Terms & Conditions
1.1 This “Agreement” consists of these QR Payment Services Terms & Conditions and the Merchant Application attached hereto and is made by and among Merchant, Acquirer and Issuer, in each case as named on the Merchant Application.
1.2 “Bayarlah” is the product name for Beez Fintech Sdn Bhd (1311362-X) (“BFSB”), providing merchant acquiring services in Malaysia. BFSB is approved and regulated by the Central Bank of Malaysia.
1.3 Under the terms of this Agreement, Merchant will be furnished with the services and products described herein and selected by Merchant herein (collectively and individually, as applicable, the “Services”) with respect to transactions for sale of goods and/or services involving QR Wallet issued under the QR Wallet issuers accepted for the time being (“QR Wallet Transactions”). Merchant agrees to be bound by this Agreement, as may be modified or amended from time to time.
1.4 If signed by a firm, the expression “Merchant” shall include the person or persons from time to time carrying on the business of such firm and, if Merchant comprises of two or more persons, the expression “Merchant” shall include all and each of them and their liabilities under this Agreement shall be joint and several.
1.5 Any reference in this Agreement to “Merchant”, “Issuer” or “Acquirer” shall, if the context permits or requires, be construed so as to include its and any subsequent successors, legal representatives and permitted transferees and assigns in accordance with their respective interests.
1.6 If the context permits or requires, words importing the masculine gender shall include the feminine and neuter genders, and words in the singular number shall include the plural number and vice versa. Any reference to a “Clause” shall mean a clause hereof.
1.7 BFSB has the exclusive rights to amend this Agreement and related rules, if any, or even introduce a new agreement, at any time and from time to time as deemed necessary. Once the amended or new agreement and rules are announced in BFSB’s website, they will immediately amend or replace the original agreement and rules, as the case maybe, and will automatically take effect. The Merchant can check the latest agreement at any time on BFSB’s website. If the Merchant does not agree to the amendments or replacement, as the case maybe, the Merchant should immediately cease using the Services. If the Merchant continues to use the Services or performs any operational activities on or through Bayarlah, the Merchant shall be deemed to have accepted the amended or new agreement and rules, as the case maybe.
2.1 Merchant acquiring services, which are provided under this Agreement and solely related to transactions using QR Wallet as payment instrument, consist of:-
(a)authorization of QR Wallet Transactions;
(b)electronic draft capture (or collection of sales slips) of QR Wallet Transactions;
(c)outclearing of QR Wallet Transactions to the appropriate QR Wallet issuers;
(d)provision of information to QR Wallet issuer to effect settlement of such transactions;
(e)dispute resolution with QR Wallet issuer if such dispute is due solely to Bayarlah; and
(f)transaction-related reporting, statements and products.
2.2 Merchant has elected to accept payment of the QR types as selected by them and as specified on the Merchant Application.
3.1 As part of the compliances and requirements under the applicable laws and regulations of which BFSB is obliged to adhere to, the Merchant is required to apply and register for Bayarlah with real name and to submit true and accurate, complete and current status and other relevant information, including but not limited to the following, to Bayarlah for assessment and approval to ensure that only genuine Merchants will be recruited into Bayarlah:
(a)Malaysians (MyKad) or Foreigners (Passport with valid business license)
(b)Valid Business Licence issued by:
ii. Local council;
iii. Relevant authorities;
iv. Local professional bodies.
(c)Valid Malaysian Bank Account
i. SSM registered name;
a. Owner’s account
(d)Photos of business operation or premises
(e)Business and Home address
3.2 Upon initiation of onboarding process with BFSB, the Merchant acknowledge, authorize and consent for the know-your-customer process to take place which may include a credit standing report and assessment through any license credit reporting agency.
3.3 Through continuance of Services and/or engagement with BFSB, the Merchant is deemed to have consented for its corporate information (in the case of individual Merchant, personal information) to be processed by BFSB.
3.4 Should the Merchant is not agreeable for their information to be processed AND its credit score report to be obtained by BFSB, the Merchant should immediately notify BFSB.
3.5 The Merchant acknowledge and agree for its credit score report to be purchased by BFSB and the cost will be borne by the Merchant in entirety.
3.6 Subject to clearance of know-your-customer and credit score report, the Merchant acknowledge and agree that it shall comply with other applicable laws and regulations which may include but not limited to the provisions of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.
3.7 By completing the registration process or by actually using the Services in the manner permitted by BFSB, the Merchant warrants and represents that it has the legal capacity to enter into this Agreement with BFSB. If the Merchant does not have the above capacity, please do not use the Services, otherwise the Merchant shall bear all the consequences and BFSB has the exclusive rights to cancel (or permanently freeze) the Merchant’s account with Bayarlah and in the event that BFSB shall suffer losses as a result of this, BFSB has the exclusive rights to claim compensation from the Merchant.
3.8 The Merchant is responsible for the accuracy, completeness, legality and authenticity of the materials and information provided. The Merchant shall update BFSB in writing of any changes in the aforesaid information.
3.9 The Merchant understands and agrees that the Merchant may use its mobile phone number provided or other methods permitted by BFSB to register as an account. The Merchant must not register the account name, profile photo and business profile in violation of laws and shall not pretend to be others and shall not register for others without prior written permission provided to BFSB, shall not register accounts or set numbers in a way that may cause other users to misidentify, shall not use usernames that may infringe on the rights of others (including but not limited to trademark rights, reputation infringement, etc.), otherwise BFSB shall not allow the account to be registered or shall stop the Services and terminate the Merchant Account and all losses shall be borne by the Merchant.
3.10 The Merchant understands and agrees that the Merchant Account which the Merchant has registered on the Bayarlah platform belongs absolutely to BFSB. After registration, the Merchant only gets the rights to use the said account. The Merchant Account’s rights areis only vested in the initial registrant and such shall not be transferred or supplied to others who are not related to the Merchant’s operation or business in anyway whatsoever failing which BFSB has the exclusive rights to immediately withdraw the Merchant Account without notice which would result in the lostloss of use and lostloss of all data and information generated through the Services. BFSB shall not be responsible for any losses and/or damages which may be suffered by the Merchant.
3.11 After the Merchant has been successfully registered, the Merchant will be confirmed according to its Merchant Account number and password. The Merchant should take good care of its terminal equipment, Merchant Account and password and take full responsibility for all activities (including but not limited to online click consent, submitting various business operations, purchasing services, etc.) using the Merchant Account and password. The Merchant shall immediately notify BFSB of any unauthorized use of the Merchant’s password and/or Merchant Account or any other security issue. The Merchant also agrees and acknowledges that BFSB shall not be directly or indirectly be responsible for any losses or damages suffered as a result of the above. The Merchant Account and password shall not be transferred, assigned, gifted or inherited in any way whatever unless such is required under the relevant law or prior written consent from BFSB is first obtained.
3.12 After the Merchant Account is cancelled according to the provision(s) of this Agreement, BFSB shall have the full exclusive rights to howsoever deal with content and information of the Merchant Account, including but not limited to deletion of the same, without being responsible or accountable to the said Merchant.
3.13 Merchant will permit holders of valid QR Wallet bearing the symbols of the QR Wallet authorized to be accepted by Merchant hereunder to charge purchases, uses or leases of goods and/or services, provided that such QR Wallet Transaction complies with the terms of this Agreement. Each such transaction will be evidenced by a valid transaction record in an approved form such as a sales slip. Merchant will not present any sales slip that does not arise out of a QR Wallet Transaction between a Customer and Merchant.
3.14 Merchant agrees to be bound by the operating regulations and rules of BFSB, including without limitation any rules and regulations related to QR Wallet and transaction information security and that as amended from time to time.
3.15 BFSB may, from time to time, issue written directions (via handphones, mail, email and/or Internet) regarding procedures to follow and forms to use to carry out this Agreement. These directions and the terms of the forms are binding as from the effective date specified in such directions and shall form part of this Agreement.
3.16 The Merchant shall only open the seal of the standee and activate the operation of bayarlah after having received the official notification from the CompanyBFSB via phone number 010-2278488. The CompanyBFSB will not be responsible for any transaction made before the Mmerchant receivereceives the official notification.
3.17 BFSB will use its best efforts to take all actions, steps, or procedure and do all things necessary, proper and advisable in order to make effective the transactions contemplated by this Agreement to the Merchant.
(a)In any event, the QR has been activated by the Merchant before a complete onboarding process and official notification from BFSB, and should there are any issue(s) of delayed payments as a result of such event, the Merchant shall, upon becoming aware of such issue promptly notify BFSB in writing together with the Merchant’s proof of transaction(s) either by their Agent or directly to BFSB’s Customer Service.
(b)Should any such notice require any additional information and disclosure from the Merchant to resolve such issue, BFSB shall by notice in writing to inform the Merchant and the Merchant shall promptly provide BFSB such information. Upon receipt of the Merchant's notification and/or satisfaction of any additional information required to resolve the issue, BFSB shall undertake to settle the amount owed to the Merchant within a maximum settlement timeline of two (2) working days upon the completion of the onboarding process. If the Merchant's information is inadequate or incomplete, BFSB shall settle the amount owed within two (2) working days upon completing the onboarding process subject to the Merchant’s complete information.
4.1 Merchant shall adequately display the Bayarlah and QR Wallet issuer service marks and promotional materials supplied. Merchant shall cease to use or display such service marks in any way (including, without limitation, in promotional materials and transaction related papers or forms of Merchant) immediately upon notice from BFSB or upon termination of this Agreement. Merchant shall not issue or dispatch any promotional materials which include any reference to Bayarlah or its related names, tradenames, logos, service marks and/or trademarks without BFSB’s prior written consents.
4.2 Merchant hereby irrevocably authorizes BFSB to include Merchant’s name in any directory or promotional materials produced by BFSB in connection with the acceptance of the QR Wallet Transactions.
PAYMENT AND FEES.
5.1 BFSB will charge the fees of one per centum (1%) (“Merchant Discount Rate”) to the Merchant for the payments transacting on debit or credit card. fees based on a fixed percentage according to the percentage as stipulated in the Merchant Application on each and every transacted sum. For the avoidance of doubt, the aforesaid fixed percentage of fees is inclusive of the fees/charges which the QR Wallet issuer concerned will charge the Merchant for that particular QR Wallet Transaction. In addition to the aforegoing, the Merchant also agrees to pay the fees, charges and expenses described on the Merchant Application, if any, to Bayarlah together with any other liabilities or expenses described in this Agreement.
5.2 Upon receipt of payment from the QR Wallet Issuer concerned for a particular QR Wallet Transaction, BFSB will pay Merchant, directly or indirectly through another financial institution designated by BFSB from time to time as the settlement bank (the “Settlement Bank”), for the said QR Wallet Transactions submitted under this Agreement by credit to the account(s) designated by Merchant (the “Merchant’s Account(s)”) or by delivery of a cheque or other negotiable instrument made payable to Merchant or by any other means determined by BFSB. For the avoidance of doubt, BFSB may be the Settlement Bank. Unless otherwise agreed in writing by BFSB, Merchant will be paid within a maximum settlement timeline of T+2 working days (the “Settlement Date”) for the amount as specified and paid by the QR Wallet Issuers to BFSB for that particular QR Wallet Transaction [ma1] less the amount of any discount, fees, commission and other charges (including chargebacks and adjustments) set forth in this Agreement and credit vouchers deposited (together with any taxes payable in respect thereof), if any, provided, however, that BFSB does not warrant payment within this timeframe if the Merchant’s Account(s) is maintained with a financial institution other than the Settlement Bank. If the amount payable to Merchant hereunder is insufficient to pay the outstanding charges or costs described in this Agreement, if any, on any day and/or any other amount due or payable by Merchant to BFSB under this Agreement, BFSB shall be entitled to:
(a)set off and deduct the outstanding amount in whole or in part from any payment due from it to Merchant; and/or
(b)debit the outstanding amount in whole or in part from Merchant’s Account(s) (or any other account of Merchant held with BFSB); and/or
(c)deduct the outstanding amount in whole or in part from subsequent credits to Merchant’s Account(s); and/or
(d)claim from Merchant the outstanding amount in whole or in part.
5.3 It shall be the Merchant’s responsibility to ensure that the details of the Merchant’s Account provided to BFSB remain accurate and correct throughout the term of this Agreement and should keep BFSB updated [ma2] if there are any changes. BFSB shall not be held liable should the settlement or any monies be remitted to a wrong account if the Merchant fails to comply with this clause.
5.4 Merchant agrees to pay, and Merchant’s Account(s) will be debited, for all fees, commission, fines, penalties etc as maybe charged by the QR Wallet Issuers on account of Merchant’s processing hereunder. If an error occurs, Merchant’s Account(s) may be debited or credited therefor upon being instructed by the QR Wallet Issuers.
5.5 If the Merchant discovers any discrepancy in the settlement by BFSB, the Merchant shall within fourteen (14) days from the Settlement Date notify BFSB of such discrepancy together with the relevant supporting documents evidencing the discrepancy, failing which the Merchant waives its rights to raise any dispute and is deemed to have accepted the settlement made by BFSB as correct. Where the Merchant notifies BFSB of a discrepancy within the timeline stated herein, the Parties shall resolve the discrepancies in good faith as soon as practicable.
5.6 Merchant represents and warrants that no one other than Merchant itself has any claim in respect of any QR Wallet Transaction submitted hereunder except as otherwise agreed in writing by BFSB. Merchant agrees that BFSB has the exclusive rights to receive payment from the QR Wallet issuer on any QR Wallet Transactions submitted hereunder.
5.7 In the event of transaction(s) does not appear in your transaction record, kindly check your transaction record for the said transaction(s) for the next 24 hours and if you find that the transaction(s) concerned is/are not appear, kindly contact our Customer Service [ma3] as soon as possible.
5.8 Merchant further represents and warrants that payment by BFSB shall be without prejudice to any claims or rights which BFSB may have against Merchant and shall not constitute any recognition by BFSB as to the level of performance by Merchant of its obligations under this Agreement.
5.9 If BFSB suspects, on reasonable grounds, that Merchant has committed or is about to commit a breach of this Agreement, any illegal activity (including, without limitation, money laundering) or dishonesty or fraud against BFSB, QR Wallet issuer or any Customer, BFSB shall be entitled to suspend all payments under this Agreement to Merchant pending enquiries by BFSB and/or the QR Wallet Issuers concerned.
5.10 Merchant hereby irrevocably authorizes BFSB to make withdrawals from any of its Merchant Account(s) in order to give effect to Merchant’s authorization contained herein to BFSB to debit its Merchant Account(s).
5.11 Merchant agrees to pay and the Merchant’s Account(s) will be charged /debited for any additional fees imposed as a result of Merchant’s subsequent acceptance of transactions with any QR type that it has not elected to accept on the Merchant Application (which shall be subject to BFSB’s agreement to process the same).
5.12 Both Parties shall bear their own cost of any obligation imposed upon them under the applicable law with respect to any taxes or similar items in connection with this Agreement.
EQUIPMENT AND SUPPLIES.
6.1 Any advertising material and all equipment and instrument (including imprinters, authorization terminals, data capture terminals or printers), software, QR authenticators, unused forms and Merchant deposit plastic cards provided by BFSB, whether with or without payment to be paid by Merchants, are only for the Merchant’s exclusive use and will not become Merchant’s property, and shall be returned to BFSB in good working condition upon termination of this Agreement or upon Merchant ceasing to do business, whichever is the earliest. Merchant will protect them from loss, theft, damage or any encumbrance and will allow BFSB and its designated representatives reasonable access to Merchant’s premises for their inspection, repair, servicing, replacement, removal, modification, installation and relocation.
6.2 Merchant acknowledges that some equipment provided to the Merchant under this Agreement is embedded with proprietary technology (“Software”). Merchant shall not obtain any title, copyrights or any other proprietary rights whatsoever to all or any Software. At all times, BFSB, its suppliers and/or owner to the Software retain all exclusive rights to such Software, including but not limited to updates, enhancements and additions. Merchant shall not disclose such Software to any party, convey, copy, license, sublicense, modify, translate, reverse engineer, decompile, disassemble, tamper with, or create any derivative work based on such Software. Merchant’s use of such Software shall be limited to only that expressly authorized by BFSB. BFSB’s suppliers and/or the Software’s owner is/are intended third party beneficiaries of this Agreement to the extent of any terms herein pertaining to such suppliers’ ownership rights; such suppliers and/or owner have the rights to rely on and directly enforce such terms against Merchant.
6.3 The operating instructions will instruct Merchant in the proper use of the terminals, and Merchant shall use and operate the terminals only in such manner as instructed by BFSB and at the location where they are initially installed (unless otherwise agreed in writing by BFSB). Merchant will promptly notify BFSB of any equipment malfunction, failure or other incident resulting in the loss of use of the equipment or need for repair or maintenance, whereupon BFSB will make the necessary arrangements to obtain required maintenance subject to payment of agreed costs (if any) by Merchant. Merchant shall cooperate with BFSB in its attempt to diagnose any problem with the terminal. In the event the Merchant’s terminal requires additional Software, Merchant is obligated to cooperate and participate in a dial in down line load procedure.
6.4 Merchant will be liable to pay BFSB in the event that any item of equipment or instrument provided by BFSB is lost, destroyed, stolen or rendered inoperative. Merchant will indemnify BFSB against any loss arising out of loss, damage to or destruction of any item of equipment provided hereunder for any cause whatsoever. Merchant also agrees to hold harmless and indemnify BFSB for any liabilities, losses, damages, disputes offsets, counterclaims, claims, demands, actions, costs, expenses and judgments BFSB may suffer or incur, including reasonable legal costs (on solicitor-client basis) as a result of Merchant’s use or misuse of the equipment provided hereunder.
6.5 All persons using any equipment or instrument provided by BFSB to Merchant shall be deemed to be agents of Merchant, and Merchant shall be fully responsible for their acts and omissions.
6.6 Any unused equipment in its original packaging purchased from BFSB hereunder, if any, may be returned to BFSB at Merchant’s expense within 60 days of receipt. Merchant shall receive a refund of any money paid in connection therewith subject to a re-stocking fees of an amount equal to 20 percent of the total purchase price for the returned equipment. No refunds shall be issued for any equipment returned after 60 days.
7.1 Merchant agrees to furnish BFSB such financial statements and information concerning Merchant, its owners, principals, shareholders, partners, proprietors, directors, officers or its affiliates as BFSB may from time to time request. BFSB or their duly authorized representatives may examine the books and records of Merchant, including records of all transactions previously submitted hereunder.
7.2 Merchant agrees to retain copies of all paper and electronic transaction records and credit slips submitted to BFSB for a period of 12 months from submission, or such longer period of time as may be required by law or by BFSB as specifically requested in writing in individual cases.
CHANGE IN BUSINESS.
8.1 Merchant agrees to provide BFSB 30-days prior written notice and to submit the form provided by BFSB of its intent to:
(a)transfer or sell all or any substantial part (10% or more) of its total stock or assets; or
(b)liquidate or file for bankruptcy or winding up; or
(c)cease business or change the basic nature of its business; or
(d)convert all or part of its business to mail order sales, telephone order sales, Internet-based sales or other sales where the QR Wallet (Smartphone) is not physically present and processed through Merchant’s terminal; or
(e)remove or relocate any shop or office; or
(f)make any material change in the management of Merchant; or
(g)make any change in Merchant’s legal status (such as from sole proprietorship to partnership or limited company or vice versa); or
(h)make any change in any other material or particulars relating to Merchant which have been supplied to BFSB in connection with this Agreement.
Upon the change of business submitted and processed by the relevant authorities, Merchant is required to submit to BFSB immediately a copy of the certificate and/or license that is issued by the relevant authorities effecting the change of business.[AR1]
Upon the occurrence of any such event, the terms of this Agreement may be modified to address issues arising therefrom.
9.1 This Agreement is not transferable by Merchant without the prior written consent of BFSB. Any attempt by Merchant to assign its rights or to delegate its obligations in violation of this Clause shall be void.
9.2 Merchant agrees that the exclusive rights and obligations of BFSB hereunder may be transferred by BFSB to any other person without notice to Merchant. Merchant acknowledges that the transferable rights of BFSB hereunder shall include, but shall not be limited to, the authority and rights to debit the Merchant’s Account(s) as described herein. BFSB may subcontract or appoint any agent to carry out any of their respective obligations under this Agreement.
WARRANTIES AND REPRESENTATIONS.
10.1 Merchant warrants and represents to BFSB:
(a)that each QR Wallet Transaction submitted hereunder shall represent a bona fide sale to a Customer by Merchant for the amount shown on the related transaction record as the total sale and constitutes the binding obligation between the Merchant and the Customer, free from any claim, demand, defense, setoff or other adverse claim whatsoever and BFSB shall not be responsible to verify the same or confirm the accuracy of the amount in any manner whatsoever;
(b)that each transaction record or other evidence of a transaction will accurately describe the goods and/or services which have been sold, delivered and/or rendered to the Customer or in accordance with the QR Wallet Issuer’s instructions;
(c)that Merchant will comply fully with all laws, rules and regulations applicable to it and its business;
(d)that Merchant will fulfil completely all of its obligations to the Customer and will resolve any Customer dispute or complaint directly and solely with the Customer;
(e)that none of the QR Wallet Transactions submitted hereunder represents sales by telephone, mail, Internet, or where the Smartphone is not physically present at the Merchant’s location and processed through Merchant’s terminal, unless Merchant is specifically authorized in writing by Customer to submit such transaction records hereunder;
(f)that all of the information contained in or provided pursuant to this Agreement is true and correct;
(g)that Merchant shall keep strictly confidential the provisions of this Agreement, and all information and materials received from BFSB in connection with the Merchant’s respective businesses and instrument provided by them or either of them, and will disclose the same only to such of its employees who require such information for the purposes of performing Merchant’s obligations under this Agreement; Merchant shall not and shall procure that its officers, employees and agents shall not without the prior written consent of BFSB use or disclose any such information to any other person (except to Merchant’s agents for the sole purpose of assisting Merchant to complete or enforce QR Wallet Transactions or to Merchant’s insurers and professional advisers) unless such disclosure is compelled by law. that Merchant shall not submit any QR Transaction which is for the supply of gambling or pornographic goods or services without the prior written consent of BFSB;
(h)that Merchant shall not receive any cash payment from a Customer with respect to charges for goods and/or services included in a QR Wallet Transaction; and
(i)that Merchant shall not engage in acceptance practices or procedures that discriminate against or discourage the use of a QR Wallet of a QR type in favour of any other competing QR Wallet brand and shall not promote any other means of payment more actively than promoting payment with a QR Wallet of such QR type (except for any privilege QR Wallet issued by Merchant solely for the purpose of making purchases at Merchant or under any temporary promotion programme).
10.2 In the event that any of the warranties or representations in Clause 10.1 is breached, the affected QR Wallet Transactions or transaction records may be refused, or prior acceptance revoked and charged back to Merchant.
10.3 Merchant must obtain BFSB’s prior written consent if Merchant wishes to use the terminal service of any third-party QR Wallet Issuer who is not covered by BFSB. If Merchant uses a third-party QR Wallet Issuer terminal provider with BFSB’s written consent, that provider becomes Merchant’s agent for the delivery of QR Wallet Transactions to BFSB via the applicable QR-Payment-processing network. Merchant agrees to assume full responsibility and liability for any failure of such agent to comply with the operating regulations and rules of the applicable QR Wallet Associations, including without limitation any violation, which results in a chargeback to Merchant. Merchant also agrees that Member’s obligation hereunder to pay Merchant for the value of the QR Transactions captured by such agent is limited to the value of the QR Transactions (less applicable fees) received by the QR-Payment-processing network from such agent.
10.4 Neither BFSB nor any of its respective suppliers and/or manufacturers make any representations or warranties, express or implied, including without limitation any warranty of merchantability or fitness for a particular purpose, with respect to any equipment (including without limitation, imprinters, authorization terminals, data capture terminals or printers) or any of the services furnished hereunder.
Merchant agrees to satisfy directly with the Customer any claim or complaint arising in connection with the sale transaction between Merchant and such Customer, regardless of whether such claim or complaint is brought by the Customer, BFSB or another party. Merchant agrees to indemnify and hold BFSB harmless from and against any and all liabilities, losses, claims, damages, demands, actions, disputes, offsets, counterclaims, costs, expenses and judgments arising out of or relating to any QR Wallet Transaction (including without limitation claims and complaints made by a Customer or any other person or entity with regard to any QR Wallet Transaction submitted by Merchant hereunder) or any other Service provided hereunder.
LIMITATION OF LIABILITY.
12.1 BFSB shall not be liable for failure to provide the Services nor for any loss arising out of or relating in any way to this Agreement, including but not limited to damages arising out of any malfunction of the equipment or the failure of the equipment to operate, the unavailability or malfunction of the equipment or Services, power failure, problem related to WIFI, problem related to the Merchant itself, personal injury, property damage, alleged acts of negligence, breach of contract, wilful default or otherwise and regardless of the form in which any legal or equitable action may be brought against BFSB, whether in contract, tort or otherwise.
12.2 Under no circumstances shall BFSB be liable for:
(a)any lost profits, lost interest, lost Ccustomers or for special, consequential, punitive or exemplary damages arising out of or relating in any way to this Agreement, including but not limited to, damages arising out of placement of Merchant’s name on any terminated Mmerchant list for any reason, even if BFSB has been advised of the possibility of such damages;
(b)any claim, loss, billing error, damage or expense arising out of or relating in any way to this Agreement which is not reported in writing to BFSB by Merchant within 14 days of such failure to perform and Merchant expressly waives any such claim that is not brought within the time periods stated herein.
TERM AND TERMINATION.
13.1 Subject to the provisions hereof, this Agreement shall remain in full force and effect for the term as specified on the Merchant Application (the “Initial Term”), unless Merchant gives written notice of termination as to this Agreement at least 60 days prior to the expiration of the Initial Term or any extension or renewals thereof. If no term is specified on the Merchant Application, subject to the provisions hereof, this Agreement shall continue in full force and effect until Merchant gives not less than 60 days’ prior written notice to BFSB to terminate it.
13.2 Notwithstanding anything to the contrary set forth herein, in the event that Merchant terminates this Agreement in breach of this Clause 13, all monthly fees assessed to Merchant under this Agreement and due to BFSB for the remainder of the then existing term of this Agreement, including all minimum monthly fee commitments, shall be immediately due and payable to BFSB, and Merchant hereby authorizes BFSB to accelerate the payment of all such monthly fees and to deduct the total amount from Merchant’s Account(s), or to otherwise withhold the total amount from amounts due to Merchant from BFSB, immediately on or after the effective date of termination. If the Merchant’s Account(s) does not contain sufficient funds for the debit or the amount cannot be withheld by BFSB from amounts due to Merchant, Merchant shall pay BFSB the amount due within ten (10) days of the date of BFSB’s invoice for same. The payment of accelerated monthly fees as described herein is not a penalty, but rather is hereby agreed by the parties to be a reasonable amount of liquidated damages to compensate BFSB for their termination expenses and all other damages under the circumstances in which such amounts would be payable. Such amounts shall not be in lieu of but shall be in addition to any payment obligations for Services already provided hereunder (or that BFSB may continue to provide), which shall be an additional cost, and any and all other damages to which BFSB may be entitled hereunder.
13.3 Notwithstanding the foregoing, BFSB may terminate this Agreement or any portion thereof at any time with immediate effect upon written notice to Merchant. Furthermore, BFSB may terminate this Agreement at any time with immediate effect without prior notice to Merchant:
(a)upon Merchant’s default in performing any provision of this Agreement;
(b)upon an unauthorized conversion of all or any part of Merchant’s activity to mail order sales, telephone order sales, Internet-based sales, or to any sales activity where the QR Wallet is not physically present and processed through Merchant’s terminal;
(c)if there has been any misrepresentation by Merchant;
(d)upon commencement of bankruptcy or winding up proceedings by or against Merchant; or
(e)in the event BFSB reasonably deems itself insecure in continuing this Agreement at its sole discretion.
13.4 In the event that BFSB breaches the terms and conditions hereof, Merchant may, at its option, give written notice to BFSB of its intention to terminate this Agreement unless such breach is remedied within 30 days of receipt of such notice. Failure to remedy such a breach shall make this Agreement terminable, at the option of Merchant, at the end of such 30-day period unless notification is withdrawn.
13.5 Upon termination under Clause 13 of this Agreement, the Merchant’s QR Wallet code will be terminated immediately.
13.6 Any Merchant’s deposit of a transaction record hereunder pursuant to transaction done after the effective date of termination will be returned to Merchant and will not be credited (or debited) to Merchant’s Account(s), unless the related QR Wallet Transaction was effected on or before the effective date of termination and the deposit was made within 7 days thereafter (in which case the payment for any such QR Wallet Transaction will only be made to Merchant after payment is successfully collected by BFSB from the related QR Wallet Issuer ). Except as provided above, if any such deposit has already been posted to Merchant’s Account(s), such posting may be reversed, and the deposit returned to Merchant. Termination of this Agreement shall not affect Merchant’s obligations which have accrued prior to termination or which relate to any QR Wallet Transactions submitted hereunder prior to termination, including but not limited to chargebacks even if such chargebacks come in after termination.
13.7 In the event of termination, all equipment provided by, leased or rented from BFSB, including but not limited to imprinters, terminals, data capture terminals and printers must be returned immediately to BFSB at Merchant’s expense in good working condition.
13.8 Any termination shall not affect any liabilities incurred prior to the termination nor any provision of this Agreement expressed or intended to survive, or to be effective from, termination. In particular, but without prejudice to the foregoing, Clauses 4, 6.1, 6.4, 7, 10.1, 10.2, 11, 12, 13.5, 13.6, 13.7, 15.2, 15.3, 16.1 and 16.2 shall remain in full force and effect notwithstanding termination.
(a)a Customer disputes any QR Wallet Transaction or payment for any QR Wallet Transaction (irrespective of the nature or manner of such disputes);
(b)a QR Wallet Transaction is charged back for any reason by the QR Wallet Issuer;
(c)there has been a breach by Merchant of any term of this Agreement;
(d)BFSB has any reason to believe a transaction previously submitted hereunder is unlawful, unenforceable, irregular, questionable, not genuine or is otherwise unacceptable; or
(e)any other event or circumstance, which BFSB shall have previously notified to Merchant in writing for the purpose of this Clause 14, has occurred in relation to a QR Wallet Transaction.
The amount of such QR Wallet Transaction may be charged back and deducted from any payment due to Merchant or may be charged against any of the Merchant’s Account(s) or a Reserve Account (as defined in Clause 15). If any such amount is uncollectible through withholding from any payments due hereunder or through charging the Merchant’s Account(s) or the Reserve Account, Merchant shall within fourteen (14) days upon demand by BFSB, pay BFSB the full amount of the chargeback failing which the Merchant shall be liable to pay late payment interest at the rate of 8% per annum calculated on daily basis on the sum to be paid by to BFSB from the due date for payment until the actual payment thereof.
14.2 Merchant understands that obtaining an authorization for any transaction shall not constitute a guarantee of payment and the related sales slips can be returned or charged back to Merchant like any other item hereunder.
15.1 At any time, BFSB may, upon notice to Merchant, establish one or more reserve accounts to secure the performance of Merchant’s obligations under this Agreement to either or both of them (each a “Reserve Account”). A Reserve Account may be funded through any or all of the following:
(a)direct payment by Merchant by depositing funds in the Reserve Account at the request of BFSB;
(b)the proceeds of QR Transactions presented hereunder; or
(c)the transfer by BFSB into the Reserve Account of funds withdrawn from the Merchant’s Account(s) or any other accounts, including certificates of deposit, maintained by Merchant or Merchant’s guarantor, if any, with any designated depositary or other financial institution.
15.2 Merchant and Merchant’s guarantor hereby irrevocably authorize BFSB, to make such withdrawals from any such other accounts maintained with any designated depository or other financial institution referred to in Clause 15.1(c) at such times and in such amounts as it may deem necessary hereunder. Merchant and Merchant’s guarantor hereby instruct the related financial institutions to honor any requests made by BFSB, under the terms of this provision. Merchant and Merchant’s guarantor will hold harmless the financial institutions and indemnify them for any claims or losses they may suffer as a result of honoring withdrawal requests from BFSB. Merchant and Merchant’s guarantor shall not be entitled to revoke the authorization granted hereunder unless and until this Agreement is terminated and there are no outstanding payments or liabilities from Merchant to BFSB.
15.3 Merchant hereby agrees that BFSB may deduct from a Reserve Account any amount owed to such party in accordance with this Agreement. Any funds in a Reserve Account may be held until the expiration of any potentially applicable chargeback rights in respect of QR Transactions submitted hereunder as provided for under the rules and regulations of the QR Wallet Associations, which holding period may extend beyond termination of this Agreement. Merchant will not receive any interest on funds being held in a Reserve Account. Without limiting the generality of the foregoing and without prejudice to Clause 13.5, Merchant shall, upon termination of this Agreement, maintain the sum of at least five percent (5%) of gross sales for the 90-day period prior to termination to be held in a Reserve Account in accordance with the terms of this Agreement. BFSB may, at their discretion upon termination of this Agreement, require that Merchant maintain
16.1 Upon failure by Merchant to meet any of its obligations under this Agreement (including funding a Reserve Account), any of the Merchant’s Account(s) or any other accounts belonging to Merchant or Merchant’s guarantor held by any designated depository (or by any other financial institution) may be debited without prior notice to Merchant or Merchant’s guarantor, and Merchant and Merchant’s guarantor irrevocably authorize BFSB to debit any such accounts for these purposes. Merchant’s and Merchant’s guarantor’s instructions to its financial institutions to accept withdrawal requests from BFSB, and Merchant’s agreement to hold such institutions harmless and to indemnify them, are set out in Clause 15.2.
16.2 Merchant also agrees that, in the event of a default by Merchant, BFSB has athe exclusive rights of setoff and may apply any of Merchant’s balances or any other monies due Merchant from BFSB towards the payment of amounts due from Merchant under the terms of this Agreement. The exclusive rights stated herein are in addition to any other rights BFSB may have under applicable law.
17.1 All disputed QR Wallet Transactions shall be the sole liability of the Merchant. BFSB shall not be under any obligation or responsibility to investigate such disputed transactions unless such is attributable directly to Bayarlah.
17.2 The Merchant agrees to investigate disputed QR Wallet Transactions and take all reasonable steps to resolve disputes with Customers within fourteen (14) days and follow the procedures for handling disputed transactions which BFSB advises from time to time. BFSB shall have the exclusive rights to suspend the processing of such disputed transactions or withhold the settlement to the Merchant of the amount of disputed transactions until the satisfactory completion of any investigation.
17.3 Where BFSB is notified of any invalid or disputed transactions, BFSB will notify the Merchant of the same by email, fax or letter and where possible accompanied by an explanation of the reason for it. BFSB will classify the said transaction as disputed and debit it back to Merchant.
17.4 A QR Wallet Transaction may be regarded as invalid by BFSB if:
(a)the QR Wallet Transaction was declined for any reason whatsoever but the same was processed by the Merchant;
(b)it is for any reason incomplete, unlawful or unenforceable;
(c)the QR Wallet Transaction is found to be a duplicate transaction; or
(d)it is not processed by the QR Wallet Issuer concerned.
17.5 The Merchant shall resolve any disputes, claims or complaints the Merchant may have received from the Customers in respect of any QR Wallet Transaction using any of the selected QR Wallet. BFSB shall not be held liable in any manner whatsoever in the event there is a dispute between the Merchant and the Customers in relation to the disputed QR Wallet Transaction including but not limited to the quality of the goods and/or services, overcharging or late delivery unless it can be reasonably shown by the Merchant that such dispute arose directly from the gross negligence, material default or breach, material errors and/or omissions by BFSB in the provision of Bayarlah service under this Agreement.
17.6 In the event that the disputed QR Wallet Transaction is attributable directly to Bayarlah, the Merchant can lodge a complaint with BFSB through anyone of the following methods:
(a) For amount in dispute exceeding Ringgit Malaysia One Hundred RM 100.00, to download complaint form from Bayarlah website, fill up the same and email to BFSB;For amount in dispute of Ringgit Malaysia One Hundred (RM 100.00) or less, to call BFSB’s hotline or email to BFSB specifying, inter alia, the Merchant’s Account, transaction code, nature of transaction and amount in dispute.
(b)BFSB shall use its best endeavour to identify the cause of the dispute and resolve the same within seventy twoseventy-two (72) hours of receipt of the said complaint Provided That if the dispute is not attributable directly to Bayarlah, BFSB shall not be responsible to resolve the same for the said Merchant.
(c)For the avoidance of doubt, any complaint to be lodged by any Merchant over a disputed QR Wallet Transaction must be so lodged with BFSB within fourteen (14) days from the Settlement Date failing which BFSB shall not be responsible to attend to such complaint at all.
CHOICE OF LAW/COLLECTION FEES/JURISDICTION.
18.1 Should it be necessary for BFSB to defend or enforce any of its rights under this Agreement in any collection or legal action, Merchant agrees to reimburse BFSB, as applicable, for all costs and expenses, including legal cost on solicitor-client basis.
18.2 BFSB and Merchant agree that this Agreement and all disputes arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of Malaysia and Merchant hereby submits to the exclusive jurisdiction of the Malaysian Courts.
BFSB may give Merchant a notice either describing amendments to this Agreement or enclosing an entirely new agreement, which amendments or new agreement will be binding upon Merchant if the QR Transaction is done after the effective date of such amendment or new agreement set forth in BFSB’s notice.
No provision of this Agreement shall be deemed waived by any party unless such waiver is in writing and signed by the party against whom enforcement is sought. No failure to exercise, and no delay in exercising on the part of any party hereto, any rights, power or privilege under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any rights, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other rights, power, or privilege.
EXCHANGE OF INFORMATION.
21.1 Merchant authorizes BFSB to obtain from time to time from any person, including without limitation any credit reference agency, financial information on Merchant or any owner, principal, director, officer, shareholder, partner, proprietor, managing agent or guarantor of Merchant. Merchant hereby authorizes (on its own behalf and on behalf of each person mentioned in the preceding sentence) BFSB and any depository institution to release any financial information concerning Merchant or its accounts to BFSB.
21.2 BFSB may exchange information about Merchant, Merchant’s owners, principals, partners, proprietors, directors, officers, shareholders, managing agents and guarantors with each other, the Settlement Bank, other financial institutions, and any other party as BFSB may deem necessary in connection with the Services and this Agreement. Merchant hereby authorizes (on its own behalf and on behalf of each person mentioned in the preceding sentence) BFSB to disclose information as mentioned above and information concerning Merchant’s activity to any party concerning the Services without any liability whatsoever to Merchant.
USE OF MERCHANT’S NAME & MEDIA.
Upon execution of this Agreement, BFSB shall have the exclusive rights to include the Merchant’s name and media in any directory or promotional material produced in connection with the acceptance of QR Wallet Transactions.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or part of a provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. Paragraph headings are included for convenience only and are not to be used in interpreting this Agreement.
24.1 Unless otherwise provided, all notices required by this Agreement shall be in writing and shall be sent by telefax, by email, by courier, or by regular or registered mail. Any notices sent:
(a)to BFSB shall be effective upon actual receipt by BFSB;
(b)to Merchant (including notices contained in Merchant statements) shall be effective upon the earlier or actual receipt or on the day following the date of posting such notice to the latest address provided by Merchant to BFSB or upon sending such notice to any e-mail address or facsimile number provided by the Merchant hereunder.
The parties hereto may change the name and address of the person or the facsimile number to whom/which notices or other documents required under this Agreement must be sent at any time by giving written notice to the other party.
This Agreement constitutes the entire agreement between Merchant, and BFSB with respect to the subject matter hereof and supersedes all prior memoranda or agreements relating thereto, whether oral or in writing.
This Agreement shall become effective only upon acceptance by BFSB, or upon the acceptance by BFSB of the submission of transactions by Merchant at such locations as designated by BFSB, whichever event shall first occur.
DESIGNATION OF DEPOSITORY.
The financial institution set forth in the Merchant Application is designated by Merchant as a depository institution (“Depository”) for payments due to Merchant hereunder. Merchant authorizes BFSB or the Settlement Bank, as the case may be, to make payment hereunder to Depository with instructions to credit the Merchant’s Account(s) with Depository. Depository, BFSB and/or the Settlement Bank may charge any of Merchant’s Account(s) at Depository for any amount due under this Agreement. BFSB must approve in writing any proposed changes to the Merchant’s Account(s) or to Depository.
All transactions submitted hereunder shall be denominated in Malaysia Ringgit or such other currencies as specified on the Merchant Application unless otherwise agreed in writing between BFSB and Merchant.
TIME OF ESSENCE.
Time wherever mentioned shall be the essence of this Agreement.
This Agreement is binding on the successors-in-title and assigns of the Vendor and the Purchaser respectively.