Collexia Payments Product User (Merchant) Agreement Version 4.00
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PAYMENTS PRODUCT USER (MERCHANT)
AGREEMENT
Entered into by and between:
Collexia (Pty) Ltd
a company duly incorporated under the laws of the Republic of Namibia, having its
main place of business at Windhoek, Namibia,
with registration number 2016/0422;
(“Collexia”)
And
The User
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1. PARTIES
1.1. Collexia (Pty) Ltd,
Registration number: 2016/0422
Hereinafter referred to as “Collexia”.
1.2. The party whose details appear on the addenda hereto, hereinafter referred
to as “the User”.
2. DEFINITIONS
2.1 In this Agreement, unless inconsistent with or otherwise indicated by the
context, the following words and expressions shall bear the meanings
assigned to them hereunder and cognate expressions shall bear
corresponding meanings:
2.1.1 “API” Shall mean “Application Programming Interface”
and refers to a set of routines, protocols, and tools
for building software applications. The API specifies
how the software components, between the
Collexia Payments Product and the User’s
administration software should interact (whether it
be the User’s own administration software or third
party administration software).
2.1.2 “Intellectual
Property Rights”
Shall mean all present and future rights in the
Collexia Payments Product (including the hardware,
and software, and other components of the
information technology system), whichever is
applicable in the circumstances, and other rights
which may in future be based thereon, including but
not limited to copyright.
2.1.3 “Licence” Shall mean the right to utilize the Collexia Payments
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Products, subject to the terms and conditions of the
licence as provided for herein.
2.1.4 "Clearing Rules" Shall mean the clearing rules and procedures
contained in and referred to in the Collexia Product
Manual applicable to the specific payment stream
selected by the User and such further or other
clearing rules and procedures as may, after initial
publication, be determined by either PAN, Collexia,
the Acquiring Bank or the PSF as provided for herein;
2.1.5 "NISS” Shall mean the Namibia Inter-bank Settlement
System (NISS) is a Real Time Gross Settlement System
(RTGS), which processes and settles transaction in
real time, transaction by transactions basis (gross
basis). It settles high value and time-sensitive
payment transactions under the principles of finality
and irrevocability.
2.1.6 A “Account holder” Shall mean the person whose account is to be
debited pursuant to the issue of a mandate by such
account holder generally referred to as a member
of the public or consumer;
2.1.7 “Acquiring Bank” Shall mean Bank Windhoek Limited for the time
being, or as otherwise appointed by Collexia in its
sole discretion;
2.1.8 “Associated Parties” Shall mean:
a) all shareholders, directors, members, partners,
trustees, employees, agents, sub-contractors,
strategic alliance partners and/or representatives
of a party; and
b) all entities in which the party holds an interest; and
any entity holding an interest in the party;
2.1.9 “Bank of Namibia
Act”
Shall mean the Bank of Namibia Act, 1997 (Act No.
15 of 1997);
2.1.10 “BoN” Shall mean the Bank of Namibia xxxxxxxx
2.1.11 “Clear” or Shall mean the exchange of payment instructions
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“Clearing” between system participants with a view to
reconciling and confirming payment instructions;
2.1.12 “Collexia Payments
Product”
Shall mean the Collexia soluction including the
service offering or payments solution, which includes
hardware, software, and other components of the
information technology system, supplied by Collexia
to the User;
2.1.13 “Collexia” Shall mean Collexia (Pty) Ltd with registration
Number 2016/0422.
2.1.14 “Confidential
information”
Shall mean:
All technical, trade, commercial, financial and
management information and secrets of the
Disclosing Party’s business, including but not limited
to:
a) the know-how;
b) any information in respect of formulae,
statistics, processes, systems, business methods
and techniques used by The Disclosing Party in
the conduct of the business;
c) any information contained in any proposal
(whether accepted or pursued or not),
business or other model, computer network
and/or software architecture design,
functional specification (including the release
and detailed versions thereof), quotation or
tender (whether accepted or not), test case
document, pricing schedule or other
document prepared by the Disclosing Party,
whether furnished to the Receiving Party or
not;
d) all source code, computer software, software
concepts, specifications and internal control
systems pertaining to the Business;
e) all trade secrets, inventions, technical data,
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user or consumer data, research and
development data, profiles, designs,
formulations and all other information
belonging to or in the possession of the
Disclosing Party and used by it in the Business;
f) knowledge of details and particulars in regards
to the suppliers, customers and business
associates of the Business;
g) the Disclosing Party’s methods of conducting
the Business and related matters;
h) any other information which relates to the
Business which is not readily available in the
normal course of business to competitors of the
Disclosing Party;
i) all other information, documentation, material or
ideas of the Disclosing Party relating to the
Business, in whatever form and contained on
whatever media, whether subject to or protected
by common law or statutory laws relating to
copyright, patent, trade mark (registered or
unregistered) or otherwise;
2.1.15 “Disclosing Party” Shall mean the party who is disclosing the
Confidential Information;
2.1.16 “Entity” Shall mean any association, business, the Disclosing
Party, company, concern, enterprise, firm,
partnership, person, trust, undertaking, voluntary
association, or other juristic entity;
2.1.17 “Know-how” Shall mean all technical and other knowledge and
information, techniques, programs, technical and
design data, procedures and expertise of the
Disclosing Party in relation to the Business, which
know-how is confidential and is now owned by the
Receiving Party or which is subsequently developed
or acquired by the Receiving Party and including
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any modifications, enhancements, or other
improvements thereto.
2.1.18 “Mandate” Shall mean information delivered in paper format,
voice recorded format or otherwise furnished by the
account holder such as through the swiping of a
card and entering of a PIN, which information is
capable of being used as authority to validate the
debit against the bank account of the account
holder;
2.1.19 “Master User” Shall mean an employee of the User, identified by
the User who is given the responsibility of setting up
employees as users in the Collexia Payments
Product, assigning user rights, functionalities and
responsibilities for employees of the User, maintaining
the users which includes the ability to revoke
assigned user rights of employees;
2.1.20 “Namclear” Shall mean the cooperative venture between the
commercial Namibian-based banks, being a
clearing house who provides for the local clearing of
interbank transactions and which, together with the
Namclear PCH (Payments Clearing House) systems,
are regarded as a critical business function which is
operated by Namclear as an authorised Payment
System Operator (PSO), as a Settlement and
Clearing Agent of the Namibian banks;
2.1.21 “NPS” Shal mean the National Payments System of
Namibia as a whole, and includes any payment
system, settlement system, clearing system and
payment system arrangement used in the process of
effecting payment between payers and
beneficiaries;
2.1.22 “PAN” Shall mean the Payment Association of Namibia
being the Payment System Management Body in
Namibia, established by the Central Bank;
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2.1.23 “Party” and “Parties” Shall mean the parties to this agreement as set out in
the cover page;
2.1.24 “PISP” Shall mean a Payment Intermediation Service
Provider, a service provider who accepts money of
payment instructions as a regular feature of their
business, from any other person for the purpose of
making payments on behalf of that person to a third
person to whom that payment is due.
2.1.25 “Product Manual” Shall mean Collexia supplied user manual either in
hard copy or published in the Collexia Payments
Product; which describes the functions supported in
the product including the applicable business and
Clearing Rules per product selected and where the
Product Manual supplied or published forms an
integral part of this Agreement and where the
Product Manual amplifies all such arrangements
between the parties in accordance with the terms
hereof. The Product Manual is copyright protected
and forms part of the confidential information as
described herein;
2.1.26 “Product Schedule" Shall mean the schedule specifically describing
quantities required, terms, conditions, payment of
deposits, fees, rental of equipment, installation
certificates confirming quantities received and
installed, depending on the product selection.
2.1.27 “PSF” Shall mean the Payment Stakeholder Forum a non-
bank forum established by PAN to consult and act
on payment system related issues;
2.1.28 “Receiving Party” Shall mean the party who is in receipt of Confidential
Information.
2.1.29 “Settlement” Shall mean, for the purpose of this agreement, the
automated electronic transfer of successfully
collected debits on behalf of Users by Mercantile
Bank Limited;
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2.1.30 “the Business Rules” Shall mean the business rules and procedures
contained in and referred to in the Collexia Product
Manual applicable to the specific payment stream
selected by the User. Additional rules and
procedures may, after initial publication, to be
determined by either PAN, Collexia, the Acquiring
Bank, PSF as provided for herein;
2.1.31 “this Agreement” Shall mean the contractual relationship entered into
between the parties based on the terms and
conditions contained herein, the initial application
form or questionnaire completed and submitted,
schedules hereto and including the Product Manuals
setting out the applicable business and Clearing
Rules;
2.1.32 “User” Shall mean the Entity whose particulars are recorded
in the addenda hereto.
3. INTERPRETATION
3.1 Unless the context indicates a contrary intention, any reference to:
3.1.1 any gender shall include a reference to the other genders, and
3.1.2 the singular shall include the plural and vice versa, and
3.1.3 a natural person shall include a reference to an Entity, whether
incorporated or unincorporated and vice versa.
3.2 Paragraph headings are inserted for reference purposes only, and shall not
modify or vary the interpretation of this Agreement, or any paragraph or
provision thereof, nor shall same be used in interpreting or construing the
tenor or import of this Agreement, or any provision thereof.
3.3 Words and phrases defined in any legislation relevant to the Business and the
transactions herein set out, shall bear the meanings ascribed thereto when
referred to in this Agreement.
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3.4 Where the consent of any Party is required for any purpose, same shall, unless
the context indicates otherwise:
3.4.1 refer to the prior written consent of such Party ("the grantor"); and
3.4.2 the consent shall not be unreasonably withheld; and
3.4.3 in the event of the refusal or withholding of such consent, the onus shall
be on the Party seeking same ("the grantee") to prove that the refusal
or withholding of the consent was unreasonable in all the
circumstances; and
3.4.4 the grantee shall not be entitled to disregard such withholding of
consent until it has satisfied such onus of proof of unreasonableness;
and
3.4.5 reference to "consent" shall be deemed to include a reference to any
consent, approval or permission which may be required of the grantor.
3.5 Where in any definition rights and/or obligations are conferred and/or
imposed on any party, same shall be regarded and effect given thereto as a
substantive provision of this Agreement.
3.6 For the sake of convenience a reference to any "provision" or "provisions" shall
be a reference to any provision, term, condition, obligation, right, covenant
and undertaking in this Agreement.
3.7 The annexures, addenda and documents attached hereto (“the addenda”)
form an integral part of this Agreement as if specifically incorporated herein.
In the event of any conflict between the main part of this Agreement and the
addenda, preference shall be given to the main part of this Agreement and
the provisions shall be construed and interpreted in such a way as to give
effect to the main part of this Agreement.
3.8 Where any reference is made to a number of days for any purpose, the
calculation shall exclude the first day, and shall include the last day; and
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3.8.1 any reference to a number of days shall be a reference to a
continuous period, and shall not be deemed to be a reference to
Business Days unless the context indicates otherwise; and
3.8.2 any reference to months shall be a reference to calendar months as
a continuous period.
3.9 Where there is a conflict between any amounts referred to in numerals and
words, the amount referred to in words shall prevail.
3.10 The contra preferentum rule whereby this Agreement shall be construed
against the Party, at whose instance same has been drawn, or against the
Party in whose favour a provision is drafted, is expressly excluded.
3.11 Where any word, phrase or expression is followed by the words “and”, and
“and/or” or “or”, or “including”, the use of such words shall not be deemed to
restrict the meaning of the relevant preceding word, phrase or expression.
3.12 The eiusdem generis rule shall not apply, and accordingly where any provision
of this Agreement is followed by a specific example or reference is made to
any specific matter, such reference shall not affect the generality of the
foregoing provision.
4. PREAMBLE
4.1. Whereas Collexia is authorised by PAN as a PISP, who provides payments
solutions by way of information technology systems, which processes and
Clears electronic payments within the NPS; and
4.2. Whereas the User is desirous to make use of the Collexia Payments Product;
Now therefore the Parties agree as follows:
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5. RECORDALS
5.1. The purpose of this Agreement is for Collexia to grant a licence to the User to
access and use the Collexia Payments Product (the “Purpose”).
6. INTENTION TO CONCLUDE FURTHER AGREEMENTS (RESOLUTIVE CONDITION)
6.1. Ancillary to this Agreement, the Parties record that the following agreements
are to be effected, in as much as the execution of such agreements are
required to effectuate this Agreement:
6.1.1. An agreement between the Acquiring Bank and the User in respect of
the specific payment stream; and/or
6.1.2. Agreements with Contractors nominated by Collexia for the purposes
of effecting the provisions of this Agreement, whose products and/or
services are required for the operation of the Collexia Payments
Product.
6.2. The above list is not exhaustive of the agreements which may be required,
and Collexia will inform the User, in writing, prior to the conclusion of this
Agreement, which ancillary agreements will be required to effectuate this
Agreement, such agreements will be deemed as part of the above list, as if
specifically incorporated to this Agreement.
6.3. The Parties record that this clause 5 is a resolutive condition to this Agreement.
In the event that any one or more of the above agreements are required but
not executed, for whatsoever reason and howsoever caused, this Agreement
will be terminated ipso facto as if it never came into force and effect, subject
thereto that Collexia provides the User with 7 (seven) days’ written notice
thereof.
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7. OBLIGATIONS TO PROVIDE AND RECIEVE THE SERVICES
7.1. The User will indicate on the Product Schedule annexed hereto, the specific
products and services which it requires.
7.1.1. The User may from time-to-time update or add additional services by
completing further Product Schedules, which will be deemed part and
parcel to this Agreement, as if specifically incorporated hereto. Such
amendments to the required products and services must be in writing
and signed by both Parties, and the amendments will only take effect
on the dates specified by Collexia.
7.1.2. The User may not cancel any products or services by way of amending
the Product Schedule, unless Collexia agrees thereto in writing. In the
event that the User is desirous to cancel such products and services, it
will be deemed a cancellation of this Agreement, which must be
effected in terms of the provisions hereof, failing which it will be
deemed a breach of this Agreement.
7.2. Provided that debit instruction data captured or uploaded in debit request
files is received by Collexia in compliance with the provisions of this
Agreement, the technical interface specifications supplied, Business Rules,
and Clearing Rules, Collexia will:
7.2.1. accept and forward these debit instructions to Namclear;
7.2.2. depending on the product selection ensure that the selected action
strike date is met;
7.2.3. interrogate the file upload confirmation supplied by Namclear
ensuring that all individual debits submitted to Namclear are
acknowledged by Namclear for onward processing once due;
7.2.4. accept and process response files from Namclear;
7.2.5. disseminate data belonging to the User and either publish such data
or supply such data in the agreed file formats;
a) For greater clarity with regards to the a foregoing, the parties
record that Collexia will provide the data, containing details of
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payments received, to the User, in the agreed file formats, to
enable the User to correctly allocate the payments;
b) Collexia will retain the data records relating to the individual
payments (as opposed to only aggregated data) for a period
of 5 (five) years from the date that the record was created;
7.2.6. in instances where technical processing problems occur on issuing
bank back office platforms, Collexia will act in the best interest of the
User.
7.3. The User accepts full responsibility for and will ensure that the following
obligations are met:
7.3.1. the User will ensure that it is in possession of a valid mandate prior to
submitting any debit order instructions to Collexia;
7.3.2. the User will adhere to the terms of this Agreement, the business rules,
Clearing Rules and standards as prescribed and updated from time
to time;
7.3.3. the User will ensure the operational efficiency and integrity of its own
systems and personnel interfacing with Collexia and the Collexia
Payments Product;
7.3.4. the User will make payment to Collexia on the terms and conditions
as provided for herein.
7.4. In the event that the conduct of the User impose a risk to the payment
stream, or PAN is of the view that such behaviour may cause a risk to the
payment stream, the Acquiring Bank, Collexia or the PSF; then Collexia will be
entitled to take appropriate steps against the User which may include but is
not limited to the suspension of access to the particular payment stream or
the cancellation of this Agreement.
7.5. Should penalties be imposed on Collexia due to the conduct of the User; then
in these instances the User will pay these penalties that have been imposed
on Collexia when notified to do so; failing which Collexia will be entitled to
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cancel this Agreement with immediate effect and suspend all access to the
payment streams.
7.6. The Acquiring Bank as nominated and appointed by Collexia, will
automatically ex contractu become the Acquiring Bank of the User for the
participation of the User in that particular payment stream.
8. GRANT AND NATURE OF LICENCE
8.1. In this clause Collexia shall be deemed the “Licensor” and the User the
“Licensee”.
8.2. The Licensor herewith grants a non-transferable, non-exclusive licence to the
Licensee on the terms and conditions set out in this Agreement.
8.3. The Licence granted to the Licensee authorises the Licensee to use the
Collexia Payments Product and until this Agreement is terminated.
8.4. The Licensee shall not have the right to sub-license or transfer the Licence in
any way, either whole or in part, to any third party.
8.5. The Licensee shall not copy nor permit any party to copy any part of the
Collexia Payments Product, except to make sufficient copies solely for
backup or archival purposes.
8.6. The Licensee shall not modify, de-compile, disassemble or otherwise reverse
engineer the Collexia Payments Product, or attempt to do any of these,
provided that this stipulation shall not be applicable where de-compilation is
permitted by law.
8.7. The Licensee shall allow the Licensor, upon reasonable notice, access to its
premises to audit the Licensee's compliance with this Agreement.
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8.8. The Licensee shall not be permitted to extend this Licence to other users or in
any way cause or permit unauthorised access and use of the Collexia
Payments Product, which condition shall be deemed a material term of this
Agreement.
8.9. The Licensor shall provide the Licensee with a username and password, which
will grant the Licensee access to the Collexia Payments Product, upon
execution of this Agreement.
9. NATURE OF RELATIONSHIP & PROCESS
9.1. Collexia undertakes to provide the User access to the Collexia Payments
Product, subject to the terms and conditions contained in this Agreement.
9.2. This Agreement does not constitute either of the Parties an agent or legal
representative of the other for any purposes whatsoever and neither of the
Parties shall be entitled to act on behalf of, or to represent the other unless
duly authorised thereto in writing.
9.3. This Agreement shall not constitute a partnership or quasi-partnership
between the parties.
9.4. The Parties shall act in the upmost good faith towards each other to
implement and adhere to the terms and conditions contained in this
Agreement.
9.5. The User shall not enter into any other agreement with any other third party
which may constitute Competing Services to Collexia as it relates to this
Agreement.
9.6. The User shall make a suitable API available to Collexia in order for Collexia to
provide the User with access to the Collexia Payments Product, at no charge
to Collexia.
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9.7. The User shall provide Collexia with all relevant information, documents, and
data relating to the API to allow for the electronic communication between
the Collexia Payments Product and the User’s administration software.
9.8. The Parties shall devote the necessary time and energy both during and after
normal business hours as is reasonably required to implement the API.
10. MAINTENANCE AND OPERATING THE PRODUCTS
10.1. Each party shall be responsible for the upkeep, maintenance, necessary
developments and ancillary functions of its own information technology
system, in order to ensure the effective communication between the two
systems.
10.2. Collexia shall maintain the software supplied as part of the Collexia Payments
Product for its account. Periodic upgrades will occur which may or may not
support new functionalities.
10.3. The User may not refuse any scheduled upgrade or change in layouts,
functions or similar enhancements.
10.4. The User may not create debit order instructions under the User’s allocated
deduction code and user abbreviated name on behalf of a third party or act
as a bureaux or payment processor aggregator unless specifically authorised
in writing by Collexia to do so.
10.4.1. not to circumvent the workings of any products or equipment
supplied;
10.4.2. to notify Collexia at least 30 (thirty) day in advance once a change of
ownership in the business or debtors book occurs. The new owner of
the business or debtors book is required to complete and submit the
required questionnaire and application for services to Collexia should
the new owners wish to continue with the Collexia service offerings on
similar terms and conditions described in here failing which this
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Agreement will automatically be terminated and all future dated
debits loaded and registered will automatically be cancelled by
Collexia. No guarantees are delivered by Collexia that a new
agreement will be concluded especially once the new owner intends
to act and continue in a dual acquiring relationship;
10.5. The User will use the mandates supplied through the Collexia Payments
Product. The User may use another mandate, conditional upon the written
approval of such mandate by Collexia, the granting of which will be in the
sole discretion of Collexia.
10.6. The User will at his own cost print such mandates in duplicate, obtain the
signature of the account holder, retain the original mandate for a minimum
period of 5 (five) years and supply a copy of the mandate to the account
holder.
10.6.1. Ensure that the account holder is educated in respect of its rights and
obligations in terms of the selected payment methods, and the costs
associated therewith;
10.7. The Collexia Payments Product uses instant messaging and other
communication methods to distribute Collexia communications, messages,
User specific messages or communications, data files and documentation.
10.8. The User will grant Collexia and its employees access in order to enter the
User’s business premises as and when requested to do so and will co-operate
with Collexia and its employees in order to conduct audits with regards to any
aspects relating to whether the required mandates or any aspects in a
Product Manual have been complied with, produced, signed and retained
by the User. Should the User deny access or refuse to co-operate, then
Collexia is entitled to:
10.8.1. cancel this Agreement with immediate effect;
10.8.2. notify the PSF and PAN;
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10.8.3. suspend the presentment of all future dated payment instructions on
all Collexia Payments Products, cancelling any further processing;
10.8.4. suspend the transfer of collected funds;
10.8.5. suspend access to all Collexia’s products;
10.8.6. suspend access to any payment stream or specific service offering.
11. USERNAMES AND PASSWORDS
11.1. The User will nominate and identify the Master User in writing to Collexia.
11.2. The User (including the Master User) may not part with any username and
password that have been assigned to the Master User to any employee of
Collexia or any other third party.
11.3. The User will immediately notify Collexia in writing:
11.3.1. Should the integrity of the username and password of the Master User
be compromised;
11.3.2. Once the employee assigned with the Master User rights resigns;
11.3.3. Once the operational duties of the Master User change requiring a
new Master User to be created, identified and new username and
password to be issued.
11.4. Any failure on the side of the User will indemnify Collexia against any claim,
loss or damage sustained by the User.
11.5. The User acknowledges that usernames and passwords issued by Collexia
allows and grants access to defined actions, tasks and responsibilities to such
a user of the product as created and defined by the Master User.
11.6. The Collexia Payments Product supports the ability to change assigned
passwords however it remains the responsibility of the User to ensure that the
new password is of such nature that it conforms to good security practices.
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12. DATA INPUT AND SUPPORT CENTRE ASSISTANCE
12.1. The data input windows and the cut-off for changes are defined per product
selection in the Product Manual.
12.2. Technical support and assistance is available and rendered free of charge by
dialling _________________________________ on normal business days from
05H30 – 18H00; Saturdays and certain Public Holidays 07H00 – 12H00.
12.3. No Help Desk support is provided on Sundays.
12.4. Collexia will not deliver any first or second line support on personal computers
belonging to the User nor is any support provided on data communication
connectivity problems experienced between the User and the User’s
appointed providers.
12.5. Should data communication connectivity problems be experienced between
the User and the User’s appointed internet service provider, Collexia will assist
on a best effort basis in obtaining input data and by supplying response data
during the defined Support Centre operating hours.
13. FEES AND CHARGES
13.1. All transaction fees, rental fees and other charges reflected on Product
Schedule order forms are exclusive of VAT. The User accepts liability for
payment of the fees and charges as indicated on the Product Schedule.
13.2. Collexia supplies a monthly VAT invoice quoting the User’s VAT registration
number if the User is registered for VAT.
13.3. The anniversary date for review of fees payable is August of each year
13.4. Fees and charges reflected in the Product Schedule order form reflect the
position of agreed fee structures in the NPS as on date of signature.
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13.5. Should the underlying NPS cost structures reflected be unexpectedly
changed, then Collexia reserves the right to adjust fees and charges.
13.6. Transaction fees payable by the User are collected in real time by debiting
available funds of the User.
13.7. Depending on the product selection, monthly fees and rental fees payable
for equipment are payable to Collexia either through debit order or by
debiting the User’s automated electronic bank account opened in the name
of the User. The choice of payment method described herein is at Collexia’s
discretion.
13.8. Depending on the product selection and for products selected where no
monthly licence fees or infra-structure access fees become payable and if
the User processes the defined amount of successful debits during a month,
then a “month” for purposes of this clause is a month starting on the 26th
calendar day of a month and ending on the evening of the 25th of the
following month.
13.9. If the User negates on any of the payment obligations to Collexia as
described in this clause 10, Collexia reserves the right to withhold any future
presentments and the transfer of funds collected will be suspended until such
time that the User has paid the fees due.
14. COLLECTED FUNDS AND SECURITY DEPOSIT
14.1. The available balance of the User’s account held with the Acquiring Bank will
be transferred to the bank account nominated by the User through the co-
operation agreement between Collexia and the Acquiring Bank, on intervals
and in terms of the calculations as provided for in any ancillary agreements.
14.2. A minimum balance may be reserved as a security deposit to cover fees,
charges, reversals and disputed items, and is refunded to the User, interest
free, 40 (forty) days after the last transaction was processed. Collexia may call
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on an adjustment of the security deposit at any time, based on the risk of
potential disputes and reversals on the account, in its sole discretion. Such
upwards adjustment may be made by Collexia and the Acquiring Bank by
withholding payment to the User of funds in the bank account to the value of
the adjustment, and a downwards adjustment may be made by paying the
excess funds to the User.
14.3. Once notice of cancellation has been given by either Party, and should the
User participate in a payment stream where a successfully collected debit is
able to be disputed, then Collexia is entitled to increase the minimum
balance to an amount equal to the previous 6 (six) month average dispute
value.
14.4. Once this Agreement has been terminated or the User no longer participates
in a payment stream where successfully collected debits are able to be
disputed, the User is still liable for any future disputed debits that may be
received, including all costs and charges to recover the funds from the User.
15. LIABILITY WARRANTY AND INDEMNITY
15.1. The User herewith indemnifies Collexia against any loss, cost, action, fees,
damages, liabilities, suits or demands of whatever nature that may be
brought against Collexia through the breach of any term or condition of this
Agreement by the User.
15.2. The User warrants that every account holder, on whose account a debit is
processed through any Collexia product supplied, has authorised such
transaction.
15.3. The User warrants that he will comply with the terms and conditions of this
Agreement, the business rules and Clearing Rules applicable for the payment
stream in which he participates.
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15.4. The User indemnifies Collexia and as stipulatio alteri (stipulation for the benefit
of the third party) likewise indemnifies the account holder’s bank and
undertakes to hold each of them harmless against any loss, damage, legal
liability, legal costs on an attorney and client scale or expenses of whatever
nature that they may suffer or become liable for arising from non-compliance
by the User with the conditions described in this Agreement, computer error,
data content error, or unauthorised use of the service by the User or any
person authorised or deemed to be authorised to act on behalf of the User,
resulting in incorrect, unauthorised and/or wrongful payment instructions.
15.5. The User undertakes and agrees to refund Collexia or the account holder’s
bank, as the case may be, any and all amounts (including any dispute fees
raised) paid to the User in respect of debits processed if the account holder
at any subsequent time disputes the validity or existence of the mandate or
underlying agreement, and hereby irrevocably authorises Collexia to debit
the account opened in the name of the User with Collexia’s Acquiring Bank,
or in instances where no funds are available in such an Account, the User’s
account specified on the schedule with such amounts.
15.6. The warranties and indemnities given in this clause 12 shall remain operative
and enforceable notwithstanding the cancellation or termination of this
Agreement in respect of any such loss, costs, fees, damage, suits or demands
aforesaid, the cause arose during the substance of this Agreement.
15.7. Neither party shall, in any circumstances, be liable to the other party for any
indirect or consequential loss or damages including, without limitation, loss of
business or profits.
15.8. Neither party will be liable to the other party for any delay or non-
performance of its obligations under this agreement arising from any cause
beyond its reasonable control including, without limitation, any act of God, a
governmental act, an act of any regulatory authority, an act of any
participating issuing bank, an act of the nominated Acquiring Bank or an act
of Namclear.
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16. DURATION AND TERMINATION
16.1. This Agreement shall commence on the Signature Date and shall endure
thereafter for a continuous period subject to the right of either Party to
terminate this Agreement, (which termination includes cancellation).
16.2. This Agreement may be cancelled by either Party by giving the other Party
reasonable written notice to such effect, of at least 1 (one) calendar month.
16.3. In addition to and notwithstanding to anything to the contrary contained
herein, either Party shall be entitled to cancel this Agreement by giving
reasonable notice in the circumstances, taking into consideration the extent
and the nature of the breach, if:
16.3.1. The other Party commits a breach of any of the material terms and
conditions of this agreement; or
16.3.2. Either Party takes a resolution for business rescue, or application is
issued to liquidate, or an application is issued for the judicial
management, or the party makes any general assignment for the
benefit of its creditors or effects or attempts to effect a compromise
or composition with its creditors, either Party be placed under judicial
management, curatorship, liquidation or under a winding-up order,
whether provisionally or finally, voluntary or compulsory.
16.4. Upon the termination of this agreement, the following provisions shall apply:
16.4.1. All amounts owing to either Party shall become immediately due and
payable within three months from the date of termination; and
16.4.2. The provisions contained in this Agreement relating to Confidentiality
and Restraint of Trade, and Intellectual Property Rights, shall survive
termination.
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17. BREACH
17.1. Subject to the terms described in this Agreement where immediate
cancellation or suspension may be evoked, either party shall be entitled to
cancel this agreement pursuant to the breach thereof by the other party,
notwithstanding that such breach does not constitute a material breach.
17.2. In the event that the breach is not capable of being remedied by specific
performance within a reasonable time after the occurrence of the breach, or
by the payment of damages, or if it is capable of being so remedied and is
not remedied within a reasonable time period after the party in breach
receives written notice to do so, then the aggrieved party may serve a notice
of cancellation effective 7 (seven) days from date of receipt of such notice,
to cancel the Agreement. Such cancellation will not restrict the aggrieved
party from enforcing any other rights that it may have in law, this Agreement,
or delict and the aggrieved party may institute any claim for damages
together with such cancellation, as it may be entitled to do in terms of law,
this Agreement or delict.
18. SUMMARY CANCELLATION
18.1. Collexia shall, without prejudice to any other rights which it may have in law,
be entitled to summarily cancel this Agreement by notice to the User, in the
event that:
18.1.1. Collexia unsuccessfully attempts to recover by way of electronic
deduction, any amounts due to it, from the bank account specified
by the User in the addenda hereto; or
18.1.2. The User’s registration with a statutory body is not completed,
competent, is revoked, or cancelled, or the User fails to renew the
registration within the defined and required time period; or
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18.1.3. A User or any of its Associated Parties has its access to the NPS or any
of its subsidiary bodies suspended, cancelled, or annual renewal is
refused; or
18.1.4. The User or any of its employees acts in a manner which is deemed
unprofessional by Collexia, which includes but is not limited to verbal
abuse of any Collexia employee, agent, or contractor, or conducts
business contrary to best practices in the relevant industry, or performs
any act or omission which causes or may cause Collexia to be in
disrepute, whether wilful or negligent.
19. CONFIDENTIALITY, NON-DISCLOSURE AND RESTRAINTS
19.1. The provisions relating to confidentiality, restraint and non-disclosure shall
apply to all disclosures made between the Parties relating to the Confidential
Information and shall be deemed of force and effect retrospectively where
necessary, from the date of the first disclosure.
19.2. The provisions of this Agreement relating to Confidentiality and non-disclosure,
will survive termination of this Agreement.
Confidentiality & non-disclosure
19.3. Having regard to the fact that the Disclosing Party may disclose some or all of
the Confidential Information to the Receiving Party, the Receiving Party
hereby irrevocably agree and undertake, in favour of the Disclosing Party,
and in order to protect the Disclosing Party’ proprietary interests in and to the
Confidential Information:
19.3.1. not, during the existence of this Agreement or at any time thereafter,
to use, divulge or disclose, directly or indirectly to any person or entity
whatsoever, in any form or manner whatsoever, either directly or
indirectly, the Confidential Information or any portion thereof that
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may have been disclosed or communicated to or acquired by a
Party;
19.3.2. not, during the existence of this Agreement or at any time thereafter,
to use, exploit, permit the use of or in any other manner whatsoever
apply the Confidential Information or any portion thereof for its own
benefit or for any other purpose whatsoever other than for the
purpose for which it was disclosed and otherwise than in accordance
with the provisions of this Agreement;
19.3.3. during the existence of this Agreement and at all times thereafter, to
maintain in secrecy all Confidential Information which may have
been disclosed or communicated to or acquired by the Receiving
Party.
19.4. Notwithstanding the provisions of clause 19.2. above, the Receiving Party shall
be entitled to disclose the Confidential Information to such of their associated
parties as may strictly be necessary for the purpose for which the Confidential
Information was disclosed, provided that the Receiving Party shall take
whatever steps are necessary to ensure that such associated Parties agree to
abide by the terms of this Agreement and, if so requested by the Disclosing
Party, each conclude a separate confidentiality and non-disclosure
agreement mutatis mutandis on the terms and conditions set out herein in
favour of the Disclosing Party, in order to prevent the unauthorized disclosure
of the Confidential Information to third parties.
19.5. The Receiving Party:
19.5.1. undertake not to adapt, alter, modify or change any of the
Confidential Information; and
19.5.2. acknowledge that:
19.5.2.1. the unauthorized disclosure of the Confidential information
or any portion thereof to a third party may cause
irreparable loss, harm and damage to the Disclosing Party
and accordingly the Receiving Party hereby indemnifies
and holds the Disclosing Party harmless against any loss,
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action, expense, claim, harm or damage, of whatever
nature, suffered or sustained by the disclosing party
pursuant to a breach by the Receiving Party or any
associated party of the provisions of this agreement; and
19.5.2.2. neither the Disclosing Party nor any of its employees,
representatives or agents makes any representation or
gives any warranty as to the accuracy or completeness of
the Confidential Information divulged to the Receiving
Party and they shall accordingly not be liable to the
Receiving Party with respect thereto; and
19.5.2.3. shall take all such steps as may be necessary to prevent
the Confidential Information falling into the hands of
unauthorized third parties; and
19.5.2.4. hereby accept responsibility for all acts and omissions of
their associated parties in relation to the Confidential
Information.
19.6. Any and all documentation or records relating to the Confidential Information
which comes into the possession of the Receiving Party during the existence
of this Agreement or at any time thereafter:
19.6.1. shall be deemed to form part of the Confidential Information;
19.6.2. shall be deemed to be the property of the Disclosing Party;
19.6.3. shall not be copied, reproduced, published or circulated by the
Receiving Party;
19.6.4. shall be surrendered to the disclosing party on demand and the
Receiving Party shall not retain any copies or précis thereof or extracts
therefrom.
19.7. Any and all information which is acquired by the Receiving Party pursuant to
the implementation of this agreement, in whatever form or from whatsoever
source specifically including, but not limited to, that information verbally
communicated to the Receiving Party, shall be deemed to be Confidential
Information and shall be subject to the provisions contained herein.
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19.8. The above undertakings relating to confidentiality and non-disclosure shall not
apply to any information which:
19.8.1. the Receiving Party can demonstrate is already in the public domain
or becomes available to the public otherwise than by the default of
the Receiving Party;
19.8.2. the Receiving Party can demonstrate to have been in its possession at
the time of its disclosure hereunder without an obligation of
confidence, as proved by the Receiving Party’s written records;
19.8.3. the Receiving Party can demonstrate was independently acquired or
developed in circumstances that do not amount to a breach of the
provisions of this agreement by the Receiving Party, as proved by the
Receiving Party’s written records;
19.8.4. the Receiving Party can demonstrate was acquired by it
independently from a third party acting in good faith which has not
previously obtained the Confidential Information directly or indirectly
under a confidentiality obligation from the Disclosing Party, as proved
by the Receiving Party’s written records; or
19.8.5. is disclosed by the Receiving Party to satisfy an order of a court of
competent jurisdiction or to comply with the provisions of any law or
regulation in force from time to time, provided that in such
circumstances the Receiving Party shall give the disclosing party
sufficient prior written notice of such request so as to enable the
disclosing party to take whatever steps it deems necessary to protect
its interests in this regard, provided further that the Receiving Party
shall only disclose that portion of the Confidential Information which it
is legally required to disclose and the Receiving Party shall use all
reasonable endeavours to protect the confidentiality of such
information to the widest extent possible in the circumstances.
19.9. In order to protect the Confidential Information, the Receiving Party hereby
undertake:
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19.9.1. to claim and enforce similar confidentiality undertakings from all their
associated parties to whom the Confidential Information or any
portion thereof is disclosed; and
19.9.2. to preclude other persons having access to the Confidential
Information and shall only allow the aforesaid category of persons to
come into contact with such Confidential Information.
Restraints
20.1. During the term of this Agreement and for a period of 1 (one) year after the
termination of this Agreement, howsoever that may be caused, the Collexia
may not be engaged or interested in any trade or business which is similar to
or competes with directly or indirectly, the trade or business of the User or its
Associated Parties, within the geographical jurisdiction of any of the locations
at which the User holds an office during the final 6 (six) month’s of this
Agreement.
20.2. During the term of this Agreement and for a period of 1 (one) year after the
termination of this Agreement, howsoever that may be caused, the Collexia
may not directly or indirectly contact or communicate with, for business
purposes, any User or prospective User of the User, or Associated Parties (in
the event that the Collexia had access to Confidential Information of the
Associated Party during the scope and execution of its duties in terms of this
Agreement) unless such contract or communication is solely for a purpose
other than providing or offering to provide services similar or identical to those
provided by the User or its Associated Party.
20.3. During the term of this Agreement and for a period of 24 (twenty four) months
after termination of this Agreement, howsoever that may be caused, the User
may not, whether for its own benefit or that of another or its Associated
Parties, solicit, interfere with the employment relationship, or entice or
endeavour to entice any employee of the Collexia, away from the Collexia.
Acknowledgements
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20.4. The Receiving Party hereby acknowledges that:
20.4.1. the Confidential Information constitutes a valuable proprietary asset
of the Disclosing Party;
20.4.2. The Disclosing Party is the sole legal and beneficial copyright or other
owner of all rights in and to the Confidential Information and the
know-how;
20.4.3. prior to the disclosure and impartation of some or all of the
Confidential Information to the Receiving Party, the Receiving Party
has no knowledge thereof;
20.4.4. the obligations imposed on the Receiving Party and the restraints
imposed upon them in terms of this Agreement are reasonable;
20.4.5. this Agreement is entered into upon the basis, and it is a material term
of this Agreement, that the relevant Party shall be entitled to the
benefit of the restraints set out in clauses 20.1 to 20.3 above.
21. INTELLECTUAL PROPERTY RIGHTS
21.1. Each Party shall be the owner of the Intellectual Property rights relating to the
source code of its own information technology system.
21.2. The Intellectual Property rights relating to the initiative, design, concept and
programming code of the Collexia Payments Product, including but not
limited to any business process description and software specification
requirements, vests in Collexia.
21.3. Both parties acknowledge that the Intellectual Property Rights as described
herein constitutes a valuable proprietary asset of the other Party.
22. JURISDICTION
22.1. This Agreement shall be interpreted and construed in accordance with the
Laws of the Republic of Namibia and as such the primary private international
law classification shall be under contract.
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22.2. The Parties however consent to both the jurisdictions of the Republic of
Namibia and the jurisdiction in which the User is registered in to adjudicate
upon any matter emanating from this Agreement.
22.3. The Parties agree that the country in which the Defendant Party is domiciled
shall have jurisdiction to hear any matter relating to this Agreement, however
it shall be competent for a Party to approach a court in either jurisdiction for
interim relief, which Court Order shall be enforceable in the other jurisdiction
pending the hearing of the main matter in the applicable jurisdiction.
22.4. In the event of a conflict of laws the interpretation shall firstly be followed that
gives effect to this Agreement under contract, and subsequently the
interpretation shall be followed that gives effect to the secondary
international law classification being that of the applicable jurisdiction.
23. DOMICILIA AND NOTICES
23.1. The Parties choose as their respective domicilia citandi et executandi for all
purposes under this Agreement, whether in respect of notices in terms of this
Agreement, court process, or other documents or communications of
whatsoever nature (including the exercise of any option) the following
addresses:
Collexia:
Physical address: 7 Seitz Strasse,
Maerua,
Windhoek,
Namibia
E-mail: [email protected]
For attention: Chief Executive Officer
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The User: As per the addenda hereto
23.2. Either of the Parties may change its domicilium citandi et executandi to
another address within the same country, by way of a notice to the other
party to this Agreement, provided that such a notice is received by the
addressee, at least 7 (seven) calendar days prior to such a change taking
effect.
23.3. Any notice addressed to either of the Parties and sent by registered post to it
at its chosen address on the 5th (fifth) calendar day after posting. In the case
of hand delivery at the Party’s chosen address to a responsible person on any
day of the week between 08h00 and 17h00, excluding Saturdays, Sundays
and Namibian public holidays, shall be deemed to have been received,
unless the contrary is proved, on the day of delivery.
23.4. Notwithstanding anything to the contrary herein contained a written notice or
communication actually received by a party shall be an adequate written
notice or communication to it notwithstanding that it was not sent to or
delivered at its chosen domicilium citandi et executandi.
23.5. Any notice sent by e-mail to either of the Parties shall be deemed, unless the
contrary is proved, to have been received:
23.5.1. if it is transmitted on any day of the week between 09h00 and 16h00,
excluding Saturdays, Sundays and Namibian public holidays, within 2
(two) hours of transmission;
23.5.2. if it is transmitted outside of these times, within 2 (two) hours of the
commencement any day of the week between 09h00 and 16h00,
excluding Saturdays, Sundays and Namibian public holidays, after it
has been transmitted.
23.6. Proof of e-mail delivery shall be sufficient proof of service in the event that a
notice is sent via e-mail.
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24. GENERAL
24.1. This Agreement shall be binding upon the Parties, their heirs, administrators,
lawful successors-in-title and permitted assigns.
24.2. This Agreement comprises the sole Agreement between the Parties relating to
the transactions referred to and supersedes and replaces any previous
agreements between the Parties, whether written or oral.
24.3. No amendment, variation, addition to, deletion of, waiver, suspension or
consensual cancellation of the whole of this Agreement or any provision
hereof (including this clause), shall be of any force or effect, unless reduced
to writing and signed by or on behalf of the Parties.
24.4. No indulgence, latitude or extension of time (for convenience, "indulgences"),
which any Party may show any other Party, shall be deemed to comprise a
waiver by the Grantor, nor constitute any novation, nor give rise to any
defence based on the principle of Estoppel (nor create any precedent) and
notwithstanding any such prior indulgences, the Parties shall, at all times, be
entitled to rely upon and demand a prompt compliance with the provisions
this Agreement (and of the obligations of the other Parties).
24.5. No Party shall be entitled to cede, assign or otherwise delegate wholly or in
part any of its obligations under this Agreement without the express prior
written consent of the other Party.
24.6. The provisions of this Agreement are severable and divisible as to each
provision or part thereof, and should any provision or part thereof be found to
be invalid or unenforceable by a competent Court, such a finding shall,
subject to the Order of such Court, not affect the validity and/or
enforceability of the remaining provisions or parts thereof.
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25. SIGNATURES
SIGNED at _____________________________ on _______________________________
AS WITNESSES
1. ____________________________________
2. ____________________________________
_____________________________
For and on behalf of
COLLEXIA
SIGNED at _____________________________ on _______________________________
AS WITNESSES
2. ____________________________________
2. ____________________________________
_____________________________
For and on behalf of
THE USER
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Annexure “A”
User details:
Entity Registered Name:
Trading as:
Entity Legal Registration nr:
NPS Abbreviated Short Name
(6 Letters):
Tel number:
Herein represented by (Who
warrants that he/she is duly
authorized to act herein):
ID nr:
Email (domicillium):
The User’s Domicillium citandi ex executandi (address for service of legal process and
notices in terms of this Agreement, as per clause 22):
Physical address:
E-mail:
For attention:
Master User - Full Names and
Surname:
ID nr:
Email (domicillium):
Telephone Number:
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Annexure “B” 1:
EnDO Product Schedule
COLLEXIA MERCHANT FEE STRUCTURE
PER BANK: Any Other Bank:
Trustco Bank FNB
Basic Transaction Fee: Per transaction submitted Fixed fee N$ 4.00 N$ 4.00 N$ 4.00
Additional Successful Transaction Fee:
Additional value-based transaction fee on Successful Transactions
% of successful value 1.4% 1.22% 1.4%
Additional Unsuccessful Transaction Fee:
Additional fee Per Unsuccessful Transaction
Fixed Fee N$ 1.00 N$ 1.00
Tracking Fee: Per Tracking Day From day One N$ 2.57 N$ 2.00 N$ 2.57
Dispute Fee: Per Successful Dispute raised against the User
150 150 150
Transaction Recall Fee: Per Re-called Transaction 10 10 10
Fee: Subscribers & Users Merchant fee Charged per Merchant/Per Month
N$ 400.00 N$ 400.00 N$ 400.00
User fee Charged per registered user/per month
N$ 100.00 N$ 100.00 N$ 100.00
I, __________________________________________________(1st Name, Initials and Surname),ID Nr______________________________, accept the above prices on behalf of the User, and herewith mandate Collexia to collect any outstanding fees and charges on the User’s accounts:
1. Subject to Collexia’s sole discretion in respect of date, method and User account, irrespective of any preferences indicated; 2. With any available electronic payment method available to Collexia, 3. From any of the bank accounts as stipulated on Annexure “C” – List of bank accounts;
________________________________ ______________________________________
DATE: SIGNATURE:
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Annexure “C”:
List of the User’s Bank Accounts:
Merchant name
(as to be displayed on reporting)
Disbursement account
(For disbursement of collected payments)
Fee account
(for merchant fee payments) GLOBAL ID
(Office use) Bank Acc Number Bank Acc Number
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USER: GENERAL COMPANY INFORMATION:
Registered Name of Company:
Type of business conducted:
Brand Name:
Trading name:
Date of establishment:
Company Registration Number:
Head Office Physical Address:
Postal Address:
Head Office Phone Number:
Head Office Fax Number:
VAT Registration Number:
TAX Registration Number:
Contact Person:
Designation:
Cell:
Email Address:
Alternative Contact Person:
Designation:
Cell:
Email Address:
Registered Address:
Authorized Signatories: Imitials & Surname: ID:
Tel. (w)
Fax No.
Cell. No:
Email address:
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DIRECTORS INFORMATION:
NAME ID NUMBER EXECUTIVE / NON-EXECUTIVE