INTRODUCTION

DEFINITIONS

The expressions listed below have the respective meanings set out against them:

1. 2.1. Acquiring Bank - means the financial institution that processes credit or debit card payments on behalf of Zest.
2. 2.2. Affiliate - means, in relation to any 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
3. 2.3. Agreement - means these Terms and Conditions, the Zest Storefront T&C and any supplements, appendices, amendments, modifications, extensions and revisions therein.
4. 2.4. API - means Application Program Interface for the purpose of providing the services.
5. 2.5. Applicable Law(s) - include(s) but are not limited to all Nigerian legislation, law, regulation, code, guidelines, rules, policies and directives of any competent regulatory entity, including without limitation CBN and NIBSS requirements with respect to payments, data protection, data privacy and data security, or any successor legislation, law, regulation, code, guidelines, rules, policies and directives amending, consolidating or replacing such applicable law, that is applicable to the deployment or operations of the services to be provided with respect to this agreement.
6. 2.6. Business Day - means any day other than Saturday, Sunday, national public holidays or any other day on which banking institutions in Nigeria are authorized by law or executive action to close.
7. 2.7. Card - means a prepaid virtual and/or physical card issued by an issuing Bank, which is branded with one or more marks or signage of a payment scheme.
8. 2.8. Cardholder or Customer - means any authorized user of a card who uses the card to carry out a card transaction on the payment gateway.
9. 2.9. Certificates - means digital certificates issued by an approved certificate authority upon verifying your Site.
10. 2.10. Confidential Information - means all information relating to the disclosing party which is obtained, whether in writing, pictorially, in machine readable form or orally or by observation in connection with this agreement, including but without limitation, financial information, know-how, processes, ideas, intellectual property (irrespective of its registrability or patentability status), schematics, trade secrets, technology, customer list (potential or actual) and other customer-related information, sales statistics, market, market intelligence, marketing and other business strategies and other commercial information of a confidential nature but does not include information which is known to the receiving party without any limitation or restriction on use or disclosure before receipt of such information from or on behalf of the disclosing party or becomes publicly available, other than as a breach of this agreement, or becomes lawfully available to the rreceiving party from a third party free from any confidentiality restriction or any information required to be disclosed under any relevant law or any binding judgment or order of court or arbitration tribunal or any stock exchange regulations or under direction from any relevant regulatory authority.
11. 2.11. Chargebacks - means the reversal of a transaction or request for repayment in respect of a transaction previously settled and/or remitted that comes from the issuing Bank, payment scheme or other financial institution.
12. 2.12. Data - means any data, files, messages or other information irrespective of form, stored on the Systems directly or indirectly by, for and on behalf of the Merchant under the Services for which the Merchant assumes full responsibility whether to its legality, proprietorship or otherwise.
13. 2.13. Disclosing Party - means any one of the parties under this agreement who discloses confidential information to the other party to this agreement.
14. 2.14. Fines - means any and all fines, levies, costs, expenses, charges, assessments or imposition of liabilities of any nature which the payment schemes or other financial institution require either you or Zest to pay or which are otherwise directly or indirectly recovered from Stanbic IBTC -Zest Payment Gateway at any time and which relate to any aspect of this agreement (including the provision of the Services hereunder).
15. 2.15. Intellectual Property - means patents, inventions, copyright, name, marks, design, logos, signs, acronyms, other insignia (whether registered or unregistered) and related rights, trademarks, trade names and domain names, get-up, goodwill computer software, database, topography, (including know-how and trade secrets) and any other intellectual property, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, renewals or extensions of, and rights to claim priority from, such in intellectual property
16. 2.16. Issuing Bank- means the financial institution that issued the credit or debit card to the Cardholder/Customer
17. 2.17. Payment Scheme - means Visa, MasterCard, American Express, Discover Global Network and any affiliates thereof or any other card payment network (including any local schemes such as Verve) and/or such other schemes governing the issue and use of credit, debit, charge, purchase or any other cards or payment methods, as approved and notified by Zest in writing or on Zest website from time to time.
18. 2.18. Payment Scheme Rules - means individually and collectively, all applicable rules, regulations, standards and operating guidelines issued by any payment scheme, as amended and restated from time to time.
19. 2.19. Processor - means the entity responsible for relaying transaction details to and from the customer’s card-issuing bank and the merchant’s acquiring bank. Examples of processors include but are not limited to Interswitch and Unified Payments.
20. 2.20. Refund - means a return of an amount to a customer or the reversal of any other payment pursuant to a request or instruction from you to us.
21. 2.21. Regulatory Authority - means any ministry or department of the Government of Nigeria and includes any statutory authority or body in Nigeria established with powers to regulate banking, credit, or financial services and/or electronic transactions or communications.
22. 2.22. Webpage/Store web application - means the Merchant’s website or the Merchant’s profile on the Zest Storefront where goods or services are offered for sale
23. 2.23. Systems - means the systems operated by the Processors to enable Customers to effect payments on the Merchant’s Site via the Services
24. 2.24. Transaction - means any purchase and payment process initiated by a User on the Merchant’s Site.

NON-EXCLUSIVITY

Zest hereby grants you the non-exclusive right to provide payment services and other services to its customers through the Payment Gateway.

pci dss compliance

You agree to be and remain compliant with the Payment Card Industry Data Security Standard (PCI/DSS) requirement to the extent applicable to you and prior to your accessing any payment cardholder data or credit card information, as such requirements may be amended from time to time. This includes, but is not limited to, capturing, by any means possible, Cardholder payment card details including but not limited to Primary Account Number (PAN) or Card Number, Personal Identification Number (PIN), and Card Verification Value (CVV). You further agree to comply with all security or encryption standards, rules and procedures as stated by Zest and all the processors.

user’s responsibilities

You agree to the following obligations and undertakes to:

1. 5.1. offer Payment Gateway infrastructure as a method to route supported payment method transactions through the provided APIs as mutually agreed upon.
2. 5.2. be responsible for communicating the Terms and Conditions of Transactions on the Systems to your Customers. You understand and agree that under no circumstances shall the use of this Zest Payment Gateway Platform to purchase goods and services imply that Zest endorses, sponsors, certifies or otherwise guarantees the sale, quality or use of your products.
3. 5.3. not make any warranty or representation whatsoever in relation to any good or the Services which may bind Zest or make it liable in any way whatsoever.
4. 5.4. inform Zest of any change in the particulars of its bank account.
5. 5.5. Keep the Certificates current and valid and notify of any change to the internet protocol address of its Site used for Transactions and take all necessary measures to protect the secrecy and security of its Certificates.
6. 5.6. Provide material and Data that are adaptive to ensure that you interoperate with the Systems.
7. 5.7. Notify Customers of the minimum and maximum amount per Transaction that is required per Processor where applicable.
8. 5.8. respond to all fraud enquiries not later than one (1) business day of receipt of such enquiry.
9. 5.9. respond to all chargeback enquiries with sufficient proof and evidence of value/service delivery within one (1) business day of receipt of such enquiry.
10. 5.10. For any undisputed chargebacks, you will be liable and will have to provide an equivalent sum for chargebacks.
11. 5.11. to promptly notify Zest within twenty-four (24) hours of any suspected or actual security breach, misuse, irregularity, suspected fraudulent transaction or suspicious activities that may be connected with attempts to commit fraud or other illegal activity through the use of your webpage or the Storefront web Application and the corrective action you have taken.
12. 5.12. Authorize Zest to debit the nominated bank settlement account/designated account as provided in the Merchant Registration Form for the full value plus other lawful charges in respect of all lawful transactions where the Cardholder/Customer is adjudged by the payment scheme to be entitled to a refund.
13. 5.13. In the event a Customer is charged more than once for the same product, agree that Zest will effect a reversal on your Designated Account upon successful proof that the purchased item was paid for more than once. You shall be responsible to notify Zest where you discover that multiple payments have been made for one product.
14. 5.14. In the event that a Customer initiates a chargeback for products or services purchased on your webpage, Zest will follow the Chargeback process which will involve debiting your Designated Account and crediting the Customer with the amount. The Chargeback process may change from time to time, but you would be notified within 5 (five) working days of any changes thereon.
15. 5.15. Not attempt to defraud any Customer
16. 5.16. Take all steps to keep secure and confidential any information or data related to Transactions initiated on your Site, and in the event any such information is lost, stolen or otherwise compromised, you shall give written notice to the Zest and you shall take immediate.
17. 5.17. payments made on its Site from Users with Foreign Cards. Zest Payment Gateway is structured so that Payments can be automatically accepted from Foreign Cards. Restriction on delivery of items to foreign countries must be effected by the Merchant on its own webpage.
18. 5.18. Understand that funds may be settled late due to settlement issues, which where applicable Zest will notify you accordingly.
19. 5.19. Agree that the Processors shall be entitled to their transaction processing fees and shall deduct it at source. The net amount of funds received shall be credited to your account at the settlement times specified by the Processor.
20. 5.20. not disclose the integration documents, or access details to unauthorized persons within your company, nor to any other party.
21. 5.21. keeping the passwords and access details to its Merchant’s portal secure and bears responsibility for all damages, losses and costs incurred from a breach resulting from the release of or the access to the information, whether accidental or not.
22. 5.22. Authorize Zest to conduct security assessment checks on your Site with or without notice to ensure that you are complying with the applicable security guidelines.
23. 5.23. Understands that the Processors, when instructed to do so by an issuing Bank, may limit or refuse any transactions to the Merchant’s Bank account with the Designated Bank and no liability shall be imputed Zest.
24. 5.24. ensure that large ticket transactions (i.e. transactions above Zest’s maximum limit of N1,000,000 or its equivalent) are processed by the Cardholder/Customer via Bank Transfer.
25. 5.25. observe and comply with all security measures whether or not prescribed by Zest or the relevant bank and shall further comply with any instruction given by Zest or the relevant bank in respect of card transaction or customer/cardholder payment instruction.
26. 5.26. to notify Zest of any change in your registered office address, your activities and/or line of business prior to such change.
27. 5.27. to provide a full scope of future plans and use cases of the provided Services.
28. 5.28. to put in place appropriate security measures to monitor, control and prevent fraud on your webpage in compliance with regulatory and payment scheme rules requirements.
29. 5.29. to ensure that at all times, an up-to-date version of the following information is displayed on its webpage:
    1. 5.29.1. Return, Refund and Cancellation Policy. Which fully supports the terms of this Agreement.
    2. 5.29.2. Outline and Description of the service (s) being offered for sale.
    3. 5.29.3. Delivery policy for the service(s) offered for sale.
    4. 5.29.4. Commitment to process orders promptly (stating in clear terms delivery timelines where applicable).
    5. 5.29.5. An undertaking to ensure the security of Customer/Cardholders’ information and not to violate the privacy of Customer/Cardholders who transact on your webpage.
    6. 5.29.6. Phone number(s) and e-mail address(es) for customer service contact.
    7. 5.29.7. An undertaking to respond to all customer enquiries/issues within one (1) business day.
    8. 5.29.8. fully comply with all applicable payment scheme rules and government regulations in relation to the transaction entered herein.
30. 5.30. The Privacy, Refunds and Cancellation Policy must be updated on your webpage and also on the Merchant’s portal of the Zest Payment Gateway.
31. 5.31. to carry out an end-to-end User Acceptance Test in the live environment with selected internal users only within your organization and not the public to certify.
32. 5.32. Shall screen your employees against the BVN Watchlist at least once a year.
33. 5.33. To be fully responsible for the actions and inactions of your Staff.
34. 5.34. Shall screen your employees against the BVN Watch-list at least once a year.
35. 5.35. to provide immediate notice to Zest of:
    • 5.35.1. any unauthorized third-party use of the Services or any third party that may have access to cardholder/Customer data; and/or
    • 5.35.2. any event or incident which might lead to such unauthorized use.
36. 5.36. Not use Zest Payment Gateway to extend the same service to other merchants i.e. must not become an Aggregator to other merchants except where agreed and authorized in writing by Zest.
37. 5.37. to immediately notify Zest of any act, omission or error which does or may adversely affect your ability to perform your obligations under this agreement or cause loss or damage to Zest (including but not limited to any material change in the nature or extent of your business).
38. 5.38. You shall comply with any additional security, authentication, risk control or other requirements imposed by Zest or a payment scheme, including but not limited to where you are, in the opinion of Zest / or the payment scheme, engaged in high-risk activities.
39. 5.39. to comply with Applicable law and any relevant payment scheme Rules to which you are subject. You agree not to act in contravention of or cause Zest to act in contravention of any payment scheme Rules.

Zest’s obligations

We hereby agree to:

1. 6.1. work with the Acquiring Bank to ensure that settlements of all monies collected by you are handled in a timely manner in accordance with applicable law and payment scheme rules and settled to your bank account in your preferred bank.
2. 6.2. work with you to provide the requisite integration technical specification and APIs in respect of the Services.
3. 6.3. work with you to provide fraud protection and compliance support.
4. 6.4. Ensure we communicate the Terms and Conditions of Transactions on the Systems of the Processors to you and ensure that you abide by these Terms and Conditions.
5. 6.5. in our sole discretion, provide post-implementation technological support to you.
6. 6.6. Be obliged to provide all of your information and details if you are involved in any fraudulent transaction or required by any law enforcement agency.
7. 6.7. Where it is identified that you or your employee(s) is the source or a participant in fraudulent transactions and related activities, we shall have the right to recommend you or your employee(s) for Watch-listing
8. 6.8. When using the service, your Information is necessary for the provision of the service, Zest shall be responsible for the control of merchants’ Information and assures you that the Information will be Processed only for the purpose of administering the requested service.
9. 6.9. Be responsible for the security of the data related to the payment instrument that is possessed or otherwise stored, processed or transmitted on behalf of cardholders/Customers and any other cardholder/Customer information in our possession.
10. 6.10. maintain a 10% rolling reserve from the daily settlement due to you for a period of 180 days.

taxes, charges, chargebacks and refunds

1. 7.1. Zest will not be liable for any taxes or other fees, including but not limited to goods and services tax, sales taxes, Value Added Tax, withholding taxes or any other tax assessed by any tax authority with competent jurisdiction to be paid in accordance with or related to the sale of your Products through the Systems or transactions generated by the Customer.
2. 7.2. You agree to bear and take full responsibility for all taxes and fees of any nature associated with products sold on your webpage or your use of the Systems and will indemnify and hold Zest harmless in accordance herewith
3. 7.3. The terms of payment for transaction fees and charges shall be in accordance with the Services Application provided by the respective Processors. Zest shall be entitled to deduct all the aforementioned fees and charges from successful transactions from funds payable by Zest to you.
4. 7.4. Any chargeback to you will be in accordance with the terms stated in this Agreement which may be modified from time to time. The reasons for the chargeback of the items include (but are not limited to) the following:
   • The transaction slips being illegible and not signed by the Cardholder/Customer.
   • Error in transaction details.
   • The Transaction amount being altered on sales slip.
   • Duplicated transaction.
   • Cardholder/Customer alleges non-participation in the sale, non-authorization of the use of card, unauthorized transaction amount and non-receipt of goods and services purchased.
   • Declined transaction.
   • Expired card.
   • Cancelled or uncompleted preauthorized transaction.
5. 7.5. You agree that you may be required to reimburse Zest for chargebacks where you have accepted settlement in respect of the relevant transaction. Where applicable, you must respond to all Cardholder/Customer disputes and handle chargebacks in accordance with payment scheme Rules.
6. 7.6. All chargebacks shall correspond to the whole or part of the settlement value of the original transaction.
7. 7.7. Where chargebacks occur, Zest shall immediately be entitled to debit your position or make a reversal from your bank account and/or make a deduction from any remittance and /or invoice you for recovery.
8. 7.8. As chargebacks may arise a considerable period after the date of the relevant transaction, Zest shall remain entitled to recover chargebacks and chargeback costs from you in respect of all chargebacks, even after the termination of the contractual relationship between you and Zest.
9. 7.9. Zest may immediately terminate this agreement and the services provided hereunder if Zest in its sole opinion considers that the total value of refunds and/or chargebacks is unreasonable.
10. 7.10. You agree and confirms that you shall remain solely liable after the termination of the Agreement for all chargebacks, Refunds, penalties, loss, damages or cost incurred by Zest, the Acquiring Bank, and/or Customers and for all claims and proceedings arising against Zest with respect to the agreement.
11. 7.11. A chargeback represents an immediate liability from you to Zest and where the full amount of any chargebacks and/or any chargeback costs is not debited by Zest from your bank account or deducted, then Zest shall be entitled to recover from you by any means, the full amount of such chargeback or chargeback cost

set off

1. 8.1. Zest may, without notice, set off any debts or liabilities due from you to Zest under this agreement against any debts or liabilities owed, regardless of the place of payment or currency of obligation. If the obligations are in different currencies, Zest may convert either obligation at a prevailing market rate of exchange or pricing arrangement put in place by the relevant international scheme. in its usual course of business for the purpose of the set-off.
2. 8.2. Zest shall be entitled, upon receiving notification from Customers or the Acquiring bank and without any requirement for or any obligation to obtain any further proof thereof, to:
   • 8.2.1. Refuse full or partial payment to you
   • 8.2.2. Set off against any payment accruing to you
   • 8.2.3. Deduct from your account; or
   • 8.2.4. Seek immediate reimbursement to the Customer for the amount of the relevant Transaction including but not limited to pending the outcome of an investigation by Zest where:
     • 8.2.4.1. Your product is returned or rejected by the Customer for any reason
     • 8.2.4.2. The Customer did not receive the product(s) ordered on your Site; and
     • 8.2.4.3. The relevant Bank otherwise refuses for any reason to clear or settle the funds in connection with a Transaction
3. 8.3. Zest is entitled to defer any settlement or any other sum due to you to the extent that Zest considers necessary or appropriate to protect our ability to recover the Fees and/or the sums or any other liability (actual or anticipated) of yours in connection with this agreement.
4. 8.4. Zest may suspend the processing of transactions and any connected, transactions or withhold settlement if Zest has reasonable suspicion that a transaction may be fraudulent or involve other criminal activity until the satisfactory completion of any investigation. In such instances, you shall not be entitled to any interest or other compensation whatsoever in respect of suspension or delay in receiving Payment.
5. 8.5. The exercise by Zest 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 Zest is otherwise entitled (by operation of law, contract, or otherwise).

fees & revenue share

1. 9.1. A fee of 1.2% of the transaction amount capped at N2,000 shall be charged as merchant fee payable by the merchant. Exceptions may apply in respect of travel and entertainment merchants including but not limited to hotels, restaurants, airlines etc. In which case shall be at such rate as agreed from time to time between Zest and the merchant. However, for International/foreign card transactions, the applicable flat charge of 3.8% shall be applied
2. 9.2. Zest shall have the right to revise such fees and charges from time to time, upon thirty (30) days’ notice to you.
3. 9.3. Zest is entitled to recover and withhold any refunds, chargebacks and any fines from Visa, MasterCard, American Express, Discover® Global Network and any affiliates thereof or any other card payment network.
4. 9.4. All fees and charges paid by you under this Service shall not be refundable in the event of termination of the Service or contractual relationship howsoever caused.
5. 9.5. You agree that Zest and its processors will not undertake payment or settlement procedures on the following non-settlement days:
   • 9.5.1. Any day declared by the Federal Government of Nigeria, and;
   • 9.5.2. Weekends and public holidays as announced and declared in Nigeria; in which case Transactions effected on such days shall be paid and settled on the day immediately following which is not any of the aforesaid non-settlement days.
6. 9.6. You may markup fees to its Customers without recourse to Zest.
7. 9.7. You hereby give Zest full permission and authorization to receive all settlements and collections on your behalf, from the Acquiring Bank, and to liaise with the Acquiring Bank, in order to make all due settlements to it, and on its behalf.

your warranties

• 10.1. You warrant that you have never had an agreement with a payment scheme provider which was terminated upon request and/or demand by the payment scheme provider or any regulatory authority.
• 10.2. You warrant that you shall not submit any transaction that you know or reasonably suspect is illegal, fraudulent or restricted for authorization, or not authorized by the cardholder/Customer.
• 10.3. You warrant that you will conduct appropriate due diligence on all its Customers.
• 10.4. You warrant that you shall fully cooperate where any forensic investigation is being conducted on you until such time the investigation is completed.
• 10.5. You warrant that you will use the services in good faith, in accordance with the terms of this agreement and in accordance with all applicable laws and payment scheme rules. In particular, you agree that you 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.
• 10.6. You warrant that you have not been subject to the following:
  • Criminal conviction (except minor traffic offences and other petty offences) in Nigeria or in any other foreign country.
  • Federal or state tax lien, or any foreign tax lien.
  • Administrative or enforcement proceedings commenced by the Securities and Exchange Commission, any Regulatory Authority, in Nigeria, or in any other country.
  • Restraining order, decree, injunction, or judgment in any proceeding or lawsuit, alleging fraud or deceptive practice on your part.
• 10.7. You warrant that you are duly registered and licensed (where applicable), and have the full capacity, regulatory approvals and corporate authorization to enter into this agreement and discharge the obligations and responsibilities created herein.
• 10.8. You further warrant that no element of this transaction constitutes a breach of any existing law, regulation, patent, copyright, or other intellectual property in its country or countries of domicile and operation.
• 10.9. You warrant that in the case of any third-party software used in respect of this agreement, that you have the required license and the right to grant a sub-license to use such third-party software.

our warranties

• 11.1. Zest neither warrants that the use of the payment gateway or the operation thereof will be uninterrupted nor error-free, however, Zest warrants that it shall use its best endeavours to ensure that the payment gateway and the other services always function optimally and within generally accepted industry standards during the term of this agreement.
• 11.2. We warrant that we are duly registered and licensed (where applicable), and have the full capacity, regulatory approvals and corporate authorization to enter into this agreement and discharge the obligations and responsibilities created herein.
• 11.3. We further warrant that no element of this transaction constitutes a breach of any existing law, regulation, patent, copyright, or other intellectual property in its country or countries of domicile and operation.
• 11.4. We warrant that in the case of any third-party software used in respect of this agreement, that we have the required license and the right to grant a sub-license to use such third-party software.
• 11.5. Each party warrants to the other that this agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with the terms and obligations therein and no provision of this agreement is in conflict with any of the party’s obligations under its constitutional documents, applicable law or any other document, charter or agreement to which the party is subject,
• 11.6. Zest makes no representations or warranties of any kind with respect to the Systems or any software provided or any part thereof, express or implied and shall not be liable to you for any loss or damage howsoever caused and regardless of the form of loss or damage which may be suffered or incurred by you in connection with this Service including (without prejudice to the generality of the foregoing) any loss of profit in consequence of a breakdown in the Systems or any part thereof
• 11.7. Zest shall not be liable to the Merchant in the event that you suffer loss arising from a breach of the security and integrity of your Site, hardware or software related to this Service.
• 11.8. Zest shall respond to all queries on the operation of the system and other customer enquiries within 24 (twenty-four) working hours of receipt of such queries
• 11.9. Zest disclaims all liability for any inability to provide the service as a result of force majeure or any event or circumstance beyond its control including circumstances which would not allow Zest to provide the Services such as where the Systems fails. Provided that Zest shall be liable where the non–availability of the service is due to its negligence or willful misconduct. Without prejudice, Zest will not be liable for any incidental, indirect or consequential damages, however arising.

indemnity

• 12.1. You hereby agree and undertake to fully indemnify and keep Zest harmless from and against all actions, claims, costs (including legal costs on a full indemnity basis), losses, charges, expenses, and damages which you may suffer or incur as a result of:
  • 12.1.1. any fraud, dishonesty, or misconduct (criminal or otherwise) relating to the transactions perpetrated by your agent, employee or contractor or the fraud, dishonesty, or misconduct (criminal or otherwise) perpetrated by a third party as a result of the negligence or default of you, your agent or your Staff
  • 12.1.2. Your negligent or wilful misconduct and/or its Staff, affiliates and agents
  • 12.1.3. any modification or amendment of these terms not communicated by Zest or not specifically approved by Zest in writing.
  • 12.1.4. any warranty, condition, representation, indemnity or guarantee granted by you in your warranties specified in clause 10 above
  • 12.1.5. any modification of or addition to the Payment Gateway or the other services not provided or approved by Zest
  • 12.1.6. Your failure to comply with the terms and conditions of this agreement or any part thereof.
  • 12.1.7. Any misuse of the Data by you, your failure to keep the Data secure; and/or a Data Compromise
  • 12.1.8. any dispute between the Merchant and any cardholder/customer in respect of goods and services purchased
• 12.2. The parties shall keep each other indemnified against all actions, claims, proceedings and all legal costs or other expenses arising out of any breach of any term in this Agreement or out of any claim by a third party based on any facts which if substantiated would constitute such a breach or a breach of other relevant legal, regulatory or contractual obligation.
• 12.3. Nothing contained in this entire Clause excludes or limits a Party’s liability for:
  • 12.3.1. Any direct losses actually incurred by the other Party as a result of such Party’s non-compliance with applicable laws and/or in the case of a data compromise.
  • 12.3.2. Any direct losses actually incurred by Zest as a result of any Chargebacks or where you has not paid any amount due (including a refund or a reversal) to a Cardholder/Customer in terms of a Transaction dispute.
  • 12.3.3. Any direct losses actually incurred by Zest because of the seizure or withholding of any of your by any Sanctioning Body or any other third party (including Zest)
• 12.4. You shall indemnify Zest in respect of all instructions or actions taken by Zest, the Payment and Card Schemes and/or any Regulatory Authority as a result of any act of, or omission by, you (including non-compliance with PCI DSS), including any fees, fines, penalties or other amounts imposed by the Payment and Card Schemes and/or any Regulatory Authority on Stanbic IBTC as a result of any such act or omission. You also agree to indemnify Zest against any losses and/or Claims which Zest actually suffers as a result of Zest acting in accordance with the Instructions, provided such losses and/or Claims do not arise due to Zest’s negligence or non-compliance with the Instructions

fraudulent transactions

• 13.1. Fraudulent transactions shall include but not be limited to:
  • 13.1.1. any purchase of goods and services and/or transaction arising from the use of a card by a person other than the authorized cardholder/Customer
  • 13.1.2. use of a card that is not authorised in terms of the rules governing the issuance and use of cards.
  • 13.1.3. You agree that you will always be responsible for the actions of omissions.
    • Your customers
    • Your employees
    • including fraudulent acts or omissions not traceable to the contributory negligence of Zest

rolling reserve

• 14.1. Where applicable, We shall maintain a 180-day rolling reserve of funds to be settled to you upon accumulation of the Risk Deposit Amount.
• 14.2. The rolling reserve shall be 10% of all the transactions from your customers during the calendar month.
• 14.3. Zest shall be entitled to use the 180-day rolling reserve to cover any card chargebacks or refunds or any fees/fines imposed on the Stanbic IBTC -Zest Payment Gateway due to the breach of the agreement by you
• 14.4. The 10% rolling reserve shall be released on day 181 to your bank account.
• 14.5. Zest is entitled to set off the amounts from your transaction until the sum of the fine/fee is covered if the chargebacks and the refunds are higher than the 10% rolling reserve.

limitation of liability

• 15.1. The liability of Zest to the merchant, whether in contract, negligence, and other tort, by way of indemnity or otherwise arising out of or in connection with this agreement shall be subject to the financial limits set out below:
  • 15.1.1. In no event shall Zest be liable to the merchant in excess of any amount that has accrued to Zest from transactions emanating by virtue of this agreement, in the month immediately preceding the date the first such claim arises
  • 15.1.2. No liability shall be raised against Zest more than two (2) years after the accrual of the cause of such liability, therefore. It is further agreed that the limitations on liability, expressed herein, shall inure to the benefit of and apply to all Zest’s affiliates.
  • 15.1.3. Notwithstanding anything to the contrary contained in this Agreement, neither Party will be liable to the other Party for any indirect or consequential losses and/or Claims (including loss of profit, revenue, anticipated savings, business transactions or goodwill or other contracts whether arising from negligence or breach of contract) arising from such Party’s obligations in terms of the Agreement.
• 15.2. Without limiting the generality of the foregoing, Zest will not be responsible to the Merchant for any direct, indirect or consequential losses or Claims arising from any failure or malfunctioning System or the APIs, any Card payment system, electronic device or any delay in an electronic communication, including communication via cellular telephones, or failure or malfunction in any supporting or shared networks, where applicable. The use of any electronic means of communication is entirely at your risk.
• 15.3. You further acknowledge that the APIs and any related documentation are provided “as is” and neither Zest nor any Payment or Card Scheme have made any representation or warranty:
  • 15.3.1. As to the usefulness, suitability, merchantability or suitability for any particular purpose of the APIs or any related documentation; or
  • 15.3.2. That the APIs or any related documentation are error-free or will operate uninterrupted
  • 15.3.2. That the APIs or any related documentation are error-free or will operate uninterrupted
  • 15.3.3. That any electronic communications or services used by you for purposes of this Agreement will be error-free or will meet any particular criteria of accuracy, completeness or reliability of information, performance or quality
• 15.4. Zest will not be liable for the actions or inactions of any third party not acting on the instructions of Zest; neither will Zest be liable for the actions or inactions not directly traceable to it.
• 15.5. Zest does not guarantee that the services will be secure or available at any particular time or location, any defects, errors or efforts will be corrected. The services will be free of viruses or other harmful materials that result from using the services will meet your expectations.
• 15.6. Zest will not be liable for systems downtime or server failure
• 15.7. This clause does not exclude or limit any liability which, by law, is not capable of exclusion or limitation.

termination

• 16.1. This Terms & Conditions shall remain in force and effect until a party terminates or Zest’s service provisions is terminated.
• 16.2. Zest may immediately terminate this agreement and delist the merchant where the merchant is identified as a source of fraudulent activity or causes damage to its brand or the acquiring bank and payment schemes or upon instruction from the acquiring bank and payment schemes whether financial or otherwise.
• 16.3. Either party may immediately terminate this Agreement if either party becomes insolvent or ceases to carry on business or any part of its business;
• 16.4. Either party may immediately terminate this Agreement if either party is suspected to be involved in any fraudulent or unlawful activity relating to the provision of Services in this Agreement;
• 16.5. Either party may immediately terminate this Agreement if either party goes into liquidation. Receivership, judicial management or otherwise compounds with its creditors or takes or suffers any similar action or occurrence in any jurisdiction;
• 16.6. Either party may immediately terminate this Agreement if any resolution is passed or steps taken by either party or any other person to apply for judicial composition proceedings with its creditors or an order is made by any competent court for such proceedings or a receiver, judicial manager, administrator, or other similar official Is appointed in relation to either party or any part of its assets or undertakings or taking possession of any part of its assets or undertakings or distress or execution or other process is being levied or enforced upon or sued out against any part of its assets or undertakings;
• 16.7. Either party may terminate this agreement at any time for convenience by giving one (1) month’s written notice to the other party.
• 16.8. On Termination, the Parties shall be discharged from any liability for further performance of its obligations under this agreement and shall entitle either party to be paid the accrued sum for any successful transaction prior to such termination.
• 16.9. Upon termination of this agreement your right to use the Payment Gateway and the other services shall automatically be revoked and Zest shall retain the merchant records which include but are not limited to the merchant information and the transaction records for a period of six (6) years after such termination.
• 16.10. Notwithstanding, Zest shall have the right at any time to give immediate notice in writing to the merchant to terminate this service forthwith upon the happening of any one or more of the following events of default, whether or not such event is of a continuing nature:
  • If the merchant breaches any of the terms and conditions of this service.
  • If the Merchant breaches any of the terms and conditions of the Storefront.
  • If the merchant is deceased or its partnership is dissolved.
  • If the merchant’s webpage contains any material or involves any trade or activity deemed undesirable by Zest or any Regulatory Authority
  • If the merchant’s webpage or security system has been breached or compromised
  • Or if there had been multiple complaints and disputes relating to the merchant’s goods or services by the Customers

confidentiality

• 17.1. Each of the Parties hereto undertakes to the other to keep confidential all information [written or oral] concerning the business and affairs of the other that it shall have obtained or received as a result of this Agreement save that which is required to be disclosed by law or by order of a regulatory body or authority; or already in its possession other than as a result of a breach of this clause; or in the public domain other than as a result of a breach of this clause
• 17.2. In the course of this agreement, the merchant may acquire information relating to Zest, its pricing methods, systems, processes and hereby agree to respect and preserve its confidentiality and not to disclose any such information to any third party, agent or employee for any reason whatsoever, other than its employees and affiliates on a “need to know” basis, provided that they are subject to a confidentiality agreement; or as required by law.
• 17.3. The merchant shall also keep all information acquired from cardholders/ customers confidential and shall not disclose any such information to any third party, other than as required by law.
• 17.4. Upon the request of the other party, each party shall return all Confidential Information in the possession of such party or in the possession of a third party (over which such party has or may exercise control).
• 17.5. The Parties undertake to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this clause by its employees, agents and subcontractors. The confidentiality obligations shall survive the termination of this Agreement
• 17.6. Upon the request of the other party, each party shall return all Confidential Information in the possession of such party or in the possession of a third party (over which such party has or may exercise control).

force majeure

• If any of the parties hereto is prevented from fulfilling its obligations under this agreement or unable or delayed in doing same under this Agreement arising from any cause including but not limited to acts of God, civil commotion, strike, system breakdown or downtime, acts of civil or military authority, fire, epidemic, governmental restrictions, war, riot, storm, and flood and events having similar effect, the party unable to fulfil its obligations shall immediately or no later than twenty-four hours of the occurrence give notice in writing of this to the other party and shall do what is reasonable in the circumstances to avoid or remove the causes of the Force Majeure including but not limited to accepting assistance from third parties or the other party, to resume the performance of its obligations under this Agreement. If the period of incapacity exceeds two (2) months, then this agreement shall automatically terminate unless the Parties expressly agree otherwise in writing.

anti-corruption

• 19.1. Each party hereby undertakes that, at the date of this agreement, itself, its directors, officers, employees or affiliates have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with this agreement and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so.
• 19.2. Each party shall comply with all applicable anti-bribery and anti-corruption Laws in Nigeria (including the Economic and Financial Crimes Commission laws and the Foreign Corrupt Practice Act of the United States of America and the Bribery Act 2010 of the United Kingdom) and all applicable anti-bribery and anti-corruption regulations and codes of practice.
• 19.3. You shall ensure that this clause is observed in all relationships with its customers.

intellectual property

• 20.1. Nothing set forth in this agreement shall constitute a transfer or assignment by one party to another party of any Intellectual Property owned or otherwise controlled by such party, and each party hereby retains all of its rights, title and interest in such Intellectual Property Rights.
• 20.2. All Intellectual property rights related to Zest will remain the exclusive property of Zest, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Payment Gateway or any of the other services is used or licensed. The merchant shall not take any action that jeopardizes Zest’s proprietary rights or acquire any right in the payment gateway or any of the other services, or the confidential information, as defined herein. Unless otherwise agreed on a case-by-case basis, Zest will own all rights in any copy, translation, modification, adaptation or derivation of the Payment gateway/other services or other items of confidential information, including any improvement or development thereof.
• 20.3. All rights, title, and interest in the Services, including all copyrights, patents, trade secrets, marks, and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to Zest.
• 20.4. Zest respects all copyrights and trademarks of others. As a Merchant on our website, you must in turn respect these rights.
• 20.5. Zest loves feedback as it helps to enhance your experience and our services. Any comments, ideas, opinions, materials and suggestions you submit to us as feedback will be treated as non-confidential and non-proprietary to you. Therefore, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and reproduce those feedback for any purpose, without compensation to you.

no assignment

• Zest may sub-contract or delegate the performance of its obligations under this agreement to third parties including any of its affiliates; however, the merchant shall remain responsible for the performance of its duties under this agreement.

Waiver

• No waiver or abandonment by either Party of any of its rights in terms of this Agreement, shall be binding on that Party, unless such waiver or abandonment is in writing and signed by the waiving Party, and any such waiver or abandonment shall be effective only in the specific instance and for the purpose given. Any failure or delay by either Party hereto in exercising any right, power or privilege hereunder shall not operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege

severance

• If any provision of this Agreement shall be held illegal or unenforceable, such provision shall be deemed separate and divisible from and shall in no way affect or impair the validity or enforceability of, the remaining provisions.

governing law and dispute resolution

• 24.1. This Agreement shall be governed and construed in accordance with the Laws of the Federal Republic of Nigeria in force from time to time. This Agreement is subject to the Central Bank of Nigeria’s guidelines and regulations and therefore Zest reserves the right to review this Agreement to comply with these guidelines and regulations and any changes thereof.
• 24.2. Zest shall not be involved in any disputes or claims that may arise between the merchant and any of its customers unless such dispute or claim specifically and directly relates to transaction settlement or the Zest Payment Gateway and the other services tied to the Gateway. Zest must be notified of such disputes within thirty (30) days of its occurrence
• 24.3. In the event of a dispute arising out of or relating to this agreement in any manner, including but not limited to the breach thereof, the parties shall meet to reach a resolution by negotiation in good faith. If resolution cannot be resolved amicably by the Parties through negotiation within thirty (30) days, then the matter shall be referred to a one-man final and binding arbitration appointed on the agreement of the parties. failing such Agreement by the President for the time being of the Chartered Institute of Arbitration (UK) Nigeria Branch shall decide. by arbitration at the Lagos Multi-Door in accordance with the Arbitration and Conciliation Act, Cap A18, Laws of the Federation of Nigeria.
• 24.4. The arbitration shall be held in Lagos, Nigeria and conducted in English language.
• 24.5. The cost of arbitration shall be borne equally by the Parties.
• 24.6. The arbitral award rendered by the arbitrator shall be entered in any court of competent jurisdiction as judgment. No award of punitive damages by the arbitrator may be enforced.

sanctions

• 25.1. You declare, warrant, represent and undertake to Zest that:
  • 25.1.1. You will not use (or otherwise make available) the proceeds under this Agreement for the purposes of financing, directly or indirectly, the activities of any person or entity which is Sanctioned or in a country which is subject to any Sanctions.
  • 25.1.2. You will not contribute or otherwise make available, directly or indirectly, the proceeds of this contract to any other person or entity if such party uses or intends to use such proceeds for the purpose of financing the activities of any person or entity which is subject to any sanctions
  • 25.1.3. You are not involved in any illegal or terrorist activities; and
  • 25.1.4. None of your bank accounts are being used fraudulently, negligently, for illegal or terrorist activities, or for any purpose that does not comply with any law.
• 25.2. You hereby indemnify and hold Zest and/or any Zest related entity harmless against any actions, proceedings, claims and/or demands that may be brought against Zest and/or Zest-related entity and all losses, damages, costs and expenses which Zest and/or Zest-related entity may incur or sustain, in connection with or arising out of:
  • 25.2.1. the seizure, blocking or withholding of any funds by any sanctioning body; and
  • 25.2.2. the breach of any warranties as set out in this agreement.
• 25.3. Payment under the above indemnity shall be made by Zest on demand by Zest or such other Zest-related entity. The provisions of this paragraph constitute a stipulation for the benefit of each Bank related entity which is not a direct party to this contract, capable of acceptance by such Bank related entity at any time and in any manner permitted by law.
• 25.4. For purposes of this clause, Sanctions refers to sanctions imposed by the Office of Foreign Assets Control (“OFAC”), Her Majesty’s Treasury (“HMT”), the United Nations Security Council (“UNSC”), the European Union (“EU”), the French Ministry of Economy, Finance and Industry (“MINEFI”), Economic and Financial Crime Commission (EFCC) and US National Defence Authorisation Act (“NDAA”).

data protection

• 26.1. The Merchant will receive information pertaining to or from the Cardholder/Customer including the Data (“information”) which you will treat as confidential and not use other than as strictly necessary for the Transaction. In terms whereof you will comply with all PCI DSS & PA DSS requirements, and the Nigerian Data Protection Regulations 2019 as amended from time to time; and
• 26.2. You will disclose this information only to parties involved in the Transaction and then only as is necessary to give effect to the Transaction
• 26.3. You will keep all systemS and media containing the information and other Data, whether physical or electronic, in a secure manner, to prevent access by or disclosure to anyone other than your authorized Personnel or Zest
• 26.4. You will destroy in a manner that will render the Data unreadable, all such information that is no longer necessary or appropriate to store
• 26.5. You will at all times be liable for any losses resulting from any misuse of Data by the Merchant, any failure to keep the information secure and/or a Data Compromise
• 26.6. You acknowledge and agree that any breach of its obligations under this clause will be deemed a material breach of the Agreement

notices

• Any notice required or permitted by this agreement to be given to either party by the other shall be given by personal delivery to such party or by registered or certified mail, electronic mail, postage prepaid, return receipt requested, and addressed to:

independent contractors

The Parties hereby enter into this Agreement as independent contractors, and this Agreement will not be construed to create a partnership, joint venture, or employment relationship between them. Neither Party will represent itself to be an employee of the other or enter into any agreement or legally binding commitment or statement on the other’s behalf or in the other’s name.

general:

• 29.1. Zest reserves the right to amend these Terms and Conditions at any time. Any revised version will be effective immediately it is displayed on Zest’s official website. You will also get every amended version in your registered email address.
• 29.2. By virtue of this Agreement, you hereby authorize Zest to collect, use, transfer, store or in other ways handle (altogether “to Process”) its data, Company data and/or its Information. You understand and agree that you are at liberty to withdraw this consent at any time by contacting Zest at, support@zestpayment.com
• 29.3. In the event of any comments or questions concerning these Terms and Conditions or for more information on this Services or challenges with obtaining your copy of these Terms and Conditions, please contact us by emailing support@zestpayment.com merchantsupport@stanbicibtc.com