Flutterwave Technology Solutions Limited.
THIS AGREEMENT is made this 3 day of September 2017
FLUTTERWAVE TECHNOLOGY SOLUTIONS LIMITED. a company incorporated under the Laws of the Federal Republic of Nigeria and having its place of business at Xxxxx 00, Xxxx 0, Xxxxxxxxxx Xxxxxx, Xxxxx, Xxxxx (hereinafter referred to as “Flutterwave” which expression shall, where the context so admits, include its successors and assigns)
PayQin Limited , a company incorporated under the Laws of the GB and having its registered office at 00, Xxx Xxxxxxxxxx Xxxxxx, XXXXXX, XX0X 0XX, XXXXXX XXXXXXX (hereinafter referred to as “The Client” which expression shall, where the context so admits, include its successors and assigns)
Flutterwave and the Client shall be collectively referred to as “the Parties” or individually as “a Party”.
A. Flutterwave is an integrated payment and transaction processing company that provides technology integration, advisory services, and transaction processing and payment infrastructure to government, Client and corporate organizations across various sectors.
B. Flutterwave has developed and owns an e-commerce service that authorizes payments for merchants and is currently seeking to increase its customer base.
C. Flutterwave is in partnership with the Acquiring bank to provide a payment service gateway to the client.
D. The Client owns a payment services platform that utilises the Payment gateway, and is strategically positioned to channel its clientele through the Payment gateway.
E. Flutterwave has approached the Client, and the Client has agreed that they enter into a strategic relationship for the purposes of facilitating the channelling of the Client’s clientele through the Payment gateway and the marketing of the Payment gateway subject to the terms and conditions contained herein.
NOW IT IS HEREBY AGREED as follows:
In this Agreement, the following definitions apply:
“Agreement” means this Merchant Service Agreement; “Customers” means merchants and sub-aggregators
“Confidential Information” means all information relating to the Disclosing Party which is obtained, whether in writing, pictorially, in machine readable form or orally or by observation in connection with this Agreement, including but without limitation, financial information, know-how, processes, ideas, intellectual property (irrespective of its registerability or patentability status), schematics, trade secrets, technology, customer list (potential or actual) and other customer- related information, sales statistics, market, market intelligence, marketing and other business strategies and other commercial information of a confidential nature but does not include information which is known to the Receiving Party without any limitation or restriction on use or disclosure before receipt of such information from or on behalf of the disclosing party or becomes publicly available, other than as a breach of this Agreement, or becomes lawfully available to the Receiving Party from a third party free from any confidentiality restriction or any information required to be disclosed under any relevant law or any binding judgment or order of court or
arbitration tribunal or any stock exchange regulations or under direction from any relevant regulatory authority;
“Disclosing Party” means any one of the Parties under this Agreement who discloses Confidential Information to another person other than the Parties to this Agreement;
“Market” means introduce and promote adoption of the payment gateway to client’s clientele
“Acquiring Bank” means the financial institution / bank institution that processes credit or debit card payments on behalf of a merchant.
“Payment Solutions” means the service offered by the client
“Payment gateway” means the e-commerce service that authorizes payments for merchants;
“Receiving Party” means any person receiving Confidential Information from a Party under this Agreement
“The Purpose” means usage of the Flutterwave APIs by the client for its payment services.
Flutterwave hereby grants the Client the non-exclusive right to channel its clientele through the Payment gateway.
3.1. This Agreement shall commence from the date of the last signature and shall continue for an initial term of 60 months.
3.2. Upon expiry of the initial term, this agreement shall auto renew for successive one year periods until terminated in accordance with this Agreement.
4. Flutterwave’s Obligations
Flutterwave hereby agrees to:
4.1. Work with Acquiring Bank to ensure that settlements of all monies collected by the Clients are handled in a timely manner.
4.2. Work with the Client to provide the requisite integration technical specification/APIs in respect of any Payment Solution and related fraud protection and compliance support, to the Client’s clientele subject to the Client’s acceptance of Flutterwave’s terms and conditions;
4.3. Set-up the Client as a merchant aggregator/payment service provider on Flutterwave payment platforms;
4.4. Develop/provide card & token processing API’s for all Flutterwave supported card brands and tokens in the market of scope;
4.5. Provide technology support to the Client technology on a discretionary basis using Flutterwave owned digital assets;
4.6. Provide post-implementation support to the Client and its clientele as provided in Annexure 3
4.7. Implement future joint product designs for future initiatives that both parties can benefit from, to also include participation in joint press announcements.
4.8. Handle settlement of all monies collected by Flutterwave’s clients to Client’s Bank Account in client’s preferred Bank. Timeframe for all monies to be settled is found in Annexure 2 and which you also accept upon go-live on xxx.xxxxxxxxxxxxxx.xxx
4.9. On successful completion of the pre-go live user acceptance test (UAT), ensure and advise client by email on the start date to carry out a controlled end to end test in the Live environment with selected internal users only within client’s organization for a period of one or two weeks in order to certify that the entire project implementation is successful and satisfactory with sign off by client.
4.10. Provide adequate technical support for the test duration where applicable during the implementation of the task stated in “4.11” above.
5. The Client’s Obligations
The Client hereby agrees to:
5.1. Turn the Flutterwave infrastructure into the preferred method to route supported cards, payment methods & tokens originated transactions through via the provided APIs in supported countries as mutually agreed upon.
5.2. Client shall respond to all chargeback / disputed transactions enquiries with sufficient proof and evidence of transactions within 24 hours of receipt of such.
5.3. For any chargeback, Client will be liable and would have to provide an equivalent sum for chargebacks. Where the authentication method used is 3D-Secure, the chargeback shall be subject to arbitration with the acquirer network.
5.4. The client agrees to implement secure authentication methods only.
5.5. The client authorises Flutterwave to debit the nominated bank settlement account for the full value plus other lawful charges in respect of all lawful transaction where the Cardholder is adjudged by the acquirer network to be entitled to a refund.
5.6. Notify its clientele of applicable exchange rate as per clause 4.6 and enforce same for every remittance or funds-out transaction (to licensed money transfer solution providers)
5.7. Ensure adequate fraud protection and compliance to regulatory and acquirer network requirements;
5.8. Ensure the Client’s clientele abide by the terms and conditions of the Payment gateway;
5.9. Provide a full scope of future plans and use cases of the provided Flutterwave APIs;
5.10. Implement future joint product designs for future initiatives that both parties can benefit from, to also include participation in joint press announcements;
5.11. Clients warrants that it shall be solely responsible and liable for the Know-Your-Customer (KYC) and Know-Your-Customer Business (KYB) details of all Merchants it introduces to the
Platform and that in the event of fraud or where Flutterwave is called upon in any issue regarding any fraudulent Card transaction or other transaction(s) of any Merchant or Cardholder, Client shall at the request of Flutterwave irrevocably and unconditionally indemnify and defend Flutterwave and/or pay any damages, charges, fees and/or costs awarded against Flutterwave in a resulting final judgment (including reasonable legal fees) arising out of or resulting from any claim, action or demand (collectively a “Claim”) from any merchant or Third Party.
5.12. Put in place appropriate security measures to monitor, control and prevent Fraud on their Platform.
5.13. Ensure that at all times, the following information is displayed on its website and/or the Website of Merchant(s) in relation to the business of such Merchants:
• Return, refund and cancellation Policy
• Delivery policy for the goods/service(s) offered for sale
• Commitment to process orders promptly (stating in clear terms delivery timelines where applicable).
• Description of the goods/service (s) being offered for sale
• An undertaking to ensure the security of cardholders’ information and not to violate the privacy of cardholders who transact on its site.
• Phone number(s) and e-mail address (es) for customer service contact.
• An undertaking to respond to all customer enquiries/issues within 24 hours
5.14. Promote Payment gateway services to its clientele;
5.15. Utilize the integration specification document/APIs in respect of the Payment gateway provided by Flutterwave;
5.16. The Client shall ensure that the provided APIs will be used across all of its applicable digital Client assets;
5.17. Proxy developed by Client will be provided to merchants and sub-aggregators
5.18. Carry out an end to end Acceptance test in the Live environment with selected internal users only within client’s organization and not the general public to certify that integration process was successful/ account settlement confirmation/ account statement narration is satisfactory etc. as applicable for a period of one or two weeks
5.19. Implement the Acceptance test as stated above and close the project by signing off a project Go-Live document provided by Flutterwave for this purpose before exposing Client’s project (product/service) to the general public.
6. Fees & Revenue Share
6.1. Fees Payable for Flutterwave Services under this Agreement shall be structured as provided in A nnexure 1 a n d which you also accept upon Go - l i v e o n www. f lut t erwavedev. com.
6. 2. Client shall be responsible for the direct processors fees from VISA/ MASTERCARD/VERVE/OTHER PAYMENT PROVIDERS which are already contained in the fees contained in Clause 6.1 above.
6.3. Client will be responsible for any bank charges that may apply in respect of funds-out or remittance services.
6.4. Flutterwave reserves the right to increase/reduce/waive its implementation fees, recurrent annual fees & transaction fees from time to time and upon agreement by party’s recourse to
Client but shall notify the client of such increase/reduction/waiver immediately upon its implementation.
6.5. Flutterwave shall charge a setup fee to the Client’s clientele if they require specialized Flutterwave Services.
6.6. The Client may markup fees to its clientele without recourse to Flutterwave.
7.1. The client warrants that it has never had an agreement with a Payment Scheme which was terminated upon request and/or demand by the Payment Scheme or any Regulatory Authority;
7.2. The client must not submit any transaction that the client and its clientele either knows is, or should have known was, illegal or fraudulent;
7.3. The Parties warrant that they are duly registered and licensed, and have the full capacity, regulatory approvals and corporate authorisation to enter into this Agreement and discharge the obligations and responsibilities created herein.
7.4. The Parties further warrant that no element of this transaction constitutes a breach of any existing law, regulation, patent, copyright, or other intellectual property in its country or countries of domicile and operation.
7.5. The Parties warrant that in the case of any third party software used in respect of this Agreement, that they have the required licence and the right to grant a sub-licence to use such third party software.
7.6. The Client warrants it will conduct appropriate customer due diligence using a risk based approach on all clientele.
7.7. The Client warrants to keep records of clientele identification evidence obtained for at least five years from the end of the business relationship.
7.8. The Parties shall keep each other indemnified against all actions, claims, proceedings and all legal cost or other expenses arising out of any breach of the above warranties or out of any claim by a third party based on any facts which if substantiated would constitute such a breach or a breach of other relevant legal or contractual duty.
7.9. Flutterwave neither warrants that the use of the Payment gateway or the operation thereof will be uninterrupted nor error free, however, Flutterwave warrants that it shall use its best endeavours to ensure that the Payment gateway functions optimally at all times and within generally accepted industry standards during the term of this Agreement.
7.10. Except as set forth in this Clause 7, Flutterwave makes no express or implied representations or warranties with respect to the Payment gateway and related services or their condition, merchantability, fitness for any particular purpose or use by the Client or the Client’s clientele.
The Client shall indemnify and hold Flutterwave harmless from and against any damage, loss or liability that Flutterwave may incur:
8.1. with respect to any negligent act or omission by, or wilful misconduct of, the Client’s employees or agents to the extent however that such negligent act can be situated in the normal course of employment or appointment;
8.2. the violation of any applicable law, statute or regulation by the Client or it's personnel;
8.3. by client wilfully or carelessly exposing the process/product/service to the general public
during the process of carrying out tests in the controlled Live environment as stated in “4.12 and 4.13” above.
8.4. as a result of:
8.4.2. any warranty, condition, representation, indemnity or guarantee granted by the Client with respect to the Payment gateway with respect to the limited warranties specified in Clause 7,
8.4.3. any omission or inaccuracy in the Client’s advertisements or promotional materials that relate to the Payment gateway,
8.4.4. any modification of or addition to the Payment gateway not provided or approved by Flutterwave or
8.4.5. the Client’s failure to comply with this Agreement or any part thereof.
8.5. This section will not be construed to limit or exclude any other claims or remedies to which Flutterwave may be entitled hereunder or in law or equity.
9. Fraudulent Transactions
%1. Fraudulent transactions shall include but not be limited to:
· Any purchase of goods and services and/or transaction arising from the use of a card by a person other than the authorized cardholder.
· Use of a card that is not authorised in terms of the rules governing the issuance and use of cards;
%1. In the event that fraudulent transactions account for more than 0.10% of the Client’s sales turnover in any one month, Flutterwave may, in addition to any other remedy available to it, be entitled to unilaterally terminate this Agreement forthwith and/or request the client to delist the affected clientele from the use of the platform and terminate the Merchant Agreement with the affected Merchant.
%1. Client agrees that it will always be responsible for the actions of the introduced Merchants, its employees including fraudulent acts or omission not traceable to the contributory negligence of Flutterwave.
10. Limitation of Liability
The liability of Flutterwave to the Client, whether in contract, negligence, and other tort, by way of indemnity or otherwise arising out of or in connection with this Agreement shall be subject to the financial limits set out below;
10.1. In no event shall Flutterwave be liable to the Client in excess of any amount that has accrued to Flutterwave from transactions emanating by virtue of this Agreement, in the month immediately preceding the date the first such claim arises.
10.2. No liability shall be raised against Flutterwave more than two (2) years after the accrual of the cause of such liability therefore. It is further agreed that the limitations on liability, expressed herein, shall inure to the benefit of and apply to all parents (both direct and indirect), subsidiaries and affiliates of Flutterwave.
10.3. Flutterwave will not be liable for the actions or inactions of any third party not acting on the instructions of Flutterwave; neither will Flutterwave be liable for the actions or inactions not directly traceable to it.
11.1. Either Party may terminate this Agreement forthwith by giving’ notice in writing to the other Party if the other Party shall have a receiver or administrative receiver appointed or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or shall cease or threaten to cease carrying on business or a court of competent jurisdiction shall make an order to that effect.
11.2. This Agreement may also be terminated forthwith by any of the Parties on giving written notice to the other, if the other Party is in material breach of the terms of this Agreement and has failed to rectify such breach (in the case of a breach capable of being remedied) within 30 days of receiving a written notice requiring it to do so.
11.3. Flutterwave may terminate this agreement and delist the client where the client is identified as a source of fraudulent activity or causes damage to the Flutterwave’s brand whether financial or otherwise
11.4. Either Party may terminate this Agreement at any time on giving 2 month’s written notice to the other Party.
11.5. On Termination the Parties shall be discharged from any liability for further performance of its obligations under this Agreement and shall entitle either Party be paid the accrued sum for any successful transaction prior to such termination.
11.6. Any termination of this Agreement (however occasioned) shall not affect any accrued rights or liabilities of any of the Parties nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
11.7. Upon termination of this Agreement the Client’s right to market/sell the Payment Solutions shall automatically be revoked, but the Customers shall continue to enjoy the right to use the Payment Solutions.
12.1. The Disclosing Party shall treat as confidential all Confidential Information and shall not divulge such Confidential Information to a Receiving Party (except to such Disclosing Party’s employees on a need to know basis) without the other Party’s prior written consent provided that this Clause shall not extend to information which was rightfully in the possession of the Receiving Party prior to the commencement of the negotiations leading to this Agreement, which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this Clause).
12.2. The Parties shall ensure that their employees are aware of and comply with the provisions of this Clause. If any party shall appoint any sub-contractor then they may disclose Confidential Information to such sub-contractor, and that party shall in any event be responsible for any breach of the obligations of confidentiality by such sub-contractor or employee. The obligations as to confidentiality shall survive the termination of this Agreement for a period of 2 years after the termination of this Agreement.
12.3. The Receiving Party may disclose Confidential Information only:
12.3.1. to its Representatives who need to know it strictly for the Purpose, on the basis that such Representatives will keep the same confidential on the terms of this Agreement;
12.3.2. as required by law or by any regulation or similar provision, provided that the Receiving Party, where possible, gives the Disclosing Party not less than five (5) business days’ written notice of such disclosure and shall the extent possible disclose only that information necessary; or
12.3.3. to its affiliates.
13. FORCE MAJEURE
13.1. If any of the Parties hereto is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control (including but not limited to an Act of God, Natural Disaster, or Civil Disorder) the Party unable to fulfil its obligations shall immediately give notice in writing of this to the other Party and shall do everything in its power, including but not limited to accepting assistance from 3rd parties or the other Party, to resume full performance.
13.2. If the period of incapacity exceeds two months, then this Agreement shall automatically terminate unless parties expressly agree otherwise in writing.
14. RELATIONSHIP BETWEEN PARTIES
14.1. The relationship between the parties hereto shall be one of collaboration for the single purpose of the business relationship herein created.
14.2. This Agreement shall not in any way constitute a Partnership or Joint Venture between the Parties, or constitute either Party an Agent of the other.
14.3. This Agreement is not intended to confer on any person other than Flutterwave and the Client, any express or implied benefit or burden.
15. INTELLECTUAL PROPERTY
15.1. Nothing set forth in this Agreement shall constitute a transfer or assignment by one Party to another Party of any Intellectual Property Rights owned or otherwise controlled by such Party, and each Party hereby retains all of its rights, title and interest in such Intellectual Property Rights.
15.2. All Intellectual Property Rights in or related to the Payment gateway are and will remain the exclusive property of Flutterwave, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Payment gateway is used or licensed. The Client shall not take any action that jeopardizes Flutterwave's proprietary rights or acquire any right in the Payment gateway, or the Confidential Information, as defined herein. Unless otherwise agreed on a case-by-case basis, Flutterwave will own all rights in any copy, translation, modification, adaptation or derivation of the Payment gateway or other items of Confidential Information, including any improvement or development thereof. The Client shall obtain, at Flutterwave's request, the execution of any instrument that may be appropriate to assign these rights to or perfect these rights in Flutterwave's name.
16. NO ASSIGNMENT
The rights benefits or obligations under this Agreement may not be assigned or otherwise transferred in whole or in part without the prior written consent of all the parties but shall be binding upon and inure to the benefit of each of the parties and, where so permitted, their assigns or other transferees.
This Agreement may not be modified except by an instrument in writing signed by duly authorized representatives of each of the Parties
The respective rights of the Parties (whether arising under this Agreement or under the applicable law) shall not be capable of being waived or varied otherwise than by an express waiver or variation in writing; and in particular any failure to exercise or any delay in exercising any of such rights shall not operate as a waiver or variation of that or any other such right; any defective or partial exercise of any of such right shall not preclude any other or further exercise of that or any other such right; and no act or course of conduct or negotiation on the part of either Party shall preclude them from exercising any such right or constitute a suspension or variation of such right.
In the event that any provision of this Agreement is declared by any applicable law, judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or irrelevant It shall to the extent required by such law or authority, be severed from this Agreement and rendered ineffective so far as is possible without modifying the remaining provisions of this Agreement.
20. FURTHER ASSURANCES
At all times after the date hereof the Parties shall at their own expense execute all such documents and do such acts and things as may be reasonably required for the purpose of giving full effect to this agreement.
21. WHOLE AGREEMENT
This Agreement contains the whole agreement between the Parties with respect to the subject matter hereof and supersedes any prior written or oral agreement between them in relation to its subject matter and the parties confirm that they have not entered into this agreement upon the basis of any representation that are not expressly incorporated herein.
Any dispute arising out of or in connection with the interpretation of the provisions of this Agreement or the performance of same shall be governed by the provisions of the Arbitration and Conciliation Act Cap A18, Laws of the Federal Republic of Nigeria 2004. The dispute shall be resolved by a sole arbitrator and the appointment of the arbitrator shall be in accordance with the said Rules. Any Award/Decision of the arbitrator shall be final and binding on the parties. The seat of the arbitration shall be Lagos, Nigeria and the language to be used in the arbitral proceedings shall be English.
23. GOVERNING LAW
This Agreement shall be governed by the Laws of the Federal Republic of Nigeria.
24.1. Each Party hereby undertakes that, at the date of this Agreement, itself, its directors, officers, employees or affiliates have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with this Agreement and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so.
24.2. Each Party shall comply with all applicable anti-bribery and anti-corruption Laws in any relevant jurisdiction (including those in the Territory and the Foreign Corrupt Practice Act of the United States of America and the Xxxxxxx Xxx 0000 of the United Kingdom) and all applicable anti-bribery and anti-corruption regulations and codes of practice.
24.3. The Client shall ensure that this Clause 22 is observed in all relationship with its clientele.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed in the manner hereinafter appearing.
SIGNED for and on behalf of the within named Flutterwave Technology Solutions Limited.
AUTHORISED SIGNATORY NAME:
SIGNED for and on behalf of the within named PayQin Limited
AUTHORISED SIGNATORY NAME:
Annexure 1 Fees
Flutterwave API Offering & Applicable Fees
Card Acceptance (Local)
1.5% + X00
0% + $0.50
4% + $0.50
Subject to cap of N2000 (applicable in Nigeria only)
Card Acceptance (International)
No cap limit (Amex, JCB, Diners, Maestro are charged at 4.5%)
Mobile Money Acceptance
4% + $0.50
1.5% + X00
0% + $0.50
4% + $0.50
Direct bank account payments
Funds-Out Settlement Service
Applicable to IMTOs and Merchants engaged in multi-country operations
· More channels and New regions are being added. Hence this pricing will be reviewed periodically to reflect changes.
Annexure 2 Settlement
T + 1
T + 2
T + 2
T is the day the transaction occurred
SUPPOrt SERVICE LEVEL AGREEMENT
This annexure outlines the service level standards to be provided by Flutterwave to the client with regards to support under in this Agreement, unless agreed otherwise in the Contract.
“Level 1” shall mean the queries initiated by Senders through various interaction points (email, slack, Helpdesk etc.)
“Level 2” shall mean the queries escalated from level 1 to a specialist team (e.g. Technical team, customer success team, operations team etc)
“Level 3” shall mean the queries escalated from level 2 due to complexity and/or because the resolution will require a system change/update.
Client’s Customer Support
The client is responsible for providing Xxxxx 0, Xxxxx 0, and Level 3 support.
Flutterwave shall provide Level 2 support to the Company in accordance with this Service Level Agreement. Flutterwave shall provide support through its standard support program, accessible at
Faults Severity Classification
The Service is inaccessible and/or unable to operate.
The Service is operational but a major function is not operating or the Service has a fault that significantly effects its normal operation.
The Service has a fault that does not significantly affect its normal operation.
Standard Response Times
Fault Severity and Response Time Frames
Flutterwave Support is delivered
Assistance by email
4 hours this is open ended and may not be acceptable for our business. We propose 4 hrs
Remote online Assistance
4 hours this is open ended and may not be acceptable for our business. We propose 4 hrs
Queries, problems or complaints shall be logged via the Flutterwave website intercom widget, or email@example.com.