Definitions and Interpretation
In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings:
“Agency Manual” means the manual issued to the Agent which records methods of operation methods of operation, procedures and other practical matters relevant to the provision of the services as updated from time to time.
“Agent” or “MyPay Agent” means an individual or entity appointed to provide services in Zambia on behalf of MyPay;
“Agent’s Commission Wallet” means the account established by the Agent for the payment of Commission;
“Agreed Float Value” means the aggregate value of the MyPay float to be maintained by the agent;
“MyPay account” means the MyPay account maintained by the MyPay into which all their receipts will be paid;
“Cash” means the lawful currency of the Zambia;
“Cash Float” means the cash provided by the Agent at each Outlet for the provision of services.
“Confidential information” shall mean all information, know-how, ideas customer data or transactions or transaction value, concepts, technology, industrial, marketing and commercial knowledge of a confidential nature (whether in tangible or intangible form) relating to or developed in connection or in support of the business, including the terms and conditions of providing services or any matter concerned with or arising out of an Agent appointment;
“Customers” means all the users of the service;
“Effective date” means the date of execution of these Terms and Conditions by an Agent;
“Equipment” means all the equipment provided to the Agent by the service provider for the purposes of providing services and shall include, without limitation, SIM-Skin and point of sale branding material, Agent manuals and instructions for the provision of services;
“E-Money” means the electronic monetary value depicted in your MyPay Account representing an equal amount of Cash held by the Custodian and which may be redeemed through an Agent for an equal amount of Cash;
“MyPay float(s)” means the sum of E-Money held by the Agent for the provision of MyPay services;
“Float balancing” means the balancing of Floats across all outlets operated by the agent;
“Foreign National” means a person who is not a citizen of Zambia irrespective of whether the person is permanently resident in Zambia.
“ID” means a person’s original passport, voter registration card, and/or any other valid identification document clearly detailing a person’s full name, date and place of birth;
“Log Book” means the book maintained by the Agent in which all Transactions are recorded and which serves as conclusive evidence of the successful completion of those Transactions;
“Manager” means a person who is legally authorised to access funds in your mobile wallet account in the event of your permanent disability or incapacity;
“Money Laundering” is the engagement of a persons or persons, directly or indirectly in conversion, transfer, concealment, disguising, use of acquisition of money or property know to be of illicit origin and in which such engagement intends to avoid the legal consequence of such
“MyPay Services” or “MyPay Wallet” means the money transfer services provided by MyPay including issuance, management and redemption operated exclusively by MyPay in Zambia;
“MyPay System” or “MyPay Wallet” means the system operated by MyPay providing the MyPay Services;
“Network” means the Global System for Mobile Telecommunication (“GSM”) system covering those areas within the Zambia as stipulated from time to time by us;
“Outlet Operator” means the assistant attending to you at an Agent Outlet;
“Outlet” means any shop, unit or other retail premises or portion thereof operated by an Agent;
“Participant” or “User” means any person that participates in the System by using the Services to send or receive money and includes any person that facilitates the redemption of E-Money;
“PIN” means your personal identification number being the password you choose to access and operate your Account and includes the one-time -digit PIN sent to you on registration for the purpose of activating your Account;
“SIM Card” means the subscriber identity module which when used with the appropriate mobile phone equipment enables you to use the Services;
“SMS” means a short messaging service that enables the transmission of text messages from one mobile phone to another;
“Administrator” means a person who is legally authorised to access funds in your Account in the event of your death;
“Trademarks & Trade names” means the name and logo and all other trading identifiers which belongs to MyPay and which may only be used by the Agent in accordance with the terms of this Agency Terms and Conditions;
“Transaction limits” means the limits placed on Transactions that may be affected by Agents from specific Outlets as determined by local law and the Service provider.
“Transaction” means the movement of money in to, or out of your Account;
In this Agreement (including the recitals), unless the context otherwise requires:
· Words denoting the singular shall include the plural and vice versa and reference to the masculine gender shall include a reference to the feminine gender and neuter and vice versa;
· References to clauses are references to the clauses of this Agreement;
References to “Parties” shall mean the parties to this Agreement being MyPay and the Client and to “Party” shall mean either of them as the context may indicate;
· The expression “person” includes a natural person, body corporate, unincorporated venture, trust, joint venture, association, statutory corporation, state, state agency, governmental authority or firm; and
· Headings to clauses are used for convenience only and shall not affect the construction and interpretation of this Agreement.
§ MyPay hereby appoints the Agent to provide Services for a period of [two years (2)] from date of accepting these terms and conditions unless terminated as provided in these Terms and Conditions.
§ In absence of a formal renewal after two years stated above, these Terms and Conditions shall be treated as renewed automatically from year to year unless terminated as provided in these Terms and Conditions.
The Agent’s Duties and Warranties
· The Agent hereby warrants and represents that it has the full capacity and authority to enter into and to provide the Services under these Terms and Conditions and shall perform the terms and conditions set out in these Terms and Conditions in good faith:
· Without prejudice to what is stated above, the Agent:
1. shall only provide Services using the agreed tariffs programmed in the Equipment as may be varied by revised tariffs notified to the Agent from time to time;
2. shall not provide services to any Customer except as in accordance with these Terms and Conditions and the Agency Manual and or any other written instructions from time to time;
3. shall not, in providing Services make any representations or give warranties other than those contained in the Agency Manual and/or upon the written instructions;
4. shall be solely responsible for the safekeeping and proper use of the Equipment and for keeping the equipment and SIM-Skins secure;
5. shall only use the agreed Trademarks and Trade names to promote and provide Services during the duration of the Terms and Conditions and for no other purpose whatsoever;
6. will receive cash payments from customers in exchange for credit of E-Money to the customer’s mobile wallet with a corresponding debit to the Agents Float;
7. will pay out cash to Customers in accordance with SMS instructions received from the individual customer in return for the transfer to the Agent’s Float of an equivalent amount of E-Money;
8. will ensure that cash payments are only paid
8.1. upon sufficient sums being available in its Cash Float at the relevant Outlet;
8.2. upon checking the accuracy and completeness of the information contained in the incoming SMS instructions and;
details provided in the SMS;
9. shall complete the Log Book provided by recording type of transactions and customers who carried out the transactions;
10. shall decline the transaction in the event it has insufficient cash sums available in its Cash Float at the relevant Outlet to affect the Transaction;
11. will in all matters act loyally and faithfully and obey their orders or instructions in relation to the provision of the Services;
12. will allow authorised officers of to have access to the Agent’s premises at all reasonable times for the purpose of inspecting the books and records and for the purpose of taking stock of all equipment at the Outlets;
13. shall not assign, transfer, change or in any manner make over or purport to assign, transfer, change or make over these Terms and Conditions or their rights thereunder or any part thereof without obtaining the prior consent in writing;
14. shall not use the name or equipment given by MyPay for other purposes than the provision of Services;
15. shall allow MyPay to intervene in the event of any dispute arising between the Agent and a Customer;
16. shall comply with other MyPay directions or procedure for delivering other MyPay services as may be communicated by MyPay from time to time.
Rights and Obligations
§ MyPay shall have the right at any time during the duration of these Terms and Conditions to inspect the Agent’s business operations and its Outlets to ensure compliance with the terms of these Terms and Conditions.
§ MyPay will ensure that upon payment being made by the Agent, this will reflect the payment by the credit of an equivalent amount to the Agent’s Float within 24 hours.
· MyPay reserves the right notwithstanding anything to the contrary contained herein:
1. to vary any aspect of the Services to be provided to Customers;
2. to change these Terms and Conditions and charges under which it offers the Services as a direct result of new legislation, statutory instrument, Government regulations or licences, rates of exchange, imposition or alteration of government tax or as a result of any review of MyPay’s business planning, changes within the industry, recommendations from regulator bodies or for such other reason as it may in its sole discretion determine;
§ Access to the MyPay Services is PIN protected. You hereby agree to guard your PIN and not to disclose it to any third party including Participating Outlet Operators, or any person purporting to have authority to ask for it.
You acknowledge that you shall be solely responsible for the security of your PIN. MyPay shall not be liable for any disclosure of your PIN to any third party and you hereby agree to hold MyPay not liable from any losses that may result from any PIN disclosure.
§ You are responsible for all instructions given to MyPay in relation to your MyPay Account.
MyPay shall deem each correct PIN entry as being performed by the legitimate owner of
the account and shall regard all subsequent Transactions as validly performed by you.
· In consideration for providing MyPay services, MyPay will pay a Commission based on the number and type of transactions carried out by the Agent at the rates indicated in Fees and Commissions schedule attached.
· The Commission rates payable to the Agent may be varied by MyPay at its own discretion as may otherwise be notified to the Agent from time to time.
· Commissions due to the Agent shall be credited at the time of the transaction into the Agent’s Commission Account operated by the Agent for that purpose. MyPay will then make payment to the Agent against Commissions accumulated in the Agent Commission Account at regular intervals.
· The Agent shall be responsible for any deductions or tax required to be paid by law on Commissions received. In the event that MyPay shall be required by law to make any deductions or withholding tax then MyPay shall comply with such applicable legislation and remit the amounts to the appropriate authorities.
· No warranties or representations are made with regard to potential revenues that may be earned by the Agent from the provision of the MyPay Services and no reliance should be placed on any statements or projections provided, whether verbally or in writing in this respect.
· The Agent may authorize MyPay to move commission earned from their Commission Account to its Float Account.
Operation and Maintenance of Float
§ The Agent shall be required to provide MyPay Services from its Outlet(s) and to provide and maintain the MyPay floats for at least the Agreed Float Value to cover all Transactions to be undertaken from each of the Outlets at all times during the duration of these Terms and Conditions.
§ Agents with multiple Outlets will manage MyPay Float balances at various Outlets by the transfer of E-Money from one Outlet to the other by mobile phone and/or by the acceptance of MyPay Payments or the paying out of cash payments.
§ The Agent shall undertake the management and maintenance of the MyPay Floats and shall ensure that the Cash Float at each Outlet and the MyPay Float for that Outlet are balanced daily as specified in the Agency Manual.
To maintain MyPay Floats for transactions, the Agent may make payments to the MyPay Account in return for an equivalent amount of E-Money to bring the Floats back to at least 100% of the Agreed Float Value as communicated by MyPay.
§ If the MyPay Floats exceed the Agreed Float Value, the Agent may exchange an amount of E- Money equal to the excess for cash from the MyPay Account to bring the MyPay Floats back to the Agreed Float Value.
§ If the MyPay Float falls below a critically low figure of 50% of the Agreed Float Value, immediate remedial action will be required to rectify the balance
· The MyPay Float shall at all times during the period of these Terms and Conditions be the property of the Agent and shall vary in accordance with the Transactions effected by the Agent as specified in the MyPay Agent Manual. Any E-Money outstanding in the MyPay Float shall be exchanged for an equivalent amount of money from the MyPay Account on expiry or early termination of the Terms and Conditions.
Registration of Customers
§ Agents must record the following details on the registration of each Customer:
1. Customer’s full name;
2. Customer ID number and type as specified;
3. Passport size photo;
4. Customer date and place of birth;
5. Customer nationality;
6. Customer residential address;
7. Contact details such as telephone, fax, postal and email address;
8. Signature and or thumb print;
9. Mobile number;
10. Customer signature on the Customer Register
§ The Agent may decline any application if the Agent is not satisfied with proof of the MyPay Customer’s identity.
· All Agents are required to keep proper records in relation to their provision of MyPay Services, including the registration particulars of each Customer.
· All MyPay Transactions shall be recorded in the Agent Log Books as described in the Agent Manual as follows:
2. MyPay Operator;
3. MyPay Transaction ID (from electronic receipt);
4. Transaction type;
5. Transaction value;
6. Customer Name,
7. ID type
8. ID number
9. Float balance
10. Customer Signature
The Agent will have the right to appoint additional MyPay Operator/s within each Outlet. The costs associated with the appointment and function of these additional operators will be borne by the Agent him/herself;
§ The Agent shall be bound by and be responsible for all actions taken by each MyPay Operator on its behalf. All actions taken by the MyPay Operator shall be deemed to be actions taken by the Agent. The Agent shall indemnify MyPay in respect of any loss or liability due to mistake, negligence or fraud of the MyPay Operator appointed by the Agent to properly carry out the transactions.
All intellectual property rights in the MyPay Service including the MyPay trademark is the property of MyPay and/or its affiliates. Any unauthorized reproduction, modification, distribution or republication of MyPay materials or intellectual property, without the express prior written consent of MyPay and/or its affiliates is strictly prohibited.
Suspension & Termination
§ Without prejudice to any other remedies the parties may have against each other, either party (‘aggrieved party’) shall have the right at any time by giving notice in writing to the other party (‘defaulting party’) to terminate this terms and condition forthwith in any of the following events:
1. If the defaulting party commits material breach of the terms and/or conditions;
2. If the defaulting party enters into liquidation whether compulsorily or voluntarily (otherwise than for purposes of amalgamation or reconstruction) or compound with their creditors or suffer any similar action in consequence of debt;
3. If for any cause, the defaulting party is prevented from performing its duties hereunder for a period of 24 months.
4. If the defaulting party is found to be responsible for any conduct that is considered fraudulent, unethical or may cause loss of reputation to the other party;
§ Either of the parties may terminate these terms and conditions at any time by giving the other party one month’s notice.
§ Upon termination of these terms and conditions, neither party shall be liable to the other party for consequential damage of any kind as a result of the termination or otherwise, whether as a result of loss of present or prospective profit, investment, commitment made in connection with this terms and conditions, goodwill or similar loss.
§ Subject to any provision to the contrary, the termination of this terms and condition howsoever caused shall be without prejudice to the continuation of any provision which expressly or by implication comes into operation or continues in force after the date of termination and shall be without prejudice to any rights and liabilities of the Parties which may have already accrued prior the date of termination.
Warranties and limitation of liability
MyPay will report any suspicious account activity to its Money Laundering Reporting Officer (MLRO). The MLRO may escalate the suspicious activity to the relevant law enforcement authority.
§ MyPay shall use all reasonable efforts to ensure that all Transaction requests are processed in a timely manner. However, MyPay makes no representations or warranties as to continuous, uninterrupted or secure access to the MyPay service, which may be affected by factors outside MyPay ’s control, or may be subject to periodic testing, repair, maintenance or upgrades.
§ MyPay will not be responsible for any claim unless caused by wilful default attributable to MyPay. MyPay specifically disclaims all liability for any damages or losses, including, without limitation, direct, indirect, consequential, special, incidental or punitive damages deemed or alleged to have resulted from or caused by but not limited to:
§ Transactions made to unintended recipients or payments made in incorrect amounts due to the input of incorrect information by you;
§ Transactions made from your account by an unauthorised third party who passes all identity and verification checks;
§ any fraud, deception or misrepresentations by any MyPay Participant, whether or not the Participant has been verified,
§ any damages resulting from a recipient’s decision not to accept or record a Transaction made by you through the MyPay system,
§ failure of any other telecommunications or data transmission system other than the MyPay system;
§ any result of any acts of government or authority, any act of God or force majeure.
§ The limit of MyPay ’s liability shall not exceed the maximum Account balance limit for the time being in force for any single event or series of events.
§ You agree to indemnify and hold MyPay harmless against any claim brought against MyPay by a third party resulting from your breach of these Terms and Conditions
Dispute resolution and Governing law
§ You may contact MyPay Customer Care for any disputes, claims or to report Account discrepancies. MyPay Customer Care shall handle the report in accordance with MyPay ’s standard complaint handling procedures.
§ In certain circumstances MyPay in conjunction with participating merchants may provide for dispute resolution mechanisms. You agree to abide by such mechanisms as may be advised by MyPay or the participating merchants/businesses from time to time.
§ Any dispute arising out of or in connection with this Agreement that is not resolved by MyPay Customer Care may be brought to the attention of the Head Business Development responsible for the operations of the MyPay Services for resolution.
§ Any dispute arising out of or in connection with this Agreement that is not resolved by the MyPay Head Business Development responsible for the operations of the MyPay Services shall be referred to the MyPay CEO within 60 days of the notification of a dispute, upon the application of either party.
§ To the extent permissible by Law, the determination of the Arbitrator shall be final, conclusive and binding upon the parties hereto.
§ Nothing in this section shall be deemed to exclude any legally recognised dispute resolution body from receiving, hearing and determining the dispute.
§ This Agreement shall be governed by and construed in accordance with the laws of Zambia.
Disclosure and Data Retention
· You hereby expressly consent and authorize MyPay to disclose any Transaction data or information pertaining to your MyPay Account to any law enforcement, investigative or regulatory authority including without limitation the Police, Central Bank, Anti-Corruption Commission, Revenue Authority or any competent Anti-Money Laundering authority for the purposes of any genuine enquiry or investigation or to any third party to which you have separately, either in writing or electronically through the MyPay System or otherwise, authorised MyPay to disclose Transaction data or information pertaining to you or your usage of MyPay Products and Services, including your MyPay account provided that any consent given to MyPay to disclose information to any third party (not being a law enforcement, investigative or regulatory authority) pursuant to this clause may be withdrawn at any time.
· You acknowledge that where your Account is determined by a competent judicial authority as containing proceeds of any criminal or money laundering activities, MyPay may be required by law to surrender funds in your account to any statutory fund created for the purpose of recovering the proceeds of crime.
· You acknowledge that MyPay may retain your Transaction data for a period of up to Ten (10) years or as may be required by any law or regulation
Neither Party shall be liable to the other Party for any delay or failure to perform its obligations under these Terms and Conditions as a result of revolution or other civil disorders; belligerent aggression by an enemy; strikes; lack of available resources from persons other than parties to this Agreement; labour disputes; electrical equipment or system availability delay or failure; fires; floods; acts of God; government or regulatory intervention; or, without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent, whether of the class of causes hereinbefore enumerated or not. If such delay or failure continues for at least thirty (30) days then either Party may terminate their engagement by notice in writing to the other. Upon such termination all Cash held in trust for you in the MyPay System shall be made good to you.
§ Using your personal MyPay account to carry out MyPay transactions on behalf of another person is prohibited and may expose you to criminal liability under the Proceeds of Crime & Anti-Money Laundering Act. You may not use, or permit the use of your MyPay account to carry out any transactions on behalf of any other person.
You acknowledge that these Terms and Conditions are subject to amendment,
§ modification or variation from time to time if required by, or found to be in conflict with, applicable law or regulation or otherwise without affecting the validity or enforceability of the remaining provisions.
§ These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace any and all prior terms. In the event of inconsistency between these Terms and Conditions and previous editions, this version will prevail.
§ These Terms and Conditions may be amended by MyPay from time to time as MyPay introduces new MyPay functionalities. Such amended Terms and Conditions may be published in posters or pamphlets available at Agent Outlets, in the daily newspapers and/or on the MyPay /MyPay website from time to time and shall take effect immediately upon publication.
§ MyPay ’s failure to exercise or enforce any right under these Terms and Conditions shall not be deemed to be a waiver of any such right nor shall it prevent MyPay from exercising or enforcing the rights in question at any time.
§ You may not transfer any rights or obligations you may have under this Agreement without MyPay ’s prior written consent.
You must not use the MyPay service for the receipt of or payment for goods or services that offend or circumvent any law including without limitation, narcotic drugs, firearms, obscene or pornographic material or services, participation in pyramid or ponzi (pyramid) schemes, infringement of third party intellectual rights, running illegal or unauthorised lotteries, gaming or gambling, as well as material that is morally repugnant; incites violence or desires to cause harm; induces an unacceptable sense of fear or anxiety; encourages or incites any person to engage in dangerous practices or to use harmful substances; induces or promotes tribal, religious or racial disharmony; causes grave or widespread offence; or debases, degrades or demeans others.
§ Without prejudice where MyPay receives notification of the death or mental incapacity of an MyPay user, MyPay shall suspend all Account activity until satisfied that the relevant provisions of the Intestate Succession Act (1989) or the Mental Health Act (2019) of the Laws of Zambia (as the case may be) have been followed.
§ A person claiming access to funds by virtue of being a Administrator (in the event of death) or Manager (in the event of permanent incapacity) shall, upon request by MyPay, produce letters of administration/grant of probate (in the event of death) or a court order authorizing the person to manage the estate (in the event of permanent incapacity) or such other document as may be prescribed.
§ If the Courts appoint an Administrator or Manager, as the case may be, MyPay shall rely on such appointment of Administrator or Manager in its decision to transmit funds held to the credit of your account to the Administrator or Manager upon the event of your death or permanent incapacity (as the case may be).
§ You acknowledge that MyPay Agents are independent contractors and MyPay shall not be liable for the acts or omissions of MyPay Agents
· No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights.
Any provision of this Agreement held by a court of competent jurisdiction to be contrary to any law shall be severed from the agreement, but such severance shall not render the remaining provisions of this agreement ineffective. The remaining provisions of this Agreement will remain in full force and effect.