Merchant Terms and Conditions

1.0 APPOINTMENT AND SCOPE OF AGREEMENT

1.1APPOINTMENT

DIALOG hereby appoints the Merchant and the Merchant accepts the appointment as a merchant of DIALOG’s GENIE Service.

1.2SCOPE OF THE AGREEMENT

The purpose of this Agreement is to record the terms and conditions and the rights and obligations of the Parties in respect of the GENIE service, who are also the subscribers of GENIE account. The ‘GENIE Service’ (‘GENIE’) shall mean the mobile payment service provided by DIALOG which allows customers to execute transactions using any of the payment options they have registered for, including but not limited to credit card, debit card, current account, savings account, mobile money and any other payment methods made available on the GENIE Service from time to time and GENIE Merchants to accept such payments made by the customers via the Service.

2.0 WARRANTIES AND REPRESENTATIONS

2.1 The Merchant hereby warrants and represents for the benefit of DIALOG that on the date of this Agreement and throughout the term:

2.1.1any and all, information and the deliverables enumerated herein do not and shall not:
a)infringe any third party intellectual property rights;
b)infringe confidentiality obligations owed to any third party;or
c)contain materially false or misleading statements.
2.1.2the Merchant and its employees are suitably qualified and competent to undertake the responsibilities enumerated herein in accordance with the terms of this Agreement;

2.2 Neither DIALOG nor any of its suppliers makes any representations or warranties, express or implied, including but without limitation regarding the merchantability or fitness for a particular purpose, with respect to any equipment (including authorization terminals, data capture terminals or printers, if any) or any of the services provided hereunder by DIALOG.

3.0 CHARGES/ PAYMENT PROCESS

3.1The Merchant shall pay DIALOG a Commission Rate at the rate set out in the Front Sheet per each order for sale of goods and/or services completed by the Merchant on behalf of the customers via the GENIE Services (“Transaction”).

3.2The Commission Rate shall be settled in full by the Merchant which will be deducted upon every Transaction.

3.3The Merchant agrees that DIALOG shall have the right to revise the Commission Rate with prior written notice to the Merchant.

3.4SETTLEMENT

Settlement schedule would be as follows: –

a)a) A monthly report shall be submitted by DIALOG within seven (7) working days from the end of each month for reconciliation.
b)b) Settlement of daily Transactions shall occur within five (5) working days of the date on which the Transaction took place.

4.0 RETURNED ITEMS/CHARGEBACKS

4.1If:

a)a customer disputes any card transaction or payment for any card transaction (irrespective of the nature or manner of such disputes);
b)a card transaction is charged back to DIALOG for any reason by the card issuing institution according to the operating rules and regulations of the related card association;
c)there has been a breach by the Merchant of any term of this Agreement;
d)DIALOG has any reason to believe a Transaction previously submitted hereunder is unlawful, unenforceable, irregular, questionable, not genuine, or is otherwise unacceptable; and/or
e)any other event or circumstance, which DIALOG shall have previously notified to the Merchant in writing for the purpose of this Clause 4.0, has occurred in relation to a Transaction,

the Merchant shall, at DIALOG’s request, repurchase such card transaction(s) at the amount of such card transaction(s), which may be deducted from any payment due to the Merchant or may be charged against any of the Merchant’s account(s). If any such amount is non-collectable through withholding from any payments due hereunder or through charging the Merchant’s account(s), the Merchant shall, upon demand by DIALOG, pay DIALOG the full amount of the chargeback

4.2The Merchant understands that obtaining an authorization for any Transaction shall not constitute a guarantee of payment and the related Transaction can be charged back to DIALOG as set out herein.

4.3REVERSALS

a)The Merchant shall be able to reverse a previously settled amount to the customer’s card/account, where the Transaction had occurred within the last Sixty (60) days and the card/account is still active by making a request to DIALOG via an authorized channel which is informed to the Merchant by DIALOG.
b)The refund process shall be completed within Five (5) to Seven (7) working days.
c)The Merchant shall be able to initiate a reversal of the full amount of any Transaction that has not yet been posted for settlement.
d)For reversals via Credit/Debit cards, DIALOG will forward the reversal to the external payment gateway provider to reverse the Transaction. For reversals via bank accounts, DIALOG will direct the reversal to the respective bank of the account holder.

4.4RESOLUTION OF TRANSACTION DISPUTES/REVERSALS For any transaction disputes, other than network connectivity (transaction disputes and reversals etc.), the customer may contact the Merchant or the GENIE helpdesk.

5.0 OBLIGATIONS OF THE MERCHANT

5.1ACCEPTANCE OF GENIE

The Merchant shall:

a)promptly honour any payment request for a Transaction by a customer via the GENIE Service;
b)offer goods and/or services to customers who wish to make payments via the GENIE Service on terms not less favourable than those offered to customers paying the Merchant through other means including cash;
c)not use GENIE for any unlawful or unauthorized purpose;
d)not require or post signs indicating that they require a minimum value for Transactions below which the Merchant shall refuse to honour payment through GENIE.

5.2AUTHORIZATION AND SECURITY

The Merchant shall before completing a Transaction, comply with all security procedures specified by DIALOG from time to time.

5.3The Merchant shall ensure that its staff:

a)a) is fully informed about GENIE, including the procedure for registration of customers;
b)b) are always courteous to the customers who wish to perform Transactions;
c)c) do not commit any act or omission in relation to GENIE, which may result in a claim or action against DIALOG or the GENIE service and/or cause any damage to the reputation, brand or image of DIALOG or the GENIE service;

5.4At the request of DIALOG, the Merchant shall submit to DIALOG an irrevocable, unconditional, and on demand bank guarantee (in a format agreeable to DIALOG) issued by a licensed commercial bank operating in Sri Lanka equivalent to the value indicated in the Front Sheet to be valid until the expiration or early termination of this Agreement, against all/any act/s of negligence, error or omission, wrong doing, breach of duty, dishonesty or infidelity, sabotage, cessation of work, work to rule, strikes, terrorism, assault or battery, loss/damage to property of DIALOG, breach of contractual liability under this Agreement and to hold DIALOG and/or its employees harmless against any loss or damage or liability. However, any recovery under the said bank guarantee shall not relieve the Merchant from the obligation to comply with the terms and conditions under this Agreement under any other law.

5.5The Merchant shall encourage customers to make payments through the GENIE Service when making payments for the transactions.

5.6The Merchant shall be responsible for ensuring the security of the access credentials provided to him to access the GENIE Service. If a third party accesses the GENIE Account using the access credentials provided to the Merchant, with or without his authorization, for all intent and purposes such access shall be considered an authorised access.

5.7The Merchant shall keep all customer information confidential and shall not use such information for any other purpose except for the purpose of fulfilling its obligations under this Agreement.

5.8The Merchant hereby confirms that its personnel have been adequately trained in the GENIE Procedure.

5.9The Merchant agrees and accepts that all documents and directions issued by DIALOG in writing relating to the GENIE Service from time to time shall form part and parcel of this Agreement.

5.10USE OF NAMES AND LOGOS

The Merchant shall prominently display in the place or places of business nominated, GENIE details, insignia and other material provided by DIALOG for the purposes of display and shall notify the public that payments for transactions can be made through GENIE. The Merchant hereby irrevocably authorizes DIALOG to include the name and logos of the Merchant, in any advertising or promotional material in connection with the GENIE service.

5.11REPORTING

The Merchant shall maintain a monthly report with the full details of the Transactions concluded through GENIE by the Merchant for the respective month and submit the same to DIALOG. In the event of any dispute relating to the settlement of the Commission Rate for the said month, the Parties shall endeavour to resolve all such disputes amicably, failing which however the decision of DIALOG with regard to such dispute based on the detailed transaction logs maintained by DIALOG shall be final.

5.12The Merchant shall allow DIALOG to visit and examine the books of accounts and any other records connected with the GENIE Services and/or GENIE Transactions with prior notice and the Merchant shall co-operate with the representative of DIALOG to the best of its ability to facilitate this process.

6.0 OBLIGATIONS OF DIALOG

6.1DIALOG shall maintain the merchant service hotline 1369 to which all enquiries from the Merchant could be directed Twenty Four (24) hours a day and Three Hundred and Sixty Five (365) days of the year.

6.2DIALOG shall provide to the Merchant access to the GENIE system.

6.3DIALOG shall maintain the GENIE Service in working order to facilitate the settlement of Transactions.

7.0 LIMITATION OF LIABILITY

7.1The GENIE Service is provided on an “as is” basis without representations of any kind whether express or implied to the fullest extent permitted by law.

7.2DIALOG SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES, WHETHER DIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL, (INCLUDING BUT NOT LIMITED TO LOSS OF INCOME OR PROFITS), WHETHER OR NOT DIALOG HAD KNOWLEDGE THAT SUCH DAMAGES MIGHT BE INCURRED, UNLESS SUCH DAMAGES WERE CAUSED BY DIALOG’S OWN WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY DIALOG’S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE VALUE OF TRANSACTIONS COMPLETED THROUGH GENIE FOR THE MONTH PRECEDING THE MONTH IN WHICH THE LOSS OR DAMAGE OCCURRED.

7.3DIALOG shall not be liable for loss, damage, or delay caused by events which DIALOG cannot control, including but not limited to acts of God, perils of the air, weather conditions, mechanical delays, delays in information flows, acts of public enemies, war, strikes, civil commotions, or acts or omissions of the government and/or public authorities with actual or apparent authority.

8.0 INDEMNITY

8.1The Merchant shall indemnify and keep DIALOG fully indemnified from and against all actions, claims, demands, cost, expenses, liabilities, loss, damages or other monetary relief brought, made or awarded against or incurred by DIALOG resulting (directly or indirectly) from any breach or non-performance of conditions contained in this Agreement by the Merchant or arising directly or indirectly out of any negligent act or omission, willful default or breach of statutory duty on the part of the Merchant, including breach of DIALOG and third party Intellectual Property rights.

9.0 EXCLUSIVITY

9.1The Merchant shall not engage in any program similar in nature to GENIE and/or involving in any way whatsoever the use of a mobile phone for the operation of a payment aggregation system for duration of One (01) year from the date of execution of this Agreement.

10.0 TERM AND TERMINATION/SUSPENSION

10.1This Agreement shall be valid for a period of One (01) Year from the Effective Date set out in the Front Sheet hereto and shall thereafter be automatically renewed for successive periods of One (01) Year unless either Party in writing informs the other Party not less than Ninety (90) days prior to the expiration of such ongoing term that the Party giving notice has no intention to renew this Agreement.

10.2Either Party may terminate or suspend this Agreement if the other Party breaches any of the terms herein contained and the same is not cured within Thirty (30) days of notice of the said breach by the non-defaulting Party to the defaulting Party, unless such time period allowed for curing of the breach is further extended by mutual agreement.

10.3Either Party may terminate this Agreement with Thirty (30) Days written notice to the other Party, without assigning any reason therefor.

10.4DIALOG may immediately terminate or suspend this Agreement in the event of any violation of law or regulation by the Merchant.

10.5Effects of Termination / Suspension

Upon the termination or suspension of this Agreement for any reason:

a)Such termination or suspension shall not affect any provision of this Agreement which is expressed or intended to survive or operate in the event of termination of this Agreement and shall not prejudice or affect the rights of either Party against the other in respect of any breach of this Agreement occurring prior to termination or in respect of any moneys payable by either Party to the other or in respect of any other rights accrued in each case in respect of any period prior to termination;
b)Such termination or suspension shall not prejudice the benefits provided to customers by either Party and both Parties undertake to fulfill their respective obligations under this Agreement towards any customer serviced prior to any termination/suspension;
c)The Merchant shall with immediate effect or within a period as notified by DIALOG send to DIALOG or otherwise dispose of in accordance with the directions of DIALOG all property of DIALOG in its possession or under its control including but without limitation all samples and any advertising, promotional or sales material relating to GENIE, applications, equipment then in the possession or under the control of the Merchant;
d)The Merchant shall no longer hold himself out as an entity authorized by DIALOG and shall cease to promote, market, advertise or operate GENIE;
e)All rights granted by DIALOG to the Merchant to use the Intellectual Property pursuant to this Agreement shall automatically cease;
f)In case of termination/suspension of this Agreement, any costs incurred by DIALOG in complying with the provisions of this Agreement specifically at the request of the Merchant shall be for the account of the Merchant;
g)The Merchant shall have no claim against DIALOG for indemnification or compensation, whether for loss of income, loss of goodwill or otherwise, direct or indirect, upon the termination/suspension of this Agreement for any reason; and
h)The Parties shall settle all dues within a period of sixty (60) days from the date of termination or suspension of the Agreement.

11.0 11.0 FORCE MAJEURE

11.1No Party hereto shall be deemed to be in default of any provisions hereof for any delay, failure in performance or interruption of services resulting directly or indirectly from an act of God or military or governmental authority, acts of public enemy, civil disturbance, acts of war – whether declared or not, accident, fire, explosion, earthquake, flood or any other natural disaster or any other event beyond the reasonable control of any Party (hereinafter referred to as “Force Majeure Events”), provided the Party facing such Force Majeure Event shall within Forty Eight (48) hours issue a notice in writing to the other Party (a “Force Majeure Notice”) detailing the occurrence of such Force Majeure Event and its anticipated effect upon the performance of the Agreement. As appropriate the Force Majeure Notice shall also state any extension of time that is required by such Party and the details of any alternative method sought by such Party to fulfill its contractual obligations under the Agreement and additional cost, if any, involved in such alternate method.

11.211.2 The Party receiving the Force Majeure Notice may, at its sole discretion agree with such extension of time, alternate method or agree to additional cost sought by the Party sending such Notice. If such agreement is reached by the Parties it will amount to a modification or amendment to the Agreement.

11.311.3 If the Force Majeure Event shall prevail for more than Thirty (30) Days, the Party receiving such Force Majeure Notice may immediately after the said Thirty (30) Days period, terminate this Agreement, without prejudice to the other Party, by giving the other Party notice in writing, notwithstanding any agreement reached by the Parties under Clause 11.2 above. Neither Party shall be liable to pay the other any damages upon such termination

12.0 12.0 ASSIGNMENT

12.1The Merchant shall not assign all or any part of this Agreement to any other Party without prior written approval of DIALOG.

13.0 WAIVER

13.1No delay, neglect or forbearance on the part of either Party in enforcing against the other Party any term or condition of the Agreement and no grant of any extension of time by either Party (whether with or without consideration thereof) shall be deemed to be a waiver of or in any way prejudice any right of either Party under the Agreement against the other Party. No waiver of any term or condition hereof by either Party shall be deemed a waiver of any other term or condition.

14.0 14.0 SEVERABILITY

14.1In the event any provision of this Agreement including those relating to any limitation of liability or limitation on warranties is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.

15.0 15.0 ENTIRE AGREEMENT

15.1This Agreement constitutes the complete agreement between the Parties hereto and supersedes all prior or contemporaneous agreements or representations written or oral concerning the subject matter of this Agreement. No other act, document, usage or custom shall be deemed to amend or modify this Agreement.

16.0 16.0 APPLICABLE LAW

16.1This Agreement shall be governed and construed in accordance with the laws of Sri Lanka.

17.0 SETTLEMENT OF DISPUTES

17.1Any interpretation, dispute or difference whatsoever arising between the Parties relating to this Agreement or any provision thereof, shall be resolved by a court of law with competent jurisdiction.

18.0 NOTICE

18.1Unless specified otherwise, DIALOG may give notice to the Merchant by publishing on its website or at least one Sinhala, Tamil and English newspaper in circulation or by electronic mail or by pre-paid post or by sending a text message to the MSISDN of the Merchant. For avoidance of doubt, DIALOG may notify the Merchant in any one of the ways set out above.

18.2Notice shall be deemed to have been duly served upon and received by the Merchant, (a) if published on the website, at the time of publication; (b) if published in the newspaper, on the day of such publication; (c) if sent by electronic mail, at the time it was sent; (d) if sent by pre-paid post, on the day following the dispatch of the prepaid letter; (e) if sent by text message at the time the text message was sent.

19.0 CONFIDENTIALITY

19.1The Parties shall keep confidential all information including all customer information, account details, customer payment mode details, technical information, documentation, software, drawings, developments or improvements or processes, design, know-how and other unpublished information transmitted or made available directly or indirectly to them by the other Party regarding the subject matter hereof (‘Confidential Information’). This Agreement is confidential.

19.219.2 No disclosure of any such Confidential Information shall be made to third parties without the written consent of the other Party unless such information has already been published or has been in the possession of one Party other than through the other Party or a person deriving such information, directly or indirectly from such other Party or unless such disclosure is a requirement imposed by a government agency or is otherwise required to be disclosed by operation of law.

19.319.3 The obligation imposed on each Party under this Clause 19 shall apply during the term of this Agreement and shall survive the expiration or sooner termination hereof.

19.419.4 Both Parties agree to use such Confidential Information only for matters described in this Agreement.

19.519.5 The Merchant shall obtain express written undertakings from any person to whom Confidential Information is disclosed as stipulated in this Clause on a strict need to know basis, that such persons shall preserve/maintain confidentiality of the information notwithstanding termination or expiration of the term of employment, consultancy, advisory services or any other relationship with the Merchant pursuant to which same was received.

19.619.6 DIALOG shall be entitled to audit the controls, security measures and/or safeguards applied by the Merchant with regard to the Confidential Information disclosed to it by DIALOG.

20.0 PUBLICITY

20.1Unless provided otherwise, the Merchant shall not advertise, promote or publicize any matter related to this Agreement without the prior written approval of DIALOG. DIALOG reserves the right to advertise, promote or publicize any matter related to this Agreement with or without prior notification of same to the Merchant.

21.0 INTELLECTUAL PROPERTY

21.1During the term of this Agreement, the Merchant hereby grants to DIALOG a non-exclusive, revocable, non-transferable license to use the intellectual property including trademarks and logos, of the Merchant for the purpose of marketing and promoting GENIE.

21.221.2 During the term of this Agreement, DIALOG hereby grants to the Merchant a non-exclusive, revocable, non-transferable license to use the trademarks and logos of DIALOG for the sole purpose of marketing GENIE in terms of this Agreement, with notice to DIALOG.

21.321.3 The Parties shall use the said trademarks and logos of the other Party only in the exact form and style and type approved by such other Party.

21.421.4 The Merchant shall indemnify DIALOG against any claims for the infringement of any third party Intellectual Property rights arising from the use of any of the Merchant’s trademarks or logos as stipulated herein.

21.521.5 Nothing in this Agreement shall give either Party any rights, title and interest in respect of any trade names, trademarks, service marks, logos or any other intellectual property right of or used by the other Party (“Marks”) or of the goodwill associated therewith, and each Party hereby acknowledges that, except as expressly provided in this Agreement, it shall not acquire any rights in respect thereof and that all such right, title, interest and goodwill are, and shall remain, vested in the other Party at all times. The use of the Intellectual Property rights by one Party shall not in any way whatsoever dilute any rights, interest and title of the other Party.

21.621.6 Either Party shall not use in Sri Lanka any trademarks, service marks, logos or trade names so resembling the Marks of the other Party as to be likely to cause confusion or deception.

22.0 22.0 RELATIONSHIP OF PARTIES

22.1Nothing in this Agreement shall be taken to create any joint venture, partnership or other similar arrangement between the Parties. The Merchant shall at all times, stand in relation to DIALOG as an independent contractor. Neither Party is or may hold itself out to any third party as being the agent of the other.

23.0 AMENDMENTS

23.1The Merchant agrees that DIALOG shall have the right at all times to amend these terms and conditions and the most up to date version of the Merchant Terms and Conditions shall be able here. Such amendments or introduction of new terms shall be binding on the Merchant upon introduction.

24.0 WARRANTY OF AUTHORITY

24.1The Parties hereto represent and warrant to each other that their authorized signatories are entitled to sign on their behalf and the rights and obligations of each of the Parties hereto shall be legally valid and binding and enforceable on them.