WIGWAG TERMS AND CONDITIONS
These terms and conditions govern Your use of WigWag and the Product offered therein. Please take time to read the terms carefully. You should pay special attention to the parts in bold as they have especially important consequences for you.
1. TERMS AND CONDITIONS
1.1. These terms and conditions (“T&Cs”) are entered into between You and Stitch Money (Pty) Ltd (“Stitch”, “Us” or “We”), a company incorporated in South Africa under registration number 2018/409288/07.
1.2. Stitch is an end-to-end payments service provider. Stitch has developed and currently operates a payments processing platform that enables businesses to securely receive Transactions from Clients via multiple methods. Stitch is also an authorised Third Party Payment Provider and provides services in its capacity as such. The products and services that We offer are provided in partnership with merchants and registered financial institutions.
1.3. WigWag is one of the products that Stitch provides to You.
1.4. You wish to use WigWag in order to receive and accept payments from Your Clients.
1.5. By signing up for WigWag and accepting these T&Cs, You agree to be bound by these T&Cs and these T&Cs forms a legal relationship between You and Us.
1.6. Now therefore the Parties wish to cooperate with each other on the following terms and conditions.
2. T&Cs STRUCTURE
2.1. These T&Cs are comprised of the following parts:
2.1.1. Part A – General T&Cs; and
2.1.2. Part B – Product Specific Terms.
2.2. Part A – General T&Cs operate as a framework agreement which are applicable to Stitch’s engagement with You and Part B – Product Specific Terms specifying the Product specific terms to be provided by Stitch to You from time to time, depending on the Products You have chosen to use.
2.3. For the avoidance of any doubt, the terms contained in Part A – General T&Cs apply to the terms of Part B – Product Specific Terms. Insofar as any term or condition in Part B – Product Specific Terms conflicts with those of Part A – General T&Cs, the terms or conditions in Part B – Product Specific Terms shall prevail to the extent of such inconsistency only.
PART A – GENERAL T&Cs
3. DEFINITIONS
In these T&Cs, the following words shall, unless otherwise stated or inconsistent with the context in which they appear, bear the following meanings and other words derived from the same origins as such words (that is, cognate words) shall bear corresponding meanings –
3.1. Applicable Laws means any statute, regulation, policy, by-law, directive, notice or subordinate legislation, common law, binding court order, judgement or decree, industry code, policy standard, direction, policy or order that is given by a regulator, in each case having the force of law, and which applies to a Party and/or the provision of the Services;
3.2. Business Day means any day which is not a Saturday, Sunday or South African public holiday;
3.3. Business Hours means 09h00 to 17h00;
3.4. Client means Your end-user/customer;
3.5. Confidential Information means all non-public technical, business, financial, past, present or future research, development, business activities, products, services and technical knowledge or marketing information and Intellectual Property of a Party that has either been identified in writing as confidential or is of such a nature (or has been disclosed in such a way) that it should be obvious that it constitutes Confidential Information and, without limiting the generality of the foregoing, Confidential Information shall include any information that falls within the definition of Personal Information, and it shall include the existence and contents of these T&Cs, but Confidential Information does not include any information which (i) is in the public domain at the time learned by or communicated to the recipient through no fault of the recipient, (ii) is obtained by the recipient from a third party lawfully in possession of such information and not subject to a contractual or fiduciary relationship to the provider of the Confidential Information, or (iii) is already known to the recipient or is independently derived by the recipient without reference to the Confidential Information;
3.6. FICA means the Financial Intelligence Centre Act 38 of 2001, as amended;
3.7. Force Majeure means any circumstance or event not within a Party’s reasonable control, including without limitation: unpredictable adverse weather conditions, national industrial strikes (excluding strikes or labour disputes originated by or involving only the relevant workforce or any part of it or the workforce of its agents or subcontractors), war, acts of God, acts of terrorism, epidemics, pandemics, floods, decrees by government, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations, earthquakes or civil disturbance, business interruption events such as cyber-attack (where those steps taken by a Party to avoid the cyber-attack were standard to the industry and were unable to detect, prevent or minimize the effect of the cyber-attack; which in each case could not reasonably be foreseen and is beyond the reasonable control of the relevant Party or its employees or agents
3.8. Intellectual Property means all and any intellectual property of any kind including, without limitations, all and any creations of the mind whatsoever and however embodied, which may subsist, are recognised or be capable of protection by law from use by any other person, and all rights resulting from or attributable to such creation of the mind whether acquired or protected by Applicable Law in South Africa or wheresoever in the world owned by a Party, including (without limitation) patents, petty patents, utility models, trade marks, service marks, trade and business names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, copyright and related rights (such as, without limitation, associated moral rights and copyright vesting in software, computer programs, databases programming algorithms, methodologies, models, processes, techniques, analyses, research and findings), domain names, designs (including registered designs), inventions, topography rights and like rights, trade secrets, know-how, Confidential Information, databases (including rights of extraction), and all rights and forms of protection of a similar nature or having equivalent effect to any of them which may subsist or be capable of protection wheresoever in the world, whether or not any of these is registered or unregistered and including all applications or renewals for any such rights or registration thereof and any goodwill related to or arising from such rights;
3.9. Nominated Account means the South African bank account(s) nominated by You in terms of clause 7.12 for the receipt of Client payments in terms of these T&Cs;
3.10. NPS Act means the National Payment Systems Act 78 of 1998, as amended;
3.11. Party means either Us or You as applicable in the context, and Parties shall mean both Us and You;
3.12. PASA means the Payment Association of South Africa, which is the payment system management body recognised by the South African Reserve Bank in terms of the NPS Act;
3.13. Payment Participants means registered banks and other authorized entities assisting in the facilitation and provision of the Services and the providers of the computer systems and communications links used to receive and process Transactions;
3.14. Payment Scheme means PASA, VISA and/or Mastercard and such other associations governing the issue and use of credit, debit, charge, purchase or any other Cards or payment methods, as approved and notified by Stitch to You from time to time;
3.15. Payment Scheme Rules means the rules, regulations, and operating guidelines published and updated by the Payment Schemes from time to time;
3.16. Personal Information bears the meaning assigned thereto in terms of POPIA;
3.17. POPIA means the Protection of Personal Information Act 4 of 2013, as amended;
3.18. Privacy Policy means the WigWag privacy policy which can be accessed here.
3.19. Products means the various payment methods through which Stitch may utilise to process a Transaction on behalf of You under the Services, each referred to individually as a Product, as selected for use by You;
3.20. Services means the provision of one or more of the Products via the Stitch API by Stitch to You pursuant to the Products selected for use by You and otherwise regulated in these T&Cs;
3.21. Service Fees means the fees payable by You to Us for the Services, which fees can be accessed on the WigWag Dashboard or as notified to You by Stitch in writing;
3.22. Stitch, Us or We means Stitch Money (Pty) Ltd, a company incorporated in South Africa under registration number 2018/409288/07;
3.23. Stich API means the application programme interface and software developed, owned, managed, and updated from time to time by Stitch through which Stitch provides the Services to You;
3.24. Stitch IP means all Intellectual Property rights that are owned or licensed to Stitch, including, without limitation, (i) all Intellectual Property created or used to provide the Services and/or the Stitch API, (including, for clarity, copyright and know-how and other Intellectual Property in the software and technology and the Products, Services and/or the Stitch API, including design files and software code used to provide the Products and Services and/or maintain the Stitch API); (ii) all domain names and social media sites or pages related to Stitch, the Products, and/or the Services and/or the Stitch API; and (iii) all partnerships, business methods, strategies, plans, models, processes, trade secrets, know-how, Confidential Information and/or specialised knowledge implemented in creating and operating the Products, Services and/or the Stitch API;
3.25. Sponsoring Bank means the bank in South Africa that Stitch has partnered with for purposes of processing Transactions;
3.26. Third Party Payment Provider or TPPP means a person who is authorized in terms of the NPS Act and their sponsoring bank to 1) accept funds or the proceeds of payment instructions from multiple payers on behalf of a single beneficiary, and/or 2) accept funds or the proceeds of payment instructions from a single payer to multiple beneficiaries;
3.27. Transaction means the transfer of funds from a Client owing to You, or vice versa, as processed by Stitch under instruction from You;
3.28. VAT means value-added tax levied in terms of the Value-Added Tax Act 89 of 1991, as amended;
3.29. WigWag Balance means the amount owing from Stitch to You (being the proceeds of each Transaction minus the Service Fees), which Stitch holds on behalf of You and settles to You in accordance with clause 12;
3.30. WigWag Dashboard means the dashboard (which forms part of the Stitch API) made available to You in accordance with clause 14 below and which can be accessed via the internet, as nominated by Stitch and notified to You from time to time; and
3.31. You means the person and/or entity entering into these T&Cs.
4. DURATION AND TERMINATION
4.1. These T&Cs shall commence upon the date You accept them (by electronically indicating Your acceptance) and continues until terminated by either Party in accordance with these T&Cs.
4.2. You may terminate these T&Cs at any time by providing Us with 30 days notice in writing.
4.3. We may terminate these T&Cs at any time for whatsoever reason by providing You with 14 days written notice.
4.4. Upon termination, We will immediately discontinue Your access to the Services. You agree to complete all pending Transactions and stop accepting new Transactions through the Services. Any funds in our custody will be paid out to You.
5. ONBOARDING
5.1. In order to use the Services You will have to sign up and complete the customer onboarding process.
5.2. We are committed to best practices in relation to know-your-business and onboarding requirements (“KYB”) as set out in FICA. You agree to assist and provide all documentation and evidence required to meet Stitch’s KYB practices and shall continue to ensure that these are kept up-to-date upon request from the Company and in compliance with Applicable Law.
5.3. We reserve the right to approve or decline Your registration for the Services. In the event We decline Your registration, these T&Cs will not take effect.
5.4. You agree that in order for Stitch to meet its obligations under Applicable Law, before Stitch provide any services to You and from time to time during our provision of said services, Stitch may carry out verification and ongoing due diligence checks on You and Your directors, affiliates, ultimate beneficiaries (if applicable), sub-merchants (if applicable) and Clients. You will promptly provide any additional information Stitch may require at any time. Stitch reserves the right to deny the provision of the Services or cease providing You any Services in the event You do not pass the ongoing due diligence or fail to provide additional information when requested. Such documentation requested for due diligence, must be provided to Us within 10 business days from the date of request. Should the documents not be provided within the stipulated time frame, We reserve the right to suspend the Service and/or terminate these T&Cs immediate upon written notice to You.
5.5. Stitch reserve the right to review Stitch’s risk profile for the merchants Stitch engages with (i.e. You) on an on-going basis and take any action in response to said risk ratings.
5.6. We reserve the right to request additional information from You, should We deem that appropriate, based on an increase of Your transaction volume, the occurrence of chargebacks or other circumstances that might affect our risk exposure in connection with facilitating Your Transactions.
5.7. You agree that You are solely responsible to verify the identities of Your Clients, ensuring that they are authorised to carry out the Transactions, and determining their eligibility to purchase products and services from You.
5.8. You are also required to maintain records relating to the proof of service and/or product delivery to Your Clients. Where a dispute occurs, You may be required to provide Us with this information.
6. SERVICES
6.1. Stitch provides You with the Services that facilitates the processing of Transactions, based on the instructions received from You.
6.2. The Services are provided by Stitch via the Stitch API, which enables You to make use of the Products.
6.3. The WigWag Dashboard will be made accessible to You to enable You to use the Service, select Products, accept payments, process refunds and withdraw funds. We reserve the right to require You to install or update any and all software to continue using the Services.
7. YOUR OBLIGATIONS
You undertake to:
7.1. Use the Services only in the manner expressly authorised by Stitch in these T&Cs, as well as in accordance with all Applicable Laws and regulations which govern the provision of the Services;
7.2. Provide Stitch with all reports, documents and/or information as may be required in terms of any Applicable Laws and/or the rules of the applicable Card Association(s);
7.3. Provide Stitch with all necessary or desirable co-operation in relation to these T&Cs;
7.4. Make clear to Your Clients that the Clients are transacting with You prior to, during, and after the Transaction.
7.5. Display Your full terms and conditions, including comprehensive details of Your return and refund policies to each Client and provide the goods and/or services that Your Clients pay for;
7.6. Ensure that Your networks and systems comply fully with the relevant specifications provided by Stitch from time to time in relation to the Services;
7.7. Ensure the Transactions You submit are legal in South Africa;
7.8. Respond promptly to inquiries/complaints from Your Clients relating to the Services;
7.9. Not participate directly or indirectly in any fraudulent activities;
7.10. Not participate in any other activities that may result in undue economic hardships or damage to the integrity and goodwill of the National Payment System;
7.11. Not refuse to transact with Clients for any goods and/or services on the basis that a Client wishes to use a particular Product to pay for any Transaction.
7.12. Maintain a Nominated Account in relation to the Services. You may amend Your Nominated Account from time to time on written notice of not less than 5 (five) Business Days to Stitch.
8. ACHNOWLEDGEMENTS AND RECORD RENTENTION
8.1. You acknowledge and agree that:
8.1.1. Stitch acts as a payment processor in terms of Applicable Law and is accordingly obliged to, among other things:
8.1.1.1. inform its Sponsoring Bank of its involvement in payments to third persons who, in turn, must inform PASA in a format acceptable to PASA; and
8.1.1.2. keep records of Transactions processed as prescribed by Applicable Law;
8.1.2. Stitch is required to provide the Services in conjunction with the Payment Participants, and that continued access to the Services is dependent on such Payment Participants;
8.1.3. Should the Payment Participants terminate the relationship with Stitch, Stitch shall be entitled to terminate these T&Cs immediately by providing written notice of such termination to You.
9. OUR OBLIGATIONS
Stitch shall:
9.1. provide the Services as described in these T&Cs to You;
9.2. provide support related to the Services during the operating hours communicated by Us to You from time to time; and
9.3. Where applicable, provide You with the necessary infrastructure required for the access to the Services.
10. FEES
10.1. In consideration for Stitch providing the Services to You, You agree to pay to Stitch the Service Fees.
10.2. Unless otherwise stated, the Service Fees do not include taxes, levies, duties or similar assessments including VAT, withholding or sales tax. You shall be responsible for all taxes associated with Services.
10.3. The Service Fees owed to Stitch will be deducted from the funds flowing from each Transaction.
10.4. The Service Fees are payable irrespective of whether a successful Transaction is subsequently reversed, disputed, or refunded.
10.5. Stitch will have the right to change the fees from time to time. We will inform You of such changes by providing you with 14 days written notice.
11. REFUNDS
11.1. Stitch will take reasonable steps to process requested refunds to Clients to the extent that the Products allows for refunds to be processed and subject to clause 11.2.
11.2. Stitch shall process refunds, upon instruction from You, if there are sufficient funds in your WigWag Balance to cover the amount of the refund plus the Service Fees applicable for processing the refund.
12. WITHDRAWALS AND HOW WE HANDLE YOUR FUNDS
12.1. Stitch will update Your WigWag Balance once Stitch has successfully processed and received the funds flowing from each Transaction.
12.2. You shall be entitled to withdraw funds from your WigWag Balance through Your profile on the WigWag Dashboard.
12.3. You authorise and instruct Stitch to hold, receive, and disburse funds on your behalf.
12.4. You agree that You are not entitled to any interest or other compensation associated with the settlement funds held by Stitch pending settlement and payout to Your Nominated Account.
12.5. Settlement funds (reflecting in Your WigWag Balance will be held in a deposit account by Stitch pending withdrawal and payout to You in accordance with the terms of these T&Cs.
13. FRAUDULENT TRANSACTIONS
13.1. You acknowledge and agree that Stitch may monitor the Transactions as well as process and collect data in relation to all Transactions to track, review and report fraudulent Transactions. Stitch may adopt such fraud monitoring practices in accordance with standard industry best practices or as may be required or desirable in terms of Applicable Law, Payment Scheme Rules and/or as a result of its arrangement with its Sponsoring Bank.
13.2. The risk and liability for fraudulent Transactions lies with the Client and You, including instances of consumer fraud perpetrated at the banks, and Stitch shall bear no risk or liability for fraudulent Transactions whatsoever. Where Stitch knows or suspects a Transaction is or may be fraudulent, Stitch may, in its sole and absolute discretion:
13.2.1. withhold or delay processing of the Transaction; and/or
13.2.2. block the Transaction.
13.3. You acknowledge and agree that Stitch operates a multi-merchant environment in terms of which Stitch monitors for fraudulent activities. In the instance where Stitch knows or suspects that a Transaction, which has occurred in relation to a third-party merchant, is or may be fraudulent, Stitch may:
13.3.1. block the Client from performing any Transactions across all its merchants; and
13.3.2. inform the relevant merchants of the actual or suspected fraud by the Client, providing the merchants with sufficient information as Stitch may determine in accordance with its fraud prevention practices.
13.4. You shall be responsible and liable for any and all liability, losses or damages that may be suffered by You, Stitch or a Third party as a result of Your, or Your personnel’s, direct or indirect, fraudulent actions, and You hereby indemnify Stitch in full against all liabilities, costs, expenses, damages and losses of whatsoever nature and howsoever described (including but not limited to any direct, indirect and consequential losses) that Stitch may suffer or incur as a result of as a result of Your, or Your personnel’s, direct or indirect, fraudulent actions.
13.5. Without prejudice to the Parties' further obligations under these T&Cs, the Parties shall cooperate in good faith as reasonably necessary to investigate possible or alleged instances of fraud, money laundering, terrorist financing, corruption or any other criminal activity, illegal use or abuse of the Services provided by the Parties and will take such reasonable steps as may be required to stop and prevent any such abuse.
13.6. In the case of any alleged or proven occurrence of fraud, money laundering, terrorist financing, corruption or any other criminal activity, illegal use or abuse of the Services, Stitch, without prejudice to its other obligations under these T&Cs, reserve the right to suspend or terminate the provision of the Product(s), Services and/or Your access to the Services, the Products and the Stitch API.
13.7. Stitch will have the right to immediately suspend or terminate the Services in whole or in part by way of a written notice to You if Stitch has any reason to believe, which reasons shall be shared with You on written request, that the Service is being used for unlawful purposes or actual or suspected fraud is impacting the Services.
14. INTELLECTUAL PROPERTY
14.1. All rights, title, ownership and interest in and to any materials and Intellectual Property rights, which belong to Stitch and/or their vendors and/or licensors (as the case may be), including, without limitation, Stitch IP, shall at all times remain the sole property of Stitch and/or their vendors or licensors.
14.2. Unless as provided for in these T&Cs, You shall not, by virtue of these T&Cs, obtain or claim any right, title or interest in or to Stitch IP.
14.3. Subject to Your successful registration, the restrictions set out in this clause 14, and the other terms and conditions set out in these T&Cs, Stitch hereby grants to You a non-exclusive, non-transferable, revocable, limited right and licence, without the right to grant sublicences, to access and use the WigWag Dashboard during the term of these T&Cs solely for the purpose of receiving the Services from Stitch and its internal business processes.
14.4. You shall not:
14.4.1. copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Stitch API, the WigWag Dashboard or the Stitch IP, or attempt to do any of the foregoing, in any form or media or by any means whatsoever; or
14.4.2. de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Stitch API, the WigWag Dashboard, the Stitch IP, the Services or the Products, or attempt to do any of the foregoing; or
14.4.3. access all or any part of the Stitch API, the WigWag Dashboard or the Stitch IP in order to build a product or service which competes with the Products, or attempt to do any of the foregoing; or
14.4.4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Stitch API, the WigWag Dashboard, the Stitch IP, the Services or the Products available to any third party except for Clients, or attempt to do any of the foregoing.
15. PRIVACY AND DATA PROTECTION
15.1. We agree and undertake to comply fully with all applicable privacy and data protection laws and regulations, including POPIA (“Data Protection Laws”) to the extent that Personal Information is disclosed, shared or otherwise made available by You to Us, as a result of concluding these T&Cs, and exercising Your rights and performing Your obligations under these T&Cs.
15.2. The Parties warrant and represent that all Personal Information that is processed, collected, retained and transferred under these T&Cs will be done in line with their respective obligations as contained in POPIA.
15.3. You agree to comply fully with all applicable Data Protection Laws and Your contractual obligations to your Clients, in providing or directing any Client data to Stitch and processing any Client data through your use of the Services. You understand. that Stitch will process certain of your Client’s data on behalf of your business as a service provider.
15.4. Refer to our Privacy Policy for more details on how We collect, use and store Your Personal Information.
16. NO GUARANTEED PAYMENTS
16.1. Stitch may, in our sole discretion, flag or delay certain Transactions. Stitch does not guarantee or assume liability for Transactions credited or settled by You, if We have advised You to delay crediting such Transaction/s for whatsoever reason. You remain fully liable for such Transactions.
17. SUSPENSION OF SERVICES
17.1. We will have the right to immediately suspend or terminate the provision of the Services in whole or in part by way of a written notice thereto:
17.1.1. where Stitch is required to do so by its Sponsoring Bank or any regulator having authority in terms of Applicable Law or where a change in Applicable Law necessitates such suspension or termination;
17.1.2. if Stitch, in its sole discretion, determines that continuing to provide the Services to You represents increased risk of loss or liability or risk to reputation to Stitch;
17.1.3. where there is any illegal activity or any suspicion of illegal activity in respect of a Transaction or the Nominated Account;
17.1.4. where You have failed to take or implement any fraud prevention steps;
17.1.5. where You breach any Payment Scheme Rules;
17.1.6. where Stitch is or may be or become subject to fines from a Payment Scheme or other third party arising from the provision of the Services to You;
17.1.7. where You are in breach of these T&Cs;
17.1.8. where any amounts owing by You in terms of these T&Cs are outstanding; and/or
17.1.9. where You fail to adhere to any of Your obligations set out in these T&Cs.
17.2. Stitch will notify the Customer of any such suspension not later than the date of such suspension specifying the reason and duration thereof. Stitch shall reinstate the provision of the Services when the reasons for suspension have been rectified and as soon as reasonably practicable. If the reasons for the suspension are not rectified, Stitch shall be entitled to terminate these T&Cs.
18. WARRANTY AND DISCLAIMER
18.1. You acknowledge and agree that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these T&Cs, Stitch gives no warranty or representation that the Services will be uninterrupted, accessible at all times, timely, wholly free from defects, errors and bugs; nor does Stitch make any warranty as to the results that may be obtained from use of the Services.
18.2. Stitch shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the implementation services in a professional and workmanlike manner.
18.3. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Stitch, Payment Participants or by third-party providers, or because of other causes beyond Stitch’s reasonable control, but Stitch shall use reasonable efforts to provide advance notice in writing of any scheduled disruption to the Services.
18.4. Except as expressly set forth in this clause, the Services and the WigWag Dashboard are provided “as is”, "as available" and Stitch disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
18.5. You hereby agrees to indemnify and hold harmless Stitch against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an actual or alleged violation of these T&Cs by You or from Your use of the Services not in accordance with these T&Cs.
18.6. Stitch reserves the right to monitor Your use of the Services to ensure compliance with the terms of these T&Cs. Stitch may, in its sole discretion, prohibit any use of the Services by You that Stitch reasonably believes to be in violation of the terms of these T&Cs, or any Applicable Laws.
19. LIMITATION OF LIABILITY
19.1. To the maximum extent permitted by Applicable Law, Stitch shall not be liable for any direct, indirect, punitive, incidental, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, data or there intangible losses that result from:
19.1.1. Your use of the Services not in accordance with these T&Cs;
19.1.2. hacking, tampering, or other unauthorised access or use of the Services;
19.1.3. errors, mistakes, or inaccuracies of the Services;
19.1.4. fraudulent Transactions; and
19.1.5. any fraud by You or the Clients in connection with the Services.
19.2. Neither Party will be liable to the other for consequential, incidental or special damages, including lost profits and lost data, even if such Party has been appraised of the likelihood of such damages occurring.
19.3. To the fullest extent permitted in terms of Applicable Law and subject to this clause 19, You agree that Stitch’s entire liability under or related to these T&Cs, whether for negligence, breach of contract, misrepresentation or otherwise, is limited to an amount equal to the Service Fees paid by You under this Agreement in the 12 (twelve) months immediately preceding the even that gave rise to the claim.
19.4. Nothing in these T&Cs shall operate to exclude or restrict Stitch’s liability for death or personal injury or for any matter which such liability cannot be excluded under Applicable Law.
20. Confidentiality
20.1. Each Party will keep confidential and will not disclose to any person any Confidential Information.
20.2. The Party receiving any Confidential Information undertakes and agrees that:
20.2.1. all of the other Party's Confidential Information that it receives, or which otherwise comes to its knowledge, is proprietary to the other Party;
20.2.2. the terms of these T&Cs do not confer any rights of whatsoever nature in such Confidential Information on it; and
20.2.3. it will not exploit, commercialise or otherwise make use of the other Party's Confidential Information in any manner or use such Confidential Information to compete with the other Party.
20.3. Each of the Parties agrees to keep all Confidential Information confidential and to disclose it only to their respective officers, directors, employees, consultants and professional advisors who have a need to know the Confidential Information, are aware that the Confidential Information should be kept confidential, are aware of the disclosing Party's undertaking in relation to such information in terms of these T&Cs, and have been directed by the disclosing Party to keep the Confidential Information confidential.
20.4. Confidential Information shall not extend to information that is required by the provisions of Applicable Law, or during any court proceedings, or by the rules or regulations of any recognised stock exchange to be disclosed. The Party required to make such disclosure will, as far as reasonably possible and subject to Applicable Law, limit the extent of such disclosure and consult with the other Party prior to making such disclosure.
20.5. The provisions of this clause 20 are severable from the rest of these T&Cs and shall survive the expiry or termination of these T&Cs for whatever reason.
21. FORCE MAJEURE
21.1. If a Party to these T&Cs is prevented from or delayed in performing any of its obligations under these T&Cs as a result of Force Majeure, then it will forthwith notify the other Party in writing of the nature and expected duration of such circumstances, and of the obligation or performance which is delayed or prevented. The Parties will thereupon be excused from the performance or punctual performance, as the case may be, of its respective obligations from the date of such notification, for as long as the circumstances or prevention or delay may continue, subject to clause 21.2.
21.2. If, by virtue of clause 21.1, the Parties are excused from the performance or punctual performance of any obligation for a continuous period of 30 (thirty) days and provided that such performance is still excused, then any Party may at any time thereafter, by written notice to the other Party, terminate these T&Cs.
22. DISPUTE RESOLUTION
22.1. The Parties agree that the first recourse to resolving any dispute arising out of or in connection with these T&Cs, including disputes relating to its existence, validity or termination and additional circumstances which result in material breach thereof, shall be mediation proceedings whereby they will consult and negotiate with each other in good faith and attempt to reach a satisfactory resolution to the dispute.
22.2. In the event that the prevailing dispute is not resolved within fifteen (15) Business Days from the date on which mediation proceedings began, the dispute, if arbitrable in law, shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa (“AFSA”) by an arbitrator or arbitrators appointed by AFSA and is to be held in Cape Town.
22.3. This clause will not preclude either Party from access to an appropriate court of law, for interim relief in respect of urgent matters by way of an interdict, or mandamus pending finalization of this dispute resolution process, for which purpose the parties submit to the jurisdiction of Cape Town division of the High Court of South Africa.
23. GENERAL
23.1. The Parties acknowledge and agree that these T&Cs and its applicable annexures and addendum evidence the entire agreement and understanding between them with respect to the transactions contemplated therein. These T&Cs replaces and supersedes all prior agreements (oral or written) between the Parties.
23.2. A failure or delay by either Party to enforce any provision of or exercise any right under these T&Cs will not be construed to be a waiver. No waiver by a Party will be effective unless expressly made in writing.
23.3. If any provision of these T&Cs is found to be unenforceable or invalid in any respect, by a court of competent jurisdiction, such unenforceability and/or invalidity will be limited to the relevant provision and will not affect any other provision of these T&Cs. These T&Cs will subsequently be construed as if the unenforceable and/or invalid provision had not formed part of it.
23.4. These T&Cs are not assignable, transferable or sublicensable by You. Stitch may cede, assign and transfer any of its rights and obligations under these T&Cs without Your consent.
23.5. Nothing in these T&Cs will constitute or be deemed to constitute a partnership, joint venture, or employment between them or render one Party an agent of the other for any purpose whatsoever. Neither Party will have authority or power to bind the other to contract or to create a liability against the other in any way.
23.6. These T&Cs shall be governed by the laws of the Republic of South Africa without regard to its conflict of laws provisions and is subject to the exclusive jurisdiction of the courts of South Africa.
23.7. You represent and warrant that You have the right, power, and authority to enter into these T&Cs, to become a Party hereto and to perform the obligations hereunder. These T&Cs is a legal, valid and binding obligation on You and, enforceable against You in accordance with its terms.
24. STITCH’S INFORMATION
24.1. Stitch’s information is as follows:
24.1.1. Full Name: Stitch Money (Pty) Ltd, a company incorporated in South Africa under registration number 2018/409288/07;
24.1.2. Address for legal notices: 9 Kinross Street, Germiston South, Gauteng, 1401;
24.1.3. Email: [insert]
24.1.4. Contact number: [insert]
25. UPDATES, MODIFICATIONS & AMENDMENTS
25.1. We may need to update, modify or amend these T&Cs and our Privacy Policy as our technology evolves. We reserve the right to update, modify or amend these T&Cs at any time by giving written notice to you thereof.
25.2. We advise that you check this page often, referring to the date of the last modification on the page.
25.3. Each time you use the Services, it is Your responsibility to review these T&Cs and our Privacy Policy in case of any such updates or amendments.
25.4. If you have any objection to any of the changes to these T&Cs and Privacy Policy, you must cease using the Services immediately as your continued use of the Services will be deemed as Your acceptance of the amendments to the T&Cs.
PART B – PRODUCT SPECIFIC TERMS
The use of any Product under the Services is optional. However, if You elect to utilise a specific Product, You hereby accept and agree to the terms applicable to that Product and Stitch shall provide the Products to You in accordance with the terms specific to each Product, as set out below. The terms below will not apply to You to the extent that you have not selected to utilise a specific Product.
26. Third Party Payment Provider
26.1. Stitch is registered as a TPPP with its Sponsoring Bank and PASA, meaning that Stitch is authorised to receive funds from or on behalf of You into its own bank account and thereafter process a Transaction on behalf of You.
26.2. You hereby appoints Stitch to act in its capacity as a TPPP in relation to the Products you have selected to use. For the avoidance of any doubt, the Product specific terms below apply to your use of the Service to the extent that You have selected to use the Product.
27. CARD
27.1. Stitch shall provide access to Stitch’s infrastructure which will entail the collection of payments from Clients via Card (“Card Services”). “Card” means any valid credit or debit card supported by a Payment Scheme.
27.2. Access to and provision of the Card Services product is subject to the Payment Scheme Rules, Applicable Laws and the terms and conditions imposed by the banks and third party service provider(s).
27.3. Stitch is not a party to any Transactions between You and the Client and does not have any control over the Clients’ conduct.
27.4. You shall bear the risk of transacting with the Client (including where payments are made by Clients to unintended recipients or payments reflect the incorrect amounts due to the input of incorrect information).
27.5. Subject to clause 27.6, You understands and agrees that Stitch shall operate in the flow-of-funds and receive payments on behalf of You directly into its own bank account. Payments shall flow from the Client to You, via Stitch's bank account.
27.6. You agree that:
27.6.1. PASA, Mastercard and Visa impose annual Transaction volume thresholds on merchants generally (“Threshold”);
27.6.2. Stitch and/or its Sponsoring Bank shall monitor Your Transaction volume in order to determine if You exceeds the Threshold;
27.6.3. if You are processing annual Transaction volumes greater than the Threshold:
27.6.3.1. You shall, as soon as reasonably possible, enter into an agreement directly with an acquiring bank for the opening of its own acquiring account. Stitch shall assist in facilitating the opening of such account with the acquiring bank;
27.6.3.2. Stitch shall, with effect from the date that You enter into an agreement with an acquiring bank as set out in clause 27.6.3.1:
27.6.3.2.1. operate and be deemed to operate out of the flow-of-funds in respect of the Card Services for You; and
27.6.3.2.2. provide the Card Services to You in its capacity as a System Operator.
27.7. If You do not enter into an agreement directly with an acquiring bank in accordance with clause 27.6.3, Stitch shall be entitled, at its sole discretion, to suspend and/or terminate the Card Services.
27.8. Your Obligations
27.8.1. You understand and agree that the Card Services are subject to Payment Scheme Rules, Applicable Laws and the terms and conditions imposed by the banks and third party service providers. You agree and undertake:
27.8.1.1. to comply with the Payment Scheme Rules to the extent required as a merchant;
27.8.1.2. not to engage in any conduct prohibited by the Payment Scheme Rules when accepting Card payments.
27.8.2. If You are non-compliant with or violates any of the regulatory requirements or Applicable Laws, including but not limited to Payment Scheme Rules, then You will be liable for the penalty fees and/or losses incurred by Stitch associated with being non-compliant or in violation thereof. To the maximum extent permitted by Applicable Law, You hereby indemnify and hold Stitch harmless against all liabilities, costs, expenses, damages and losses of whatsoever nature and howsoever described (including but not limited to any direct, indirect and consequential losses) that Stitch may suffer or incur as a result of You being non-compliant or violating any of the regulatory requirements, Applicable Laws or Payment Scheme Rules.
27.8.3. You shall safely secure all information and documentation in respect of each Transaction, including the receipt for a minimum period of 3 (three) years from the date of the Transaction, or as provided for in terms of Applicable Law and the Payment Scheme Rules (whichever is the longest).
27.8.4. You shall take due care to ensure You do not accept payments You suspect to be fraudulent or invalid payments and shall put in place appropriate security measures to monitor, control and prevent fraud, and shall comply with regulatory and Payment Scheme Rules requirements;
27.8.5. You shall also promptly notify Stitch of any security breach, misuse, irregularity, suspected fraudulent transaction or suspicious activities that may be connected with attempts to commit fraud or other illegal activity and the corrective action that You have taken.
27.9. Securing Card Data
27.9.1. Stitch is Payment Card Industry (“PCI”) compliant and as such, Stitch is responsible for the security and protection of cardholder data (“CHD”) that Stitch collects and stores. Accordingly, Stitch implement access control measures, security protocols and standards, including the use of encryption and firewall technologies, to ensure that CHD is kept safe and secure on our servers in compliance with the PCI DSS Requirements. Stitch also implements periodic security updates to ensure that our security infrastructures are in compliance with reasonable industry standards.
27.9.2. You must abide by and ensure that all equipment and software You uses in connection with Card Services and the storage and/or processing of CDH complies with, any payment card industry or payment application data security standards of any Payment Scheme as updated from time to time.
27.10. General
27.10.1. Stitch is the payment processor for Transactions between You and the Client and only processes payments in accordance with instructions from You. Stitch is not a party to the agreement or Transaction between the Client and You.
27.10.2. Should a Client raise a dispute over a Transaction which has been processed and settled to You, Stitch shall provide all reasonable assistance and information which may requested by You, Your bank, or Stitch's Sponsoring Bank in order to assist You with resolving the dispute.
27.10.3. You shall be liable for any chargebacks, reversals, refunds or repayments and Stitch shall have no obligation or liability in respect of any chargebacks, reversals, refunds or repayments.
27.10.4. You may only process payments when authorised to do so by your Client. Stitch will only process Transactions that have been authorised by the applicable Payment Scheme or card issuer. Stitch does not guarantee or assume any liability for transactions authorised and completed that are later reversed or charged back. You are solely responsible for all reversed or charged back transactions and any related fees, regardless of the reason for, or timing of, the reversal or chargeback. Stitch may add or remove one or more payment types or Payment Schemes at any time. If We do so, We will use reasonable efforts to give you prior notice of the removal.
27.10.5. You will be notified of all charged back transactions and will be provided guidance by Stitch on how to dispute these chargebacks in accordance with our partnering banks processes as well as Payment Scheme requirements. Stitch will endeavour to assist you in the chargebacks dispute process. Stitch does not guarantee that the evidence provided by You to dispute a chargeback will result in winning a chargeback and Stitch will not be held liable for any chargeback related fee’s and/or losses.
27.10.6. These T&Cs do not give rise to any contractual relationship between the Client and Stitch, nor is Stitch obliged to engage with any Client pursuant to these T&Cs nor to become party to any dispute between You and a Client.
27.10.7. Stitch may withhold Transaction proceeds received to the extent required to complete any ongoing investigation or to resolve any ongoing dispute or if required by Applicable Law, a Sponsoring Bank, or by court order or otherwise requested by any regulator having authority in terms of Applicable Law.
28. CAPITEC PAY
28.1. Stitch provides You access to Capitec Pay, an open payment initiation API introduced by Capitec to process payments (“Capitec API”). The Capitec Pay solution is a product created, developed and operated by Capitec, allowing Clients with a Capitec Bank Limited (“Capitec”) bank account to securely transact online, via the Capitec API, with You.
28.2. Stitch reserves the right to update the Capitec Pay Product from time to time to effectively manage risks, or as required by Capitec. Stitch reserves the right to update these Capitec Pay terms, as set out in this clause 28, on written notice to You.
28.3. Risk Mitigation
28.3.1. Capitec has identified certain industries and types of businesses as being higher risk. Capitec has identified the following industries as being high risk: (i) micro-lenders, (ii) crypto asset traders/platforms, (iii) dealers in foreign exchange; (iv) ‘digital store of value’ (including remittances, mobile money, e-wallets and e-money) and (v) gambling. For such categories of merchants, Capitec requires certain risk mitigations and additional due diligence measures to apply to these, at its sole discretion. Consequently, the onboarding and activating a high-risk merchant by Stitch requires due care and special oversight by Capitec.
28.3.2. If You recognizes that You falls under the high-risk categories established by Capitec above, You:
28.3.2.1. shall verify the ID of a Client when opening an account or onboarding the Client with a mechanism accepted by Capitec for verification purposes;
28.3.2.2. shall only use a verified ID as the proxy identifier for payment initiation, which proxy identifier must be non-editable in accordance with Capitec's requirements in the event of Capitec grants written consent for Stitch to use the account number in the verified ID flow for high-risk merchants the account number must be verified with Capitec using an Account Verification Service i.e. AVS transaction;
28.3.2.3. shall provide proof of incorporation in South Africa (i.e. CIPC registration). High-risk Merchants who are not registered entities in South Africa, are automatically disqualified from using Capitec Pay, irrespective of whether the end settlement from You is to another South African bank account;
28.3.2.4. may not be liquidated, de-registered, or in the process thereof;
28.3.2.5. may only credit the account of the paying Client with funds received via a Capitec Pay payment. No payments to third party accounts will be permitted, i.e. You must check that the accountholder and the Client making the payment matches; and
28.3.2.6. may only credit the Capitec bank account of the paying Client if/when account payouts (i.e. winnings, refunds) are performed, i.e. You must check that the accountholder and the Client requesting payout matches.
28.3.3. If You:
28.3.3.1. offer loans to Clients, then You must be a registered as a credit provider;
28.3.3.2. provide services in foreign exchange, then You must be registered as an authorised dealer;
28.3.3.3. are a crypto asset service provider, then You must be registered as an accountable institution, in terms of FICA, and have a formal Risk Management and Compliance Programme ("RMCP”), approved by You senior management. Stitch may request a copy of such RMCP from You on reasonable notice;
28.3.3.4. provide gambling and/or betting services, then You must be registered as a bookmaker by the Gambling and Racing Board, of the applicable province(s);
28.3.3.5. offer store of value services, for purpose of wallets (including vouchers, mobile money and e-money) then You must be sponsored by a sponsoring bank for taking and holding deposits for a third party. These store of value merchants must supply a bank issued account confirmation letter confirming the account where value is stored to Stitch.
28.3.4. You shall be responsible for ensuring its compliance with risk mitigation requirements set out above and You indemnify Stitch in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect and consequential losses) that Stitch may suffer or incur as a result of a Merchant’s non-compliance herewith.
28.3.5. You shall maintain all permits, licenses and consents as may be required under Applicable Law for You to conduct Your business and shall immediately notify Stitch should a permit, license or consent be revoked or lapsed. You indemnify Stitch in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect and consequential losses) that Stitch may suffer or incur as a result of Your non-compliance herewith.
28.4. Merchant Transaction Disputes
28.4.1. For the purposes of these T&Cs, a “Merchant Transaction Dispute” refers to a query or complaint from a customer (who has a Capitec bank account i.e. a Client) to Capitec, relating to or resulting from a Capitec API initiated payment performed from their bank account or their underlying transaction with You. The potential disputes that could occur in relation to Clients include:
28.4.1.1. where a Client requests a reversal or change in amount of a payment (“Transaction Validity” or “Amount Dispute”); or
28.4.1.2. in the case of reported, alleged, or suspected fraud (“Fraud-related Dispute”).
28.4.2. In relation to Transaction Validity / Amount Dispute:
28.4.2.1. Stitch will notify You promptly of any disputes it has received from Capitec and request certain information and supporting documentation in relation to the underlying transaction;
28.4.2.2. Once notified by Stitch, You must apply reasonable efforts to place the underlying transaction with the Client on hold to avoid unnecessary loss or damage;
28.4.2.3. You must, within 1 Business Day of the request for information and documentation, provide Stitch with the requested information and supporting documents and Stitch will collate information and any relevant supporting documents;
28.4.2.4. Capitec will then assess the information and/or supporting documents received from Stitch and then advise Stitch of its findings and propose recommended action for resolving the dispute;
28.4.2.5. In the event that a full or partial refund is recommended by Capitec, You will inform Stitch whether You approve the refund (e.g. where order was cancelled, order was only partially fulfilled, customer paid incorrect amount, etc.) or provide further reason to prove that the funds should not be refunded to the customer;
28.4.3. If a refund is approved by You, Stitch will process the refund payment to the Client.
28.4.4. In relation to a Fraud-related Dispute, which arises when a Client or a third party reports a Transaction as fraud or suspected fraud or when Capitec identifies a Transaction as suspicious:
28.4.4.1. Stitch will promptly notify You of any disputes it has received from Capitec and request certain information and supporting documentation in relation to the underlying Transaction;
28.4.4.2. Once notified by Stitch, You must apply reasonable efforts to place the underlying Transaction with the Client on hold to avoid unnecessary loss or damage as soon as possible;
28.4.4.3. You must, within 1 Business Day of the request for information and documentation, provide Stitch with the requested information and supporting documents and Stitch will collate information and any relevant supporting documents;
28.4.4.4. In the event that Capitec requests further information or supporting documents, Stitch will collate such information in collaboration with You and provide these to Capitec, as requested. You will provide all reasonable assistance in relation to further requests for information or supporting documents and will provide the information and supporting documents within 1 Business Day of the request;
28.4.4.5. “Confirmed Fraud” for the purposes of these T&Cs means a Transaction that was reported by a Client or a third party as fraud or where transaction monitoring systems identified a Transaction as suspicious, which was subsequently investigated by the relevant Capitec department (department responsible for fraud prevention and forensic investigations) and found to be, on a balance of probability, a fraudulent Transaction that was not voluntarily or intentionally performed by You;
28.4.4.6. Capitec will assess the information provided and all evidence discovered during its investigation process will compile an incident report and determined whether or not the incident amounts to Confirmed Fraud that is reversable in terms of clause 28.4.5 below;
28.4.4.7. In the event that funds were placed on hold pending the fraud investigation, Capitec will reinstate the relevant party (i.e. Stitch or Client) in accordance with the outcome of the fraud investigation.
28.4.4.8. In the event that funds were paid to Stitch but following the fraud investigation it becomes reversable in terms of clause 28.4.5 below, Capitec will follow the relevant industry processes for repatriating funds;
28.4.4.9. In the event that funds were paid to Stitch and the investigation did not find Confirmed Fraud that is reversable in terms of clause 28.4.5 below, no action is required.
28.4.5. Disputed Transaction will only be reversible with Stitch’s consent or in the following exceptional circumstances where there is both Confirmed Fraud as well as wrong-doing on the part of the Client and/or You:
28.4.5.1. The investigation of a Transaction dispute finds that there was Confirmed Fraud and Stitch and/or You was able to stop the underlying transaction to prevent loss or damage to Stitch, You and the Client, as described in clauses 28.4.2.2 and 28.4.4.2 above; or
28.4.5.2. The investigation of a Transaction dispute finds that there was Confirmed Fraud resulting from gross negligence or malicious intent on the part of Stitch and/or You, including any acts of employees or contractors; in which cases the Parties agree that the Transaction shall be reversed in order to put the Client back in the position they were in prior to performing the Transaction. For avoidance of doubt, it is further recorded that all other instances of Confirmed Fraud that does not fall within the ambit of clauses.
28.4.6. You undertakes to co-operate with Stitch in relation to the dispute procedures provided for in clauses 28.4.2 and 28.4.4 of these T&Cs.
29. BUY-NOW-PAY-LATER
29.1. For the purpose of clause 29 the following words shall, unless otherwise stated or inconsistent with the context in which they appear, bear the following meanings:
29.1.1. “Approved Client” means a Client who is referred to Happy Pay by You, and who concludes a Finance Agreement with Happy Pay to purchase a Product;
29.1.2. “Buy-Now-Pay-Later” means the provision of Finance by Happy Pay, which is distributed by Stitch to You under these T&Cs, which allows the Client to buy the Goods and/or Services by way of a credit arrangement;
29.1.3. “Finance” refers to the provision of finance by Happy Pay to Approved Clients under a Finance Agreement and “Financing” shall have the corresponding meaning;
29.1.4. “Finance Agreement” means a written agreement concluded between the Approved Clients and Happy Pay, setting out the rights and obligations of each party regarding Finance granted by Happy Pay to such Clients;
29.1.5. “Goods and/or Services” means the goods and/or services offered by You to Clients from time to time, through the Your platforms;
29.1.6. “Happy Pay” means Happy Pay Proprietary Limited, a company registered under the laws of South Africa, under registration number 2021/925940/07;
29.1.7. “Transaction Amount” means the price of the Goods and/or Services plus the Service Fees;
29.2. Buy-Now-Pay-Later is a product provided by Happy Pay. Stitch is the authorised distributor of Buy-Now-Pay-Later.
29.3. By agreeing to use Buy-Now-Pay-Later as a payment processing method, you acknowledge and agree that:
29.3.1. Stitch has entered into an agreement with Happy Pay to provide Buy-Now-Pay-Later to You and other merchants and Stitch is the authorised distributor of Buy-Now-Pay-Later;
29.3.2. no agreement or contractual arrangement exists between You and Happy Pay;
29.3.3. Stitch will facilitate all communication between You and Happy Pay;
29.3.4. if a Client elects to purchase any Goods and/or Services by way of Buy-Now-Pay-Later, Happy Pay will provide Financing to such Approved Clients, on the terms and subject to the conditions set forth in a Finance Agreement to be concluded between Happy Pay and the Approved Client;
29.3.5. no agreement or contractual arrangement exists between Stitch and the Approved Client.
29.4. Financing Process
29.4.1. If a Client elects to purchase any Goods and/or Services by way of Buy-Now-Pay-Later, the Client will be required to complete a short application through Happy Pay’s web platform.
29.4.2. Based on the outcome of the credit validation, the Finance can either be approved or declined.
29.4.3. Happy Pay may, in its sole discretion, decide to originate, or decline to originate, any Financing upon any terms or conditions that Happy Pay deems appropriate.
29.5. Upon approval of a Finance application, the Client will be an Approved Client and Stitch will inform You that the Finance has been approved.
29.6. Happy Pay will be the contractual lender and administer and manage the Finance directly with the Approved Client.
29.7. Neither Stitch nor You will be a party to the contractual arrangement between Happy Pay and the Approved Client for the provision of Finance to the Approved Client.