Merchant Service Agreement

THIS AGREEMENT IS MADE BETWEEN;
Technovate is a company incorporated under the Laws of the Republic of Suriname and having its place of business at Rode SterWeg #10 (hereinafter referred to as “RXPAY” which expression shall, where the context so admits, include its successors and assigns)
MERCHANT a company incorporated under the Laws of the Republic of Suriname (hereinafter referred to as “the Client” which expression shall, where the context so admits, include its successors and assigns)

RXPAY and the Client shall be collectively referred to as “the Parties” or individually as “a Party”.
WHEREAS:

RXPAY is an integrated payment and transaction processing company that provides technology integration, advisory services, and transaction processing and payment infrastructure to government, private Clients and corporate organizations across various sectors.
RXPAY has developed and owns an e-commerce service that authorizes payments for merchants.
RXPAY entered into a partnership with numerous banks to provide a payment service gateway to the Client.
RXPAY has approached the Client, and the Client has agreed that they enter into a strategic relationship for the purposes of facilitating the channeling of the Client’s Customer 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:
Definitions

In this Agreement, the following definitions apply:

“Agreement” means this Merchant Service Agreement;
API” means Application Programming Interface;
“Client” means and includes the merchant 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 registrability 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;
“Customer” means a Customer of the Client who purchases any products or services from the Client;
“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 Customer
“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 RXPAY APIs by the Client for its payment services.

Appointment
RXPAY hereby grants the Client the non-exclusive right to channel its Customer through the Payment gateway.
Term

This Agreement shall commence from the date of the last signature and shall continue for an initial term of 60 months.
Upon expiry of the initial term, this agreement shall auto renew for successive one year periods until terminated in accordance with this Agreement.

RXPAY’s Obligations

RXPAY hereby agrees to:

Work with Acquiring Bank to ensure that settlements of all monies collected by the Clients are handled in a timely manner.
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 Customer subject to the Client’s acceptance of RXPAY’s terms and conditions;
Set-up the Client as a merchant aggregator/payment service provider on RXPAY payment platforms;
Provide technology support to the Client, on a discretionary basis, using RXPAY owned digital assets;
Provide post-implementation support to the Client and its Customer;
Implement future joint product designs for future initiatives that both parties can benefit from, to also include participation in joint press announcements.

The Client’s Obligations

The Client hereby agrees to:

Turn the RXPAY infrastructure into the preferred method to route supported transactions through via the provided APIs in supported countries as mutually agreed upon.
Respond to all chargeback / disputed transactions enquiries with sufficient proof and evidence of transactions within twenty four (24 hours) of receipt of such enquiries.
Be liable for any chargeback(s).
Implement secure authentication methods only
The Client authorizes RXPAY to debit the nominated bank settlement account for the full value plus other lawful charges in respect of all lawful transaction(s).
Ensure adequate fraud protection and compliance to regulatory requirements.
Ensure the Client’s Customer abide by the terms and conditions of the Payment gateway.
Implement future joint product designs for future initiatives that both parties can benefit from, to also include participation in joint press announcements.
Client 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 RXPAY is called upon in any issue regarding any fraudulent transaction(s) of any Merchant or Customer, shall at the request of RXPAY irrevocably and unconditionally indemnify and defend RXPAY and/or pay any damages, charges, fees and/or costs awarded against RXPAY 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.
Put in place appropriate security measures to monitor, control and prevent Fraud on their Platform.

Fees & Revenue Share

RXPAY shall remit any funds due to the Client, as a result of transactions undertaken across the RXPAY Platform, on a weekly basis. Save that, the Client shall be at liberty to access and withdraw any funds due to them as and when the Client wishes.
RXPAY shall receive, from the Client, a Commission equivalent to One percent (1%) off any transactions concluded by the Client/Client’s Customer across the RXPAY Platform. Commissions charged by RXPAY are exclusive of Value Added Tax (VAT).
The Client shall be responsible for the direct processors fees from VISA/ MASTERCARD/VERVE/OTHER PAYMENT PROVIDERS.
The Client will be responsible for any bank charges that may apply in respect of funds-out or remittance services.
RXPAY reserves the right to increase/reduce/waive its implementation fees, recurrent annual fees & transaction fees from time to time without recourse to the Client but shall notify the Client of such increase/reduction/waiver immediately upon its implementation.
RXPAY shall charge a setup fee to the Client’s Customer if they require specialized RXPAY Services.

Warranties

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.
The Client must not submit any transaction that the Client and its Customer either knows is, or should have known was, illegal or fraudulent.
The Parties warrant that they are duly registered and licensed, and have the full capacity, regulatory approvals and corporate authorization to enter into this Agreement and discharge the obligations and responsibilities created herein.
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.
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.
The Client warrants that it will conduct appropriate customer due diligence using a risk-based approach on all Customer.
The Client warrants to keep records of Customer identification evidence obtained for at least five years from the end of the business relationship.
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.
RXPAY neither warrants that the use of the Payment gateway or the operation thereof will be uninterrupted nor error free, however, RXPAY 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.
Except as set forth in this Clause, RXPAY 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 Customer.

Indemnity

The Client shall indemnify and hold RXPAY harmless from and against any damage, loss or liability that RXPAY may incur:
with respect to any negligent act or omission by, or willful 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;
the violation of any applicable law, statute or regulation by the Client or its personnel;
as a result of:
any modification or amendment of the prescribed terms of use communicated by RXPAY, that RXPAY did not specifically approve in writing;
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 this Agreement;
any omission or inaccuracy in the Client’s advertisements or promotional materials that relate to the Payment gateway;
any modification of or addition to the Payment gateway not provided or approved by RXPAY or, the Client’s failure to comply with this Agreement or any part thereof.
This clause will not be construed to limit or exclude any other claims or remedies to which RXPAY may be entitled hereunder or in law or equity.

Fraudulent Transactions

Fraudulent transactions shall include but not be limited to:
Any purchase of goods and services and/or transaction arising from the use of the application by a person other than the authorized customer or client.
In the event that fraudulent transactions account for more than 0.10% of the Client’s sales turnover in any one month, RXPAY 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 Customer from the use of the platform and terminate the Merchant Agreement with the affected Merchant.
The Client agrees that it will always be responsible for the actions of the introduced sub aggregator, its employees including fraudulent acts or omission not traceable to the contributory negligence of RXPAY.

Limitation of Liability

The liability of RXPAY 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;
In no event shall RXPAY be liable to the Client in excess of any amount that has accrued to RXPAY from transactions emanating by virtue of this Agreement, in the month immediately preceding the date the first such claim arises.
No liability shall be raised against RXPAY 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 RXPAY.
RXPAY will not be liable for the actions or inactions of any third party not acting on the instructions of RXPAY; neither will RXPAY be liable for the actions or inactions not directly traceable to it.

Termination

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.
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 thirty (30) days of receiving a written notice requiring it to do so.
RXPAY may terminate this agreement and delist the Client where the Client is identified as a source of fraudulent activity or causes damage to the RXPAY’s brand whether financial or otherwise
Either Party may terminate this Agreement at any time on giving two (2) months’ written notice to the other Party.
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.
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.
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.

Confidentiality

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).
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 two (2) years after the termination of this Agreement.
The Receiving Party may disclose Confidential Information only:
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;
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
to its affiliates.

Force Majeure

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.
If the period of incapacity exceeds two months, then this Agreement shall automatically terminate unless parties expressly agree otherwise in writing.

Relationship Between Parties

The relationship between the parties hereto shall be one of collaboration for the single purpose of the business relationship herein created.
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.
This Agreement is not intended to confer on any person other than RXPAY and the Client, any express or implied benefit or burden.

Intellectual Property

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.
All Intellectual Property Rights in or related to the Payment gateway are and will remain the exclusive property of RXPAY, 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 RXPAY’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, RXPAY 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 RXPAY’s request, the execution of any instrument that may be appropriate to assign these rights to or perfect these rights in RXPAY’s name.

Notices

All notices and other communications hereunder shall be in writing and shall be deemed to have been given if delivered;
In person, by courier service or by prepaid first class registered or certified mail, and a return receipt requested, at the addresses set forth in the preamble to this Agreement or any other address notified to either Party as being its registered business address, or by email:

If to RXPAY;
Rode Sterweg #10, Commewijne, Meerzorg, Suriname.
Attn: Founder
Email: info@rxpay.net
If to the Client;
(Information specified on registering documentation)
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.
Modifications
This Agreement may not be modified except by an instrument in writing signed by duly authorized representatives of each of the Parties
Waiver
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.
Severance
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
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.
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.
Arbitration

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 4, Laws of the Republic of Suriname.
The dispute shall be resolved by a sole arbitrator and the appointment of the arbitrator shall be in accordance with the said Law.
Any Award/Decision of the arbitrator shall be final and binding on the parties. The seat of the arbitration shall be Commewijne, Suriname and the language to be used in the arbitral proceedings shall be English.

Governing Law
This Agreement shall be governed by the Laws of the Republic of Suriname.
Last edited Aug, 2020