15. RELATIONSHIP BETWEEN THE PARTIES
Nothing contained in the Agreed Terms will be construed to create a partnership, joint venture or agency relationship between the Merchant and bSecure beyond that expressed specifically in these Agreed Terms as a commission agent. Neither Party has authority to enter into agreements of any kind on behalf of each other.
16. THIRD PARTY CONTRACTORS
16.1 bSecure shall have the absolute discretion to use independent agents, service providers, contractors and/or correspondents to carry out or procure any of the matters under or contemplated in these Agreed Terms.
17. SEVERABILITY
17.1 If any provision of these Agreed Terms is found by any court or a competent public body or authority to be illegal, invalid or unenforceable:
17.1.1 such illegality, invalidity or unenforceability shall not affect the other provisions of the Agreed Terms, which shall remain in full force and effect; and
17.1.2 if such provision would cease to be illegal, invalid or unenforceable if some part of the provision were modified or deleted, the provision in question shall apply with such minimum modification or deletion as may be necessary to make it legal, valid and enforceable.
18. ENTIRE AGREEMENT
18.1 The Parties agree that the Agreed Terms constitute the entire agreement between them, and supersedes all other prior agreements, arrangements, understandings or representations between them, whether oral or written, other than any securities or written pledges, undertakings or assurances which the Merchant may have previously given to us as a condition precedent or in anticipation of the Agreed Terms.
18.2 Each Party to the Agreed Terms warrants that it has not relied on any representations, arrangements, understanding or agreement not expressly set out or referred to in the Agreed Terms. The only remedy available to any Party in respect of any such representations, arrangements, understanding or agreement shall be as expressly provided in the Agreed Terms or for a breach of contract.
19. FORCE MAJEURE
19.1 A “Force Majeure Event” shall mean any event or circumstance or combination of events or circumstances (including the effects thereof) that is beyond the reasonable control of a Party and, which event materially and adversely affects the performance by such Affected Party (defined below) of its obligations under or pursuant to these Agreed Terms, provided, however, such material adverse effect could not have been prevented, overcome or remedied in whole or in part by the Affected Party through the exercise of diligence and reasonable care. Without limiting the generality of the foregoing, Force Majeure Events hereunder shall include each of the following events and circumstances (including the effects thereof), but only to the extent that each satisfies the requirements above:
19.1.1 any act of war (whether declared or undeclared), invasion, armed conflict or act of foreign enemy, blockade, embargo, revolution, riot, insurrection, civil commotion, or act or campaign of terrorism or political sabotage;
19.1.2 lightning, fire, earthquake, tsunami, flood, storm, cyclone, typhoon, or tornado;
19.1.3 epidemic, pandemic, or plague;
19.1.4 collapse of buildings, fire, explosion or accident;
19.1.5 interruption of failure of utility service; or
19.1.6 the promulgation of any law or any action taken by a government or public authority including without limitation failing to grant a necessary license or consent.
19.2 Provided that is has complied with Clause 19.4, if a Party is prevented, hindered or delayed in or performing any of its obligations under these Agreed Terms by a Force Majeure Event (the “Affected Party”), the Affected Party shall not be in breach of the Agreed Terms or otherwise liable for any such failure or delay in the performance of such obligations shall be extended accordingly.
19.3 The corresponding obligations of the other Party will be suspended, and its’ time for performance of such obligations extended, to the same extent as those of the Affected Party.
19.4 The Affected Party shall:
19.4.1 as soon as reasonably practicable after the start of the Force Majeure Event but no later than two (2) days from its start, notify the other Party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreed Terms; and
19.4.2 use all reasonable endeavors to mitigate the effect of the Force Majeure Event on the performance of its obligation.
20. INTELLECTUAL PROPERTY RIGHTS
20.1 For the duration and strictly for the purpose of the Agreed Terms, the Merchant grants to bSecure, a non-exclusive, worldwide, royalty-free, non-transferrable license to copy, use and display its logo, trademark, trade name and other Intellectual Property owned by it.
20.2 Nothing contained in these Agreed Terms shall, or shall be construed to, transfer any Intellectual Property rights of bSecure or its licensors in any product, software or other item to the Merchant nor shall the Agreed Terms be construed to transfer any Intellectual Property rights of the Merchant in any product, software or item to bSecure or its licensors. All such Intellectual Property rights shall at all times remain vested in bSecure or its licensors or the Merchant, as the case may be.
20.3 Save as provided in the Agreed Terms, the Merchant shall not be entitled to use any Intellectual Property belonging to bSecure without bSecure’s prior approval in writing.
21. NOTICES
21.1 Form of notice
Any notice or other document to be served under the Agreed Terms shall be in the English language and may be delivered personally, by internationally recognised courier and a copy by email to the Party to be served at the following address or at such other address as it may have notified in writing to the other Party.
21.1.1 For bSecure
(i) Address: Office Number 403, 4th Floor, The Forum, Block 09, Clifton, Karachi
(ii) Telephone: 0342-2732873
(iii) Email: hello@bsecure.pk
21.2 When notice takes effect
Any notice or document shall be deemed to have been served:
21.2.1 if delivered personally or by internationally recognised courier, at the time of delivery; or
21.2.2 if sent by email, at 10.00 a.m. on the business day following the date of despatch.
In proving service of a notice or document it shall be sufficient to prove that delivery was made or that the email message was properly addressed as the case may be.
22. AMENDMENT AND ADDITIONS
22.1 These Agreed Terms are subject to change from time to time by bSecure at its sole discretion. Unless otherwise agreed, changes may be made by notice from bSecure to the Merchant under the following procedure:
22.1.1 bSecure shall give the Merchant notice of any proposed change to the Agreed Terms (a “Change Notice”).
22.1.2 A Change Notice may be given to the Merchant in accordance with Clause 21.
22.1.3 The proposed change shall come into effect automatically fifteen (15) days after the date of receipt of the Change Notice unless the Merchant gives written notice to bSecure that it objects to the proposed changes within such time frame as may be stipulated in the Change Notice (“Objection Notice”).
22.1.4 bSecure may stipulate in a Change Notice a different time period for the coming into effect of any change provided that such different time period shall not be for a period less than fifteen (15) days.
22.1.5 If no Objection Notice is received by bSecure within the stipulated time frame, the Merchant is deemed to have accepted the change.
22.1.6 The Merchant has the right to terminate the Agreed Terms with immediate effect at any time and without charge after receiving a Change Notice and before any change stipulated in the Change Notice becomes effective.
22.1.7 If the Parties are unable to resolve and address, through mutual agreement, the Merchant’s objections as communicated vide the Objection Notice, and without prejudice to sub-clause 22.1.6 above, a Merchant’s Objection Notice shall be deemed to constitute a notice to terminate these Agreed Terms with the termination effective immediately before the date on which the proposed change would otherwise come into effect under sub-clause 22.1.3.
23. GENERAL COVENANT
The Parties have entered into the Agreed Terms in good faith and shall give all such assistance and information to the other Parties and execute and do all such further acts, deeds, assurance and things as may be reasonably required so that full effect may be given to the terms and conditions of the Agreed Terms.
24. WAIVERS
No delay, waiver, omission, or forbearance on the part of the non-defaulting Party or Parties to exercise any right, option, duty, or power arising out of any breach or default by the defaulting Party under any of the terms, provisions, covenants, or conditions hereof, shall constitute a waiver by the non-defaulting Party or Parties to enforce any such right, option, duty, or power as against the defaulting Party, or as to any subsequent breach or default by the defaulting Party.
25. RIGHTS AND REMEDIES
The rights and remedies provided in the Agreed Terms are cumulative and are not exclusive of any rights or remedies of the Parties provided under Applicable Laws, and no failure or delay in the exercise of any other right or remedy shall affect or impair any such right or remedy or the exercise of any other right or remedy.
26. ASSIGNMENT
The Merchant may not assign or transfer any of its rights or obligations under the Agreed Terms to a third party without the prior written consent of the other Party. bSecure shall have the right to assign or transfer any right in whole or any part thereof to any third party without consent of the Merchant.
27. GOVERNING LAW AND DISPUTE RESOLUTION
27.1 The Agreed Terms shall be governed by the laws of Pakistan.
27.2 All disputes, differences or questions with respect to any matter arising out of or relating to the Agreed Terms shall be resolved by both the Parties through mutual negotiations in good faith. Either Party may inform the other Party about any such dispute through a notice in writing specifying the issue in dispute or the matter of difference. The Parties shall endeavor to settle the issue through amicable negotiations within thirty (30) days of receipt of such a notice.
27.3 Where the Parties are unable to resolve the dispute within thirty (30) days of the receipt of notice, the same shall be referred to arbitration to be conducted under the Arbitration Act, 1940 or any amendment thereto. Each Party shall have the right to nominate one (1) arbitrator each. If the arbitrators are unable to reach a decision, an umpire will be appointed by the two (2) arbitrators whose decision shall be final and binding on the Parties. The venue for arbitration shall be Karachi, Pakistan and the language for arbitration proceedings shall be English. Each Party shall bear its own arbitration costs. The decision of the arbitrators shall be final and shall be acceptable for both Parties.
ANNEXURE A
CHECKOUT SOLUTION SERVICES TERMS
The following terms and conditions, in addition to the Terms, are applicable in respect of the provision of Checkout Solution Services to the Merchant.
1. TRANSACTION PROCESS
1.1 Once the Merchant has completed the Signup Process, bSecure shall assist the Merchant in making such alterations to the Merchant’s website so as to enable Customers to place orders for goods and services through the bSecure website.
1.2 Where a Customer chooses to place an order with the Merchant through the Merchant websites they shall be redirected to bSecure’s website to complete the order. The Merchant hereby irrevocably authorizes bSecure to conclude transactions with Customers on behalf of the Merchant and take such actions as are contemplated in the Agreed Terms.
1.3 bSecure shall use information relating to the description and price of goods and services, provided by the Merchant or obtained from the Merchant’s website, to conclude a Transaction on behalf of the Merchant through the bSecure website.
2. PAYMENTS & BSECURE WALLET
2.1 The Merchant shall directly receive all payments for goods and services sold on behalf of the Merchant using the Checkout Solution Services in accordance with the Agreed Terms. In the case of electronic payment, the Merchant shall receive payment for goods and services directly to the Merchant Bank Account through service providers.
2.2 For the purposes of utilizing the Checkout Solution Services, the Merchant may be required to pay to bSecure such prepayment amounts on a monthly basis as is specified by bSecure from time to time, and which amounts shall be reflected in the bSecure Wallet as an advance against the provision of the Checkout Solution Services for the monthly period covered. The advance amounts in the bSecure Wallet shall be utilized for payment of: (i) Fees as contemplated in Clause 2.3 below; and (ii) the balance amount after deduction of Fees (if any) may be appropriated by bSecure towards the cost incurred by bSecure for making the Checkout Solution Services available to the Merchant.
2.3 Against each successful Transaction, bSecure shall deduct the Fees from the bSecure Wallet. Alternatively, the Merchant shall make payment of the Fees in respect of a Transaction by depositing such Fees in the bSecure Bank Account within five (5) business days of the initiation of the Transaction only if the Transaction is successful.
3. REFUNDS
3.1 The Merchant agrees and undertakes to display its refund policy in respect of the Merchant’s goods or services on the Merchant’s websites.
3.2 The Merchant shall not make any refunds or reversals in respect of a Transaction by payment in cash to the Customer and all refunds/chargebacks in respect of a Transaction shall be made through electronic payment. bSecure shall assist the Merchant in processing of refunds/chargebacks.
3.3 All reversals/chargebacks shall be processed in accordance with card/non-card organizations reversal/chargeback mechanisms applicable to bSecure directly or through its service providers and communicated to the Merchant in terms of bSecure’s chargeback policy which will be based on the chargeback policy of the service providers onboarded by bSecure and will be communicated to the Merchant from time to time .
ANNEXURE B
MARKETPLACE TERMS
The following terms and conditions, in addition to the Terms, are applicable in respect of the provision of bSecure Marketplace Services to the Merchant.
1. MARKETPLACE
1.1 bSecure shall feature the goods/services for sale on the bSecure Platform using the information relating to the description and price of goods and service as provided by the Merchant.
1.2 The manner in which the goods/services are featured on the bSecure Platform and its placement on the bSecure Platform shall be the sole responsibility of and at the discretion of bSecure.
1.3 Any particular good/services featured on the bSecure Platform may be delisted by bSecure if sale of the good/service would contravene any Applicable Law or the Merchant breaches any of its obligations under the Agreed Terms and in such case the Merchant shall be notified immediately.
1.4 Featuring any good/service on the bSecure Platform shall constitute an offer of sale on display by the Merchant to all persons using the bSecure Platform.
1.5 Where a Customer places an order for purchasing a good/service through the bSecure Platform, it shall be deemed to be an acceptance of the Merchant’s offer to sell the good/service and a binding Customer Contract shall come into force.
2. PAYMENTS
2.1 bSecure shall receive and process all payments for goods and services sold by the Merchant using the Marketplace Services in accordance with the Agreed Terms.
2.2 In the case of electronic payment, bSecure shall have the right to deduct its Fees in respect of a Transaction from the amount charged to the Customer and process and receive all payments for goods or services purchased using Marketplace Services on behalf of the Merchant. bSecure shall make payment of the amount paid for the good or service to the Merchant less the Fees and any deductions (including the Transaction Taxes) made to the Merchant pursuant to the Agreed Terms (the “Settlement Funds”).
2.3 The Settlement Funds shall be remitted to the Merchant Bank Account at such frequency as is communicated by bSecure to the Merchant from time to time.
2.4 In the event bSecure does not deduct the Fees or other charges payable by the Merchant in respect of a Transaction or is otherwise unable to do so the Merchant shall be obligated to pay such Fees or other charges by depositing such Fees or other charges in the [bSecure Bank Account] within [insert] business days of the relevant Transaction.
2.5 In the event the Customer chooses to pay for a Transaction by way of cash on delivery, bSecure shall deduct the Fees from any outstanding balance it may have with regards to any previous electronic payments processed through the bSecure Platform. In the event, bSecure does not have any outstanding balance, the Merchant shall pay the Fees to bSecure in respect of such Transaction by depositing such Fees in the bSecure Bank Account within five (5) business days of initiation of such Transaction whether the Transaction is successful or not.
2.6 bSecure shall not be liable for any failure to remit Settlement Funds to the Merchant due to incomplete or inaccurate information provided by the Merchant on the Merchant Portal including any incomplete or inaccurate details of the Merchant Bank Account
2.7 bSecure shall have the right to set off any and all sums owed by the Merchant to bSecure under any agreement between the Parties against any amount payable to the Merchant by bSecure under the Agreed Terms including the Settlement Funds.
3. REFUNDS
3.1 All refunds in respect of a Transaction shall be made in accordance with bSecure’s refund policy.
3.2 The Merchant agrees to reimburse bSecure for each refund made to a Customer and for that purpose authorizes bSecure to deduct the amount of each refund from the Settlement Funds and return such refund to the relevant Customer.
3.3 bSecure agrees that the amount of any refund it shall make to the Customer shall be an amount less than or equal to the value of the Transaction to which it relates.
3.4 The Merchant acknowledges that all refunds shall be processed by bSecure in accordance with card/non-card organizations reversal/chargeback mechanisms applicable to bSecure.
4. DISPUTE RESOLUTION POLICY
4.1 All disputes in relation to a Transaction through the bSecure Platform shall be resolved in accordance with the dispute resolution policy of bSecure.