1. General
These general terms of service (“General Terms”) apply to the provision of the NIKA service, operated by Efficacy Payments Proprietary Limited (“NIKA”, “we”, or “us” as the context may require), to a merchant (“Merchant”, “you” or “your” as the context may require) from time to time (the “Services“).
Before you apply as a Merchant, you must read, agree with, and accept all of the terms and conditions contained in these General Terms, read with your signed and accepted application form (“Application Form”), the individual service terms applicable to the additional Services you wish to register for (“Service Terms”), and our Privacy Policy. By signing up you consent to us performing certain checks on your Personal Information provided to us in order to meet our obligations under applicable law and our internal risk policies. These checks include identity verification with the South African Department of Home Affairs, credit checks and/or sanction screening for anti-money laundering purposes. You expressly consent to us performing a credit check for the purposes of providing relevant Services and offers to you.
These General Terms, the relevant Service Terms, and our Privacy Policy and any provisions set out in the relevant Application Form (whether in hardcopy or electronic format), constitutes a legal contract (collectively, the “Agreement”) between you and NIKA. Additional terms may be set out in the NIKA Support section on our website (“NIKA Support”).
The Agreement will become legally binding when we confirm in writing that your application has been accepted by us. By completing the application process, and submitting your completed Application Form, you are regarded as having read and agreed to all the terms of these General Terms, the relevant Service Terms, and our Privacy Policy, including the parts in bold which may have important consequences to you. If you do not agree to be bound by the terms and conditions of these General Terms, our Privacy Policy, or relevant Service Terms, you should not subscribe for our Services.
If you signed up for our services via one of our appointed independent sales partners, you consent to us sharing your information with that partner in order to provide the services and related support to you.
2. Definitions and Interpretations
2.1. In these General Terms:
Application Form means the online application form completed by a person or entity which wishes to receive Services on the terms of the Agreement;
Authorisation means the process of referring a Transaction for authorisation to the relevant Issuer at the time of the Transaction for approval for the Transaction to go ahead;
Authorisation Code means a code number advised by the Issuer to NIKA in respect of a particular Transaction during the course of Authorisation;
Banking Day means any day NIKA and the South African banks are open for business in South Africa;
Business means your business as a Merchant, as described in the Application Form or such other description as NIKA may agree from time to time;
Card means all valid and current payment cards approved by NIKA and notified to you in writing from time to time;
Cardholder means an individual, company, firm or other body to whom a credit or debit Card has been issued and who is authorised to use that Card;
Cardholder’s Account means an account in the name of the Cardholder, to which the Card is linked;
Cardholder’s Information means any information in relation to a Cardholder including any Card Number and personal data;
Card Issuer means the institution that issued the Card to the Cardholder;
Card Not Present (CNP) means an order for goods or services where the Card or the Cardholder is not physically present at your premises at the time of the Transaction;
Card Number means the number displayed on a Card identifying the Cardholder’s Account;
Chargeback means a demand made by a Card Issuer or a Scheme to be repaid a sum of money by NIKA in respect of a Transaction which has been previously settled by the relevant Scheme;
Contactless Card means a chip card with additional RFID (radio frequency identification) functionality, which can make a Contactless Payment;
Contactless Payment means a payment transaction made whereby the contactless card is touched against or placed within close proximity of a contactless enabled device;
Fees means the section of the Application Form listing the fees and charges payable by you to NIKA as issued and varied by us in our discretion from time to time in accordance with this Agreement;
Chip means an electronic device embedded in a Card which enables the Card to communicate the Cardholder details to a Terminal;
Contract Year means a period of 12 months commencing on the date of deemed acceptance of the Agreement (as per clause 3.1) and, thereafter, the period of 12 months commencing on each anniversary of that date;
CVV2/CVC2 means the three-digit security code printed on the reverse of Cards and intended to enhance the authentication of the Card;
Electronic Commerce means a non-face-to-face online Transaction using electronic media in which Card details are transmitted by a Cardholder to you via the internet, the extranet or any other public or private network;
Floor Limit means the amount above which online Authorisation is required in respect of a Transaction, as determined by the relevant Scheme or NIKA from time to time;
Issuer means an organisation that issues Cards and whose name appears on the Card as the Issuer or who enters into a contractual relationship with the Cardholder for the use of the Card;
MasterCard means MasterCard International Incorporated and any affiliate thereof with responsibility for operations in South Africa, and any of their successors and assigns;
Merchant Information means any information in relation to a Merchant including any personal data;
Merchant Portal means NIKA’s online site where a Merchant may login and manage their merchant account (including obtain statements);
Merchant Service Charge means a percentage charge of the transaction value that NIKA applies to you for the handling of Transactions;
Merchant Systems means any hardware or software used by you to access systems operated or maintained by us through which Transactions are submitted for processing, and all other associated systems;
NIKA App means the MyNIKA POS mobile application available for free download in the Google Playstore for enabled Android devices;
NIKA Support means the section on our website called “NIKA Support” where you can find FAQ and the detailed procedures and operating instructions you must follow in connection with accepting and processing Transactions and your other obligations under the Agreement;
Nominated Bank Account means the Rand bank account which you have advised NIKA is to be debited and credited with funds due by and to you;
PASA means the Payment Association of South Africa;
Payment Card Industry (PCI) Data Security Standards means the standards laid down by the Schemes to minimise the potential for Card and Cardholder data to be compromised and used fraudulently;
PIN means personal identification number. This is the secret number used by Cardholders with Chip Cards to authorise Transactions to be debited to their account;
PIN Pad means a secure device with an alphanumeric keyboard which complies with the requirements established from time to time by NIKA and through which the Cardholder can enter their PIN;
Point of Sale means the physical location at which you accept Transactions;
Refund where you agree to make, or made, a refund to the Cardholder’s Card of the whole or part of any sum authorised by a Cardholder, to be debited to their Cardholder’s Account;
Reversal means the reversing of an Authorisation of a transaction subject to a same day reversal instruction
SARB means the South African Reserve Bank;
Schemes mean Visa, MasterCard, and other payment schemes notified to you by NIKA from time to time;
Scheme Rules mean the rules and operating instructions issued by particular Schemes from time to time;
Service Charge means all charges that NIKA levies on you for the services provided to you by it (including the Merchant Service Charge);
Service Terms the terms and conditions that apply (in addition to these General Terms) in relation to any additional services that may be provided after the commencement date of this Agreement;
Services mean the Transaction Authorisation and Settlement, and related services to be provided by NIKA to you, including additional services that may be set out in additional Service Terms;
Settlement means the payment of amounts due to you by, or on behalf of, NIKA (or by you to NIKA) under the Agreement;
Settlement Partner means Efficacy Payment’s Settlement partner from time to time;
Statement/Tax Invoice means the regular advice from NIKA to you advising of the Transactions performed by you and the charges due by you, which statements are available in the Merchant Portal;
Terminal means an electronic device used to capture Card details, for obtaining Authorisations and submitting Transactions to NIKA for Settlement. The term also includes any PIN Pad (PED) if it is a separate device. The terminal may or may not be provided to you by NIKA.;
Termination means the termination of the Agreement by either of the parties in accordance with clause 25 of these General Terms;
Termination Events means each of the events set out in clauses 25.2, 25.3, and 25.4 (inclusive) of these General Terms;
Transaction means the purchase by a person of goods and/or services from you (including a credit or refund) by use of a Card or an alternative payment method;
Transaction Data means all data relating to Transactions (including Transaction Records and Refunds), and such data includes all customer personal data included therein;
Transaction Record means the particulars of a Transaction required from you by NIKA in order to process a Transaction in the form as prescribed by it;
Visa means Visa International and any affiliate thereof with responsibility for operations in South Africa, and any of their successors and assigns;
“you” or “your” or “Merchant” means the merchant who has entered into the Agreement.
2.2. Except as otherwise expressly worded herein, and as required (but not permitted) by Applicable Law, a person who is not a Party to this Agreement has no right to enforce or to enjoy the benefit of any term of this Agreement.
2.3. The terms of this Agreement have been negotiated by the Parties and drafted for the benefit of the Parties. Accordingly, any rule in terms of which an agreement will be interpreted against the Party responsible for the drafting and preparation of the agreement will not apply in the interpretation of this Agreement.
2.4. The Agreement constitutes the entire agreement between the Parties in respect of the Services and supersedes any such previous agreement, whether express or implied.
2.5. If there are any inconsistencies between these General Terms and NIKA Support, these General Terms will prevail.
3. Commencement and Duration
3.1. These General Terms will be binding upon both parties from the date on which we notify you that your application has been successful.
3.2. On this date, we will notify you in writing of the date on which the Services will be activated and create a Merchant Account on the Merchant Portal.
3.3. You may, without giving any reason, end the Agreement with immediate effect at any time during the first fourteen (14) days after acceptance of the Agreement, by written notice to NIKA, provided you have not yet accepted any Card Transaction by the time NIKA receives such notice.
3.4. Should you process any Transactions before our FICA and other processes have been completed (as indicated in the Application Form), we will hold all proceeds in our account and only make Settlement to you after all our processes are completed to our satisfaction.
3.5. Subject to clause 3.2, the Agreement will continue until terminated by either party in accordance with clause 25.
4. Services
4.1. NIKA will, to the maximum extent permitted by law, and the Scheme Rules, provide the Services to you.
4.2. NIKA will provide the Services, as applicable, with reasonable skill and care, in accordance with and for the duration of this Agreement. Services will be provided in accordance with Applicable Law.
4.3. To facilitate the Services, NIKA also makes the NIKA App available for free, subject to the provisions of clause 15.2.
4.4. NIKA may cancel, suspend or modify one, some or all of the Services without prior notice and with immediate effect if NIKA, in its reasonable opinion, considers it necessary or desirable to do so. NIKA will notify the Merchant as soon as possible of any such cancellation, suspension or modification.
4.5. In providing payment services, NIKA acts as a clearing system participant in accordance with the National Payment Systems Act of 1998 (the “NPS Act”). This means that NIKA is obliged to:
4.5.1. retain all records obtained during the course of providing payment services for such period required under the NPS Act and any other relevant legislation;
4.5.2. treat the information of each Merchant as confidential, including the information relating to any transactions of the Merchant, subject to any lawful request for the disclosure;
4.5.3. provide you with the information you require in respect of the transactions processed by us in performing the Services; and
4.5.4. supply information regarding a Merchant to the SARB or PASA, as may be lawfully requested by either of them (other than information relating to your payers, such as names and account numbers).
4.6. In order to ensure continued compliance with the requirements of SARB, PASA and Applicable Law, the Merchant understands and accepts that NIKA provides its Services subject to the written approvals, directives, notices or authorisations as may be issued by SARB and/or PASA directly to NIKA from time to time. The Merchant further accepts that NIKA may make any such changes to the Services or this Agreement as are strictly necessary to ensure compliance with Applicable Law and PASA and the continuous provision of the Services to the Merchant.
5. Honouring of Cards
5.1. You agree to:
5.1.1. operate and to comply with the Scheme Rules;
5.1.2. to process Transactions as required in, and in accordance with, the Agreement;
5.1.3. accept all valid and current Cards presented by Cardholders; and
5.1.4. provide your full range of goods and services at prices not greater than your normal cash prices.
5.2. You may not charge a Cardholder more than the stipulated or advertised price when paying by Card (i.e. you may not apply a surcharge to Card payments).
6. Authorisation
6.1. If a Cardholder wishes to purchase goods or services from you, the cost of which is equal to or more than the relevant Floor Limit for the Card concerned, you must obtain prior Authorisation for such Transaction before you can accept it from that Cardholder. The Floor Limit for all Transactions is to be zero, and NIKA may vary the Floor Limit at any time and by such means and on such notice as it deems fit. The issuer may still set its own Card limit in respect of that Card.
6.2. You must seek Authorisation at the time of, or prior to, accepting each Transaction by following the procedures set out in NIKA Support, or as NIKA may otherwise instruct you. In particular you must, at the time of the Transaction, apply for Authorisation by:
6.2.1. Tapping a Contactless Card on the device for a Contactless Transaction (including your mobile phone if you have the NIKA App);
6.2.2. Inserting a Card into the Terminal and allowing the customer to insert the PIN;
6.2.3. Following the security prompts for other payment instructions.
6.3. Authorisation does not guarantee payment for a Transaction.
6.4. If Authorisation is granted, you shall (where relevant) record on the Transaction Record the code number allocated to the Authorisation. If the Transaction so authorised is not forthwith concluded, you must immediately contact us to cancel/reverse the Authorisation, except if otherwise provided by NIKA Support.
6.5. If Authorisation is refused, the Transaction must not proceed and you must not seek Authorisation for any different amount (as a new Transaction).
6.6. Should a Cardholder deny having authorised or participated in a Transaction, NIKA may, at its discretion, withhold or return Transactions as unpaid. Authorisation is not a guarantee of payment, particularly where the Cardholder or the Card are not present.
6.7. Authorisation is only valid for that specific Transaction and amount.
7. Transactions and Refunds
7.1. All Transactions accepted by you must be in South African Rands unless NIKA has given prior consent in writing that payment in other currencies may be accepted.
7.2. If you have been authorised to undertake Transactions, you are automatically authorised to provide Refunds of such Transactions.
You may only Refund Transactions to the Card that was originally used to make such Transaction, and you must not, under any circumstances, accept money from a Cardholder in connection with processing a Refund to the Cardholder’s Account.
7.3. Subject to Annexure A, you must evidence the presence of the Card tendered for each Transaction, either by Chip read or Card swipe through an electronic Terminal. Where a Contactless Payment is made, you must follow the rules set out in Annexure A.
7.4. You must not:
7.4.1. undertake Transactions for anything other than the genuine purchase of goods or services that you supply;
7.4.2. impose any minimum or maximum Transaction values (other than where Efficacy Payment has applied a maximum value in accordance with clause 8);
7.4.3. discriminate against the use of Cards in any way;
7.4.4. split a Transaction into two or more Transactions;
7.4.5. accept Transactions relating to goods or services which fall outside the description of your Business without the prior written approval of NIKA;
7.4.6. accept a Transaction or present Transaction Data for processing which was not undertaken directly between you and the Cardholder;
7.4.7. process Transactions on behalf of a third party without the prior written consent of NIKA;
7.4.8. accept Transactions relating to goods or services for which the Point of Sale or mobile device with the NIKA App is outside South Africa, unless NIKA gives you prior written consent;
7.4.9. accept any Transaction using any Card issued in your name, or on the Nominated Bank Account or of a partner in, or director or other officer of your Business, or of the spouse or any member of the immediate family or household;
7.4.10. make excessive requests for authorisation or authorise multiple transactions for nominal amounts.
7.5. The appointment by you of a payment service provider, or other form of intermediary, to process Transactions on your behalf is subject to our prior written approval.
8. Transaction Limits & Delays
8.1. NIKA may, at its discretion, impose –
8.1.1. a limit on the total value of Transactions it processes for you over a given period of time; and
8.1.2. a transaction review for certain potentially high-risk transactions and impose limits on the amount of payments you can process through the Service without our prior written approval;
8.2. The Application Form indicates the annual value of Transactions that you anticipate you will require NIKA to process on your behalf. The limit may be amended from time to time, and, if you exceed an established limit, processing may be suspended/or funds held in a Reserve Account until a new limit is agreed.
9. Other Transactions
9.1. Card Not Present (CNP transactions), including mail/telephone transactions, Electronic Commerce transactions and recurring transactions should not be undertaken by you unless you have the prior approval in writing of NIKA and have signed the relevant Service Terms.
9.2. Should you be approved by NIKA to offer any such transactions, you will be required to sign the additional Service Terms for those transactions and abide by the Service Terms, these General Terms and the relevant provisions in NIKA Support
10. Presentation of Transactions
10.1. You may present Transactions to NIKA for Authorisation and Settlement by way of electronic transfer (or other media as may be agreed in writing). Transactions are to be presented to NIKA within three (3) Banking Days of a Card being accepted as a means of payment or Refund. NIKA (together with our Settlement Partner) will endeavour to settle Transactions within two (2) Banking Days of their receipt by it, unless NIKA Services has informed you otherwise. Authorisation does not guarantee payment for a Transaction – it merely verifies that there is available credit on the Card, and that the Card has not been reported lost or stolen at the time of the Authorisation.
10.2. The Transaction Data requirements are set by the Schemes and will be advised to you from time to time. Changes to such Transaction Data advised to you must be implemented by you within the required timescale as detailed with such notification(s).
10.3. You must not present, or allow anyone else to present, to NIKA more than one set of Transaction Data for each Transaction.
10.4. If Transactions are not presented directly by you to NIKA, any third party used to manage or send Transactions to NIKA on your behalf must be approved in writing by NIKA to handle Transactions before they may do so.
11. Payment by NIKA
11.1. Subject to this clause 11, NIKA will pay to you all sums due and recorded as Transaction Data (less the amount of any fees and other amounts payable by you under clause 14) submitted in accordance with the Agreement by crediting your Nominated Bank Account.
11.2. NIKA may, with or without notice, change processing or payment terms and suspend credits or other payments of any and all funds, money and amounts due or which subsequently become due to you pursuant to the Agreement if in good faith it suspects that any Transaction is fraudulent or involves other criminal activity, or that the Transaction was not in the ordinary course of your Business, or if the number or size of the Transaction(s) is significantly greater than expected, or if any of the Termination Events have occurred or if it suspects that any such Termination Event has, or is likely to occur (whether or not NIKA has terminated the Agreement). All payments so suspended may be retained by NIKA until it has satisfied itself that such Transaction(s) is/are legitimate and no longer liable to be the subject of a Chargeback. No interest shall accrue in respect of any such amount that is so withheld.
11.3. Neither NIKA nor our Settlement Partner will be liable for any delays in receipt of funds or errors in debit and credit entries caused by third parties, including, but not limited to, any Scheme or your transactional banking financial institution.
11.4. NIKA may set off all amounts due to it from any amounts held by it from time to time, in its sole discretion.
12. Invalid Card Transactions/Chargebacks
12.1. Card Issuers may refuse or decline to settle a Transaction or decide to undertake the Chargeback of a Transaction undertaken and processed by you and presented to them by NIKA.
12.2. If a Card Issuer exercises its rights not to settle or to undertake a Chargeback, NIKA will immediately, and without notice, be entitled, and you will allow NIKA, to debit your Nominated Bank Account, or to recover from you by any other means, the amount paid by NIKA to you in respect of that Transaction. NIKA’ right to do this will not be affected by any arrangement between you and the Cardholder.
12.3. NIKA is not under any obligation to notify you of any defect in any Transaction Data, or other liability to Chargeback except where a Chargeback is in fact made; or to procure, or assist you in procuring, payment from a Cardholder where the relevant Transaction has been charged back.
13. Credits and Debits to your Bank Account
13.1. You must at all times during the period that NIKA processes Transactions for you, maintain a Nominated Bank Account, acceptable to NIKA, in Rand, for the purpose of enabling it to credit payments due to you, and to debit any sums payable by you to it. If you require more than one such account, NIKA’ prior agreement in writing must be given.
13.2. You will maintain with your bank an instruction to pay on presentation all requests for payment of a debit initiated by NIKA in respect of amounts due by you to it, even after the Agreement has ended for any reason.
13.3. If you intend to change your Nominated Bank Account you must notify NIKA first and then provide NIKA with all such documentation as NIKA may reasonably request. In addition, you shall initiate a new payment instruction in relation to your new Nominated Bank Account on the terms contained in the Agreement.
13.4. Debits will not be presented by NIKA to your Nominated Bank Account until at least fourteen (14) days after your Statement date. This may result in the Nominated Bank Account being debited prior to your receipt of the Statement in accordance with Scheme Rules on Debits.
14. Fees and Charges
14.1. You agree to pay all fees and charges at NIKA’ current rates, together with all relevant taxes and its reasonable costs (including management time) of managing the Nominated Bank Account. The Merchant Service Charge is payable by you for Transactions and Refunds.
14.2. Charges and other sums payable by you will be deducted by us prior to settlement and You authorise us to deduct all fees and charges that may be due from the proceeds held by us prior to settlement. Should the amount not be sufficient or should a charge arise after settlement, we may debit from your Nominated Bank Account or otherwise claim immediate payment from you.
14.3. NIKA may also require you to make one or more of the following payments:
14.3.1. the amount of any Refunds issued (if not already deducted from sums paid by you to it);
14.3.2. the full amount of any overpayments made by it in respect of Transactions, however caused;
14.3.3. the full amount of any payments made by it in respect of invalid Transaction Data;
14.3.4. the full amount of any Chargebacks;
14.3.5. the amount of any fees, fines, penalties and other charges payable by it to a Scheme, or any other person, as a result of any failure by you to comply with the Agreement, or if the ratio of your Chargebacks to Transactions exceeds the relevant industry average (as determined by the Schemes from time to time); and
14.3.6. any other sums due and payable by you under the Agreement.
14.4. Please note that the fees and charges are subject to variation by NIKA Services from time to time on at least thirty (30) days’ notice pursuant to clause 27.8 of these Terms and Conditions, and any such variation(s) will be notified to you in accordance with the Agreement, specifying the date upon which the change will take effect.
14.5. Unless otherwise stated, all Service Charges, fees and other payments to be made by you under the Agreement are exclusive of VAT and any other relevant taxes (if any) and in addition to paying such sums you will be responsible for paying any such VAT and other relevant taxes.
14.6. By logging into the merchant portal, you will be able to view your monthly Statements. Such Statement shall constitute a proper demand for payment of the amount shown by it as being due by you to NIKA, which will be prima facie proof, unless inaccurate on the face of the Statement. You must check each such Statement or written request on receipt and notify NIKA within thirty (30) days of the Statement date of any errors in it.
15. Terminals and the NIKA App
15.1. Terminals
15.1.1. Terminals may either be procured from NIKA or our authorised third party provider. Such terminals will be subject to separate agreements being entered into setting out the terms and conditions of the sale and use of such Terminals.
15.1.2. NIKA shall not be liable to you for any direct or other loss resulting from any breakdown of, or fault in, any Terminals or other equipment, other than as may be set out in that agreement.
15.2. NIKA App
15.2.1. For the duration of your Agreement with us, you are permitted to use the NIKA App. We hereby grant you a personal, non-exclusive, non-transferable, fully paid up licence (with no right to sub-licence, transfer or assign) to install the NIKA App onto your mobile device, subject to the conditions of this Agreement. If this Agreement expires or is terminated for any reason, this licence will automatically terminate.
15.2.2. The NIKA App is available for free download in the Google Playstore and is only available for NFC enabled Android devices.
15.2.3. You are required to use the NIKA App in accordance with this Agreement and any other instructions (including in-app notifications) that may be issued by us. You should ensure that your mobile device is secured at all times and password protected.
15.2.4. You undertake to always use the latest version of the NIKA App. The app store may notify you of any upgrades/updates that are available to you. The upgrades and updates provided are, amongst other things, to ensure that the NIKA App is as secure as possible and as a result we strongly encourage you to install such upgrades and updates as soon as possible after they are made available by the App Store. Subject to the remainder of this Agreement, we shall not be liable for any security / data bugs that you may experience if You fail to install the latest version of the NIKA App.
15.2.5. You may not reverse-engineer our App or any of our Services (that is, reproduce them after a detailed examination of their construction or composition).
15.2.6. If You sell any mobile device on which the NIKA App is installed, You must remove the App from it before passing on the device or Mobile Phone. If your device is stolen you must notify us immediately.
15.2.7. You are required to keep your mobile device connected to the internet in order to use the functionality.
15.2.8. Your use of the App and the Services may also be controlled by the rules and policies of the app store from which you download the NIKA App. Such rules and policies will apply instead of these terms where there are differences between the two. We will not be held liable for any loss that occurs or arises as a failure to comply with the rules and policies of the app store from which you download the NIKA App.
15.2.9. You acknowledge and agree that in order to use the NIKA App you may be required to provide your geo-location information. You acknowledge and agree that: (a) your geo-location information will be monitored and tracked by the NIKA App when you are requesting and using the Services. In addition, we may monitor, track and share your geo-location information obtained for safety, security, technical, marketing and commercial purposes, including to provide and improve our products and services.
15.2.10. We do not warrant that the NIKA App will be error free, free from interruption or available 24/7.
16. Promotion
You are required to comply with all instructions given by NIKA as to the adequate and correct display of promotional signs or other material provided by it to indicate that Cards issued under the Schemes are accepted as a means of payment. You shall not use any other material associated with the Schemes without NIKA’ prior written approval.
17. Security
17.1. Before completing any Transaction, you are required to comply with all security procedures that NIKA requires you to comply with from time to time, and to attempt, by reasonable, discreet and peaceful means, to retain a Card if so requested by it. You agree to retain all Transaction details and Data in the strictest confidence, and in a secure environment where it can only be accessed by authorised members of your staff, and to ensure that any such details stored electronically are fully protected. You will take all precautions to ensure that Cardholder Information is not misused or disclosed to any person, other than NIKA.
17.2. You may not retain or store magnetic stripe or CVV2/CVC2 data after Authorisation for a Transaction has been received.
17.3. You agree to comply with the Payment Card Industry (PCI) Data Security Standards, Visa Account Information Security Programme and the MasterCard Site Data Protection Programme, and any changes to those programmes and standards which may occur. NIKA will provide you with details of such data standards and programmes on written request.
17.4. You will be liable for and hereby indemnify NIKA against all claims, damages, demands, losses, costs and expenses, fines, penalties or liability, including Scheme fines for non-compliance, resulting from any loss of Cardholder’s Information or Data, or a violation by you, or your employees, officers, agents or subcontractors of any of the standards or programme requirements referenced herein. You will also confirm to NIKA in writing that all third parties that store, transmit or process Transactions on your behalf are fully compliant with the standards and programmes referenced in this clause17.
17.5. Since the documents constituting the Agreement contain certain information designed to help you reduce the risk of fraud arising on Transactions, you must treat such documentation as confidential and keep it secure and if possible not disclose it to the general public.
17.6. You are required to protect your passwords to the Merchant Portal in a secure manner and ensure that no unauthorised access to the Merchant Portal occurs.
18. Providing Information
18.1. You agree to provide NIKA with up-to-date documentation and information to satisfy the requirements relating to Know your Client (“KYC”), which includes but is not limited to the Financial Intelligence Centre Act and legislation against terrorism, local and international sanctions and related provisions relating to NIKA policies and procedures. The failure to provide the documentation and/or information could result in the suspension of services provided.
18.2. Upon request you will provide NIKA or its agents with such certified copies of financial accounts (including management accounts), trading terms, supplier invoices, customer contracts, product information and such other documentation or information concerning your Business as NIKA requests to assist it with its determination as to whether to enter into an agreement with you, or with its continuing evaluation of your financial and credit status.
18.3. Upon request, you shall provide NIKA or its representatives, reasonable access to your facilities for the purpose of performing an inspection of your books, records and/or systems, and to take copies of such books and records as NIKA require.
18.4. You must retain in a secure place copies of all Transaction Records, receipts, invoices or equivalent documents (whether printed or digital) relating to each Transaction. All the above-mentioned documents must be kept by you in a safe, secure and confidential manner for at least two (2) years from the date of the relevant Transaction.
18.5. After twelve (12) months from the date of a Transaction you may, subject to the prior written approval of NIKA, transfer all the printed information referenced in clause 18.3 to digital copies. The microfiche or processed images must then be securely stored and kept confidential by you for the remainder of the two (2) years.
18.6. NIKA owns all right in and to the Transaction Data. You are not authorised to give, sub-license, sell, or in any way transfer, dispose of or grant any kind of right in any Transaction Data, or part thereof, to any third party.
18.7. NIKA shall be entitled, at any time, and from time to time, up to two (2) years after the Transaction date, to request from you, and you must provide us, within the timeframe stated, and at no charge, with evidence acceptable to NIKA of any Transaction(s) including (without limit) the documents listed above, and any other evidence of the Cardholder’s authority to debit their account with the amount of the Transaction. Failure to do so within the specified timescales may result in a Chargeback.
18.8. You are responsible for ensuring that all Transaction Data which you retain or submit to NIKA is correct, complete, and not lost or damaged, and that all Transaction Data is confidentially and securely held in accordance with this Clause 18 and clause 21 (Data Protection) and the Operating Guide and can be reconstituted, in a complete and easily readable form. Neither NIKA Services nor our Settlement Partner will in any circumstances (other than if due to our gross negligence) be liable in respect of the face-value of any Transaction Data, or the costs of reconstituting such data, or for any other loss or damage arising from any loss of Transaction Data. If any loss or damage to the physical medium containing any Transaction Data occurs and is agreed, or shown to be due to our gross negligence, NIKA will reimburse you the replacement value of the lost or damaged medium.
18.9. You authorise NIKA and its agents to obtain such documents or information, as referred to in clause 18.2, from third parties, subject to banking regulations and applicable laws.
18.10. You authorise NIKA and its agents, to contact the individuals at your Business as identified in your Application Form or as you may notify NIKA from time to time.
18.11. You must advise NIKA immediately of any change in the circumstances affecting your Business including:
18.11.1. any insolvency event (or impending insolvency event);
18.11.2. any actual or impending change of voting control in you or your holding company;
18.11.3. any actual or impending change in your trading terms, directors, other officers, members or partners, business or trading name, legal status, business or trading address or in any of your other details that you have provided to us; and
18.11.4. any actual or impending sale or other disposal of all or any material part of your assets, which may result in a material adverse change to your Business.
18.12. You agree to notify NIKA forthwith in the event that you have any existing arrangement with any other party operating in any of the Schemes referred to in the Agreement.
19. Indemnity and Liability
19.1. You hereby indemnify NIKA against all claims, damages, demands, losses, costs and expenses, fines, penalties or liability, including Scheme fines for non-compliance, howsoever arising, suffered, made against or incurred by us and arising from or in connection with your breach of the Agreement, or from any Transaction or any other dealing between you and a Cardholder. If you are a partnership, you hereby also agree that each partner will be jointly and severally liable under the Agreement.
19.2. You hereby indemnify NIKA against all claims, damages, demands, losses, costs and expenses, fines, penalties, including Scheme fines for non-compliance, or liability howsoever arising, suffered, made against or incurred by us and arising from or in connection with any breach of Scheme Rules, or any other reason where a Scheme levies a fee, fine, penalty or charge against us due to any action or inaction by you. You shall, at your own expense, provide NIKA with all reasonable assistance to resolve any dispute arising under the Scheme Rules. We shall have complete discretion to decide whether or not to resist or defend any claim made against NIKA by any Scheme or Cardholder, or whether to compromise any such claim, and the decision of NIKA shall be binding on you.
19.3. You agree that if NIKA is threatened with the loss or sequestration of any goods or property as a result of any act or Transactions carried out by or for you, you will immediately cease the relevant business and indemnify us against all claims, damages, demands, losses, costs and expenses, fines, penalties or liability, including Scheme fines for non-compliance, arising as a result of your having carried on that business. Furthermore in respect of all Transactions between you and a Cardholder the onus shall be on you to provide evidence to the satisfaction of NIKA that the debit of the Cardholder’s Account was authorised by the Cardholder.
19.4. Without prejudice to the foregoing, or to the indemnities set out in clauses 19.1 – 19.3 (inclusive), you also agree that NIKA shall have discretion to accept, dispute, compromise or otherwise deal with any claim made against you or us arising out of a Transaction accepted by you for loss or liability in respect thereof on your behalf.
19.5. You will, at your own expense, provide NIKA, or our agents, with all information and assistance which we, or our agents, may reasonably require in relation to any Transaction between you and any Cardholder. Such information shall be provided promptly but no later than 48 (forty-eight) hours after a request is made.
19.6. Subject to clause 19.7, the maximum aggregate liability of NIKA for all claims or losses, whether arising in contract or delict (including negligence and breach of statutory duty) or otherwise, shall not in any Contract Year exceed the amount of fees received by NIKA from you in consideration for the provision of Services to you hereunder in the relevant Contract Year in which the claim arises.
19.7. NIKA shall not have any liability to you whether in contract or delict (including negligence or breach of statutory duty) or otherwise and whatever the cause for any increased costs or expenses; loss of profit, loss of business, loss of goodwill, loss of data, or loss of revenue or anticipated savings; or special, indirect or consequential loss or damage of any nature whatsoever.
19.8. If the Merchant qualifies as a consumer in terms of the Consumer Protection Act 68 of 2008, the limitation of liability in clause 19.6 above will not apply to any loss directly or indirectly caused through the gross negligence of NIKA (and its employees, shareholders, directors, agents, affiliates and representatives).
20. Collection and processing of information (POPIA)
20.1. When applying for and using the Services, you will be required to provide certain data and other information (including in certain instances, special personal information) to us to enable us to provide the Services to you (“Your Information”).
20.2. By disclosing or submitting Your Information to us you consent to us Processing Your Information for the purposes described in these General Terms and agree to be bound by the terms of our Privacy Policy. You are responsible for ensuring that your customers when providing us with any information, have provided prior consent to us Processing their information (where applicable).
20.3. By using the Services, the Merchant hereby consent that NIKA may Process (collect, use, update, make available, destroy, store, or otherwise deal with and conduct the necessary checks) Your Information (including processing such information outside the borders of South Africa) for the purposes of providing services and products to the Merchant, in accordance with any of the terms and conditions for products and services provided by NIKA and the requirements of law. The Merchant also confirm that the information provided by the Merchant, from time to time, to NIKA is up to date, correct and complete, including information about the Merchant’s residency and citizenship for tax purposes and that the Merchant will immediately inform NIKA if this information changes.
20.4. Information includes amongst others, information regarding marital status, national origin, age, language, birth, education, financial history, identifying number, e-mail address, physical address, telephone number, online identifier, social medial profile, biometric information (like fingerprints, the Merchant’s signature or voice) and the Merchant’s name.
20.5. You are responsible for the accuracy of Your Information and that Your Information is correct. We are not responsible for checking the accuracy of any aspect of any of Your Information, files or records you provide to us and we will not be liable (legally responsible) for any payment related errors made resulting from errors or incorrect information in your files or records.
20.6. You are solely responsible for securing all data in your possession or under your control.
20.7. The Merchant confirms that NIKA may process any information and documentation relating to the Merchant’s Business or that of the Merchant’s employees, directors and members in relation to the services provided by NIKA.
20.8. The Merchant agrees that NIKA can access any information about the Merchant that is recorded with any credit bureau, or held by any other division of NIKA, or obtain Fraud reports and checks at any time during the course of the Merchant’s relationship with NIKA. The credit bureau provides credit profiles on persons as well as a credit score on the credit-worthiness of persons.
20.9. NIKA shall give the Merchant at least 20 (twenty) Banking Days’ notice of its intention to submit adverse information (relating to the non-compliance with the agreements the Merchant entered into with NIKA) concerning the Merchant to the relevant registered credit bureau/s;
20.10. Subject to clause 20.3, NIKA may Process Your Information in order to: assess your application and risk profile, provide the services in terms of the Agreement, process payment instructions and make settlement (which may include sharing Your Information with third parties), enforce our obligations under the Agreement, provide support and make disclosure to regulators, enforcement agencies or other bodies under applicable law.
20.11. In addition, NIKA may use and disclose Your Information (which shall be aggregated and anonymised) for the following purposes: (a) providing, improving and developing the Services; (b) market research and trend analysis; (c) taking steps to prevent, detect or prosecute fraud and other offences and/or to comply with Applicable Law; and (d) other purposes authorized by the Merchant in this Agreement or otherwise in writing.
20.12. You have the right to withdraw your consent provided in this clause 20 by way of written notice to us. Should you withdraw your consent, we may not be able to continue to provide services to you. You also have the right to file a complaint with us about an alleged contravention of the protection of the Your Information by emailing us at Info@efficacypayments.com
21. Data Protection
21.1. In addition to the Merchant’s obligations under clause 17, by receiving and processing Transaction Data pertaining to or from a Cardholder, the Merchant shall:
21.1.1. treat such Transaction Data as confidential and not use it other than as strictly necessary in terms of the Agreement;
21.1.2. disclose such Transaction Data only to parties involved in the Transaction, only as is necessary to give effect to the Transaction;
21.1.3. keep all systems and media containing Transaction Data, whether physical or electronic, in a secure manner, to prevent access by or disclosure to anyone other than the Merchant’s authorised employees or NIKA (or its approved service providers or agents);
21.1.4. destroy all such Transaction Data on its systems and servers that is no longer necessary or appropriate to store in a manner that will render the Data unreadable;
21.1.5. immediately inform NIKA of any data compromise, breach or likely incident; and
21.1.6. at all times be liable for any losses resulting from any misuse of Transaction Data by the Merchant and the Merchant’s employees; including any failure to keep data secure.
21.2. The data protection obligations under this Agreement shall survive the termination of this Agreement for any reason whatsoever.
22. Intellectual property
22.1. All intellectual property rights relating to the Services are owned by and vest exclusively in NIKA and its affiliates and licensors. The information given by the Merchant to its Customers concerning the Services does not create any intellectual property or other right on the part of the Merchant or the Merchant over the Services or their functionalities, or, without limitation, over the trademarks, trade names, goodwill, domain names, websites, computer software, data, logos, images, copyrighted materials, patents, inventions, know how, or any other information, owned by NIKA, its affiliates, and/or their suppliers or subcontractors.
22.2. You will promptly notify NIKA of any infringement or threatened infringement, or of any challenges to validity or ownership of any Intellectual Property Rights or other rights belonging to the NIKA, which you become aware of and you will provide reasonable assistance to NIKA, at our reasonable expense, in connection therewith.
22.3. NIKA may include at its discretion your company name, description and hyperlink on the NIKA website and other marketing material.
22.4. You may display any graphic and hyperlink provided to you by NIKA on your website(s) (without altering the form or presentation of such graphic, and in no way that implies or represents that you operate or own any element of the Services and NIKA’ related brand(s)).
23. Confidentiality
23.1. During the term of this Agreement and for 5 (five) years from the date that this Agreement is terminated, the Receiving Party may not use Confidential Information for a purpose other than the performance of its obligations under this Agreement. In particular, the Receiving Party may not disclose Confidential Information to a person except with the prior written consent of the Disclosing Party or in accordance with the provisions of this clause 23.
23.2. During the term of this Agreement the Receiving Party may disclose Confidential Information to any of its directors, other officers, employees, agents, affiliates, delegates, sub-contractors and customers on a strict need-to-know basis to the extent that disclosure is necessary or desirable for the purposes of this Agreement. The Receiving Party shall ensure that any such recipient is made aware of and complies with the Receiving Party’s obligations of confidentiality under this Agreement as if such recipient was a Party to this Agreement.
23.3. Clauses 23.1 and 23.2 do not apply to Confidential Information:
23.3.1. which is at the date of this Agreement, or at any time after that date becomes, publicly known other than by the Receiving Party’s or other recipient’s breach of this Agreement;
23.3.2. which can be shown by the Receiving Party to the Disclosing Party’s satisfaction to have been known by the Receiving Party before disclosure by the Disclosing Party to the Receiving Party; or
23.3.3. to the extent required by Applicable Law provided that in these circumstances the Receiving Party shall advise the Disclosing Party of same prior to such disclosure, in order for the Disclosing Party to take whatever steps it deems necessary to protect its interest in this regard.
23.4. If the Receiving Party receives a notice from a governmental authority or faces legal action to disclose Confidential Information received under this Agreement, then the Receiving Party shall promptly, if not prohibited by law/notice/governmental authority, notify the Disclosing Party of the same such that the Disclosing Party may have the opportunity to intercede, obtain protective order and contest such disclosure and, upon request, shall cooperate with the Disclosing Party in contesting such a disclosure. Further, the Parties agree that in event the Receiving Party is required to disclose the Confidential Information pursuant to the legal action, notice, order, it shall not disclose any Confidential Information in excess of the legal requirement and to any other person.
23.5. You shall not, except for the purposes of the Agreement, compile or make use of any information relating to NIKA, any Scheme, any Card, any Cardholders or the terms of the Agreement or any documents provided with it, except where necessary for the performance of the Agreement. You shall use your best endeavours to ensure that your employees and agents will maintain strictest confidence with respect thereto and not divulge or communicate to any third party information concerning our business or Transactions of Cardholders which may come to your notice during the term of the Agreement. NIKA will use its reasonable endeavours to ensure that its employees and agents maintain such information in strictest confidence.
23.6. You agree to indemnify and keep NIKA and our Settlement Partner and our and their agents indemnified, on a full and continuing basis, against all claims, damages, demands, losses, costs and expenses, fines, penalties or liability, including Scheme fines for non-compliance howsoever arising, suffered, made against or incurred by us or our agents and arising directly or indirectly in connection with the breach of the duty of confidentiality set out in clause 23.
23.7. You acknowledge and consent to NIKA disclosing relevant and applicable information about your business to our NIKA group company, the police, Schemes, issuers, regulators or any other investigating body in connection with the services, training, use in the prevention or detection of fraud or other criminal activity, or to any credit reference agency which is used as a source of information.
24. Warranties
In presenting Transaction Data to NIKA, you warrant that:
24.1. all statements contained in the Transaction Data are true, accurate and complete;
24.2. you have supplied (or, where the Transaction Data relates to a prepayment or deposit, you have agreed to supply) the goods or services to which the Transaction Data relates and to the value stated therein;
24.3. there is no element of credit given;
24.4. no other Transaction has been or will be processed in respect of the same goods or services;
24.5. the Transaction has been entered into by you in good faith and you are not aware of any dispute relating to or any matter which may affect the validity of the Transaction;
24.6. the Transaction was made in accordance with the Agreement and the Scheme Rules;
24.7. the receipt by you, and the processing of Cardholder’s Information and Transaction Data supplied by you to NIKA in the course of administering and discharging our obligations and liabilities under the Agreement, will not infringe the rights of any third party; and
In addition, you warrant that:
24.8. you are in compliance with your obligations under all applicable laws, including but not limited to data privacy and protection laws;
24.9. you have never breached Scheme Rules and/or had a merchant agreement terminated.
25. Termination of the Agreement
25.1. Either party may terminate the Agreement at any time by giving not less than thirty (30) days prior written notice to the other parties (subject to the other terms contained in the Agreement).
25.2. Any party to the Agreement will be entitled to end the Agreement at any time effect by notice to the other parties if: another party breaches the Agreement including (without limit) any of the other parties become insolvent, or any step is taken for the liquidation, bankruptcy, receivership, administration, dissolution, business rescue or other similar action of another party, or if another party makes any agreement with its creditors generally.
25.3. NIKA will be entitled to end the Agreement at any time with immediate effect by notice to you if you fail to pay any amount due to us under the Agreement, on the due payment date.
25.4. In addition NIKA will also be entitled to suspend the Services and/or end the Agreement with immediate effect at any time by notice to you if:
25.4.1. you change your Nominated Bank Account, other than as permitted by this Agreement;
25.4.2. you are an individual and you die (in which case notice will be sent to your personal representatives);
25.4.3. you are a juristic person and you (or any third party) takes any steps to wind you up, dissolve your partnership. put you into administration, business rescue or enter any insolvency proceedings;
25.4.4. are a juristic person and you (or any third party) enter into any transaction where there is a direct or indirect change of control of your entity;
25.4.5. there is any significant change, or we suspect a significant change is impending (as determined by us), in the nature, level, scope or control of your business activities or your financial condition;
25.4.6. there is fraud or suspicion of fraud or other criminal activity;
25.4.7. you process a Transaction for your own Card, or any Card, without the sale of any goods or services;
25.4.8. in our opinion your ability or willingness to comply with the terms of the Agreement is at risk;
25.4.9. any of our efforts to comply with statutory obligations under applicable laws, the Scheme Rules or a court order binding upon us, are obstructed;
25.4.10. we are required to do so by any regulator or Scheme, or the integrity or reputation of the Schemes or ourselves, in our opinion, is brought into disrepute by you;
25.4.11. your activities are, or are likely to have, in our opinion, a material impact on our business, commercial arrangements, reputation and/ or goodwill;
25.4.12. your activities contravene any South African or other national or international laws and regulations, or any codes of practice that we may adopt from time to time, or which otherwise relate directly or indirectly to matters that we may view, from time to time, as being unlawful or otherwise objectionable in kind and nature;
25.4.13. you have not sent NIKA a Transaction for six (6) consecutive months;
25.4.14. we consider excessive the percentage, number or amount of fraudulent Transactions submitted by you under the Agreement, or the number of Chargebacks in relation to your Business. Furthermore, you accept liability for and you will indemnify us on a full and continuing basis, against all claims, damages, demands, losses, costs and expenses, fines, penalties or liability, including Scheme fines for non-compliance, in relation to excessive levels of Chargebacks; or
25.4.15. where you are required to do so by law, fail to file your annual return in compliance with the law, or within the timeframes prescribed by the law, or the South African Companies and Intellectual Property Commission. NIKA shall be entitled, at our discretion, to terminate the Agreement if we believe, in our sole discretion, that you are violating any of the foregoing.
25.5. The ending of the Agreement will not affect any actual or contingent liabilities or claims of any party hereto which accrue before the Agreement ends, and in particular this clause 25 and clauses 18, 19, 20, 21, 22, 23, 24 and 26 shall remain in full force and effect. You will continue to bear total responsibility for all Chargebacks, fees, credits and adjustments resulting from Transactions processed pursuant to the Agreement, all other amounts then due or which may thereafter become due under the Agreement, and breaches of Scheme Rules which are notified to NIKA at any time after the Agreement has ended.
25.6. If the Agreement ends you must promptly pay NIKA all amounts owed by you under the Agreement. You should also return all materials, including promotion items, you may have in your possession to us or our agent.
25.7. In addition, after the date of termination of the Agreement you may not use the names of NIKA or their agents’ names, the Schemes, or any of NIKA’ trademarks or logos or any promotional materials it or its agents have provided to you or which refer to NIKA or the provision of Services by NIKA to you as a merchant.
25.8. If NIKA terminates the Agreement under clause 25.2, 25.3 or 25.4, NIKA may notify the Schemes of the termination and the reasons for it. Details of your Nominated Bank Account may be notified to the Schemes and to credit reference agencies.
26. Miscellaneous
26.1. Notices: The Parties choose the physical addresses set out on the Application Form as their respective addresses for the purposes of giving any notice (including legal notices) arising from this Agreement. A party may change its address for notices by providing the other party of prior written notification of such change. Notice given by email shall be deemed to have been received twenty four (24) hours after the time of transmission. Notice shall be served by you on NIKA at its current registered office, which shall be deemed also to constitute the service by you of notice on NIKA.
26.2. Whole Agreement: This Agreement (consisting of this Agreement and Annexures) constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes any and all prior agreements and understandings with respect to such subject matter. If any termination, extension or amendment of this Agreement must be in writing and signed by a duly authorized representative of the Parties.
26.3. No Waiver: Any indulgence which either Party may show to the other in terms of or pursuant to the provisions contained in this Agreement shall not constitute a waiver of any of the rights of the Party which granted such indulgence. Except where expressly agreed otherwise in the Agreement, the rights and remedies of the parties under the Agreement are cumulative, may be exercised as often as the parties consider appropriate and are in addition to their rights and remedies under general law.
26.4. Set off: NIKA may at any time (without notice to you) set off and apply any or all sums due and payable by it to you under the Agreement, or under some other agreement with you, and/or any or all sums of money held in accounts with NIKA, against: The Agreement and any dispute or claim arising out of or in connection with any or all sums due and payable by you to NIKA under the Agreement;
26.5. Assignment: You are not permitted to assign the Agreement or transfer your rights or obligations under it without the prior written consent of NIKA. NIKA may assign or novate this Agreement, and transfer or sub-license any or all of its rights and obligations under it, at any time and you hereby expressly consent to any such assignment, novation, transfer or sub-license.
26.6. Severability: If any provision of the Agreement is or becomes illegal or invalid, that provision will be deemed deleted from the Agreement and the remaining provisions shall continue in force.
26.7. Counterparts: This Agreement may be executed in counterparts that together shall constitute one and the same instrument.
26.8. Amendments, Variations or Additions: You agree that NIKA may from time to time, vary or supplement the Agreement, its terms (including, for example, any, or all of the individual documents which form part of the Agreement, such as the Application Form and any or all of the fees and charges themselves) and any accompanying documentation. Any such variation shall become effective upon NIKA notifying you in the manner provided in these General Terms, and subject to such notice periods as it may operate from time to time. If you do not wish to accept the changes made to the Agreement, you may terminate the Agreement immediately by giving NIKA notice in writing within thirty (30) days of such change coming into effect.
26.9. Subcontractors. NIKA may appoint at any time, and without notice to you, an agent or subcontractor to perform any of our obligations under the Agreement. You may not appoint a subcontractor or agent in connection with the Agreement without the prior written approval of NIKA. Notwithstanding such approval, you will remain primarily liable for anything done (or omitted to be done) by any such subcontractor or agent appointed by you.
26.10. Force majeure. Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for 30 (thirty) days, the Party not affected may terminate this Agreement by giving 7 (seven) days’ written notice to the affected Party.
26.11. Governing Law and Jurisdiction: This Agreement shall be construed and governed in accordance with the laws of South Africa and the Parties consent and submit to the non-exclusive jurisdiction of the Western Cape High Court of South Africa in any dispute arising from or in connection with this Agreement.
26.12. FICA: NIKA are bound by law to apply procedures in order to carry out statutory obligations in relation to the prevention of money laundering under the Financial Intelligence Centre Act, 2001 (or any modifications or amendments of same) in South Africa.
26.13. Joint and Several Liability: If you comprise more than one person, the liability of such persons to NIKA and the Schemes shall be joint and several, and if such persons are a partnership then any act or omission of any one partner shall be deemed to be an act or omission of all the partners.
Annexure A – Chip and PIN and Contactless
The following Terms and Conditions apply in addition to the General Terms set out in above. In event of any inconsistency, this Annexure shall prevail.
1. You agree and acknowledge that you are required properly to use Chip and PIN technology for each Transaction and you shall incur full liability for fraudulent Transactions that arise from your failure to do so including, without limitation:
a. Transactions where you accept a Chip and PIN Card;
b. Transactions using any Terminal that incorporates Chip and PIN technology without using the Chip and PIN functionality to accept the Transaction; or
c. Failing to use a PIN Pad;
d. Transactions using Contactless Cards where the agreed process has not been followed.
Chip and PIN
2. In the event that you fail to accept Chip and PIN Card Transactions using a Chip and PIN Terminal and after notification by NIKA continue to fail to accept such Transactions, your right to process Transactions may be terminated immediately.
3. You may not request a Cardholder to disclose their PIN at any point during a Transaction. You must provide a reasonably secure place for the Cardholder to enter their PIN into the PIN Pad. You shall require that every Cardholder enters their PIN using the PIN Pad when initiating a Chip and PIN Transaction.
4. The PIN Pad is for the Cardholder’s exclusive use.
5. The Cardholder’s PIN is not in any circumstances to be printed on a Transaction receipt or to be recorded or stored in any way.
6. In the event of Chip failure during a Transaction, you will be required to accept another tender type for that transaction.
Contactless Transactions
7. Contactless Cards may be accepted on a Contactless Terminal or mobile phone with the NIKA APP for Transactions equal to or less than the threshold amount / floor limit defined by NIKA and as set out in NIKA Support.
8. NIKA reserves the right to change the threshold amount / floor limit at any time.
9. For Transactions over the threshold amount / floor limit, a Customer will be requested to key in their PIN into the Terminal or NIKA App in order to process a Transaction.
10. Transactions over the maximum threshold amount will be regarded as a contact Transaction and the Customer must either insert the Card into the Terminal and key in his or her PIN or follow the instructions on the Terminal or NIKA App.
These point-of-sale terminal terms of sale (these “Terms”) apply to your (“you” or “your” as the context may require) purchase of a NIKA point of sale (POS) card machine (the “Terminal”). NIKA is operated by Efficacy Payments Proprietary Limited (“NIKA”, “we”, or “us” as the context may require). These terms have been developed in terms of the Consumer Protection Act, 2008 and the Electronic Communications and Transactions Act, 2002.
Before you complete your purchase of Terminal you must read, agree with, and accept these Terms. A failure to comply may invalidate the Terminal’s warranty. Please take note of clauses in bold which may have consequences for you.
1. Purchase
You can purchase a Terminal on our website either during or after submitting an application to us for our merchant payment acquiring services.
The Terminal’s specifications and price (together with VAT) will be displayed to you on the website (this is subject to change from time to time).
You can pay for the Terminal using a payment card. Once payment has been received, NIKA (or our appointed agent) will arrange for the delivery of the Terminal to your appointed address.
2. Rejection Upon Delivery
Goods not fit for intended purpose
You may inspect the Terminal upon delivery, and reject the delivery of the Terminal if it is deemed to be not fit for the purpose for which it was purchased. In the case that delivery is rejected, you will be refunded the purchase price in full.
The cost of returning the goods will be for NIKA’s account.
Damage in transit
NIKA, or our appointed agent, will always ensure that the greatest care is taken during transit and delivery of the Terminal. If, however, you feel that the Terminal has been damaged in transit, please contact NIKA immediately informing us of the possible damage. Photos of the unit as it arrives will assist us in improving the service of our delivery partners.
If it is ascertained that the Terminal was indeed damaged in transit, NIKA will arrange for the delivery of a replacement Terminal within 5 working days, or as soon as reasonably possible. The damaged Terminal will be collected at the time of the second delivery.
If delivery is accepted, the Terminal will be deemed to be in working order, factory faults excluded.
3. Refunds
If you are not satisfied with your purchase, you may return it for a full refund within 7 days from the date of delivery as part of NIKA’s 7-day money back guarantee, as long as the following conditions are met:
a. The Terminal and all peripherals (cables, manuals, marketing material, SIM cards), with original packaging intact, are returned to NIKA (or its appointed agent) no later than 30 days after the delivery was made to you.
b. The Terminal and peripherals should be in good condition, without signs of damage or misuse.
Please contact our support team as follows to arrange the collection of your Terminal:
The Terminal, once collected will be inspected by NIKA (or its appointed agents), to determine whether it meets the requirements above.
4. Warranty
NIKA will replace or repair any Terminal deemed to be defective by NIKA within 12 months of the date of purchase, at no cost to you, as long as the following conditions are met:
a. We have verified your identity as the original purchaser of the Terminal.
b. The defect is not a result of improper handling and misuse, including damage caused by negligence.
c. The defective Terminal is handed over to NIKA (or its appointed agent) at the time of the replacement Terminal being delivered.
d. The Terminal does not present a system tampered error.
e. You have installed any required system updates.
In the event that a defect occurs after 12 months of the date of purchase, you will be quoted to repair the defect (where possible) or purchase a new Terminal.
There may be a delay between the time in which your Terminal became faulty and the time it is replaced. You should make alternative payment arrangements during this time as we will not be liable to you during that period for an inability to receive payments or any loss as a result thereof.
5. Ownership and Risk
All risk relating to the Terminal including, but not limited to, loss, damage, theft, destruction and unauthorised use of the Terminal, arising from any cause whatsoever (including acts of God), will pass to you and will remain yours on delivery of the Terminal.
If the Terminal becomes non-compliant with industry standards, you will be obliged to purchase a new terminal, which is compliant with industry standards, from NIKA or a NIKA-approved supplier. You may also be able to download the NIKA app, which is available in the Google Playstore. Please visit the NIKA Support section of our website to find out more.
Our entire liability to you under these Terms shall be limited to the purchase price of your Terminal.
6. Damages
If your Terminal is damaged due to negligent/improper handling, it will only be replaced once you have paid the advertised retail price for a new Terminal.
NIKA will not be responsible for covering the cost of a Terminal that has been damaged by you or your customers.
Please always refer to the section “Caring for your card machine” in the NIKA Support section of our website in order to ensure that Terminal is handled correctly and does not get damaged.
7. Insurance
We recommend that you insure your purchase of your Terminal. You will be liable in your own capacity for any insurance policy on your Terminal.
8. Usage of the Terminal
You must always keep the Terminal charged, in working order and stored in a safe place. You should also ensure the Terminal displays the correct date and time.
You must also ensure that the Terminal is used with due skill and care, and only in the manner and for the purpose for which it is designed and intended, in line with your business and NIKA’s merchant acquiring service terms. You should only use the Terminal in accordance with applicable law, and the payment scheme rules. You may not sell or lease your Terminal to any third party.
9. Terminal connectivity
The Terminal allows for connectivity via WIFI and dual SIM card capability. Each Terminal purchased from us will be connected via NIKA issued SIM cards for the duration of your merchant acquiring agreement with us. Theses SIM cards are provided for no additional monthly fee and is intended to be used in the Terminal only. These SIM card should not be removed or tampered with in any way. If you terminate your merchant acquiring agreement with us, we will deactivate the NIKA issued SIM cards from date of termination.
We will not be liable for any telecommunications (including WIFI or data networks being down or of insufficient quality) or infrastructure failures that may result in failed transactions. We provide no warranty that connection via the SIM cards will be uninterrupted or error free.
10. General
These Terms shall be construed and governed in accordance with the laws of South Africa and the Parties consent and submit to the non-exclusive jurisdiction of the Western Cape High Court of South Africa in any dispute arising from or in connection with these Terms.
These Terms apply to you in addition to the NIKA merchant acquiring service terms.
[Acceptance of terms to be done digitally at time of sale]
Efficacy Payments Proprietary Limited (Registration No. 2016/008667/07), its affiliates, and our licensors, are the providers of various payment, collection and verification services, including services provided under the name NIKA Pay (“EP”, “NIKA” “we”, “us” or “our”).
We are committed to ensuring the protection of the privacy of all visitors (“Visitors”) to our websites at https://efficacypayments.com and www.nikapay.co.za and the MyNIKA app (the “Website/s”), the merchant services portal (“Merchant Portal”), as well as all persons (“Users”) who use any of the services we offer (“Services”).
If you have questions or complaints regarding our privacy policy or practices, please contact us or email us at info@efficacypayments.com.
This privacy policy (this “Policy”) describes the ways in which we collect, store, use and protect the personal information of our Visitors and Users. Throughout this Policy, we use the term “personal information” to describe information that can be associated with a specific person and can be used to identify that person. We do not consider personal information to include information that has been made anonymous so that it does not identify a specific person (also known as de-identified information).
Each User and Visitor needs to accept all the provisions in this Policy when using our Website/s, our Portal and if signing up for any of our Services. If you do not agree with anything in this Policy, then you may not use our Website, use our Merchant Portal, register and/or use any of the Services.
You may not access the Websites, Merchant Portal or use the Services if you are younger than 18 years old or do not have legal capacity to conclude legally binding contracts. We do not have any intention of collecting or processing any personal information from individuals under 18 years of age.
By accepting this Policy, you are deemed to have read and agreed with all the provisions thereof.
1. CHANGES TO PRIVACY POLICY
We may amend this Policy at any time by posting a revised version on our Website and Portal. The revised version will apply to Visitors with effect from the time we post it. with prior notice of any such revision by providing you advance notice of the change, provided that if a User is not happy with the revisions made, he/she/it shall be entitled to terminate the Services subscribed for.
2. GENERAL INFORMATION ABOUT EVERYONE
2.1 Types of Information we collect
As a Visitor or User, you agree that we may electronically collect, store and use the following of your information for the purposes set out in clause 2.3 below:
2.1.1. internet usage information, including your Internet Protocol address (“IP Address”), browsing habits, click patterns, unique user ID, version of software installed, system type, screen resolutions, colour capabilities, plug-ins, language settings, cookie preferences, search engine keywords, JavaScript enablement, the content and pages that you access on the Website or Portal, and the dates and times that you visit the Website, or Portal, paths taken, and time spent on sites and pages within the Website, or Portal (“Usage Details”); and
2.1.2. additional information you may provide on a voluntary basis, such as demographic information or information related to your favourite social networking site (e.g. the site name, address and description), or information relating to your participation in competitions, promotions, surveys, and/or additional services (“Optional Details”).
2.2. How we collect such information
2.2.1 Voluntarily provided by you: Optional Details may be submitted by you to us if you decide to upload or download certain content (or products) from the Website or Portal, take advantage of promotions, respond to surveys, register and subscribe for certain additional services, or otherwise use the optional features and functionality of the Website, or Portal.
2.2.2. Automatically gathered via various technologies:
2.2.2.1. “Cookies” Information: When you access the Website or Portal, we may send one or more cookies (small text files containing a string of alphanumeric characters) to your device to collect certain Usage Details. EP may use both session cookies (which disappears after you close your browser) and persistent cookies (which remain after you close your browser which can be removed manually) and may be used by your browser on subsequent visits to the Website or Portal. Please note that the use of cookies is standard on the internet and many major websites use them. Please review your web browser “Help” file to learn more about modifying your cookie settings.
2.2.2.2. Other tracking technology: When you access the Website or Portal or open one of our HTML emails or message links, certain Usage Details may be automatically collected and recorded by us from your system by using different types of tracking technology.
2.2.2.3. Web Beacons: Our Website may contain electronic image requests (called a “single-pixel gif” or “web beacon” request) that allow us to count page views and to access cookies. Any electronic image viewed as part of a web page (including an ad banner) can act as a web beacon. Web beacons are typically 1-by-1 pixel files (so small that you would likely not realize that they are there), but their presence can usually be seen within a browser by clicking on “View” and then on “Source.” We may also include web beacons in HTML-formatted newsletters that we send to opt-in subscribers in order to count how many newsletters have been read. EP web beacons do not collect, gather, monitor or share any personally identifiable information about our Users, they are just the technique we use to compile anonymous information about the Website and Service usage.
2.3. The purpose for which we collect this information
2.3.1. We may use any Optional Details provided by you for such purposes as indicated to you at the time you agree to provide such Optional Details. We do not verify the accuracy of the information you provide to us, and it remains your responsibility to ensure correctness of the information supplied.
2.3.2. We may use your Usage Details to:
2.3.2.1. automatically provide you with the latest version of the EP solution;
2.3.2.2. remember your information so that you will not have to re-enter it during your visit or the next time you access the Website or Portal;
2.3.2.3. monitor aggregate Website usage metrics such as total number of visitors and pages accessed; and
2.3.2.4. track your entries, submissions, and status in any promotions or other activities in connection with your usage of the Website or Portal.
NOTE: Some of our business partners (e.g. advertisers or platform providers) use their own cookies and/or widgets on our Website, and EP has no access to or control over such cookies or widgets. (Widgets are interactive mini-programs that run on our Website to provide specific services from another company (e.g. displaying the news, opinions, music, etc) and these widgets may collect certain of your personal information (e.g. your email address). Cookies may also be set by the widget to enable it to function properly.) Information collected by any such cookie or widget is governed by the privacy policy of the company that created it, and not by EP. This Policy covers the use of cookies by EP only and does not cover the use of cookies or widgets by any third party advertisers or partners on the Website.
3. INFORMATION ABOUT USERS
3.1. Types of information we collect about Users
If you are a User, you agree that we may also electronically collect, store and use the following of your information:
3.1.1. name and surname, identity number, bank account information, business information, trading projections, payment records and statements, payment card information, transaction data, and director and authorized employee information provided to us (“Personal Details”);
3.1.2. mobile number, residential and trading address, and email address (“Contact Details”).
3.2. How we collect information about Users
Your Personal Details, and Contact Details are provided by you directly to us during your registration as a User and/or thereafter by your actively updating or supplementing such details in your User Account.
3.3. The purpose for which we collect this information
EP uses the information that Users provide (or that we collect) to operate, maintain, enhance, and provide all of the features of the Services.
More specifically:
3.3.1. We use your Personal Details to conduct Credit and Security Checks as well as Politically Exposed Person (PEP) and Anti Money Laundering (AML) checks .
3.3.2. We use your Personal Details to identify you when you access your User Account and to manage and administer your use of the Services, including the enforcement of the Agreement and/or any of our rights thereunder.
3.3.3. We use your Contact Details to verify your identity and to inform you of facts relating to your use of the Services (e.g. notifications regarding major updates, fees, turnover, chargebacks) as well as to inform you, subject to obtaining your prior consent about new Products and Services from us and/or our partners and/or affiliates. We may also use your Contact Details to enforce our rights and the Agreement as may be legally required.
3.3.4. If you have signed up for our Services via an independent sales partner or agent, we may need to share your personal information (including your relevant transaction data) with them in order to facilitate the provision of the Services and related support.
4. HOW WE PROTECT & STORE PERSONAL INFORMATION
4.1. We store and process the personal information of our Users and Visitors on cloud-based servers (AWS) that are protected by firewalls and data encryption. The EP Merchant Portal stores no data on the mobile device or computer and communicates with the cloud servers through Secure Socket Layers (SSL’s). We authorize access to personal information only for those employees who require it to fulfil their job responsibilities.
4.2. You should not divulge your account password to anyone. EP will never ask you for your password or PIN in an unsolicited telephone call or e-mail. YOU ARE RESPONSIBLE FOR MAINTAINING THE SECRECY OF YOUR UNIQUE PASSWORD, ACCOUNT INFORMATION AND LINKED BANK ACCOUNT INFORMATION AT ALL TIMES.
4.3. If you are a legal entity and not an individual, we will liaise only with your named contact or alternative contact provided by your named contact in your application form. It is your responsibility to let us know of any changes to your named contact.
4.4. EP safeguards the integrity and confidentiality of personal information against loss or damage, unlawful access, and unauthorised destruction, by applying appropriate, generally accepted and industry specific information security practices and procedures.
4.5. EP binds third parties processing personal information on its behalf, by written contract, to establish and maintain appropriate security safeguards and comply with the principals described in this policy.
4.6. EP has an incident management process that ensures timely notification of data protection authorities and, when needed, the data subjects of a compromise to their personal information, as required by law.
5. HOW WE SHARE PERSONAL INFORMATION WITH OTHERS
5.1. We may share your personal information with:
5.1.1. Other divisions or companies within the group of companies to which we belong, so as to propose additional services or Products. Members of our corporate family will only use this information to send you marketing communications if you have requested their services;
5.1.2. Service providers and agents under contract who help with parts of our business operations (fraud prevention, marketing, technology services and independent sales organisations). Our contracts dictate that these service providers and/or agents only use your information in connection with the services they perform for us and not for their own benefit;
5.1.3. Service providers and/or financial institutions that we partner with to jointly create and offer products and services. These organisations may only use this information to market EP-related products, unless you have given consent for other uses;
5.1.4. Law enforcement, government officials, fraud detection agencies or other third parties when –
5.1.4.1. we are compelled to do so by a subpoena, court order or similar legal procedure;
5.1.4.2. we need to do so to comply with any law; and/or
5.1.4.3. we believe in good faith that the disclosure of personal information is necessary to prevent physical harm or financial loss, to report suspected illegal activity, or to investigate violations of our User Agreement;
5.1.5. Other third parties, with your consent or direction to do so.
5.2. EP will not sell or rent any of your personal information to third parties for their marketing purposes and only shares your personal information with third parties as described in this Policy.
6. HOW TO ACCESS, CHANGE OR DELETE YOUR PERSONAL INFORMATION
6.1. If you are a User of our Services, you can review any of your personal information at any time by signing into your Merchant Portal.
6.2. You also have the right to request access to the personal information we hold about you, provided you provide us with proof of identity in a form acceptable to us. We will do this within a reasonable time; at a prescribed fee; in a reasonable manner and format; and in a form that is generally understandable. Read our PAIA Manual
6.3. Deleting your information:
6.3.1. You can deactivate your account at any time in accordance with the provisions of your contract with us.
6.3.2. Please note: Certain information, including transaction data, may be retained for legal purposes and will only be held for so long as required by applicable law.
7. NON-PERSONAL INFORMATION
Notwithstanding anything contained in this Policy regarding your information, the following information is not regarded as personal information for purposes of this Policy:
7.1. Permanently de-identified information that does not relate and/or cannot be traced back to you specifically. We may compile, use, share and otherwise process such information as we deem fit.
7.2. Non-personal statistical information collected and compiled by us. We own and retain all rights in such information.
7.3. Information which you have provided voluntarily in an open, public environment or forum including (without limitation) any blog, chat room, albums, community, classifieds or discussion board. Because the information has been disclosed in a public forum, it is no longer confidential and does not constitute personal information subject to protection under this Policy. Since such public environments are accessible by third parties, it is possible that third parties may collect and collate and use such information for their own purposes and you should accordingly be careful when deciding to share any of your personal information in such public environments.
8. YOUR CONSENT TO THE PROCESSING OF YOUR PERSONAL INFORMATION
By accepting this Policy, you consent to our collection, storage, processing and disclosure of your personal information as described in this Policy, for so long as you are a registered User of our Services. Should you terminate your registration with us and close your Account, you acknowledge that we are required to retain the information we have already collected from you for record-keeping and other lawful purposes in accordance with applicable law.
9. HOW YOU CAN CONTACT US ABOUT PRIVACY RELATED QUESTIONS
If you have questions or concerns regarding this Policy, or you are aware that a minor under the age of 18 has provided us with personal information, you should contact us by us by using the contact link in any of the EP or NIKA pages or phoning us on 021 404 6860 or mailing us at, 56 Muscat Road, Saxenburg Park 1, Rustdal, Cape Town, South Africa, or via email at info@efficacypayments.com
