MERCHANT ACQUIRING SERVICES AGREEMENT

THIS MERCHANT ACQUIRING SERVICES AGREEMENT (“AGREEMENT”) is effective on the date of signing of the Fasspay Merchant Application Form by the Merchant (as defined herein).

AND IS ENTERED INTO BY AND BETWEEN

(1)

Fass Payment Solutions Sdn. Bhd. (Registration No. 201201032773 (1017261-P)), a company incorporated in Malaysia under the laws of Malaysia having its registered address at IOI Boulevard Block D, Unit 55-2, Jalan Kenari 5, Bandar Puchong Jaya, 47100 Puchong, Selangor and its principal place of business at Unit 15-15, Level 15 Q Sentral, 2A, Jalan Stesen Sentral 2, Kuala Lumpur Sentral, 50470 Kuala Lumpur, Malaysia (“Fasspay”)

AND

(2)

The entity whose name, legal description and business address as stated in the Fasspay Merchant Application Form (“Merchant”)

Fasspay and the Merchant shall be referred to individually as a “Party” and collectively as the “Parties”.

RECITALS

(A)	This Agreement governs the Merchant’s participation in Fasspay’s Merchant Services approved by Fasspay. By signing the Application, the Merchant agrees to accept, to comply with and to be bound by the terms and conditions in this Agreement as well as the Fasspay Policies issued by Fasspay from time to time.
(B)	The Merchant may indicate its acceptance with this Agreement by commencing the using of the Merchant Services.

DEFINITIONS

1.1

Unless the context otherwise requires, the following capitalised terms shall have the meanings set forth as follows: -

ADC	means Account Data Compromise;
ADC Event	means an ADC event which would or is likely to occur in accordance with the Standards;
Agreement	collectively, this Merchant Acquiring Services Agreement, including the Application, and the Letter of Offer, including the relevant signature pages, all terms and conditions, appendices, schedules and exhibits) as may be modified, amended, supplemented, revised or replaced by Fasspay, in its absolute discretion from time to time;
Appendices	collectively, the Application and/or the Letter of Offer, and any letters issued by Fasspay to the Merchant, from time to time;
Application	means the duly completed Fasspay Merchant Application Form submitted by the Merchant to Fasspay;
Bank	means any participating financial institutions where Fasspay maintains its transaction process via the financial institution’s gateway;
Business Day	means a day (other than a Saturday, Sunday and public holidays) on which banks and financial institutions are open for normal banking business in Kuala Lumpur;
Card	means any validly issued and unexpired credit, prepaid or debit card from any payment system operator such as Visa, MasterCard, JCB International Co. Ltd, UnionPay International Co. Ltd., MyDebit including their respective successors and assigns, as may be specified by Fasspay from time to time (collectively, the “Card Associations”) approved by Bank Negara Malaysia as set out in the Application;
Cardholder	means any person authorised by any Issuer to us the Card and whose name shall be embossed on the Card and where applicable, whose signature appears thereon as the authorised and legal user of the Card;
Card Transaction	means any payment transaction made by any Cardholder with the Merchant, through the use of the Card, which shall include any payment transaction effected by the Merchant requesting for payment from the Cardholder, by charging the Cardholder's Card, the payment to be made, as contemplated by the Payment Instructions;
Cashback	means cash given by Merchant to a Cardholder, which Cashback is processed as part of a Transaction under the MyDebit Services;
Chargeback	the return of funds to the customer by Fasspay under the instruction of any customer or client of the Merchant, due to errors, fraud or any other reason which entitles the customer’s Card Issuer to stop or reverse a payment or that obliges Fasspay to return funds;
Electronic Commerce	means the exchange of goods and services for payment made between the Cardholder and the Merchant when all of the transactions are performed via electronic communications;
Fasspay	means Fass Payment Solutions Sdn. Bhd. (Registration No. 201201032773 (1017261-P)) of Unit 15-15, 2A, Q Sentral, Jalan Stesen Sentral 2, 50470 Kuala Lumpur, Wilayah Persekutuan and includes it successors-in-title and permitted assigns;
Fasstap	means Fasspay’s tap on mobile application which enables the acceptance of contactless credit and debit Cards such as MyDebit, Visa and MasterCard, using Android based smartphones with near-field communication technology, to process contactless credit and debit card transactions;
Fasspay Payment System	includes MPOS, Fasstap, Electronic Commerce and any other payment solutions offered by Fasspay from time to time including QR code payment and electronic wallet;
Issuer	means any financial institution, bank, company, organisation, or institution which are authorised by Bank Negara Malaysia, to issue Cards to Cardholders;
Letter of Offer	means the letter(s) of offer in respect of this Agreement which was issued by Fasspay and duly accepted by the Merchant which shall be an integral part of this Agreement;
MasterCard	means MasterCard Worldwide, of 2000 Purchase Street, Purchase, NY 105772509, USA and includes its successors-in-title and assigns;
Merchant	means any retailer or person, firm or corporation, its employees, servants or agents which pursuant to this Agreement agrees to accept or cause its offices, outlets, branches and locations in Malaysia to use the Merchant Services contemplated under this Agreement, unless specifically set out otherwise in the Letter of Offer;
Merchant Discount Rate	means the amount chargeable by Fasspay to the Merchant at the rate percentage discount as set out in the Application and shall include any revised Merchant Discount Rate imposed by Fasspay on the Merchant, in its absolute discretion from time to time;
Merchant Services	means the payment processing services offered by Fasspay, which allows the Merchant to accept Card, and other payment methods through the Fasspay Payment System;
MPOS	means the Fasspay mobile point of sales solution, which is a mobile device enabled to be used as a POS Terminal, and includes the mobile payment application, payment processing services and hardware products and where the mobile payment application is only compatible with the smart card reader models provided by Fasspay;
MyDebit	means the national debit scheme to facilitate payment for commercial trade transactions pursuant to MyDebit Services offered by PayNet;
MyDebit Services	means the payment processing or banking services offered by PayNet i.e. the centralized clearing and settlement for the Transactions through MyDebit;
Net Settlement Amount	means the difference between the Transaction Value less the Merchant Discount Rate less any Chargeback less any Refund less any other associated costs payable by Merchant including the Rental.
OFAC	means the U.S Treasury Department’s Office of Foreign Assets Control;
Payment Instruction	Any instruction (whether written, verbal or electronic) given by a Cardholder to the Merchant, authorising the Merchant to charge the Cardholder’s Card for payment;
PayNet	means Payment Networks Malaysia Sdn. Bhd. a company incorporated in Malaysia with its principal office at Tower 2A, Avenue 5, Bangsar South, 8 Jalan Kerinchi, 59200 Kuala Lumpur;
POS Terminal	means any and all point-of-sales terminals, mechanical/electronic or any other device manually or electronically activated to read and/or record the data of each Card Transaction approved by Fasspay, for the purposes of this Agreement which may be replaced or returned to Fasspay in its absolute discretion;
Personal Information	means any personal information or personal data, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or data, collected by either Party during the operation, performance, management or administration of the Merchant Services;
Refund	return of previously collected funds to customers or clients of the Merchant, upon such customer or client’s request due to issues relating to the Merchant, including but not limited to, claims regarding unsatisfactory quality of the Merchant’s goods and/or services; or because such goods and/or services purchased, were returned or rejected; or because of the Merchant’s failure to perform its obligations in connection with the provision of the goods and/or services;
Sales Slip	means the relevant digital payment slips, forms or papers provided by Fasspay to the Merchant or the records of the Electronic Commerce Transactions, mail orders, telephone orders, self-service terminal or kiosks or other forms of records of transactions charged to the Card, which records the payment made or incurred by the Cardholder to the Merchant, through the use of the Card;
Settlement Function	the procedures required of and carried out by the Merchant through Fasspay Payment System for purposes of transmitting data of Card Transactions to Fasspay, to enable Fasspay to make settlement to the Merchant;
Standards	means any laws, bylaws, rules, policies and the operating regulations and the procedures of the Card Associations and the Bank, including but not limited to any manuals, guides or bulletins, as may be amended from time to time;
Tax	any present or future, direct or indirect, Malaysian or foreign tax, levy, impost, duty, charge, fee, deduction or withholding of any nature, that is imposed by any appropriate authority, including, without limitation, any consumption tax and other taxes by whatever name called, and any interest, fines or penalties in respect thereof;
Terminal Receipt	a document to evidence a Card Transaction produced by a MPOS in form and substance approved from time to time by Fasspay for the purposes of this Agreement;
Transactions	the sale and purchase transaction of goods and/or services by the Merchant and its customers by way of retail, Electronic Commerce transaction and recurring transaction;
Transaction Value	mean, with respect to each Transaction, the amount of the purchase price of the relevant product and services and Cashback (if applicable); and
UNSC	means the United Nations Security Council;
Visa	Visa International Inc., P.O. Box 8999, San Francisco, CA 94128, United States of America and includes its successors-in-title and assigns.

1.2

Except where the context otherwise requires, words denoting: -

the singular includes the plural and vice versa;
any gender includes all genders; and
persons include firms and corporations and vice versa.

1.3

This Agreement shall apply to the Merchant regarding the Merchant’s use of the Merchant Services at all offices, outlets and locations of the Merchant named herein and such other offices, outlets and locations as may be agreed between Fasspay and the Merchant from time to time, in writing.

1.4

The recitals to and the headings of this Agreement are for convenience of reference only and shall not affect the interpretation and/or enforcement of this Agreement.

1.5

The Appendices shall form and be construed as part of this Agreement. If there is any conflict or inconsistency between the Appendices and this Agreement, the Appendices will prevail to the extent of such conflict or inconsistency unless stated otherwise.

1.6

The words “other” and “including” and the phrase “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible and the word “including” shall mean “including without limitation”.

MERCHANT SERVICES

2.1

Fasspay shall provide the following Merchant Services to the Merchant, through the Fasspay Payment System as set out in the Application submitted by the Merchant to Fasspay:-

process payments made by customers to the Merchants for any Transactions;
services relating to settlement with the Merchant with respect to the transaction in paragraph (a) above;
other related and ongoing technical support services in connection with the above paragraphs (a) and (b).

2.2

From time to time under this Agreement, Fasspay may provide certain other types of payment processing services including without limitation payment processing services for transaction effected using electronic wallets or QR codes, subject to the mutual agreement between Fasspay and the Merchant in writing and the applicable addendum or supplementary agreements to be entered into between the Parties pursuant to this Clause 2.2.

MERCHANT’S OBLIGATIONS AND DUTIES WHILE ACCEPTING CARD

3.1

The Merchant shall permit and accept all Card(s) presented to it for purchases of goods and/or services under such business or at such premise(s) or outlet(s) of the Merchant as shall have been agreed between Fasspay and the Merchant in writing from time to time subject to the terms and conditions of this Agreement and provided that the Card is not declared invalid by the Issuer or is declined by the Merchant, pursuant to Clause 3.6 of this Agreement.

3.2

The Merchant agrees and confirms with Fasspay that is shall honour without discrimination any Card when presented to it as means of payment from Cardholder and shall maintain a policy that it shall not discriminate among Cardholder seeking to make purchases of the Merchant’s goods and/or services at the Merchant’s premises or from the Merchant through the use of Card.

3.3

The Merchant agrees not to charge the Cardholder any additional fees, increase price or otherwise discriminate against the Card of Cardholder, and if the Merchant does, Fasspay reserves the right to recover any such amount from the Merchant through any means Fasspay shall deem fit.

3.4

The Merchant shall honour the Card and shall not attempt to impose any restrictions or conditions on the use or acceptance of the Card when properly presented to it and in the case of Electronic Commerce Transactions when properly authenticated as a means of payment from Cardholder. All Card Transactions and sales slips shall be drawn in Ringgit Malaysia only.

3.5

While accepting the Card presented by the Cardholder, the Merchant shall ensure the Cardholder is given an appropriate amount of private space having sufficient reminder to the Cardholder to ensure the Cardholder covers the screen/keypad when entering the secure code/pin.

3.6

While accepting the Card presented by the Cardholder, the Merchant is under a duty and agrees to undertake to refuse acceptance and shall refuse acceptance of such Card if any of the following matters or circumstance shall occur:-

the expiry date of the Card has passed;
the validity of the Card is post-dated;
the Card has been declared by Fasspay or its agent or by any other issuing bank, corporation, organization or business entity authorized by the Card Associations as lost or stolen;
any material particular relating to the Cardholder has been omitted from the Card;
Fasspay or its agent or any other Issuer, corporation, organisation or business entity authorised by the Card Associations to issue the Card has declared the Card invalid on account of any reason whatsoever;
the Card has been altered, damaged, defaced, re-printed or re-embossed on the face of it in any manner whatsoever;
the Card presented is not bearing any Card Associations’ trademarks or the Cardholder’s information has not been embossed or encoded thereon;
the Card does not bear such genuine distinctive hologram of the Card Associations;
where verification of the identity of the person presenting the Card is required by Fasspay, the required identification papers could not be produced or the identity could not be verified correctly; or
where the Card contains a photograph of the Cardholder, the person presenting the Card does not appear to be the same person as shown in the photograph on the Card.

3.7

The Merchant shall seek verification and obtain specific directions from Fasspay before completing a Card Transaction if any of the following situations shall arise:-

the signature on the Sales Slip differs from the signature on the Card;
the Merchant has reason(s) to believe that the Card may be counterfeit or stolen;
there are suspicious circumstances surrounding the presentation of the Card or the proposed transaction; or
any of the circumstances mentioned in Clause 3.6 above.

3.8

In the event that the Merchant is unable to determine the validity of a Card presented to it, the Merchant shall forthwith seek approval from Fasspay by telephone or through other alternative means acceptable to Fasspay from the source or sources nominated by Fasspay. Unless verified by Fasspay to be valid, such a Card shall not be honoured by the Merchant and where such a Card has been verified by Fasspay to be valid, the Merchant shall record on the Sales Slip or Terminal Receipt Fasspay’s authorisation code and such other particulars as are deemed relevant by Fasspay to evidence such authorisation.

3.9

In the event that the Merchant is presented with a Card which has been declared invalid, cancelled, reported lost or otherwise deemed unacceptable or refused by Fasspay, the Merchant shall immediately inform Fasspay with the details of the invalid information to enable Fasspay to take the necessary action. The Merchant hereby agrees that it shall not hold Fasspay liable and the Merchant shall indemnify Fasspay against any liabilities, claims, proceedings, expenses or losses whatsoever in respect of damage to any real personal property or injuries to any persons caused by the Merchant and/or its servants and/or its agents and/or its employees in the course of carrying out its obligations hereunder.

3.10

While accepting the Card presented by the Cardholder, the Merchant shall not:-

allow the Cardholder to transact for any cash payment, cash disbursement or cash refund under any circumstances resulting from the use of the Card;
receive any cash payment from a Cardholder with respect to charges for goods and/or services included in a Sales Slip/Terminal Receipt;
collect separately from the Cardholder any Tax required to be collected and the Merchant shall include such value in the Sales Slip/Terminal Receipt;
under any circumstances, levy a surcharge on the Cardholder to pay any part of the Merchant Discount (as defined in Clause 9) by any increase in the display or listed price of the provisions of goods and/or services. If the Merchant does, Fasspay reserves the right to recover any such amount from the Merchant through any means Fasspay in its absolute discretion deem fit;
accept Card from Cardholder for any payment of debt whatsoever incurred from a loan raised by the Cardholder except (i) where such debt has been incurred by the Cardholder pursuant to an underlying trade transaction connected with the Merchant’s business; or (ii) where a cheque issued by the Cardholder pursuant to an underlying trade transaction connected with the Merchant’s business has been dishonoured;
accept the Card as payment for purchases of goods and/or services which are not sold or provided by the Merchant and submit the Sales Slip to Fasspay for payment;
sell, purchase, provide or exchange Card account number information in the form of imprinted Sales Slip, carbon-copies of imprinted Sales Slip, copy or reproduce in any way the Cardholder’s Certificate obtained by reason of Card Transactions to any third party; and

3.11

No Double-Swiping of Cards

The Merchant agrees that it shall not under any circumstances double-swipe a Cardholder’s Card at POS Terminals if it exposes sensitive payment card data and information. In the event of double-swiping is necessary to complete a Card Transaction for any reason, the Merchant shall first obtain the prior written consent from the affected Cardholder(s) expressly consenting to the collection of their payment card details by double swiping in accordance with the requirements of the PDPA (as defined herein) and the relevant guidelines for credit cards issued by Bank Negara Malaysia.

3.12

Using Electronic Commerce via Internet

3.12.1

When using Electronic Commerce via Internet, the Merchant:

agrees and undertakes that it shall honour without discrimination, as a means of payment for Electronic Commerce Transactions, Cards properly authenticated.
shall observe all reasonable security measures in accordance with standard industry practice whether or not prescribed by Fasspay (which includes but not limited to such security measures prescribed by the Card Associations) in respect of the acceptance of any Card for payment of any Card Transaction. The Merchant shall use its best endeavours to ensure validity of the Card Transactions. In addition, the Merchant undertakes not to effect any payment transaction requesting for payment in connection with any Card Transaction which is a mail order transaction.
shall seek authorisation from Fasspay for each and every Card Transaction and shall only complete a transaction after the Merchant has received the approval from Fasspay.
shall comply with all instructions whatsoever given to the Merchant by Fasspay in response to a request by the Merchant for payment in connection with any Card Transaction carried out pursuant to the Payment Instructions.

3.12.2

Requirements of the Merchant’s Website
The Merchant shall ensure that the Merchant’s website contains the following information or feature(s):

Marks in full colour to indicate that payment can be made by way of credit and/or debit card (hereinafter referred to as “Card Acceptance”);
Complete description of the products and/or services offered by the Merchant;
Indicate if there is any guarantees and/or warranties granted by the supplier and/or manufacturer for such products and/or services;
Specify or indicate the return / refund policy and terms and conditions of sale and purchase of the products and/or services, which must be acknowledged by the customers;
Provide the particulars of the customer service contact including the Merchant's address, email address & contact number;
Specify that the transaction currency, cost of products and/or services and the delivery and/or shipping charges shall be in the currency of Malaysia, Malaysian Ringgit (MYR);
Provide the particulars of the customer service contact including the Merchant's address, email address & contact number;
Export restriction (if known);
Delivery policy;
Customer’s personal data privacy policy in accordance with the Personal Data Protection Act, 2010;
Security capabilities & policy for transmission of payment transaction details;
Legal restriction (if known);
Indicate that the Merchant uses the Merchant Services as provided by Fasspay in which Fasspay‘s name and/or logo shall appear on the Merchant’s website.

3.12.3

Where Merchant may submit card not present transactions (including without limitation mail order sales, telephone order sales and internet-based sales) to Fasspay for processing under this Agreement:

a. any reference in this Agreement to “Electronic Commerce Transaction” shall include any card not present transaction;

b. any reference to use of a card or effecting a Transaction shall include use of, or effecting a Transaction with, the details of or relating to the card;

c. this Agreement shall apply to all card not present transactions except to the extent that any provisions of this Agreement are not applicable where a card is not physically presented to the Merchant; and

d. Merchant shall comply with all provisions of this Agreement, in particular, such requirements specified in the card acceptance guide and written directions of Fasspay in connection with processing card not present transactions (including without limitation any software, system, security and website requirements).

SETTLEMENT AND PAYMENT

4.1

Settlement

4.1.1

Fasspay will provide Merchant, in an electronic format (email or secured online logon), a settlement report containing the details of any and all Transactions with the Merchant, including the Transaction amount, the date and time of the Transaction, the Merchant Discount Rate, and the total amounts owed to Merchant in connection with such Transactions of such preceding day(s) (“Settlement Report”). Such Settlement Report shall be the definitive evidence of all sales of products made to customers and shall form the final basis on which all payments hereunder are made.

4.1.2

The obligation of Fasspay to make any payment to the Merchant in the manner provided for in this Agreement shall be subject to the following:-

against each copy of the Sales Slip; and
subject to any other conditions as Fasspay may stipulate from time to time at its sole discretion.

Provided always Fasspay has not received any notice requiring Fasspay to withhold payment to the Merchant or has exercised its discretion to withhold payment to the Merchant pursuant to this Agreement and the Merchant shall have observed and performed all the obligations contained in this Agreement.

4.2

Chargeback

4.2.1

The Merchant agrees that in the event of any Chargeback, Fasspay will reverse the payment and debit the Merchant's account balance that is maintained with Fasspay to pay for the Chargebacks. Fasspay shall not be liable to the Merchant due to non-payment caused by any Chargeback. If there are insufficient funds in the Merchant's account balance, the Merchant agrees to reimburse Fasspay through other means within seven (7) Business Days from the date of receipt of the notification by Fasspay in writing.

4.2.2

Provided that the Merchant has duly complied with the obligations and duties stipulated in this Agreement and has carried out appropriate risk management and procedures while accepting the Card Transactions, the Merchant shall not be held liable for any Chargeback or losses arise from fraudulent transaction.

4.3

Refunds

4.3.1

If a customer duly requests a Refund in accordance with the Merchant’s after-sale policy or a Refund is required by the applicable laws, Fasspay will make such Refund to the customer. The Merchant hereby agrees to reimburse Fasspay for each of such Refund and for that purpose authorizes to deduct the amount of each Refund from the Merchant’s account balance and return such Refund to the relevant customer. If there are insufficient funds in the Merchant's account balance, the Merchant agrees to reimburse Company through other means within seven (7) days from the date of receipt of the notification in writing. For the avoidance of doubt, Fasspay shall not be responsible for any claim or liability that the relevant customer may seek from the Merchant in the event of any delay in processing any Refund.

4.4

If Fasspay suspects, on reasonable grounds, that the Merchant has committed or is about to commit a breach of this Agreement, any illegal activity (including, without limitation, money laundering) or dishonesty or fraud against Fasspay, Issuer or any Cardholder, Fasspay shall be entitled to suspend all payments under this Agreement to Merchant pending investigation by Fasspay

4.5

The Merchant accepts and agrees that Fasspay shall not be held liable or responsible to the Merchant or any other party for loss, damage or any claims whatsoever and howsoever arising, resulting from Fasspay suspending any payments or setting off any such payments, due to the Merchant under this Agreement.

4.6

The Merchant understands that obtaining an authorization for any Transaction shall not constitute a guarantee of payment and the related sales slips can be returned or charged back to the Merchant.

MERCHANT’S DUTIES AND OBLIGATIONS

5.1

The Merchant shall:

pay to Fasspay all the applicable fees and charges, and the agreed Merchant Discount Rate;
honour all transactions authorized by Fasspay;
ensure that the Merchant must not provide any goods and/or services using the Fasspay Payment System which is prohibited by applicable laws or which will result in Fasspay being considered to have breached any applicable laws;
provide information about the goods and/or services whenever requested by Fasspay from time to time;
ensure that the Merchant must not sell any goods and/or services to through the Fasspay Payment System that contains articles which are prohibited or restricted from being sold to the customer under the applicable laws. The Merchant shall also ensure that no transaction being submitted for Fasspay’s processing involves or relates to any prohibited goods and/or services (“Prohibited Transaction”). Fasspay reserves the right to refuse to provide any Merchant Services with respect to such Prohibited Transaction and the Merchant shall fully indemnify Fasspay for any damages, losses, and liabilities that Fasspay may suffer arising from or in connection with such Prohibited Transaction.
ensure that the goods and/or services sold to the customer on the Merchant’s platform will not infringe upon any third party’s rights and interests, including without limitation to intellectual property rights and proprietary rights;
only use the Fasspay Payment System for its own account, for its own business purpose and shall not make use of the payment interface provided by Fasspay in connection with this Agreement to perform any commercial or non-commercial services for any other third parties. The Merchant shall only use the Fasspay Payment System only for the goods and/or services in connection with the Merchant’s principal business as notified by the Merchant to Fasspay in accordance with this Agreement;
maintain the proofs/records for each Card Transaction to justify its authenticity within seven (7) years after the completion of the Card Transaction and Fasspay shall be entitled to review or otherwise access such proofs/records. Subject to any legal restrictions under the applicable laws, the Merchant shall ensure that Fasspay, the relevant service providers of Fasspay and/or regulatory or governmental authorities having jurisdiction over Fasspay be provided with or granted access to, the relevant Card Transaction information, within five (5) Business Days upon Fasspay’s request;
be solely liable for the complaints, goods rejections, and disputes arising out of the illegal, false, outdated or incomplete transaction information and defects and poor quality of goods and/or services sold by the Merchant.

5.2

I/We acknowledge and hereby agree that I/we shall register my/our business with the Companies Commission of Malaysia ("SSM") or with the relevant local authorities when the total annual sales of my/our business reach RM100,000.00.

ACQUIRER’S DUTIES AND OBLIGATIONS

6.1

Fasspay shall implement reasonable measures to detect, mitigate, resolve and prevent fraudulent acts, actual and suspected.

6.2

Fasspay shall ensure that Merchants’ business, activities, products and services do not contravene Malaysian laws.

6.3

Fasspay shall ensure that Merchants comply with all applicable requirements stipulated in the Operational Procedures for MyDebit and the Agreement.

6.4

Fasspay shall transparently disclose to the Merchant the interchange rates of the debit card schemes and the true effective cost of the two priority network routing choices (either MyDebit Priority Routing or AID Priority Routing) and accurately provide all information necessary for the Merchant to make an informed decision on network routing.

6.5

Fasspay shall execute the Merchant’s “Opt-Out” from Lowest Cost Routing Declaration in Appendix IV of the Operational Procedures for the MyDebit Service by furnishing all necessary information completely and accurately.

6.6

Fasspay shall lodge the complete Merchant’s ‘Opt-Out’ from Lowest Cost Routing Declaration with the MyDebit Operator at least seven (7) Business Days before the opt-out takes effect.

6.7

Fasspay shall route the Merchant’s MyDebit Transaction to the network with the lowest interchange cost and MDR in the event the Merchant does not decide on the preferred debit network routing and obtains the appropriate consent from the Merchant to disclose the information provided by the Merchant to the MyDebit Operator.

6.8

Fasspay shall ensure that their Merchants are paid in a timely manner in accordance to their agreement with the respective Merchants upon receiving the funds via the interbank settlement at MyDebit Operator.

6.9

Fasspay shall have the right to retrieve any free terminals given to the Merchant in the event the Merchant does not have any transactions or is inactive for a period of more than six (6) months.

EQUIPMENT SUPPLIED TO REMAIN THE PROPERTY OF FASSPAY

7.1

Each POS Terminals/MPOS and/or any other mechanical/electronic equipment supplied to the Merchant by Fasspay under this Agreement (collectively the “Equipment”) and each Sales Slip/Terminal Receipt shall be utilised by the Merchant strictly in accordance with the terms contained in this Agreement and such operating instructions issued by Fasspay from time to time and the Sales Slip/Terminal Receipt and the Equipment, including the intellectual property rights to the software and the architecture, shall remain the property of Fasspay or such other person as may be specified by Fasspay at all times and shall be surrendered to Fasspay in good working order or condition on termination of this Agreement or on demand. Save for reasonable wear and tear, the cost of repairs and replacement of spare parts and/or Equipment arising from negligent damage, unauthorised use, abuse or misuse of the Equipment shall be borne by the Merchant and paid to Fasspay within fourteen (14) days from the date of Fasspay’s notice requiring such payment.

7.2

The Merchant agrees and undertakes to pay such rental deposit and shall bear all rental and service tax that may be charged by Fasspay for the use of the Equipment (the “Rental”) and agrees to be responsible for all such installation fees for any telecommunication facilities and/or any other requirements, as well as the costs and charges for providing the facilities, electrical power points and telephone lines and any other operating charges exclusively for the installation and operation of the Equipment. The Rental may be reviewed at any time at the sole and absolute discretion of Fasspay.

7.3

The Merchant agrees to take all necessary precautions to prevent and shall immediately notify Fasspay of any theft, loss, negligent damage, unauthorized use, abuse or misuse of the Equipment.

7.4

The Merchant shall allow Fasspay’s authorized personnel or agents to enter their premises to install, inspect, repair, service or remove the Equipment at any reasonable time. Upon completion of installation, repair or service of the Equipment, the Merchant must acknowledge acceptance of the installation, repair or service in writing. The Merchant hereby agrees to cooperate in all inspection and repairs. Fasspay shall not be liable for any loss and/or damage or delay caused to the Merchant due to the delay in repairing the Equipment.

7.5

The Merchant shall notify Fasspay of the Equipment failure within one (1) Business Day after becoming aware of the Equipment failure. Fasspay shall not be liable for any loss or damage suffered by the Merchant as a result of any failure of the Equipment.

7.6

The Merchant shall not move or transfer the Equipment to a different outlet, office, premise or location other than that stated in the Application without first obtaining Fasspay’s prior written consent.

7.7

The Equipment is to be for the exclusive use of the Merchant and the Merchant shall not allow any unauthorized person(s) to have access to the Equipment or to benefit from the Equipment at any time.

7.8

The Merchant is under a duty to prevent tampering of the Equipment, which includes interference, manipulation, illegal modification or reverse engineering to the Equipment and/or its related software programme or remove, conceal or alter any markings attached to the Equipment, which indicate the ownership of the Equipment. The Merchant agrees that it shall notify Fasspay immediately and be liable for any damage, loss and costs arising as a consequence of such actions.

7.9

The Merchant must not sell, assign or sub-lease the Equipment or allow third party to acquire rights in or over the Equipment by way of encumbrance of otherwise without prior consent from Fasspay. The Merchant agrees that Fasspay shall impose an immediate penalty payable to Fasspay and/or to terminate this Agreement as a consequence of such actions.

7.10

The Merchant must only operate the Equipment to process Card Transactions in accordance with this Agreement and Fasspay’s directions and instructions as set out or established by Fasspay from time to time.

7.11

Fasspay shall not be liable for any negligence or wilful conduct on the part of the Merchant in operating the MPOS for non-compliance of whatever terms set out in this Agreement. In addition, Fasspay and its employees servants and agents shall have no obligation or liability of any kind (whether direct or indirect) to or through the Merchant with respect to its access to or use of the result obtained from the Equipment or any part of them provided by or through Fasspay and nothing in this clause shall exclude, restrict or modify the rights of Fasspay herein and render the conditions of this clause void.

7.12

Fasspay shall not be liable for any incidental or consequential damage arising from the use of the Equipment. Fasspay shall not be liable to the Merchant for any wrong transmission or divulging of information of the Merchants customers. Fasspay shall not be liable to the Merchant for any loss of damage to the Merchant or any other person either directly or indirectly arising out of the performance of this Agreement.

7.13

The Merchant hereby agrees to indemnify and keep Fasspay fully indemnified against all losses (including but not limited to the costs of replacement of each Equipment lost or stolen), claim and damages arising from a breach of the terms and conditions herein by the Merchant and/or its employees servants or agents.

7.14

Fasspay has the right to deduct any amount due from the Merchant to Fasspay under this Clause 6 from the rental deposit paid under Clause 6.2.

USE OF MARKS: LICENSES

8.1

Fasspay Marks

8.1.1

During the Term, and subject to the terms and conditions of this Agreement, Fasspay hereby grants to Merchant a non-exclusive, royalty-free license to use the Fasspay Marks for the sole purpose of promoting the Fasspay Payment System. The Merchant will use the Fasspay Marks only in accordance with such usage and other guidelines as may be provided by Fasspay to Merchant from time to time. Title to and ownership of the Fasspay Marks and all goodwill arising from any use hereunder shall remain exclusively with Fasspay. All promotional materials and advertising hereunder using the Fasspay Marks or related to Fasspay must be approved in writing in advance by Fasspay. Without the prior written consent of Fasspay, the Merchant will make no other use of any Fasspay Mark based upon the rights granted pursuant to this Agreement.

8.2

Merchant Marks

8.2.1

During the Term, and subject to the terms and conditions of this Agreement, the Merchant hereby grants to Fasspay a non-exclusive, royalty-free license to use the Merchant Marks for the sole purpose of promoting the sale by the Merchant of its goods and/or services. Fasspay will use the Merchant Marks only in accordance with such usage and other guidelines as may be provided by the Merchant to Fasspay from time to time. Title to and ownership of the Merchant Marks and all goodwill arising from any use hereunder will remain with the Merchant. All promotional materials and advertising hereunder using the Merchant Marks or related to the Merchant must be approved in writing in advance by the Merchant. Material related to the Merchant Marks that is provided to Fasspay by the Merchant for display on the Fasspay website shall be deemed to be approved by the Merchant in writing. Without the prior written consent of the Merchant, Fasspay will make no other use of any of the Merchant Mark based upon the rights granted pursuant to this Agreement.

8.3

Card Associations’ Marks

The Merchant acknowledges the proprietary rights of the respective Card Associations’ marks and shall ensure its compliance with the Standards and that unauthorized or inappropriate use of the respective Card Associations’ marks may cause the respective Card Associations irreparable damage or injury. The Merchant agrees to indemnify and hold Fasspay harmless from any claim or demand made or incurred, whether by the respective Card Associations, any third party or otherwise, due to or arising out of the Merchant’s breach of any Standards in connection with the usage of the respective Card Associations’ marks.

REPRESENTATIONS AND WARRANTIES

9.1

Mutual representations and warranties

9.1.1

Each Party represents, warrants and undertakes to each other of the following:-

it is duly established and existing under the laws of the jurisdiction in which it is incorporated and has the power and authority to own its assets and conduct the business which it conducts and which it proposes to conduct under this Agreement;
it has the power to enter into, exercise his rights, perform and comply with its obligations under this Agreement;
all actions, conditions and things required to be taken, fulfilled and done (including the obtaining of all necessary consents) have been taken, fulfilled and done in order to enable it to lawfully enter into and exercise its rights and perform and comply with its obligation under this Agreement and that such obligations are legally binding and enforceable;
its entry into and exercise of its rights and/or performance of or compliance with its obligations under this Agreement do not and will not violate any restriction imposed by any applicable laws, rules or regulations in Malaysia or, as the case may be, by laws;
the information set out in this Agreement was, as of the Effective Date, true, complete and accurate and not misleading in any way; and
nothing contained in this Agreement will place the party in breach of any other contract or obligation with any third party or agency.

9.2

Merchant Warranties

9.2.1

The Merchant represents and warrants the offering, promotion, sale and delivery of Merchant’s goods and/or services:-

shall not violate or infringe any intellectual property or proprietary rights of any third party or the terms of this Agreement; and
shall comply with all applicable laws and regulations, including without limitation any such laws and regulations restricting or prohibiting the sale of goods or services based on the age of the consumer or laws specifically addressing money laundering.

9.2.2

The Merchant further represents and warrants that:-

all information supplied by the Merchant in relation to this Agreement is true, complete and accurate in every aspect;
in respect of each Card Transaction which is transmitted through the Fasspay Payment System, the Merchant shall be deemed to have represented and warranted to Fasspay at the time of such transmission:-

that all information and data transmitted to Fasspay in respect of the transaction is true, complete and accurate; and
that the Transaction relates to the payment for goods and/or services provided by the Merchant or the charges of the Merchant and that neither the contract nor the performance of the contract relating to the supply or provision of those goods and/or services or under which those charges were incurred is or shall be illegal invalid or unenforceable for any reason whatsoever in Malaysia and in the country where they are to be supplied or provided or incurred.

9.2.3

The Merchant represents that the individual signing the Application is duly authorised on behalf of the Merchant to sign and bind the Merchant for the provisions thereof and hereof.

9.3

Fasspay’s Warranties

9.3.1

Fasspay represents and warrants that the offering and provision of the Merchant Services:-

does not violate or infringe any intellectual property or proprietary rights of a third party; and
will comply with all applicable laws and regulations, including without limitation to such laws and regulations restricting or prohibiting the sale of goods and/or services based on the age of the consumer or laws specifically addressing money laundering.

10.

NOTICE

10.1

Any notices, demands, invoices, permissions, claims or consent required, authorised, permitted or contemplated to be served or given hereunder shall be in writing signed by or on behalf of the Party concerned and shall be deemed to have been sufficiently served if served by hand or posted by registered post. Any future change of address of the Parties within the period of this Agreement shall be duly notified to the other by giving one (1) month prior written notice.

10.2

Any notice served by prepaid registered post shall be deemed served five (5) days after posting. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly stamped, addressed and placed in the post or delivered personally or by courier, and in the case of a facsimile number of the recipient given above or subsequently notified for the purposes of this Agreement.

10.3

The Parties hereby agree that the service of any Writ of Summons or any legal process in respect of any claim arising out of or connected with this Agreement may be effected by forwarding a copy of the same by hand or by prepaid registered or ordinary post to the respective addresses of the Parties hereinbefore mentioned and such service shall be deemed to be duly served after the expiration of five (5) days from the date of posting and, if delivered by hand, on the day it is delivered.

10.4

Any failure on the part of the Merchant in notifying any change of address resulting in the delay or failure of delivery of any notice, correspondence or court causepapers shall not prejudice Fasspay’s rights and entitlement under this Agreement.

CERTIFICATE OF INDEBTEDNESS

11.1

A certificate signed by an officer of Fasspay as to the monies for the time being due and owing to Fasspay from the Merchant for Chargeback or otherwise shall be conclusive evidence or proof that the amount appearing therein is due and owing and payable by the Merchant to Fasspay.

12.

STATEMENT OF ACCOUNT

12.1

Fasspay shall, based on the contents in the Sales Slip/Terminal Receipt presented by the Merchant to Fasspay and/or the data captured in Fasspay’s computer system as and when the Merchant executes the Settlement Function, whichever the case may be, during the preceding calendar month or such other periodic interval as determined by Fasspay, by the first week of each ensuing calendar month or such other periodic interval as determined by Fasspay or as and when payments are made to the Merchant for any Transactions, send a statement of account setting out the amounts credited or debited specifying the relevant Merchant Discount Rate or other sums owing by the Merchant to Fasspay.

Such statement of account shall be deemed or treated as an invoice for the Merchant Discount Rate and other sums (if any) owed by the Merchant to Fasspay. Notwithstanding the existence of such Sales Slip/Terminal Receipt, such statement of account shall be binding on the Merchant and treated as final and conclusive evidence of the respective Card/Debit Card Transactions performed. In respect of the Recurring Payment Transactions, all transaction data which is reflected in Fasspay’s statement of account shall be binding on the Merchant and treated as final and conclusive of the Transaction or Recurring Payment Transaction performed.

12.2

It is hereby agreed that such statement of account sent to the Merchant shall be deemed to have been received within five (5) days in the case of the Merchant in West Malaysia or within seven (7) days in the case of the Merchant in East Malaysia from the date of despatch of such statement.

12.3

Upon retrieval or receipt, as the case may be, of the statement of account the Merchant is deemed to have examined all entries in the statement. The Merchant hereby expressly covenants and undertakes with Fasspay that it shall be the duty of the Merchant to report to Fasspay in writing, within seven (7) days from the date of the statement, of any error, discrepancy or inaccuracy of any kind whatsoever in the statement.

TERM AND TERMINATION

13.1

This Agreement shall take effect and commence on the date on the date of this Agreement (“Effective Date”) and shall continue in force for a term of one (1) year after the Effective Date, and thereafter will continue for subsequent periods of one (1) year (“Term”) until terminated by either Party in accordance with this Agreement.

13.2

Notwithstanding any other provision in this Agreement, either Party may give notice in writing to the other Party to terminate this Agreement in the event of:-

the Merchant becomes insolvent or enter bankruptcy, receivership or administration or make an assignment for the benefit of creditors generally;
the Merchant suffers an execution, attachment, repossession of or foreclosure on all or substantially all of the Party’s assets;
the Merchant ceases all or a substantial portion of the Party’s business or operations;
the Merchant undergoes a merger or substantial change in ownership or control;
any event occurs, or series of events occur, whether related or not, which in Fasspay opinion may affect the Merchant’s ability or willingness to comply with any of your obligations under this Agreement or to the Cardholder(s) in question; or
any breach of default on the part of the Merchant under the terms of this Agreement and/or if Fasspay has reason to believe or at its absolute discretion is of the view that the Merchant has presented a fraudulent or counterfeit transaction for payment and/or where the Cardholder denies/disputes such transaction and/or the Merchant has been identified by the Card Associations as engaging in the compromising of the Cardholder’s accounts activity

then in any such events, this Agreement shall terminate automatically and all debts and obligations owed to Fasspay shall be deemed immediately due and payable. Fasspay shall be entitled to maintain a reserve from payments due to the Merchant and/or take such other actions as Fasspay may be entitled to under this Agreement or under applicable law or equity.

13.3

This Agreement shall be terminated automatically and immediately without any prior notice if any of the following events shall occur:-

the Card Associations de-register Fasspay or the Bank ceases to be a member of the Card Associations for any reason whatsoever;
the Merchant carries out activities that causes the Fasspay or the Bank to violate the Standards; or
the Merchant performs any other activities that may result in undue economic hardship or damage to the goodwill of the system of the Card Associations;
irregular transactions by the Merchant, excessive chargebacks, which listed under Excessive Chargeback Program, non-compliance with any applicable data security standards, as determined by Fasspay, Card Associations, the Bank, or an actual or suspected data security standards, or any other circumstances which, in the discretion of Fasspay, the Bank and/or Card Associations, may increase the risk exposure of such parties or otherwise present a direct or indirect financial or security risk to such parties;
a violation by the Merchant of any laws and/or Standards; or
the Merchant processes more than United State Dollars One Million (USD1,000,000.00) only annually (based upon the date its account is approved) or any Card (where applicable) and does not enter into a merchant agreement directly with the Bank.

13.4

Upon termination of this Agreement, Fasspay’s obligation to reimburse the Merchant shall cease on the effective date of any of such termination aforesaid, and Fasspay shall not be obliged or bound to make any payment on Transaction Slips presented thereafter.

13.5

Notwithstanding the aforesaid, Fasspay’s rights and entitlement under this Agreement (including its rights and entitlement of Chargeback) hereof against the Merchant shall survive the termination of this Agreement for or relating to any Card Transaction or Transaction Slips presented by the Merchant prior to the date of termination.

14.

SUSPENSION NOTE

14.1

Unless this Agreement is earlier terminated by Fasspay pursuant to the provisions herein, Fasspay may suspend the operations of this Agreement by service of notice on the Merchant ("Suspension Notice"). Upon notification of the Suspension Notice the Merchant shall cease to accept the Card for any Transaction.

14.2

In the event the the Suspension Notice is not revoked by Fasspay within seven (7) Business Days from the date of the Suspension Notice, termination of this Agreement shall follow on the expiry of the said seven (7) Business Days without further notice from Fasspay.

15.

WAIVER

15.1

No delay or failure by any of the Parties to exercise or enforce at any time any right or provision of this Agreement shall be considered a waiver, unless made in writing. No single waiver shall constitute a continuing or subsequent waiver.

MARKETING AND PROMOTIONAL MATERIALS

16.1

The Merchant shall display or exhibit materials of a marketing or promotional value relating to the Card at a desired place of its business or a prominent place therein as directed by Fasspay to inform the public that the Card is accepted at the Merchant’s premises, place of business or its outlets. Such materials shall continue to be displayed or exhibited for such period of time as Fasspay may direct or determine. The Merchant shall not make any statement or cause or permit to be done anything that may damage any of Fasspay’s, the Card Associations’ trademarks, logos, names and other intellectual property rights owned by or licensed to Fasspay or indicate or imply that Fasspay, the Card Associations endorse any goods and/or services offered by the Merchant.

16.2

Should it be deemed necessary by Fasspay for the Merchant to contribute payment in part or in whole towards the cost or expense of producing such marketing or promotional materials, the Merchant shall be consulted before production of the same is authorised by Fasspay.

16.3

The Merchant authorises Fasspay to include or to withdraw with or without notice the Merchant's name in any directory or promotional material for the purposes of marketing the goods and/or services or services connected with or related to this Agreement.

16.4

The Merchant agrees to obtain the approval of Fasspay in writing prior to the display and publication of any advertising or promotional material in relation to the Card and/or containing or having reference to the name and/or emblem of Fasspay or other card issuers or relating to the Card Associations.

16.5

The Merchant shall use its best endeavours to promote the use of the Card and to render its cooperation to Fasspay and the Cardholder in connection with the use of the Card.

16.6

Fasspay may from time to time implement activities or programmes relating to the Card (including but not limited to loyalty programmes) and the Merchant shall, upon being notified by Fasspay of any promotion, endeavour to participate in such promotion activities and programmes upon the terms and conditions upon agreed upon with Fasspay.

ADC Event

17.1

This Agreement and all matters pertaining hereto including but not limited to, all information relating to Cardholder shall be considered as confidential in nature and shall not be disclosed by the Merchant to any third party unless the said disclosure is mandatory by law. The Merchant shall keep confidential any information the Merchant receives from Fasspay that is not publicly available and this Agreement and its terms and conditions, including, without limitation, the Merchant’s Merchant Discount Rate. The Merchant shall take all steps necessary to prevent the transfer or disclosure of Cardholder information to any third party and will not copy, reproduce or store in any form the names and addresses of Cardholders for any purpose whatsoever.

17.2

Each Party will keep confidential and shall not use for any purpose (save for the proper performance of its obligations and exercise of its rights under Agreement, or where disclosure is required by law, a court order or an order from an arbitral tribunal with jurisdiction) any and all information of a confidential nature concerning the business of the other Party. Each Party will keep confidential and shall not use, transfer for any purpose (save for the proper performance of its obligations and exercise of its rights under this Agreement) any and all personal data of the other Party, without prior written consent of the other Party.

17.3

Each Party shall, upon request of the other Party, promptly return or destroy such other Party’s confidential information.

17.4

The obligations of this Clause 16 shall survive the termination or expiration of this Agreement.

17.5

Data Privacy

17.5.1

Each Party agrees to use any procedures required by law including the Personal Data Protection Act 2010 (“PDPA”) in order to protect consumer privacy and consumer information, and shall use Personal Information only for the purpose of fulfilling its obligations under this Agreement and for any other purposes permitted by law including the PDPA. Each Party shall take all commercially reasonable steps to ensure that the Personal Information is protected against misuse and loss, or unauthorized access, modification or disclosure and shall promptly notify the other Party any loss of, or any unauthorized disclosure of or access to, the Personal Information. Each Party may retain records of Card Transaction for complying with applicable laws and internal compliance requirements.

17.6

ADC Event

17.6.1

In the event that the system or environment of the Merchant was compromised or vulnerable to compromise (at the time the ADC Event or Potential ADC Event occurred), the Merchant shall be fully responsible to resolve all outstanding issues and liabilities to the satisfaction of the Card Associations notwithstanding any subsequent change in the Fasspay’s and Bank’s relationship with the Merchant after the occurrence of the ADC Event or Potential ADC Event.

17.6.2

The Merchant shall forthwith notify Fasspay when the Merchant becomes aware of an ADC Event or Potential ADC Event in or affecting any system or environment of the Bank, Fasspay or the Merchant. The Merchant is deemed to be aware of an ADC Event or Potential ADC Event when the Merchant first becomes aware of an ADC Event or Potential ADC Event. The Merchant is deemed to be aware of an ADC Event or Potential ADC Event under circumstances that include, but are not limited to, any of the following:

the Merchant is informed, through any source, of the installation or existence of any malware in any of its systems or environments, no matter where such malware is located or how it was introduced;
the Merchant receives notification from the Card Associations or any other source that the Merchant has experienced an ADC Event or Potential ADC Event; or
the Merchant discovers or, in the exercise of reasonable diligence, should have discovered a security breach or unauthorized penetration of its own system or environment.

17.6.3

In the event the Merchant becomes aware of any ADC Event or Potential ADC Event, the Merchant shall forthwith take all necessary actions to resolve the said event and to assist with any unless otherwise directed in writing by the Card Associations.

17.6.4

The Merchant shall be liable for all costs in relation to any and all forensic investigations resulting from an ADC Event or Potential ADC Event.

18.

DISCLOSURE OF INFORMATION

18.1

It is hereby agreed by the Merchant that Fasspay is authorised to disclose, divulge, reveal and/or provide any information concerning the Merchant including but not limited to the particulars herein to its agents, servant and/or subcontractor appointed/engaged by Fasspay or to any person/party for purposes connected with the products.

18.2

The Merchant hereby authorises Fasspay and/or its officers to make use of, disclose, divulge or reveal any information relating to its accounts for purposes of or in connection with any action or proceeding taken for the purpose of Chargeback or towards the recovery of monies due and payable by the Merchant to Fasspay.

19.

NON-RESPONSIBILITY OF FASSPAY

19.1

Fasspay shall not be responsible or held liable in any way whatsoever to the Merchant for any loss, damage, inconvenience or embarrassment suffered by the Merchant by reason of any delay in the performance or non-performance of any of the obligations of Fasspay herein due to any causes beyond the reasonable control of Fasspay including but not limited to causes such as the suspension or withdrawal by Bank Negara Malaysia, the Card Associations or any relevant authority of the licence required for carrying on any part of Fasspay’s business, alterations to conditions of such licence, or the imposition of new conditions on such licence, force majeure, industrial disputes, strikes, power failure, failure or malfunction of any POS Terminal /MPOS or PIN Pad error contributed to the computer systems and applications employed by Fasspay or circumstances beyond the reasonable control of Fasspay, its employees, agents or sub-contractors, computer, electronic or electrical system failure, malfunction or breakdown or the interruption, non-supply of electricity or power for any length of time.

20.

GOVERNING LAW AND JURISDICTION

20.1

This Agreement shall be governed by, construed and enforced in all aspects in accordance with the laws of Malaysia no matter where the Transaction or Card Transaction takes place. Each Party irrevocably submits to the jurisdiction of the Malaysian courts, in connection with any action under this Agreement, otherwise arising under or by reason of this Agreement.

21.

SEVERABILITY

21.1

The invalidity or non-enforceability of any of the provisions herein shall not substantially nullify the underlying intent of this Agreement and the invalid or unenforceable provisions herein contained which shall remain in full force and effect.

22.

TIME

22.1

Time wherever mentioned shall be the essence of this Agreement and shall be strictly adhered to and complied with by the Parties.

23.

ASSIGNMENT

23.1

The Merchant shall not assign, subcontract or transfer this Agreement in whole or in part to any person or entity without Fasspay’s prior written consent. Fasspay shall be entitled to assign or subcontract this Agreement in whole or in part to any of Fasspay’s holding, subsidiaries or affiliate companies.

SUCCESSORS BOUND

24.1

This Agreement shall be binding upon the heirs, personal representatives, permitted assigns and successors-in-title of the Merchant and on the successors-in-title and assigns of Fasspay.

25.

CONFLICT IN INTERPRETATION

25.1

In the event of any conflict in the interpretation of this Agreement and any translation of it in any language, the English version of this Agreement shall prevail.

26.

VARIATION/AMENDMENT

26.1

Fasspay may, at any time in its discretion and upon written notice to the Merchant, vary, modify, add to or delete the terms and conditions of this Agreement and notify the Merchant in such manner as it may deem fit of such changes and the effective date of such changes and the Merchant shall be bound by such changes from such date.

27.

LETTER OF OFFER

27.1

The Letter of Offer issued by Fasspay to the Merchant pursuant to this Agreement shall form part of this Agreement and shall be read, taken and construed as an essential part of this Agreement. In the event of inconsistencies between the terms of the Letter of Offer and this Agreement, the terms in the Letter of Offer shall prevail.

28.

DISPUTES BETWEEN THE CARDHOLDER AND THE MERCHANT

28.1

The Merchant shall comply with all legal requirements imposed on it in regard to this Agreement. Any disputes between the Merchant and the Cardholder shall obligate the Merchant to resolve such disputes amicably and promptly with the Cardholder.

29.

MISCELLANEOUS

29.1

Nothing in this Agreement shall be construed as establishing or creating a relationship of master and servant or principal and agent nor shall it constitute a partnership between the Merchant and Fasspay.

29.2

The Merchant agrees to pay legal fees (on a solicitor and client basis) and other costs and expenses incurred and/or suffered by Fasspay in connection with or incidental to this Agreement including the fees and stamp duty (if any) in connection with the preparation and execution of this Agreement.

29.3

The Merchant agrees to pay legal fees (on a solicitor and client basis) and other costs and expenses incurred and/or suffered by Fasspay in the lawful enforcement of Fasspay’s rights and entitlement under this Agreement.

29.4

The Merchant shall observe and perform all obligations under its contract with the Cardholder including but not limited to the nature quality and delivery of goods and/or services contracted to be sold and supplied to the Cardholder.

29.5

In addition to the provisions herein contained, the Merchant is deemed to have notice of and hereby covenants to at all times observe the security measures, guidelines and procedures on the acceptance of the Card as instructed and required by Fasspay, Issuer, the Card Associations or other relevant authorities from time to time.

29.6

Notwithstanding any provisions contained in this Agreement, the Merchant hereby agrees to keep Fasspay fully indemnified at all times from and against all claims demands actions proceedings loss damage costs fees fines penalties and expenses (including legal costs on a solicitor and client basis) and all liabilities of whatsoever nature or description which may be taken or incurred or suffered by Fasspay in connection with or in any manner arising from any breach of warranty and/or covenant as specified in this Agreement by the Merchant or for the enforcement of the terms of this Agreement by Fasspay.

29.7

Without prejudice to any provisions contained in this Agreement, the Merchant shall forthwith notify Fasspay in writing of any potential or intended change of business ownership of its establishment and/or change of its nature of business or industry and seek for Fasspay’s consent to such potential or intended change failing which the Merchant shall be subjected to chargeback and penalty imposed by the Card Associations or other relevant authorities or termination of this Agreement.

29.8

Without derogating from any provisions in this Agreement, the Merchant shall, at all times maintain in good order and keep in safe custody all Sales Slip/Terminal receipt, Credit Slip, and/or POS Terminal/MPOS supplied by Fasspay which shall remain Fasspay’s property, and shall return all such Sales Slip/Terminal Receipt, Credit Slip, and/or POS Terminal/MPOS at any time requested by Fasspay. Fasspay shall be entitled to charge the Merchant the full cost of those items mentioned herein which are not returned to Fasspay within fourteen (14) days of the notice to the Merchant.

29.9

All references to Card Associations wherever appearing in the Merchant Agreement shall be deemed to include a reference to any approved payment system operator under Bank Negara Malaysia

29.10

Tax

29.10.1

The Merchant shall be solely responsible for all applicable value added tax or any other tax similar in nature and other taxes associated with payments to Merchant resulting from the remittance of Net Settlement Amount, including any taxes required to be withheld from cross-border proceeds and remitted to the applicable taxing authority by Fasspay or its third-party payment system provider.

29.10.2

For the avoidance of doubt, the Parties agree that any sum payable or amount to be used in the calculation of a sum payable expressed elsewhere in this Agreement has been determined without regard to and does not include amounts to be added on under this clause on account of Tax.

29.11

Compliance with laws

29.11.1

The Merchant shall comply with all applicable laws on anti-money laundering, counter-terrorism financing and sanctions in Malaysia as well as introduced by international bodies such as the OFAC and UNSC (collectively “AML”). In accordance with its AML, anti-fraud, and other compliance and security policies and procedures, Company may impose reasonable limitations and control on Merchant’s ability to utilize the Merchant Services. Such limitations may include but are not limited to rejecting payments, or suspending/restricting any Merchant Services with respect to certain Transactions, or restricting particular individuals from using the Merchant Services. In order for Fasspay to satisfy its obligations and to comply with the relevant requirements under applicable laws, the Merchant shall, upon reasonable request by Fasspay, share information (including transaction information) with Fasspay from time to time. The Merchant authorizes Fasspay to present the relevant information to regulatory authorities and cooperative banks for examination and verification as necessary. Fasspay may, for the purpose of complying with relevant suspicious transactions reporting and tipping-off requirements under the applicable laws, report suspicious transactions to the relevant authorities.

29.10.2

The Merchant shall fully comply and cause any of its associated service providers to fully comply with any compliance required by the Card Associations (including but not limited to MasterCard,Visa, MyDebit, Malaysian governing authorities (including but not limited to Bank Negara Malaysia and Malaysian Communications and Multimedia Commission) such as the Business Risk Assessment and Mitigation compliance program developed by MasterCard and the Global Brand Protection Program developed by Visa as well as global governing bodies (including but not limited to Payment Card Industry Standard Council) including without limitation to any rules and regulations related to cardholder and transaction information security, such as Payment Card Industry (PCI) Data Security Standards, Visa’s Cardholder Information Security Program and MasterCard’s Site Data Protection Program.

29.12

Fasspay may from time to time, issue written directions (via mail, email or Internet) regarding procedures to follow and forms to use to carry out this Agreement. These directions and the terms of the forms are binding as from the effective date specified in such directions and shall form part of this Agreement.