MYGATE’S STANDARD TERMS AND CONDITIONS OF BUSINESS
1.1 In this Agreement unless the context clearly indicates a contrary intention, the words herein below defined shall have the meanings assigned to them, and similar expressions shall bear corresponding meanings:
1.1.1 “Activation” means the enabling of the MyGate software on the designated system by MyGate to enable the Subscriber to operate the MyGate application processing interface in terms of this Agreement;
1.1.2 “Agreement” means collectively the Schedule and these terms and conditions of business;
1.1.3 “Charges” means the Setup Fee, Monthly Service Charges, Usage Charges and any other charges pertaining to the provision of MyGate Services, and other services howsoever described, by MyGate to the Subscriber as detailed in the Price List from time to time; and/or as agreed with the Subscriber.
1.1.4 “Setup Fee” means the charge levied by MyGate to the Subscriber for Activation of a Subscriber to the MyGate Services;
1.1.5 “Bank” shall mean the bank to which MyGate is sending the credit card transaction for authorization and settlement on behalf of the Subscriber;
1.1.6 “Subscriber” means that party whose particulars appear on the Schedule;
1.1.7 “MyGate” shall mean MyGate Communications Proprietary Limited, Registration Number 2006/018060/07, a private company registered in accordance with the laws of the Republic of South Africa;
1.1.8 “MyGate Website” means the website available at http://www.mygate.co.za;
1.1.9 “Monthly Service Charges” means the monthly subscription charge levied by MyGate in consideration for the Subscriber’s access to and use of the MyGate Services as detailed in a Price List from time to time;
1.1.10 “Effective Date” means the date on which MyGate accepts the Subscriber’s Order as communicated to the Subscriber in clause 2;
1.1.11 “MyGate Services” means the payment processing services which MyGate makes available to the Subscriber including any of the MyGate payment solutions including Value Added Services, as set out on the MyGate Website;
1.1.12 “Order” means an order placed by a Subscriber as per the Schedule the provision of the MyGate Services;
1.1.13 “Package Option” means any one of the tariff plans under which the MyGate Services are made available to Subscribers, which tariff plans are set out in the Price List and may vary according to the rate of Usage Charges, Value Added Services included and other variables determined by MyGate from time to time,
1.1.14 “Price List” means the schedule on which the charges levied by MyGate as approved are recorded as amended from time to time on prior written notice to the Subscriber which price list is available on request from MyGate;
1.1.15 “Schedule” means the Order or application form section of this Agreement and to which these terms and conditions are attached or printed overleaf;
1.1.16 “Subscriber” means that party whose particulars appear on the Schedule;
1.1.17 ”Usage Charges” means the charges charged by MyGate to the Subscriber for recorded usage of the MyGate Services, as published in the Price List from time to time; ;
1.1.18 “Value Added Services” means the secondary services designated as such by MyGate which are part of the MyGate Services except that they may be provided only to Subscribers under certain Package Options to the exclusion of other Subscribers, or may be provided at additional charges and may be introduced or withdrawn by MyGate at its discretion from time to time, on written notice to the Subscriber;
2 COMMENCEMENT AND TERMINATION
2.1 The Agreement shall commence on Effective Date and except as otherwise provided in the Agreement, shall continue on a month to month basis and unless the Subscriber gives one full calendar month written notice of termination.
2.2 MyGate reserves the right to terminate this Agreement on one full calendar month prior written notice to the Subscriber for any reason whatsoever.
2.3 Notwithstanding the use of agents or other intermediaries by MyGate, the Order by the Subscriber is an offer made by the Subscriber to MyGate and will be considered once received by MyGate. MyGate’s acceptance of the Order (if it does accept) shall be by way of written notice to the Subscriber, upon which this Agreement shall become binding between MyGate and the Subscriber.
2.4 MyGate’s Set Up Fee is non-refundable and will be charged in the first month after which this Agreement becomes effective; irrespective of Subscriber ID being issued.
3 INTEGRATION AND MYGATE SERVICES
3.1 The Order placed by the Subscriber is subject to the approval of MyGate in its reasonable discretion. If MyGate does not approve the Order, it shall not be under any obligation to the Subscriber to give reasons for its decision unless the Subscriber requests such reasons.
3.2.1 The MyGate Services can only commence following successful service integration with the Subscriber’s website and/or applications. MyGate does not provide integration services as part of the MyGate Services and the Subscriber shall be responsible for integration of the MyGate API. Where applicable, MyGate shall use commercially reasonable endeavours to comply with any supply and/or delivery and/or integration requirements which is recorded in the Order, but shall not be liable to the Subscriber in the event that such supply and/or delivery and/or installation is delayed or cancelled, for whatsoever reason.
3.2.2 MyGate may in its sole discretion refer the Subscriber to a third party service provider to assist the Subscriber with integration, which third party service provider may undertake the integration in its own name and not as an agent of MyGate. MyGate shall not be liable or responsible for any acts of such third party service provider and the Subscriber assumes full responsibility in this regard.
3.2.3 The Subscriber is responsible for ensuring that its website and/or applications are operational and ready for business and that it complies with all applicable laws..
3.3 The Subscriber shall be responsible for obtaining all necessary approvals imposed by any applicable laws and/or any competent authority and required for the purpose of any such supply and/or delivery and/or installation. and the Subscriber hereby indemnifies MyGate against any claim, loss or liability suffered by MyGate by reason of such approval and authorities not having been properly obtained, whether arising as a consequence of the conclusion or implementation of this Agreement or otherwise. The Subscriber waives all and any claims from whatsoever cause arising against MyGate or any other third party service provider arising out of the provision of the MyGate Services.
3.4 MyGate Services
3.4.1 MyGate provides the MyGate Services as set out more fully on the MyGate Website. MyGate is not a party to transactions between the Subscriber and its customers and the Subscriber acknowledges that it bears the risk in transacting with its customers.
3.4.2 The Subscriber hereby warrants and undertakes in favour of MyGate that the Subscriber shall not use nor allow the MyGate Services to be used for any improper, immoral or unlawful purposes nor in any way which may cause injury or damage to persons or property or an impairment or interruption to the MyGate Services;
3.4.3 The availability of Value Added Services, whether free of charge or in circumstances where a subscription fee is charged, is subject to the reasonable discretion of MyGate and MyGate reserves the right to charge for or withdraw any of the Value Added Services at any time on 30 days prior written notice to the Subscriber. .n their sole discretion.
3.4.4 In the event that MyGate withdraws any of the Value Added Services for which a subscription fee is charged, no further subscription fee will be charged for the period after the withdrawal of the Value Added Service concerned. Where the Subscriber subscribes to a package option that includes provision of Value Added Services free of charge, MyGate shall be entitled, on prior written notice to the Subscriber to vary, discontinue or substitute any such value added service without reducing any of the monthly service charges or providing any refund unless it determines in its sole discretion to do so. The Subscriber’s continued payment of the Monthly Service Charges shall be deemed to be acceptance of the variation of the Value Added Services. If the Subscriber does not agree to such variation, the Subscriber may terminate this Agreement as provided for in paragraph 2.1.
4.1 In consideration for the provision of the MyGate Services, and any other services supplied by MyGate to the Subscriber, the Subscriber shall effect payment to MyGate of the applicable Charges as detailed in the Price List, and whether or not the
4.2 Unless otherwise stated Charges are quoted in Rands.
4.3 In the event of the Subscriber failing to effect payment of any amounts due in terms of this Agreement on the due date, without derogating from MyGate’s rights in terms of clause 7, the Subscriber shall be liable to effect payment of interest to MyGate on the amount at the maximum permissible rate from time to time as set forth in the Prescribed Rate of Interest Act 55 of 1975, as amended, or any other applicable legislation.
4.4 All prices and charges in this Agreement and any Price List are exclusive of VAT and any other applicable tax or duty, the liability for which shall vest with the Subscriber.
4.5 The Subscriber warrants that it understands and agree to the fee structure which can be found on the MyGate Website http://www.mygate.co.za and the Subscriber warrants that it understands and agrees that all transactions sent to the MyGate’s Payment Gateway, whether that are successful or unsuccessful, purchases or refunds, will be charged.
4.6 MyGate shall review the Charges on an annual basis and reserves the right to adjust and increase the Charges no more than once a year with effect from 1 April each year. The increase shall not exceed the 10% (ten percent) of the previous year’s Charges and MyGate shall notify the Subscriber of any increases of future Charges on 30 (thirty) days prior written notice of such increase. The Subscriber’s continued payment of the Charges shall be deemed to constitute the Subscriber’s acceptance of such increase. If the Subscriber does not accept the increase to the Charges, the Subscriber may terminate this Agreement as provided for in paragraph 2.1.
4.7 MyGate will issue its invoices (including value added tax invoices where applicable) directly to the Subscriber’s e-mail and shall not be obliged to provide invoices in any other form, which invoices must be received by the Subscriber within 7 (seven) days of month-end.
4.8 Invoices shall be paid by the Subscriber within 30 (thirty) days from the date of invoice.
4.9 In the event that MyGate requires payment for the MyGate Services provided to the Subscriber to be made by debit order, the Subscriber will commit a breach of this Agreement if the Subscriber:
4.9.1 cancels any such debit orders without the written consent of MyGate; or
4.9.2 changes banking details upon which the debit order relies without giving MyGate prior notification of such change and providing MyGate with the Subscriber’s new banking details.
4.10 The Subscriber hereby authorises MyGate to debit the bank account held by the Subscriber between the first day and last day of the month for the costs owed by the Subscriber in terms of this Agreement.
4.11 MyGate may at any time on reasonable written notice to the Subscriber vary its invoicing and payment procedures and requirements.
4.12 The monthly statement (“bill”) shall be sent by MyGate to the Subscriber at the email address supplied by the Subscriber in the Schedule or in writing to MyGate. It shall be the duty of the Subscriber to check the bill in order to ensure that the contents thereof are correct. Unless a query is raised in respect of the contents of a bill within thirty days from date thereof the contents shall be deemed as correct.
4.13 The Subscriber shall be entitled to migrate from one package option to another be subject to MyGate’s approval in writing in their discretion and subject to MyGate being entitled to levy additional charges for migrations but which charges shall not exceed the amounts approved or fixed by the responsible regulatory authority from time to time.
5.1 If the Subscriber fails to make any payment within 30 (thirty) days from date of the bill, MyGate may (without prejudice to MyGate’s other rights or remedies in law) suspend the MyGate Services until all outstanding amounts payable to it have been paid.
5.2 MyGate may at any time, on written notice to the Subscriber and in any manner whatsoever, immediately suspend the access of a customer of the Subscriber to the MyGate Services in the event that MyGate suspects potential fraud from a customer.
5.3 MyGate reserves the right to require the Subscriber to effect payment of any applicable reconnection charges pursuant to the restoration of MyGate Services suspended in the circumstances contemplated in clause 5.1 and/or 5.2. where the suspension is due to the Subscriber’s fault.
5.4 In the event that the Subscriber’s access to the MyGate Services is suspended, the Subscriber shall still be liable for the Monthly Service Charges during any such period of suspension where the suspension is due to the Subscriber’s fault.
6 LIMITATION OF LIABILITY
6.1 Nothing in the Agreement shall exclude or limit the liability of either party:
6.1.1 for death or personal injury resulting from the negligence of that party or its directors, officers, employees, contractors or agents; or
6.1.2 in respect of fraud or of any statements made fraudulently by that party or its directors, officers, employees, contractors or agents.
6.2 Subject to clause 6.1 above, MyGate shall not be liable to the Subscriber whether in contract (including under any indemnity or warranty), in tort (including negligence), under statute or otherwise for any:
6.2.1 loss of profit;
6.2.2 loss of revenue;
6.2.3 loss of anticipated savings;
6.2.4 loss or corruption of data;
6.2.5 loss of contract or opportunity;
6.2.6 loss of goodwill; or
6.2.7 processing charges; or
6.2.8 borrowing costs; or
6.2.9 integration to MyGate and or other systems or operational costs associated with the Subscriber’s use of the MyGate Services;
6.2.10 expenses incurred by the Subscriber in relation to or in connection with the Subscriber’s website and or the content thereon;
6.2.11 costs associated with Cardholder disputes; or
6.2.12 indirect or consequential loss of whatever nature including any loss of a type described in sub-clauses 6.2.1 to 6.2.11
which could be regarded as indirect or consequential and whether or not reasonably foreseeable, reasonably contemplatable, or actually contemplated by the parties at the time of execution of the Agreement.
6.3 To the extent permitted by law and subject to clause 6.1 and 6.2, MyGate’s maximum liability under or in connection with this Agreement for any claim arising out of contract, delict or otherwise, shall not exceed the Charges paid by the Subscriber in respect of the 12 (twelve) month period preceding the date on which the cause of action arose.
6.4 Subject to clause 6 above the parties agree that MyGate does not accept responsibility to the Subscriber or other third party for any inaccuracies or misrepresentations contained in the transaction data.
6.5 The MyGate Service is provided on an “as is” and “as available” basis and for commercial use only MyGate does not represent or warrant that the Subscriber’s use of the MyGate Services will be secure, timely, uninterrupted or error-free or that the Service will meet the Subscriber’s requirements. For the avoidance of doubt, MyGate does not give any representation or warranty that the MyGate Services will alert the Subscriber to, avert or prevent occurrences of fraudulent use of Cards and the Subscriber acknowledges that it should obtain insurance against such fraudulent behaviour.
6.6 Except as expressly provided in this Agreement, all warranties, conditions, representations or other terms implied by statute or common law are excluded to the fullest extent possible by law.
6.7 Any typographical, clerical or other error or omission in any promotional material or other information issued by MyGate (including information on MyGate’s Websites) shall be subject to correction without any liability on the part of MyGate.
7.1 Should either party breach any material provision of this Agreement, then the aggrieved party will be entitled, without prejudice to any other rights it might have in law:
7.1.1 to claim immediate specific performance of any of the defaulting party’s obligations under this Agreement, with or without claiming damages, whether or not such obligation has fallen due for performance and to require the defaulting party to provide security to the satisfaction of the aggrieved party for the defaulting party’s obligations; or
7.1.2 to cancel this Agreement, with or without claiming damages, in which case written notice of the cancellation shall be given to the defaulting party, and the cancellation shall take effect on the giving of the notice.
7.2 Neither party shall be entitled to cancel this Agreement unless the breach is a material breach. A breach will be deemed to be a material breach if it is capable of being remedied, but is not so remedied within the notice period of 7 (seven) days (“Notice Period”); or it is incapable of being remedied or is not remedied within the Notice Period, and payment in money will compensate for such breach but such payment is not made within the Notice Period.
7.3 The parties agree that any costs awarded will be recoverable on an attorney-and-own-client scale unless the court specifically determines that such scale shall not apply, in which event the costs will be recoverable in accordance with the High Court tariff, determined on an attorney-and-client scale.
7.4 The aggrieved party’s remedies in terms of this clause 7.5 are without prejudice to any other remedies to which the aggrieved party may be entitled in law.
7.5 Either party shall be entitled forthwith on written notice, to terminate this Agreement in the event that the other Party is sequestrated, liquidated, or placed under judicial management, whether provisionally or finally, and whether voluntarily or compulsory.
7.6 Without detracting from any of the other provisions of this clause 7, in the event of a breach of any provisions of this Agreement or the Subscriber prematurely terminating this Agreement and MyGate electing to cancel same, the Subscriber shall be liable to effect payment to MyGate of all the Monthly Service Charges which would have been payable to MyGate up until and including the date of such termination.
8 INTELLECTUAL PROPERTY
8.1 All the content, trade marks, data, information or information contained in any materials or documents (“Documentation”) or used in relation to the MyGate Services, including but not limited to any and all copyrighted works, software, databases, text, graphics, icons, designs, hyperlinks, domain names, information and agreements (“Content”), are the property of or licensed to MyGate and as such are protected from copying and infringement. The Content may not be reproduced, distributed or copied by any means, whether electronically or not, without MyGate’s prior written permission.
8.2 Any and all intellectual property rights subsisting in the Documentation, Content, MyGate Services and MyGate Software or otherwise developed by or on behalf of MyGate, including all patents, rights in inventions, rights in designs, trademarks, trade and business names and all associated goodwill, rights to sue for passing off or for unlawful competition, copyright, moral rights and related rights, rights in databases, topography rights, domain names, rights in information (including know how and trade secrets) and all other similar or equivalent rights subsisting now or in the future in any part of the world, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights for their full term (“Intellectual Property ”), vests in MyGate, its licensors or suppliers, as the case may be, and all rights not expressly granted are reserved.
8.3 Save as expressly set out herein, the Subscriber shall not acquire any right, title, or interest in the MyGate Intellectual Property.
8.4 This Agreement does not grant the either party any rights in connection with the other party’s trademarks. The Subscriber shall not use or alter the MyGate trademarks without MyGate’s prior written consent or do anything which would adversely affect the value of the MyGate trademarks.
8.5 The Subscriber may not use the Intellectual Property in a manner which may place the Intellectual Property at risk of loss or loss of value to MyGate.
9 WAIVER & SEVERABILITY
9.1 Failure by either party to exercise or enforce any right conferred by the Agreement shall not be deemed to be a waiver of any such rights, nor operate so as to bar the exercise or enforcement thereof or of any other right on any later occasion. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement shall remain in full force and effect.
9.2 Each provision of the Agreement is severable and distinct from the other. If a provision of the Agreement is or becomes to any extent illegal, invalid or unenforceable in any jurisdiction, it shall to that extent be deemed not to form part of the Agreement but that shall not affect:
9.2.1 the legality, validity or enforceability in that jurisdiction of any other term of the Agreement; or
9.2.2 the legality, validity or enforceability in other jurisdictions of that or any other provision of the Agreement.
10 DATA PROTECTION & CONFIDENTIALITY
10.1 The Subscriber acknowledges and accepts that MyGate may disclose information to the schemes, acquirers and or third party service providers as is required in connection with the processing of the transactions, including in order to perform fraud checks.
11 FORCE MAJEURE
11.1 Neither party shall be liable to the other or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform any of its obligations, if the delay or failure was due to any cause beyond the party’s reasonable control including (without limitation) flood, fire, acts of terrorism, civil disturbance, acts of any government or authority, revocation of any licence or consent, default of any supplier or sub-contractor, failure of any power supply, theft, malicious damage, strike lock-out or industrial action, or the failure of any electronic communications system of any machine computer data processing system or communication link or by any other circumstance whatever beyond its reasonable control.
12.1 The rights and obligations of the Subscriber in terms of this Agreement may not be ceded or delegated to any unrelated third party without the written consentof MyGate which consent shall not be unreasonably withheld or delayed. The rights and obligations of MyGate in terms of this Agreement may be ceded and delegated by it to any other party without the written consent of the Subscriber.
12.2 MyGate may change the terms and conditions of this Agreement as a result in changes in applicable laws, regulations, the terms and conditions of the licence issued to the Bank and the terms and conditions of any agreement between the Bank and any other party to this Agreement or circumstances or events similar to the aforesaid. MyGate shall notify the Subscriber of any changes as contemplated herein in writing to which such notice shall be received 30 days before any such change.
12.3 This document contains the entire agreement between the parties regarding the matters contained herein, and no other warranties, undertakings and/or representations have been made by MyGate or any purported agent of MyGate.
12.4 No indulgence, leniency or extension of time which MyGate may show to the Subscriber shall in any way prejudice MyGate or preclude MyGate from exercising any of its rights in the future.
12.5 This Agreement and all matters or disputes arising or incidental hereto shall be governed and construed in accordance with the laws of South Africa. The parties consent to the non-exclusive jurisdiction of the High Court of South Africa, Western Cape Division.
12.6 No alteration, cancellation or variation which the Subscriber may be entitled to make to the Schedule shall be of any force or effect unless 60 (Sixty) days written notice of such alteration, cancellation or variation is given to MyGate.
13.1 From time to time MyGate may modify this Agreement by giving not less than 30 days notice in writing to the Subscriber by email and or by publication on the MyGate Web Site. If the Subscriber does not agree with those modifications, the Subscriber should contact MyGate as soon as possible and no later than 15 days from the date of the notification or terminate this Agreement. By continuing to use the MyGate Services after such notifications take effect, the Subscriber has indicated the Subscriber’s acceptance of those modifications.
13.2 MyGate may give less than 30 days’ notice if the modification is as a consequence of legal, regulatory, tax or scheme changes and or other circumstances reasonably beyond MyGate’s control.
13.3 Any written notice may be delivered in person or sent by email to:
13.3.1 the Subscriber at the address shown in MyGate’s records as notified by the Subscriber from time to time; and
13.3.2 MyGate at email@example.com or such other email address as may be notified to the Subscriber from time to time.
13.4 Notices shall be deemed duly given 48 hours after posting by first class post (72 hours if second class and airmail), or immediately if delivered in person or if by email or fax then at the time of transmission if within normal business hours failing which the start of the next business day.
13.5 The Subscriber agree that MyGate may act on email notices or instructions which reasonably appear to emanate from the Subscriber at the address shown in MyGate’s records as notified by the Subscriber from time to time.
13.6 For the purposes of this clause 13, “notice” shall include any request, demand, instruction, communication or other document.