1. DEFINITIONS AND INTERPRETATION

1.1. The following terms when used in these NayaPay Standard Merchant Terms and Conditions or any document referred to herein shall have the following meaning:

• a) “Acceptance Notification” means the notification for a successful execution of Transaction shared by NayaPay with the Merchant in accordance with the Manual;
• b) “Agreed Terms” is defined in Clause 2;
• c) “AML KYC Regulations” means the Applicable Law in respect of “Anti-Money Laundering”, “Customer Due Diligence” , “Know-Your-Customer”, and “Combating the Financing of Terrorism” requirements as may be applicable over the matter in question and binding on a given person (including NayaPay and the Merchant), including but not limited to the Anti-Money Laundering Act, 2010 (along with the rules/regulations issued thereunder), the Anti-Terrorism Act, 1997 (along with the rules/regulations issued thereunder), and rules, regulations and guidelines issued by the SBP;
• d) “Applicable Law” means any law, legislation, statute, ordinance, code, order, decree, directive, judgment, decision, injunction, license, permit, approval of any Competent Authority, rule, regulation, and judicial interpretation thereof, and any interpretation of or determination in respect of any of the foregoing, by any Competent Authority having jurisdiction over the matter in question and binding on a given person (including NayaPay and the Merchant), including, but not limited to, the Payment Systems and Electronic Fund Transfers Act, 2007, EMI Regulations, Electronic Transactions Ordinance, 2002, and the Prevention of Electronic Crimes Act, 2016;
• e) “Banking Company(ies)” means a company licensed for the purpose of carrying out the business of banking in Pakistan under the Banking Companies Ordinance, 1962;
• f) “Business Day” means a day on which Banking Companies in Pakistan are open for general banking business;
• g) “Competent Authority” means any national, supranational, regional or local government or governmental, administrative, fiscal, judicial, or government-owned body, department, commission, authority, tribunal, agency or entity, or central bank (or any person, whether or not government owned and howsoever constituted or called, that exercises the functions of a central bank) or other recognized entity of any kind or other person exercising executive, legislative, judicial, regulatory or administrative functions;
• h) “Customer” means a consumer who opens and maintains an electronic money account with NayaPay and is registered on the NayaPay Platform;
• i) “EMI Regulations” means the Regulations for Electronic Money Institutions issued by the SBP pursuant to the Payment Systems and Electronic Funds Transfer Act, 2007, as amended from time to time;
• j) “Intellectual Property” means and includes any and all intellectual property of whatever nature and kind, including without limitation, patents, registered designs, logos, trademarks and service marks (whether registered or not), rights in the nature of unfair competition rights, copyrights, database rights, design rights, and all similar property rights (whether tangible or intangible);
• k) “Manual” means the technical manual issued by NayaPay and applicable to the provision of the NayaPay Services, as amended from time to time and accessible on the NayaPay Merchant Portal;
• l) “Merchant” means the Person who is in the business of providing goods and/or service to consumers and who has accepted the Agreed Terms for NayaPay Services;
• m) “MDR” shall mean the charges payable to NayaPay by the Merchant in respect of a successful Transaction;
• n) “Merchant Account” may refer to either the Merchant E-Money Account or the Merchant Bank Account, or both as the context may require;
• o) “Merchant Bank Account” means the bank account(s) opened and maintained by a Merchant with a Banking Company, and which is registered on the NayaPay Merchant Portal;
• p) “Merchant E-Money Account” means, where applicable, the electronic money account(s) opened and maintained by a Merchant with NayaPay in accordance with and subject to the Terms of Use, and registered on the NayaPay Merchant Portal;
• q) “Merchant Participation Agreement” means the agreement entered into between NayaPay and the Merchant for participation and registration with the NayaPay Platform;
• r) “Merchant Product/Service” means any good and/or service offered by a Merchant and which is ordered, purchased, leased, or otherwise provided to a Customer using the NayaPay Services;
• s) “Merchant T&C’s” means these NayaPay Standard Merchant Terms and Conditions;
• t) “Merchant Website/Application” means the official website and/or mobile application maintained and operated by or on behalf of the Merchant for the provisions of the Merchant Product/Service;
• u) “Merchant Payable Balance” has been defined in Clause 4.1;
• v) “NayaPay” means NayaPay (Private) Limited, whose registered office is at 10th Floor, Lakson Building 3, Sarwar Shaheed Road, Karachi – 74200, Pakistan;
• w) “NayaPay Merchant Portal” means the web-portal operated by NayaPay (as amended from time to time) for Merchants to access NayaPay Services, currently accessible at https://merchant.nayapay.com, excluding any external websites to which the website points by way of hyperlink or otherwise;
• x) “NayaPay Platform” means the electronic platform, whether accessed through a mobile application, web-portal, or other means, developed and operated by NayaPay to open electronic money accounts of Customers and provide electronic payment and other services, including but not limited to, deposit and redemption of electronic money, and Electronic Fund Transfers (inter-se Consumer-to-Business (C2B), Business-to-Consumer (B2C), Business-to-Business (B2B), Person-to-Person (P2P), Government-to-Person (G2P), Person-to-Government (P2G) etc.);
• y) “NayaPay Services” means the service of acquiring and facilitating electronic payments to the Merchant, as further described in Clause 4, including, but not limited to, the following: (i) provision of electronic payment gateway on the Merchant Website / Application; (ii) in-app payments on the NayaPay Platform; and (iii) point of sale transactions at the Merchant’s premises; and (iv) such other services as may be agreed between NayaPay and the Merchant;
• z) “NayaPay System” means the infrastructure established by NayaPay for providing electronic payment services and comprising of software, formulas, algorithms, APIs, hardware, servers, networks, grids or such other systems, assets, or facilities;
• aa) “Person” means an individual, a body corporate, an association, a partnership, a trust or any other entity or organisation;
• bb) “Policies” means the policies of NayaPay, as updated from time to time, in respect of AML/KYC, data protection, information security, and usage of Intellectual Property, which may be accessed at http://www.nayapay.com;
• cc) “Reserve” means an amount which is determined by NayaPay (in its sole discretion) in accordance with clause 6, for the purpose of securing any claims of NayaPay or NayaPay Customers against the Merchant;
• dd) “SBP” means the State Bank of Pakistan;
• ee) “Security” means any form of security requested by NayaPay (in its sole discretion) from the Merchant to secure the obligations of the Merchant under the Agreed Terms, and shall include a Reserve, bank guarantee or such other security as may be required by NayaPay;
• ff) “System Breach” means any compromise, disruption, failure, loss of control of the financial infrastructure and/or information systems of an entity due to, inter alia, any unauthorized access to, interception of, interference with, the software, hardware, servers, networks, grids or such other systems, assets, or facilities, of such entity;
• gg) “Terms of Use” means the terms and conditions available at www.nayapay.com, as amended from time to time in accordance with the terms thereof, and which, inter alia, govern the use of the Merchant E-Money Account (so far as applicable);
• hh) “Transaction” refers to a single instance of use of the NayaPay Services by a Customer for a Merchant Product/Service; and
• ii) “Transaction Data” means any data that is exchanged between the Merchant and NayaPay for execution of Transactions and records of the same.

1.2. Headings are for convenience only and shall not affect the construction or interpretation of these Merchant T&C’s.

1.3. Unless the contrary intention appears, words in the singular include the plural and vice versa; and words importing the masculine gender include the feminine and neuter and vice versa.

1.4. Any phrase introduced by the term "included", "including", "in particular" or any similar expression will be construed as illustrative only and will not limit the sense of the words preceding that term.

2. SCOPE

The provision of the NayaPay Services and the Merchant E-Money Account shall be governed by the Merchant T&C’s, as supplemented and modified by the Merchant Participation Agreement, the Manual, the Terms of Use (if applicable), and the Policies (“Agreed Terms”).

3. TERM

The Agreed Terms will continue in full force and effect unless and until terminated in accordance with the terms hereof.

4. REGISTRATION OF MERCHANT AND OPERATION OF SERVICES

4.1. In order to avail the NayaPay Services and/or open a Merchant E-Money Account, you must, in addition to executing the Merchant Participation Agreement, first register on the NayaPay Merchant Portal. As part of the registration process, we will ask you to create a NayaPay ID (for e.g. ab@nayapay). This ID will be used to identify you as a NayaPay Merchant. At all times NayaPay shall hold full rights of the NayaPay ID. As and when required by NayaPay and without giving prior notice, NayaPay shall have the authority to revoke the NayaPay ID and ask you to change it. NayaPay will provide an option to you to choose an alternate NayaPay ID as part of the change procedure. As part of the registration process, you will also need to accept the Agreed Terms and will be required to provide such documents and information as may be required to comply with NayaPay on-boarding processes and Applicable Law (in particular, AML KYC Regulations).

4.2. The NayaPay Services facilitate the use of the NayaPay Platform by a Customer to make payments to the Merchant. In respect of a Transaction for which an Acceptance Notification has been issued, funds collected from Customers and held by NayaPay after deduction of MDR (“Merchant Payable Balance”) shall be credited into the Merchant Account as per the frequency agreed in the Merchant Participation Agreement.

4.3. The Merchant is aware that credit into the Merchant Account does not amount to the receipt of cleared funds. The Merchant remains liable to NayaPay for the full amount of the payment and any MDR deducted therefrom if the payment is later reversed for any reason (the “Reversal Amount”). In the event of a chargeback/payment reversal, NayaPay will, in accordance with the Manual, recover the Reversal Amount and any applicable third-party chargeback or reversal fee from the Merchant Payable Balance and/or by debiting the Merchant E-Money Account (if applicable). If NayaPay is unable to fully set-off the Reversal Amount and the applicable third-party chargeback or reversal fee from the Merchant Payable Balance and/or the Merchant E-Money Account (if applicable), the Merchant is required to credit or load sufficient funds into the Merchant Account. Failure to do so is a breach of these Agreed Terms. NayaPay reserves the right, at any time, to send reminders or take debt collection measures permitted under Applicable Law. NayaPay reserves the right to charge the Merchant the expenses reasonably incurred in connection with any debt collection or enforcement efforts.

4.4. In relation to the Merchant E-Money Account (if applicable), NayaPay reserves the right to (at its sole discretion) not offer and/or provide any of the services and/or functionalities associated therewith or otherwise available on the NayaPay Platform in accordance with the Terms of Use.

4.5. NayaPay reserves the right to suspend or limit the NayaPay Services pending full payment of any outstanding claims, charges, penalties, costs or charges by the Merchant.

4.6. NayaPay reserves the right to suspend and/or close, at any time and at its sole discretion, the Merchant E-Money Account (or certain functionalities thereof such as loading, receiving, sending and/or withdrawing electronic money) and the NayaPay Services:

• 4.6.1. where NayaPay believes it is necessary or desirable to protect the security of the Merchant Account;
• 4.6.2. if any Transactions are made which NayaPay, in its sole discretion, deems to be (a) made in breach of these Agreed Terms (including security requirements of the Merchant Account); or (b) suspicious, unauthorised or fraudulent, including without limitation under the AML/KYC Regulations or otherwise in relation to fraud or other illegal activities;
• 4.6.3. in the event of a potential or actual System Breach of the Merchant;
• 4.6.4. if any potential or actual compromise of the Transaction Data occurs;
• 4.6.5. upon the insolvency, liquidation, winding up, bankruptcy, administration, receivership or dissolution of the Merchant, or where NayaPay reasonably considers that there is a threat of the same in relation to the Merchant;
• 4.6.6. where anything occurs which, in the opinion of NayaPay, suggests that the Merchant shall be unable to provide the Merchant Products/Services and/or otherwise fulfil the contracts that it has with its customers;
• 4.6.7. if the Transactions are for the sale of goods and/or services which fall outside of the agreed business activities of the Merchant, or where the Merchant presents a Transaction and fails to deliver the Merchant Products/Services and/or where the Merchant is third party processing and not delivering Merchant Products/Services itself;
• 4.6.8. where there is a change in the Merchant circumstances (including a deterioration in or change to the Merchant’s financial position), or a change in the Merchant’s business or in the Merchant Products/Services which NayaPay considers, in its sole discretion, material to the continuation of the NayaPay Services; or
• 4.6.9. if NayaPay considers, in its sole discretion, that the level of payment reversals/chargebacks or number of claims for non-delivery of Merchant Product/Service that are being incurred in respect of the Merchant are unreasonable; and NayaPay will make reasonable efforts to inform the Merchant of any such suspension in advance, or if this is not practicable, immediately afterwards and give its reasons for such suspension unless informing the Merchant would compromise security measures or is otherwise prohibited by Applicable Law; or
• 4.6.10. where required under Applicable Law or by an order of a Competent Authority.

4.7. Where NayaPay suspends the Merchant E-Money Account and/or the NayaPay Services, NayaPay shall reinstate the same and where necessary, provide new security details, such as a password, as soon as practicable after the reasons for the suspension cease to exist.

4.8. The Merchant acknowledges and agrees that the NayaPay operates solely as a payment intermediary and that NayaPay: (a) under no circumstances functions as a seller, buyer, dealer, middleman, retailer, auctioneer, supplier, distributor, manufacturer, broker, agent or merchant of Merchant Product/Service; and (b) makes no representations or warranties and does not ensure the quality, safety or legality of any Merchant Product/Service.

4.9. The Merchant acknowledges and agrees that any dispute regarding any Merchant Product/Service is between the Customer and the Merchant. Any Transaction connected with the Merchant Products/Services shall only obligate the Merchant. NayaPay shall not be a party to any resulting dispute including but not limited to disputes over performance and liability issues relating to the delivery, quality, quantity or use of the Merchant Products/Services.

5. OBLIGATIONS

At all times during the term of the Agreed Terms, the Merchant shall:

5.1 comply with the Agreed Terms;

5.2 if required by NayaPay or under Applicable Law, open and maintain a Merchant E-Money Account in accordance with the Agreed Terms;

5.3 provide complete and accurate information on the NayaPay Merchant Portal in compliance with Applicable Laws;

5.4 only utilize the NayaPay Services for genuine Transactions in relation to its main business and not use the NayaPay Services to receive funds in connection with any illegal, fraudulent, deceptive or manipulative act or practice;

5.5 permit Customers to make payments for Merchant Product/Services through the NayaPay Platform as per the NayaPay Services availed by the Merchant;

5.6 provide the Merchant Product/Services to the Customer only after receipt of the Acceptance Notification;

5.7 ensure all marketing and promotional activities on the Merchant Website, at any of its premises, and hosted on the NayaPay Platform (if applicable) are in compliance with Applicable Laws, the Manual and the Policies;

5.8 grant NayaPay the right to access the Merchant Website for the purpose of conducting manual checks or automated searches in order to investigate the accuracy of information contained on the Merchant Website and make necessary modifications as recommended by NayaPay, so far as in relation to the NayaPay Services, provided that (i) NayaPay shall be under no obligation to conduct such searches or checks; and (ii) any such searches shall under no circumstances be deemed an approval of any contents of the Merchant Website/Application;

5.9 comply with the security obligations provided under the Manual;

5.10 without prejudice to payments prohibited under the Terms of Use, the Merchant shall not receive payments as consideration for the delivery of pornographic content or services, illegal downloads, gambling, or for any other goods or services the offering or provision of which is illegal/regulated under Applicable Law;

5.11 for purposes of complying with AML KYC Regulations and other Applicable Laws, provide NayaPay with such information as NayaPay may request, including information about the Merchant’s business, corporate structure and constitution, shareholders, partners, members, directors, key employees or, in the case of a trust, its beneficiaries and provide, upon request by NayaPay, copies of financial information and other information on the business of the Merchant, including bank and/or trade references;

5.12 not charge Customers a processing fee, mark-up or other surcharge for Merchant Product/Services paid for through the NayaPay Platform and shall not use any other means to discourage Customers from using the NayaPay Platform;

5.13 provide Customers with a clear and fair return and refund policy and, upon request by NayaPay, provide a copy of its return and refund policy and shall notify NayaPay of any subsequent change to such policy;

5.14 comply with all Applicable Laws, including but not limited to AML KYC Regulations, and maintain all regulatory approvals required from and comply with all directions of any Competent Authority for the purposes of its obligations hereunder;

5.15 in accordance with the Manual and Applicable Law, implement and maintain a comprehensive written information security program with appropriate technical and organizational procedures, controls, and other measures to ensure a level of security appropriate to the risk of compromise of the Transaction Data or any other form of System Breach, and permit NayaPay to, directly or through a third-party contractor of its choosing, conduct inspections/assessments of the security measures established by the Merchant;

5.16 maintain and operate its information technology systems in order to ensure continued and uninterrupted connectivity with the NayaPay System, and agree to pay a down-time penalty in accordance with thresholds and rates which may be as specified in the Manual;

5.17 maintain all records in relation to the NayaPay System (including but not limited to all information relating to Customers and Transactions) for ten (10) years or such extended period as may be required under Applicable Laws;

5.18 notify NayaPay immediately in the event of: (a) any System Breach or other compromise of the Transaction Data; (b) any actual or potential regulatory action against the Merchant by any Competent Authority; (c) any actual or potential change of control of the Merchant; (d) any suspension of activities which would affect the NayaPay System; or (e) an occurrence (other than force majeure) leading to its inability to perform any of its obligations under the Agreed Terms;

5.19 provide all assistance and information required by NayaPay, or a third-party appointed by NayaPay, in respect of any audit, investigation, inspection, or inquiry conducted by any Competent Authority;

5.20 not directly or indirectly engage in or facilitate any action that is illegal or that, in the reasonable opinion of NayaPay and whether or not addressed elsewhere in the Agreed Terms, damages or may damage the goodwill or reputation of NayaPay and, upon the request of NayaPay, promptly cease engaging in or facilitating any such action; and

5.21 in respect of any dispute arising out of the NayaPay System or Transactions, follow the Manual and shall not take any action seeking to interfere with the processes of the NayaPay System.

6. RESERVE AND SECURITY

6.1 NayaPay may require a Merchant to provide Security for the purpose of securing the Merchant’s obligations under the Agreed Terms and for providing a source of funds to pay NayaPay for any and all, actual and reasonably anticipated claims, losses, cost, penalties and expenses.

6.2 If NayaPay elects that the relevant Security shall include the establishment of a Reserve of a sum determined by NayaPay (in its sole discretion), then NayaPay shall be entitled to: (i) not credit the equivalent portion of the Merchant Payable Balance in the Merchant Account; and/or (ii) prevent the Merchant from withdrawing the equivalent sum from the Merchant E-Money Account (if applicable). Alternatively, at NayaPay' sole discretion, NayaPay may elect for the Security to be a bank guarantee in which case the Merchant shall, upon request, procure a bank guarantee in favour of NayaPay by a reputable bank and in a form acceptable to NayaPay and in an amount determined by NayaPay. The Security shall remain in place regardless of any termination of the Agreed Terms for as long as there are residual or contingent liabilities of the Merchant to NayaPay. The amount of the Reserve (either expressed as an absolute amount or as a percentage of past payments into the Merchant Account) shall be determined by NayaPay from time to time in its sole discretion. Where a Reserve has not been established at the commencement date of the Agreed Terms, NayaPay shall notify the Merchant of the imposition of a Reserve, its method of calculation, its amount as well as any increase or reduction of the Reserve without undue delay in writing at any time during the term of the Agreed Terms.

6.3 Without restricting NayaPay’ discretion under clauses 6.1 and 6.2, NayaPay may take into account, amongst others, the following factors when determining the amount to be secured in a Reserve:

• 6.3.1 the risk of the Merchant ceasing or transferring its business or a substantial part thereof;
• 6.3.2 the risk of the Merchant materially altering the nature of its business;
• 6.3.3 if the Merchant’s business activities carry a higher than normal risk of payment reversals/chargebacks or other reversals of customer payments;
• 6.3.4 the Merchant’s overall financial standing;
• 6.3.5 the risk of the Merchant becoming insolvent or otherwise unable to pay debts as they fall due;
• 6.3.6 where NayaPay receives a disproportionate number of customer complaints, chargebacks or other payment reversals, fines, penalties or other liability related to the Merchant Account; or
• 6.3.7 where NayaPay reasonably believes that the Merchant will not be able to perform its obligations under these Agreed Terms.

6.4 The Merchant agrees to provide NayaPay, upon reasonable request and at the Merchant’s expense, with information about its financial and operational status, including but not limited to the most recent financial statements and management accounts. The Merchant shall also undertake, at its own expense, any further action (including executing any necessary documents and registering any form of document) necessary to establish such Security as is reasonably required by NayaPay.

6.5 NayaPay shall have the right, at any time, without notice to offset any claims, costs, charges, penalties and expenses from any Security, Reserve, Merchant Payable Balance, or the Merchant E-Money Account (if applicable). In addition, the Merchant shall pay such amounts as NayaPay notifies it into the Reserve to replenish any deducted amount. If required by NayaPay, the Merchant shall pay such amounts into its Merchant E-Money Account (if applicable) as reasonably determined by NayaPay to fund a Reserve or to react to any increased risk of payment reversals that are not covered by the Merchant E-Money Account’s then balance or the Merchant Payable Balance.

7. WARRANTIES

Each party warrants and represents to the other party that:

7.1 unless the party is a natural person, it is validly incorporated and/or existing and in good standing under the laws of Pakistan;

7.2 it has the power, licenses, and authority to own its property and assets and to transact the business in which it is engaged;

7.3 it is not in bankruptcy or liquidation nor to its knowledge is threatened with the same; and

7.4 it has complete power and authority to enter into and deliver the Agreed Terms.

8. ADDITIONAL MERCHANT WARRANTIES

8.1. it has the requisite resource and skills to deliver its obligations under these Agreed Terms;

8.2. the manufacture, sale, and distribution of the Merchant Products/Services comply with Applicable Law and the Merchant has all requisite licenses, approvals, and permits for the same;

8.3. the Merchant has full right, title, and interest in the Intellectual Property which it will license to NayaPay hereunder for the purpose of NayaPay Services and there is no pending third-party infringement claim in respect of the same.

9. MERCHANT DISCOUNT RATE

9.1 The MDR payable by the Merchant for the NayaPay Services will be as set out in Account Opening Form.

9.2 The MDR is quoted exclusive of value added tax. In case value added tax or any other sales tax is or become chargeable, NayaPay will add such tax to the amount payable but shall, where required, provide information on the net amount, the amount of tax and the tax rate applied.

9.3 The MDR is subject to change pursuant to clause 10.

9.4 Where NayaPay is unable to otherwise recover the MDR, NayaPay shall issue an invoice for the amount owed. Invoices are payable within fifteen (15) days of the date of the invoice. In case of overdue payments, NayaPay reserves the right to (i) charge late payment charges in the amount of KIBOR plus 2% for overdue days; and/or (ii) terminate the Agreed Terms with immediate effect by giving written notice to the Merchant in accordance with Clause 17.

10. CHANGE OF TERMS AND CONDITIONS

These Agreed Terms are subject to change from time to time. Unless otherwise agreed, changes may be made by notice from NayaPay to the Merchant under the following procedure:

10.1. NayaPay shall give the Merchant notice of any proposed change to the Agreed Terms (a “Change Notice”).

10.2. A Change Notice may be given to the Merchant in accordance with clause 17.

10.3. The proposed change shall come into effect automatically two (2) weeks after the date of receipt of the Change Notice unless the Merchant gives written notice to NayaPay that it objects to the proposed changes within such time frame as may be stipulated in the Change Notice(“Objection Notice”).

10.4. NayaPay may stipulate in a Change Notice a different time period for the coming into effect of any change.

10.5. If no Objection Notice is received by NayaPay within the stipulated time frame, the Merchant is deemed to have accepted the change.

10.6. The Merchant has the right to terminate the Agreed Terms with immediate effect at any time and without charge after receiving a Change Notice and before any change stipulated in the Change Notice becomes effective.

10.7. If the parties are unable to resolve and address, through mutual agreement, the Merchant’s objections as communicated vide the Objection Notice, and without prejudice to clause 10.6, a Merchant’s Objection Notice shall be deemed to constitute a notice to terminate these Agreed Terms with the termination effective immediately before the date on which the proposed change would otherwise come into effect under clause 10.3.

11. TAXES

It is the Merchant’s responsibility to determine which, if any, taxes apply to the payments received, and to report and remit the correct tax to the relevant Competent Authority, subject to Applicable Law. NayaPay is not obligated to determine whether taxes apply, and is not responsible to collect, report, or remit any taxes arising from any Transaction.

12. INTELLECTUAL PROPERTY

12.1. For the duration and strictly for the purpose of the Agreed Terms and the NayaPay Services, the Merchant grants to NayaPay a non-exclusive, worldwide, royalty-free, non-transferable licence to copy, use and display its logo, trademark, trade name, and other Intellectual Property owned by it.

12.2. Nothing in the Agreed Terms shall grant or be deemed to grant to the Merchant any right, title or interest in any logos, trademarks, trade names or other Intellectual Property of NayaPay other than as permitted for the purpose of marketing in compliance with the Manual and the Policies.

12.3. The Merchant may not use the license granted to it in terms of Clause 12.2 above for any purpose other than as provided in the Agreed Terms and subject to the Policies pertaining to use of NayaPay’s Intellectual Property.

12.4. Upon termination of the Agreed Terms, all licenses granted by any party to the other shall immediately terminate without notice required, and each party shall return the other party’s Intellectual Property and all copies or derivative works made thereof, to the extent specifically permitted hereunder. Each party shall have no further rights or licenses to use the party’s Intellectual Property or any such copies or derivative works, except as specifically agreed between the parties in writing.

13. LIMITATION OF LIABILITY & INDEMNITY

13.1. Neither party shall be liable in contract, tort (including negligence or breach of statutory duty) or otherwise for any indirect or consequential loss or damage of any kind including punitive or exemplary damages or for any loss of profit or loss of contract, loss of goodwill or reputation, loss of opportunity, loss of revenue or third party loss whether foreseeable or otherwise.

13.2. Subject to clauses 13.3, 13.4 and 13.5 and any other clause explicitly excluding the effect of this clause, the aggregate liability of NayaPay in contract, tort, negligence or otherwise arising out of or in connection with the Agreed Terms (including any indemnities provided thereunder) in any period of 12 months from the commencement date or any anniversary thereof (each a “Contract Year”) shall be limited to the lower of (i) PKR 10,000 or (ii) the total amount of fees received by NayaPay from the Merchant in the previous Contract Year (or, in the first Contract Year, the fees received to date).

13.3. NayaPay shall not be liable for any of the following:

• 13.3.1. acts or omissions of or any fees charged by third parties, such as Banking Companies, who participate in the NayaPay System and/or otherwise provide facilities or services, as agents or service providers, in relation to the NayaPay Platform and NayaPay Services;
• 13.3.2. any actions taken by NayaPay for the performance of the NayaPay Services in reliance of any information received from third parties, such as Banking Companies (regardless of whether such transmission was a result of a System Breach);
• 13.3.3. any dispute arising from the suspension or refusal to process Transactions which NayaPay reasonably believes to be made fraudulently or without proper authorisation; or
• 13.3.4. unavailability of the NayaPay Services due to hardware, software or internet connection not functioning properly or System Breach.
• 13.3.5. unforeseen circumstances preventing the proper performance, despite any reasonable precautions taken by NayaPay. 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 NayaPay Platform; and
• 13.3.6. issues relating to the delivery, quality, quantity or use of the Merchant Products/Services.

13.4 Without prejudice to any other remedy available to NayaPay under these Agreed Terms or under Applicable Laws, the Merchant shall keep indemnified, defend, and hold harmless NayaPay from any actual or threatened claim, demand, obligation, loss, cost, liability and/or expense (including, without limitation, actual attorneys’ fees, costs of investigation, and disbursements) (“Losses”) resulting from and/or arising in connection with:

• 13.4.1. any breach by the Merchant of: (i) any covenant, undertaking, representation, warranty, or other provision of these Agreed Terms; or (ii) its obligations under Applicable Laws;
• 13.4.2. actual or potential System Breach of the Merchant;
• 13.4.3. any third-party claims against NayaPay in respect of suspension, failure, or other form of cessation of the Merchants operations;
• 13.4.4. any claims of infringement in respect of the Intellectual Property of the Merchant; and
• 13.4.5. the Merchant Products/Services.

14. CONFIDENTIALITY & DATA PROTECTION

14.1 For the purposes of this clause 14, the following terms will have the definitions set forth below:

• (1) “Proprietary Information” means Confidential Business Information and NayaPay Data.
• (2) “Confidential Business Information” means: (i) any valuable, secret business information that is designated or identified as confidential at the time of the disclosure or is by its nature clearly recognizable as confidential information to a reasonably prudent person with knowledge of the Disclosing Party’s business and industry; and (ii) for the purposes hereof, shall include the Agreed Terms.
• (3) “Disclosing Party” means the Party disclosing any Proprietary Information hereunder, whether such disclosure is directly from or through the Disclosing Party’s personnel or through any other automated means.
• (4) “Receiving Party” means the Party receiving any Proprietary Information hereunder, whether such disclosure is received directly from or through the Receiving Party’s personnel or through other automated means.
• (5) “NayaPay Data” means all data and information relating to Customers, Merchants, and Transactions which includes Transaction Data.

14.2 Notwithstanding the definition of Proprietary Information in clause 14.1 above, Proprietary Information does not include any information that:

• (a) was in the Receiving Party’s possession before disclosed to it by the Disclosing Party without a duty of confidentiality on the Receiving Party;
• (b) is or becomes a matter of public knowledge through no fault of the Receiving Party;
• (c) is rightfully received by the Receiving Party from a third party without a duty of confidentiality;
• (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Proprietary Information; or
• (e) is disclosed by the Receiving Party with the Disclosing Party’s prior written approval.

14.3 In the performance of the Agreed Terms, each Party may disclose to the other Party certain Proprietary Information.

14.4 The Receiving Party acknowledges and agrees that except to the extent otherwise expressly provided herein, the Proprietary Information of the Disclosing Party will remain the sole and exclusive property of the Disclosing Party or a third party providing such information to the Disclosing Party, and the disclosure of such information to the Receiving Party does not confer upon it any license, interest, or right of any kind in or to the Proprietary Information, except as provided under the Agreed Terms.

14.5 At all times and notwithstanding any termination of the Agreed Terms, the Receiving Party agrees that it will:

• (a) hold in strict confidence and not disclose to any third party the Proprietary Information of the Disclosing Party, except as approved in writing by the Disclosing Party;
• (b) only permit access to the Proprietary Information of the Disclosing Party to those of its personnel who have a need to know and have signed confidentiality agreements or are otherwise bound by confidentiality obligations substantially similar to those contained in the Agreed Terms;
• (c) be responsible to the Disclosing Party for any third party’s use and disclosure of the Proprietary Information provided to such third party by the Receiving Party
• (d) only use the Proprietary Information that is receives to carry out the purposes of this Agreed Terms and for no other purpose whatsoever; and
• (e) use at least the same degree of care it would use to protect its own Proprietary Information of like importance, but in no event less than a reasonable degree of care, including maintaining information security standards for such Proprietary Information as are commercially reasonable and customary for the type of information.

14.6 Notwithstanding clause 14.5, a Party may disclose the Proprietary Information in the following events:

• (a) if required by Applicable Laws;
• (b) if required by an order of a Competent Authority; or
• (c) if required to its professional advisors (including attorneys, lawyers, and accountants) and/or consultants and/or agents, subject to appropriate confidentiality obligations.

14.7 If the Receiving Party is required to disclose Proprietary Information pursuant to clause 14.6 (a) or (b), it shall, to the extent legally permissible, provide written notice of such required disclosure to the Disclosing Party prior to making such disclosure.

14.8 Each Party to the Agreed Terms will immediately notify the other Parties in writing about discovery of any loss or unauthorized disclosure of the Proprietary Information of the other Party.

14.9 The Receiving Party will not reproduce the Disclosing Party’s Proprietary Information in any form, except as reasonably necessary to fulfil such Party’s duties and obligations and otherwise comply with the agreements of such Party under the Agreed Terms. Any reproduction of any Proprietary Information by the Receiving Party will remain the property of the Disclosing Party and will contain any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the Disclosing Party.

14.10 Except as otherwise set forth in the Agreed Terms, upon the termination of the Agreed Terms, each Receiving Party will either upon written instruction from the other Party, promptly return to the Disclosing Party all documents and other tangible (including electronic) materials containing the Disclosing Party’s Proprietary Information, including all copies thereof in its possession or control, or erase or destroy all such materials.

14.11 The Merchant shall comply with all data protection and security obligations in respect of the NayaPay Data as specified in the Manual and the Policies.

15. TERMINATION

15.1. Without prejudice to termination rights under the Terms of Use in respect of the Merchant E-Money Account (if applicable), NayaPay may terminate these Agreed Terms immediately by written notice:

• 15.1.1. if the Merchant 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 Merchant or its business, or the Merchant goes into liquidation either voluntarily (otherwise than for reconstruction or amalgamation) or compulsorily;
• 15.1.2. upon the occurrence of a material breach of these Agreed Terms by the Merchant;
• 15.1.3. if the Merchant violates or fails to comply with Applicable Law or any order by a Competent Authority;
• 15.1.4. if the Merchant: (i) directly or indirectly engages in or facilitates any action or activity that is illegal, or that, in the reasonable opinion of NayaPay, and whether or not addressed elsewhere in these Agreed Terms, has damaged or threatens to damage the goodwill or reputation of NayaPay; or (ii) makes or continues an association with a person or entity which association, in the good faith opinion of NayaPay, has damaged or threatens to damage the goodwill or reputation of NayaPay; or

15.2. NayaPay may terminate these Agreed Terms at any time without reason by giving fifteen (15) days’ notice.

16. RELATIONSHIP OF THE PARTIES

Nothing contained in the Agreed Terms will be construed to create a partnership, joint venture or agency relationship between the Merchant NayaPay. Neither party has authority to enter into agreements of any kind on behalf of the other.

17. NOTICES

Any notice or communication to be given under the Agreed Terms must be given in writing and delivered either: (i) by hand, first class prepaid post or other recognised courier service to the current or last known address of the Merchant as registered with the NayaPay Merchant Portal;(ii) by email to any of the emails registered on the NayaPay Merchant Portal; or (iii) by notification on the NayaPay Merchant Portal. Any communication sent by hand shall be deemed received on delivery, and if sent by first class post or other courier service, shall be deemed received within two (2) Business Days of the communication being posted or couriered. Any communication sent by in-app notification will be deemed received by the Merchant on the same day if it is delivered to the Merchant’s in-app notification area on the NayaPay Merchant Portal. Any communication sent by email is deemed to be received as recorded on our servers or the servers of any service provider we engage for such communication services.

18. WAIVER

Any waiver of a right under these Agreed Terms shall only be effective if agreed or declared in writing. A delay in exercising a right or the non-exercise of a right shall not be deemed a waiver and shall not prevent a party from exercising that right in the future.

19. SEVERABILITY

If any part of these Agreed Terms is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable then such part shall be severed from the remainder of the Agreement, which shall continue to be valid and enforceable to the fullest extent permitted by law.

20. ENTIRE AGREEMENT

The Agreed Terms represents the entire agreement of the parties in relation to its subject matter. Each party acknowledges that it has entered into the Agreed Terms in reliance only on the representations, warranties, promises and terms contained in the Agreed Terms and, save as expressly set out in the Agreed Terms, neither party shall have any liability in respect of any other representation, warranty or promise made prior to the date of the Agreed Terms unless it was made fraudulently.

21. GOVERNING LAW & JURISDICTION

21.1 These Agreed Terms and any legal relationship between the parties arising out of or in connection with it shall be governed by and construed in accordance with the laws of Islamic Republic of Pakistan.

21.2 Each party hereby irrevocably submits to the exclusive jurisdiction of the Courts in Karachi.