Merchant Agreement

This Agreement was created on the ________________________, and is made together with the date of application between:

GKASH SDN BHD (Company No. 10140333-T), a company incorporated in Malaysia and having its principal place of business at Penthouse, Level 11 Tower 3 Avenue 3, The Horizon, Bangsar South, No. 8, Jalan Kerinchi, 59200 Kuala Lumpur, Malaysia (hereinafter called "GKASH" )

AND

The Merchant, a company incorporated in Malaysia or an individual with details as stated in Section A of the application form (hereinafter called "Merchant") of the other part.

WHEREAS:

  1. The Website (as hereinafter defined) is an electronic bill presentment and payment service developed, maintained and provided by GKASH.
  2. The Merchant is engaged in the business of selling products and services which require GKASH's service by facilitating a platform allowing Customers (as hereinafter defined) to make and settle bill payments to them via the Service (as hereinafter defined).
  3. The Merchant is desirous of appointing GKASH as an authorized collection agent based upon the terms and conditions as set out in this Agreement.

NOW IT IS HEREBY AGREED:

  1. Definitions and Interpretation

    1. In this Agreement, unless the context otherwise requires the following terms shall have the following meanings:
      • "Agreement" means this Agreement, the Merchant's application and the Annexure hereto, including all amendments and modifications mutually agreed in writing by the Parties from time to time;

      • "Business Day" means any day (excluding Saturdays, Sundays and federal holidays) on which banks in Kuala Lumpur are open for business;

      • "Confidential Information" means all information which prior to or upon its disclosure is designated as confidential by one party (the Disclosing Party) to the other party (the Receiving Party), or which should reasonably be considered as information of a confidential nature by the Receiving Party;

      • "Customers" means the Merchant's registered customers which are [registered] with GKASH to utilize the Service;

      • "Effective Date" means the date of this Agreement;

      • "Financial Institution" means any banking institution that is engaged by Parties or either Party for the fulfillment of any obligation in this Agreement including for the Service;

      • "Internet Payment" means payment of the bill made by Customers via various Internet payment options including but not limited to credit card, online banking service and/or e-money;

      • "Merchant's Information" means any information that the Merchant provides to GKASH in the registration of Service or any other information provided by the Merchant in connection with the Service;

      • "Personal Data" has the meaning ascribed to it in the Personal Data Protection Act, 2010 (PDPA) which means any information in respect of commercial transactions, which;-

        • is being processed wholly or partly by means of equipment operating automatically in response to instructions given for that purpose;

        • is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system,

        • is recorded with the intention that it should wholly or partly be processed by means of such equipment; or

      • that relates directly or indirectly to a data subject, who is identified or identifiable from that information or from that and other information in the possession of a data user, including any sensitive personal data and expression of opinion about the data subject; but does not include any information that is processed for the purpose of a credit reporting business carried on by a credit reporting agency under the Credit Reporting Agencies Act 2010.

      • "Service Fee" means the charges, fees and prices payable by the Merchant to GKASH under this Agreement for the Service at the agreed rate;

      • "Service" means the delivery of Merchant's electronic bill to the Customers, and the ability of the Customers to make payments for the bills using the Website or using PLZ;

      • "Support Services" means additional services as may be requested and required by the Merchant beyond the Service;

      • "Term" means the period of twelve (12) months and any subsequent term if this Agreement is extended by the Merchant in accordance with Clause 10.2;

      • "Trademarks" means all trademarks and logos of GKASH that exist now or in the future, both registered and non-registered, all as may be specified by GKASH from time to time;

      • "Transaction" means Internet Payment effectuated via the Service;

      • "Website" means GKASH's website at www.pay.my;

    2. Words bearing the singular in this Agreement shall include the plural and vice versa.
    3. Titles and headings in this Agreement are used for convenience and ease of reference only, and in no way define, limit, extend or describe the scope and intent of this Agreement or of its provisions.
    4. All Recitals and Annexure hereto in this Agreement shall be read and construed as an essential part of this Agreement.
    5. "Parties" shall mean GKASH and Merchant collectively and "Party" shall mean any one of them.

  2. Appointment and Relationship

    1. The Merchant hereby appoints GKASH as an authorized collection agent for the provision of the Service in accordance with the terms of this Agreement for the duration of the Term, and GKASH hereby agrees to accept the appointment for the provision of the Service to the Merchant.
    2. The Merchant prior to using the Service, will have to first set up an account with GKASH.
    3. In providing the Service, the Parties agree that GKASH acts only as a platform for the Merchant to present bills to the Customers and as an online payment facilitating service provider by creating, hosting, maintaining and providing the Service to the Merchant via the internet. GKASH does not have any control over the products or services that are transacted by the Merchant. Accordingly, GKASH does not have any onus or liability whatsoever to ensure that the Customers that transact with the Merchant will in fact complete the Transaction. For the avoidance of doubt, GKASH will however be responsible and be liable in ensuring that if a Customers wishes to complete a Transaction, the Service shall enable the completion of that Transaction.
    4. Notwithstanding the provision of the Service by GKASH and any of the terms of this Agreement to the contrary, the Merchant acknowledges that:-

      1. GKASH is not a bank or financial institution and the Service is an online payment facilitating service rather than a banking service; and
      2. GKASH does not have any control over the payment made by the Customers through the Service as the Financial Institution is the party who will receive the Internet Payment on behalf of the Merchant once transferred by GKASH.
    5. GKASH shall from time to time, reserve all its rights to adjust and amend the contents and interfaces of Service, either on the Website or PLZ, provided such adjustment and amendment shall not adversely affect the Service and subject always to at least one (1) month prior written notice ("Change Notice") being given to Merchant prior to the implementation of the change. For the avoidance of doubt, posting of the Change Notice on the Website shall constitute an effective delivery of the Change Notice to the Merchant.
    6. If such adjustment or amendment leads to necessary changes in the software, interfaces or operating procedures of the Merchant, GKASH will highlight this in the Change Notice. The Merchant shall bear the costs at the Merchant's end in relation to such adjustment and amendment, and in ensuring uninterrupted Service.

  3. Service Fee
    1. The Service Fee shall be a fee that is mutually agreed by the Parties upon entering into this Agreement, the scheme of which is as follows:

      1. RM1.50 per payment received
      2. RM0.15 per bill sent via SMS (optional)
    2. The Service Fee shall be in Malaysia Ringgit ("MYR") unless agreed otherwise.
    3. The Merchant has to prepay for the Service. Pursuant to such prepayment, the Merchant is required to reload their account to allow GKASH to deduct the amount for the Service as per the schedule above. The minimum reload credit is RM1.00. The Merchant is advised to reload the account regularly to avoid any negative balance.
    4. If the Merchant's account has a negative balance, the Merchant consents to GKASH performing either of the following, or the combination of any:

      1. setting off the negative balance with any fund the Merchant subsequently reloaded into their account; or
      2. the amount may be deducted from any sum received by the Merchant.

      The maximum negative balance permitted for a Merchant to have in its account is -RM100. Once the negative balance exceeds -RM100, GKASH at its sole discretion, may suspend the Merchant form utilising the Service until and unless either payment has been made by the Merchant for the services, or the negative balance has been set off.

    5. The Service Fee shall remain fixed throughout the Term. Thereafter, GKASH shall be entitled to revise the Service Fee provided that prior written notice of two (2) months is given to the Merchant before the Merchant issues any notice of extension under Clause 10.2 and provided further that the revised Service Fee shall not be implemented during the then-current Term but shall only take effect in the subsequent Term if the Agreement is further extended by the Merchant.
    6. GKASH shall send a monthly invoice for the Service Fee for the Transactions performed in the previous month to the Merchant on or before the seventh (7th) day of each and every subsequent month and the Merchant shall make payment of the Service Fee as per the invoice within fifteen (15) days from the date of receipt of such invoice.
    7. Notwithstanding any provision in the Agreement to the contrary, the payment for Service Fee is exclusive of all relevant and applicable taxes.

  4. Warranties in respect of the Merchant's Information

    1. The Merchant is solely responsible for its Information and the Merchant acknowledges that GKASH's role is merely as a passive conduit for the online distribution of the Merchant's bills and facilitating payment from the Customers to the Merchant's account. Notwithstanding the foregoing, the Merchant's Information shall at all times be subject to Clause 11 of this Agreement and GKASH shall not use any of the Merchant's Information for any other purpose which is not related to the provision of the Service pursuant to the terms of this Agreement without the prior written consent of the Merchant.
    2. The Merchant shall use its best endeavours to ensure that the Merchant's Information and the Merchant's activities (including its payments and receipt of payments) that are transacted through the Service shall not:

      1. be false, inaccurate or misleading;
      2. be fraudulent or involve the sale of counterfeit or stolen items;
      3. be related in any way to gambling and/or gaming activities, including but not limited to payment or the acceptance of payments for wagers, gambling debts or gambling winnings, regardless of the location or type of gambling activity (including online and offline casinos, sports wagering and office pools);
      4. violate Clause 5 of this Agreement;
      5. infringe on any third party's copyright, patent, trademark, trade secret or other property rights or rights of publicity or privacy;
      6. violate any law, statute, ordinance, contract or regulation (including, but not limited to, those governing financial services, consumer protection, unfair competition, anti-discrimination, or false advertising);
      7. be defamatory, libellous, unlawfully threatening or unlawfully harassing;
      8. be obscene or contain child pornography;
      9. contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or other personal information; or
      10. jeopardize any reputation or liability for GKASH or cause GKASH to lose (in whole or in part) the services of GKASH's ISP or other suppliers.

  5. Violations by the Merchant

    1. If the Merchant intentionally and knowingly engages in any of the following acts, GKASH shall be entitled, at its sole discretion, to limit the Service provided to the Merchant or immediately terminate the Service and this Agreement by notice in writing to the Merchant:

      1. Using the Service to receive payments directly or indirectly, for any sexually oriented or obscene materials or services in violation of GKASH's policy;
      2. Using the Service to receive payments directly or indirectly, for any narcotics, other controlled or illegal substances, steroids or prescription drugs in violation of any laws;
      3. Using the Service to receive payments directly or indirectly, for wagers, gambling debts or gambling winnings, regardless of the location or type of gambling activity;
      4. Using the Service to receive payments directly or indirectly, for any counterfeit products;
      5. Using the Service to receive payments directly or indirectly, for any weapons including firearms, ammunition, high capacity magazines, air guns, explosives;
      6. Using the Service to receive payments directly or indirectly, for any fireworks or pyrotechnic devices or supplies;
      7. Attempts to tamper, hack, modify or otherwise corrupt the security or functionality of Service;
      8. Using the Service for money laundering activities;
      9. Using the Service for any illegal or immoral activities, including but not limited to such activities that violate the laws of Malaysia.
    2. The Parties hereby agree that the damage that GKASH may sustain as a result of a breach of Clause 5 above by the Merchant may be substantial, including but not limited to fines and other related expenses from its payment processors and service providers for which damages may not be an adequate remedy for such breach by the Merchant and in view thereof, the Merchant acknowledges that GKASH shall be entitled to seek equitable relief, including but not limited to injunctions and specific performance, in the event of any such breach or threatened breach by the Merchant.
    3. In addition to Clause 7 below, the Merchant further indemnifies GKASH for any and all liability which GKASH may incur pursuant to the provision of the Service, if the Merchant is found to be in breach of this Clause 5.

  6. Disclaimer and Limitation of Liability

    1. The Parties hereto agree that GKASH shall not be held liable for any business expense, machine downtime or damages caused by any deficiency, defect or error in the Service or malfunction thereof and in no event shall GKASH be liable to the Merchant for any consequential or incidental damages, including but not limited to loss of profits, loss of turnover and/or loss of data.
    2. The Parties hereby agree that GKASH shall not be held liable in any manner whatsoever in the event there is a dispute between the Merchant and any of the Customers, unless it can be reasonably proven by the Merchant that such dispute arose, directly or indirectly, from the wilful negligence, fraudulent act, default or breach and/or acts or omissions by GKASH in the provision of the Service under this Agreement.
    3. The Merchant shall not hold GKASH, its holding company, subsidiaries, employees and its suppliers liable in any way for any losses or liabilities arising directly and solely from the fault of the Merchant or authorised third parties directly relates to the Merchant in connection with the use of or access to the Service.

  7. Indemnity

    1. The Merchant shall indemnify GKASH and hold GKASH, its holding company, subsidiaries, affiliates, officers, directors and employees harmless from any claim or demand made or incurred by any third party due to or arising out of the Merchant's breach of any of the terms of this Agreement or the violations of any provisions of law in connection with the Transactions contemplated under this Agreement.

  8. Intellectual Property Rights

    1. For the duration of this Agreement, GKASH hereby grants Merchant and its affiliates and related companies a royalty-free, non-transferable and non-exclusive right during the Term of this Agreement to use the Trademarks on its websites and in any off-line promotional materials for the sole purpose to indicate that it makes use of the Service. The Merchant shall use such Trademarks in accordance with GKASH's directions for the use of such Trademarks as communicated in writing to the Merchant. The Merchant does not have a right of sub-license. GKASH may apply limitations to the right granted to the Merchant under this paragraph at any time and at its sole discretion.
    2. For the duration of this Agreement, the Merchant hereby grants GKASH and its affiliated companies an irrevocable, royalty free, non-transferable and non-exclusive right during the Term of this Agreement to use its trademark and logo on their Websites and in off-line publications for the sole purpose of indicating that the Merchant makes use of its Service.
    3. All proprietary rights in the equipment, software (such as interfaces) and other materials used or made available by GKASH in the performance of this Agreement, whether or not it is made available to the Merchant, shall remain with GKASH. The Merchant shall only acquire such right of use as is explicitly granted hereunder.
    4. Upon termination of this Agreement, the Merchant shall forthwith withdraw any reference or related forms to GKASH and/or the Service from its websites and shall forthwith cease the use of the Trademarks, and GKASH shall cease any use of the Merchant's trademark and logo.

  9. Confidentiality

    1. During the Term of this Agreement and after termination or expiration of this Agreement for any reason whatsoever, the Receiving Party shall:

      1. keep the Confidential Information confidential;
      2. not disclose the Confidential Information to any person save and except with the prior written consent of the Disclosing Party or in accordance with Clause 9.2;
      3. not use the Confidential Information for any purpose other than in connection with the performance of its obligations under this Agreement; and
      4. comply at all times with the PDPA.
    2. During the Term of this Agreement and unless prohibited by the PDPA, the Receiving Party may disclose the Confidential Information to its employees and/or to the Financial Institution (hereinafter referred to as the "Recipient") to the extent reasonably necessary for the purposes of this Agreement.
    3. The Receiving Party shall procure that each Recipient is made aware of and complies with all the Receiving Party's obligations of confidentiality under this Agreement as if the Recipient were a party to this Agreement.
    4. The obligations contained in Clause 9.1 shall not apply to any Confidential Information which:

      1. is in the public domain at the date of this Agreement, or at any time after the date of this Agreement comes into the public domain other than through breach of this Agreement by the Receiving Party or any Recipient;
      2. is known by the Receiving Party prior to disclosure by the Disclosing Party to the Receiving Party;
      3. is subsequently becomes lawfully into the possession of the Receiving Party from a third party; or
      4. is disclosed by the Receiving Party pursuant to and in accordance with a relevant statutory obligation, an order of a court of competent jurisdiction or an order of a competent regulatory body.

  10. Term and Termination

    1. The Term of this Agreement shall commence on the Effective Date for a period of twelve (12) months unless earlier terminated by either of the Party in accordance with the terms of this Agreement or unless extended pursuant to this Clause 10.2.
    2. This Agreement shall be renewed on largely the same terms and conditions (unless otherwise mutually agreed) for an additional twelve (12) months in the event the Merchant gives to GKASH a notice of extension at least two (2) months prior to the expiry of the then-current Term.
    3. This Agreement may be terminated as follows: (a) If a Party (hereinafter referred to as "the Defaulting Party"):

      1. shall hereto commit or permit any material breach of any of the obligations herein contained and on its part to be performed or observed and shall not have remedied such breach (if capable of remedy) within fourteen (14) days after written notice shall have been given to it by any other Party requiring such remedy;
      2. shall go into voluntary liquidation otherwise than for the purpose of reconstruction or amalgamation or an order of court is made for its compulsory liquidation or being an individual shall become bankrupt or have a receiving order made against any of his assets;
      3. shall enter into any composition or arrangement with its creditors;
      4. shall have a receiver appointed over the whole or any part of its undertaking or assets;
      5. shall suffer any encumbrances taking possession of or a receiver or trustee being appointed over the whole or any part of its undertaking, property or assets; or
      6. shall have an order made against it or have a resolution passed for its winding-up, otherwise than for the purpose of a reconstruction or amalgamation previously approved by the other Party.

      When and in any such event (hereinafter referred to as an "Event of Default") the Party not in default (the "Non-Defaulting Party") shall be entitled (but shall not be obliged) to give notice in writing to terminate this Agreement to the Defaulting Party within fourteen (14) days from the date of which the Non-Defaulting Party becomes aware of the occurrence of the Event of Default.

    4. GKASH has the right to terminate this Agreement with immediate effect, if the Merchant:

      1. fails to pay the Service Fee as stipulated by GKASH under Clause 3, for the Service duly rendered;
      2. commits any of the acts stipulated in Clause 5; or
      3. becomes subject to any sanction imposed or an investigation launched by a regulatory body involving possible unlawful business practices.
    5. Upon termination of this Agreement, the following provisions shall apply:-

      1. The Merchant shall pay any outstanding Service Fee which remains due and payable to GKASH for the Service already provided in accordance with Clause 3.6 of this Agreement;
      2. GKASH shall deliver outstanding invoice (if any) to the Merchant and the Merchant shall pay any sums in the invoice in accordance with Clause 3.6 of this Agreement.

  11. Representations

    1. Each Party represents to the other that:

      1. it has all requisite power and authority to enter into this Agreement and to carry out the Transactions contemplated hereby;
      2. it has the rights, licenses, permits and power to perform all obligations incurred by it under this Agreement;
      3. the execution, delivery and performance of this Agreement are duly authorized;
      4. this Agreement is a valid and binding obligation of it; and
      5. the execution, delivery and performance of this Agreement and the consummation of the Transactions contemplated hereby do not conflict with or violate its constituent documents, any other contract or agreement to which it is a party, any applicable laws or any order or judgment of any court orgovernmental authority.

  12. Notices

    1. All notices, statements, demands, requirements or other communications and documents required or permitted to be given, served or delivered to any Party under this Agreement (hereinafter referred to as a "Communication") shall be in writing in the English language and shall be either delivered by hand or sent by pre-paid certified or registered mail (airmail in the case of all international Communication), with return receipt requested, to that Party at its address stated in the Website or sent by email to its email address stated at the Website or to such other address or email address as that Party may from time to time have notified the other Party as being its address or email address for purposes of this Agreement to the exclusion of all previously applicable addresses and facsimile numbers.
    2. A Communication shall be deemed to have been given, served or delivered:-

      1. if delivered by hand, upon delivery;
      2. if sent by mail, after three (3) Business Days of postage;
      3. if sent by facsimile machine, one hour after its transmission if such time is during business hours in the place of its receipt or, if it is not, on the opening of business on the next Business Day, subject to its having in fact been received in legible form and with a copy thereof being sent by post; and
      4. if sent by electronic mail, twenty four (24) hours after e-mail is sent.

  13. Force Majeure

    If the performance of this Agreement or any obligation hereunder is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected Party, the Party so affected, upon giving prompt notice to the other Party, shall be excused from such performance, except for the making of payments hereunder, to the extent of such prevention, restriction, or interference, for so long as the non-performing Party uses reasonable efforts to resume performance. In the event of a non-performance pursuant to this Section 13 for more than sixty (60) days, the other Party may terminate this Agreement upon thirty (30) days' written other Party.


  14. General

    1. Entirety
    2. This Agreement sets forth and shall constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and shall supersede any and all promises, representations, warranties or other statements whether written or oral made by or on behalf of one Party to the other of any nature whatsoever or contained in any leaflet, brochure or other document given by one Party to the other concerning such subject matter. This Agreement may not be released, discharged, supplemented, amended, varied or modified in any manner except by an instrument in writing signed by the Parties hereto. As from the Effective Date, all previous arrangements, agreements, compromise, commitments, negotiation and moratorium executed hereto shall be superseded by this Agreement.

    3. Waiver
    4. The failure to exercise or any delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies, and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.

    5. Assignability
    6. The Parties may not transfer any rights or obligations it may have under this Agreement without the prior written consent of the other Party. This Agreement shall be binding upon and inure to the benefit of the parties, their legal representatives, successors, and permitted assignees.

    7. Severability
    8. Any of the terms conditions, stipulations, provisions, covenants or undertakings contained herein which are illegal void prohibited or unenforceable in any respect under the law governing this Agreement or its performance, such illegality, invalidity or unenforceability shall be ineffective to the extent of such illegality, void, prohibitions or unenforceability without invalidating the remaining provisions hereof and any such illegality, void, prohibition or unenforceability shall not invalidate or render illegal, void or unenforceable any other terms conditions stipulations provisions covenants or undertakings contained herein.

    9. Governing Law and Jurisdiction
    10. This Agreement is governed by and shall be construed in accordance with the laws of Malaysia, and the Parties hereby agree to submit to the exclusive jurisdiction of the Court of Malaysia.

    11. Time
    12. Time is of the essence of this Agreement.

    13. Costs
    14. Each Party shall bear their own solicitors' costs in respect of this Agreement and the stamp duty of this Agreement and the penalty (if any) shall be borne by the Merchant.

    15. Support Services

      1. GKASH shall use reasonable commercial efforts to provide the Merchant with the Support Services throughout the Term and through any extension of the Term as per clause 10.2.
      2. The Merchant shall provide GKASH with 30 days' prior written notice specifying the scope of the Support Services required by the Merchant.
      3. The Parties shall then negotiate the scope of the Support Services and GKASH will charge the Merchant its hourly rate based on the requested service. This will be agreed in a separate agreement between the Parties.
      4. The Merchant hereby agrees to reimburse GKASH any out of pocket expenses incurred while performing the Support Services. This include but not limited to, transportation, meal, accommodation and telecommunication allowances.

  15. Personal Data Protection Act 2010

    The Parties are aware of the requirements of the PDPA in relation to Personal Data.

      1. In the event GKASH is provided or allowed access by the Merchant to any Personal Data, GKASH shall ensure that it fully complies with the provisions of the PDPA and only deals with such Personal Data for the purpose of complying with its obligations under this Agreement and for no other purpose.
      2. GKASH shall fully cooperate and assist the Merchant in relation to:

        1. any complaint or request made in connection with Personal Data, including by providing the Merchant with full details of the complaint or request;
        2. any request made under the PDPA including a data access request, whereby it shall ensure that it meets the prescribed time periods set out in the PDPA and acts in accordance with the Merchant's reasonable instructions; and
        3. any other reasonable request of the Merchant including a request for any Personal Data held by GKASH.
      3. Pursuant to the PDPA, the Merchant hereby acknowledges that it is required to and hereby undertakes to inform and obtain consent of its Customers with regards to the disclosure of any form of the Customer's personal data to GKASH for the purposes of GKASH carrying out its Service for the Merchant.
      4. The Merchant hereby agrees that it shall indemnify the GKASH against any costs, loss, or damage which are incurred (whether direct or indirect) by GKASH by reason of the contravention of this Clause 15.

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