Last updated 3rd October, 2022.
“This Merchant Services Agreement is made this day (Today's date) of (this month) 2022 (“Effective Date”) between [Your company], a company registered in Nigeria, with its registered address at [Your company address] (“Merchant”) and Kora Payments Network Limited, a company registered in Nigeria, with its registered address at 180, Freedom Way, Lekki Phase 1 Lagos (“Kora”).”
Each of Kora and the Merchant is referred to as a "Party"; and both are referred to as the "Parties".
1.1 This Agreement sets out the basis on which Kora will provide to the Merchant, processing, reconciling, and reporting of payment transactions and other related operations in accordance with this Agreement or as otherwise agreed by the Parties in writing from time to time (“Services”). This Agreement may be supplemented by specific terms approved and notified by Kora to the Merchant in writing from time to time.
1.2 Kora may subcontract or delegate the performance of its obligations under this Agreement to third parties including any of its Affiliates and may, at its discretion, inform the Merchant. However, Kora shall remain responsible for the actions of the subcontractee or delegatee.
1.3 The Agreement constitutes the entire agreement between the Parties in respect of the Services and supersedes any previous agreement, whether express or implied.
2. Definitions and Interpretation
2.1 In this Agreement:
“Acquirer” means a licensed commercial bank in the Federal Republic of Nigeria which is responsible for maintaining the Merchant Bank Account.
"Affiliate" means, in relation to either Party, any entity in the same group as that Party, including but not limited to a subsidiary or a holding company of that Party and any direct or indirect subsidiaries of such holding company.
“Agreement” means this Agreement, any Service supplements, including any appendices, amendments, modifications, extensions, and revisions to this Agreement.
"Applicable Laws" means all provisions of statues, laws, rules, codes, treaties, ordinances, directives, directions, injunctions, awards and/or regulations in the jurisdiction(s) of operation of either Party, including that from any court, governmental, intergovernmental or supranational authority, or self-regulatory organization, and including requests, guidelines or decisions from regulators or associations as amended and re-enacted from time to time which are applicable to either of the Parties.
"Business Day" means a day other than a Saturday or a Sunday on which banks are open for business in Lagos State, Nigeria or a public holiday declared by the Federal Government of Nigeria.
“CBN” means the Central Bank of Nigeria.
"Card Scheme" includes MasterCard, Verve or Visa, and other similar schemes which govern the issue and use of any payment methods acceptable by Kora.
"Card Scheme Rules" means any and all rules, regulations, standards, and operating guidelines issued by any Card Scheme, as amended and restated from time to time which are applicable to the Merchant.
"Chargeback" means a circumstance where a Card Scheme or other financial institution requires repayment in respect of a transaction previously settled and/or remitted to the Merchant, notwithstanding that authorization may already have been obtained.
"Confidential Information" means any and all written, oral visual, machine-readable or other tangible or intangible forms of information (whether patentable or copyrightable or not), data, techniques, plans, strategies, opportunities or trade secrets which is not generally available to the public as disclosed or delivered by either Party (the "Disclosing Party") to the other Party ("Receiving Party") whether before or after the Effective Date.
"Customer" means a customer of the Merchant in relation to a payment transaction processed using the Services.
"Customer Data" means data relating to Customers that (a) the Merchant provides to Kora in connection with the Services, or (b) Kora generates on the basis of those data.
"Data" means documents, records, and any other data of any kind relating to the transactions.
"Fees" means all fees, charges and other payments to be made by the Merchant to Kora from time to time and more particularly set out in Appendix A.
"Fines" means any and all fines, levies, costs, expenses, charges, assessments or imposition of liabilities of any nature which the Card Schemes or other financial institution require either the Merchant or Kora to pay or which are otherwise directly or indirectly recovered from Kora at any time and which relate to any aspect of this Agreement (including the provision of the Services hereunder).
"Further Guidance" means any and all internal or external documents, guidance, policies, and processes outlined or published by Kora in relation to the Services.
"Kora Website" means www.korahq.com.
"Merchant Bank Account" has the meaning given to it in clause 5.3.
"Payment" means the relevant payment due to the Merchant from Kora on the Payment Date in respect of the transactions.
"Payment Date" means (i) T+1 for local card transactions; or (ii) T+9 for foreign card transactions.
"Refund" means a return of an amount to a customer's account or the reversal of any other payment pursuant to a request or instruction from the Merchant to Kora.
"Services" is as defined in clause 1.1.
2.1 Unless a contrary indication appears any reference in this Agreement to:
2.2.1 any reference to "including" and "include" shall mean including and include "without limitation";
2.2.2 the singular or plural shall each be deemed to include the other unless the context otherwise indicates;
2.2.3 a "Clause", an “Appendix”, or a "Schedule" is, unless the context otherwise requires, a reference to a Clause in or a Schedule to this Agreement.
Except as otherwise expressly worded herein, and as required (but not permitted) by Applicable Law, a person who is not a Party to this Agreement has no right to enforce or to enjoy the benefit of any term of this Agreement.
The terms of this Agreement have been negotiated by the Parties and drafted for the benefit of the Parties. Accordingly, any rule in terms of which an agreement will be interpreted against the Party responsible for the drafting and preparation of the agreement will not apply in the interpretation of this Agreement.
3. Rights and obligations of Kora
3.1 Kora will, in consideration for the Fees and compliance by the Merchant with the terms of this Agreement, provide the Services with reasonable skill and care, in accordance with the terms of this Agreement, Applicable Law and Card Scheme Rules and for the duration of this Agreement.
3.2 Where the Merchant requires that Kora provides it with an additional service other than those contemplated at the Effective Date, the Merchant shall submit a written request to Kora for such additional service and Kora shall have no obligation to provide such additional services to the Merchant until it has received the written request from the Merchant. Notwithstanding anything to the contrary in this Agreement or otherwise, Kora shall be entitled to request additional documentation or require the Merchant to sign an addendum to this Agreement before onboarding the Merchant on such additional service. Kora may, at its sole discretion, refuse to grant such a request without reason.
3.3 Kora may cancel, suspend or modify one, some or all of the Services without prior notice to the Merchant and with immediate effect if Kora, either unilaterally, or the advice of a Card Scheme or the instruction of a regulatory authority, reasonably considers it necessary or desirable to do so. Kora will, where practicable, notify the Merchant within 72 hours (excluding public holidays and weekends) of any such cancellation, suspension, or modification.
3.4 In order to ensure continuous compliance with the requirements of the CBN and any other regulatory body which has or may have oversight functions over Kora, the Merchant understands and accepts that Kora provides its Services subject to the written approvals, directives, notices, or authorizations as may be issued by the CBN (or any such other regulatory authority, where applicable) directly to Kora from time to time. The Merchant further accepts that Kora may make any such changes to the Services or this Agreement as are necessary to ensure compliance with the regulatory directive. Kora will, where practicable, notify the Merchant within 72 hours (excluding public holidays and weekends) of any such change.
4.1 Kora shall maintain a record of all the transactions carried out by Kora on behalf of the Merchant. The Merchant shall be able to monitor all the transactions relating to its account.
4.2 Kora shall, on each Payment Date, send by direct bank transfer to the Merchant Bank Account any Payment after the deduction of the Fees due to it.
4.3 Kora is entitled to recover the Fees and the sums set out in clause 4.4 by:
- deduction from the next Payment due to the relevant Merchant;
- debit from the relevant Merchant Bank Account, in accordance with clause 5.4 below;
- invoice (in which case such sums will be payable by the Merchant in accordance with the terms of the invoice); and/or
- any combination of the above.
4.4 Kora is entitled to recover and withhold:
- any Refunds;
- any Chargebacks and any Fines;
- any amounts required to cover any:
Chargeback costs, Fines, taxes, levies, value-added tax (VAT), withholding taxes and any liability relating to a transaction or;
- liability of the Merchant under this Agreement; and
- any other charges or amounts incurred by or due to Kora under or in connection with this Agreement.
4.5 If the value of the Fees and the categories of claims which Kora is entitled to recover as set out in clause 4.4 exceed the aggregate value of a Payment due to the Merchant on any Payment Date, the shortfall may be deducted (together with any accrued interests) on the next Payment Date. In addition, the relevant Kora payment provider/partner reserves the right to require immediate payment of all or part of such shortfall at any time (together with interest).
4.6 Kora is entitled to defer any Payment or any other sum due to the Merchant to the extent that Kora, in its absolute discretion, considers necessary or appropriate to protect its ability to recover the Fees and/or the sums set out in clause 4.4 or any other liability (actual or anticipated) of the Merchant in connection with this Agreement.
4.7 Kora may amend the Fees (Appendix A) by providing 30 calendar days' prior written notice. Such change will become effective on the calendar day immediately following the end of this period except a notice of objection is received from the Merchant before the expiration of the timeline. The Merchant understands that failure to agree to the revised fees may result in a suspension or termination of a part or all of the Services, as applicable.
4.8 If Kora has reasonable suspicion that a transaction may be fraudulent or involve other criminal activity, Kora may suspend the processing of that, and any connected transaction, or withhold Payment until the satisfactory completion of any investigation.
4.9 The Merchant shall not be entitled to any interest or other compensation whatsoever in respect to suspension or delay in receiving Payment.
5. Rights and obligations of the merchant
5.1 The Merchant shall comply with Applicable Laws and relevant Card Scheme Rules. The Merchant shall not act in contravention of or cause Kora to act in contravention of any Card Scheme Rules to which Kora is subject.
5.2 The Merchant shall only accept payments and/or process Refunds:
- from Customers in connection with goods and/or services supplied by the Merchant; or
- in respect of goods and services which: commonly fall within its business as identified in its request to Kora for the Services, and
- the customer would reasonably expect to receive;
- and in respect of goods or services the provision of which is in accordance with Applicable Law.
5.3 The Merchant shall, at all relevant times, maintain a bank account in a reputable bank acceptable to Kora in the Merchant’s name, into which the Merchant will receive the Payments, and from which the Merchants may make payments to Kora ("Merchant Bank Account").
5.4 Where it has been agreed that Kora may debit a Merchant Bank Account, the Merchant shall:
- maintain with its bank an instruction to authorize all such debits and/or provide Kora with any necessary mandate or authority; and
- deposit funds in the Merchant Bank Account as Kora may in good faith consider necessary.
5.5 While Kora may provide installation guides, the Merchant remains solely responsible for ensuring the correct implementation, installation, integration, security, and operation of all systems, equipment, software, and telecommunications and use of the Services on its own platform.
5.6 The Merchant shall provide immediate notice of (i) any unauthorized third-party use of the Services; and/or (ii) any event which might lead to such unauthorized use.
5.7 The Merchant shall take all reasonable steps to assist Kora in handling any claim or query raised by any other third party in relation to the Services.
5.8 The Merchant shall immediately notify Kora of any act, omission or error which does or may adversely affect the Merchant's ability to perform their obligations under this Agreement or cause loss or damage to Kora (including but not limited to any material change in the nature or extent of the Merchant's business).
5.9 The Merchant acknowledges and agrees to abide by this Agreement and any other policy, rules or instruction by Kora, and ensure that all equipment and software it uses in connection with the transactions and the storage and/or processing of Data complies with, any payment application data security standards of any relevant Card Scheme as updated from time to time. The Merchant shall ensure that any of its agents, sub-contractors or any third parties used by it in relation to the transactions is aware of and shall comply with the terms of this clause.
5.10 The Merchant shall immediately notify Kora on becoming aware of any actual or suspected security breach relating to any Data. As soon as reasonably practicable, the Merchant shall identify and remediate the source of such a security breach and take any additional steps required by Kora. This clause shall not prejudice any other remedies available to Kora under this Agreement.
5.11 The Merchant shall comply with any additional security, authentication, risk control, or other requirements imposed by Kora or a Card Scheme, including but not limited to where that Merchant is, in the opinion of Kora and/or the Card Scheme, engaged in high-risk activities.
5.12 The Merchant shall not engage in any practice prohibited by any of the Card Scheme Rules unless permitted by Applicable Law.
6.1 The Merchant acknowledges and agrees that in certain circumstances, a chargeback claim may be brought against it either directly to Kora or to any financial institution. It also acknowledges that a financial institution or Card Scheme may refuse to settle a transaction for whatever reason.
6.2 The Merchant agrees that it may be required to reimburse Kora for Chargebacks where it has accepted payment in respect of the relevant transaction (even if the Merchant is under no legal liability for the supply or performance of the goods or services concerned).
6.3 The Merchant must respond to chargeback disputes or refunds within 12 hours after a notice from Kora failing which the dispute shall be resolved against the Merchant and Kora shall bear no liability or be obligated to provide any further assistance in respect of the resolved claim.
6.4 All Chargebacks shall correspond to the whole or part of the settlement value of the original transaction or, if applicable, at the option of Kora, to an amount converted to the settlement currency from the currency of Chargeback by the Card Scheme or other financial institution to Kora at the rate of exchange quoted by Kora for settlement purposes on the day the Chargeback is processed.
6.5 In the event that the Merchant disputes the claim, the Merchant undertakes that Kora is entitled to withhold the funds due to the Merchant from Kora, or the Merchant’s funds in its wallet with Kora, pending the resolution of the Chargeback claim. Notwithstanding, Kora shall be entitled to recover any other costs, expenses, liabilities, or Fines incurred as a result of or in connection with such Chargeback ("Chargeback Costs").
6.6 Kora shall not be obliged to investigate the validity of any Chargeback by any Card Scheme or other financial institution, whose decision shall be final and binding in respect of any Chargeback.
6.7 Kora shall remain entitled to recover Chargebacks and Chargeback Costs from the Merchant in respect of all Chargebacks that arise within 180 days after the relevant transaction, even where such timeline is after the termination of the contractual relationship between the Merchant and Kora.
6.8 Kora may immediately pass on and recover from the Merchant any Fines or further charges incurred as a result of or in connection with Chargeback Costs and/or terminate this Agreement and the Services provided hereunder if Kora in its sole opinion considers that the total value of Refunds and/or Chargebacks is unreasonable.
6.9 It is the Merchant's responsibility to prove to Kora's satisfaction that the debit of a customer's account was authorized by such a customer.
6.10 The Merchant must at all times maintain a chargeback and refund threshold of 0.5% on Kora platform failing which Kora may, upon notifying the Merchant, (i) shift any liability arising from non-compliance with the threshold to the Merchant; and/or (ii) discontinue the provision of the Services to the Merchant altogether without any further notice.
6.11 The Merchant understands that it is its duty to monitor its activities to ensure it does not exceed this threshold within thirty (30) calendar days.
6.12 The Merchant agrees to process returns of, and provide refunds and adjustments for, products sold and/or payment collected through its merchant site in accordance with this Agreement, the Acquirer’s instructions, and relevant Card Schemes. The Merchant understands that all refunds must be routed through the same Acquirer payment gateway through which the transaction was made. In the event that the Merchant initiates refunds through any other mode, the Merchant shall be fully liable for all Chargebacks raised in respect of the transaction.
6.13 The Merchant agrees and confirms that it shall remain solely liable after the termination of the Agreement for all Chargebacks, refunds, penalties, loss, damages or cost incurred by Kora, Acquirers, Card Schemes and/or Customers and for all claims and proceedings arising against Kora and/or an Acquirer with respect to the Agreement.
7.1 Kora may, upon notice to the Merchant, set off any debts or liabilities due from the Merchant or Merchants Affiliates to Kora or any of its Affiliates under this Agreement against any debts or liabilities owed by Kora or any of its Affiliates to the Merchant or Merchant Affiliates, regardless of the place of payment or currency of either obligation. If the obligations are in different currencies, then Kora may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
7.2 The exercise by Kora of any of its rights under this clause shall be without prejudice to any other rights or remedies (including but not limited to set-off) to which Kora or its Affiliates are otherwise entitled (by operation of law, contract, or otherwise).
8.1 Kora may offer or require the Merchant to accept certain anti-money laundering, combating the financing of terrorism (AML/CFT) and fraud prevention services ("AML/CFT and Fraud Prevention Services"). Where the Merchant receives any AML/CFT and Fraud Prevention Services, it will comply with any additional terms governing those AML/CFT and Fraud Prevention Services.
8.2 The Merchant acknowledges and agrees that the processing of transactions and/or the making of Payments may be delayed and/or suspended in a connection where Kora or any Kora Affiliate has a reasonable suspicion that a transaction may be fraudulent or involve other criminal activity.
8.3 The Merchant must not submit, and Kora must not accept, any transaction that the Merchant and/or Kora either know is, or should have known was, illegal. For the avoidance of doubt, for the purposes of clause 8.3, the Merchant is deemed to be responsible for the conduct of its employees, agents, and representatives.
8.4 The Merchant shall at all times provide Kora with reasonable assistance on request for the prevention and detection of fraud or other criminal activity in respect of transactions.
9. Representations and warranties
9.1 The Merchant represents and warrants to Kora as follows:
The Merchant is a company duly incorporated, organized, and/or authorized and in good standing under the laws of the state, region, or country of its organization.
The Merchant shall continue to hold valid licenses, consents and approvals required for its to provide its services, and such as have been requested by Kora during the onboarding of the Merchant, throughout the duration of the Agreement.
The Merchant shall not provide to any third party, the API or documentation, or any other proprietary software or information, or any technology or process whatsoever, provided by Kora to it in connection with this Agreement.
The Merchant understands that at all times Kora retains full right to the API and other software or technology owned by it.
The Merchant has full capacity, power, and authority to abide by this Agreement and to exercise its rights and perform its obligations hereunder.
All corporate action required to enter into this Agreement by the Merchant and the exercise by it of its rights and the performance by it of its obligations under this Agreement has been duly taken.
This Agreement is valid, binding, and enforceable against the Merchant in accordance with its terms and no provision of this Agreement is in conflict with any of the Merchant's obligations under its constitutional documents, Applicable Law, or any other document, charter or agreement to which the Merchant is subject.
The Merchant will use the Services in good faith, in accordance with the terms of this Agreement and in accordance with all Applicable Law, Card Scheme Rules and Further Guidance. In particular, the Merchant will not use the Services in a manner that could result in a violation of anti-money laundering, counter-terrorist financing, and similar legal and regulatory obligations.
The Merchant shall comply with any technical specifications available on the Kora Website, which Kora reserves the right to modify at any time.
Kora is not part of, nor participates in sales and procurement contracts executed between the Merchant and its Customers. The Merchant shall comply with consumer obligations, data privacy obligations, tax obligations, exchange obligations, or any other obligation established in mandatory Applicable Law. The Merchant is responsible for acknowledging and meeting the legislation in force and applicable to its activity in the countries where it operates and uses the Services.
9.2 Kora represents to the Merchant that Kora has the power and authority to enter into this Agreement and to perform its obligations.
10.1 The Merchant shall at all times immediately disclose to Kora such information as Kora may reasonably require for the provision of the Services, including (but not limited to) any information required to satisfy the reporting or other obligations (including financial obligations) of the Merchant under this Agreement, any Card Scheme Rule and / or Applicable law.
10.2 The Merchant shall immediately notify Kora of any material change in such information, including any material change in the financial position of the Merchant for the duration of the provision of the Services.
10.3 Kora may retain such information as long as it may be required by Applicable Law or as per the contractual obligation with Kora whichever is greater.
10.4 Subject to Applicable Law, Kora may use information, collect information and share information with their Affiliates, Card Schemes, fraud prevention agencies, and criminal enforcement authorities to the extent Kora may reasonably consider necessary or appropriate for the provision of the Services and/or compliance with this Agreement, Applicable Law, Card Scheme Rules and Further Guidance.
10.5 The Merchant acknowledges and agrees that:
Card Schemes to which Kora discloses information may (i) maintain databases (which may be available to third parties including regulators and other authorities) containing information regarding the conduct of transactions by merchants; and/or (ii) categorize undesirable conduct of merchants; and
If any of the Services or this Agreement is terminated pursuant to clause 17, relevant Card Schemes may, subject to Applicable Law, be notified and may retain such information in accordance with their normal practice.
10.6 Kora shall have no liability to the Merchant for any inaccuracy in the information provided to any third parties pursuant to this clause 10, provided it acted in good faith.
11. Data management and protection
11.1 The Merchant shall abide by Applicable Law, and its contractual and other obligations to its customers, in providing Customer Data to Kora and processing Customer Data through the use of the Services.
11.2 Kora may not use or disclose Customer Data except as permitted by clause 11.3.
11.3 Kora may use and disclose Customer Data, in accordance with Applicable Law, for the following purposes: (a) providing, improving and developing the Services; (b) market research and trend analysis; (c) taking steps to prevent, detect or prosecute fraud and other offenses and/or to comply with Applicable Law; (d) sending marketing and other communications to Customers; and (f) other purposes authorized by the Merchant in this Agreement or applicable Jurisdiction Specific Conditions or otherwise in writing. Kora may also take steps to derive anonymized Customer Data from identifiable Customer Data, and may use and disclose anonymized Customer Data, for any lawful purposes, in accordance with Applicable Law.
11.4 The Merchant undertakes and warrants to Kora that it has obtained the requisite consent of the Customers for Kora to utilize the Customer Data for the purposes listed in clause 11.3 and any other purpose which may be agreed by the Parties. Notwithstanding the foregoing, where required by Kora, the Merchant shall provide such information and offer such choices to, and obtain such consents from, its Customers as are reasonably required to enable Kora to use and disclose the Customer Data as set out in clause 11.3 in accordance with Applicable Law. Where a required consent to (or failure to exercise an opt-out from) use of Customer Data for any of the purposes specified in clause 11.3 cannot be made a condition to processing a transaction under Applicable Law, the Merchant shall (i) nonetheless use reasonable endeavors to facilitate Customer choices allowing such use and disclosure; (ii) immediately notify Kora of any other lawful basis under which it is sharing the data; and (ii) promptly notify Kora in writing of any required consent which is withheld or subsequently withdrawn and any opt-out choice which is exercised.
Every liability of a Data Controller in respect to the Customer Data collected pursuant to clauses 11.3 and 11.4 are hereby undertaken, and are, to be borne by the Merchant.
11.5 Where Kora acts as a processor on behalf of the Merchant in respect of this Agreement:
only process those Customer Data on the instructions of the Merchant; and
have in place appropriate technical and organizational measures to protect those Customer Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular (but not only) where the processing involves the transmission of data over a network, and against all other unlawful forms of processing; and
The Merchant instructs Kora to take such steps in the processing of those Customer Data as Kora considers necessary or desirable for the provision of the Services.
12.1 All intellectual property rights relating to the Services are owned by and vest exclusively in Kora and its Affiliates. The information given by the Merchant to its clients concerning the Services does not create any intellectual property or other rights on the part of the Merchant over the Services or their functionalities, or, without limitation, over the trademarks, trade names, goodwill, domain names, websites, computer software (source or object code), data, logos, images, copyrighted materials, patents, inventions, know-how, or any other information, owned by Kora, their Affiliates, and/or their suppliers or subcontractors.
12.2 The Merchant shall comply with any and all relevant Card Scheme Rules relating to the trademarks, data, logos, images, copyrighted materials, or any other protected intellectual property of such Card Scheme ("Marks").
12.3 Any use of a Mark by the Merchant in advertising, acceptance decals, or signs, must be in accordance with any Card Scheme Rules, including the Card Scheme's reproduction, usage, and artwork standards, as may be in effect from time to time.
12.4 The Merchant use or display of any Mark will terminate effective with the termination of this Agreement or upon notification to the Merchant by the relevant Card Scheme to discontinue such use or display.
12.5 Notwithstanding the above, the Merchant gives Kora and / or the Service Provider(s) the right to use its name or company name, and also to mention its business activity, in any promotions or advertising concerning the Services, regardless of the type of advertising or media used.
13.1 During the term of this Agreement and for two years from the date that this Agreement is terminated, the Receiving Party may not use Confidential Information for a purpose other than the performance of its obligations under this Agreement. In particular, the Receiving Party may not disclose Confidential Information to a person except with the prior written consent of the Disclosing Party or in accordance with the provisions of this clause 13.
13.2 During the term of this Agreement the Receiving Party may disclose Confidential Information to any of its directors, other officers, employees, agents, Affiliates, delegates, sub-contractors, and customers on a strictly need-to-know basis to the extent that disclosure is necessary or desirable for the purposes of this Agreement. The Receiving Party shall ensure that any such recipient is made aware of and complies with the Receiving Party's obligations of confidentiality under this Agreement as if such recipient was a Party to this Agreement.
13.3 Clauses 13.1 and 13.2 do not apply to Confidential Information:
which is at the date of this Agreement, or at any time after that date becomes, publicly known other than by the Receiving Party's or other recipient's breach of this Agreement;
which can be shown by the Receiving Party to the Disclosing Party's satisfaction to have been known by the Receiving Party before disclosure by the Disclosing Party to the Receiving Party. Or
to the extent required by Applicable Law provided that in these circumstances the Receiving Party shall advise the Disclosing Party of the same prior to such disclosure, in order for the Disclosing Party to take whatever steps it deems necessary to protect its interest in this regard.
13.4 If the Receiving Party receives a notice from a governmental authority or faces legal action to disclose Confidential Information received under this Agreement, then the Receiving Party shall promptly, if not prohibited by law/notice/governmental authority, notify the Disclosing Party of the same such that the Disclosing Party may have the opportunity to intercede, obtain a protective order and contest such disclosure and, upon request, shall cooperate with the Disclosing Party in contesting such a disclosure. Further, the Parties agree that in the event the Receiving Party is required to disclose the Confidential Information pursuant to the legal action, notice, order, it shall not disclose any Confidential Information in excess of the legal requirement and to any other person.
14.1 All obligations on Kora arising out of or in connection with this Agreement are obligations to use reasonable efforts and not obligations to achieve a specific result.
14.2 Except as set out in this Agreement or prescribed by law, all conditions, warranties and representations, expressed or implied by (i) statute, (ii) common law or (iii) otherwise, in relation to the Services are excluded.
14.3 Kora is not liable to the Merchant under any circumstance, whether for negligence, breach of contract, misrepresentation or otherwise, for:
loss or damage which is incurred by the Merchant as a result of:
a. third party claims;
b. viruses, malicious or disruptive codes, power cuts or service interruptions or other IT or hardware or software problems or faults;
c. decisions by any relevant court, regulatory or other authority or the operation of Applicable Law; and/or
d. loss of profit, goodwill, business opportunity or anticipated saving suffered by the Merchant;
indirect, consequential, punitive, exemplary or similar loss or damage (including damage to reputation) suffered by the Merchant; and/or
loss or damage which may be the consequence, wholly or partially, of a breach by the Merchant of this Agreement.
14.4 The entire liability of Kora under or in connection with this Agreement whether for negligence, breach of contract, misrepresentation or otherwise, is limited, in respect of each event or series of connected events, to the total Fees (Appendix A) paid by the Merchant under this Agreement to Kora during the twelve (12) month period immediately preceding the event that gave rise to the claim.
14.5 Nothing in this Agreement shall operate to exclude or restrict the liability of Kora for death or personal injury or for any matter which such liability cannot be lawfully excluded or limited.
14.6 Notwithstanding any provision to the contrary, in relation to any obligations that Kora may have that arise, Kora shall not be liable in the event that abnormal and unforeseeable circumstances beyond their control prevent them from fulfilling their obligations under this Agreement.
15.1 The Merchant shall indemnify, and keep indemnified Kora and their Affiliates, officers, employees and agents (each an "Indemnified Party"), immediately on demand against each loss, liability or cost (including, without limitation, that incurred defending or settling a claim alleging such a liability) which they incur as a result of:
any breach of the terms of this Agreement, improper use of the Services, violation of Applicable Law or Card Scheme Rules, conduct categorized as undesirable by any Card Scheme, or violation of the rights of any third party, by the Merchant, any of their Affiliates or any person acting on their behalf;
use of the API by an agent or affiliate of the Merchant which results in any claim, demand, fine or court action which may be brought against Kora or a liability being incurred by Kora in respect of any part of this Agreement; and/or
processing of Customer Data by an Indemnified Party as may reasonably be necessary to provide the Services.
15.2 For the avoidance of doubt, the Merchant shall fully, irrevocably and unconditionally indemnify Kora from and against any liability which may be incurred by Kora as a result of the use of Kora’s API by an agent of the Merchant.
15.3 Nothing in this clause 15 restricts or limits the general obligation at law for an Indemnified Party to take reasonable efforts to mitigate losses.
16.1 Kora reserves the right to require that the Merchant provide (or procure the provision of) security in such form and over such assets for a period of 180 days, usually between 10% to 20% of the settlement due to the Merchant, as Kora shall require to secure the performance of the Merchant's actual, contingent or potential obligations under this Agreement or otherwise in connection with the Services. Such security may take the form of collateral (in the form of retained Payments or otherwise), a rolling reserve (especially for card transactions), a guarantee or indemnity. Kora reserves the right to unilaterally call for an increase to the level of security held.
16.2 Kora may require that any security provided be supplemented or replaced at any time.
16.3 Where the need for the security does not arise within the holding period with Kora, Kora shall credit the Merchant’s account with the same on the 181st day.
16.4 At the time of termination, Kora may retain such amount from the security (if any) and Payment payable to the Merchant as may be determined by Kora to cover Chargeback risk, refund risk or any potential loss, damages, penalties, cost that may be incurred by Kora for a period of 180 Business Days. In the event that such retained amount is not sufficient to cover all outstanding amounts of the Merchant post-termination, the Merchant shall ensure that it pays Kora all pending amounts within 5 (five) Business Days of receiving the demand notice and shall at all times keep Kora indemnified in this respect.
17.1 The Merchant shall permit the authorized representatives of Kora and/or the Acquirers to carry out physical inspections of the place(s) of business or other facilities of the Merchant to verify if the Merchant is in compliance with its obligations hereunder.
17.2 If the Merchant refuses such inspection or provides inaccurate, untrue, or incomplete information, or fails to comply with the terms and conditions of this Agreement, Kora reserves the right to suspend or terminate the Kora Services with immediate effect.
18. Term and termination
18.1 Unless otherwise agreed, this Agreement has an initial term of one year ("Initial Term") unless terminated or suspended as provided for in the Agreement. Unless either party gives written notice to terminate the Agreement (not later than 30 days prior to the end of the Initial Term or any successive periods) this Agreement is automatically renewed for successive one year periods
18.2 A Party ("Initiating Party") may terminate this Agreement with immediate effect by written notice to the other Party ("Breaching Party") if any of the following events take place or is expected to take place:
The Breaching Party is in material breach (whether or not a repudiatory breach) of an obligation under this Agreement and, if the breach is capable of remedy, the Breaching Party has failed to remedy that breach within 30 days after receipt of written notice of the breach;
The Breaching Party has passed a resolution for its winding up or a court of competent jurisdiction has made an order for the Breaching Party's winding up or dissolution;
An administration order has been made in relation to the Breaching Party or a receiver, or an encumbrancer has been appointed to take possession of or sell, assets of the Breaching Party;
The Breaching Party has made an arrangement or composition with its creditors generally or has made an application to a court of competent jurisdiction for protection from its creditors generally; or
Any other procedure having a similar effect to the above is initiated.
18.3 Kora may suspend or terminate this Agreement by written notice to the Merchant with immediate effect if Kora is of the opinion that any of the following events have taken place or are expected to take place:
The Merchant ceases to carry on business;
The Merchant merges with any other person or in any other way changes the persons who have the ability to direct, guide or otherwise influence its affairs;
Kora is unable to recover the Fees (Appendix A) or other sums set out at clause 4.3 for any reason, or considers that the total value of Refunds and/or Chargebacks is unreasonable;
Kora determines that continuing to provide the Services to the Merchant represents an increased risk of loss or liability or risk to reputation to Kora or any of its Affiliates;
the Merchant engages in any trading practices or other activity which might give rise to fraud or any other criminal activity or suspicion of fraud or any other criminal activity;
security granted by the Merchant under this Agreement ceases to be sufficient, enforceable or available;
any claim or action in connection with this Agreement or the Services hereunder is threatened or commenced by either Party;
the Merchant breaches any Card Scheme Rules;
where any Card Scheme Rule would otherwise be broken by either the Merchant or Kora; or
Kora is required or requested to do so by any Card Scheme or another financial institution or Kora is subject to Fines from any Card Scheme, other financial institutions, or any other third party arising from the provision of the Services.
18.4 A Card Scheme may limit, suspend, or terminate this Agreement and the Services provided hereunder by notice to the Merchant with immediate effect if that Card Scheme, in its absolute discretion, so decides.
18.5 Termination of this Agreement, does not affect a Party's accrued rights and obligations at the date of termination.
18.6 Clauses 4.2, 4.3, 5.1, 5.7, 5.9, 5.10, 5.11, 6, 7, 10.3, 10.4, 10.5, 10.6, 12, 13, 14, 15 and 16.3 shall survive termination of this Agreement.
18.7 Each Party's further rights and obligations shall cease immediately on termination except as otherwise specified in this Agreement, except that those clauses, the survival of which is necessary for the interpretation or enforcement of this Agreement, shall survive termination of this
18.8 Agreement, and shall continue in full force and effect.
18.9 If a Service is terminated for any reason, the Merchant will pay all Fees (Appendix A) payable up to the termination date.
18.10 The Merchant undertakes to provide Kora with evidence of commencement of the renewal process for every license and/or approvals which require renewal, within 30 days from the date of expiration of that license or approval. The Merchant understands that Kora may terminate this Agreement immediately or suspend the provision of the service where such is not provided to it.
The Merchant may not assign, transfer or purport to assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Kora (such consent not to be unreasonably withheld or delayed). Subject to clause 1.2, Kora may assign, transfer or purport to assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Merchant.
20.1 Neither Kora nor the Merchant shall be in breach of this Agreement or liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (such affected party, the "Affected Party" and such event, a "Force Majeure Event"). In such circumstances, the Affected Party shall be entitled to a reasonable extension of the time for performing such obligations.
20.2 As soon as reasonably possible after the start of the Force Majeure Event the Affected Party shall notify the other Party in writing of the details and effect of the Force Majeure Event. As soon as reasonably possible after the end of the Force Majeure Event, the Affected Party shall resume performance of its obligations under this Agreement.
20.3 The Affected Party shall make all reasonable efforts to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Agreement.
21.1 Except for the service of proceedings, a notice under or in connection with this Agreement (a "Notice"): shall be in writing; and
may be delivered personally or sent by electronic mail or first class post, or pre-paid recorded delivery, (and airmail if overseas) to the Party due to receive the Notice at its address set out in clause 25 or to another address specified by that Party by not less than seven days’ written notice to the other Party.
21.2 Unless there is evidence that it was received earlier or later a Notice is deemed given:
if sent by electronic mail, the next Business Day assuming that no notification of failure to deliver the electronic mail was received by the sending party;
if sent by post, except airmail, two Business Days after posting it; and
if sent by airmail, six Business Days after posting it.
22.1 Kora may revise the provisions in this Agreement or introduce additional Agreement at any time and from time to time. Kora shall notify the Merchant of any revision or addition to the Agreement in accordance with clause 21 at least 30 calendar days before the date such revision or addition is to become effective. Each such amendment shall be binding on the Merchant from the effective date of that amendment.
22.2 If any provision in this Agreement becomes illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
22.3 Should Kora fail or delay in exercising any right or remedy under this Agreement, such failure or delay shall not constitute a waiver of that right or remedy. A waiver is only effective if made in writing in accordance with clause 20 of this Agreement. A waiver is only effective in respect of the particular circumstances for which it is given.
The relationship between Kora and the Merchant is on a principal-to-principal basis. Nothing contained herein shall be deemed to create any association, partnership, joint venture or relationship of principal and agent or master and servant, or employer and employee between the Parties hereto or any affiliates or subsidiaries thereof or to provide either Party with the right, power or authority, whether express or implied to create any such duty or obligation on behalf of the other Party.
24. Governing Law and Enforcement
24.1 This Agreement and any non-contractual obligations arising out of or in connection with it are governed by laws of the Federal Republic of Nigeria.
24.2 Any disputes between the parties arising from or related to this Agreement shall be settled by arbitration in accordance with the Lagos State Arbitration Law 2009. The arbitration venue shall be Lagos and the language shall be English.