Be Secure (Private) Limited aka bSecure operates an electronic platform which facilitates and streamlines the process by way of which Merchants and Customers can conduct eCommerce. These Merchant General Terms and Conditions along with Annexures thereto (“Terms”) [are applicable to agreements entered into between bSecure and the Merchants in respect of] [govern] the bSecure Services rendered to the Merchant by bSecure. Please read the Terms carefully. By availing the bSecure Services, you agree that you have read, understood and accepted the Terms including any additional terms and conditions and any policies referenced herein. If you do not agree or fall within the Terms, please do not avail the bSecure Services.
Definitions and Interpretations
Capitalized terms used in this Agreement shall have the meanings assigned to them below:
⦁ Applicable Law: any constitution, statute, regulation, rule, ordinance, enactment, judgment, order, code, decree, directive, notification, having the force of law and any decision of or determination by a competent authority, now or hereafter in effect, in each case as amended, re-enacted or replaced to the extent applicable to a Party.
⦁ Appointed Email Address: the email address specified by the Merchant on the Merchant Portal as the email address to which all correspondence relating to bSecure or the Agreed Terms may be sent by bSecure.
⦁ bSecure: the platform operated by bSecure which facilitates and streamlines the process by way of which a customer purchases goods or services from a Merchant and which can be accessed at https://builder.bSecure.pk/
⦁ bSecure Bank Account: the bank account specified by bSecure on the Merchant Portal as the account wherein the payments are to be made to bSecure by the Merchant in accordance with the Agreed Terms.
⦁ Checkout Solution Services: the provision of a software solution to the Merchant(s) to [insert description of solution].
⦁ Checkout Solution Services Terms: the terms and conditions applicable to the provision of Checkout Solution Services by bSecure to the Merchant as set out in Annexure A.
⦁ Customer(s): any Person who is purchasing goods or services from the Merchant and has initiated a Transaction in respect of such order.
⦁ Customer Contract: a contract entered into between the Merchant and a Customer governing the sale of goods and/or services.
⦁ Confidential Information: any and all information disclosed in a manner clearly indicating its confidential nature or which, in the absence of such indication, would under the circumstances appear to a reasonable person to be confidential or proprietary. Such information shall include but not be limited to information relating to operations, plans, strategies (including but not limited to geographic expansion plans, target customer segment, merchant acquisition strategy, recruitment strategy, and corporate acquisition strategy), concepts, proposals, intentions, know-how, trade secrets, market information, copyright and other intellectual property rights (whether registered or not), software, market opportunities, organizational internal chart, corporate structure chart, details of customers and potential customers, details of competitors and potential competitors, business and/or financial affairs including any such information relating to, disclosed or provided by a Group Company. For the avoidance of doubt, the fact that the parties entered into this Agreement and that the parties may disclose or may have disclosed information shall be Confidential Information.
⦁ Disclosing Party: the Party making a disclosure pursuant to Clause 11 hereof.
⦁ Dispute Resolution Policy: the Dispute Resolution Policy of bSecure as amended from time to time.
⦁ Force Majeure Event: shall have the meaning ascribed thereto in Clause 20 hereof.
⦁ Fraud and Risk Monitoring Tools: applications developed by bSecure that perform a number of checks on the Transactions according to a series of risk settings and rules and flag transactions as potentially fraudulent.
⦁ Merchant: A Person selling its products or services online to Customers and who has entered into the Merchant Agreement with bSecure. [The Merchant is the vendor of the products or services.]
⦁ Merchant Agreement: the Merchant Agreement between bSecure and the Merchant for the provision of bSecure Services to the Merchant.
⦁ Merchant Bank Account: the bank account specified by the Merchant on the Merchant Portal as the account wherein the Settlement Funds are to be transferred.
⦁ Merchant Portal: The electronic application that enables a Merchant to manage, process and review Transactions and provides an interface between bSecure and the Merchant.
⦁ Platform Services: the provision of the [bSecure eCommerce platform] [bSecure] that acts as an intermediary to facilitate sale and purchase of goods or services between a Merchant and a Customer.
⦁ Recipient: The third party receiving information pursuant to Clause 11 hereof.
⦁ bSecure Services: means the Checkout Solution Services, Platform Services and other ancillary the services detailed in Appendix A of these Terms.
⦁ Signup Process: the process pursuant to which the Merchant shall be able to register with bSecure.
⦁ Transactions: a purchase of goods or services from the Merchant by a Customer using bSecure.
⦁ Transaction Taxes: All taxes payable in respect of a Transaction including but not limited to customs duties, sales tax, excise tax, value-added tax and any other duties, fees or charges arising from any Transaction.
⦁ References in this Agreement to “Clauses” and “Schedules” are references to Clauses and Schedules of and to this Agreement and references to sub-clauses or paragraphs are unless otherwise stated, references to sub-clauses or paragraphs of the Clauses or Schedules in which the reference appears.
⦁ Unless the context otherwise requires, the singular shall include the plural and vice versa and the masculine includes the feminine and neuter genders and vice versa.
⦁ The headings and sub-headings used in this Agreement are for convenience only and shall not affect the construction or the interpretation of this Agreement.
⦁ Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
⦁ An article, section, clause, schedule, exhibit or annex shall be construed as a reference to an article, section, clause, schedule, exhibit or annex of this Agreement.
⦁ A reference to a person shall be construed so as to include their respective successors and assigns from time to time;
⦁ The provision of the bSecure Services shall be governed by these Terms, as supplemented and modified by the Merchant Agreement and the Policies (“Agreed Terms”).
⦁ The Merchant acknowledges that the bSecure Services can only be provided if the Merchant complies with all requirements, procedures and formalities relating to the Merchant account on bSecure. As such, the provision of the bSecure Services to the Merchant is subject to compliance by the Merchant off all procedures and obligations particularized in the Agreed Terms.
⦁ The Merchant understands and agrees that, bSecure does not accept any risk or responsibility relating to the success or failure of the Merchants business and bSecure shall never be liable to compensate the Merchant for any loss of revenue, profits or any economic loss.
⦁ The Merchant appoints bSecure as its commission agent in accordance with the Agreed Terms.
⦁ ACCESS TO PLATFORM AND MERCHANT PORTAL
⦁ Following the execution of the Merchant Agreement, the Merchant will be required to open an account on bSecure by completing the Signup Process.
⦁ Subject to the completion of the Signup Process, bSecure shall enable the Merchant to access and update the “Merchant Portal” and complete the registration process. As part of the registration process, the Merchant will be asked to create a username/user ID and password to access the Merchant Portal. The Merchant hereby agrees that it shall not share its username or password with any third party and shall be solely responsible for the safety and security of its username and password, if any. Any misuse of the username and password shall be at the sole cost and consequence of the Merchant.
⦁ The Merchant shall be responsible for ensuring that all information relating to the Merchant appearing on the Merchant Portal, including but not limited to address, bank account number and Appointed Email Address, is maintained up to date. Any changes in the particulars of the Merchant appearing on the Merchant Portal must be immediately updated by the Merchant. The Merchant acknowledges that the information on the Merchant Portal will be used for the purposes of finalizing orders and payments and bSecure shall in no event be liable to the Merchant or the Customer for any claim, loss or charge resulting from the Merchant’s information on the Merchants Portal being outdated or inaccurate.
⦁ Any correspondence or communication received through the Merchant Portal and/or from the Appointed Email Address shall be presumed to originate from and have been made by the Merchant and bSecure shall be entitled to rely on such correspondence or communication.
⦁ Where any transaction in respect of a Merchant’s goods or services is being processed, bSecure shall show the goods or services as being sold by the Merchant and not by bSecure. The Merchant acknowledges and agrees that bSecure operates [solely as a commission agent] and under no circumstances functions as a seller, buyer, dealer, middleman, manufacturer, broker agent or merchant of the Merchant’s product of services and bSecure makes no representations or warranties and does not ensure the quality, safety or legality of any Merchant product or service.
⦁ bSecure shall use information relating to the description and price of goods and services, provided by the Merchant or obtained from the Merchant’s website to conclude a Transaction on behalf of the Merchant through bSecure.
⦁ Customers will be given one or more payment options on bSecure such as making payments electronically or paying cash on delivery. In case a Customer wishes to pay electronically such payment shall be made through a third-party payment services provider engaged by bSecure on behalf of the Merchant. In the event the Customer chooses to pay cash on delivery, it shall be the Merchant’s responsibility to arrange for collection of cash on delivery.
⦁ bSecure may offer additional promotions/discounts over and above the price set by the Merchant via multiple channels and the Merchant agrees that this shall in no event mean that the goods or services are being sold or provided by bSecure. The amount of such additional discount shall be funded by bSecure or its partner and not by the Merchant. Any fees charged by bSecure in respect of a Transaction will however be considered as being included in the Merchant’s quoted price for the good or service and will be deducted therefrom.
⦁ bSecure reserves the right to use, reproduce, modify, adapt, publish, translate, create and distribute any content that the Merchant provides.
⦁ The contract of sale in respect of any Transaction processed on bSecure shall be exclusively between the Merchant and the Customer on terms proposed by the Merchant and bSecure shall not be a party to such contract.
⦁ bSecure shall not be responsible for, resolving or mediating any disputes between the Merchant and a Customer.
⦁ The Merchant shall ensure that the terms of the Customer Contract do not conflict with the provisions of the Agreed Terms.
⦁ FRAUD AND RISK CONTROLS
⦁ All Transactions processed by bSecure shall be screened by the Fraud and Risk Monitoring Tools.
⦁ The Parties acknowledge that the Fraud and Risk Monitoring Tools do not guarantee the prevention of fraudulent Transactions, nor the prevention of resulting fines and as such, bSecure reserves the right to, at its discretion, reasonably change the risk settings and rules in the event bSecure deems the settings and rules employed, as part of the Fraud and Risk Monitoring Tools, insufficient to appropriately flag potentially fraudulent Transactions.
⦁ Transactions can be cancelled by the Merchant after having been authorized. The final responsibility for accepting or cancelling a Transaction will remain with the Merchant except cancellations pursuant to Clause 5.4 of these Terms. In the event a Transaction is cancelled, the Merchant will be obligated to offer a full refund to the Customer. However, bSecure shall not be liable to return the fee paid in respect of a Transaction and if such fee is portion of a price paid by the Customer, the Merchant shall be liable to refund the amount equal to entire fee from its own resources.
⦁ The Merchant shall be responsible for cancelling a Transaction suspected to be fraudulent or otherwise, in contravention of Applicable Law. However, bSecure reserves the right to reject or cancel Transactions that it has reasonable grounds to suspect to be fraudulent or otherwise in contravention of Applicable Law.
⦁ Notwithstanding anything to the contrary in the Agreed Terms, bSecure reserves the right to withhold and/or defer payouts to the Merchant related to Transactions if such Transactions are suspected to be fraudulent, or otherwise in contravention of Applicable Law.
⦁ The Merchant shall cooperate with any investigation carried out by bSecure in respect of any Transaction.
⦁ PROVIDING MERCHANT SUPPORT
⦁ In the event, the Merchant experiences problems with the bSecure Services, it may notify bSecure through the Merchant Centre.
⦁ bSecure shall investigate and notify the Merchant whether the problem is resulting from the bSecure Services, determine the severity of the problem and use reasonable efforts to remedy the problem to the extent possible. bSecure shall notify the Merchant upon the resolution of any request directed to it.
⦁ MERCHANT OBLIGATIONS
⦁ The Merchant agrees to the following obligations and restrictions:
⦁ The Merchant shall not sell any goods or services prohibited by the Agreed Terms, Applicable Law or as bSecure may notify from time to time.
⦁ The Merchant shall ensure that the goods or services sold are compliant with Applicable Law. In this regard, the Merchant shall, at its own cost, procure all formal consents, waivers, approvals, authorizations, exemptions, registrations and/or licenses necessitated by Applicable Law for bSecure to conclude the Transactions. If so required by bSecure, the Merchant shall provide any written certification of compliance with Applicable Law promptly upon, and no later than within two (2) days of receipt of a written request from bSecure in respect thereof. If bSecure, in its sole discretion, has cause to believe that the Merchant has, will be, or is using the bSecure in violation of Applicable law, bSecure reserves the right to immediately hold funds in reserve, to refuse to accept further orders, and/or terminate the Merchant Agreement with the Merchant immediately.
⦁ The Merchant shall inform bSecure promptly, and no later than within ten (10) business days, after it becomes aware of any unauthorized or incorrectly executed Transaction and/or refund.
⦁ The Merchant shall not host, display, upload, modify, publish, transmit, update or share any information which infringes any patent, trademark, copyright, proprietary rights, third party’s trade secrets, rights of publicity, or privacy, is fraudulent or involves the sale of counterfeit or stolen items.
⦁ The Merchant shall not offer or sell the following goods or services on bSecure:-
⦁ Alcoholic beverages;
⦁ Pornography materials and services of any kind whatsoever;
⦁ Banned / illegal drugs;
⦁ Fireworks or pyrotechnic devices or supplies;
⦁ Hazardous materials, combustibles, corrosives;
⦁ Gambling transactions;
⦁ goods or services that are part of a multi-level marketing scheme;
⦁ Matrix sites or sites using a matrix scheme approach; and
⦁ Any good or service which is not in compliance with all Applicable Laws.
⦁ The Merchant shall at all times comply with applicable guidelines and policies set by Visa, Master Card, Unified Payments Interface, bSecure. The Merchant shall be fully liable for all penalties imposed by VISA, MasterCard, UPI, State Bank of Pakistan or any other governmental or regulatory authority on account of any breach of such applicable guidelines by the Merchant.
⦁ The Merchant shall prominently display, on its website and in other online marketing materials, if applicable, a logo, image, text, markings, or code provided by bSecure from time to time. However, the Merchant shall not use any Intellectual Property belonging to bSecure without the prior written approval of bSecure.
⦁ The Merchant shall take all precautions as may be feasible or as may be directed by bSecure to ensure that there is no breach of security and that the integrity of the link between the Merchant’s website and bSecure is maintained at all times during the term of the Merchant Agreement.
⦁ The Merchant shall ensure the accuracy and/or validity of the prices and any other charges and/or other information relating to the goods or services, which are sold through or included on the Merchant’s website.
⦁ The Merchant shall take all such measures as may be required to rectify any deficiency in the goods or services provided by the Merchant. Notwithstanding the generality of the foregoing, the Merchant shall forthwith compensate the Customer for any loss caused to the Customer due to any deficiency in the goods or services provided by the Merchant which cannot be resolved.
⦁ The Merchant shall comply with all instructions, in writing, whatsoever given to the Merchant by bSecure in connection with any Transaction. In this regard, the Merchant shall, inter alia, provide any financial or personal information it may have in respect of a Transaction to bSecure within seven (7) Business Days of receipt of a written request from bSecure in respect thereof.
⦁ The Merchant shall setup, maintain, and upgrade, the security, and integrity of its computer system(s) at its own cost.
⦁ If the Merchant wishes to upgrade or change the version or type of its software and/or hardware or any other part of its computer system, it shall notify bSecure [●] days prior to such change and allow such change to be tested with bSecure as soon as possible before implementation.
⦁ The Merchant shall permit the authorized representatives of bSecure to carry out, without notice, physical inspections of the place(s) of business of the Merchant.
⦁ The Merchant shall not describe itself as an agent or representative of bSecure. In this regard, the Merchant shall take all necessary steps and/or precautions to ensure that the goods or services offered by the Merchant on its website or otherwise are not mistaken or misrepresented as being associated with, being offered by bSecure. Further, the Merchant shall not make any representations to Customers or any third party or to give any warranties which may require bSecure to undertake to or be liable for, whether directly or indirectly, any obligation and/or responsibility to Customers or any third party.
⦁ The Merchant shall not directly or indirectly, mischaracterise or disparage bSecure, bSecure’s representative or affiliates;
⦁ FEES AND PAYMENTS
⦁ The Merchant shall pay to bSecure the fees specified in Schedule A (Fees) in respect of each Transaction (the “Fee”). bSecure shall have the right to increase, decrease or otherwise amend the Fee specified in Schedule A (Fees) by giving fourteen (14) days’ notice to the Merchant.
⦁ The Fee shall be calculated on the price of the good or service provided by the Merchant to the Customer inclusive of any taxes or other charges payable thereon.
⦁ The Customer may choose to pay for a good/service using the Platform Services or Checkout Solution Services through electronic means or cash on delivery. bSecure shall engage one or more third party payment service providers to process payments in respect of Transactions on behalf of Merchant where the Customer has chosen to make a payment electronically through one of the available methods.
⦁ bSecure shall not in any case, including in case of a refund or chargeback, be obligated to return any amount charged to the Merchant as its Fees or the service charges of the relevant payment service provider.
⦁ bSecure shall ensure that all relevant information relating to a payment is available on the Merchant Portal.
⦁ All payments shall be made in Pakistan Rupees.
⦁ The Merchant shall determine, which taxes, if any, are applicable to the sale of goods or services and/or the payments it receives in connection with its use of the bSecure Services and remit the correct Transaction Tax to the relevant tax authority subject to Applicable Law. bSecure shall not be obligated to determine the Transaction Taxes and is not responsible to collect, report, or remit any Transaction Taxes.
⦁ DISPUTE RESOLUTION IN RELATION TO ONLINE TRANSACTION
All Disputes in relation to a Transaction will be handled in accordance with the Dispute Resolution Policy and each Party hereby agrees to comply with the Display Resolution Policy which shall form an integral part of the Agreed Terms.
⦁ CONFIDENTIALITY OBLIGATIONS
⦁ A Recipient receiving Confidential Information pursuant to the Agreed Terms shall:
⦁ use the Confidential Information only for the purposes of the Agreed Terms;
⦁ not disclose Confidential Information to any third party, unless legally required or specifically authorized under the Agreed Terms, without the prior written consent of the Disclosing Party;
⦁ disclose Confidential Information only to such of its representatives that have a need to obtain or to have access to such Confidential Information and that are obliged by a written confidentiality agreement to keep such information in confidence.
⦁ protect and safeguard Confidential Information against unauthorized disclosure and access to a standard that it applies to its own confidential information and in any case with reasonable skill and care;
⦁ only make such copies of the Confidential Information as is necessary for the purpose of the Agreed Terms;
⦁ promptly inform the Disclosing Party, to the extent permitted by law, of any breach or suspected breach of any of the obligations hereunder;
⦁ upon request in writing from the Disclosing Party and at the Disclosing Party’s cost, immediately deliver to the Disclosing Party all copies of all or part of the Confidential Information (regardless of the form in which, or the medium on which, it is stored) or shall destroy such information and confirm in writing (which includes email) that all copies of such information have been so delivered or destroyed as requested.
⦁ Clause 10.1 shall not apply to information which:
⦁ the Recipient knew or possessed before the Disclosing Party disclosed it to the Recipient;
⦁ is or becomes publicly known, other than as a result of a breach of the terms of the Agreed Terms by the Recipient or by anyone to whom the Recipient disclosed it;
⦁ the Recipient obtains from a third party, and the third party was not under any obligation of confidentiality with respect to the Confidential Information;
⦁ is independently developed by, or for the Recipient, or by the Recipient’s Representatives who have not had any direct or indirect access to, or use, or knowledge of, the Disclosing Party’s Confidential Information;
⦁ bSecure shall have the right to suspend the provision of the bSecure Services in the event the total outstanding amount due and payable by the Merchant to bSecure exceeds PKR [●]
⦁ bSecure may terminate these Agreed Terms with immediate effect in the event:
⦁ the Merchant is in breach of any of the provisions of these Agreed Terms or Applicable Law.
⦁ if the Merchant files a petition for bankruptcy, becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or a receiver is appointed for the Merchant or its business, or the Merchant goes into liquidation either voluntarily (otherwise than for reconstruction or amalgamation) or compulsorily.
⦁ The Merchant ceases or threatens to cease to carry on its business.
⦁ bSecure may terminate these Agreed Terms by giving one (1) months’ prior written notice to the Merchant.
⦁ The Merchant may terminate these Agreed Terms by giving two (2) month’s prior written notice to bSecure.
⦁ REPRESENTATIONS AND WARRANTIES
⦁ The Merchant represents and warrants to bSecure that:
⦁ it is a validly organized and validly existing company in good standing under the laws where its principal office is located;
⦁ it has obtained and shall maintain any and all licenses, permits and registrations required under the Applicable Law to conduct its business in all jurisdictions where it sells the goods or services, and shall inform bSecure immediately should this change;
⦁ it is competent to enter into these Agreed Terms and Customer Contracts and its entry into these Agreed Terms and the Customer Contracts and the performance thereof have been duly authorized by all necessary corporate action and constitutes a valid and binding agreement of the Merchant, enforceable against the Merchant in accordance with the terms thereof and the execution, delivery and performance of this Agreement and any Customer Contract will not violate any provisions of Applicable Law;
⦁ it has duly paid all customs duties, excises tax and any other tax on the import, manufacture or production of the goods sold by it;
⦁ all information furnished to bSecure including but not limited to all information on the Merchant Portal is accurate and up to date;
⦁ to the best of its knowledge, there is no action, suit or proceeding at law or in equity now pending or threatened by or against or affecting the Merchant which would affect the rights and obligations of the Parties under these Agreed Terms;
⦁ its directors, shareholders and ultimate beneficial owners have never been convicted of a criminal offence and are not currently subject of any investigation relating to any criminal offence; and
⦁ it is not, in any way, actively involved in money laundering or financing of terrorist or criminal activities or any other illegal activity.
⦁ bSecure’S RIGHTS
⦁ bSecure shall have the right to verify and investigate all Transactions, to examine the Merchant’s, records (electronic or otherwise) relating to the Transactions and to verify the payment of taxes in respect of any transaction. For this purpose the Merchant shall preserve all records pertaining to such Transactions and the payments tax relating thereto for the period of at least six (6) years after the end of the financial year in which the Transaction was effected and shall include in such record such information as may be notified by bSecure.
⦁ bSecure shall be entitled to prohibit the display of any material on the website if the act or manner of such display is contrary to any applicable law, regulation, government policy, order or guideline including all applicable foreign laws and regulations or which is detrimental or harmful to the interest of payment schemes and bSecure, in the sole and exclusive opinion of bSecure.
⦁ bSecure shall be entitled to publish notices, disclaimers and indemnities on the Merchant’s website in the manner and extent deemed necessary by bSecure in accordance with bSecure’s internal operational, risk & compliance and/or policy guidelines. The Merchant shall render the necessary modifications to the Merchant’s website within seven (07) days of bSecure requesting the same.
⦁ bSecure shall at all times have the absolute right to suspend its provision of the bSecure Services envisaged under these Agreed Terms, with prior written notice of thirty (30) Business days to the Merchant, citing clear reasons for the need for such suspension.
⦁ The Merchant agrees to indemnify and hold harmless bSecure (and its respective directors, officers, affiliates, agents, successors and assigns) from and against any and all losses, liabilities, claims, deficiencies, costs, damages and expenses (including, without limitation, reasonable legal fees, charges and disbursements) resulting from and/or arising in connection with any actions or omissions of the Merchant that is contrary to the Agreed Terms including but not limited to:
⦁ any inaccuracy in or breach of the representations, warranties or covenants made by the Merchant in the Agreed Terms;
⦁ Any infringement in respect of the Intellectual Property of the Merchant;
⦁ The Merchant’s goods or services; and
⦁ Any third-party claims against bSecure in respect of suspension, failure or other form of cessation of Merchant’s operations.
⦁ LIMITATION OF LIABILITY
⦁ bSecure shall not be liable in contract, tort (including negligence or breach of statutory duty) or otherwise for any indirect or consequential loss or damage of any kind including punitive or exemplary damages or for any loss of profit or loss of contract, loss of goodwill or reputation, loss of opportunity, loss of revenue or third party loss whether foreseeable or otherwise.
⦁ Subject to Clause 15.3, bSecure’s total liability (and its respective employees, directors, agents and representatives) arising out of or in connection with the Agreed Terms, whether in contract or in tort or other legal theory, shall not exceed the total amount of the Fees paid to bSecure by the Merchant.
⦁ bSecure shall not be liable for any of the following:
⦁ Acts or omissions of any fees charged by third parties payment service providers or any other third party that may provide services in relation to a Transaction;
⦁ Any action taken by bSecure for the completion of the Transaction in reliance of any information received from third parties;
⦁ Unavailability of the bSecure Services due to hardware, software or internet connection not working properly.
⦁ Unforeseen circumstances preventing the proper performance, despite any reasonable precautions taken by bSecure. Such circumstances may include but are not limited to acts of God, power outages, fire, flood theft, equipment breakdowns, hacking attacks, internal mechanical or systems failures as well as downtimes of bSecure;
⦁ Any dispute between the Merchant and the Customer.
⦁ Relationship between the Parties
⦁ Nothing contained in the Agreed Terms will be construed to create a partnership, joint venture or agency relationship between the Merchant and bSecure beyond that expressed specifically in these Agreed Terms as a commission agent. Neither party has authority to enter into agreements of any kind on behalf of each other.
⦁ THIRD PARTY CONTRACTORS
⦁ bSecure shall have the absolute discretion to use independent agents, contractors and/or correspondents to carry out or procure any of the matters under or contemplated in this Agreement.
⦁ If any provision of these Agreed Terms is found by any court or a competent public body or authority to be illegal, invalid or unenforceable:
⦁ such illegality, invalidity or unenforceability shall not affect the other provisions of the Agreed Terms, which shall remain in full force and effect; and
⦁ if such provision would cease to be illegal, invalid or unenforceable if some part of the provision were modified or deleted, the provision in question shall apply with such minimum modification or deletion as may be necessary to make it legal, valid and enforceable.
⦁ ENTIRE AGREEMENT
⦁ The parties agree that the Agreed Terms constitute the entire agreement between them, and supersedes all other prior agreements, arrangements, understandings or representations between them, whether oral or written, other than any securities or written pledges, undertakings or assurances which the Merchant may have previously given to us as a condition precedent or in anticipation of the Agreed Terms.
⦁ Each party to the Agreed Terms warrants that it has not relied on any representations, arrangements, understanding or agreement (whether written or oral) not expressly set out or referred to in the Agreed Terms. The only remedy available to any party in respect of any such representations, arrangements, understanding or agreement shall be for the breach of contract in accordance with the Agreed Terms.
⦁ FORCE MAJEURE
⦁ A “Force Majeure Event” shall mean any event or circumstance or combination of events or circumstances (including the effects thereof) that is beyond the reasonable control of a Party and, which event materially and adversely affects the performance by such affected Party of its obligations under or pursuant to these Agreed Terms, provided, however, such material adverse effect could not have been prevented, overcome or remedied in whole or in part by the affected Party through the exercise of diligence and reasonable care. Without limiting the generality of the foregoing, "Force Majeure Events" hereunder shall include each of the following events and circumstances (including the effects thereof), but only to the extent that each satisfies the requirements above:
⦁ any act of war (whether declared or undeclared), invasion, armed conflict or act of foreign enemy, blockade, embargo, revolution, riot, insurrection, civil commotion, or act or campaign of terrorism or political sabotage; or
⦁ lightning, fire, earthquake, tsunami, flood, storm, cyclone, typhoon, or tornado; or
⦁ epidemic, pandemic, or plague; or
⦁ collapse of buildings, fire, explosion or accident; or
⦁ interruption of failure of utility service; or
⦁ the promulgation of any law or any action taken by a government or public authority including without limitation failing to grant a necessary licence or consent.
⦁ Provided that is has complied with Clause 20.4, if a Party is prevented, hindered or delayed in or performing any of its obligations under these Agreed Terms by a Force Majeure Event (the “Affected Party”), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations shall be extended accordingly.
⦁ The corresponding obligations of the other Party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
20.4 The Affected Party shall:
⦁ as soon as reasonably practicable after the start of the Force Majeure Event but no later than two (2) days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreed Terms; and
⦁ use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligation.
⦁ INTELLECTUAL PROPERTY RIGHTS
⦁ Nothing contained in these Agreed Terms shall, or shall be construed to, transfer any Intellectual Property rights of bSecure or its licensors in any product, software or other item to the Merchant nor shall the Agreed Terms be construed to transfer any Intellectual Property rights of the Merchant in any product, software or item to bSecure or its licensors. All such Intellectual Property rights shall at all times remain vested in bSecure or its licensors or the Merchant , as the case may be.
⦁ The Merchant shall not be entitled to use any Intellectual Property belonging to bSecure without bSecure’s prior approval in writing.
21.1 Form of notice
Any notice or other document to be served under the Agreed Terms shall be in the English language and may be delivered personally, by internationally recognised courier and a copy by e-mail to the Party to be served at the following address or at such other address as it may have notified in writing to the other Party.
21.2 When notice takes effect
Any notice or document shall be deemed to have been served:
⦁ if delivered personally or by internationally recognised courier, at the time of delivery; or
⦁ if sent by e-mail, at 10.00 a.m. on the Business Day following the date of despatch.
In proving service of a notice or document it shall be sufficient to prove that delivery was made or that the email message was properly addressed as the case may be.
⦁ AMENDMENT AND ADDITIONS
These Agreed Terms are subject to change from time to time by bSecure at its sole discretion. Unless otherwise agreed, changes may be made by notice from bSecure to the Merchant under the following procedure:
⦁ bSecure shall give the Merchant notice of any proposed change to the Agreed Terms (a “Change Notice”).
⦁ A Change Notice may be given to the Merchant in accordance with Clause 22.
⦁ The proposed change shall come into effect automatically [●] days after the date of receipt of the Change Notice unless the Merchant gives written notice to bSecure that it objects to the proposed changes within such time frame as may be stipulated in the Change Notice (“Objection Notice”).
⦁ bSecure may stipulate in a Change Notice a different time period for the coming into effect of any change.
⦁ If no Objection Notice is received by bSecure within the stipulated time frame, the Merchant is deemed to have accepted the change.
⦁ The Merchant has the right to terminate the Agreed Terms with immediate effect at any time and without charge after receiving a Change Notice and before any change stipulated in the Change Notice becomes effective.
⦁ If the Parties are unable to resolve and address, through mutual agreement, the Merchant’s objections as communicated vide the Objection Notice, and without prejudice to sub-clause f. above, a Merchant’s Objection Notice shall be deemed to constitute a notice to terminate these Agreed Terms with the termination effective immediately before the date on which the proposed change would otherwise come into effect under sub-clause c.
⦁ GENERAL COVENANT
The Parties have entered into the Agreed Terms in good faith and shall give all such assistance and information to the other Parties and execute and do all such further acts, deeds, assurance and things as may be reasonably required so that full effect may be given to the terms and conditions of the Agreed Terms.
No delay, waiver, omission, or forbearance on the part of the non-defaulting Party or Parties to exercise any right, option, duty, or power arising out of any breach or default by the defaulting Party under any of the terms, provisions, covenants, or conditions hereof, shall constitute a waiver by the non-defaulting Party or Parties to enforce any such right, option, duty, or power as against the defaulting Party, or as to any subsequent breach or default by the defaulting Party.
⦁ RIGHTS AND REMEDIES
The rights and remedies provided in the Agreed Terms are cumulative and are not exclusive of any rights or remedies of the Parties provided at law, and no failure or delay in the exercise of any other right or remedy shall affect or impair any such right or remedy or the exercise of any other right or remedy.
⦁ GOVERNING LAW AND ARBITRATION
⦁ All disputes, differences or questions with respect to any matter arising out of or relating to the Agreed Terms (other than disputes in relation to Transactions dealt with in the Checkout Services Terms or Platform Services Terms) shall be resolved by both the Parties through mutual negotiations in good faith. Either Party may inform the other Party about any such dispute through a notice in writing specifying the issue in dispute or the matter of difference. The Parties shall endeavor to settle the issue through amicable negotiations within thirty (30) days of receipt of such a notice. In case the issue raised through the notice cannot be settled within the period of thirty (30) days from the date of receipt of notice, the issue or matter shall be referred to arbitration as provided hereunder.
⦁ Where the Parties are unable to resolve the Dispute within thirty (30) days of the receipt of notice, the same shall be referred to arbitration to be conducted under the Arbitration Act, 1940 or any amendment thereto. The venue for arbitration shall be Karachi, Pakistan and the language for arbitration proceedings shall be English. Each Party shall bear its own arbitration costs. The decision of the arbitrators shall be final and shall be acceptable for both Parties.
⦁ The Agreed Terms shall be governed by the laws of Pakistan.
CHECKOUT SERVICES TERMS
The following terms and conditions, in addition to the Terms, are applicable in respect of the provision of Checkout Solution Services to the Merchant.
⦁ TRANSACTION PROCESS
⦁ Once the Merchant has completed the Signup Process, bSecure shall assist the Merchant in making such alterations to the Merchant’s website so as to enable Customers to place orders for goods and services through bSecure.
⦁ Where a Customer chooses to place an order with the Merchant through bSecure they shall be redirected to bSecure’s website to complete the order. The Merchant hereby irrevocably authorizes bSecure to conclude transactions with Customers on behalf of the Merchant and take such actions as are contemplated in the Agreed Terms.
⦁ bSecure shall use information relating to the description and price of goods and services, provided by the Merchant or obtained from the Merchant’s website to conclude a Transaction on behalf of the Merchant through bSecure.
⦁ The Merchant shall [directly] receive all payments for goods and services sold on behalf of the Merchant using the Checkout Solution Services in accordance with the Agreed Terms. In the case of electronic payment, the Merchant shall receive payment for goods and services directly to the Merchant Bank Account.
⦁ The Merchant shall make payment of the Fees in respect of a Transaction by depositing such Fees in the bSecure Bank Account within [five (5)] Business Days of the initiation of the Transaction whether the Transaction is successful or not.
PLATFORM SERVICES TERMS
The following terms and conditions, in addition to the Terms, are applicable in respect of the provision of Platform Services to the Merchant.
⦁ bSecure shall feature the goods/services for sale on bSecure using the information relating to the description and price of goods and service as provided by the Merchant.
⦁ The manner in which the goods/services are featured on bSecure and its placement on bSecure shall be the sole responsibility of and at the discretion of bSecure.
⦁ Any particular good/services featured on bSecure may be delisted by bSecure if sale of the good/service would contravene any Applicable Law or the Merchant breaches any of its obligations under the Agreed Terms and in such case the Merchant shall be notified immediately.
⦁ Featuring any good/service on bSecure shall constitute an offer of sale on display by the Merchant to all persons using bSecure.
⦁ Where a Customer places an order for purchasing a good/service through bSecure, it shall be deemed to be an acceptance of the Merchant’s offer to sell the good/service and a binding Customer Contract shall come into force.
⦁ Once the Merchant has completed the Signup Process, bSecure shall assist the Merchant in making such alterations to the Merchant’s website so as to enable Customers to place orders for goods and services through bSecure.
⦁ bSecure shall receive and process all payments for goods and services sold on behalf of the Merchant using the Platform Services in accordance with the Agreed Terms.
⦁ In the case of electronic payment, bSecure shall have the right to deduct its Fees in respect of a Transaction from the amount charged to the Customer and process and receive all payments for goods or services purchased using bSecure/Platform Services on behalf of the Merchant. bSecure shall make payment of the amount paid for the good or service to the Merchant less the Fees and any deductions made to the Merchant pursuant to the Agreed Terms (the “Settlement Funds”).
⦁ Any fees or service charges paid or payable by bSecure to a payment service provider in respect of Transaction shall be reimbursed to bSecure by the Merchant within [●] Business Days of such Transaction. bSecure shall have the right to deduct or set off such amounts from [payments to be made to the Merchant] [the Settlement Funds].
⦁ In the event bSecure does not deduct the Fees or other charges payable by the Merchant in respect of a Transaction or is otherwise unable to do so the Merchant shall be obligated to pay such Fees or other charges by depositing such Fees or other charges in the [bSecure Bank Account] within [INSERT] business days of the relevant Transaction.
⦁ In the event the Customer chooses to pay for a Transaction by way of cash on delivery, the Merchant shall pay the Fees to bSecure in respect of such Transaction by depositing such Fees [in the bSecure Bank Account] within five (5) business days of initiation of such Transaction whether the Transaction is successful or not.
⦁ bSecure shall not be liable for any failure to remit Settlement Funds to the Merchant due to incomplete or inaccurate information provided by the Merchant on the Merchant Portal including any incomplete or inaccurate details of the Merchant Bank Account
⦁ bSecure shall have the right to set off any and all sums owed by the Merchant to bSecure under any agreement between the parties against and amount being paid to the Merchant by bSecure under the Agreed Terms including the Settlement Funds.
Fees stated as a percentage shall be calculated on the price of the good or service provided by the Merchant inclusive of any taxes or other charges payable thereon
The fee quoted in this schedule are quoted exclusive of applicable sales tax