Axaipay Service Agreement

This Agreement is made on between:

  1. Axai Digital Sdn Bhd (Company No. 1336686-V) a company incorporated in Malaysia with its business address at 7-2, Jalan Equine 1C, Taman Equine, 43300 Seri Kembangan, Selangor, Malaysia (hereafter referred to as the “Axaipay”; and

  2. The Party named and described on Section A of the Axaipay Application Form (hereinafter referred to as the “Merchant”) of the other part.

 

Whereas, Axaipay is the Payment Facilitator (PF), Third-Party Acquirer (TPA) or Payment Aggregator (PA) providing and enabling payment services for Merchant.

 

Whereas, Merchant sell their products and/or services on their website using Axaipay Online Payments to accept payments from their customers.

 

NOW, THEREFORE, in consideration of the terms and conditions herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is agreed as follows:

 

1.            Definitions and Interpretation

 

1.1          The following terms when used in this Agreement or any document referred to herein shall have the following meaning:

 

“Acquiring Bank”

Means the financial institution to which Axaipay will route Transaction data for authorization, clearing and settlement purposes;

 

“Agreement”

 

means this Agreement between Axaipay and the Merchant as amended from time to time including the cover pages and any Schedules;

 

“Business Day”

means any day other than a Saturday or a Sunday or a public or bank holiday in Selangor state of Malaysia.

 

“Card”

Means a current credit, debit or charge card that Axaipay may accept for processing, as notified to Merchant from time to time;

 

“Card Issuer”

Means a financial institution that issues the Card to the Customer;

 

“Chargeback”

Means an invalid or disputed Transaction which the Acquiring Bank identifies as being invalid or non-collectible after initial acceptance on account of fraud, lost/cancelled/unissued/invalid account identification, unresolved customer complaints or other causes which may be charged ultimately to Merchant.

 

“Confidential Information”

means any information which is marked as “Confidential” or “Proprietary” or should be reasonably expected to be confidential having regard to the context of disclosure or the nature of the information; without prejudice to the generality of the foregoing, the terms of this Agreement as well as business plans, data, strategies, methods, customer and client lists, technical specifications, transaction data and customer data shall be deemed confidential;

 

“Customer”

Means any person making a purchase or desiring to make a purchase of the Merchant’s goods, products or services through Merchant’s website;

 

“Manual”

means any of the technical manuals applicable to the Axaipay Online Payments, including but not limited to the Axaipay Integration Manual, each as amended from time to time and published on the Axaipay Website, or, in case of a merchant integration through a third-party service provider, any third-party integration instructions or manuals;

 

“Merchant Account”

 

means the Merchant’s registered account (or several such accounts) held with Axaipay in accordance with the Term as specified in Section 3 of this Agreement;

“Merchant Website”

 

means the website operated by the Merchant (as may be updated from time to time);

“Product”

Means products or services that are sold or distributed online by Merchant via Merchant’s website;

 

“Refund”

Means a Transaction that is reversed with the intention of crediting the Customer’s account;

 

“Settlement”

Means the amount due to Merchant;

 

“Settlement Period”

Means the period between the date of the Transaction and the date on which Settlement in respect of that Transactions is due to Merchant;

 

“Axaipay Online Payments”

means payment service provided by Axaipay to Merchant under this Agreement, including but not limited to providing various secured payment channels to Merchant and helping them to receive payments from Customer;

 

“Axaipay Website”

means the website operated by Axaipay (as may be updated from time to time) for the provision of its services, currently accessible at www.Axaipay.com, excluding any external websites to which the website redirects by way of hyperlink or otherwise;

 

“Regulatory Requirements”

means any law, statute, regulation, order, judgement, decision, recommendation, rule, policy or guideline passed or issued by parliament, government or any competent court or authority or any payment system (including but not limited to bank payment systems, card payment systems such as Visa, MasterCard, American Express etc., or any other payment, clearing or settlement system or similar arrangement that is being used for providing the services hereunder);

 

“Transaction”

Means any payment (or refund) made by the use of a Card for credit (or debit) to the Customer’s account;

 

1.2          Headings are for convenience only and shall not affect the construction or interpretation of this Agreement.

 

1.3          Unless the contrary intention appears, words in the singular include the plural and vice versa; words importing the masculine gender include the feminine and neuter and vice versa; references to persons include bodies corporate, unincorporated associations, partnerships or an authority.

 

1.4          Any phrase introduced by the term "included", "including", "in particular" or any similar expression will be construed as illustrative only and will not limit the sense of the words preceding that term.

2.            Scope

2.1          This Agreement contains the terms for the provision of services as currently described in clause 4 and such other services as agreed between the parties from time to time.

3.            Term

3.1          The Agreement commences on the date of signature of the Axaipay Application Form.

 

3.2          This Agreement will continue in full force and effect unless and until either party terminates by giving the other party at least one month’s written notice of its intention to terminate this Agreement.

 

3.3          This Agreement is subject to early termination in accordance with Clause 17.

4.            Description of Services

4.1          Axaipay is a Payment Facilitator (“PF”), Third-party Acquirer (“TPA”) or Payment Aggregator (“PA”) which provides and facilitates the execution of payments from a customer to the Merchant. Axaipay shall not in any manner whatsoever be construed, at law or otherwise, to owe a fiduciary duty to the Merchant in respect of the payments made by the Customers through Axaipay Online Payments.

 

4.2          Axaipay processes all Transactions through the use of its secure SSL encryption network and any other processes made available through its contracted processing platform. Payment shall be initiated via secure payment processes.

 

4.3          Axaipay will give its best efforts to ensure best practices in the operation of Axaipay Online Payments. The Merchant agrees and confirms that it shall not hold Axaipay, its employees, agents or licensees, liable for any special, incidental or consequences damages arising out of the downtime or breakdown of Axaipay Online Payments and shall hold Axaipay harmless from such damages.

 

4.4          Acceptance of Transactions shall not in any way be binding on Axaipay as to the validity of any Transaction or Transaction receipts. Axaipay shall not honour any Transactions which in the opinion of the Axaipay is not genuine or which violates any law. Axaipay also gives Merchant no assurances that it shall not exercise any Chargeback or other rights of reduction or set-off under this Agreement even where such Transaction has been authorised and, in such event, Axaipay shall not be held liable to the Merchant whatsoever.

5.            Merchant’s Obligation

5.1          Merchant agrees that it shall not perform any act that violates federal, state/provincial, or the local laws of Malaysia including but not limited to Anti Money Laundering and Anti-Terrorism Financing Act 2001, as well as laws of any countries in which Merchant does business.

 

5.2          The Merchant shall display prominently, the brand name and logo of Axaipay and all other marketing or publicity materials that may be provided by Axaipay, on or about the premises or website of the Merchant at the Merchant’s own cost. Merchant is also responsible to notify its Customers that the Customer’s credit card statement will display “Axaipay” or any other similar name as advised by Axaipay from time to time, for the charges instead of Merchant’s trading name.

 

5.3          Merchant shall retain copies of all Transaction receipts, with respect to Transactions for a period of twenty-four (24) months from the date of transaction and shall provide such copies to Axaipay within five (5) Business Day of such request to do so being received by Merchant from Axaipay.

 

5.4          Merchant shall perform payment verification with Customer in the event Axaipay suspects the genuineness of a transaction.

 

5.5          Merchant further agrees that it will not provide, offer, or advertise a “lifetime warranty,” “lifetime guarantee,” or any other guarantee for a period of more than ninety (90) days. (This limitation specified is in conformity with VISA and MasterCard regulations)

 

5.6          Merchant warrants that all information provided to Axaipay in connection with Merchant’s application for the Products and Services is correct and that no information has been withheld which, if provided, could have materially affected Axaipay’ decision to enter into this Agreement.

 

5.7          Merchant shall describe accurately on Merchant’s Website, including a full description of Merchant’s trading name, address, telephone number and URL, what goods and services are being offered for sale, the price, the action which must be taken to make a purchase, the point at which a sale is completed, and details of delivery, shipping, help section, returns and refund policies and any other information which Axaipay may require to be included from time to time.

 

5.8          Advise Axaipay as soon as Merchant becomes aware of any major or multiple product defects or logistics problems which could give rise to Chargeback or Refunds.

 

5.9          The Merchant shall immediately notify Axaipay in accordance with this clause if:

  • There is any change in the nature of the product or services offered on Merchant’s Website;

  • Change of the business telephone number or address;

 

5.10       The Merchant shall resolve directly with the Customer, any claims or complaints made by the Customer in respect of any purchase of goods, products or services made by the way of Axaipay Transaction including conducting their own investigation into any such claims or complaints and the Merchant shall have no right of recourse against Axaipay in the event the Customer disputes the underlying contract of sale for such Axaipay Transaction for any reasons whatsoever including without limitation the quality, overcharging or late delivery, of that good, product or service.

 

5.11       The goods and services that are made available to customers comply with applicable law in any jurisdiction in or to which the Merchant is making its goods and services available and that the Merchant has at all times all requisite licences and permits in place to engage in the advertising and provision of its goods and services. The Merchant agrees that it shall not use Axaipay Online Payments to perform any transaction that involves products or services that are prohibited by Axaipay including but not limited to:

  • Firearms / weapons;

  • Ammunition;

  • Drugs, drug paraphernalia and drug test circumvention aids;

  • Fireworks and hazardous materials;

  • Miracle Cures;

  • Currency and FOREX;

  • Pornography and adult content;

  • Escort services;

  • Sexually oriented materials or services;

  • Gambling / Online casino;

  • Counterfeit and replica goods;

  • Items or downloads which infringe or violate copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction;

  • Tobacco;

  • Pyramid or Ponzi schemes, matrix program and other "get rich quick" schemes;

  • Telemarketing;

  • Time sharing;

  • Investment scheme;

  • File sharing services;

  • Items promote hatred, racism, religious persecution or contain offensive content;

  • Items encouraging illegal activity;

  • Human remains and body parts;

  • Unlicensed Multi-level marketing;

  • Stolen goods including digital and virtual goods;

  • Items that are considered obscene;

  • Associated with purchases of annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card;

  • Associated with the sale of traveller’s checks or money orders;

  • Check cashing businesses;

  • Provide certain credit repair or debt settlement services, credit transactions or insurance activities; and

  • Involve the sales of products or services identified by government agencies to have a high likelihood of being fraudulent.

 

6.            Security Deposit

 

6.1          The Merchant agrees to pay security deposit in the amounts set out in the signed Schedule 1 to Axaipay. Axaipay shall have the right, in its sole discretion, to adjust the amount held as is deemed necessary as security against future Chargeback after notification to the Merchant. In the event of any potential future payment disputes, Refunds or Chargeback in respect of Merchant charges, Axaipay may also hold proceeds of Settlement in reserve in an amount adequate to offset such disputed, refunded or Chargeback amounts plus any costs associated with the collection thereof, including without limitation, attorney's fees and expenses. Axaipay reserves the right to claim the payment from Merchant if the reserve amount is inadequate to offset such disputed, refunded or Chargeback amount.

 

7.            Payment and Fees

 

7.1          Merchant agrees to pay the fees, charges and expenses described in the signed Schedule 1, together with any other liabilities or expenses described in this Agreement or which Axaipay may notify the Merchant from time to time.  Unless otherwise indicated, fees are quoted in Malaysian Ringgit (MYR).

 

7.2          Axaipay will pay Merchant for Transactions submitted under this Agreement by crediting to the account(s) designated by Merchant which are as described in Section D of the Axaipay Application Form (the “Merchant’s Account(s)”) or by delivery of a cheque or other negotiable instruments made payable to Merchant or by any other means acceptable to Axaipay.

 

7.3          Unless otherwise agreed by Axaipay in writing, Merchant will be paid according to the Settlement Period as set out in the signed Schedule 1 for the gross amount of the Transactions submitted less the amount of any discount, fees and other charges set forth in this Agreement, including:

  • The Service Charges due;

  • Refunds;

  • Chargeback fee;

  • Chargeback, and any fines passed on to Axaipay by Acquiring Bank in respect of Merchant’s Transactions;

  • Disputed Transactions and any amounts reasonably required to cover potential or expected Refunds, Chargeback or Disputed Transactions;

  • Sales and Service Tax (SST) charges or any other relevant taxes;

  • Withholding Tax;

  • Foreign Telegraphic Transfer Fee for oversea bank account settlement and foreign payment channels;

  • Foreign exchange rate fluctuation (FOREX conversion for international payment channels); and

  • Any other charges or amounts due to Axaipay under this Agreement.

 

7.4          Axaipay does not warrant payment within this timeframe if the Merchant’s Account(s) is maintained with a financial institution other than a participating bank of Interbank GIRO (“IBG”). If the amount payable to Merchant hereunder is insufficient to pay the outstanding charges described in the preceding sentence on any day and/or any other amount due or payable by Merchant to Axaipay under this Agreement, Axaipay shall be entitled to:

  • set off and deduct the outstanding amount in whole or in part from any payment due from it to Merchant; and/or

  • debit the outstanding amount in whole or in part from Merchant's Account(s) (or any other account of Merchant held with Axaipay); and/or

  • deduct the outstanding amount in whole or in part from subsequent credits to Merchant's Account(s); and/or

  • claim from Merchant the outstanding amount in whole or in part. 

7.5          All Settlement payments by Axaipay to Merchant shall be in the settlement currency as stated in the signed Schedule 1. All foreign currencies will be converted to settlement currency if such a conversion is required. Axaipay shall use the respective Acquiring Bank’s prevailing bank exchange rates as the conversion rates.

 

7.6          Axaipay may hold back from Settlement any amounts reasonably required to cover potential or expected Refunds, Chargeback or Disputed Transactions.

 

7.7          Axaipay reserves the rights to suspend the Merchant account and Settlement to the Merchant in the event that the Maintenance Fee, Chargeback and other due charges are not settled by the Merchant after one week from the date the debt is due. Axaipay reserves the right to charge interest at the rate of 4.0% per annum for all dues. The Merchant account shall be reactivated upon settlement of all dues within one business day.

 

8.            Merchant’s Covenants, Warranties and Undertakings

 

8.1          The Merchant hereby irrevocably and unconditionally covenants, warrants and undertakes:

  • To observes the guidelines, procedure of Axaipay Transactions as set out in this Agreement or such other updates as provided by Axaipay from time to time during the subsistence of this Agreement;

  • Upon request by Axaipay, to furnish originals of bills or other supporting documents in relation to or in connection with the Axaipay Transactions;

  • Upon request by Axaipay, to allow Axaipay’ representative for site visit and photo taking on the business premise;

  • To notify Axaipay immediately in writing of any change in the organization or corporate or business structure of the Merchant or in any of the information furnished to the Acquiring Merchant pursuant to this Agreements;

  • At all times, to promote and recommend customers of the Merchant to purchase goods, products or services using the Axaipay Online Payments;

  • Not to provide or disclose any information in relation to or in connection with the Axaipay Transactions to any unauthorised third party;

  • Not to gain or attempt to gain, directly or indirectly unauthorised access to Axaipay System for the purpose of obtaining the customers information of other merchants of Axaipay.

  • Not to use the Axaipay Online Payments to conduct any fraudulent, immoral or illegal activities or activities that may infringe the intellectual property rights of third parties;

  • Not to use any intellectual property belonging to Axaipay, including, without limitation, trademarks, trade names or patents, whether registered or not, without the prior written consent of Axaipay other than such usage permitted under this Agreement;

  • That the Merchant has obtained all requisite licenses, authorisations, permits and approvals for the carrying on of the Merchant’s business;

  • That the Merchant is duly authorised and empowered to enter into this Agreement; and

  • That the Merchant shall not at any time represent to any third party as an agent of Axaipay.

 

8.2          If, in the sole and absolute opinion of Axaipay, the Merchant has breached its obligations, warranty, undertaking or covenant as stipulated in this Agreement, Axaipay shall be entitled to suspend the Merchant from carrying any further Axaipay Transactions or terminate this Agreement in accordance with the provisions of this Agreement.

 

9.            Chargeback & Disputed Transactions

 

9.1          Axaipay shall not be responsible and liable to Merchant in the event a customer disputes a Axaipay transaction.

 

9.2          Axaipay shall provide assistance on information about the dispute transaction, but Axaipay shall not be under any obligation or responsibility to investigate any disputes on the Axaipay transaction.

 

9.3          In the event of any Chargeback on Transaction, Axaipay will immediately be entitled to debit Merchant Account (if not already debited as a Disputed Transaction) and/or to recover from Merchant by other means the amount paid by Axaipay in respect the relevant Transaction(s). The Card Issuer’s decision shall be conclusive as to the determination of any Chargeback. Wherever possible (for example, if the Acquiring Bank provides Axaipay with written advice), notice to Merchant of a Chargeback will be accompanied by an explanation of the reason for it. In addition, upon prior notification from Axaipay, Axaipay may debit Merchant Account, or otherwise, to recover any other costs and expenses Axaipay may incur as a result of or in connection with a Chargeback.

 

9.4          Where Axaipay is notified of any invalid or Disputed Transactions, Axaipay will notify Merchant of the same by email, fax or letter and wherever possible (for example, if the Acquiring Bank provides Axaipay with written advice) accompanied by an explanation of the reason for it. Axaipay will classify the Transaction as disputed and debit it back to Merchant. Merchant agrees to investigate Disputed Transactions and take all reasonable steps to resolve disputes with Customers within seven (7) days and follow the procedures for handling Disputed Transactions and Charge Back which Axaipay advises from time to time. Axaipay has the right to suspend the processing of any Transaction or withhold Settlement to Merchant of the amount of that Transaction until the satisfactory completion of any investigation.

 

9.5          In the event that Axaipay considers in good faith there is a possibility of Chargeback, Axaipay shall have the discretion to retain funds (up to a maximum of 180 days) from any Settlement to cover the potential amount of such Chargeback and Merchant shall on request provide such additional funds within two (2) weeks from official request as Axaipay may specify in good faith to cover Chargeback and potential Chargeback.

 

10.         Refunds

 

10.1       Where there is Axaipay transaction to be refunded to a Customer, the amount will be debited from Merchant Account, therefore, Merchant shall through a pre-identified authorised person advise Axaipay either by such automated systems as Axaipay shall make available to Merchant from time to time, or by hand or post on the Merchant letterhead with the authorised person signature affixed thereto.

 

10.2       Refunds will only be made to the Card upon which the original Transaction was debited and not by any other method and it will incur a service charge specified in the attached Appendix(es).

 

10.3       The Merchant shall defend, indemnify and hold Axaipay harmless from any and all claims, losses, demands, damages, expenses, liabilities, fines, penalties and costs (including reasonable attorney's fees and expenses) in any way related to or associated with any such refund transactions or the failure to process such refund transactions.

 

11.         Change of Terms and Conditions

 

11.1       This Agreement is subject to change from time to time. Changes may be made by mutual agreement between the parties under the following procedure:

  • Axaipay shall notify the Merchant of any fees change by written notice to the current or last known trading address of the Merchant or the Merchant’s registered office or by email to any of the emails registered with the Merchant Account.

  • The fees may change at any time and for any reason and shall be binding to Axaipay and Merchants by the end of a period of no less than 15 Business Days upon Merchant’s receipt of the written notice, provided further that Merchant has the right to disagree with such changes and terminate this Agreement by a written notice issued to Axaipay within such period.

 

12.          Taxes

 

12.1       Each Party is solely and separately responsible for its own taxes, levies and duties.

 

13.         Intellectual Property

 

13.1       For the duration and the purpose of this Agreement, the parties grant each other a non-exclusive, worldwide, royalty-free, non-transferable licence to copy, use and display any logo, trademark, trade name or other intellectual property owned by or licensed to the other party.

 

13.2       Any use, adaptation or amendment of intellectual property (except for non-material adaptation or amendments necessitated by the use for a particular purpose as contemplated by the parties) shall be subject to prior written approval by party licensing the intellectual property in question. No party shall use the other party’s intellectual property or mention the other party in any public communication without the first party’s prior written consent.

 

13.3       Except as expressly stated, nothing in this Agreement shall grant or be deemed to grant to any party any right, title or interest in any logos, trademarks, trade names or other intellectual property licensed to that party by the other party.

 

13.4       In using the other party’s intellectual property (or intellectual property licensed to that other party by a third party), each party shall follow the other party’s reasonable instructions having regard to the purpose of such use under this Agreement and the jurisdiction in which the other party’s intellectual property is used.

 

13.5       Each party warrants and represents that it owns or has the right to use and sub-licence any intellectual property which it uses or licenses for use to the other party.

13.6       Without prejudice to its right to give instructions under clause 13.4, each party reserves the right at any time and in its sole discretion to require the other party to stop displaying, distributing or otherwise making use of the intellectual property licensed to the other party.

13.7       Without applying the liability restrictions contained in clauses 14.1 and 14.2, each party (the “Indemnifying Party”) shall indemnify and hold harmless the other party and its employees and directors (the “Indemnified Party”) for and against any and all claims, losses, liabilities, costs expenses or damages (including reasonable legal fees) incurred by reason of any claim, demand, lawsuit or action by a third party (other than an employee or director of the Indemnified Party) resulting from an actual or alleged infringement of any third party intellectual property right in connection with material provided by the Indemnifying Party.

 

13.8       The indemnity under clause 13.7 shall only be available if the Indemnified Party:

  • uses reasonable efforts to notify the Indemnifying Party of such claim as early as possible and in writing;

  • uses reasonable efforts to mitigate the loss or amount of the claim;

  • refrains from admitting any liability or settling any claim without the prior written consent of the Indemnifying Party; and

  • provides, at its own cost, reasonable co-operation in the defence or settlement of such claim.

 

14.         Liability

 

14.1       Neither party shall be liable in contract, tort (including negligence or breach of statutory duty) or otherwise for any indirect or consequential loss or damage of any kind including punitive or exemplary damages or for any loss of profit or loss of contract, loss of goodwill or reputation, loss of opportunity, loss of revenue or third party loss whether foreseeable or otherwise.

 

14.2       Subject to clause 15.3 and any other clause explicitly excluding the effect of this clause, the aggregate liability of each party in contract, tort, negligence or otherwise arising out of or in connection with this Agreement in any period of twelve (12) months from the commencement date or any anniversary thereof (each a “Contract Year”) shall be limited to 20% of the total amount of fees received by Axaipay from the Merchant in the previous Contract Year (or, in the first Contract Year, the fees received to date).

 

14.3       Nothing in this Agreement shall operate to exclude or restrict a party’s liability

  • for fraud and fraudulent misrepresentation;

  • for death or personal injury due to negligence;

  • for payments pursuant to clause 4;

  • for remittance payments due to the Merchant subject to the provisions of this Agreement;

  • for wilful and malicious misconduct;

  • for damage to real or tangible personal property;

  • for a breach of clause 15 (Confidentiality) (subject to clause 14.6); and

  • to the extent that such exclusion or restriction is prohibited under applicable law.

 

14.4       Unless expressly stated otherwise, no indemnity obligation under this Agreement shall be subject to the limitations of liability contained in this clause 14.

 

14.5       In case of a breach by the Merchant of any of the terms in clauses 5 and 8:

  • the liability restrictions of clauses 14.1 and 14.2 shall not apply;

  • the Merchant shall indemnify Axaipay against any and all third-party claims, losses, damages, fines, penalties, arising out of or in connection with such breach;

  • provided always that any contributory negligence or fault on Axaipay’ part shall be taken into account so as to reasonably and proportionately reduce the Merchant’s liability under this clause.

 

14.6       Axaipay shall not be liable for any of the following:

  • where any hardware, software or Internet connection wheresoever situate is not functioning properly;

  • any suspension or refusal to accept payments which Axaipay has reason to believe to be made fraudulently or without proper authorisation, provided that Axaipay shall have given the Merchant a minimum of 5 business days prior written notice based on justified reasons and proof with a confirmation to the Merchant that Axaipay shall restore its services and makes the payments to the Merchant without delay upon the necessary corrective actions having been taken  by the Merchant or upon the Merchant having proven that the Merchant did not make the aforesaid fraudulent payments.

  • that the payment instructions received by Axaipay containing incorrect or improperly formatted information that are not due to Axaipay’ faults; or

  • any unforeseen circumstances preventing the proper performance despite any reasonable precautions taken by Axaipay provided that Axaipay makes its best efforts to prevent and address such problems. Such circumstances may include, but are not limited to acts of god, power outages, fire, flood, theft, equipment breakdowns, hacking attacks, internal mechanical or systems failures as well as downtime of the Axaipay website.

 

15.         Confidentiality

 

15.1       During the term of this Agreement, each party shall use and reproduce the other party’s Confidential Information only for purposes of this Agreement and only to the extent necessary for such purpose and will restrict disclosure of the other party’s Confidential Information to its employees, consultants or independent contractors with a need to know and will not disclose the other party’s Confidential Information to any third party without the prior written approval of the other party. Upon expiry or termination of this Agreement, each party shall cease the use of the other party’s Confidential Information and shall return back all printed copies of such Confidential Information. Where such Confidential Information is stored electronically or digitally, such information shall be deleted by the party in receipt of such Confidential Information and a written assurance shall be given to the party who disclosed the Confidential Information that no such copies of the Confidential Information remain in the possession of that receiving party.

 

15.2       Notwithstanding the foregoing, it will not be a breach of this Agreement for either party to disclose Confidential Information of the other party if required to do so under law or in a judicial or governmental investigation or proceeding.

 

15.3       The confidentiality obligations shall not apply to information that (i) is or becomes public knowledge through no action or fault of the other party; (ii) is known to either party without restriction, prior to receipt from the other party under this Agreement, from its own independent sources as evidenced by such party’s written records, and which was not acquired, directly or indirectly, from the other party; (iii) either party receives from any third party reasonably known by such receiving party to have a legal right to transmit such information, and not under any obligation to keep such information confidential.

 

16.         Data Protection

 

16.1       Each party, when acting as data processor, shall process personal data in accordance with Regulatory Requirements.

 

16.2       Where one party acts as the data processor (the “Data Processor”) of personal data processed by the other party as data controller (the “Data Controller”), the Data Processor shall at all times follow the Data Controller’s reasonable instructions with regards to the personal data processed but at all times ensure that there is compliance with Regulatory Requirements of such personal data.

 

17.         Termination

 

17.1       Without prejudice to termination rights set forth in clause 3 of this Agreement, a party may terminate this Agreement immediately:

  • if the other party files a petition for bankruptcy, becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or a receiver is appointed for the other party or its business, or the other party goes into liquidation either voluntarily (otherwise than for reconstruction or amalgamation) or compulsorily;

  • upon the occurrence of a material breach of this Agreement by the other party if such breach is not remedied within five (5) business days after written notice is received by each party identifying the matter or circumstances constituting the material breach; or

  • if the other party violates or fails to comply with any applicable law, regulation or any order by a competent court or government authority.

 

17.2       Any termination in accordance with clause 3 of this Agreement shall be deemed a termination of this Agreement.

 

17.3       Axaipay shall pay all the balance and all the payments due or overdue to the Merchant within 30 business days of the termination date of this agreement. For Merchant who has paid Axaipay a Security Deposit, the refund of the Security Deposit from Axaipay to Merchant shall only be made after one hundred eighty (180) days upon the termination of the contract.

 

18.         Assignment, Third Party Rights

 

18.1       Each party may not assign any of its rights under this Agreement to a third party without the prior written consent of the other party.

 

18.2       Each party may not out-source the performance of any of its obligations under this Agreement without the prior written consent of the other party.

 

19.         Relationship of the parties

 

19.1       The Merchant and Axaipay are independent contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture or agency relationship between them. Neither party has authority to enter into agreements of any kind on behalf of the other.

 

20.         Non-solicitation of employees

 

20.1       Each party undertakes that it will not for the term of this Agreement and a period of six (6) months thereafter on its own behalf or on behalf of any person directly or indirectly canvass, solicit or endeavour to entice away from the other party or an associated company any person who has at any time during the term of this Agreement been employed or engaged by the other party or an associated company.

 

21.         Notices

 

21.1       Any notice to be given under this Agreement must be given in writing and delivered either by hand, first class prepaid post, e-mail or other recognised delivery service, or by facsimile.

 

22.         Waiver

 

22.1       Any waiver of a right under this Agreement shall only be effective if agreed or declared in writing. A delay in exercising a right or the non-exercise of a right shall not be deemed a waiver and shall not prevent a party from exercising that right in the future.

 

23.         Severability

 

23.1       If any part of this Agreement is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable then such part shall be severed from the remainder of the Agreement, which shall continue to be valid and enforceable to the fullest extent permitted by law.

 

24.         Entire Agreement             

 

24.1       This Agreement including all Schedules and other documents referred to herein, represents the entire agreement of the parties in relation to its subject matter. Each party acknowledges that it has entered into this Agreement in reliance only on the representations, warranties, promises and terms contained in this Agreement and, save as expressly set out in this Agreement, neither party shall have any liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.

 

25.         Variation

 

25.1       Subject to clause 3 and clause 11 above, no variation or amendment to this Agreement shall be effective unless recorded in writing and signed by the duly authorised representatives of both parties.

 

26.          Disclosure of Information

 

26.1       Axaipay shall be entitled and the Merchant irrevocably and unconditionally consents and authorises Axaipay to the extent permitted by law, to disclose or release any information pertaining to the Merchant or the Merchant’s transactions through Axaipay Online Payments to such extent that Axaipay may at its absolute discretion deem fit to:

  • The Acquiring Bank;

  • The Card Issuer;

  • Bank Negara Malaysia or such other persons as Axaipay may be required to disclose under applicable law;

  • Such other persons or entity pursuant to any governmental directive or order of the court; or

  • Any other party whosoever as Axaipay may at its absolute discretion deem fit in the event of Dispute Transactions.

 

27.         Cost and Expenses

 

27.1       Each party shall bear its own solicitors’ legal fees and costs in respect of the preparation and execution of this Agreement and all ancillary documents.

 

28.         Governing Law and Jurisdiction

 

28.1       This Agreement shall govern by Malaysian law in every particular including formation and interpretation.

 

28.2       Any proceedings arising out of or in connection with this Agreement may only be brought in a court of competent jurisdiction in Malaysia.

[The agreement was published and on 2 August 2019. Last update on 22 September 2019.]