Purple Owl Terms And Conditions
This agreement determines the terms and conditions of a debit/credit agency arrangement between the parties. The parties have come to an
agreement for such an arrangement and wish to set out the terms and conditions thereof.
1 PARTIES
1.1 The parties to this agreement are the Client and Softy Comp cc (herein referred to as the “parties” and “party” means any one of them
as the context may indicate).
2 INTERPRETATION
2.1 In this agreement, unless inconsistent with or otherwise indicated by the context –
2.1.1 “API” (Application Programming Interface) means a developed set of functions, procedures and tools for accessing
software.
2.1.2 “the/this agreement” means the agreement as set out in this document with all annexure hereto;
2.1.3 “day” means every calendar day excluding Saturdays, Sundays and public holidays;
2.1.4 “customer” means the card holder identified in the input data and to collect moneys by the Client through the Purple
Owl Payment Gate way.
2.1.5 “Effective Date” means the valid and effective date of the services and contract;
2.1.6 “PURPLE OWL PAYMENTS”, also referred to as POP, is Softy Comp’s Electronic Bill Payment Presentment engine
(EBPP) for online card payment processing.
2.1.7 “Service” means the Electronic Bill Payment Presentment; Web Interfaces to Purple Owl Payments ; Back Office
Reports ; Collection of funds via Visa, Mastercard, American Express, Maestro and Dinners Card;
2.1.8 “input data” means all data or assistance that Purple Owl Payments requires from the Client to execute the
instruction and perform the services effectively and/or timeously;
2.1.9 “prime rate” means the publicly quoted basic rate of interest per annum, at which First National Bank Limited lends
on overdraft as certified by any general manager of that bank, whose authority and appointment it shall not be
necessary to prove, compounded monthly in arrear and calculated on a 365-day year factor (irrespective of whether a
leap year or not);
2.1.10 “debt” means any amount which the Client may owe to Softy Comp;
2.1.11 “EBPP” Electronic Bill Payment Presentment;
2.1.12 “cashbacks” means an instruction from the cardholder to reverse transactions been processed by the client through
Purple Owl Payments payment gateway for whatsoever reason
2.1.13 “instruction” means the instruction, in the form of input data, by the Client to Purple Owl Payments to present an
EBPP to collect on the card rails specified amounts of money that is presented through the EBPP on a specified date
from a specified debit or credit card account, and to distribute same in accordance with this agreement;
2.1.14 “collection” means the amounts collected in terms of the instruction;
2.1.15 “intellectual property rights” All the content, trademarks and data used in the EBPP and the E-Commerces web site,
including but not limited to, software, databases, text, graphics, icons, hyperlinks, private information, designs and
agreements, are the property of, or are licensed to Softy Comp and as such are protected from infringement by local
and international legislation and treaties.
2.1.16
2.1.17 “the signing date” means the date on which this agreement is signed by the party signing last in time;
2.1.18 any reference to the singular includes the plural and vice versa, and
2.1.19 any reference to natural persons includes legal persons and vice versa.
2.1.20 “3D secured transaction” means that the customer who’s debit card or credit card been processed needs to put in a pin to
makes the transaction 3D secure and authenticated.
2.1.21 “non-3D secured transaction” means that the customer who’s debit card or credit card been processed does not have to
put in a 3D secure pin, this is also referred to as a Moto transaction
2.2 The expiration or termination of this agreement shall not affect such of the provisions of this agreement as expressly provide that
they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration
or termination, notwithstanding the clauses themselves do not expressly provide for this.
2.3 This agreement shall not be interpreted against the party responsible for the drafting or preparation hereof.
2.4 Unless the context indicates otherwise, the rights and obligations of any party arising from this agreement shall devolve upon and
bind its successors-in-title.
2.5 Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
2.6 If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to it
as if it were a substantive clause in the body of the agreement notwithstanding that it is only contained in the interpretation clause.
2.7 Clause headings in this agreement have been inserted for convenience only and shall not be taken into account in its interpretation.
2.8 Words and expressions defined in any sub-clause shall, bear the meaning assigned to such words and expressions in that subclause,
throughout the agreement.
2.9 When any particular number of days is provided for the doing of any act or for any other purpose, the reckoning shall exclude the
1st (first) day and shall include the last day which shall be a business day, provided that whenever a particular number of days
needs to be determined for the purpose of calculating interest, the reckoning shall include the first and last days and all days
including Saturdays, Sundays and public holidays within the period.
2.10 The words “include”, “including” and “in particular” shall be construed as being by way of example or emphasis only and shall not
be construed as, nor shall they take effect as, limiting the generality of any preceding word/s.
2.11 The words “other” and “otherwise” shall not be construed eiusdem generis with any preceding words where a wider construction
is possible.
2.12 This agreement shall be governed by and construed and interpreted in accordance with the law of the Republic of South Africa.
3 INTRODUCTION
3.1 The Client wishes to engage Softy Comp for the services and hereby instruct and authorise Softy Comp, to submit Electronic Bill
Payments and the collections of this payment through the Purple Owl Payment System Payment Gateway due to the Client in
accordance with the instructions by EBPP, and Softy Comp agrees to perform the services as an agent of the Client on the terms and
subject to the conditions and for the agreed fees set out herein.
3.2 This agreement reflects the arrangement reached between the parties in their negotiations and the structure, terms and conditions
decided upon for the rendering of the services, and now agree accordingly.
4 DURATION / CANCELLATION
4.1 The agreement will remain in force indefinitely, unless cancelled in terms hereof or cancelled by either party with 30 days written
notice, the client agrees that all disputes or cashbacks is still the client’s liability after the end of service or the cancellation of this
contract.
4.2 For cashbacks and disputes the client is required to sign a liability agreement wherein you agree that if any of the clients customers does
cashbacks or dispute after this agreement has ended that the client will refund Softy Comp, and the client will remain liable for those
cashbacks or disputes in their personal capacity as director or owner of the company.
5 APPOINTMENT AND SERVICES
5.1 The Client hereby exclusively appoints Softy Comp to provide him/her/it with the services. The relationship between the parties,
however, will remain that of independent entities. Nothing in the appointment of Softy Comp or relationship between the parties,
in terms of this agreement, shall constitute or be construed as employer and employee, joint venture or partnership. Softy Comp
shall however be entitled to describe itself and act as the exclusive authorised agent of the Client in delivering the services.
5.2 Softy Comp shall provide the services under lawful written instructions from the Client in the form of the input data to be provided by
the Client in the form, manner and timing as recorded in section 1 of Annexure A hereto, or as amended in writing by Softy Comp from
time to time.
5.3 Softy Comp’s services only pertains to Purple Owl Payment Gateway services and only to those customers whom the client has
instructed to perform an EBPP and a successful deduction on the card rails.
5.4 Softy Comp retains the absolute right to, in its absolute discretion and without explanation, prior notice or recourse from the Client, to
limit the services by refusing to execute any instruction or limit the amount of exposure to the Client. Softy Comp shall however, in
exercising this right, act in good faith.
6 INPUT DATA AND TRANSMISISON THEREOF
6.1 The Client will supply the input data in the form and manner and as prescribed by Softy Comp or such additional information as
requested by Softy Comp from time to time. Softy Comp shall not be obliged to execute any instruction or perform any services
until receipt of the written input data or additionally requested information is received
6.2 The Client hereby warrants and remains solely responsible to ensure the correctness and completeness, in all aspects, of all the
input data or additional information requested and provided to Softy Comp. In addition, it is the Client’s sole responsibility to
verify the timeous delivery and receipt, by Softy Comp, of all and any input data or additional information supplied.
6.3 Although Softy Comp may assist in the processing of the input data received from the Client, Softy Comp has no obligation to
verify the completeness and/or correctness of such input data or additional information or the amendment thereof.
6.4 The Client remains solely responsible for and controls his/her/its own input data and customer databases, including but not
limited to the accuracy of information and response to unpaid transactions.
6.5 Any loss of or damage or breach of confidentiality to any information, input data or reporting collected, delivered or electronically
transmitted to the Client or his/her/its offices, shall be for the account and risk of the Client.
7 REPORTING
7.1 Softy Comp shall make reporting available on a real-time basis on The Purple Owl Backend System for which the Client will be
configured at take-on
7.2 The Client has sole responsibility to verify the correctness of every transaction relating to the services on receipt of report thereof
and report any mistake or other defect in such transactions to Softy Comp, within the available time frame of the specific service,
as soon as such reports have been received, in order to enable Softy Comp to make the necessary corrections. Should the Client
fail to report any mistake or defect timeously, Softy Comp will be exempt and indemnified by the Client from any liability as a
result of any mistake or other defect not corrected, notwithstanding any other provision to the contrary contained in this
agreement.
8 CLIENT SPECIFIC RESPONSIBILITIES, WARRANTIES AND UNDERTAKINGS
8.1 The Client agrees to comply with such reasonable requirements that Softy Comp may from time to time set or any requirement
from Visa or MasterCard and any governmental act or law, including but not limited to all applicable banking laws, governing this
agreement or the services rendered.
8.2 The Client warrants and undertakes to Softy Comp that: –
Hereby indemnifies Softy Comp against any damages or consequences of whatsoever nature and howsoever arising, resulting
from a breach of these warranties and will take full responsibility and refund the Customer, all amounts, including costs, deducted
and incurred by Softy Comp under the instruction from the Client, if the customer did a cashback or a dispute on a transaction
8.3 The Client shall immediately notify Softy Comp in writing, of any change within the Client or relating to it and which may affect its
risk profile, credit record or credit worthiness.
8.4 The Client furthermore warrants that the conclusion and execution of this agreement will not contravene any law or contract to
which he/she/it is a party.
8.5 Softy Comp shall not be liable for any fraud, deception or misrepresentations by the client of the Service in any capacity
whatsoever.
8.6 Softy Comp warrants and undertakes that:-
8.6.1 That Softy Comp is fully authorised by the National Payment System Act 78 of 1998 as a System Operator (Reg. No. SO001024)
and a TPPP (THIRD-PARTY PAYMENT PROVIDER) (Reg. No. SP001060) to provide payment and collection services for Companies
and the General public.
9 RECIPROCAL UNDERTAKINGS BY THE PARTIES
The parties undertake at all times to in good faith and in a professional and diligent manner, do all such things, perform all such actions
and take all such steps and to procure the doing of all such steps as may be open to them and necessary for or incidental to putting into
effect or maintenance of the terms and conditions of this agreement, and shall co-operate with each other in connection with any steps
required to be taken as part of their respective obligations under this agreement.
10 LIABILITY AND INDEMNIFICATION
10.1 It is recorded that Softy Comp only operates as the agent of the Client in rendering the services and facilitating the transactions
between the Client and his/her/its customers through the Purple Owl Payment Gateway, and shall not be held liable, in any form
whatsoever, for any monetary value or any costs incurred in transactions between the Client and its customers.
10.2 If Softy Comp suffers any loss or damage (including legal costs and expenditure) in terms of, or in connection with the bona fide
rendering of services under this agreement resulting from claims by any person, third party, or Customer other than the Client, the
Client shall compensate that loss or damage to Softy Comp on demand, and hereby indemnifies Softy Comp and its agents against
any claim by any Customer or third party arising from an instruction or the cancellation thereof by the Client to Softy Comp.
10.3 If Softy Comp errs in the rendering of the services, Softy Comp will remedy that particular transaction, if possible. However, this
does not apply if the mistake was due to the Client having failed to supply the correct input data or supply it timeously, or at all.
10.4 Softy Comp shall not be liable to the Client for any indirect, special, or consequential damages arising from this agreement,
whatever its nature and regardless of how the cause arose, however should Softy Comp be found liable to the Client for
whatsoever reason or cause arising, such liability towards the Client shall be limited to a maximum amount equal to the fees for
the month in which the event took place that led to Softy Comp’s liability.
11 COLLECTION AND PAYOUT
11.1 Softy Comp shall collect payment from customers as per the input data and pay over, by means of electronic funds transfer into the designated Client’s account, and according to agreed timelines.
11.2 Two methods of payments will take place depending on which method the client is running:
11.2.1 ON POC method running in Softy Comps Merchant Account:
11.2.1.1 When pay out to the Client occurs, all applicable agreed fees, tariffs, will have been deducted, and will reflect in the reporting as per REPORTING clause.
11.2.2 On Own Merchant account:
11.2.2.1 All applicable agreed fees, tariffs, will be invoiced, and will reflect in the reporting as per REPORTING clause. The client will have them to pay the relevant fees within three days after receiving the invoice
12 FEES AND PAYMENT
12.1 The Client agrees to pay, in full, to Softy Comp, all fees due and payable as set out in section 3 of Annexure A of this agreement. All fees shall be recovered by deducting from payments which are going to be made to the Client. If required, outstanding fees might also be collected by means of set off, or direct debit against the Client’s bank account. All fees exclude Value Added Tax, are payable on demand and shall be free of bank or other payment costs.
12.2 Fees are subject to annual increases; however, Softy Comp may increase its transaction fees from time to time in accordance with increases in its production costs which are beyond its control.
13 INTEREST
13.1 If any amounts due by the Client, is not paid on time, it shall bear interest at the prime rate plus 5% (five per centum), which will be calculated from the day the amounts become payable, until the day it has been paid in full to Softy Comp.
14 FORCE MAJEURE
If any instruction cannot be executed due to an act of God or to any reason beyond Softy Comp’s control, Softy Comp will assist the Client to rectify same, but shall not be liable for any damages due thereto.
15 ACKNOWLEDGEMENT OF DEBT
15.1 A certificate under the hand of any member or senior manager of Softy Comp or the auditors of Softy Comp shall constitute prima facie proof of any amounts due by the Client to Softy Comp, in terms hereof and the fact that the same is due and payable for all purposes, including (but not limited to) provisional sentence, summary judgment or default judgement proceedings or for any other purpose.
15.2 If, in order to recover any amount due by the Client, Softy Comp institutes any proceedings against the Client, Softy Comp shall be entitled to recover from the Client, all fees and expenses and disbursements charged by the attorneys instructed by Softy Comp to act for it on the scale applicable to charges which an attorney may charge against the attorney and its own client, including any collection commission, trading costs and interest at the prevailing rate then applicable.
16 CONFIDENTIALITY
16.1 In the course of the relationship established by this agreement, the parties may disclose to each other certain confidential information. The disclosing party shall however at all times remain the owner of that information.
16.2 The party to whom any such information is disclosed must: –
16.2.1 preserve the confidentiality of such information by using same with utmost care;
16.2.2 use the information only to meet its obligations under this agreement;
16.2.3 obtain the disclosing party’s written consent to disclose the information to a third party.
16.3 Neither of the parties will be in default for disclosing information if required by law.
17 JURISDICTION
17.1 For the purposes of all or any proceedings herein, the parties hereby consent to the jurisdiction of the Magistrate’s Court otherwise having jurisdiction under Section 28 of the Magistrate’s Court Act of 1944, as amended; notwithstanding that such proceedings are otherwise beyond the jurisdiction, this clause shall be deemed to constitute the required written consent conferring jurisdiction upon the said Court pursuant to Section 45 of the Magistrate’s Court Act of 1944, as amended.
17.2 Notwithstanding clause 17.1 above, Softy Comp shall have the right at his sole option and discretion to institute proceedings in any other competent Court which might otherwise have jurisdiction.
18 BREACH AND TERMINATION
18.1 If the Client is in breach of any of the terms or conditions of this agreement, without prejudice to any other rights or remedies which Softy Comp may have in terms hereof or at law, Softy Comp shall be entitled to cancel this agreement if the breach still exists after having given 7 (seven) days written notice to remedy the breach. In any period of breach Softy Comp shall have the right to discontinue the service for as long as the breach exists.
18.2 Softy Comp may terminate this agreement immediately if the Client (or any partner/member/shareholder) is provisionally or finally liquidated, sequestrated or placed under judicial management, or if in breach of any warranty.
18.3 If this agreement is terminated for any reason, the Client shall pay all amounts due to Softy Comp immediately and shall not be entitled to a refund of any fees. Softy Comp may keep all input data, amounts collected, as well as any processing thereof, until all debts have been paid to Softy Comp.
19 DISPUTE RESOLUTION
19.1 Should any dispute (other than a dispute in respect of which urgent relief may be obtained from a court of competent jurisdiction) arise between the parties, in the widest sense in connection with this agreement or which relates in any way to any matter affecting the interests of the parties in terms of this agreement, that dispute shall, unless resolved amongst the parties to the dispute, first be referred to mediation on an informal basis by a facilitator agreed upon between the parties and if remain unresolved be referred to, determined and finally settled by arbitration, in terms of the Arbitration Act, No 42 of 1965, modified as necessary to reflect the provisions herein.
19.2 The arbitration shall be presided over by 2 (two) arbitrators, 1 (one) of whom shall be selected by the Client and another by Softy Comp, (and in the event the 2 (two) thus chosen, cannot agree they shall appoint a 3rd (third) arbitrator), and shall report in writing their conclusions as to the matter in dispute between the parties.
19.3 The conclusion of the arbitrators, when reported in writing, shall be binding upon the parties to this agreement. It being the intention that the arbitration shall be held in Pretoria and completed within 10 (ten) days after it was demanded.
19.4 In the event that either party shall fail to appoint an arbitrator (“the defaulting party”) within 5 (five) days after receiving notice from the other party to do so, then the Chairperson for the time being of the Arbitration Foundation of South Africa (“AFSA”) shall choose, for the defaulting party, an arbiter, such as a lawyer, academician or judge in contractual law, whom together with the other arbitrator shall report in writing their conclusions aforesaid.
19.5 The prevailing party in any action related to this agreement shall have the right to recover its reasonable expenses including attorney’s fees or as otherwise determined by the arbitrators.
20 NOTICES AND DOMICILIA
The parties choose as their domicilia citandi et executandi their respective addresses provided for in the data input page of this agreement, for all purposes arising out of or in connection with this agreement at which addresses all processes and notices arising out of or in connection with this agreement, its breach or termination, may validly be served upon or delivered to the parties.
21 GENERAL
21.1 Each party acknowledges that it has read this agreement; they understand the agreement and agree to be bound by its terms, including all Annexures attached to it.
21.2 This agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all previous agreements by and between the parties with respect to the subject matter hereof.
21.3 This agreement shall not be deemed or construed to be modified, amended, rescinded, canceled or waived, in whole or in part, except by written amendment signed by the parties hereto.
21.4 No latitude, extension of time or other indulgence, which may be given or allowed by any party to the other party in respect of the performance of any obligation hereunder or the enforcement of any right arising from this agreement and no single or partial exercise of any right by any party, shall under any circumstances be construed to be an implied consent by such party or operate as a waiver or a novation of such exercise, nor shall it otherwise affect any of that party’s rights in terms of or arising from this agreement or stop such party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision, or term hereof.
21.5 No failure or delay by any party to take any action or assert or exercise any right or remedy hereunder, shall operate or be deemed to be a waiver of such right or remedy.
21.6 In the event that any of the terms of this agreement is in conflict with any rule of law or statutory provision. or are otherwise unenforceable under South African law, such term/s shall be deemed stricken from this agreement, but such invalidity or unenforceability shall not invalidate any of the other terms, and this agreement shall continue in force, unless the invalidity or unenforceability of any such provisions hereof does substantial violence to, or where the invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from, the remainder of this agreement. In such event, the parties shall endeavour to replace the offending provision by the insertion of a provision that will be enforceable, valid and legal.
21.7 Softy Comp may cede, transfer and assign any of its rights and/or obligations arising from this agreement to any third party. The Client may have the same right after having obtained Softy Comp’s written consent, but all obligations shall be transferred to any successor in title continuing herewith, without the Client being released from existing obligations or any claims existing/arising before such transfer.
CLIENT ACCOUNT INFORMATION
The account which will be utilised for payments being made by PURPLE OWL PAYMENTS on the Softy Comp platform, to the Client, or in case of dispute Deduction can occur at Softy-Comp’s discretion if any dispute occurs. This portion is bound by the rules and regulations set out in this agreement. Softy Comp must be notified in writing by undersigned signatory(s), should the account details change.
