Merchant’s Terms and Conditions

This Merchant Agreement is entered into on this ……….day of ………. Two Thousand Sixteen

BY AND BETWEEN

……………………………….., a Sole Proprietorship/Partnership/Limited Liability Company, Registered/Incorporated under the laws of Sri Lanka, bearing Registration/Incorporation Number …………………………………., with its registered  address situated at ……………………………………………… (Hereinafter called and referred to as the ‘Merchant’ which term shall where the context so requires, admits and mean the said …………………………………….., his/her/its heirs, executors, liquidators and assigns) of the ONE PART

AND

TARGETONLINE.LK (PVT) LTD, a Limited Liability Company incorporated under the Company’s Act No 7 of 2007, bearing Re- Registration Number PV…………. And having its registered office at ……………………………………… (Hereinafter referred to as the ‘Company’ which term shall where the context so requires, admits and mean the said targetonline.lk (Pvt) Ltd its liquidators and assigns) of the OTHER PART

WHEREAS the Company is engaged inter alia in creating and maintaining an internet portal (Hereinafter referred to as the ‘site’) through which Vendors could display their products/services and special deals and interact with internet users wishing to purchase goods and/or services of the Vendors by making payment through any of the payment gateways managed by the Company – either by themselves or through third parties.

AND WHEREAS the Merchant is a Vendor desirous of maintaining a presence on the above mentioned site and has read, agreed with, and accepted all of the terms and conditions contained in this Merchant Agreement. 

AND WHEREAS, the Merchant has been provided with an Introductory Proposal outlining the structure and procedure of targetonline.lk and has agreed with its contents and wishes to enter into a legal agreement with the Company.

NOW THEREFORE in consideration of the mutual covenants herein contained and intending to be legally bound hereby, the Company and Merchant agree as follows


1. Description of Services

This Merchant Agreement governs the use of the Site by the Merchant to provide goods and/or services through the facilitation of a separate login name and password to the Merchant provided by the Company in order for the Merchant to maintain/update the Merchant’s offerings on the site with assistance from the Company and its team – as necessary.

1.1 Payment Process

Consumers will choose and add products/services they wish to purchase from the site to their online shopping cart. At the time of opting to Purchase, the consumer will then choose a delivery option (Consumer pick up, targetonline.lk courier service) and be invoiced accordingly. The Consumer will then be directed to make payment through the many payment procedures provided by the Company. The finalized invoice of the Consumer will then be sent in tri-part to the Consumer, Company and the Merchant.

The Merchant shall on receiving said invoice proceed to dispatch the Merchant’s relevant goods to the Company or directly to the Consumer (As agreed to between the Company and the Merchant).

The Company shall raise a Purchase Order in the meantime to simultaneously reach the Merchant, indicating the relevant products and price for targetonline.lk, agreed between the Company and the Merchant.

The Merchant shall then raise an invoice to the Company with the price for targetonline.lk as hereinbefore stated, which invoice amount/s the Company shall pay to the Merchant bi-monthly.

1.2 Agreement with Consumer.  For each and every Transaction, Company shall provide Consumer with, and shall ensure Consumer’s execution and acceptance of, the accompanying Consumer Terms and Conditions. 

1.3 Merchant Recordkeeping.  Merchant shall retain and preserve each Consumer Invoice, Company Purchase Order and Merchant’s Invoice for at least 3 years as proof of shipment or receipt by the Company and/or consumer of any goods or services.

1.4 Anti-Fraud.  The Parties understand and agree that fraud detection and fraud prevention measures are the sole responsibility of the Company.


2. FEES

2.1 Fee Structure.  Merchant agrees to the price for targetonline.lk structure set forth in the Schedule attached hereto at which to invoice the Company on a bi monthly basis. The Company hereby agrees to pay said bi – monthly invoice to the Merchant within 15 days from the date of receipt of the invoice.


3. Operations and Procedures

3.1 Compliance with Visa and MasterCard Rules. Merchant agrees to be bound by the operating regulations and rules of Visa and Master Card Rules and any other card association or network organization utilized by the Company in accordance with this Merchant Agreement, as any of the above referenced documents may be modified and amended from time to time and shall not hold the Company responsible for any changes to same.

3.2 Reserves and other Protective Actions.  If the Company determines, in its sole discretion, that Merchant receives, a disproportionately high number of customer complaints, reversals, chargebacks, disputes, claims, fees, fines, penalties or other liability (collectively “Risk Factors”), the Company may take certain actions in connection with Merchant’s Account and/or Merchant’s use of the Company Services in order to secure the performance of Merchant’s obligations under this Merchant Agreement.

3.3 Delivery. The Company has its own and if not partnered delivery service providers who will undertake the delivery to the Consumer, of products and service tokens purchased by the Consumer from the site. The Merchant undertakes to deliver to the Company at its designated receiving point, the relevant products and/or service tokens purchased by the Consumer, as notified by the Invoice generated in tri-part, within the agreed upon time frame.

In the event the products and/or service tokens Purchased are large and require installation and/or the expertise of the Merchant, the Merchant undertakes to deliver the product and/or service token to the Consumer directly and shall inform the Company of any delivery charge applicable, which shall be included in the invoice generated by the Company to the Consumer on the site.


4. Intellectual Property

4.1 Grant of Non-Exclusive License for Company Platform.  During the Term of this Merchant Agreement, Merchant is hereby granted a non-exclusive, non-transferrable, limited right to use the Company Platform, so long as you are current in paying all applicable Fees in accordance with this Merchant Agreement subject to the restrictions contained herein and restrictions communicated to you in the future by the Company. 

4.2 Ownership.  Merchant shall not obtain title, copyrights or any other proprietary right to the Company Platform/Site. At all times, Company retains all rights to the Company Platform/Site, including but not limited to updates, enhancements and additions. Merchant shall not disclose the Company Platform/Site/Modes of Operation to any party, convey, copy, license, sublicense, modify, translate, reverse engineer, decompile, disassemble, tamper with, create any derivative work based or otherwise attempt to discover the source code or trade secrets of the Company Platform/Site or related technology.

4.3 Use of Platform.  Merchant’s use of the Company Platform/Site shall be limited to that expressly authorized by Company. Merchant shall use and operate the Company Platform only for the Company Services.

4.4 Use of Trademarks.  Except as authorized in this Merchant Agreement, Merchant shall not take any actions inconsistent with Company’s ownership of Company Platform, Company Trademarks and any associated registrations or attack the validity thereof. Merchant shall not use the Company Platform or Company Trademarks in any manner that would indicate that Merchant is using such Company Platform or Company Trademarks other than as a licensee nor assist any third party do the same.

4.5 Compliance with Laws. Merchant agrees that Merchant will comply, at Merchants’ own expense, with all applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction over such matters. Merchant shall not use the Company Platform in any manner, or in furtherance of any activity that may cause the Company to be subject to investigation, prosecution or legal action.  The Company reserves the right to amend, modify or change its policies, procedures and guidelines, and Merchant shall comply with all of the Company’s current policies, procedures and guidelines governing the Company Platform.

4.6 Company Platform Service and Maintenance.  Merchant will promptly notify Company of any failure or other incident resulting in the loss of use of the Company Platform or need for repair or maintenance, whereupon Company will use commercially reasonable efforts to repair or make the necessary arrangements to obtain required maintenance.  Merchant shall cooperate with Company in its attempt to diagnose any problem with the Company Platform. In the event Merchant’s Company Platform/Portal requires additional Software, Merchant is obligated to cooperate with Company to achieve service restoration.  Merchant acknowledges that Company does not warrant that any such repair or maintenance efforts will be successful.  If Company’s efforts are not successful, Merchant may terminate this Agreement in accordance with Section 8.

4.7. Use of Merchant Promotional Materials. Merchant shall make available to Company certain Merchant logos, button links, text links, and/or other graphic for display and use on the Company website (the “Promotional Materials”)If necessary. Merchant agrees that Company may prominently display the Promotional Material on Company’s website in a reasonable manner. During the Terms of this Merchant Agreement, Merchant grants Company a non-exclusive, worldwide, royalty-free license to use any of the Merchant’s intellectual property necessary to display the Promotional Materials on Company’s website for marketing and promotional purposes.


5. Confidentiality

Merchant agrees that by accepting and using the Company Services, Merchant will receive from Company certain property and highly sensitive information, including but not limited to the Company Platform/Site/Portal.

5.1 Definition. “Confidential Information” shall mean any and all technical and non-technical information disclosed, provided or made available by Company to Merchant, either directly or indirectly, in writing, electronically, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, materials and equipment), for the purpose of evaluating a Transaction, at any time, including prior to the date hereof, which includes, but is not limited, to proprietary information, marketing techniques and know-how, data compilations, analyses, projections, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of Company.

5.2 Exclusions from Confidentiality Information.  Confidential Information shall not include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Company; (ii) becomes publicly known and made generally available after disclosure by Company through no action or inaction of Merchant; (iii) is already in the possession of Merchant at the time of disclosure by Company as proven by written records; or (iv) is obtained by Merchant from a third party without a breach of such third party’s obligations of confidentiality.

5.3 Nonuse and Nondisclosure.  Merchant agrees not to use any Confidential Information of Company for any purpose except those purposes stated in this Merchant Agreement.

5.4 Required Disclosure.  If Merchant is required by law regulation, or legal or administrative process (by oral questions, interrogatories, requests for information, subpoena, civil investigative demand, or similar legal process) to disclose any Confidential Information, Merchant will provide Company with prompt written notice of such requirement(s) so that Company may seek an appropriate protective order or waive compliance with the provisions of this Merchant Agreement, and Merchant will cooperate with Company to obtain any such protective order.  If, failing the entry of a protective order or the receipt of a waiver hereunder, Merchant, in the opinion of its counsel, is legally compelled to disclose Confidential Information, Merchant may disclose only that portion of such Confidential Information as is legally required; provided, that Merchant agrees to use commercially reasonable efforts to obtain assurance that confidential treatment will be afforded to such Confidential Information; provided, further that Merchant shall promptly notify Company, in writing, of Merchant’s determination to make such disclosure and the scope and contents of such disclosure.

5.5 Maintenance of Confidentiality.  Merchant agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information.  Without limiting the foregoing, Merchant shall use at least that degree of care that it takes to protect its own confidential information of a similar nature, but in no event less than reasonable care, and shall ensure that its employees and representatives who have access to Confidential Information have signed a nonuse and nondisclosure agreement protecting Confidential Information that is substantially similar in content to the provisions hereof, prior to any disclosure of Confidential Information to such employees.

5.6 Return of Materials.  All documents and other tangible objects containing or representing Confidential Information which have been disclosed by Company to Merchant, and all copies thereof which are in the possession of Merchant, shall be and remain the property of Company and shall be promptly returned to Company, or destroyed, upon Company’s written request.

5.7 Remedies.  The Parties agree that money damages would not be a sufficient remedy for any breach or threatened breach of this Section 5 by Merchant, and that Company shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and the Parties further agree to waive any requirement for the security or posting of any bond in connection with such remedy.  Such remedy shall not be deemed to be the exclusive remedy for breach of this Section 5 but shall be in addition to all other remedies available to Company at law or equity.  Merchant agrees to indemnify and hold harmless Company from any damage, loss, cost or liability relating to or resulting from any unauthorized use or disclosure by Merchant of the Confidential Information, including all legal fees and disbursements and the costs of enforcing this Merchant Agreement or any action for relief pursuant to this Section.


6. Representations AND Warranties

6.1 Mutual.  Each Party represents and warrants to the other that (i) this Merchant Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms; (ii) the Party’s obligations under this Merchant Agreement do not violate any law or breach any other agreement to which such Party is bound; (iii) it has all necessary right, power and ability to execute this Merchant Agreement and to perform its obligations therein; and (iv) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Merchant Agreement.

6.2 Merchant.  Merchant represents and warrants that Merchant is engaged in a lawful business and is duly licensed to conduct such business under the laws of all jurisdictions in which Merchant conducts business. Merchant further represents and warrants that all statements made by Merchant in this Merchant Agreement, or in any other document relating hereto by Merchant or on Merchants’ behalf, are true, accurate and complete in all material respects.

6.3 Compliance with Applicable Laws.  Merchant will comply with all applicable laws, regulations, rules, ordinances, and orders of governmental authorities having jurisdiction over Merchant and Merchants’ business. Merchant will further comply with all laws pertaining to Credit Card Payment, Payments on Credit, Prevention against Fraud, Quality Assurance  and any other regulatory body or agency having jurisdiction over the subject matter hereof or any association recognized within the applicable industry – as may become necessary. Merchant will comply with all material terms of the then-current policies, procedures, and guidelines of Company governing the Company Services.

6.4 Transactions.  Merchant represents that each Transaction delivered hereunder to the Company or the Consumer will represent a bona fide sale by Merchant according to the invoice raised by the Company to the Consumer, which shall accurately described the goods and services sold and constitutes the binding obligation of the cardholder/Consumer, free from any claim, demand, defense, setoff or other adverse claim whatsoever.  Merchant will fulfill completely all of Merchants’ obligations to the cardholder/Consumer and will resolve any consumer dispute or complaint directly with the cardholder/Consumer with regard to quality of product/service.

6.5 Taxes.  Merchant herby warrants that Merchant shall be responsible for due reporting and payment of any and all applicable taxes due to any Governmental Organization by reason of advertising and offering Merchants’ goods and/or services on the Site, sale of goods and/or services via the site, by way of credit payments and/or delivery.  Company shall also be responsible equally for payment of all liable taxes and other payments according to the trading activity carried out.

6.6 Company. Company represents and warrants that Company Services provided to Merchant hereunder will substantially conform to applicable laws and regulations and shall be provided in a timely and commercially reasonable manner.  Merchant acknowledges that Services are designed for use with certain third-party programs, including, without limitation, certain internet browser software programs.  Merchant will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Company will take responsibility for its errors and omission in the operation of Company’s system.

6.7 Product and/or Service Warranties: Merchant shall be entirely responsible for warranties given/represented with the relevant products and/or service provided to the Consumer and Consumer shall have every right to act on said warranties and representations made by the Merchant. Merchant shall not hold Company responsible for any faults in the quality and nature of the product and/or service.

6.8 Returns: In the event there is any fault with the quality of the product and/or the product is faulty the Merchant shall bear all expenses related to the return of the product/re-imbursement with regard to same and/or exchange of product. In the event there is a fault that arises due to the delivery service and/or storage of the product by the Company then the Company shall bear all expenses related to the return of the product/re-imbursement with regard to same and/or exchange of product.


7. Data Security

7.1 Data Usage

a) By Company. Company will collect, retain, use and share information and Card Data collected from the Site in accordance with the Company’s current Privacy Policies contained on the site. In Company’s use of Card Data, Company may collect and hold personal or non-public information about Merchant and the site’s Consumers for the purpose of considering eligibility for Services and for the purpose of providing Merchant with Company services. The Company shall use said data only as per the Privacy Policy set out in the site, which Consumers shall have the option of agreeing with or declining.

7.2 Data Storage. Unless Company receives the express consent of Consumer, Company may not retain, track, monitor, store or otherwise use Card Data beyond the scope of the Transaction.  Further, unless Company receives the written consent of each Acquiring Bank and/or the Card Networks, as applicable, Company agrees that Company will not use nor disclose the Card Data for any purpose other than to support payment for Merchants’ goods and services.  Card Data will be completely removed from Company/Site systems, and any other place where Company/Site stores Card Data, within 24 hours after Company/Site receives an authorization decision unless Company has received the written consent of Consumer to retain the Card Data for the sole purpose of processing recurring payments.

7.3 Password Security. Company will issue to Merchant, or permit Merchant to use, a user name and password to enable Merchant and/or Merchants’ employees and agents to access Merchants’ Company account and to use Company services.  Merchant agrees to restrict use and access to Merchants’ password and log-on ID to Merchants’ authorized employees and agents as may be reasonably necessary and will ensure that each such employee or agent is aware of and complies with the terms of this Merchant Agreement. Merchant will not give, transfer, assign, sell, resell or otherwise dispose of the information and materials provided to Merchant to utilize the Company Services. Merchant is solely responsible for maintaining adequate security and control of any and all IDs, passwords, or any other codes that are issued to Merchant by Company, each Acquiring Bank or the Card Network.  Upon Company’s request, Merchant shall provide Company with all available information regarding such authorized employees and agents.  Merchant shall cooperate in any inquiry regarding such authorized employees and agents.


8. TERM AND TERMINATION

8.1 Term.  This Merchant Agreement shall come into force upon the signing of this Agreement by the authorized signatories of the Company and the Merchant and shall remain in full force and effect for an unlimited period of time, until otherwise terminated as provided below (“Term”).

8.2 By Merchant.  Merchant may terminate Merchants’ use of the Company Services at any time upon 90 days written notice.

8.3 By Company. Company may terminate Merchants’ use of the Company Services:

     a) Upon 60 days written notice for any reason;
     b) Upon 30 days written notice if Company decides, at its discretion, that Merchant has become or is likely to become, ineligible for the Company Services                   because there is a high level of Risk Factors associated with Merchants’ Company Account;
     c) Immediately, if Merchant fails to comply with the terms of, or if Merchant refuses to perform any of Merchants’ obligations under this Merchant Agreement, or           under any of the Company Agreements that apply to the Company Services, or upon request by Visa, MasterCard and any other credit association or network           organization related to cardholders and Transaction.

8.4 Effect of Termination.  If Merchants’ use of the Company Services is terminated, Merchants’ use of the Company Services will immediately end.  Merchant agrees to complete all pending Transactions, immediately remove all Company logos, and stop accepting new Transactions through the Company Platform.   Upon termination of this Merchant Agreement for any reason whatsoever, all rights and interests under this Merchant Agreement shall be extinguished and shall be given no further force nor effect, except that:  (i) all accrued payment obligations hereunder, including any payment of finance charges, and related fees and charges, shall survive such expiration or termination; and (ii) the provisions of this Merchant Agreement relating to confidentiality, warranties, limitation of liability, indemnification, governing law, severability, headings and this paragraph shall survive termination or expiration of this Merchant Agreement.


9. MISCELLANEOUS

9.1 Limitation of Liability.  The company platform and the company services and all accompanying documentation are provided to merchant on an “as is” basis without any warranties, either express or implied, including without limitation any warranties of title, non-infringement, merchantability or fitness for a particular purpose.  Company makes no warranty that the company services will be continuous or error-free. 

9.2 Exclusion of Consequential Damages.  Under no circumstances will the company  or any of its affiliates or vendors, officers, directors, employees, contractors or agents of the parties be liable for any indirect, incidental, consequential, special or exemplary damages however or whenever arising, including, without limitation, damages for lost revenue, lost profits, anticipated profits, lost business or injury to business reputation or cost of procurement of substitute services, under any theory of liability or cause of action whether in contract or in tort, including negligence or otherwise, regardless of whether the company has been advised of the possibility of such damages. The company’s total liability to merchant, whether arising in tort (including negligence), contract or otherwise, under this agreement or with regard to any services or any other products or services, shall not exceed the aggregate fees received by us for providing merchant with services during the thirty (30) days preceding the date on which the claim arose.

9.3 Indemnification.  Merchant agree to defend, indemnify and hold Company, its affiliates, officers, directors and employees, agents, contractors harmless from any claim or demand (including attorneys’ fees) made or incurred by any third party due to or arising out of Merchants’ breach of this Merchant Agreement and/or Merchants’ use of the Company Platform or the Company Services accessed through the Company Platform. 

9.4 Assignments and Transferability.  Merchant will not have the right or the power to assign any Merchant’s rights or delegate the performance of any of its obligations under this Merchant Agreement without the prior written consent of Company.  Any attempt by Merchant to assign its rights or to delegate its obligations in violation of this paragraph shall be void.   Merchant agrees that Company will have the right to assign this Merchant Agreement to our successors and/or assigns (including but not limited to successors and/or assigns in connection with a merger, consolidation, sale of assets, or other change of control), subsidiaries, affiliates, Affiliate Partners and/or Third Party Service Providers without Merchant’s prior written consent or notice.  Company will use commercially reasonable efforts to provide subsequent notice to Merchant in the event of such assignment.

9.5 Notices.  All notices to Merchant shall be given electronically, sent to the electronic mail address provided by Merchant during registration for Services and/or posted in the Merchant Control Panel of Merchants’ Company Account and shall be effective upon transmittal.  All notices to Company shall be given electronically to ………………………………. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by e-mail, or five (5) days after the date of mailing if sent by certified or registered mail, postage prepaid.  Any termination notice to Company shall be given electronically by sending an email to Merchant’s authorized designee from within the Merchant control panel of Merchants’ Company account.

Parties must also send written notices via registered post to the addresses hereinbefore provided. Such written notice shall be deemed to have been received on the third day from the date mentioned in the Register Post article.

9.6 Governing Law; Jurisdiction.  This Merchant Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the Democratic, Socialist Republic of Sri Lanka and shall be resolved as much as possible by mutual agreement, failing which parties shall have recourse to the relevant courts of Law of Sri Lanka.

9.7 Headings.  Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affects this Merchant Agreement.

9.8 Severability.  If any provision of this Merchant Agreement or portion thereof is held to be unenforceable, such a determination will not affect the remainder of this Merchant Agreement. Paragraph headings are included for convenience only and are not to be used in interpreting this Merchant Agreement.

9.9 Entire Agreement.  This Merchant Agreement together with all of the Company’s policies referenced herein sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Merchant Agreement.

9.10 Single Agreement.  Merchant and Company agree that, in order for the rights and obligations of the parties to be fairly and equitably administered, the various transactions contemplated under this Merchant Agreement and the Merchant Application shall constitute a single, integrated transaction, and not a series of separate or discrete transactions.

 

IN WITNESS WHEREOF the Authorized Signatories of the Company and the Merchant have set their hands hereto and two others of the same tenor and date hereinbefore mentioned.

The Company,                                                                               The Merchant,

Signed by the above named,                                                       Signed by the above named

 

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Witnesses:

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