1. INTRODUCTION
1.1) MTN is a company duly registered in accordance with the company laws of South Africa which conducts business as an electronic communications network services provider. MTN markets and distributes various MTN mobile telephone products and services, either through its own outlets or through selected third-party distributers.
1.2) African Bank is a Bank incorporated in accordance with the laws of the Republic of South Africa and is duly licensed as a Bank in terms of the Banks Act.
1.3) MTN has developed the Mobile Money System which offers transactional capabilities to, inter alia, enable the wireless telephone connection to a financial ecosystem thereby offering certain financial services, in conjunction with African Bank, to MoMo Customers. This interoperability between MTN’s Mobile Money System’s transactional capabilities and that of the financial services which African Bank is able to provide enables MoMo Customers to enter into transactions through the Mobile Money System.
1.4) As part of these transactional capabilities, the Mobile Money System enables MoMo Customers to make online payments and to pay for goods and services at participating merchants, through amongst others the use of the MoMo App and USSD. The Merchant sells good and/or services to MoMo Customers and wishes to participate as a merchant that accepts Mobile Money as payment for goods and services.
1.5) MTN is authorized to provide mobile money services in South Africa, to enable MoMo Customers to carry out certain financial transactions using their mobiles phones.
1.6) MTN wishes to appoint the Merchant, which wishes to accept the appointment, to participate as a merchant for MTN and to accept Mobile Money as a tender for goods and services purchased by Customers.
1.7) The Parties have agreed, inter alia, to regulate their relationship in accordance with the terms and conditions stipulated in this Agreement.
2. DEFINITIONS
In this agreement:
2.1) the clause headings are for convenience and shall be disregarded in interpreting this Agreement;
2.2) unless the context indicates a contrary intention, the singular shall include plural and vice versa;
2.3) a natural person includes an artificial or juristic person and vice versa;
2.4) Unless the context clearly indicates a contrary intention, the following expressions shall bear the meaning set opposite them below and cognate expressions shall bear corresponding meanings -
“Affiliate” means means, in relation to a Party, all other parties which directly or indirectly (whether through one or more intermediaries or otherwise) Control, or are Controlled by, or are under common Control with, that Party or its successors-in-title from time to time;
“African Bank” means African Bank Limited (registration number: 2014/176855/06), a public company incorporated in accordance with the laws of the Republic of South Africa and registered as a bank in terms of the Banks Act, with its registered address at 59 16th Road, Midrand, South Africa.
“Activities” means the Merchant Activities and the MTN Activities;
Applicable Laws means all laws, rules, codes, regulations, and formal regulatory guidelines and standards which are:
a) in force from time to time;
b) made by a regulator, legislature or other public authority;
c) binding on a Party; and
d) relevant to this Agreement;
"AFSA" means the Arbitration Foundation of Southern Africa;
“Agreement” means this Agreement concluded between MTN and the Merchant in terms of which the Merchant shall provide the Mobile Money Services and includes all schedules and amendments hereto;
“API” means application programming interface;
“Bank” means a public company registered as a bank in terms of the Banks Act;
“Banks Act” means the Banks Act, 94 of 1990 as amended;
“Cash” means the South African Rand, being the lawful currency of the Republic of South Africa;
“Commencement Date” means the date on which the Merchant accepts the terms and conditions of this Agreement, on-boards a Merchant in terms of this Agreement and/or accepts Mobile Money as payment for goods /or services as contemplated in this Agreement for the very first time (whichever occurs first);
“Control” (including its correlative meanings, Controlled by and under common Control with) in relation to any person, means the possession, direct or indirect, of the power either (a) to vote based upon a holding of more than 50% of the securities, share, stock, equity interest of such person or comparable ownership interest having voting power or similar rights for the election of directors of such person (or comparable positions in the case of persons that do not have directors); or (b) to direct or cause the direction of the management and policies of such person whether by contract or otherwise.Change of Control shall be construed accordingly;
Data Protection Laws means any Applicable Laws which regulate the Processing of Personal Information under or in connection with this Agreement;
“Equipment”means a mobile phone and or any other equipment to be provided by MTN to the Merchant which, when used together, enables a MoMo Customer to purchase goods and/or services from the Merchant using Mobile Money;
Infrastructure means information technology and telecommunications infrastructure and systems, including computer and telecommunications networks, equipment, hardware, APIs, software, middleware, firmware, data, databases, peripherals, terminals and components;
“Initial Term” means a period of 3 (three) years commencing on the Commencement Date;
“Merchant” means the person who accepts either the terms and conditions of this Agreement, on-boards as a merchant through the MTN API and/or accepts Mobile Money as payment for goods and/or services as contemplated in this Agreement;
Merchant Activities means acceptance of Mobile Money from MoMo Customers as payment for goods and services sold or provided (as the case may) to the MoMo Customers by the Merchant as contemplated in this Agreement;
“Merchant Fee” means the fee levied by MTN from the Merchant for every Transaction effected through the Mobile Money Services in accordance with the provisions of, and subject to any adjustments, set out in clause 7;
“Merchant Store” means the outlet, outlets or commercial facility of the Merchant (including by digital stores accessible to MoMo Customers through uniform resource locators i.e.URL to be made available by the Merchant on the MOMO App, through the assistance of MTN) from which the Merchant accepts Mobile Money from MoMo Customers as payment for any goods and/or services;
“Merchant System” means the Infrastructure used by the Merchant to connect and interface with members of the MTN Group and perform Merchant Activities, excluding the MTN Infrastructure;
“Mobile Money” means the electronic money issued by African Bank to MoMo Customers into a Mobile Money Account upon receipt of the equivalent amount of Cash and which represents an entitlement to an equivalent amount of Cash held in the Mobile Money Bank Account and which is to be utilised to give effect to Transactions;
“Mobile Money Account” means the MoMo Customer’s account holding Mobile Money within the Mobile Money System for conducting Transactions;
“Mobile Money Bank Account” means the bank account held at African Bank by African Bank and in its name for and on behalf of the MoMo Customers who have deposited Cash in exchange for Mobile Money which they receive in their Mobile Money Account;
“Mobile Money Services” means the Mobile Money service provided by MTN and African Bank to MoMo Customers which facilitates the initiation and conclusion of Transactions.
“Mobile Money System” means the system comprising technology platforms and software owned and/or licensed and operated by MTN, which systems are integrated to those of African Bank, to facilitate the Mobile Money Services;
“MoMo App” means the mobile application through which MoMo Customers will be able to access the Mobile Money Service in order to conduct Transactions using Android and IOS enabled mobile phones and/or tablets;
“MoMo Customers” means a party with whom MTN and African Bank have agreed to provide the Mobile Money Services pursuant to the conclusion of an end user agreement or the purchase of a pre-paid kit or Mobile Money products and services that facilitate the Mobile Money Service;
“MTN” means Mobile Telephone Networks Proprietary Limited, a company incorporated under the laws of the Republic of South Africa (with company registration 1993/001436/07) and whose registered office is at 216 14th Ave, Fairland, Randburg, 2195, or where the context allows, shall include its successors and assigns;
MTN Activities means the operation of the MTN Platform and MTN's other activities related to this Agreement;
“MTN API” means the API provided to the Merchant pursuant to clause 4;
MTN API Documents means the documents, data and information that MTN provides regarding the use of the MTN API through the MTN API Portal or in the MTN Technical Requirements and any information obtained from the Merchant through the API registration process;
MTN API Portal means the online developer management site found at https://momodeveloper.mtn.com/ (in respect of development and testing) and https://momoapi.mtn.com/ (in respect of production);
“MTN Customer” means any user or potential user of MTN services;
“MTN Group” means MTN and its Affiliates;
“MTN Infrastructure” means the Infrastructure owned or operated by MTN or members of the MTN Group or vendors to MTN or members of the MTN Group, including the MTN Platform;
“MTN Platform” means the platform and Infrastructure that MTN uses;
“MTN Technical Requirements” means the requirements https://momodeveloper.mtn.com/ (in respect of development and testing) and https://momoapi.mtn.com/ (in respect of production);
“MTN Web Page” means the web page situated at www.mtn.co.za;
"Parties" means the parties to this Agreement and a reference to “Party” shall embrace each one of them individually;
“Personal Information” means information relating to any natural or legal person, the Processing of which is regulated by Data Protection Laws;
“Portal” means MTN’s cellular application which is stored on the MoMo Customer’s cellular telephone and the Merchants Equipment which enables the MoMo Customer to effect an electronic payment for the goods and/or services provided by the Merchant to the MoMo Customer;
“Process” means to collect, receive, record, organise, collate, store, develop, update, modify, retrieve, alter, consult, use, disseminate or perform any other act or action, including any other act or action which may be treated or defined as "process" or "processing" (or any equivalent term for a similarly-regulated activity) in terms of any Data Protection Laws, and Processed and Processing shall have a corresponding meaning;
“Sub-Contractor” means any third party to whom a Party delegates or otherwise subcontracts any part of its obligations under this Agreement;
“Signature Date” means the date of acceptance of the terms of this Agreement by the Merchant;
“Taxes” means any and all assessments, charges, levies, rates or taxes assessed, charged or levied by any town council, municipal assembly, metropolitan assembly or any revenue authority, under any law, and includes penalties and costs;
“Transactions” means, in respect of the Merchant, the transfer of Mobile Money via the Mobile Money Service between MoMo Customers and the Merchant.
“Unique Merchant Code” means the unique code to be allocated to the Merchant by MTN which will enable MoMo Customers to effect Transactions with the Merchant;
“USSD” means the unstructured supplementary service data which the MoMo Customers employs on their cellular telephone to send a text message between their cellular telephone and an application program in MTN’s network in order to, inter alia, effect Transactions; and
“Web Interface” means the internet interface through which Mobile Money Account details including Transactions can be viewed and through which certain Transactions can be completed as more particularly specified in the MTN Web Page.
2.5) if any provision in a definition is a substantive provision conferring a right or imposing an obligation on any party then notwithstanding that it is in a definition, effect shall be given to that provision as if it were a substantive provision in the body of this Agreement;
2.6) where any term is defined within a particular clause other than this clause 2, the term so defined shall bear the meaning ascribed to it in that clause wherever it is used in this Agreement unless it is clear from the clause in question that such a defined term has limited application to the relevant clause.
2.7) any reference to any statute, regulation or other legislation shall be a reference to that statute, regulation or other legislation as:
a) at the Signature Date; and
b) amended or substituted from time to time;
2.8) where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention
2.9) the rule of construction that this Agreement shall be interpreted against the party responsible for the drafting of this Agreement shall not apply;
2.10) the use of any expression in this Agreement which refers to a South African legal concept or process such as for example, winding-up or curatorship shall be deemed to include a reference to the equivalent or analogous concept or process in any other jurisdiction in which this Agreement may apply or to the laws of which a party may be or become subject;
2.11) the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general word preceding it;
2.12) where any number of days is to be calculated from a particular day, such number shall be calculated as excluding such particular day and commencing on the next day. If the last day of such number so calculated falls on a day which is not a business day, the last day shall be deemed to be the next succeeding day which is a business day;
2.13) no provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a party to this Agreement; and
2.14) any reference to days (other than business days), months or years shall be a reference to calendar days, months or years as the case may be.
3. APPOINTMENT AND DURATION
3.1) MTN hereby appoints the Merchant, which hereby accepts the appointment, under the terms and conditions set out in this Agreement and with effect from the Commencement Date, to participate as a merchant for MTN and for this purpose to accept Mobile Money from MoMo Customers as payment for goods and services sold or provided (as the case may) to the MoMo Customers by the Merchant.
3.2) Subject to the provisions of clause 20 (Termination and Expiry), this Agreement shall commence on the Commencement Date and shall remain in force for the Initial Term. At the expiry of the Initial Term, the Parties may agree to renew this Agreement on the same terms and conditions for a further period of 3 (three) years.
3.3) In the event that MTN exercises the option to extend or renew this Agreement, the Parties shall endeavour to sign an addendum recording such extension or renewal and the terms thereof, by no later than 30 (thirty) days prior to the expiry of the Initial Term.
3.4) For the avoidance of doubt, in the event that MTN does not elect either to extend or renew this Agreement, this Agreement will automatically terminate at the end of the Initial Term.
4. INTERFACES
4.1) General
a) The Merchant shall use its reasonable endeavours to ensure that the Merchant System is sufficiently flexible to interface with, and is capable of working with, new technology and systems that are or may be employed for the duration of this Agreement by MTN (and which MTN has notified to the Merchant in writing).
b) MTN shall use its reasonable endeavours to provide the Merchant with access to the MTN API to access the MTN Platforms. The Merchant may use the MTN API solely as described in the MTN API Documents to integrate with the MTN Platform in order to perform the Merchant Activities.
c) The Merchant shall not make any change to the Merchant System that would cause this Agreement to be breached or which may reasonably be expected to have a detrimental impact on any MTN Customer without giving MTN reasonable notice of such change and obtaining MTN’s prior written consent to the change.
d) The Merchant shall ensure that its Infrastructure meets the MTN Technical Requirements, from the time when the following integration and testing activities are due to start, until termination of the Agreement.
e) The Merchant acknowledges that its relationship with MTN is not exclusive and its use of the MTN API is not exclusive; and that MTN may engage with other providers to carry out activities which are the same or similar to the Merchant Activities in relation to the MTN Platform, and permit or require those other providers to use the MTN API.
f) MTN may suspend or terminate the Merchant's use of the MTN API at any time in the event of a breach of this Agreement by the Merchant. MTN may also suspend or terminate Merchant's use of the MTN API at any time if MTN is required to do so by a third party which has rights in respect of the MTN API.
4.2) Integration and testing
a) The Merchant shall:
i) integrate the Merchant System with the test environment of the MTN Platform via the test MTN API in accordance with the integration steps set out in the MTN Technical Requirements;
ii) carry out testing of the Merchant System with the MTN Platform in the test environment, in accordance with instructions and guidelines as published on the MTN API Portal and as updated by MTN from time to time; and
iii) at least 10 (ten) days prior to commencing the Merchant Activities, present to MTN a completed form (as made available by MTN to the Merchant) which confirms that the acceptance testing has been successfully completed and the integration steps correctly and successfully performed in accordance with the MTN API Documents.
4.3) Data interchange
a) Subject to completion and timely submission of the relevant form referred to in clause 4.2 confirming that the acceptance testing has been successfully completed and the integration steps correctly and successfully performed, MTN and the Merchant shall exchange data with each other as set out in the MTN API Documents for the purpose of performing the Activities. The Parties will do this using reasonable skill, care and diligence, and in compliance with Schedule 1).
b) The Merchant may only, and shall procure that any Subcontractor shall only store and Process (whether at a physical location or using cloud infrastructure):
i) MTN Customer Data;
ii) MTN Data; and
iii) any data provided to it under or in connection with this Agreement, in a jurisdiction approved by MTN in writing in advance, which approval may be changed by MTN where required in order to comply with Applicable Laws (including Data Protection Laws).
5. UNDERTAKINGS BY THE MERCHANT
5.1) The Merchant undertakes the following in favour of MTN throughout the term of this Agreement:
a) to accept Mobile Money as payment from any MoMo Customers in exchange for any of its goods and/or services;
b) to accept Mobile Money as payment from any MoMo Customers either through the Portal on the Equipment or by way of an USSD function;
c) to display the Unique Merchant Code at every point of sale;
d) to display the most current advertising or promotional material pertaining to the subject matter of this Agreement, in accordance with the instruction and approval of MTN, if any;
e) to actively participate in and promote all Mobile Money special offers and packages offered by MTN from time to time;
f) to comply, at its own cost and expense, with all laws, licence conditions and the requirements of any legislative body or government, provincial, regional or local authority relating to any of the matters contemplated in this Agreement, if any;
g) to comply with such practice manuals and quality charters with regard to Mobile Money as MTN may provide from time to time;
h) at its own cost, observe all relevant legislation and comply with any directions made by any competent regulatory authority concerning the fulfilment of its obligations in terms of the matters contemplated in this Agreement;
i) to comply at its own cost with any directions issued by MTN insofar as they relate to compliance with the provision of any applicable licence or regulatory conditions, relating to the use or promotion of Mobile Money Services;
j) to refrain from doing or omitting to do anything which could reasonably be regarded as inconsistent with its obligations recorded in this clause 4;
k) to notify every MoMo Customer and potential MoMo Customer of any terms, conditions, provisions and any other additional information which MTN may require the Merchant to pass on to such MoMo Customer and/or potential MoMo Customer from time to time; and
l) comply with the requirements of Schedule 2 and Schedule 3.
6. NATURE OF THE RELATIONSHIP BETWEEN THE PARTIES
6.1) The Merchant acknowledges and confirms that all information/data that the Merchant collects in relation to Mobile Money, whether from the MoMo Customers or from other sources, is the property of MTN and MTN will be provided with copies of related working papers/files if it deems necessary
6.2) The Merchant acknowledges and confirms that neither the Merchant, nor any of the Merchant’s staff are staff of MTN. If any of the staff of the Merchant should successfully claim against MTN for any labour matter, the Merchant will provide MTN with a full indemnity against any and all costs associated in such a matter.
6.3) The Merchant acknowledges that MTN may at its discretion take any action against it for non-compliance with the obligations set out above and in this Agreement.
6.4) The Parties record and confirm that this Agreement will not be construed as creating a partnership between the Parties, or an agreement of agency. Additionally, neither of the Parties will make representations to the effect. To the extent that this Agreement is interpreted in the immediately preceding fashion and claims arise therefrom, the Merchant provides MTN with a full indemnity for all amounts howsoever arising in this regard.
6.5) The Merchant acknowledges that the Merchant and MTN are independent contractors and nothing in this Agreement shall be construed as the commercial relationship envisaged herein being a joint venture, partnership, employment relationship or contract of agency. Neither of the Parties will make representations that suggest otherwise.
7. MERCHANT FEE
7.1) MTN shall levy the Merchant Fee from the Merchant for every Transaction effected through the Mobile Money Service.
7.2) The Merchant Fee in respect of each Transaction shall be an amount equal to 2% (two per cent) of the amount of such Transaction.
7.3) The Merchant Fee set out in clause 7.2 above shall be subject to an annual escalation of to be reviewed determine by MTN on each anniversary of the Commencement Date.
7.4) The Merchant Fee will be deducted by MTN from the amounts payable to the Merchant in terms of clause 8.3.