MERCHANT TERMS AND CONDITIONS - NIC Bank · "Account Holder": the person entitled to use the Account and who is a customer purchasing goods or services from you; "Account Provider":

Merchant Terms & Conditions v.1 09/2015 Page 1 of 32

MERCHANT TERMS AND CONDITIONS

You must read these merchant conditions together with the Merchant Application you have signed. When

you sign the Merchant Application form you will be agreeing to the conditions below.

1. DEFINITIONS

1.1 In this document and in the schedule or schedules, the words and phrases below have the

meanings shown next to them and any additional conditions you agree to:

"Account": a valid payment account which we approve, as more particularly described in this

Agreement;

"Account Holder": the person entitled to use the Account and who is a customer purchasing goods

or services from you;

"Account Provider": the commercial entity with which an Account is held; this “Agreement”

includes, the merchant application, merchant agreement, all terms and conditions contained and

pertaining hereto, the schedule or schedules, the operating instructions and the procedure guides;

“Banking Day” Monday to Friday except all public holidays.

"Card" any valid payment card which is issued by a Card Issuer in conjunction with an Account

under one of the Card Schemes;

“Cardholder” the person entitled to use the Card.

"Card Issuer" the Account Provider for the applicable Card, being any member of Visa,

MasterCard, American Express (or any other card scheme which we approve) or any other

institution that provides payment methods and who has issued a Card to, or entered into a

contractual relationship with, a Cardholder;

“Card Not Present Payment” a telephone order, mail order, an order on the internet or any other

payment where neither the Card nor the Cardholder is present at the point of sale.

“Card Payment” a payment or supply of cash which the Cardholder has authorized you to charge

to his or her Card account. The Cardholder may authorize you by using a Card or Card number or

in some other way.

“Card Schemes” such as Visa or MasterCard or American Express who promote, develop and

regulate the usage of various Card types that carry their logos.

“Charges Schedule” the schedule to this Agreement setting out our charges including any changes

we make to them in the future.

”Floor Limit” the total value of sales which you are allowed to make to a Cardholder at any one

time without getting authorization. This is set out in the charges schedule. If the Card Payment is

in a foreign currency an equal amount in a foreign currency applies. There will be occasions where


your Point of Sale terminal may also request that you obtain authorization even though the

transaction value is below your Floor Limit. Authorization must be obtained.

“Merchant Agreement”: this overall Agreement governing the provision of merchant acquiring

services by us to you, and your obligations to us, and which includes the merchant conditions, the

schedules, the procedure guides and any other additional service conditions, together with the e-

commerce Conditions and the e-commerce operating instructions and procedure guides;

“Merchant Account” the merchant account we keep to record the transactions processed by you.

“Merchant Conditions”: the NIC Bank merchant terms and conditions as amended or replaced

from time to time;

“Merchant service charge” the merchant service charge set out in the charges schedule.

“Minimum billing” the minimum level of merchant service charge we will charge you each

month. If we send a bill to each of your outlets separately, this minimum applies to each outlet. We

will charge this minimum even if you would have run up a smaller amount of merchant service

charge in any month.

"Multicurrency": a feature of certain e-commerce Subscription Types under which we will accept

and process Payments in foreign currencies;

"Nominated User(s)": you and/or your nominated employee(s) registered to access the system,

including e-commerce, back office;

“Operating instructions and procedure guides” the operating instructions and procedure guides

which we give you including updates and replacements.

"Payment": a payment for goods or services provided by you which the Account Holder has

authorised you to charge to his or her Account. The Account Holder may authorise you as

described in these terms and conditions or in the operating instructions and procedure guides;

"Payment Currency": the currency in which a Payment is processed;

“Payment Details” details of a Card Payment including vouchers or receipts signed by the

Cardholder. These must be in a form which we have approved.

“Payment Schedule” the schedule to this Agreement setting out the timing and number of

payments including any changes we make to them in the future.

“Procedure Guide” the operating procedures for accepting card transactions.

“Refund” a refund given by you to your customer on a card payment for credit to the customer’s

Card account.

“Refund Currency” the currency in which a Refund is processed;


“Refund Details” details of a refund. These must be in a form which we have approved.

“Schedule” the schedule or schedules to the Merchant Agreement and including the Charges

Schedule;

“Scheme” a payment scheme or method;

“Scheme Rules” the collective set of bylaws, rules, regulations, operating regulations, procedures

and/or waivers issued by (or formed in respect of) a Scheme as may be amended or supplemented

over time;

“Settlement” the payment of amounts/sums owing by us to you;

“Settlement Currency” the currency or currencies in which we will make Settlement as detailed in

the Schedule(s) (as may be varied from time to time in accordance with condition 3.8 or 3.9 of these

e-commerce Conditions);

“Transaction” the process whereby you or an Account holder requests permission for a Payment

or Refund:

“Transaction Data” Payment Details, Refund Details, and any other Card or Account details,

Account Holder details, authorization, authentication responses, and settlement details sent to us

by you;

“We”, “us”, “our” NIC Bank limited including any business or other person we may transfer our

rights to under this Agreement.

“You”, “your” the person, people or organization shown as the merchant on the front sheet or any

agent or sub-contractor we have approved (see condition 16).

If two or more people are shown as the merchant each of you is liable to us individually as well as

jointly. “You”, “your” includes your personal representatives after your death in the event that the

merchant is an individual and successors in title in the event that the merchant is a company.

1.2 In the event that and to the extent only of any conflict, the documents shall take effect in the

following order of priority: the Schedules, these Merchant Terms and Conditions, the operating

instructions and procedure guides.

1.3 In this Agreement, references to any enactment shall be deemed to include references to such

enactment re-enacted, amended or extended and any subordinate legislation made from time to

time under it.

1.4 Where the following references are used in these Merchant Terms and Conditions they shall for

the purposes of this Agreement be deemed to be references as follows:

1.4.1 References to the "Agreement" shall be references to the "Merchant Agreement";

1.4.2 Reference to the "Operating Instructions and Procedure Guides" shall include the e-commerce

Operating Instructions and Procedure Guides;


1.4.3 References to "Card Payments" shall be references to "Payments" as described in these terms

and conditions;

1.4.4 References to "Refunds" shall include "Refunds" as described in these terms and conditions.

2. OUR RESPONSIBILITIES

2.1 We will pay you the amount of all Card Payments (less any merchant service charge payments,

any chargebacks, and any refunds) included in payment details which you send to us as set out in

this Agreement. Unless we agree otherwise, payments under this Agreement will be made in the

currency of trading indicated on the Merchant Application form.

2.2 We will not make payment for any transactions that do not conform to the definition of Card

Payment or are advised to us as not being genuine.

3. YOUR RESPONSIBILITIES

3.1 Accepting Cards

a) You must accept all Cards as payment.

b) You must not set any minimum limit on Card Payment amounts. You must treat purchases by

Card in exactly the same way as cash purchases. With most types of Cards you must charge the

customer the same price as if he or she were paying cash. We will tell you if there are any exceptions

where you may charge a different price. In these cases, the difference between the Card price and

cash price must not be more than the amount of the merchant service charge for the Card Payment.

3.2 Authorization

You must:

a) Get authorization through us, from the relevant Card Issuer for all Card Payments above your

Floor Limit and (if we ask you to) for certain Card Payments below your Floor Limit and cancel

any authorization for a Card Payment that does not go ahead straight away.

b) When you ask us for authorization, we contact the Card Issuer to approve the Card Payment.

Authorization is not a guarantee of payment and it does not prevent us from charging the Card

Payment back to you if any of the reasons set out in condition 4.1 apply. In particular you should

be aware that accepting Card Not Present Payments is done so at your own risk and the Card Issuer

will not offer any guarantee of payment.

3.3 Card Payment Details

a) You must send us Payment Details and Refund Details according to the operating instructions

and procedure guides. If we ask you to, you must send these details to another person we have

approved instead. When you send us payment details, this is your confirmation that you have


provided goods and services to the Cardholder and that you have not broken any obligations you

may have to the Cardholder. If you have broken your obligations, you will also have broken this

Agreement.

b) Payment will reach your bank account according to the payment schedule instructions. The

actual number of days will depend on how you send your payment details to us for processing

and whether or not your bank account is held with us.

c) You must keep all Payment Details in a secure manner which will prevent unauthorized access

or disclosure to any unauthorized person. In order to maintain Card security we can tell you not

to keep certain details relating to a Card. To ensure you are complying with this requirement we

may carry out an inspection or audit of your business, including your computer systems. If we

reasonably believe that you are failing to keep Payment Details in a secure manner we will give

you instructions to improve your security. If you fail to follow these instructions you will be in

breach of this Agreement and we may terminate this Agreement in accordance with Condition

15.1.

d) When you send us Payment Details and Refund Details, if the value of refunds is more than the

value of Card Payments we will collect the difference from you. You must keep to the procedures

we give you for this.

e) You must keep the Payment Details for a period of not less than 3 years from the date of the

Card transaction.

3.4 Statements

a) We will give you a statement showing all amounts debited or credited from your Merchant

Account since the last statement. You must check your statement carefully and tell us if it includes

something which appears to be wrong.

b) We will correct any entries we make by mistake to your Merchant Account as soon as possible

after you tell us about them or we discover them.

c) If you disagree with any of the entries on the statement you must tell us within 30 days from the

date of the statement otherwise the statement will be deemed to be correct.

3.5 Holding Back Cards

If we ask you to hold back any Card you must do so unless you believe that you will be at risk of

harm. You must follow our directions.

3.6 No Agency

Unless you are holding back a Card, you must not suggest that you are acting on our behalf. If a

Cardholder gives you any notice which is meant for us you must send it to us immediately. Failure


to do so will result in you being liable for any damages we may suffer by not receiving the notice

in good time.

3.7 Keeping the Operating Instructions And Procedure Guides

You must always keep to and refer to the operating instructions and procedure guides which we

give you which may change from time to time.

3.8 Cash

You may only give the Cardholder cash if you keep to any conditions in the operating instructions

and procedure guides and we have also given you separate written permission.

3.9 Illegal And Third Party Transactions

a) You must not allow anyone else to use equipment which would allow them to carry out Card

Payments under this Agreement. You must only send us Payment Details for payments by

Cardholders to you or for cash you give to Cardholders.

b) If we become aware or reasonably suspect that:

i) the Card Payment was not genuine; or ii) the Card Payment was for an illegal transaction; or iii)

the Card Payment was for a payment by a Cardholder to another person or for cash given to the

Cardholder by another person; or iv) the payment does not in some other way constitute a Card

Payment, then we may withhold funds or debit funds from your bank account in the amount of

that Card Payment.

4. CHARGEBACKS

OUR RIGHT TO REFUSE PAYMENT AND TO CHARGE PAYMENTS BACK TO YOU

4.1 In some circumstances we will have the right not to pay you for a Card Payment. If we have

already paid you for it, you will have to pay that amount back to us. This is called charging back.

We will charge a Card Payment back to you or refuse to pay it even if it has been authorized. We

may also do this if you send us information about a transaction which is not a Card Payment but

which has been processed by us as a Card Payment. If we have the right to charge a Card Payment

back that amount will be a debt from you to us which you will owe immediately.

We will have the right not to pay you or to charge back in the following circumstances:

a) If the Card Payment or the way in which it was carried is in breach of this Agreement or if the

Payment Details or the way in which they have been sent to us are in breach of this Agreement;

b) If we receive a claim from the Cardholder with regard to the Card Payment;

c) If you do not give us evidence that the genuine Cardholder has authorized the card payment or

if the evidence does not follow the operating instructions and procedure guides;


d) If the Card is included on the Card recovery bulletin which you must check when you process

a Card Payment for an amount under the Floor Limit;

e) If you have to manually key/enter a transaction into your terminal because the Card fails to

swipe, and you do not obtain an imprint of the card on a verification (or sales) voucher, together

with the signature of the Cardholder;

f) If the Cardholder denies authorizing a Card Not Present Payment;

g) In any other circumstances where the operating instructions and procedure guides say we can

charge the Card Payment back to you;

h) If you have not yet supplied the goods or services referred to in the Payment Details and any of

the following happens or we believe it is likely to happen:

(i) A petition is presented to wind you up or to appoint an administrator.

(ii) A meeting is held by your shareholders at which it is decided to wind you up.

(iii) A receiver, administrative receiver, administrator or liquidator is appointed over the whole or

any part of your property or business.

(iv) Any proposal is made for any arrangement to do with your debts.

(v) If you are an individual, you die or a bankruptcy petition is presented against you or you are

unable to pay your debts.

vi) If bailiffs/sheriffs seize or try to seize any of your property.

4.2 If we do not pay you or if we charge back any Card Payment as described above, we will not

have any responsibility to deal with the Cardholder ourselves or to try to get payment. You must

not send us Payment Details for the Card Payment again unless we agree that you can.

4.3 We can refuse to process Card Payments or to act on any payment instructions you give us if

we believe that by processing such Card Payments or carrying out such payment instructions we

might break any law, regulation, code, sanction requirement arising from anywhere in the world

which applies to us, or breach any other legal and statutory duty. We will not be liable if we or any

other person fails or delays in processing the Card Payments or payment instructions or if we are

required by law to disclose information about you or your business in relation to such Card

Payments or payment instructions.

5. OUR CHARGES


5.1 You must pay us the charges (plus any relevant tax) shown in the charges schedule. This will

be the minimum billing amount if your merchant service charge is below the minimum billing

amount in any month.

5.2 We may change the rate or basis of our charges at any time. We will tell you at least one month

beforehand if we do this.

6. PROMOTING THE CARDS

You must display the promotional material we give you at each of your outlets. You must display this

material where it can be easily seen. You must not use any other material which mentions us or which uses

any other name associated with the Cards unless you get our written permission beforehand.

7. PAYMENT PROCESSING EQUIPMENT

If we lend you any equipment it will stay our property and you must return it to us when we ask for it, in

the same condition as it was when you received it, save for fair wear and tear.

8. PROTECTION AND SECURITY

8.1 If a claim is made or a defense is raised against us because of something you do or fail to do or

if you break this Agreement, you must indemnify us. This means that you must pay the full amount

of our losses, liabilities, costs and payments in any way to do with the claim, defense or breaking

of this Agreement. This includes full legal and administration costs on the highest scale provided

by the Courts.

8.2 The circumstances when this may apply include but are not limited to:

a) If you fail to supply goods or services or you supply faulty goods or services;

b) If you fail to keep to the operating instructions and procedure guides;

c) Any fraud on your part or on the part of any of your employees, agents or sub-contractors.

8.3 We may have taken from you or we may take from you security to cover all money and

liabilities you owe us now or in the future. That security will include all your liabilities in

connection with this Agreement. This applies even if we have made another Agreement with you

in the past which contradicts this.

8.4 In the event of any penalties, fees or fines being passed to us by, but not limited to, Visa,

MasterCard and/or American Express regarding any transactions accepted by you or if you have

broken this Agreement, we will require them to be met by you for payment.

8.5 We may record calls for staff training and monitoring purposes.


9. CARDHOLDER DISPUTES AND PREVENTING FRAUD

9.1 You must give us all reasonable help we may ask for to detect, prevent and investigate fraud

and to help us handle any claim against us to do with a Card Payment. The Bank may at its own

discretion and at any time investigate and enquire from you any information on any particular

transaction.

9.2 You must write and tell us immediately if:

a) You stop trading;

b) You intend to sell your business;

c) You change the nature of your business;

d) You change your name;

e) The legal status of your business changes – for example from sole trader to partnership or from

partnership to limited company or the other way around.

f) You change the physical location, postal address or registered address of your business.

10. RIGHT OF SET-OFF

10.1 Without telling you beforehand, we may reduce any amount we owe you by anything which

you owe us under this Agreement. This applies to any amounts we owe you not just under this

Agreement (for example any amounts held at any of our branches). We may at any time without

notice or demand to you, combine or consolidate all or any of your then existing accounts with us

whether current or deposit or of any other nature whatsoever, whether subject to notice or not and

in whatever currency denominated and whether alone or jointly held with others and wherever

situated (for example in any of our branches) and set off or transfer any sums standing to the credit

of any one or more such accounts in or towards satisfaction of your obligations and liabilities to us

under this Agreement. If any of the circumstances shown in Condition 4.1h (i) to (vi) happens, then

we may also reduce any amounts we owe you by anything you owe us not just under this

Agreement in the same way.

10.2 If we believe that you will become liable to us (either under this Agreement or in any other

context), having taken into account any information you have given us under Condition 4.2 or

otherwise, we may delay paying you under this Agreement or retain any amounts we owe to you

(including amounts held at any of our branches) until:

a) you do become liable. We will then pay you the balance after taking off the amount of your

liability to us;

b) we are satisfied that you will not owe us any liability or, if you do, you will pay us promptly.


11. LIMIT ON OUR LIABILITY

11.1 We will not be liable to you if we cannot carry out our responsibilities under this Agreement

as a result of anything that we cannot reasonably control. This includes, but is not limited to:

a) Any machine, data processing system or transmission link failing to work;

b) Industrial disputes.

11.2 We will not in any circumstances be liable for any indirect losses or loss of profit, contracts,

reputation or opportunities however these may arise or for any special or consequential losses.

12. INTEREST ON LATE PAYMENTS

You must pay any amounts you owe us under this Agreement as soon as those amounts are due. If you do

not pay us immediately then we may charge interest on any amounts you have not paid. This interest will

be added to the amounts you owe at the end of each month.

13. CONFIDENTIALITY

13.1 You must keep all data relating to Card Payments or Refunds safe. You must inform us

immediately should any Card/Cardholder data be stolen, compromised or disclosed in any way.

13.2 You must not put together or use any lists of Cardholders or Card numbers other than to send

us Payment Details and Refund Details.

13.3 You must not use any other information about our business unless it is to do with the

arrangements under this Agreement.

13.4 You must not give or show any lists of Cardholders or card numbers or any information in the

schedule(s) or any other information to do with our business to anybody other than your

professional advisers and to your agents or sub-contractors we have approved (see Condition 16).

This does not prevent you from giving out any information which is public knowledge or from

keeping to a legal duty to supply information.

14. CHANGING THIS AGREEMENT

We may change this Agreement (including the schedules) at any time. We will write to tell you about any

changes or put messages on your statement to tell you about the changes. If no objections are received

within 30 days of you being deemed to have received our notification about any changes it shall be deemed

that you have accepted those changes.

15. ENDING THIS AGREEMENT

15.1 Either of us may end this Agreement at any time by telling the other in writing.


15.2 We may treat this as if it has ended if any of the circumstances in Condition 4.1(a) to happen.

You must tell us immediately in writing if any of these events happen. If we continue to accept and

pay you for payment details, this will not prevent us from treating this Agreement as ended at a

later date. We do not have to tell you when we decide to do this.

15.3 Unless we tell you otherwise in writing, this Agreement will end automatically if you have

not sent us any payment details for 12 months in a row.

15.4 If this Agreement ends, you must send us all payment and refund details within three Banking

Days of the payments or refunds. You must not send us any payment details for Card Payments

that take place after this Agreement has ended. If you do we will not deal with them. 15.5 We will

only have to comply with the terms of this Agreement if your application to be a merchant is

successful. If this Agreement ends, you will continue to be liable to us for all obligations which

arose before the date the Agreement ends. Conditions 4, 7, 8, 9, 10, 12, 13 and 16 will continue after

this Agreement ends.

16. TRANSFERRING OR SHARING THIS AGREEMENT

16.1 You will not transfer any of your rights under this Agreement to any other person. You will

not allow anyone else to do any of the things which you are allowed or obliged to do under this

Agreement unless we have agreed beforehand in writing that that person can act as your agent or

sub-contractor. We may withdraw our Agreement at any time. If we agree that you can have an

agent or sub- contractor then you will be responsible for making sure that they keep to the relevant

terms of this Agreement, including Condition 13 and you will continue to be bound under the

terms of this Agreement.

16.2 You are liable for anything an agent, sub-contractor or employee of yours (or anyone who

could reasonably be taken to be an agent, sub-contractor or employee of yours) does or fails to do.

16.3 If you are an individual, this Agreement includes your personal representatives.

16.4 We may sub-contract any of our responsibilities under this Agreement to anyone we choose.

17. FAILURE TO USE OUR RIGHTS

We will not lose any right we have under this Agreement if we do not use that right or delay in using it.

Using a right or part of one will not prevent us from using that right or any other right in the future.

18. COMMUNICATING WITH YOU

We may send any written notice to your registered office, your email address or to your last known physical

place of business. You may send any written notice to Merchant Services Manager, NIC Card Centre, and


P. O. Box 44599, 00100 - Nairobi or any other address, including email address, which we give to you for

this purpose. If any notice is sent it will be treated as being received at noon seven days after it was posted.

This applies even if it is not delivered or if it is returned undelivered.

19. PREVIOUS MERCHANT AGREEMENT

Any merchant Agreement or similar Agreement you already have with us will end immediately when we

sign this Agreement, except for rights and responsibilities which arose before that date.

20. USING INFORMATION ABOUT YOU AND YOUR BUSINESS

20.1 Except for circumstances set out in conditions 20.2 to 20.4 we will not normally give or show

information about you and your business to anybody else. This information includes personal and

financial information we:

a) obtain about you when you complete this Agreement or which you give to us at any other time;

b) learn from the way you use and manage the services provided by us under this Agreement;

c) we obtain from third parties such as credit reference agencies (‘your information”).

20.2 We may give your information to the following:

a) credit reference agencies or other organizations who may use and give out information for credit

and insurance assessments, to prevent fraud and for debt tracing. We may make enquiries about

you and how you manage your accounts, or when we demand that you to pay an amount you owe

us and you do not respond satisfactorily or if you give us false or inaccurate information or we

suspect a fraud. They may also make a record of our searches against your name. We will refer our

requests to Visa, MasterCard and/or American Express or other Card Schemes or their entities

which hold databases. We may give details of how you manage the services to these organizations.

b) Card Schemes which may use your information to: (i) prevent fraud and protect the operation

of the Card Scheme (card schemes may share your information with other members of the Card

Scheme). Your information for this purpose may be given to Card Schemes after this Agreement

has ended. (ii) compile and publish directories of merchants accepting Cards (but in this case your

information will be limited to your name, address, telephone number, fax, e-mail and general

description of your business).

c) people who provide a service to us or are acting as our agents, on the understanding that they

will keep your information confidential.

d) anyone we transfer or intend to transfer our rights to under this Agreement

e) we may also disclose your information if we have a duty to do so or if the law allows us to do

so.


20.3 We may use your information to manage the services provided by us under this Agreement.

To help us develop and improve our services to you and other customers and to protect our

interests we and other members the Barclays Group may also use your information:

a) for assessment and analysis (including credit scoring and market and product analysis);

b) to tell you (by letter, phone (including automated dialing), fax or e-mail) about products and

services (including those of others) which may interest you. If you do not wish to receive

information about our products and services please write to Merchant Services Manager, NIC Card

Centre, P. O. Box 44599, 00100 - Nairobi.

20.4 If we transfer your information to a service provider or agent in another country, we will make

sure that it will be adequately protected by ensuring that the service provider or agent agree to

apply the same levels of protection as we are required to apply to information held by us and to

use your information only for the purpose of providing the service to us.

20.5 We may record telephone calls for staff training and monitoring purposes

20.6 Once you have signed this Agreement we will carry out money laundering checks, credit

searches and other fraud prevention enquiries about you. Any record of these searches and

enquiries may be used by lenders and others to make credit and insurance decisions about you and

to prevent fraud.

21. WARRANTIES

We and you both warrant to each other that:

21.1 We and you are duly organized, validly existing and in good standing under the laws of the

jurisdiction in which we our businesses operate and that we are authorized to enter into and

perform our respective obligations under this Agreement.

21.2 There are no legal actions or regulatory investigations pending or (to the best of our and your

knowledge) threatened against us or you that might affect our or your ability to perform our or

your respective responsibilities under this Agreement; and

21.3 Performing the terms of this Agreement will not violate any other enforceable Agreements or

laws.

22. UNENFORCEABLE TERMS

If any condition of this Agreement is or becomes illegal or unenforceable then it will be deemed to be

deleted from this Agreement and will not affect the enforceability of the other provisions of this Agreement.

23. CUSTOMER SERVICE


We are committed to providing a high standard of service. However, if you wish to complain about any

written communication or the service you have received, you may do so in person, in writing by post or e-

mail, or by telephone.

24. CHANGE OF AUTHORISED SIGNATORIES

a) Addition of Authorized Signatories: authorization will be required by all existing signatories as

indicated on the mandate held in the bank’s records.

b) Removal of Signatories: this should be authorized as per (a) above subject to the following

exceptions: 1. Death of an existing signatory 2. Dismissal of an existing signatory 3. Resignation of

an existing signatory who is unwilling to cooperate in authorizing removal. 4. Any other

occurrence or situation making it impossible for the signatory being removed to wilfully consent

his removal such as imprisonment. 5. Signatory being of unsound mind

c) The exceptions indicated above should be supported with official/legal documents including,

but not limited to, a death certificate, resignation letter, dismissal letter, court order or any other

official and valid document admissible in law.

d) All such amendments should be supported with a board resolution and/or minutes of the

company passed in a General Meeting.

e) Any such amendments (Addition/Removal) should be communicated to the bank within a

reasonable time, but in any case not later than ninety (90) days from the time they are effected by

the merchant and duly communicated to the bank to enable update of merchant information. The

bank will not responsible for and/or held liable for acting on instructions from signatories it has

on record.


POINT OF SALE HIRE CONDITIONS

The following conditions apply where Point of Sale terminals are provided. You must read these conditions

together with the Merchant Application form you have signed. When you sign the Merchant Application

form you will be agreeing to the conditions below.

1. We will:

� deliver the terminals to you;

� repair or replace faulty terminals depending on what we think is necessary;

� collect data from each terminal through a telecommunications link and send it to the relevant card

issuer, either for authorization, settlement or both.

� These services are included in the hire charge.

2. You must:

� keep to the relevant operating instructions and procedure guides issued by us;

� keep to any arrangements you have agreed with any other card issuers;

� make sure that your employees, agents and subcontractors also keep to these operating instructions

and procedure guides and arrangements;

� keep the terminals clean and protect them from damage or loss;

� make sure that your staff are given suitable training before they use the terminals;

� only use the manual imprinter and sales vouchers if the operating instructions and procedure

guide says you can;

� tell us immediately in writing if you intend to stop trading or sell your business.

3. Our operating instructions and procedure guides, where provided, are part of the Agreement we have

with you. If there is a conflict between the guides and these conditions these conditions will apply. We may

change the guides from time to time. We will send you the changes.

4. We will tell you which types of Cards the terminals accept. You must not use any other Cards in them.

5. We will decide how many terminals you can have at any time and deliver the terminals to your premises.

Unless we have agreed to install the terminals, you must install them at suitable positions in your premises.

If we supply extra equipment for you to use with a terminal, this will be treated as part of the terminal

under this Agreement unless you sign a separate Agreement for it.

6. You must make the first payment on the first day of the month after we deliver the terminal.

7. You must hire each terminal for at least 6 months (the minimum hire period) starting on the day your

first payment is due.

8. You will be responsible if the terminals are lost or damaged. You must keep them insured for their full

replacement value against loss and damage of every kind. We will tell you what this value is from time to

time. You will not be responsible for fair wear and tear. We will decide what fair wear and tear is.


9. You must not relocate, alter, try to repair or do maintenance work on the terminals without getting our

written permission beforehand. You must also make sure that your employees and agents do not do so.

You must tell us about any faults immediately. You must allow anybody acting for us to come onto your

premises at reasonable times for any reason to do with the terminals.

10. We will tell you which names or trademarks to use for the terminals. You must use these names or

marks in the form and in the way we tell you. You must agree that these names and all goodwill associated

with them belong to us.

11. If you want to use Cards in the terminals other than under a merchant Agreement with us, you must

get our written permission beforehand.

12. If you or any of your employees or agents:

� Makes a mistake or deliberately misuses any terminal;

� Is negligent or fails to do something which it is your responsibility to do;

� Commits a fraud;

� Breaks condition 13;

And this results in any losses, liabilities, cost of payments for us, you must indemnify us. This means that

you must pay the full amount of our losses, liabilities, costs and payments including full legal and

administration costs.

13. We will not be liable to you if we cannot carry out our responsibilities under this Agreement because of

anything that we cannot reasonably control. This includes:

� any machine, data processing system or transmission link failing to work;

� industrial disputes;

� anything else we cannot reasonably control.

We will not in any circumstances be liable for any indirect losses of profit or contracts however these may

arise, or for any other unusual losses.

14. You must provide and maintain all power and telephone connections and transmission links for the

terminals in line with our instructions. You must not connect a terminal on the same line as an alarm

system. (This might make your insurance invalid).

15. You must pay any costs to do with your using the terminals. This includes any costs to do with moving

the terminals, telecommunications services and power supply.

16. The terminals will stay our property. You must not hire or sell them or use them as security or let them

leave your premises. You must not allow anybody else to use them. You must not assign or transfer this

Agreement to anybody else.

17. We may change the hire charge and any other charges under the Agreement at any time. We will tell

you at least 1 month beforehand if we do this. If we increase the hire charge you may end the point of sale


hire Agreement by telling us within 1 month of receiving our notice of the increase. The Agreement will

then end 1 month after we receive your notice that you want it to end.

18. We can end this Agreement immediately at any time by telling you in writing and without specifying

the reason for termination. You can end this Agreement at any time after the minimum hire period by

telling us in writing three months beforehand.

19. This Agreement will end automatically if:

� a petition is presented to wind you up or to appoint an administrator;

� a meeting is held by your shareholders at which it is decided to wind you up; a receiver,

administrative receiver, administrator or liquidator is appointed over the whole or any part of your

property or business;

� any proposal is made for any Agreement to do with your debts;

� you are an individual and you die or a bankruptcy petition is presented against you;

� bailiffs/sheriffs seize to try to seize any of your property;

� you break condition 13 above.

20. If this Agreement ends, you will continue to be liable to us for all your obligations before the date the

Agreement ends. You will allow us and anybody acting for us into your premises to remove the terminals.

Condition 6 applies until we have removed them.

21. INSPECTION AND DISCLOSURE TO CENTRAL BANK OF KENYA

1.1 The Central Bank of Kenya (CBK) shall have free, full, unfettered and timely access to the internal systems,

documents, reports, records, staff and premises of the merchant in so far as this agreement is concerned and

shall exercise such powers as it may deem necessary.

1.2 The Bank shall on notice conduct audits on the merchant whether by its internal or external auditors, or by agents

appointed to act on its behalf and to obtain copies of any audit or review reports and findings made on the supplier

in conjunction with the services performed for the Bank.

1.3 Parties shall ensure all times that all documents related to this contract and services are updated and available

on notice to the Bank or its agents or its regulator the Central Bank of Kenya.

1.4 Parties shall allow authorized persons access to company documents, records of transactions, and other

necessary information given to, stored or processed by the merchant in relation to this agreement within a

reasonable time.

1.5 Should a party for any reason not avail or give access to the Central Bank of Kenya within a reasonable time,

the Central Bank of Kenya may pursue any or all of the remedial actions and administrative sanctions provided

for under the Banking Act.


1.6 Central Bank of Kenya shall have the unfettered right to cause an inspection to be made on the merchant in

relation to this agreement and the agreed terms and its books and account by one or more of its officers or

employees or other persons.

1.7 Should the merchant with consent of the Bank outsource, any of the services outlined in this agreement to another

jurisdiction other than one in Kenya, the merchant confirms to the Bank that it shall have unfettered rights to

access or its authorized person, internal or external auditors and Central Bank of Kenya all information,

documents or services in relation to the outsourcing.

1.8 Parties confirm that there is and there shall be no legal or administrative impediment in the outsourced jurisdiction

to restrict each other or their authorized representatives, internal, external auditors or Central Bank of Kenya

from conducting the inspection in above.

2. BUSINESS CONTINUITY

2.1 The Merchant confirms that it has an established, robust and documented framework for, maintaining and testing business continuity and recovery procedures within the organization.

2.2 The Merchant confirms that it periodically tests the business Continuity and recovery plan. The Merchant further consents that the Bank has the unfettered right on notice to audit by itself or through its agents the business continuity and Recovery Plan and conduct joint testing and recovery exercises with the merchant.

E-COMMERCE MERCHANT TERMS & CONDITIONS

These e-commerce Merchant Terms & Conditions should be read in conjunction with the above Merchant

Agreement & Conditions.

1. INTRODUCTION AND DEFINITIONS

These e-commerce Conditions set out the terms and conditions relating to the acceptance of card payments

using e-commerce. In these e-commerce Conditions, the words and phrases below have the particular

meaning shown next to them unless otherwise stated:

“API” or “Application Programming Interface”: the interface specification via which your website can

communicate with the ePOS and via which Payment Details are sent directly from your Website to us using

a secure internet connection;

"Electronic Commerce Payment": a Payment where an Account Holder provides the Payment Details over

the internet using a terminal, personal computer or other electronic device;

“e-commerce Back Office”: the management information tool which enables you to undertake the various

back office functions and review Payments processed online;

“e-commerce Charges”: amounts you must pay us for the e-commerce Services, or otherwise under these

e-commerce Conditions and which are detailed in the Charges Schedule to the Merchant Agreement.

“e-commerce Conditions”: these Additional Services Conditions which relate to the provision of the e-

commerce Services and, if applicable, any e-commerce Options;


"e-commerce Operating Instructions and Procedure Guides": the Operating Instructions and Procedure

Guides for the e-commerce Services, which include (but are not limited to): (i) the Implementation Guides

and Test Guides which are available from NIC Bank; (ii) any other instructions and/or procedure guides

we make available to you with from time to time: in each case including any replacements and updates

which we may issue from time to time by sending you an email notification, using the contact details you

provide;

“e-commerce Services” the collective set of payment gateway, payment processing, fraud control,

reconciliation, reporting and/or other services applicable to your e-commerce Subscription to facilitate

payment processing as provided by us to you under these e-commerce Conditions, and including any e-

commerce Options you subscribe for;

“e-commerce Subscription” means the applicable e-commerce Subscription Type for which you have

subscribed, from time to time;

“e-commerce Subscription Types” means all of the e-commerce solutions made available by us to

merchants from time to time, which contain varying access and functionality capability depending on the

Payment submission method and/or technical requirements of the merchant;

“Fraud Detection Module”: the fraud control tool provided by us and which is configured via NIC;

"Hosted Payment Pages": the electronic connection method where an Account Holder is redirected from

your Website to a payment site hosted by us, on which the Payment Details are entered by the Account

Holder;

"Internet Authentication" the authentication services provided by a Card Scheme for Electronic Commerce

Payments through the use of a password or other security information unique to the Account Holder and

includes Verified by Visa, MasterCard SecureCode and Amex Safe Key, and such other programs notified

by us to you from time to time;

"Logo" your logo which identifies your business and brand;

"MOTO Payment": a Payment by an Account Holder where the Account Holder is not physically present

at the point of sale at the time of the Transaction, and the Payment Details are presented to you by the

Account Holder by means of mail, fax or telephone;

"PCI DSS" the Payment Card Industry Security Standards as stipulated by the Card Schemes from time to

time, details of which can be accessed via the following website at https://www.pcisecuritystandards.org/

or such other website which we notify you of from time to time;

"Production Environment": the live version of your e-commerce Services, via which you may access all live

functionality of your e-commerce Subscription;


"Security Code" any of the following contained in the card: - contents of the magnetic stripe; the card

verification value contained in the magnetic stripe and/or in a chip; card security code printed on the back

of the card; or the PIN verification value contained in the magnetic stripe;

"Software": the collective set of programmes and data developed and/or operated by us or provided to

you as necessary to provide to you the e-commerce Services and associated services;

“Test Guides” the guides for each e-commerce Subscription Type setting out how to make test payments

to test your technical parameters, which are made available via the e-commerce Back Office;

“Technical Guides” the technical set-up and integration guides for each e-commerce Subscription Type

which are made available via the e-commerce Back Office;

"Test Environment": the test version of your e-commerce Services, via which you may test integration,

functionality and submit test Transactions in a non-live environment; “User Guides” the user guides

relating to each e-commerce Subscription Type which are made available via the e-commerce Back Office;

“USERID”: a Nominated User’s unique identifier which will be notified to you by us and which, when

used in conjunction with a password, will permit the Nominated User to access the e-commerce Back

Office;

"Website": your e-commerce site or sites through which customers purchase goods and/or services from

you.

2. RELATIONSHIP WITH THE MERCHANT

2.1 These e-commerce Conditions are Additional Service Conditions for the purposes of the

Merchant Conditions and form part of your Merchant Agreement and any defined terms used in

these e-commerce Conditions but not defined within these e-commerce Conditions shall have the

same meanings as set out in the Merchant Conditions unless expressly stated otherwise.

2.2 Unless otherwise stated, all conditions set out in these e-commerce Conditions shall apply to

all e-commerce Subscription Types and e-commerce Options.

2.3 Save as varied by paragraphs 2.4 to 2.5 of these e-commerce Conditions below, the Merchant

Conditions will apply to the provision of the e-commerce Services as part of the Merchant

Agreement as a whole.

2.4 For the purposes of determining the "Average Weekly Turnover" as defined in Condition 1.1 of

the Merchant Conditions:

2.4.1 References to "Card Payments" shall include "Payments" described in these e-commerce

Conditions;

2.4.2 References to "Refunds" shall include "Refunds" described in these e-commerce Additional

Service Conditions.


2.4.3 The definition of “Losses” shall include any fine or penalty levied by a Scheme as described

in these e-commerce Conditions.

2.5 The following clauses of the Merchant Conditions shall, as indicated below, not apply to these

e-commerce Conditions or be superseded by the specified condition(s) of these e-commerce

Conditions:

2.5.2 Condition 3.12 of the Merchant Conditions shall be superseded by condition 5.5 of these e-

commerce Conditions;

2.5.3 These e-commerce Conditions constitute the Additional Service Conditions relating to

Electronic Commerce Payments referred to in condition 3.10 of the Merchant Conditions.

3. E-COMMERCE SERVICES

3.1 These e-commerce Conditions:

3.1.1 Set out the terms and conditions relating to the provision of the e-commerce Services; and

3.1.2 Together with the relevant e-commerce Operating Instructions and Procedure Guides, govern

the provision of the e-commerce Services.

3.2 We will support the processing of Payments in the currencies as specified in the Schedule(s) in

respect of Electronic Commerce Payments and MOTO Payments. However, you acknowledge that

the acceptance criteria for the processing of Payments under the Schemes might change and, as a

consequence, we cannot always guarantee the availability of the processing of Payments under the

Schemes. Should there be any changes in the criteria for certain Schemes, we will inform you as

soon as possible.

3.3 We will process and transmit between you and us all Transaction Data received by us in

accordance with these e-commerce Conditions.

3.4 You may only use e-commerce for Card Not Present Payments.

3.5 We have the right to offer the Account Holder the option to pay in a different currency than the

currency in which the goods or services are offered to the Account Holder. Multicurrency.

3.6 Where your e-commerce Subscription includes Multicurrency we will make payments to you

in the Settlement Currency, which has been agreed, for Payments in a particular foreign currency.

Where the Settlement Currency is different from the Payment Currency or Refund Currency, we

will convert the Payment or Refund on the day we process the Transaction using a foreign

exchange index which we will choose from time to time.

3.7 If we are making a Chargeback, we will convert the amount of the Chargeback at the exchange

rate on the day we process such Chargeback. The amount of the Chargeback will include any fees


charged by the Schemes and/or Account Providers. We will send to you regular statements

showing all the Chargebacks processed in a particular period.

3.8 If you wish to change a Settlement Currency you must tell us in writing, and we will confirm

the changes to you at least 10 Banking Days before the day the change will take effect.

3.9 In the event of adverse economic conditions or introduction of exchange controls we may tell

you that we will no longer accept Payments in a currency other than Kenya Shilling. This will take

effect immediately after we inform you in writing.

4. ACCEPTING PAYMENTS

4.1 You must only accept Electronic Commerce Payments Authentication services you wish to

MOTO Payments in accordance with these e-commerce issue to you security information to enable

you Conditions.

4.2 We will tell you what type of Accounts may be used for Electronic Commerce Payments and

MOTO Payments.

4.3 In order to accept Payments, you must either: information you will need to provide to us to

Payment Details from the Account Holder via you obtained authentication in accordance with send

them directly to us using the API; requirements of the relevant Card Scheme in the event or Card

Issuer later disputes the 4.3.2 Direct the Account Holders to the Hosted Payment authentication of

a Card payment. Different Pages to enable us to capture the Payment Details; and/or operate their

Internet Authentication We may have provided you with more than one ways and impose different

requirements for merchant number if, for example, you carry out both Face authentication. These

differences are to Face Transactions and Electronic Commerce Payments Authentication Procedure

Guide, and/or MOTO Payments under your Merchant with the Internet Authentication Procedure

Guide must always use the correct merchant times. Number for submitting all Payments and you

must not

5. YOUR ADDITIONAL RESPONSIBILITIES & OBLIGATIONS

5.1 Accepting Payments, Authorization and Authentication the Card Payment and you are notified

relation to any Scheme, you must only accept Cardholder is registered for Internet Authentication

where applicable, obtain authorisation may still be subject to a chargeback if the Cardholder

accordance with the requirements subsequently denies making the Card Payment. for that Scheme.


6. INTERNET AUTHENTICATION FOR instances, we will use reasonable endeavours to

Communication with the relevant

6.1 Internet Authentication is available only e-commerce Options you wish to subscribe for

Electronic Commerce Payments which are Card (but so), subject to payment by Payments. We will

tell you which type of cards you can you of the Charges in use with Internet Authentication. You

may be subject to accordance. Each request a Chargeback if you use Internet Authentication for

treated as a separate request for which using any type of card or payment method e-commerce

Options Charges will be payable. other than we notify you.

6.2 We will register you as a participant for the Internet for Electronic Commerce Payments and

MOTO Payments

6.3 Where you use Internet Authentication through the e-commerce Services. We may change the

types to benefit from revised Chargeback Account from time to time and we will notify you of any

in the Internet Authentication Procedure writing. Internet Authentication Procedure Guide sets

out the

6.4 You must not tamper with any message Payments under these e-commerce Conditions through

the authentication process or make merchant number we have given you. To alter the status of a

Card Payment.

6.5 If you attempt to use Internet Authentication OBLIGATIONS Card Payment and the

Cardholders

7. CONFIGURATION OF E-COMMERCE BACK

The Floor Limit for all Electronic Commerce Payments

7.1 It is your responsibility to: and MOTO Payments is zero and so you must obtain

7.1.1 Configure the e-commerce Back Office, authorisation for all Electronic Commerce

Payments and Detection Module, in accordance with MOTO Payments through the e-

commerce Services. We may Guides and in a manner appropriate for the Floor Limit for

Electronic Commerce Payments 7.1.1.1 Ensure that any such configuration MOTO

Payments through the e-commerce Services from Scheme Rules and all applicable

regulatory time and we will notify you of any changes in in the relevant jurisdiction(s);

writing.

7.1.2 We shall have no liability for 5.1.3 When you ask us for authorisation, we contact the

a result of any such configuration Account Provider to approve the Payment.

Authorisation Losses being passed to us by, but not guarantee of payment and it does not


prevent us Schemes we will require them to be met by Chargeback if any of the reasons set

out payment. in the Merchant Agreement Conditions apply or if the

7.2 You acknowledge that Transactions Holder denies authorising a Card Not Present e-commerce

Back Office may not be displayed in real time. Payment. use all reasonable endeavours to 5.1.4 The

Security Code is compulsory where supported relating to your Transactions is accurate, Card

Scheme for the applicable Card. Without a up to date but we cannot guarantee that this will Code

(where required by the Card Scheme), be the case. Payments may not be authorised by us.

7.3 You shall ensure that your method of internet access and Refund Details You must send is

secure at all times. You shall take all steps necessary to Refund Details in accordance with ensure

that on each occasion before you access the e-commerce Instructions and Procedure Guides. Back

Office, your system is free from any virus which e-commerce Operating Instructions and adversely

affect operation of the e-commerce Back Office and/or Procedure Guides compromise the

protection and security You must always keep to the e-commerce Implementation Guide

8. USE OF LOGO and Procedure Guides which we give you as amended

8.1 If you wish to display your Logo on time. It is your responsibility to review all of Payment

Pages, you shall provide us with the Operating Instructions and Procedure Guides warrant to us

that the Logo is owned by you, or your e-commerce, including any update notified or otherwise

provided to you on terms which permit notification, and to inform the Nominated use on the

Hosted Payment pages and that such use staff who deal with Payments via the Logo will not

infringe any intellectual property rights the content of such e-commerce of any other person

anywhere in the world. Operating Instructions and any

8.2 Unless we agree otherwise, you shall ensure that you updates to them. do not use logos in

respect of 5.4 Illegal and third party transactions your services. You will indemnify us for all costs

and 5.4.1 us Payment Details for payments damages resulting from your failure to comply with

this by for goods or services provided condition. by you to Account Holders.

9 Access to the e-commerce Back Office 5.4.2

You must not allow anyone else to use equipment User(s) which would allow them to carry out Payments

under

9.1 Access to the e-commerce Back Office shall be subject to e-commerce Conditions. The

Nominated User(s) who have been registered by you. If we become aware, or reasonably suspect,

that: to access the e-commerce Back Office in accordance Payment was not genuine; or procedure

set out in the User Guides. We will register such a Payment as an illegal transaction; or Nominated

User(s) as you may nominate Payment was for a payment by an Account time. The level of access


rights granted to a Nominated person or for cash given to an Account User will determine the

Nominated User's access to the Holder by another person; or e-commerce Back Office, and it is

your responsibility to ensure 5.4.3.4 some other way constitute that the level of access you give to

each of your a Payment; then we from your Nominated Users is appropriate for your business.

bank account the amount of that provide you with a unique password for the 5.5 Excessive Fraud

user profile to use the e-commerce Back 5.5.1 If we determine or are informed by any Scheme that

USERID and password for each Nominated have become, or are becoming, an "Excessive Fraud

the limit of Nominated User(s) under your Merchant", we may: Subscription. Your PSPID is your

5.5.1.1 Request detailed reasons for the level of fraud and for the purposes of these e-commerce

Conditions. You will keep, and will ensure that each Nominated User keeps, each USERID and

password(s) secure and confidential at all times. You will not, and will procure that each

Nominated User will not, disclose those details to a third party (including employees, agents and

subcontractors who are not Nominated Users). Should access be required by third parties

(including employees, agents and subcontractors who are not Nominated Users), individual

requests should be made in accordance with these e-commerce Conditions

9.3 You are responsible for keeping us informed of any changes to the Nominated User(s) or the

Nominated User(s)’ contact details. The registration process for a new Nominated User will

typically take 3 – 4 Banking Days from notification by you to us of the name and email address of

the proposed new Nominated User. If you determine that any Nominated User(s) should no longer

have access to the e-commerce Back Office, you must immediately notify us, whereupon the

retiring Nominated User(s) will be removed within 2 Banking Days.

9.4 You acknowledge that each Nominated User acts solely as your agent and any actions of the

Nominated User(s) shall be deemed to be ratified by you as your actions. Accordingly, you will be

liable to us in respect of any Losses suffered or incurred by Barclays arising from or in connection

with any act or omission of a Nominated User(s).

9.5 In the event that your USERID(s) and/or password(s) are lost, stolen, copied or otherwise

disclosed or accessed by a third party without your permission, you shall immediately notify us.

You will indemnify us against any Losses suffered or incurred by us resulting from your failure

and the failure of your Nominated Users to keep all USERID’s and/or password(s) confidential.

10. FRAUD DETECTION MODULE

10.1 All Electronic Commerce Payments processed by us can be screened by our Fraud Detection

Module, which performs a number of checks on a Payment and which can provide an indicative

report or classify the likelihood of the Payment being fraudulent.


10.2 The Fraud Detection Module does not guarantee against fraudulent Payments, nor against

resulting Chargebacks or other Losses. Regardless of the indicative report or classification, a

Payment may be fraudulent or non-fraudulent. The effectiveness of the Fraud Detection Module

depends on your configuration of the parameters.

10.3 We reserve the right to override the parameters set in the Fraud Detection Module and to add

new checks to the Fraud Detection Module or change existing checks.

10.4 We may cancel a Payment after it has been authorized. The final responsibility for accepting

or rejecting a Payment will remain with us. We reserve the right to cancel a Payment that we deem

it fraudulent or involving other criminal activities, even if the Fraud Detection Module parameters

were not breached. If Chargeback levels on a specific Scheme are above acceptable levels for that

Scheme or are expected to reach such levels, we reserve the right to suspend the availability of

Payment acceptance under the applicable Scheme.

11. SOFTWARE

11.1 You are solely responsible for the installation, servicing, maintenance, security and operation

of your own equipment and software relating to the e-commerce Services. Even when we have

provided consultancy or software modules to you for the integration of your Website to the e-

commerce Services, we shall not be responsible for the correctness of the said consultancy and/or

software.

11.2 You warrant that your computer hardware, software and operating systems are compatible

with and able to utilize e-commerce as specified in the Implementation Guide.

11.3 You may, subject to these e-commerce Conditions, and where applicable to your e-commerce

Subscription Type, download the API/Hosted Payment Page Integration Guide.

11.4 It is your responsibility to create and develop the software which enables your Website to

integrate with e-commerce. However, we may provide some code examples on the e-commerce

Back Office which you may download and use to assist you with establishing the integration you

require. No warranty is given in relation to this code and you use it entirely at your own risk.

11.5 By agreeing to these e-commerce Conditions we are granting you sub-license(s) to use the

Software only on the terms set out in these e-commerce Conditions and any terms we set out on

the e-commerce Back Office or in the e-commerce Operating Instructions and Procedure Guides.

11.6 The sub-license(s) are granted by us and you acknowledge and agree that you have no

proprietary rights to the Software and that all rights, title and interest in the Software (including

any intellectual property) will remain with us, or our third party suppliers if applicable.


11.7 Except as provided by these e-commerce Conditions you may not modify, reverse engineer,

decompile, disassemble, distribute, sub-license, sell, rent, lease, give or in any way transfer, by any

means or in any medium, including telecommunications, the Software. You will use your best

efforts and take all reasonable steps to protect the Software from unauthorized use, copying or

dissemination, and will maintain all proprietary notices intact.

11.8 We reserve the right to change or amend the Software at any time, to provide you with a new

version thereof, and/or to change the functionalities and characteristics of the Software. Once a

new version of the Software has been created, we will not support the previous version unless we

agree otherwise with you.

11.9 To the maximum extent permitted by law, we disclaim all other warranties, conditions or other

terms, either express or implied, including, but not limited to implied warranties of satisfactory

quality and fitness for particular purpose with respect to the Software. Any implied warranties

that are not deemed excluded are limited to ninety days or the shortest period permitted by

applicable law, whichever is greater

12 ACCOUNT HOLDER DISPUTES, PROTECTION AND SECURITY

12.1 Your Website and the way in which you record and process Payments must comply with:

12.1.1 The security requirements set out in the e-commerce Operating Instructions and

Procedure Guides;

12.1.2 PCI DSS. For the purposes of PCI DSS, we shall classify you and details of such

classification and application obligations are set out in the Internet Authentication

Procedure Guide. Amongst other things (but without limitation), you must at all times:

12.1.2.1 Ensure the application of security patches and secure configurations on all of your

equipment;

12.1.2.2 Never store Security Code on any equipment;

12.1.2.3 Protect all passwords, and change these regularly;

12.1.2.4 Utilize appropriate firewalls and anti-virus protection to protect access to all

servers and applications;

12.1.2.5 Implement procedures for the development of secure applications;

12.1.3 Any other written instructions we give you from time to time about the security of

Account Holder information, payment and authorization procedures and any other

relevant security matters.

12.2 Upon reasonable notice from us, you will permit us to inspect your computer systems and

software in order to check that your security measures comply with our requirements. The


inspection will be carried out by persons authorized by us, will be at a reasonable time and will

comply with any reasonable written security regulations for your site.

12.3 An inspection will not mean that we have approved your security procedures and you are not

permitted to state or imply otherwise.

12.4 You will ensure that the Fraud Detection Module is utilized at all times and if you do not use

the Fraud Detection Module then you do so at your own risk.

12.5 You must ensure that all Transaction Data collected by you using Internet Authentication are

kept secure from unauthorized access or disclosure at all times.

12.6 You will ensure that you process all Transactions through the Production Environment

processing mode. All test transactions will be conducted using the Test Environment processing

mode.

12.7 You must not send us details for Payments unless you encrypt the Payment Details to the

standard specified by us from time to time.

12.8 You may require evidence of the Account Holder’s authority to debit the amount of any

Payment made via e-commerce.. You must therefore keep a record of each Electronic Commerce

Payment and MOTO Payment in the same way as you are required to do for any other Payments

in compliance with all Scheme Rules and any local laws and regulatory requirements. Unless we

have agreed otherwise, if an Account Holder denies an Electronic Commerce Payment or MOTO

Payment for which we have paid you we may charge back the payment to you under paragraph 4

of your Merchant Conditions.

12.9 You must comply with any instructions given by us on the e-commerce Back Office or that we

give you in writing regarding the security of Cardholder information, payment, settlement and

authorisation procedures and about any other security matters relevant to Electronic Commerce

Payments or MOTO Payments or, where relevant, Card Not Present Payments.

12.10 You must not retain or disclose a Cardholder's Security Code other than for the purpose of

processing a Payment.

12.11 You must keep all Transaction Data safe. You must inform us immediately should any

Transaction Data be stolen, compromised or disclosed in any way.

12.12 You must not put together or use any lists of Account Holders or Account details other than

to send us Transaction Data. You must not show any lists of Account Holders or Account details

to anybody other than your professional advisers and to your agents or subcontractors we have

approved. This does not prevent you giving out any information which is public knowledge or

from keeping to a legal duty to supply information.


12.13 We reserve the right, with immediate effect and without notifying you first, to suspend your

e-commerce Service (temporarily or permanently) in the event that you are, or we reasonably

suspect you are, in breach of these e-commerce Conditions and/or the applicable e-commerce

Operating Instructions and Procedure Guides, or where we reasonably suspect that any act or

omission of you or your Nominated User(s) threatens the security or integrity of Account Holders

or our Software.

13. E-COMMERCE CHARGES

13.1 You must pay us the e-commerce Charges (plus any VAT) shown in the Charges Schedule

together with the other charges due under these e-commerce Conditions. For the avoidance of

doubt, as detailed in the Merchant Conditions, we may change the rate or basis of our e-commerce

Charges at any time. We will tell you at least 30 days beforehand if we do this.

13.2 You confirm you have read and understood the Charges Schedule contained in the Merchant

Agreement which sets out the e-commerce Charges and the Cancellation Fee.

13.3 We will provide statements to you on a regular basis. Such statements will contain details of

Payments, Refunds and Chargebacks which have been processed and our e-commerce Charges for

the period covered.

13.4 Where your e-commerce Subscription includes Multicurrency, your statements will also

summarize the e-commerce Charges using an indicative foreign exchange rate for the transaction

period covered by the statement. However, you will be charged the e-commerce Charges that are

detailed in the e-commerce Back Office which are calculated using daily foreign exchange rates.

14 CLAIMS

14.1 In the event of any fees, fines, costs, claims or liabilities being passed to us by, but not limited

to, the Schemes arising out of our relationship with you or if you have broken these e-commerce

Conditions we will require them to be met by you for payment.

14.2 In the event of any fees, fines, costs, claims or liabilities being passed to us by a Scheme or any

third party claiming that there has been any infringement of their intellectual property rights as a

result of your actions or inactions, including but not limited to, the customization of the Hosted

Payment Pages, or your use of a Scheme's trademarks or brands in an unauthorized manner, then

we will require any Losses to be met by you for payment.

14.3 You will indemnify us for all costs and damages resulting from any and all claims made, or

any and all defenses is raised, against us, and arising as a result of any act or omission on your part

or on your behalf in the operation of this e-commerce Service.


15 LIMITATION OF LIABILITY

15.1 We will not be liable to you if we are unable to fulfil our obligations under these e-commerce

Conditions if such failure arises as a result of anything beyond our reasonable control. This

includes, but is not limited to:

15.1.1 The failure or breakdown of any machine, data processing system or transmission

link; 15.1.2 Industrial dispute;

15.1.3 Any break in power supply to us;

15.1.4 Any outage which may be notified to you from time to time.

15.2 You use e-commerce and its documentation at your own risk and in no event will we be liable

to you for any loss or damage of any kind (except personal injury or death resulting from our

negligence) including loss of profit, loss of business, loss of reputation, loss of opportunity or any

other special, consequential or indirect loss arising from your use of, or inability to use, e-

commerce.

15.3 If you wish to make a claim on us under these e-commerce Conditions you must notify us and

give us such details of your loss as we may request as soon as you have identified it and in any

event within six months after you become aware of the event or omission on which your claim is

based. If you do not do so, we will not be liable to you.

16. CONFIDENTIALITY

You will only process credit and debit card details for the purpose of processing a transaction in accordance

with the terms of these e-commerce Conditions and the Merchant Agreement (or for such other purposes

which you have notified your customers of in advance provided that such customers have provided you

with their fully informed consent to do so).

17. CHANGING THE TERMS OF THESE E-COMMERCE CONDITIONS

17.1 We may change the terms of these e-commerce Conditions and we will tell you about any

changes that we make. For example, we may make changes to take account of changes in legal or

other requirements affecting us, changes to the functionality of the software or any services we

provide you with or any system or product developments.

17.2 We may introduce a charge for any service provided under or in connection with these e-

commerce Conditions and amend any fees and charges at any time.

17.3 Changes will happen at least thirty days after we tell you about them unless the change is to

your benefit.


18. ENDING THE E-COMMERCE SERVICES

18.1 If either one of us ends your Merchant Agreement, the e-commerce Services will also end. 18.2

We may also end these e-commerce Services by giving you at least thirty days’ written notice.

18.3 In exceptional circumstances such as those set out in Condition 4.1(h)(i) to (viii) of the

Merchant Conditions, or where we suspect fraud, or you are unable to comply with the security

standards we specify, then we may end the e-commerce Services by giving you immediate notice.

18.4 You may end the e-commerce Services:

18.4.1 without cost by giving us giving at least thirty days’ written notice, such notice not

taking effect before the expiry of the Minimum Term; or

18.4.2 By giving us at least thirty days’ written notice.

18.5 If you fail to give us thirty days written notice as required in condition 18.4.1 above, you will

continue to be liable for all e-commerce Charges up to the date when such 30 day notice period

would expire.

18.6 We may also end the e-commerce Services upon reasonable notice if following an inspection

under Condition 12.2 of these e-commerce Conditions we consider that you are in breach of the

criteria laid down by us under Condition 12.1 of these e-commerce Conditions.

18.7 You must not send us any Transaction Data relating Payments that take place after the e-

commerce Services have ended.

18.8 If the e-commerce Services end, you will continue to be liable to us for all obligations that arose

before the service ended. Conditions 1, 11, 13, 14 and 15 of these e-commerce Conditions will

continue after the e-commerce Services end.

18.9 If we need to make a Chargeback after you have stopped sending us Payments we will send

you an invoice detailing the Payment and why we are making such Chargeback and you will pay

us the amount of the Payment within 10 Banking Days.

18.10 If you need to obtain any Transaction Date from us after your e-commerce Services end

(either to defend a chargeback or for any other purpose), you must notify us of your request in

writing. We reserve the right to charge you a Data Retrieval Fee in respect of each such request.

19. COMPLAINT PROCEDURES

We want to hear from you if you are unhappy about the service you have received from us. Letting us

know your concerns gives us the opportunity to put matters right for you and improve our service to all

our customers. You can complain in writing, by email or by telephone.


20. GENERAL

We may send any written notice to your registered office or your last place of business of which we are

aware. You may send any written notice to Merchants Services Manager, NIC Card Centre, P.O. Box 44599,

00100 – Nairobi or any other address we give to you for this purpose. If any notice or letter is sent by first-

class point post it will treated as being received at noon seven days after it was posted. This applies even if

it is not delivered or if it is returned undelivered. We are committed to providing a high standard of service.

However, if you wish to complain about any written communication or the service you have received, you

may do so in person, in writing or by post or e-mail, or by telephone.

21. LAW

This Agreement is governed by Kenyan Law and the parties submit to the exclusive jurisdiction of the

Kenyan courts.

Documents

MERCHANT TERMS AND CONDITIONS - NIC Bank · "Account Holder": the person entitled to use the Account and who is a customer purchasing goods or services from you; "Account Provider":