WigWag Terms and Conditions

August 3, 2023

WIGWAG TERMS AND CONDITIONS

DEFINITIONS

In this Agreement, 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 –

Agreement means this Master Payment Processing Agreement;
Business Day means any day which is not a Saturday, Sunday or South African public holiday;
Business Hours means 09h00 to 17h00;

Card means any valid payment card issued under any Card Association operated by Visa or MasterCard or such other card association as may be agreed between the Parties from time to time, as may be amended from time to time;

Card Association means the card schemes, including but not limited to Visa and MasterCard;

Cardholder means the person to whom a Card has been issued;
Card Transaction means only transactions made using valid Cards;
Client means a end-user of the Customer;
Constitution of PASA means the Constitution of the Payments Association of South Africa, as published on PASA’s website and amended from time to time;
Effective Date means the Effective Date as stated in each Order Form;;
End Date means the End Date stated in each Order Form;
FICA means the Financial Intelligence Centre Act 38 of 2001, as amended;
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

NPS Act means the National Payment Systems Act 78 of 1998, as amended;
Party means either us or you as applicable in the context, and “Parties” shall mean both the Company and the Customer;
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;
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;
Personal Information bears the meaning assigned thereto in terms of POPIA; ;
POPIA means the Protection of Personal Information Act 4 of 2013, as amended;
Service Fees means the fees payable by the Customer to the Company for the Services as set out in this agreement;
Services means the services provided by the Company to the Customer which is subject to the terms and conditions of this Agreement;
Software means the Company’s source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services;
Third Party Payment Provider (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;
Transaction means a card payment by an end-user which we ensure is processed and settled to you;
VAT means value-added tax levied in terms of the Value-Added Tax Act 89 of 1991, as amended;
Us,We means Wigwag; and
You means the Customer

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INTRODUCTION

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 end-users via multiple methods.

Wigwag is one of the products that Stitch provides to you.

You wish to use WigWag in order to receive and accept payments from your clients.

By signing up for Wig Wag and accepting these Terms and conditions, you agree to be bound by these terms and conditions and this agreement forms a legal relationship between you and us.

Now therefore the Parties wish to cooperate with each other on the following terms and conditions.

DURATION AND TERMINATION

This Agreement shall commence upon the date you accept it (by electronically or physically indicating acceptance by ticking ) and continues until terminated by either Party.
You may terminate this agreement at any time by providing us with 30 business days notice in writing.
We may terminate this agreement at any time for whatsoever reason by providing you with 14 days written notice.
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, subject to the terms of the agreed Settlement Schedule.

WIGWAG SERVICES

WigWAg provides you with a service that facilitates the processing of card Transactions, based on the instructions received from You.
Wigwag provides transaction and settlement services to you, that allow you to accept and process Cards from Cardholders as a form of payment in exchange for your products and services.
The WigWag payment platform will be made accessible to you to enable you to use the Service and accept payments. We reserve the right to require you to install or update any and all software to continue using the Services.

YOUR OBLIGATIONS

You undertake to:

Use the Services only in the manner expressly authorised by the Company in this Agreement, as well as in accordance with all applicable laws and regulations which govern the provision of the Services
Maintain the fraud and dispute rates acceptable under the rules of the applicable Card Association(s);

Comply with the rules of the applicable Card Association(s);

Only submit Transactions authorized by the Cardholder;

Make clear to your Clients that they are transacting with you prior to, during, and after the Transaction,

Provide the goods and services your clients pay for and keep records of the transactions;

Ensure the Transactions you submit are legal in South Africa;

Be liable for all acts, omissions, Cardholder disputes, and other Cardholder service-related issues raised by your Client and will be solely responsible and financially liable for such matters;

Provide us with all reports and documents or information as may be required in terms of any applicable laws and/or the rules of the applicable Card Association(s);

Respond promptly to inquiries/complaints from your Clients relating to the Services;

Not participate directly or indirectly in any fraudulent activities;

Not engage in activities that causes the Company to repeatedly violate the rules of Mastercard or VISA, or the Constitution of PASA;

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 if the Customer fails to take corrective action.

Enter into a separate contractual agreement directly with an Acquiring Bank as required by the Card Associations, under specific circumstances. In these circumstances,we will provide you with a separate Merchant agreement that you must enter into, with the Acquiring Bank, in order to continue using the Services. Should you fail to enter into that separate agreement, we may have to suspend or terminate Your Merchant Account.

OUR OBLIGATIONS

Provide the Services as described in this agreement to you;

Provide support related to the Services during the operating hours communicated by us to you from time to time; and.

Where applicable, provide you with the necessary infrastructure required for the access to the Services.

ONBOARDING,KNOW YOUR CUSTOMER (KYC) AND KNOW YOUR BUSINESS (KYB)

In order to use the WigWag platform you will have to sign up and complete the customer onboarding process.
Your registration for WigWag represents an offer to do business with us and an application for a Merchant Account to accept Card payments via the links created..

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 the Company’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.

We reserve the right to approve or decline your registration for WigWag. In the event we decline your registration, this Agreement will not take effect.
You agree that it is solely your responsibility 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.
You are also required to maintain records relating to the proof of service and/or product delivery to your Clients. Where a dispute occurs needing resolution, you may be required to provide us with this information.
We reserve the right to review the risk profile of Customers on an on-going basis and take any action in response to said risk ratings.

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.

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 the Customer, its Directors, affiliates, ultimate beneficiaries, Merchants (if applicable) (if applicable), Submerchants (if applicable) and authorised users. You will promptly provide any additional information Stitch may require at any time. Stitch reserves the right to deny the provision of services or cease providing the 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 and or discontinue the service.

CARD ASSOCIATION RULES

Each Card Association (Visa, MasterCard and any other applicable card association) has its own rules, regulations and guidelines. The Customer is required to comply with all rules of the applicable Card Association(s). You are required to review and keep up to date with the current rules as published by Mastercard, Visa and other applicable Card Associations. The Card Schemes reserve the right to amend their Scheme Rules from time to time.

FRAUDULENT TRANSACTIONS

The onus is on you to implement fraud prevention measures and to establish processes and controls aimed at combating, preventing and detecting fraud when processing Transactions and to ensure that it is adequately protected against fraudulent activities.
The party responsible for a fraudulent or unauthorized or incorrectly issued electronic funds transfer credit payment instruction must bear the risk. Stolen example.
The risk and liability of fraudulent Transactions lies with the Customer.
By entering into this Agreement, you undertake to timeously cooperate with the Company in furnishing all information and documentation requested by the Company to enable the Company to investigate fraudulent Transactions.
The Customer must not honor Transactions or accept Cards that you know or suspect to be fraudulent, or that have not been authorized by your customer.
If a fraudulent Transaction or a suspected fraudulent Transaction occurs, or if the Company suspects the Transaction is for any reason suspicious,disputes,chargebacks, an invalid Transaction, erroneous or illegal; the Company may:

withhold or delay processing of the Transaction;
recover from the Customer by debiting the Customer's Account, notwithstanding that such account may be held at another bank, or applying set-off or net settle amounts due to the Customer with the value of any fraudulent Transactions and losses that the Company incurred or suffered, as a result of or in connection with any fraudulent Transaction; invalid Transaction; or any erroneous or illegal Transactions processed by the Customer. The Customer indemnifies the Company in respect of all losses in this regard;
place a hold on the Customer's Account;
suspend the Services; and/or
terminate the Agreement immediately without prior notice and without prejudice to any other rights in law.

The Customer shall be responsible and liable for any and all liability, losses or damages that may be suffered by the Customer, the Company or a third party as a result of the direct or indirect fraudulent actions of the Customer or its personnel.
Without prejudice to the Parties' further obligations under this Agreement, 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 or the services provided by the Parties to their respective Clients and will take such reasonable steps as may be required to stop and prevent any such abuse.
In the case of any alleged or proven occurrence of fraud, money laundering, terrorist financing, corruption or any other criminal activity or illegal use or abuse of the Services (an "Incident"), the Customer shall, without prejudice to its other obligations under this agreement use its best endeavors to prevent any future such Incidents, including performing such steps and activities that the Company may prescribe in its sole discretion.

INTELLECTUAL PROPERTY

Unless otherwise stated herein, the Parties agree and acknowledge that the Company and the Customer shall maintain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “IP Rights”). Any rights granted by the Company to the Customer to use the Services under this Agreements does not convey any additional rights in the Services or Software, or in any IP Rights associated therewith. The Company shall exclusively own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation of the services or support, and (c) all IP Rights related to any of the foregoing. No rights or licenses are granted except as expressly set forth herein.
The Company grants the Customer a personal, limited, non-exclusive, revocable and non-transferable license, without the right to sublicense, to access and use the Services for the purpose of processing payments.
The Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the Software; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by the Company or authorized within the Services in writing), or remove any proprietary notices or labels.
Except as expressly provided in this Agreement, the Parties acknowledge and agree that they do not intend any joint development activities under this Agreement. Nothing in this Agreement shall operate to assign or transfer any IP Rights from the Company to the Customer, or from the Customer to the Company.

PRIVACY AND DATA PROTECTION

We agree and undertake to comply fully with all applicable privacy and data protection laws and regulations, including POPIA to the extent that Personal Information is disclosed, shared or otherwise made available by you to us, as a result of concluding this Agreement, and exercising your rights and performing its obligations under this Agreement. In addition, the Parties warrant and represent that all Personal Information that is processed, collected, retained and transferred under this Agreement will be done in line with their respective obligations as contained in POPIA.
We respect your personal information kindly refer to our Privacy Policy for more details on how we collect, use and store your personal information

FEES

Fees are calculated by way of funds that are net settled,the fees owed to us will be deducted from the funds, prior to being paid out or settled to you.

Fees as indicated on our website…
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.
We will have the right to change the fees from time to time.We will inform you of such changes by providing you with 30 days notice.

SUSPENSION OF SERVICES

We will have the right to immediately suspend the Services in whole or in part by way of a written notice thereto:

if it has reason to believe, which reasons shall be shared with the Customer on request, that the Service is being used for unlawful purposes, or an actual or threatened security breach, money laundering or fraud impacting the Services;
if the Customer or a person related to, acting on behalf of, or involved with such Customer appears or is included on any sanction list as prescribed by law; or is linked to any of the restricted countries on any sanction list prescribed by law or the government agencies of such restricted countries;
if it has reason to believe, which reasons shall be shared with the Customer on request, that the Customer or any person related to, acting on behalf of, or involved with such Customer has contravened any anti-corruption and or anti-money laundering laws (locally or internationally), or is involved in terrorist activities;
if it has reason to believe, which reasons shall be shared with the Customer on request, that continued involvement with the Customer will expose it to reputational and/or market conduct risk; or
if it is required to do so pursuant to an instruction by a Payment Participant or Relevant Authority, or if it no longer receives the requisite support required to provide the Services from a Payment Participant.

The Company will notify the Customer of any such suspension not later than on the date of such suspension specifying the reason and duration thereof. The Company 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, the Company shall be entitled to terminate the Agreement..

WARRANTY AND DISCLAIMER

The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Company gives no warranty or representation that the Services will be uninterrupted, accessible, timely, wholly free from defects, errors and bugs; nor does it make any warranty as to the results that may be obtained from use of the Services. The Company 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. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company, Payment Participants or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing of any scheduled disruption to the Services. Except as expressly set forth in this clause, the Services and implementation Services are provided “as is”, "as available" and the Company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
The Customer hereby agrees to indemnify and hold harmless the Company 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 alleged violation of the foregoing or otherwise from the Customer’s use of the Services. The Company reserves the right to monitor the Customer’s use of the Services to ensure compliance with the terms of this Agreement. The Company may, in its sole discretion, prohibit any use of the Services by the Customer it reasonably believes to be in violation of the terms of this Agreement, or any applicable laws.

LIMITATION OF LIABILITY

To the maximum extent permitted by applicable law, we 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 –

Your use of, inability to use, or unavailability of the Services;
hacking, tampering, or other unauthorised access or use of the Services;
errors, mistakes, or inaccuracies of the Services;
Fraudulent transactions.

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.
We will not be liable for any fraud by the Customers users in connection with the Services.

FORCE MAJEURE

Neither Party shall be liable to the other for non-performance (either in whole or in part) or delay in performance of their respective obligations if caused by Force Majeure. While an event of Force Majeure subsists, the Party so affected shall be relieved of liability to the other for failure to perform its obligations hereunder and such obligations shall be suspended until such time as performance can be resumed (provided that the relevant affected Party could not have prevented the failure or delay by taking reasonable precautions or measures).
Either Party shall be entitled to terminate this Agreement on not less than 30 (thirty) days written notice to the other Party if an event of Force Majeure persists for more than 14 (fourteen) consecutive days.

Dispute Resolution

The Parties agree that the first recourse to resolving any dispute arising out of or in connection with this Agreement, 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. 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.
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 irrevocably submit to the jurisdiction of a division of the High Court of the Republic of South Africa.

GENERAL

The Parties acknowledge and agree that this Agreement and its applicable annexures and addendum evidence the entire agreement and understanding between them with respect to the transactions contemplated therein. This Agreement replaces and supersedes all prior agreements (oral or written) between the Parties.
A failure or delay by either Party to enforce any provision of or exercise any right under this Agreement will not be construed to be a waiver. No waiver by a Party will be effective unless expressly made in writing.
If any provision of this Agreement 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 this Agreement. The Agreement will subsequently be construed as if the unenforceable and/or invalid provision had not formed part of it.
This Agreement is not assignable, transferable or sublicensable by the Customer except with the Company’s prior written consent, which consent shall not be unreasonably withheld. The Company may transfer and assign any of its rights and obligations under this Agreement without consent.
No Party will be entitled to use the other’s Marks in any advertising, marketing or merchandising materials and/or initiatives without prior written approval from the other.
Nothing in this Agreement 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.
The Customer represents and warrants that it has obtained all necessary legal and regulatory approvals required for it to make use of and/or benefit from the Services. The Customer further represents and warrants that it will make use of the Services in the manner provided in this Agreement and in compliance with all applicable laws. Violation of this clause constitutes a material breach entitling the Company to terminate the Agreement with immediate effect.
This Agreement 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.
You represent and warrant that you are a Director and have the right, power, and authority to enter into this Agreement, to become a Party hereto and to perform the obligations hereunder. This Agreement is a legal, valid and binding obligation on you and, enforceable against you in accordance with its terms.

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