AGREEMENT BETWEEN USER AND MYTM Pvt Limited for its product MyPay Incorporated in Pakistan under the rules and regulations of Securities and Exchange Commission of Pakistan
The MyPay Payment Gateway Merchant Services Agreement (the “Agreement”) is a legally binding contract between you and/or your company (“Customer”) and MYTM Pvt Limited (“MyPay”). The Agreement sets out the terms and conditions under which Customer may utilize the Transaction Services. Customer should read this Agreement carefully.
By clicking on the “I AGREE” button or a similar affirmation, or by acknowledging acceptance of the Agreement by any other method allowed by MyPay, or by using or accessing the Transaction Services through any means permissible including, without limitation via a computer or a mobile application, Customer acknowledges and agrees that: (i) it has reviewed and understands the Agreement; (ii) it agrees to be legally bound by the terms and conditions of the Agreement; and (iii) its use of the Transaction Services and any related products or services will be governed by this Agreement. If Customer does not agree or is not willing to be bound by the terms and conditions of this Agreement, Customer should not click on the “I AGREE” button and should not seek to obtain or use the Transaction Services.
1. Customer’s Capacity and Related Matters. By accepting the terms and conditions of this Agreement, Customer represents and warrants that (a) the person executing this Agreement on behalf of Customer is 18 years of age or older, (b) all information Customer has provided to MyPay is true and correct in all respects, and (c) Customer will update MyPay by email with any changes to information Customer has previously supplied. Customer further represents and warrants that Customer has the legal authority to accept the terms and conditions of this Agreement and that such acceptance will be binding on Customer. MyPay reserves its right, in its sole discretion, to refuse to provide Customer with any MyPay Service. Words and phrases with initial letters capitalized and not otherwise defined herein shall have the meaning set forth in Section 15.
2. MyPay Undertakings
2.1 Transaction Services. MyPay shall provide to Customer the Transaction Services at the rates set forth in the Fee Schedule and in accordance with the terms and conditions of this Agreement.
2.2 Customer Service. During the term of this Agreement, if Customer is current in payment of all fees owing to MyPay and is otherwise not in default under this Agreement, MyPay shall provide customer service to Customer, as set forth in the Contact section of the MyPay website at the URL www.mypay.pk.
3. Customer’s Undertakings
3.1 ID and Password. Customer must select an ID and password to enable Customer to access Customer’s payment gateway account and use the Transaction Services. Customer will restrict access to such ID, password, and account to Customer’s employees and agents as may be reasonably necessary consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using the account is aware of and otherwise complies with all applicable provisions of this Agreement regarding such use and access. Customer is solely responsible for maintaining adequate security and control of any and all IDs, passwords, or any other codes for purposes of giving Customer access to the Transaction Services. MyPay shall be entitled to rely on information it receives from Customer and may assume that all such information was transmitted by or on behalf of Customer. Customer shall comply with all MyPay recommendations and notices regarding the security of Customer’s ID, password and payment gateway account(s).
3.2 Relationship to Merchant Service Providers. Customer may have enrolled in the Transaction Services via a Merchant Service Provider. In addition to any other agreement Customer may have with the Merchant Service Provider, the terms and conditions of this Agreement govern Customer’s use and MyPay's provision of the Transaction Services. Customer expressly acknowledges and agrees that MyPay may share information about Customer and Customer’s account with its Payment Service Providers and payment processors.
3.3 Compliance. In connection with the exercise of Customer’s rights and obligations under this Agreement (including, without limitation, any related to individual privacy), Customer will comply, at Customer’s own expense, with all laws, policies, guidelines, regulations, ordinances, rules applicable to Customer, this Agreement, End User data or the Transactions and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof, including, without limitation, the Payment Network Rules, the Federal Trade Commission and Services Documentation. MyPay reserves the right to amend, modify or change the Services Documentation at any time. Customer shall not use the Transaction Services in any manner, or in furtherance of any activity that may cause MyPay to be subject to investigation, prosecution, or legal action.
3.4 Additional Solutions and Services. In the event that Customer enrolls in and/or utilizes any of MyPay’s Additional Services, Customer hereby acknowledges and agrees to the terms and conditions as stated in Additional Services Terms and Conditions located in Appendix B.
3.5 Third Party Products and Services. Customer’s use of third party products and services shall be governed by and subject to separate third party product, service, software, and/or license agreements. MyPay will not be a party to such third party agreements and does not warrant or guarantee any third party product or service.
4. Data Collection, Privacy and Security
a. Customer is solely responsible for the security of data residing on servers owned or operated by Customer, or a third party designated by Customer (e.g., a Web hosting company, processor or other service provider). Customer shall comply with all applicable laws, policies and regulations governing the security, privacy, collection, retention and use by Customer of End account data, including, without limitation, financial information, card account numbers, and all other personally identifiable End User information. Customer agrees to provide notice to End Users on Customer’s website that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement.
b. Customer will comply with all then-current legal obligations and security measures, as applicable, including without limitation those issued by Payment Networks and the Federal Trade Commission, associated with the collection, security, dissemination and destruction of End-User and Transaction data, and expressly including the Payment Card Industry Data Security Standard (PCI DSS). Customer acknowledges that Customer is responsible for the security of End User cardholder data while in Customer’s possession. Customer warrants that Customer has taken such precautions as are necessary to ensure that Customer’s server and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that Customer’s system is breached and an unauthorized third party has access to or has accessed End-User data or Transaction data, Customer shall notify MyPay promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future.
c. Customer agrees that Customer will comply with all MyPay security protocols and security advisories in effect during the term of this Agreement. Customer is solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by MyPay associated with Customer’s account and verifying that all corresponding funds are accurately processed. Customer acknowledges that MyPay shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to Customer’s account, End-User or Transaction data. MyPay’s liability for improperly processed or unauthorized Transactions solely attributable to the negligence of MyPay is limited pursuant to Section 12.
b. With respect to the Transaction Services, at all times while this Agreement is in effect, MyPay will maintain compliance with the Payment Card Industry Data Security Standard (PCI DSS). MyPay acknowledges that MyPay is responsible for the security of End User cardholder data while in MyPay’s possession.
4.3 Data Retention. Customer is solely responsible for compiling and retaining permanent records of all Transactions and End-User data for Customer’s reference. Except as otherwise provided herein, at no time shall MyPay have an obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or End-User data collected or processed by MyPay.
5. Fees; Taxes
5.1 MyPay Service Fees. Customer shall pay to MyPay the fees set forth in the Fee Schedule located in the Merchant Interface or the Merchant Transaction Processing Agreement, which is hereby incorporated into the terms of this Agreement by reference. Notwithstanding anything to the contrary and if agreed upon by the parties, a Merchant Service Provider may charge, bill, and collect such fees from Customer, in the amounts stated in and in accordance with the terms and conditions of the agreement between Customer and such Merchant Service Provider. If Customer’s relationship with a Merchant Service Provider expires or terminates and such Merchant Service Provider was billing Customer for certain fees, Customer agrees to pay MyPay for any further use of the Transaction Services effective immediately upon any such expiration or termination in accordance with the terms herein. For fee structure Refer to www.mypay.pk/pricing
5.2 Account Fees
5.2.1 Late Payment Fee. If Customer does not pay owing amounts on or before the fifteenth (15th) day of the month, Customer will be subject to a late payment fee, in the amount set forth in the Fee Schedule. If Customer has not paid all amounts due before the last day of the month in which they were due, Customer’s ability to use the Transaction Services shall automatically be suspended at the end of the month.
5.2.2 Abandoned Account Fee. If Customer’s account becomes an Abandoned Account with a balance due to Customer, Customer shall be assessed a monthly Abandoned Account Fee in the amount set forth in the Fee Schedule. In addition, all costs incurred by MyPay in managing Customer’s Abandoned Account, including costs associated with attempting to locate Customer to deliver Customer’s account balance or incurred with respect to escheating Customer’s funds to the appropriate governmental agency will be deducted from Customer’s account, as applicable.
5.3 Taxes. The fees described above are exclusive of all taxes. Customer agrees to pay all applicable taxes other than tax assessed on MyPay’s income. Customer agrees that the payment of fees to MyPay shall be made without deduction or withholding for any taxes. If Customer is required to withhold any taxes, the amount paid by Customer to MyPay shall be increased to the extent necessary to yield to MyPay (after withholding of such taxes) a net amount equal to the amount MyPay would have received had no such withholding been made. Customer bears the ultimate responsibility for the proper payment of taxes applicable to Customer’s sale of its products or services.
5.4 Opening/Closing Accounts. Should a Customer fail to pay fees due under an MyPay account (“Original Account”) and subsequently opens another MyPay account (“Subsequent Account”) MyPay reserves the right to bill the Subsequent Account for amounts due under the Original Account whether or not the Original Account was closed.
6. Billing and Payment Terms
6.1 MyPay Bills Customer
6.1.1 Billing Terms. Billing shall begin on the Effective Date. MyPay service fees are due and payable to MyPay on a transactional basis. Unless otherwise specified herein, fees and payments for any subsequent time periods shall be due on clearance of each transaction. Payments will be made in Pak Rupees to customers authorized bank account, subject to the provision of valid bank account information.
6.1.2 Disputes. The parties shall promptly investigate any disputed fees under this Agreement. A dispute will not relieve Customer of its payment obligations herein. If an event of dispute is resolved in Customer’s favor MyPay will credit back to Customer any applicable overpayments made by Customer. All disputes must be made in good faith and in writing within thirty (30) days of the billing statement date. Fees billed shall be deemed accepted where written objections are not lodged within such thirty (30) day period.
7. Term. This Agreement shall commence on the Effective Date and remain in full force and effect until terminated pursuant to Section 8.
8. Termination and Suspension
8.1 Termination by Customer. Customer may terminate this Agreement at any time and for any reason, with or without cause, upon written notice to MyPay.
8.2 Termination by MyPay. MyPay may terminate this Agreement and/or Customer’s access to the Transaction Services, at any time and for any reason, with or without cause, upon fifteen (15) days’ written notice.
8.4 Threatening Condition. In the event that MyPay reasonably believes that Customer is in violation of its obligations hereunder, including, without limitation, selling products or services that violate law or regulation, or that Customer’s conduct poses a threat to MyPay’s systems, equipment, processes, or Intellectual Property (the “Threatening Condition”) MyPay may immediately suspend Customer’s Account(s). In any event, MyPay may terminate this Agreement if the Threatening Condition remains uncured more than thirty (30) calendar days after Customer is notified of the Threatening Condition.
8.5 Effect of Termination. Upon termination of the Agreement for any reason, all rights and obligations of the parties under this Agreement shall be extinguished, except that (a) all payment obligations hereunder shall survive such termination; and (b) the rights and obligations of the parties under Sections 9.1, 10, 11, 12, 13, 14 and 15 shall survive such termination.
9. Intellectual Property
9.1 MyPay. The parties agree that MyPay owns and retains all right, title and interest in and to the MyPay Trademarks, Transaction Services, copyrights and any related technology utilized under or in connection with this Agreement, including but not limited to all intellectual property rights associated therewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to Customer or any other entity or person under this Agreement. Customer will not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the Transaction Services or related technology.
9.2 API, OSBP and Related Documentation License. Subject to the terms of this Agreement, MyPay hereby grants to Customer and Customer hereby accepts from MyPay a personal, limited, non-exclusive, non-transferable license and right to the MyPay API/OSBP and accompanying documentation for the following purposes:
i. install and use the MyPay API/OSBP on as many machines as reasonably necessary (which machines are and shall be maintained in facilities owned, occupied, or leased by Customer) to use the Transaction Services for the purpose of selling products and services to End-Users; ii. use the accompanying Services Documentation solely for the purpose of using the MyPay APIs and Transaction Services; and iii. create a reasonable number of copies of the MyPay API/OSBP and related documentation, with all copyright notices intact, for archival purposes only.
9.3 MyPay Trademarks License. Subject to the terms and conditions contained herein, MyPay hereby grants to Customer a non-exclusive, royalty-free, fully-paid up right to use, reproduce, publish, perform and display the MyPay Trademarks on Customer’s website in connection with Customer’s offering of payment options to End Users.
9.4 Customer’s Marks License. Subject to the terms and conditions contained herein, Customer hereby grants to MyPay a non-exclusive, royalty-free, fully-paid up right to use, reproduce, publish, perform and display Customer’s Marks as necessary in connection with the performance of the Transaction Services.
9.5 Use of Trademarks. Each party shall strictly comply with all standards with respect to the other party's Trademarks contained herein or which may be furnished by such party from time to time. Further, neither party shall create a combination mark consisting of one or more Trademarks of the other party. All uses of the other party's Trademarks shall inure to the benefit of the party owning such Trademark. Either party may update or change the list of Trademarks usable by the other party hereunder at any time by written notice to the other party.
9.6 Use the Appropriate ® or ™ Symbol. Customer must reproduce any MyPay Trademarks only exactly as provided by MyPay, including the exact reproduction of any proprietary markings or legends and including the appropriate ® or ™ symbol at the first and most prominent reference, or as soon as practicable thereafter.
9.7 Trademarks and Domain Registration. Except as otherwise provided herein, Customer shall not use, register or attempt to register any (a) MyPay Trademarks or (b) marks or domain names that are confusingly similar to any of the MyPay Trademarks or the Domain(s).
9.8 Trademark Restrictions. Customer shall not (a) use the MyPay Trademarks except as expressly authorized in this Agreement; (b) take any actions inconsistent with MyPay’s ownership of the MyPay Trademarks and any associated registrations, or attack the validity of the MyPay Trademarks, its ownership thereof, or any of the terms of this Agreement; (c) use the MyPay Trademarks in any manner that would indicate Customer is using such MyPay Trademarks other than as a licensee of MyPay; nor (d) assist any third party do any of the same.
10. Confidential Information
10.1 Each Party (the “Receiving Party”) hereby agrees (i) to hold the other party’s (the “Disclosing Party”) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, (iv) not to remove or export from the Pakistan or re-export any such Confidential Information or any direct product thereof, except in compliance with, and with all licenses and approvals required under, applicable Pakistan’s laws and regulations, (v) not to copy or reverse engineer any such Confidential Information, and (vi) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate “need to know” and shall be bound in writing to comply with the Receiving Party’s confidentiality obligations, whether generally or specific to this Agreement.
10.2 Except as otherwise provided in this Agreement, within thirty (30) calendar days of termination of this Agreement, the Receiving Party shall, destroy all materials that constitute Confidential Information and/or Intellectual Property of the Disclosing Party and upon request provide to the Disclosing Party written certification signed by an authorized officer of the Receiving Party that all such information was so destroyed. Notwithstanding the foregoing, each party may retain Confidential Information that is (i) stored on archival or back-up files or (ii) required for compliance with applicable law, Payment Network Rules or its obligations pursuant to this Agreement, provided that such party continues to maintain confidentiality of such Confidential Information pursuant to the terms of this Agreement.
10.3 Notwithstanding any provision in this Agreement to the contrary, each party may disclose Confidential Information of the other party to the extent it is required to be disclosed pursuant to a valid order or requirement of a governmental agency or court of competent jurisdiction.
11. Representations and Warranties; Disclaimers
11.1 Mutual Warranties. Each party represents and warrants to the other that (a) it has all necessary right, power and ability to execute this Agreement and to perform its obligations therein; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery or performance of this Agreement, (c) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms, (d) the party's obligations under this Agreement do not violate any law, policy or regulation or breach any other agreement to which such party is bound; and (e) it has all right, title or interest, or valid license to use its respective Marks, and that its grant of rights associated therewith do not violate any intellectual property or other proprietary rights of any third party.
11.2 MyPay Warranty
11.2.1 With respect to the Transaction Services, MyPay represents and warrants that the Transaction Services provided to Customer hereunder will conform substantially to specifications set forth in the applicable Services Documentation, as may be amended from time to time at MyPay’s sole discretion. The preceding warranty will not apply if (a) any Transaction Services or products provided hereunder are used in material variation with this Agreement or Services Documentation; (b) any Transaction Services or products have been modified without the prior written consent of MyPay; or (c) a defect in any Transaction Services or products has been caused by any of Customer’s malfunctioning equipment or software. Customer expressly acknowledges that the Transaction Services are computer network-based services, which may be subject to outages, interruptions, attacks by third parties and delay occurrences.
11.2.2 In the event Customer discovers that any Transaction Services or products are not in conformance with the representations and warranties made in Section 11.2.1 and report such non-conformity to MyPay or if the Transaction Services are subject to outages, interruptions, attacks by third parties and delay occurrences, MyPay shall use commercially reasonable efforts to remedy material interruptions and will provide adjustments, repairs and replacements, within its capacity, that are necessary to enable the Transaction Services to perform their intended functions in a reasonable manner. Customer acknowledges that MyPay does not warrant that such efforts will be successful. If MyPay's efforts are not successful, Customer may immediately terminate this Agreement. The foregoing shall constitute Customer’s sole remedy, and MyPay's sole liability, in the event of interruption, outage or other delay occurrences in the Transaction Services. MyPay does not warrant the services of any third party, including without limitation, the Merchant Service Provider, bank or any third party processor.
11.2.3 DISCLAIMER. THE TRANSACTION SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. MYPAY DOES NOT REPRESENT OR WARRANT THAT THE TRANSACTION SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. CUSTOMER MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE TRANSACTION SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING REPRESENTATIONS OR WARRANTIES OF ANY PAYMENT SERVICE PROVIDERS AND PAYMENT PROCESSORS. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.2.1, MYPAY SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE TRANSACTION SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT MYPAY SHALL BEAR NO RISK WITH RESPECT TO CUSTOMER’S SALE OF PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CARD FRAUD OR CHARGEBACKS.