1.1 The Parties to this Agreement are:
1.1.1 Virgin Money South Africa (Pty) Ltd, registration number 2005/016196/07, a company duly incorporated and registered as such within the laws of the RSA, with registered address at Unit 207, Block 2 Northgate Park, Cnr Section Street and Platinum Drive, Brooklyn, Cape Town, RSA (“Virgin Money”); and
1.1.2 The merchant that has agreed to these terms and conditions by accepting same during the Onboarding Process (“Merchant”).
2.1 Virgin Money is a registered financial services provider that offers, amongst other services, alternative payment
2.2 methods to businesses that wish to receive payment from customers.
2.3 The Merchant wishes to receive these services from Virgin Money.
2.4 The Parties now wish to record their agreement in terms of which Virgin Money will provide the Payment Services to Merchant.
3. DEFINITIONS AND INTERPRETATIONS
3.1 Unless otherwise expressly stated, or the context otherwise requires, the words and expressions listed below will, when used in this Agreement, bear the meanings ascribed to them and cognate words and expressions will bear corresponding meanings:
3.1.1 Agreement means these terms and conditions and this document, as revised and posted on Virgin Money’s website by Virgin Money from time to time together with all documents agreed between the Parties during the Onboarding Process, ;
3.1.2 Applicable Law means all laws applicable in jurisdictions in which the Parties operate and includes any present or future constitution, decree, judgment, legislation, order, ordinance, regulation, statute, treaty, directive, rule, guideline or code, practice or practice note issued by any relevant, with particular reference to the Protection of Personal Information Act, National Credit Act No. 34 of 2005 and the Consumer Protection Act 68 of 2008;
3.1.3 Merchant means the entity described in clause 1.1.2;
3.1.4 Payment Services means the payment services offered by Virgin Money to the Merchant in this Agreement;
3.1.5 Confidential Information means a Party’s confidential information, and without limiting the generality of the term includes: all trade secrets, product information, product formulations, know-how, business methods and techniques, goodwill, strategies and plans, modus operandi, stock forecasting and Intellectual Property; information concerning a Party’s business relationships and customer relationships; any financial information relating to either Party and/or its customers; the identity of either Party’s customers and Leads; and/or any other information in whatever form which relates to a Party’s business, which may include, but not be limited to, technical information, reports, market share, pricing statistics and/or structures, research and development and all confidential information which may be developed or which may be in the process of development for the use of or by a Party or which the other Party may receive from time to time from the Party or in any other manner;
3.1.6 Consumer Protection Act means the Consumer Protection Act No. 68 of 2008, as amended, and all regulations thereto;
3.1.7 Customer means the person that purchases goods and/or services from the Merchant via the Payment App;
3.1.8 Data Subject has the meaning ascribed to it in the Protection of Personal Information Act;
3.1.9 Effective Date means the date that the Merchant electronically accepts the Agreement;
3.1.10 Electronic Communications Act means the Electronic Communications Act 36 of 2005, as amended and including all regulations thereto;
3.1.11 FICA Documentation means all the documents and/or information requested by Virgin Money from the Merchant to ensure full compliance with the Financial Intelligence Centre Act No.38 of 2001;
3.1.12 Fee/s means the cost of the Payment Services to be paid by the Merchant to Virgin Money, as agreed during the Onboarding Process;
3.1.13 Intellectual Property means all patents, copyright, designs, Trademarks, and any other intellectual property relating to a Party (or its successors in title), whether registered or not, and any intellectual property which may be developed or which may be in the process of development for the use of or by either Party;
3.1.14 Onboarding Process means online process by which the Merchant requests Virgin Money to provide the Payment Services to it, which shall include the provision of FICA Documentation by the Merchant;
3.1.15 Payment App means the mobile application that Virgin Money will make available to the Merchant and to Customers to be downloaded for the purpose of concluding a Transaction, which will allow a Customer to purchase good/services from the Merchant via the scanning of a QR Code or by entering a QR code number into the merchants POS if it is integrated with the platform which will result in funds being transferred from the Customers payment wallet or the credit/debit card loaded on their Payment App, to the Merchant if approved by Virgin Money in terms of this Agreement;
3.1.16 Payment Services means the services that Virgin Money will provide to the Merchant on the terms and conditions of this Agreement, and as detailed in the Onboarding Process.;
3.1.17 Operator has the meaning ascribed to it in the Protection of Personal Information Act;
3.1.18 Parties means Virgin Money and Merchant and “Party” will mean either of them, as applicable;
3.1.19 Personal Information has the meaning ascribed to it in the Protection of Personal Information Act;
3.1.20 Processing has the meaning ascribed to it in the Protection of Personal Information Act;
3.1.21 Protection of Personal Information Act means the Protection of Personal Information Act 4 of 2013 as amended and including all regulations thereto;
3.1.22 QR Code means a Quick Response Code, which is a machine readable optical label.
3.1.23 RSA means the Republic of South Africa;
3.1.24 Term means the term of this agreement, as stated in clause 5 of this Agreement;
3.1.25 Trademarks means the trademarks owned by or licensed to a Party including, but not limited to trade names, brands, brand names, logos and names that are used by that Party in relation to its businesses’ services;
3.1.26 Transaction means the process by which a Customer utilises the Payment App to purchase goods and/or services from the Merchant;
3.1.27 Transaction Amount means the total value of the goods and/or services (inclusive of VAT) that the Customer pays the Merchant via the Payment App;
3.1.28 Virgin Money means the entity described in clause 1.1.1; and
3.1.29 VAT means value added tax as envisaged in the Value Added Tax Act No. 89 of 1991, as amended.
3.2 Clause and paragraph headings are for purposes of reference only and will not be used in the interpretation of this Agreement.
3.3 Unless the context clearly indicates a contrary intention, any word denoting any gender includes the other gender, the singular includes the plural and vice versa, natural persons includes artificial persons and vice versa and insolvency includes provisional or final sequestration, liquidation or judicial management.
3.4 When any number of days is prescribed, such number will exclude the first day and include the last day, unless the last day falls on a Saturday, Sunday, or a public holiday in the RSA, in which case the last day will be the next succeeding day which is not a Saturday, Sunday or a public holiday in the RSA. A reference to a business day is a reference to any day excluding a Saturday, Sunday and a public holiday in the RSA. A reference to days (other than to business days), months or years will be a reference to calendar days, months or years, as the case may be. When any time or date is referred to in this Agreement, same will be deemed to be a reference to such time and/or date, as the case may be, in the RSA.
3.5 Where figures are referred to in numerals and in words, and there is any conflict between the numerals and words, the words will prevail. The use of the word “including” followed by specific examples will not be construed so as to limit the meaning of the general wording preceding it.
3.6 No provision of this Agreement will be construed against or interpreted to the disadvantage of any Party by reason of such Party having or being deemed to have structured, drafted or introduced such provision.
3.7 Any reference to any statute, regulation or legislation is a reference to such statute, regulation or legislation as at date of signature hereof and as amended or substituted from time to time.
3.8 If any provision in a definition is a substantive provision confirming any right or imposing any obligation on any Party, then notwithstanding that it is only in the definition clause, effect will be given to it as if it was a substantive provision in this Agreement.
3.9 Each provision of this Agreement is severable, the one from the other, and if, at any time, any provision is, or becomes, or is found to be invalid, illegal or otherwise unenforceable for any reason, by a court of competent jurisdiction, the remaining provisions of this Agreement will continue to be of full force and effect.
With effect from the Effective Date, Merchant appoints Virgin Money, on a non-exclusive basis, to provide the Payment Services to Merchant on the terms and conditions of this Agreement, in exchange for the Fees. Virgin Money accepts the appointment.
5.1 This Agreement will commence on the Effective Date and continue indefinitely, unless terminated earlier on 30 (thirty) days written notice via email to email@example.com or in terms of this Agreement (“Term”).
6. PAYMENT SERVICES
6.1 The Payment Services may only be used to accept payment for goods or services within the Republic of South Africa.
6.2 The Merchant may only use the Payment Services for the business operations the Merchant outlines during the Onboarding Process. The Merchant confirms that it shall inform Virgin Money, in writing of any changes in and to the nature of its business (including its trading name).
6.3 The Merchant authorises Virgin Money to verify any of the information provided by the Merchant to Virgin Money. Virgin Money may request additional information from time to time. This may include substantiating documentation such as identification documents, proof of residence, business registration documentation, tax documents and/or FICA Documentation. Virgin Money may request reasonable access to the Merchant’s business premises. Refusal to provide such access may result in the suspension or termination of this Agreement by Virgin Money.
6.4 On the successful completion of the Onboarding Process, Virgin Money shall supply the Merchant with a unique QR Code.
6.5 The Merchant must provide the Customer with the QR Code to enable such Customer to conclude a Transaction.
6.6 A Customer must download the Payment App to use the Payment Services and complete a Transaction.
6.7 The Transaction will take effect via the Payment App whereby the Transaction Amount will be transferred from the Customer’s wallet or loaded credit/debit card on the Payment App for payment to the Merchant, pending authorisation from Virgin Money.
6.8 On the successful conclusion of a Transaction, the Transaction Amount shall be paid to the Merchant by Virgin Money, less any deductions and/or Fees that are due and payable in terms of this Agreement.
6.9 The Payment Services may not be utilised for the sale of illegal products. In the event that the Merchant offers such products for sale, Virgin Money shall the right to terminate this Agreement with immediate effect.
6.10 The Parties shall, as soon as practicably possible, notify one another of any queries or complaints raised by a Customer to either Party in respect of the Payment Services, and/or related to this Agreement, to allow the other Party to manage same and to best ensure that both Party’s reputations are adequately managed and protected.
6.11 The Parties agree that they will fulfill their obligations in strict compliance with the terms and conditions of this Agreement, the agreed policies and procedures provided by Virgin Money to Merchant from time to time and all applicable legislation, regulations, guidelines and codes of conduct, including, but not limited to, the Consumer Protection Act, National Credit Act, the guidelines of the Direct Marketing Association of South Africa, the Electronic Communications Act and the Protection of Personal Information Act. In respect of the Protection of Personal Information Act, it is recorded that as at the Effective Date, the Protection of Personal Information Act has not yet been given an effective date, however, the Parties agree that they will comply with the provisions of the Protection of Personal Information Act.
6.12 In addition to the warranties provided elsewhere in this Agreement, Merchant indemnifies Virgin Money and shall keep Virgin Money indemnified at all times against any liability, loss, cost or damage suffered by Virgin Money resulting from any action, proceeding or claim made by any person or third party against Merchant or Virgin Money attributable to any wrongful act or omission of Merchant, Merchant’s employees, agents or representatives or resulting from Merchant’s breach of this clause 6.
7. FEES AND PAYMENT
7.1 Merchant will pay Virgin Money a Fee, in exchange for the Payment Services, as agreed to during the Onboarding Process.
7.2 The Fee shall be calculated as an agreed percentage of a Transaction.
7.3 Virgin Money shall deduct the Fee from any Transaction Amount payable to the Merchant as a result of a successful Transaction. 7.4 Subject to any deduction in this clause 7, the Merchant may elect how often it wishes to receive the Transaction Amount from Virgin Money;
7.5 The Transaction Amount may also be subject to a settlement fee, dependent on the frequency with which it wishes to receive payment of the Transaction Amount from Virgin Money.
7.6 All payments due in terms of this Agreement will be made in cash or via electronic fund transfer by Virgin Money to the Merchant at such place or into such account as instructed by Virgin Money in writing from time to time, in South African Rand.
7.7 Virgin Money reserves the right to amend the Fees and/or settlement fees on one month’s notice to the Merchant.
7.8 In any event, the Fees shall increase by the Consumer Price Index on the anniversary of the Effective Date of this Agreement.
7.9 All amounts set out in this Agreement are stated and/or are to be applied, as the case may be, inclusive of VAT, unless specifically stated otherwise.
8. MERCHANT’S OBLIGATIONS
8.1 The Merchant must:
8.1.1 procure that a receipt is given or sent to the Customer in respect of every Transaction;
8.1.2 promote the Payment App to Customers, in line with this Agreement;
8.1.3 display promotional material supplied by Virgin Money in such a way that the public can clearly see that the Merchant is willing to accept payments from Customers for goods or services and as such consent to Virgin Money advertising or publishing the fact that the Merchant utilizes the Payment Services Payment App payments.
8.1.4 provide the Customer with a copy of any Transaction document, if so requested by an App User or at least within seven days;
8.1.5 respond promptly to inquiries/complaints from Customers and resolve any disputes amicably;
8.1.6 keep all Transaction documents for at least 180 days after the date of such Transaction;
8.1.7 not in any way state, imply or create the impression that Virgin Money endorses or guarantees any of the Merchant’s goods or services;
8.2 check that all the details of the Transaction are correct. Once a Transaction is submitted it cannot be reversed.
8.3 Virgin Money shall not be responsible for any loss suffered by the Customer or the Merchant if the Transaction details are incorrect.
8.4 only dispatch its goods or services to the Customer once it has received an authorised confirmation of a successful Transaction.
8.5 ensure that all details are accurately updated at all times by notifying Virgin Money of any changes by e-mail at firstname.lastname@example.org.
9. DEALS AND PROMOTIONS
9.1 The Merchant may, in consultation with Virgin Money and only with Virgin Money’s prior written approval, offer Customers a deal or promotion, which may be in the form of discount coupons, vouchers, loyalty and/or cash-back offers or as agreed to between the Parties in writing, from time to time.
9.2 Virgin Money may in its sole discretion, approve any deal or promotion, as referred to in clause 9.1.
10. GENERAL OBLIGATIONS
In addition to the obligations of each Party elsewhere in this Agreement, each Party agrees and acknowledges that it will:
10.1 Ensure that it has adequate management, supervision and equipment to comply with each of its obligations respectively in terms of this Agreement;
10.2 Ensure that its information technology and communication systems are able to provide the necessary reporting in terms of this Agreement;
10.3 Ensure that it does not do or omit to do anything which may prejudice the name, reputation and/or image of either Party;
10.4 Hold and maintain for the duration of this Agreement all licenses and approvals required in terms of any laws to render the services envisaged in this Agreement and indemnifies the other Party against any claims arising as a result of either Party’s failure to comply with all or any laws, licence conditions or requirements of any provincial or local authority;
10.5 Not incur any liability in the name of the other Party or give any warranty or make any representation on behalf of the other Party, save to the extent expressly provided for in terms of this Agreement; and
10.6 Exercise reasonable control over and take responsibility for the acts and omissions of its officers, employees and shall indemnify the other Party against any loss or damage suffered by Merchant as a result of any failure on the part of those third parties to comply with the terms of this Agreement, all or any laws, licence conditions or requirements of any provincial or local authority.
11. DISPUTED TRANSACTIONS
11.1 Any disputes that may arise between the Merchant and the Customer in respect of a Transaction shall be settled entirely between the Merchant and the Customer.
12. INVALID TRANSACTIONS
12.1 A Transaction will be considered invalid if:
12.2 the Transaction is illegal or fraudulent;
12.3 Virgin Money has not authorised the Transaction;
12.4 The necessary documentation is not provided by the Merchant to Virgin Money on request;
12.5 Virgin Money reserves the right to withhold payment for invalid Transactions for 180 days after the date of such Transaction and/or set the payment off against any Transaction Amount.
12.6 If a Transaction is invalid as set out herein, Virgin Money reserves the right to set off the Transaction Amount or delete such invalid Transaction, if detected before settlement.
13. RIGHT TO CHANGE THIS AGREEMENT
13.1 Virgin Money may amend these terms and conditions at any time by posting a revised version of this Agreement on its website. The revised version will be effective as of the date of posting.
13.2 Continued use of the Payment Services will be deemed to be full acceptance of the then current and applicable Agreement.
14.1 The Parties agree that for the Term, and at any time thereafter, they will not:
14.1.1 disclose or divulge to any persons, including any natural person, judicial person, juristic person, firm, association, syndicate, partnership and any other legal entity, (hereinafter referred to as “Person/s”), whether for their own benefit or for the benefit of any
14.1.2 any of the other Party’s Confidential Information;
14.1.3 retain, make copies of or reproduce any Confidential Information acquired by that Party in performing their obligations under this Agreement;
14.1.4 make statements to the press regarding the other Party’s affairs, or make any public announcement regarding that Party, without that that Party’s prior written consent; and/or
14.1.5 disclose to public or government authorities or any person, body or organisation outside its own business enterprise, any Confidential Information unless compelled to do so by law. If so required by law, the Party will first notify the other Party of the requirement so that the other Party may take all necessary steps to prevent the disclosure of such Confidential Information.
14.2 Each Party will take all reasonable steps to ensure that its employees, agents and/or representatives adhere to the provisions of this clause 9.6 and that the Confidential Information is only communicated to the extent necessary.
14.3 Any breach of any the undertakings contained herein will constitute a material breach of this Agreement which will entitle either Party to immediately terminate this Agreement (in the event that this Agreement has not already been terminated) and to claim from the defaulting Party all damages which the aggrieved party has or may suffer as a result of such breach, notwithstanding the provisions of clause 17 (Indemnities and Limitation of Liability).
14.4 Upon termination of this Agreement, each Party will deliver to the other all of the other Party’s Confidential Information which may be in its possession and each Party agrees not to retain, make copies or reproduce any such Confidential Information.
15. PROTECTION OF PERSONAL INFORMATION
15.1 The Parties agree that they are each responsible for complying with their respective general obligations under the Protection of Personal Information Act and any other applicable laws governing the Processing of Personal Information and direct marketing.
15.2 The Parties agree that insofar as they may act as an Operator, Processing Personal Information on behalf of the other Party, they will strictly comply with the provisions of the Protection of Personal Information Act that applies to Operators.
15.3 The Parties hereby indemnify each other against any liability, loss, cost or damage suffered by a Party resulting from any action, proceeding or claim made by any Data Subject or Regulator against a Party attributable to any unlawful processing by the other Party, its’ employees, agents or representatives or resulting from such Party’s breach of the Protection of Personal Information Act. This indemnity shall survive the termination of this Agreement.
15.4 Each Party must notify the other immediately where there are reasonable grounds to believe that the Personal Information of a Data Subject has been accessed or acquired by any unauthorised person.
13.5 In the event that either Party suspects a breach of this clause 12, such Party shall be entitled to appoint a reputable independent auditor to undertake a compliance audit of the other Party in respect of their compliance with this clause 13.
16. INTELLECTUAL PROPERTY
16.1 Each of the Parties is the owner or licensee of certain Intellectual Property. Each Party will retain the ownership of and/or right to its Intellectual Property at all times, and neither Party shall have any rights of whatsoever nature in respect of the other Party’s Intellectual Property.
16.2 In respect of the other Party’s Intellectual Property, each Party acknowledges and agrees that it:
16.2.1 Has no rights to the other Party’s Intellectual Property;
16.2.2 Recognises the validity and ownership of the other Party’s Intellectual Property and undertakes not to contest the validity or ownership thereof;
16.2.3 Shall not register, or apply to register, any of the other Party’s Intellectual Property or any similar marks as the whole or part of any domain name, electronic mail address or otherwise without the prior written consent of the other Party;
16.2.4 shall utilise Virgin Money’s Intellectual Property without its prior written consent. In particular, the use of all and any marketing, advertising material, logos and/or naming conventions shall be pre-approved in writing by Virgin Money’s authorised personnel.
16.2.5 Will not adopt or use any name, corporate name, trading name, title of establishment, or other commercial designation which includes any of the other Party’s Trademarks without the written consent of the other Party;
16.2.6 It will not use the other Party’s Intellectual Property in such a way as to imply that the other Party endorses or is associated with a third party’s product or service without the other Party’s prior written permission;
16.2.7 It will not, at any time, be concerned with any product under any trademark or other designation which is an imitation or infringement of the other Party’s Intellectual Property;
16.2.8 Will cease to use the other Party’s Intellectual Property, including the Trademarks, upon notification by the other Party at any time during the Term and in any event, upon termination of this Agreement.
16.3 A Party may, from time to time and at its sole discretion, grant the other Party a non-exclusive and non-transferable right to use certain of that Party’s Intellectual Property. In such instances, the Parties agree that they will, after first obtaining the other Party’s prior written permission to use their Intellectual Property and where permission is granted, only use the Intellectual Property in strict accordance with the other Party’s instructions or directives issued from time to time. Neither Party shall use the other Party’s Intellectual Property without the prior written approval of the other Party.
16.4 Either Party’s breach of any of the undertakings contained herein will constitute a material breach of this Agreement which will entitle the aggrieved party to immediately terminate this Agreement (in the event that this Agreement has not already been terminated) and to claim from the defaulting party all damages which the aggrieved party has or may suffer as a result of such breach, notwithstanding the provisions of clause 17.
16.5 The applicable provisions of this clause 13 will survive termination of the Agreement.
Neither Party, its subsidiaries or affiliates, shall directly or indirectly solicit for employment, and/or actively entice away or endeavour to, any of the other Party’s employees during the Term and for a period of 1 (one) year after termination of this Agreement.
18. BOOKS AND RECORDS
18.1 The Parties shall maintain, keep and retain for a period of 5 (five) years following termination of this Agreement, all tax invoices, accurate books of account and information contained in or on magnetic discs, tapes, documents, or other such records as may reasonably be required to enable any Party to calculate or verify any amount payable to the other in respect of such tax invoice.
18.2 Each Party shall provide the duly authorised representative/s of the other Party with reasonable access to a Party’s records during business hours.
18.3 Any disputes regarding records or record keeping will be resolved in accordance with clause 18 (Dispute Resolution) of this Agreement.
19. INDEMNITIES AND LIMITATIONS OF LIABILITY
19.1 Virgin Money indemnifies Merchant and shall keep Merchant indemnified at all times against any liability, loss, cost or damage suffered by Merchant resulting from any action, proceeding or claim made by any party against Merchant or Virgin Money attributable to any wrongful act or omission of Virgin Money, Virgin Money’s employees, agents or representatives or resulting from Virgin Money’s breach of this Agreement.
19.2 Merchant indemnifies Virgin Money and shall keep Virgin Money indemnified at all times against any liability, loss, cost or damage suffered by Virgin Money resulting from any action, proceeding or claim made by any party against Virgin Money or Merchant attributable to any wrongful act or omission of Merchant, Merchant’s employees, agents or representatives or resulting from Merchant’s breach of this Agreement.
19.3 The total liability of either Party for any loss or damages suffered or incurred by either Party arising out of, or in connection with this Agreement including, for the avoidance of doubt, any breach or wrongful act or omission of either Party, its employees, or duly authorised agents or for any property damage and any indemnities provided by either Party under this Agreement, shall not exceed the total of all Fees paid by the Merchant to Virgin Money in the 3 (three) month period immediately preceding the month in which the cause of action upon which such claim is based arose,
19.4 Nothing in this Agreement shall exclude or limit either Party’s liability in relation to:
19.4.1 death or personal injury caused by negligence or willful or reckless misconduct of that Party;
19.4.2 any fraud or fraudulent misrepresentation of that Party or any other criminal act which leads to such Party suffering a loss;
19.4.3 any liability which cannot be excluded by law by that Party; and/or
19.4.4 clause 14 (Intellectual Property).
19.5 Save for clause 17.4, in no event shall either Party be liable towards the other Party for any indirect, incidental or consequential losses or damages including but not limited to loss of income, loss of business opportunities or loss of profits howsoever arising.
20. DISPUTE RESOLUTION
20.1 Disputes in respect of Financial Matters and Records
20.1.1 Notwithstanding any provision to the contrary in this Agreement, should any dispute arise relating to any amounts or alleged to be owing in terms of this Agreement, or any dispute relating to the veracity of records, documents or materials of the other Party, then the Party raising the dispute (the “Disputing Party”) shall, within 30 (thirty) days after receipt by it of the relevant tax invoice or record, deliver a written dispute notice to the Invoicing Party, containing details of such dispute (“Dispute Notice”).
20.1.2 Within 10 (ten) Business Days of receipt of the Dispute Notice, the Invoicing Party will furnish the Disputing Party with whatever information, documents or materials may be reasonably required by the Disputing Party to verify the amount reflected as being payable by the Disputing Party or relating to the veracity of the records.
20.1.3 If the dispute remains unresolved, then members of each Party’s Finance department shall promptly meet in good faith to try to resolve the dispute. Failing resolution of the dispute within 30 (thirty) Business Days following receipt of the Dispute Notice, the dispute will be escalated to the Parties’ senior executives, who will meet in good faith to attempt to resolve the dispute. Should they be unable to resolve the dispute within 7 (seven) business days of the dispute being referred to them, the Disputing Party may refer the dispute for investigation and determination by a firm of auditors agreed to between the Parties or, failing agreement, by a firm of auditors nominated by the South African Institute of Chartered Accountants (or any successor body thereto). Such auditors shall, in their determination of the dispute, act as experts and not as arbitrators and their decision shall be final and binding on the Parties. The experts shall have the fullest and freest discretion with regard to the determination and the method to be followed in arriving at their decision, including whether or not to hold a hearing. The Parties shall co-operate in any such investigation and any sum found to be due or overpaid shall promptly be paid or refunded (together with any interest payable) within 30 (thirty) days of the date of determination. The independent auditors’ costs shall be paid by the Disputing Party unless the relevant tax invoice is established to have been incorrect, in which case the Invoicing Party shall pay such costs.
20.2 Other Disputes
20.2.1 Subject to the dispute resolution mechanisms detailed above, if the Parties are unable to resolve any dispute arising out of or in connection with this Agreement within 7 (seven) days after such dispute having arisen or such extended time period as the Parties may have agreed to in writing, then such dispute shall be submitted to the senior executives of the Parties who shall endeavour to resolve the dispute within 7 (seven) business days of it having been referred to them.
20.2.2 Should the dispute not be resolved in the aforesaid manner within 21 (twenty one) days after the dispute has arisen, then the dispute will finally be resolved by arbitration, at Sandton, in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.
20.3 Notwithstanding the provisions of this clause 18, each Party shall retain the right and nothing shall prevent either Party from seeking immediate urgent relief if, in its business judgment, such relief is necessary to protect its interests prior to utilizing or completing the dispute resolution processes described above, including without limitation, in respect of a claim by a Party based on a breach of the confidentiality obligations herein or the Intellectual Property obligations.
20.4 Save as specifically provided for in this clause 18, notwithstanding any dispute between the Parties as to any payment, the Parties shall, throughout the term of this Agreement, remain obliged to observe and perform their obligations in terms of this Agreement and to pay any amounts due.
21. FORCE MAJEURE
If a force majeure and/or causas fortuitus causes any delays in or failure or partial failure of performance by either Party of all or any of its obligations in terms of this Agreement, the affected Party’s obligations shall be suspended for the period of the force majeure or causas fortuitus event, provided that if the force majeure or causas fortuitus event endures for longer than 14 (fourteen) days, either Party may immediately terminate this Agreement. The affected Party shall send written notice of the force majeure or causus fortuitus event to the other Party specifying the nature and date of commencement as soon as reasonably possible. Neither Party shall have any claim or obligation in respect of any loss suffered or damages incurred as a result of the cancellation of the Agreement in terms of this clause 19.
22. TERMINATION OF CONVENIENCE
22.1 Either Party may terminate this Agreement at any time during the Term for any reason whatsoever or for no reason at all, other than for a reason stated in clauses 19 (Force Majeure), 21 (No Fault Termination) or 22 (Events of Default), on 30 (thirty) days’ prior written notice to the other Party.
22.2 If this Agreement is terminated by a Party in accordance with the provisions of this clause 20 (Termination for Convenience):
22.2.1 The applicable provisions of clause 20 (Consequences of Termination) will apply to the Parties; and
22.2.2 Neither Party shall have any claim or obligation in respect of any loss suffered or damages incurred as a result of the cancellation of the Agreement.
23. NO FAULT TERMINATION
23.1 Virgin Money may immediately terminate this Agreement on written notice to Merchant in the event Virgin Money ceases to offer the Payment Services or the termination of Virgin Money’s rights to use its Trademarks.
23.2 If this Agreement is terminated by a Party in accordance with the provisions of this clause 21 (No Fault Termination):
23.2.1 The applicable provisions of clause 20 (Consequences of Termination) will apply to the Parties; and
23.2.2 Neither Party shall have any claim or obligation in respect of any loss suffered or damages incurred as a result of the cancellation of the Agreement.
24. EVENTS OF DEFAULT
24.1.1 21.1 An event of default occurs in respect of either Party, if a Party (“Defaulting Party”)breaches a provision of this Agreement, and fails to remedy the breach within 14 (fourteen) days after receiving written notice to do so, or such longer period as the Parties may agree in writing;
24.1.2 breaches clauses 9.6 (Confidentiality) and/or 13 (Intellectual Property);
24.1.3 is placed under compulsory or voluntary winding-up, judicial management (provisional or final), resolves to be placed into or a third party applies to have the Party placed into, business rescue proceedings in terms of the Companies Act or the Party commits an act which would be an act of insolvency as defined in the Insolvency Act, 1936 if committed by a natural person; or
24.1.4 takes steps to deregister itself or is deregistered.
24.1.5 In respect of Virgin Money, if Merchant does anything or omits to do anything which causes Virgin Money’s right to use the Virgin Money Trademarks to be suspended or terminated. (an “Event of Default”)
24.2 If an Event of Default occurs then the other Party (the “Aggrieved Party”) may, without prejudice to any other rights which it otherwise may have:
24.2.1 claim specific performance of all the Defaulting Party’s obligations under this Agreement; or
24.2.2 cancel this Agreement by giving notice in writing to the Defaulting Party in terms of clause 22.3 and claim damages caused by the Event of Default.
24.3 If an Event of Default occurs:
24.3.1 in terms of clause 22.1.1, then the Aggrieved Party may terminate this Agreement immediately if the Defaulting Party does not remedy their breach within the notice period provided for in clause 22.1.1;
24.3.2 in terms of clauses 22.1.2, 22.1.3, 22.1.4, 22.1.5, then either Party may terminate this Agreement with immediate effect.
25. PARTIES’ OBLIGATIONS DURING ANY NOTICE PERIOD
During any notice period provided for in the Agreement, the Parties will continue to fulfil all of their obligations in terms of this Agreement, as far is possible, and the Parties will act in good faith and provide all reasonable assistance and information, and will do all that is reasonably necessary, to wind down their respective obligations in terms of this Agreement.
26. CONSEQUENCES OF TERMINATION
26.1 Upon termination, expiry or cancellation of this Agreement for any reason whatsoever and in accordance with the provisions of this Agreement:
26.1.1 each Party will immediately cease to hold itself out as being connected with the other Party and Virgin Money will immediately cease to render any of the activities authorised by this Agreement;
26.1.2 Virgin Money will immediately cease to render the services envisaged in this Agreement;
26.1.3 Any outstanding Fee and/or the Fee, will still be due and payable by Merchant;
26.1.4 Both Parties will immediately cease using the other Party’s Intellectual Property and each Party will have deliver to the other Party all written or graphical material or copies of material it may have in its possession relating to the other Party, as well as any asset belonging to the other Party;
26.1.5 subject to any rights or obligations that have accrued prior to termination (save for those rights relating to Intellectual Property which will immediately cease on termination), neither Party shall have any further obligation to the other under this Agreement; and 26.1.6 the Parties will prepare a reconciliation within a reasonable time after the date of termination of all amounts that were due and amounts paid in terms of this Agreement.
26.2 Any debt owed by one Party to the other as reflected in the reconciliation shall be paid within 30 (thirty) days after presentation of an invoice in relation thereto or such later period as agreed to between the Parties. Any dispute arising from or in connection with the reconciliation shall be finally resolved in accordance with the relevant provisions of clause 18.1 (Payment Disputes).
26.3 The termination of this Agreement will not affect any rights and obligations which specifically or by their nature survive the termination of this Agreement and any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement will survive any termination or expiration of this Agreement and continue in full force and effect notwithstanding that the clauses themselves do not expressly provide for this.
27. DOMICILIUM AND NOTICES
27.1 The Parties choose domicilium citandi et executandi for all purposes under this Agreement at the following addresses in the RSA:
Virgin Money –
Physical address: Unit 207, Block 2 Northgate Park, Corner Section Street and Platinum Dr, Brooklyn, Cape Town, 7405
For Attention: Chief Executive Officer
27.2 All notices in terms of this Agreement may be delivered to a Party’s domicilium by: (a) hand, in which case it will be deemed to have been received by the addressee at the time of delivery, unless the contrary is proven; (b) prepaid registered post, in which case it will be deemed to have been received on the 7th (seventh) day after posting, unless the contrary is proven; or (c) facsimile, in which case it will be deemed to have been received within one hour of transmission, if sent during business hours, or at noon on the next business day if transmitted outside business hours. Receipt will be deemed notwithstanding that neither the addressee nor any other person is present at such address at the time.
27.3 Either Party is entitled to change its domicilium to any other address with the RSA, which is not a post office post or post restante. Any change of domicilium will take effect on the 7th (seventh) day after receipt by the addressee of the notice referred to herein.
27.4 Notwithstanding anything to the contrary herein contained, a written notice actually received by a Party will be adequate written notice to it, notwithstanding that it was not delivered as envisaged herein.
28. AMENDMENTS TO THIS AGREEMENT
Any amendments, additions to and/or variations of this Agreement or the arrangements catered for herein must be agreed to by both Parties acting in good faith and must be recorded in writing, signed by or on behalf of both Parties. Any purported amendments, additions to and/or variations of this Agreement not recorded in writing will be of no force or effect.
29. GENERAL PROVISIONS
29.1 This document constitutes the whole agreement between the Parties in regard to the matters regulated herein and supersedes and replaces any previous arrangement, whether oral or in writing, made between the parties. No Party will be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.
29.2 Unless specifically stated, nothing in this Agreement will be construed as creating an agency/principal relationship, joint venture and/or partnership between the Parties and neither Party has the authority to incur any debt, enter into any agreement, incur any obligation or give any warranties or representation of whatsoever nature on behalf of the other Party or purport to bind the other Party in any way whatsoever.
29.3 Save as otherwise provided for herein, neither Party may not sub-contract, cede and/or assign any of its rights or obligations in terms of this Agreement to any third Party, without the other Party’s prior written permission. Notwithstanding the aforementioned, should a Party provide the other Party with permission to sub-contract, cede and/or assign any of its rights or obligations in terms hereof, this will in no way relieve the other Party of any of its obligations in terms of this Agreement and the other Party will be liable for any acts or omissions of any third parties appointed by it in connection with its obligations.
29.4 This Agreement will be governed by the laws of the RSA and all matters or things arising out of or in respect of this Agreement will be decided in terms of the laws of the RSA. Save as otherwise provided for herein, the Parties hereby consent and submit to the jurisdiction of the Magistrate’s Court of RSA in respect of any dispute arising out of or in connection with this Agreement.
29.5 No addition to, variation of or agreed cancellation of this Agreement will be of any force or effect unless in writing and signed by or on behalf of the Parties. Future changes or additions to this Agreement shall be effected in writing, by way of any addendum, deal sheet or Incentives Schedule, signed by both Parties which will replace and/or amend the Agreement or Schedules, as applicable.
29.6 No waiver, latitude, extension of time or other indulgences which may be given or allowed by either Party to the other Party in respect of the performance of any obligation hereunder or the enforcement of any right arising from this Agreement and no single or partial exercise of any right by either Party shall under any circumstances be construed to be an implied consent by such Party or operate as a waiver or a novation of, or otherwise effect any of that Party’s rights in terms of or arising from this Agreement or estop such Party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
29.7 Unless this Agreement specifically provides for otherwise, no third Party shall acquire any rights in terms of this Agreement and this Agreement does not constitute a stipulation alteri in favour of any third Party.
29.8 The Parties warrant that they have the legal capacity, and have taken all necessary corporate action required, to enter into and implement this Agreement. Each Party will bear their own costs of and incidental to the negotiation and preparation of this Agreement (including all advices, consultations and attendances).