POKEA PAY MERCHANT TERMS AND CONDITIONS
1.1. This Pokea Pay Merchant Terms and Conditions is the Agreement between you (the “Merchant”) and Pokea Pay Limited (the “Service Provider”) with respect to your access and use of Pokea Pay services.
1.2. Pokea Pay is available to individual and corporate Merchants.
a) If you are an individual, you must be a resident in the Republic of Kenya and at least 18 years old
b) If you are a business, the business must be incorporated in and operating in the Republic of Kenya.
1.3. Please read carefully all of the terms and conditions of this Agreement before accessing or using Pokea Pay services.
1.4. We may amend this user agreement and any of the policies listed above from time to time. The revised version will be effective at the time we post it on our website, unless otherwise noted. If you do not agree to the revised terms and conditions, you must stop using the Pokea Pay service.
2.0 About Pokea Pay
2.1. Pokea Pay is a client management and payments processing solution, offering its clients an end-to-end customer conversion journey, i.e., from client acquisition, conversion, sale and payment processing using a simple and intuitive payments processing system that incorporates multiple modes of payment including card, mobile money and digital wallets.
2.2. Pokea Pay services are delivered to clients via system accounts (“Merchant Accounts”). The Merchant Accounts let clients conduct several transactions such as:
a) Accept bank, card and/or mobile money payments from members of the public
b) Make payments to other Pokea Pay merchants using your Pokea Pay account balance
c) Send money to members of the public using mobile money
3.0 Merchant Account
3.1. To be registered on Pokea Pay, you must fill the prescribed online form presented in our merchant portal (merchant.pokeapay.com), providing us accurate information, including but not limited to personal information, financial information, or other information related to you or your business. You understand that Pokea Pay reserves the right to accept or reject your request for a Pokea Pay Account.
3.2. You may use your Pokea Pay Account to sell goods or services, even if your business is not incorporated. Pokea Pay allows you to use a company or business name as the name of your Pokea Pay Account.
3.3. You may allow employees access to some of the features of your Pokea Pay account. You are, however, responsible for maintaining adequate security and control of any and all user names, passwords, or any other codes that you use to access your Pokea Pay account and services.
3.4. You must keep your mailing address, email address and other contact information current in your Pokea Pay account profile.
3.5. By opening up a Merchant Account, you certify to us that you are using it primarily for a business or commercial purpose. You also consent to Pokea Pay obtaining your personal and/or business information from Government of Kenya agencies and financial service providers at account opening, when you request certain products and whenever we reasonably believe there may be an increased level of risk associated with your Merchant Account.
3.6. Additional agreements and/or due diligence processes may be required once your Pokea Pay transactions reach certain volumes, or to allow you accept Visa and MasterCard payments. Such additional requirements will form part of this Agreement.
3.7. You may close your account and terminate your relationship with us at any time without cost or penalty, but you will remain liable for all obligations related to your Pokea Pay Account even after the Pokea Pay Account is closed. The obligations include, but not limited to:
a) Outcome of investigations touching on your Pokea Pay Account
b) If you have a pending transaction or an open dispute or claim.
c) If your Pokea Pay Account has a negative balance.
3.8. When you close your Pokea Pay account, we will cancel any scheduled or incomplete transactions.
3.9. You must withdraw or transfer any balance from your Pokea Pay Account before closing it.
4.0 Payment Gateway
4.1 Pokea Pay supports several payment modes including bank, card and mobile money.
4.2 You can receive M-PESA, VISA or MasterCard payments into your Pokea Pay Account. Such payments can be made by yourself and/or your customers.
4.3 For purposes of settling or accessing received funds, you can link a bank account or a personal M-PESA account to your Pokea Pay Account.
4.4 You are required to keep your settlement account information current at all times. If this information changes, you may request Pokea Pay to update your records. This may include unlinking of a settlement account from your Pokea Pay Account.
4.5 The Merchant hereby gives Pokea Pay full permission and authorization to receive all settlements and collections on its behalf, from payment service providers integrated with Pokea Pay, and to liaise with such participating payment service providers, in order to make all due settlements to it, and on its behalf, through the Pokea Pay platform.
5.0 Third-Party Access
5.1 You may find it necessary, in the course of your business, to grant permissions for some third parties to take certain actions on your behalf. In some cases, you can do this when logged into your Pokea Pay Account – in other cases, you can do this directly with the third party.
5.2 You acknowledge that if you grant permission for a third party to take actions on your behalf, we may disclose certain information about your Pokea Pay Account to this third party.
5.3 Granting permission to any third party to access your Pokea Pay Account in any way does not relieve you of any of your responsibilities under this Agreement. You are liable to us for the actions that you authorize third parties to carry out. You will not hold us responsible for, and you will indemnify us from, any liability arising from the actions or inactions of such third parties in connection with the permissions you granted, subject to your mandatory legal rights.
5.4 You are responsible for ensuring data security on your business platform/website and for all data and Confidential information acquired by third parties.
6.0 Pokea Pay Wallet
6.1 Your Pokea Pay Account contains a digital wallet which holds record of funds you have received and amounts settled or unsettled by Pokea Pay. A balance in this digital wallet therefore represents your cash claims against Pokea Pay.
6.2 Your Pokea Pay Wallet will reflect your balance in Kenya Shillings. You may only withdraw the balance in Kenya Shillings. If you receive payments in another currency other than Kenya Shillings, we will have to convert the currency at Pokea Pay’s exchange rate, which may include a currency conversion fee.
6.3 Your balance and the balances of other Merchants are held separate from Pokea Pay’s corporate funds, and Pokea Pay will neither use these funds for its operating expenses or any other corporate purposes nor will it voluntarily make these funds available to its creditors in the event of bankruptcy.
6.4 You will not receive interest or other earnings on the amounts in your balance. You agree to assign any rights to any interest derived from your funds to Pokea Pay.
6.5 You may use any of the Pokea Pay approved payment methods fund your Pokea Pay Account. Such funds will be held as a balance in your Pokea Pay Wallet.
6.6 You may withdraw funds from your Pokea Pay Wallet by transferring it to a bank account linked to your Pokea Pay Account, or transferring it to an M-PESA account linked to your Pokea Pay Account. These are the only means available to withdraw funds.
6.7 To protect us and Merchants from loss, we may delay a withdrawal in certain situations, including if we need to confirm that you have authorized the withdrawal or if other payments to your Pokea Pay account have been subject to a reversal (for example, as a result of a chargeback, bank reversal or dispute by a buyer).
6.8 We may charge a fee to make a transfer to your bank account or M-PESA account. The applicable fees will be disclosed to you in advance each time you initiate such a withdrawal.
7.1 This Agreement shall commence from the date of electronic acceptance of these Terms and Conditions (“Effective Date”) and shall continue for a period of twelve (12) months (“Initial Term”) unless any Party terminates the Agreement in accordance with this Agreement.
7.2 Upon expiry of the initial term, this Agreement shall automatically renew for successive one (1) year periods until terminated in accordance with this Agreement.
8.0 Pokea Pay’s Obligations
8.1 Work a commercial bank to ensure that settlements of all monies collected by the Merchant into the Pokea Pay Wallet is handled in a timely manner in accordance with Applicable Law and Payment Scheme Rules;
8.2 Work with the Merchant to provide the requisite integration technical specification and APIs in respect of the Pokea Pay Payment Gateway subject to the Merchant’s acceptance of Pokea Pay Merchant Terms and Conditions;
8.3 Provide technology support to the Merchant on a discretionary basis;
8.4 Provide post-implementation support to the Merchant and its customers;
8.5 Handle settlement of all monies collected by Merchants to Merchant’s bank account in Merchant’s preferred bank;
8.6 Advise Merchant by email on the start date, upon successful completion of set-up of the Merchant on Pokea Pay system and Payment Gateway; and
8.7 Provide adequate technical support for the test duration where applicable during the implementation of the task stated in clause 5.11 above.
9.0 The Merchant’s Obligations
9.1 To offer and promote Pokea Pay services to its customers;
9.2 To respond to all fraud enquiries not later than one (1) Business Day of receipt of such enquiry;
9.3 To respond to all Chargebacks enquiries with sufficient proof and evidence of value/service delivery within one (1) Business Day of receipt of such enquiry;
9.4 That for any undisputed Chargebacks, the Merchant will be liable and would have to provide an equivalent sum for Chargebacks;
9.5 To promptly notify Pokea Pay of any security breach, misuse, irregularity, suspected fraudulent transaction or suspicious activities that may be connected with attempts to commit fraud or other illegal activity through the use of Merchant’s site and the corrective action the Merchant has taken;
9.6 To ensure adequate fraud protection and compliance to regulatory and Payment Scheme rules and requirements;
9.7 To notify Pokea Pay of any change in the Merchant’s registered office address, Merchant’s activities and/or line of business prior to such change;
9.8 To provide a full scope of future plans and use cases of the provided Pokea Pay APIs;
9.9 To put in place appropriate security measures to monitor, control and prevent fraud on Merchant website;
9.10 Be fully responsible for its employees’ actions while in the Merchant’s employ;
9.11 To ensure that at all times, the following information is displayed on its website;
a) Return, Refund and cancellation Policy
b) Description of the service (s) being offered for sale
c) Delivery policy for the service(s) offered for sale
d) Commitment to process orders promptly (stating in clear terms delivery timelines where applicable)
e) An undertaking to ensure the security of Cardholders’ information and not to violate the privacy of Cardholders who transact on its site.
f) Phone number(s) and e-mail address(es) for customer service contact.
g) An undertaking to respond to all customer enquiries/issues within one (1) Business Day;
9.12 To utilize the Pokea Pay integration specification document and APIs in the prescribed manner;
9.13 Fully comply with all applicable payment scheme rules and government regulations in relations to the transaction entered herein;
9.14 To provide immediate notice of (i) any unauthorised third-party use of the Services or any third party that may have access to cardholder data; and/or (ii) any event which might lead to such unauthorised use;
9.15 To immediately notify Pokea Pay of any act, omission or error which does or may adversely affect the Merchant’s ability to perform their obligations under this Agreement or cause loss or damage to Pokea Pay (including but not limited to any material change in the nature or extent of the Merchant’s business);
9.16 The Merchant shall comply with any additional security, authentication, risk control or other requirements imposed by Pokea Pay or a Payment Scheme, including but not limited to where that Merchant is, in the opinion of Pokea Pay and / or the Payment Scheme, engaged in high risk activities;
9.17 To comply with Applicable law and any relevant Payment Scheme Rules to which the Merchant is subject. The Merchant shall not act in contravention of or cause Pokea Pay to act in contravention of any Payment Scheme Rules to which Pokea Pay is subject;
9.18 Maintain a 10% rolling reserve from daily settlement due to the Merchant for a period of 180 days;
9.19 In order to ensure continued compliance with the requirements of competent regulators, the Merchant understands and accepts that Pokea Pay provides its Services subject to the written approvals, directives, notices or authorisations as may be issued by the regulators from time to time and the Payment Scheme Rules. The Merchant further accepts that Pokea Pay may make any such changes to the Services or this Agreement as are strictly necessary to ensure compliance with regulations and the Payment Scheme Rules and the continuous provision of the Services to the Merchant; and
9.20 The Merchant agrees that it will be responsible for and liable to Pokea Pay for all reasonable expenses associated with and any losses from over limit processing or reasonable expenses incurred by Pokea Pay in seeking fraud or unauthorized transaction recovery under Applicable Law that was a result of the Merchant’s action or inaction including actions of the Merchant’s employees.
10.0 Fraudulent Transactions, Chargebacks and Refunds
10.1 Fraudulent transactions shall include but not be limited to:
a) Any purchase of goods and services and/or transaction arising from the use of a card or mobile money wallet by a person other than the authorized holder.
b) Use of a card and/or mobile money wallet that is not authorised in terms of the rules governing payment instrument.
10.2 In the event that fraudulent transactions account for more than 0.10% of the Merchant’s sales turnover in any one (1) month, Pokea Pay may, in addition to any other remedy available to it, be entitled to unilaterally terminate this Agreement.
10.3 Merchant agrees that it will always be responsible for the actions of;
a) the Merchant’s customers; and
b) The Merchant’s employees, including fraudulent acts or omission not traceable to the contributory negligence of Pokea Pay.
10.4 If applicable, the Merchant acknowledges and agrees that fraudulent transaction and other circumstances may lead a payment service provider to (i) refuse to settle a transaction or (ii) impose Chargebacks on Pokea Pay.
10.5 The Merchant agrees that it may be required to reimburse Pokea Pay for Chargebacks where the Merchant has accepted settlement in respect of the relevant transaction. Where applicable, the Merchant must respond to card and/or mobile money holder or disputes and handle Chargebacks in accordance with the relevant payment service scheme.
10.6 The Merchant agrees that Pokea Pay shall have the right to send non-settled transactions received from the Merchant Customers to payment service providers/authorities concerned for the purpose of checking and in case of objection and/or opposition on the executed transactions by the payment service provider or the authorities concerned for any reason, Pokea Pay shall not be bound to pay the Merchant the transaction amount during the period contained in this agreement.
10.7 All Chargebacks shall correspond to the whole or part of the settlement value of the original transaction.
10.8 Where Chargebacks occur, Pokea Pay shall immediately be entitled to debit the Merchant’s Pokea Pay Wallet or make a reversal from the Merchant’s bank account and/or mare a reversal from the Merchant’s M-PESA account and/or make a deduction from any remittance and /or invoice the Merchant to recover:
a) the full amount of the relevant Chargeback; and
b) any other costs, expenses, liabilities or Fines incurred as a result of or in connection with such Chargeback (“Chargeback Costs”).
10.9 A Chargeback represents an immediate liability from the Merchant to Pokea Pay and where the full amount of any Chargebacks and/or any Chargeback Costs is not debited by Pokea Pay from the Merchant’s Pokea Pay Wallet or bank account or deducted from any remittance or invoiced as referred to in the previous clause, then Pokea Pay shall be entitled to otherwise recover from the Merchant by any means, the full amount of such Chargeback or Chargeback Costs (or the balance thereof, as the case may be).
10.10 Pokea Pay shall not be obliged to investigate the validity of any Chargeback by any payment service provider or other financial institution, whose decision shall be final and binding in respect of any Chargebacks.
10.11 As Chargebacks may arise a considerable period after the date of the relevant transaction, Pokea Pay shall remain entitled to recover Chargebacks and Chargeback Costs from the Merchant in respect of all Chargebacks, even after the termination of the contractual relationship between the Merchant and Pokea Pay.
10.12 Pokea Pay may immediately terminate this Agreement and the Services provided hereunder if Pokea Pay in its sole opinion considers that the total value of Refunds and/or Chargebacks is unreasonable.
10.13 The Merchant agrees and confirms that it shall remain solely liable after the termination of the Agreement for all Chargebacks, Refunds, penalties, loss, damages or cost incurred by Pokea Pay, payment service provider, and/or Customers and for all claims and proceedings arising against Pokea Pay with respect to the Agreement.
11.0 Set Off
11.1 Pokea Pay may, without notice, set off any debts or liabilities due from the Merchant to Pokea Pay under this Agreement against any debts or liabilities owed by Pokea Pay to the Merchant, regardless of the place of payment or currency of either obligation. If the obligations are in different currencies, Pokea Pay may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
11.2 Pokea Pay is entitled to defer any settlement or any other sum due to the Merchant to the extent that Pokea Pay considers necessary or appropriate to protect their ability to recover the Fees and/or the sums or any other liability (actual or anticipated) of the Merchant in connection with this Agreement.
11.3 If Pokea Pay has reasonable suspicion that a transaction may be fraudulent or involve other criminal activity, Pokea Pay may suspend the processing of that transaction and any connected, transaction, or withhold settlement until the satisfactory completion of any investigation. The Merchant shall not be entitled to any interest or other compensation whatsoever in respect of suspension or delay in receiving Payment.
11.4 The exercise by Pokea Pay of any of its rights under this clause shall be without prejudice to any other rights or remedies (including but not limited to set-off) to which Pokea Pay is otherwise entitled (by operation of law, contract, or otherwise).
12.0 Pokea Pay Service Fees
12.1 Pokea Pay Service Fees under this Agreement is as may be updated from time to time on pokea pay.com/pricing.
12.2 Pokea Pay is entitled to recover and withhold:
a) any Refunds; and
b) any Chargebacks and any fines imposed by Visa, MasterCard, M-PESA or any other card payment network.
12.3 The Merchant may mark-up fees to its Customers without recourse to Pokea Pay.
13.1 The Merchant warrants that it has never had an agreement with a payment scheme provider which was terminated upon request and/or demand by the payment scheme provider or any regulatory authority.
13.2 The Merchant warrants that it shall not submit any transaction that the Merchant knows is illegal, fraudulent or restricted for authorization, or not authorized by the cardholder and/or M-PESA account holder.
13.3 The Merchant warrants it will conduct appropriate due diligence on all Customers.
13.4 The Merchant warrants that it shall fully cooperate where any forensic investigation is being conducted on the Merchant until such time the investigation is completed.
13.5 The Merchant warrants it will use the Services in good faith, in accordance with the terms of this Agreement and in accordance with all Applicable Law and Payment Scheme Rules. In particular, the Merchant will not use the Services in a manner that that could result in a violation of anti-money laundering, counter terrorist financing and similar legal and regulatory obligations.
13.6 The Merchant warrants that the Merchant has not been subject to the following:
a) Criminal conviction (except minor traffic offenses and other petty offenses) in Kenya or in any other foreign country;
b) Government of Kenya tax lien, or any foreign tax lien;
c) Administrative or enforcement proceedings commenced by any regulator of competent jurisdiction in Kenya or in any other country; or
d) Restraining order, decree, injunction, or judgment in any proceeding or lawsuit, alleging fraud or deceptive practice on the part of the Merchant.
13.7 The Parties warrants that they are duly registered and licensed (where applicable), and have the full capacity, regulatory approvals and corporate authorisation to enter into this Agreement and discharge the obligations and responsibilities created herein.
13.8 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 the Republic of Kenya.
13.9 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.
13.10 Each Party warrants to the other that this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with the terms and obligations therein and no provision of this Agreement is in conflict with any of the Party’s obligations under its constitutional documents, Applicable Law or any other document, charter or agreement to which the Party is subject,
13.11 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.
13.12 Pokea Pay neither warrants that the use of its systems will be uninterrupted nor error free, however, Pokea Pay warrants that it shall use its best endeavours to ensure that the systems function optimally at all times and within generally accepted industry standards during the term of this Agreement.
13.13 Pokea Pay makes no express or implied representations or warranties with respect to the systems and related services or their condition, merchantability, fitness for any particular purpose or use by the Merchant or the Merchant’s customers.
13.14 Except for the warranties specifically set forth in this agreement, each party disclaims all warranties of any kind, express or implied, arising out of or related to this agreement, including without limitation, any warranty of marketability, fitness for a particular purpose or non- infringement, and implied warranties arising from course of dealing or course of performance, each of which is hereby excluded by agreement of the parties.
14.1 Either Party shall indemnify and hold the other Party, its Affiliates, employees and agents harmless from and against any damage, loss, expense, claims or liability that Party may incur:
a) With respect to any negligent act or omission by, or wilful misconduct of, the Party’s employees or agents to the extent however that such negligent act can be situated in the normal course of employment or appointment;
b) The violation of any applicable law, statute or regulation by the Parties or their personnel; or
c) In connection with any third party claims, actions, demands and/or losses to the extent that such losses result from any breach of this Agreement by such indemnifying Party.
14.2 The Merchant shall indemnify and hold Pokea Pay harmless from and against any damage, loss or liability that Pokea Pay may incur as a result of:
a) Merchant wilfully or carelessly exposing the process/product/service to the general public during the process of carrying out tests;
b) Negligent or wilful misconduct of the Merchant and/or its employees, Affiliates, employees and agents;
d) Any warranty, condition, representation, indemnity or guarantee granted by the Merchant with respect to the Payment Gateway with respect to the limited warranties specified in clause 13;
e) Any omission or inaccuracy in the Merchant’s advertisements or promotional materials that relate to the Payment Gateway,
f) Any modification of or addition to the Payment Gateway not provided or approved by Pokea Pay or;
g) The Merchant’s failure to comply with the terms and conditions of this Agreement or any part thereof.
14.3 This section will not be construed to limit or exclude any other claims or remedies to which Pokea Pay may be entitled hereunder or in law or equity.
15.0 Transaction Collateral
15.1 Pokea Pay may maintain a 180-day rolling reserve of funds to be settled to the Merchant upon accumulation of the Risk Deposit Amount.
a) The rolling reserve shall be 10% of all the transactions from the Merchant’s Customers during the calendar month.
b) Pokea Pay shall be entitled to use the 180-day rolling reserve to cover any Chargebacks or Refunds or any fees/fines imposed on Pokea Pay due to the breach of the Agreement by the Merchant.
c) The 10% rolling reserve shall be released on day 181 to the Merchant’s bank account.
d) In the event that the Chargebacks and the Refunds are higher than the 10% rolling reserve. Pokea Pay is entitled to set-off the amounts from the Merchant transaction until the sum of fine/fee is covered.
15.2 Pokea Pay may require that any Transaction Collateral provided be supplemented or replaced any time.
15.3 At the time of Termination, Pokea Pay may retain any such amount from the Transaction Collateral (if any) and settlement payable to the Merchant as may be determined by Pokea Pay to cover Chargeback, risk, Refund risk or any potential loss, damages, penalties, cost that may be incurred by Pokea Pay for a period of one hundred and eighty (180) Business days. In the event that such retained amount is not sufficient to cover all outstanding amounts of the Merchant post termination, the Merchant shall ensure that it pays Pokea Pay all pending amounts within ten (10) Business Days of receiving the demand notice and shall at all times keep Pokea Pay indemnified in this respect.
16.0 Limitation Of Liability
16.1 The liability of Pokea Pay to the Merchant, 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:
a) In no event shall Pokea Pay be liable to the Merchant in excess of any amount that has accrued to Pokea Pay from transactions emanating by virtue of this Agreement, in the month immediately preceding the date the first such claim arises.
b) No liability shall be raised against Pokea Pay 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 Pokea Pay.
c) Pokea Pay will not be liable for the actions or inactions of any third party not acting on the instructions of Pokea Pay; neither will Pokea Pay be liable for the actions or inactions not directly traceable to it.
17.1 Either Party may terminate this Agreement forthwith by giving’ notice in writing to the other Party if:
a) the other Party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
b) the other Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
17.2 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 ten (10) Business Days of receiving a written notice requiring it to do so.
17.3 Pokea Pay may terminate this Agreement and delist the Merchant where the Merchant is identified as a source of fraudulent activity or causes damage to Pokea Pay’s brand or Payment Schemes or upon instruction from Payment Schemes whether financial or otherwise.
17.4 Either Party may terminate this Agreement at any time on giving one (1) month’s written notice to the other Party.
17.5 On Termination, the Parties shall be discharged from any liability for further performance of its obligations under this Agreement and shall entitle either Party to be paid the accrued sum for any successful transaction prior to such termination.
17.6 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.
17.7 Upon termination of this Agreement the Merchant’s right to use the Payment Gateway shall automatically be revoked and Pokea Pay shall retain the merchant records for a period of five (5) years after such termination.
18.1 In order to implement this Agreement, Both Parties may receive and have access to certain information belonging to the other Party which the other Party may designate as Confidential Information, provided, the Parties recognize that they will not have access to, or share, non-public personal information regarding consumers under this Agreement. Both Parties agree that all Confidential Information is and shall remain the property of the Party providing the information and the Party receiving or gaining access to the information shall use all reasonable and prudent means to safeguard such Confidential Information, including all means required by law. Furthermore, neither Party shall copy, publish, disclose to others, or use such Confidential Information for any purpose other than the fulfilment of its obligations under this Agreement or where required by law.
18.2 Each of the Parties on behalf of itself and its employees, officers, directors, Affiliates, and agents, hereby agrees that Confidential Information made available to it will not be disclosed or made available to any third party, agent or employee for any reason whatsoever, other than with respect to: (i) its employees on a “need to know” basis, (ii) Affiliates on a “need to know” basis, provided that they are subject to a confidentiality agreement which shall be no less restrictive than the provisions of this Section 18; and (iii) as required by Applicable Law or as otherwise permitted by this Agreement, either during the term of this Agreement or after the termination of this Agreement, provided that prior to any disclosure of any party’s Confidential Information as required by law, the party subject to the requirement shall (iv) notify the other parties of all, if any, actual or threatened legal compulsion of disclosure, and any actual legal obligation of disclosure immediately upon becoming so obligated and (v) cooperate with the other parties’ reasonable, lawful efforts to resist, limit, or delay disclosure.
18.3 Upon Termination of this Agreement, or at any time upon the request of the other party, each party shall return all Confidential Information in the possession of such Party or in the possession of a third party (over which such party has or may exercise control).
18.4 In the event of any breach of the obligations under this Section 18, each Party acknowledges that the other Party may have no adequate remedy at law, in addition to such other remedies as may be available to the other Party, the other Party may obtain injunctive relief.
18.5 This Section shall survive any termination or expiration of this Agreement.
19.0 Force Majeure
19.1 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 third parties or the other Party, to resume full performance.
19.2 If the period of incapacity exceeds two (2) months, then this Agreement shall automatically terminate unless Parties expressly agree otherwise in writing
20.0 Relationship Between Parties
20.1 The relationship between the Parties hereto shall be one of collaboration for the single purpose of the business relationship herein created.
20.2 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.
20.3 This Agreement is not intended to confer on any person other than Pokea Pay and the Merchant, any express or implied benefit or burden.
21.0 Intellectual Property
21.1 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.
21.2 All Intellectual Property Rights in or related to the Payment gateway are and will remain the exclusive property of Pokea Pay, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Payment gateway is used or licensed. The Merchant shall not take any action that jeopardizes Pokea Pay’s proprietary rights or acquire any right in the Payment gateway, or the Confidential Information, as defined herein.
21.3 Unless otherwise agreed on a case-by-case basis, Pokea Pay 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.
22.1 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.
22.2 Pokea Pay may sub-contract or delegate the performance of its obligations under this Agreement to third parties including any of its Affiliates; however, the Merchant shall remain responsible for the performance of its duties under this Agreement.
22.3 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.
22.4 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.
22.5 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.
23.0 Disputes And Dispute Resolution
23.1 Pokea Pay shall not be involved in any disputes that may arise between the Merchant and any of its Customers, unless such dispute specifically relates to transaction settlement.
23.2 In the event of a dispute between Parties with respect to any issue arising out of or relating to this Agreement in any manner, including but not limited to the breach thereof, resolution of which cannot be resolved amicably by the Parties through negotiation within thirty (30) days shall be resolved by arbitration before a single arbitrator appointed by the Chairperson of Chartered Institute of Arbitrators (UK), Kenya Branch.
23.3 The arbitration shall be held in Nairobi, Kenya and conducted in English language.
23.4 The decision of the arbitrator shall be final and binding on the Parties and Parties agree to be bound by it. Such decision shall be rendered within thirty (30) days of the closing of the hearing record.
23.5 The cost of arbitration shall be borne equally by the Parties.
23.6 The Arbitral award rendered by the arbitrator shall be entered in any court of competent jurisdiction as judgment. No award of punitive damages by the arbitrator may be enforced.
23.7 This Agreement shall be governed by the Laws of the Republic of Kenya.
24.0 Whole Agreement
Save for Pokea Pay Terms and Conditions and Payment Scheme Rules of this 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 and the Pokea Pay Terms and Conditions.