The terms below apply specifically to the use of the PayOdd Vendor ("Vendor Services") by a business user ("VENDOR"). This additional Agreement does not in any way limit the User Agreement that the business user accepted prior to becoming a member of PayOdd. By using PayOdd for commercial purposes, the business user agrees to the following General Vendor Terms and Conditions:
1.1. PayOdd shall make available to VENDOR the service, which facilitates the real-time collection of payments to VENDOR in conjunction with PayOdd'S electronic payment service. The transfer of the collected payments to the VENDOR's electronic money account with PayOdd shall be effected immediately, after deduction of the fees due from the VENDOR.
1.2. VENDOR complies with PayOdd fee schedule for using the Vendor Service as posted on the Vendor website under .
1.3. The service to be supplied by PayOdd shall be integrated as described in the "Vendor Tools" section on the PayOdd website. VENDOR will display a PayOdd logo on his website with the minimum requirement of but not limited to placing it visibly at first sight on the section of the website informing the customer about possible payment options.
1.4. VENDOR grants PayOdd the right to access his website through manual observation or automated "spidering" or other automated search techniques in order to confirm the accuracy of information. However, PayOdd is under no obligation to monitor the accuracy of VENDOR's website.
1.5. PayOdd reserves the right to hold funds beyond the normal distribution period for transactions that it reasonably deems suspicious in regards to money laundering, fraud and other criminal activities. Furthermore, PayOdd reserves the right to lock and/or shut down VENDOR's accounts, if PayOdd has reason to believe that the VENDOR is in any way involved in such activity. Should such funds be held or accounts be locked and/or shut down, PayOdd will give top priority to resolving the matter as soon as possible.
It is VENDOR's responsibility to determine what, if any, taxes apply to the payments he receives and collect, report and remit the correct tax to the appropriate tax authority. PayOdd is not obligated to determine whether taxes apply, and is not responsible to collect, report, or remit any taxes arising from any transaction.
For the purposes of the present Agreement, the Parties grant each other a non-exclusive right - which shall be unlimited in terms of geography and content but limited to the duration of the present Agreement - to copy and distribute on each other's website either in digital or other computerised form the logo, the company name and the trade name of the other Party including all other trade names belonging to the other Party and including all forms and adaptations approved by the other Party, irrespective of whether or not they are protected under company or trademark law; this shall also include non-Internet advertising for such websites, e.g. in print media (e.g. newspaper advertisements), on the radio, on television, etc.
Notwithstanding the above, the other party's logo, company name and trade name may only be used in connection with and for the purpose of this contract and such logo, company name and trade name shall not be modified or amended in any way without the prior written consent of the other Party.
Accept as expressly stated in this Agreement nothing in this Agreement shall grant or be deemed to grant any Party any right, title or interest in any logos, trade marks, trade names or other intellectual property rights owned by the other Party and accept as expressly stated herein nothing in this Agreement shall entitle any Party to use the other Party's logos or trade marks or any other intellectual property rights in any way whatsoever without the prior written consent of the other Party.
This license will end upon termination of this Agreement.
4.1. VENDOR warrants and represents that he owns and may license all rights required for performance of the present Agreement and that he may transfer such rights to PayOdd in the extent required and for the use as set out herein without infringing any rights of third parties.
4.2. VENDOR warrants and represents that the services and products that are made available to customers comply with applicable law in any jurisdiction in or to which VENDOR is offering his services and that VENDOR has all requisite licenses and permits to engage in the advertising and sale of the goods and services offered.
4.3. VENDOR warrants and represents that he is not receiving funds in connection with any illegal, fraudulent, deceptive or manipulative act or practice and VENDOR is not sending or receiving funds to or from an illegal or prohibited source or entity.
4.4. VENDOR undertakes not to receive payments as consideration for the delivery of tobacco products, prescription and non prescription drugs, porn and hardcore content or services as well as illegal downloads or any other goods and services infringing intellectual property rights of a third party.
4.5. VENDOR acknowledges and agrees that the PayOdd Gateway Service operates solely as a venue for receiving funds and that PayOdd (i) in no way functions as a seller, buyer, dealer, middleman, retailer, auctioneer, supplier, distributor, manufacturer, broker, agent or Vendor of any product or service being ordered, obtained or procured by any funds processed through the Service; and (ii) makes no representations or warranties and does not ensure the quality, safety, or legality of any product or service purchased or procured by any funds received through the PayOdd Gateway Service.
4.6. VENDOR acknowledges that any dispute regarding any product or service purchased or procured by any funds requested or received through the PayOdd Gateway Service or any transaction involving the PayOdd Gateway Service is between the sender and receiver of the funds and/or the third party goods or service provider. All transactions connected with the products and services offered by the VENDOR shall only be incumbent upon and shall only obligate the VENDOR. PayOdd shall not be a party in any such relation or dispute. This refers in particular to performance and to liability in respect of claims relating to the use of the products and services offered by the VENDOR. If VENDOR is promptly given notice of any claims and is given the opportunity to participate in any defense or other resolution of such claims, VENDOR shall fully indemnify PayOdd against all claims by third parties relating to the use of the products and services offered and shall reimburse PayOdd in full the costs of any legal defense.
4.7. VENDOR will cooperate with PayOdd to investigate any suspected illegal, fraudulent or improper activity.
4.8. VENDOR undertakes to clearly disclose the refund policies on his website and warrants that all information provided to PayOdd about VENDOR's business, incorporation and place of business is truthful and up-to-date.
4.9. If the VENDOR infringes one of the provisions of this Agreement, he will reimburse PayOdd for all resultant damage and shall fully indemnify PayOdd against the third-party claims in question and shall reimburse in full any legal defense costs that are incurred.
5.1. In any event, PayOdd will only be liable in the case of gross negligence and willful and malicious misconduct.
5.2. PayOdd will use best efforts in order to collect VENDOR's funds properly. However, PayOdd will not incur liability for non-performance because of the existence of any of the following occurrences:
a) VENDOR's hardware, software or internet provider's service is not functioning properly;
b) PayOdd has reason to believe that the transfer is unauthorised or fraudulent;
c) The transfer received does not contain the correct information;
d) VENDOR's received transfers or receipt of funds is intercepted by legal process or other encumbrance restricting the transfer (e.g. security reasons);
e) Unforeseen circumstances prevent the execution of VENDOR's transfer despite any reasonable precautions taken by PayOdd. Such circumstances may include, but are not limited to acts of God, power outages, fire, flood, theft, equipment breakdowns, hacking attacks, internal mechanical or systems failures as well as downtimes of the PayOdd website.
5.3. TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT or any products or services obtained with funds sent through the service whether such claims arise from contract, strict liability or otherwise (INCLUDING DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, PROVIDED THAT THIS SECTION DOES NOT LIMIT EITHER PARTY'S LIABILITY TO THE OTHER FOR (A) WILLFUL AND MALICIOUS MISCONDUCT; (B) DIRECT DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY; (C) BODILY INJURY OR DEATH CAUSED BY NEGLIGENCE.
5.4. Accept for breaches of clause 4 (Representations, Warranties and Indemnification) the liability of each Party in contract, tort, negligence, pre-contract or other representations or otherwise arising out of, or in connection with this Agreement or the performance or observance of its obligations under this Agreement, and every applicable part of it shall be limited in aggregate to USD 10,000.
During the term of this Agreement and thereafter, each Party will use and reproduce the other Party's Confidential Information only for purposes of this Agreement and only to the extent necessary for such purposes and will restrict disclosure of the other Party's Confidential Information to its employees, consultants or independent contractors with a need to know and will not disclose the other Party's Confidential Information to any third party without the prior written approval of the other Party. Notwithstanding the foregoing, it will not be a breach of this Agreement for either Party to disclose Confidential Information of the other Party if required to do so under law or in a judicial or other governmental investigation or proceeding. As used in this Agreement, the term "Confidential Information" refers to: (i) the terms and conditions of this Agreement; (ii) each Party's trade secrets, business plans, strategies, methods and/or practices; and (iii) any other information relating to either Party or its business that is not generally known to the public, including but not limited to information about either Party's personnel, products, customers, marketing strategies, services or future business plans. Notwithstanding the foregoing, Confidential Information specifically excludes (A) information that is now in the public domain or subsequently enters the public domain by publication or otherwise through no action or fault of the other Party; (B) information that is known to either Party without restriction, prior to receipt from the other Party under this Agreement, from its own independent sources as evidenced by such Party's written records, and which was not acquired, directly or indirectly, from the other Party; (C) information that either Party receives from any third party reasonably known by such receiving Party to have a legal right to transmit such information, and not under any obligation to keep such information confidential; and (D) information independently developed by either Party's employees or agents provided that either Party can show that those same employees or agents had no access to the Confidential Information received hereunder.
The term of this Agreement shall commence on the date of signature (the "Effective Date") and continue until terminated as provided below:
7.1. Either Party may terminate this Agreement with three weeks written notice for any or no reason at any time following the Effective Date.
7.2. Either Party may terminate this Agreement immediately:
a) If the other Party files a petition for bankruptcy, becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or a receiver is appointed for the other Party or its business, or the other Party goes into liquidation either voluntary (otherwise than for reconstruction or amalgamation) or compulsory;
b) Upon the occurrence of a material breach of this Agreement by the other Party if such breach is not cured within seven (7) days after written notice is received by the breaching Party identifying the matter constituting the material breach;
c) If the other Party violates or fails to comply with any applicable law or regulation.
Neither Party may assign any of its rights under this Agreement to any third party without the prior written consent of the other party. Also, this Agreement is not intended to grant a right to a third party other than the contracting parties that would enable a third party to enforce a provision of this Agreement pursuant to the Contracts Act 1999 (Right of Third Parties).
VENDOR and PayOdd are independent contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture or agency relationship between them. Neither Party has authority to enter into agreements of any kind on behalf of the other.
VENDOR undertakes that he will not for the term of this Agreement and a period of six months thereafter on his own behalf or on behalf of any person, Associated Company directly or indirectly canvass solicit or endeavour to entice away from PayOdd or an Associated Company any person who has at any time during the term of this Agreement been employed or engaged by PayOdd or an Associated Company. For the purpose of this section, and "Associated Company" means any entity that is controlled by, controls or is under common control with, directly or indirectly, the Company ("control" of any entity or party meaning ownership of a majority of the issued shares or voting power of an entity or party or the power to direct or cause the direction of the management and policies of an entity or party, whether through ownership of voting securities, by contract or otherwise).
All notice required to be given under this Agreement must be given in writing and delivered either in hand, by certified mail, email while in case of notifying PayOdd only when receipt is confirmed by PayOdd, return receipt requested, postage pre-paid or other recognized delivery service, or by facsimile.
If VENDOR is a legal entity, VENDOR is required to inform PayOdd about a change in the ownership, whereas a change in the ownership shall be regarded as a change of the majority of the voting rights.
This Agreement, its interpretation, performance or any breach thereof, will be construed in accordance with, governed by, and all questions with respect thereto will be determined by the laws of South Africa or the United States of America. These laws shall be the applicable law of any jurisdiction to or in which VENDOR is offering services in any way. Each Party hereby agrees that any action arising out of or related to this Agreement must be brought exclusively to the courts of South Africa or the United States of America.
No Party shall be deemed to have waived any right under this Agreement by reason of or failure or delay in exercising such right.
Leaving unaffected the User Agreement the VENDOR accepts or accepted when becoming a member of the PayOdd payment system, this Agreement constitutes the entire understanding of the Parties hereto with respect to the transactions and matters contemplated hereby, supersedes all previous agreements between the Parties concerning the subject matter, and cannot be amended accept by a writing signed by authorized representatives of both Parties. No Party hereto has relied on any statement, representation or promise of any other Party or with any other officer, agent, employee or attorney for the other Party in executing this Agreement accept as expressly stated herein.