Term & Condition - Swipe
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Terms & Conditions.

For merchants subscribing to the services of Swipe Malaysia Sdn Bhd.

Last Updated: 17th February 2022

Welcome to SWIPE MALAYSIA SDN BHD (hereinafter referred to as SWIPE) The terms and conditions (“T&C”) set out below is a contract between the Merchant and SWIPE and it governs any merchant (who has the legal capacity to enter into contract under the Malaysian law) or authorised person/corporate representatives of a registered SWIPE subscribing to the Services (“Merchant”) use of the Merchant Account on SWIPE’s platform. Merchants are advised to read the T&C carefully before agreeing to this T&C as it affects their rights and liabilities under the Malaysian law.

Enclosed below are the T&C.

1. DEFINITIONS

1.1 "Confidential Information" means any confidential, trade secret or proprietary information (which may be business, financial or technical information) disclosed by one party to the other under this T&C that is marked confidential or if disclosed orally designated as confidential at the time of disclosure or that should be reasonably understood to be confidential. All source code and the terms of this T&C will be considered Confidential Information.

1.2 “Chargeback” means any sum claimed from customer or any other loss suffered by SWIPE in relation to a Payment Transaction for whatever reason whether by way of a Merchant related fraud, third party fraud or otherwise.

1.3 "Financial Institution" means banks or financial institutions having business relationships with one or more Financial Processors that have agreed to evaluate and provide Merchant Accounts and payment authorization services to merchants.

1.4 "Financial Processor" means an entity with which SWIPE has established a relationship that performs the back-end authorization and processing of Transactions between the Merchant's Financial Institution and any third party’s financial institution.

1.5 “Holdback” is a portion of the purchase price that is not paid to the merchant at the closing date.

1.6 "MDR" means the discount rate being the fee deductible by and payable to SWIPE in consideration for the payment solution services at the rate specified in Schedule A as a percentage of the Purchase Price;

1.7 "Merchant Account" means SWIPE's online account management tools for Merchant to use the Services.

1.8 “PDPA 2010” means the Personal Data Protection Act 2010 and includes all amendments in relation to it.

1.9 "SWIPE Intellectual Property Rights" means all right, title and interest in and to all,
(i) registered and unregistered trademarks, service marks and logos;
(ii) patents, patent applications, and patentable ideas, inventions, and/or improvements;
(iii) trade secrets, proprietary information, and know-how;
(iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired;
(v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and
(vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services identified herein.

1.10 "Services" means all the services provided by SWIPE to be used by Merchant and includes access to additional SWIPE services.

1.11 "Settlement Period" is the period between transaction date and settlement date which is expressed as T + X whereby T represents transaction date and X shall be the number of Business Days and which shall not be inclusive of the day the Transaction was made, further defined in Schedule A;

1.12 "Software" means the object code version of SWIPE’s client Software Development Kit, HTML code, application programming interfaces (APIs), related documentation and other client software or code which SWIPE provides to Merchant, including updates, to enable SWIPE to provide Services to Merchant. Unless otherwise specified, Software shall not include any source code. The Software is proprietary to SWIPE and is licensed to Merchant under a separate Software Development Kit license agreement at the time of download.

1.13 "Transaction" means the recorded information related to the purchase of goods and services from Merchant by a third party via fpx, debit card or credit card. Specifically, a transaction is an authorization, delayed capture, sale, cancelled, voice authorization or credit data transmission between SWIPE and its back end processors.

1.14 "Website" shall mean the SWIPE’s Website accessible at www.swipego.io or as amended from time to time.

2. SERVICE FEE AND MDR

2.1 The Service Fee shall be in Malaysia Ringgit (MYR) unless agreed otherwise.
(1) Merchant has no right to set-off, or to withhold payments of the Service Fee to SWIPE, in connection with any amounts due to Merchant by SWIPE.
(2) Notwithstanding any provision in the Agreement to the contrary, the payment for Service Fee is exclusive of all taxes.
(3) Reversal and Refund of Payments: For the avoidance of doubt, the provision of the payment gateway services shall not subject to any money-back guarantee, warranties, merchantability, suitability for use or other such policy that the Merchant may provide to the Customer in respect of the Transaction. Any such policy shall be between the Merchant and the Customer. The Merchant’s obligation to be liable for the MDR (and other Service Fees, if applicable) shall not in any way be contingent upon such policy or other business practices of the Merchant.
(4) Service Fee (or any part of it) and the MDR shall subject to change or revision by SWIPE from time to time by giving fourteen (14) days’ notice to the Merchant.

3. MERCHANT ACCOUNT

3.1 By subscribing to the Services, Merchant agrees to establish the Merchant Account with SWIPE for such Services.

3.2 This T&C applies when Merchant uses its Merchant Account or permit / authorize someone else to use its Merchant Account to subscribe to the Services. The T&C also applies even in the event SWIPE were not notified of such permission or authorization.

3.3 Merchant agrees that its administrative contact is fully authorized to act on behalf of Merchant with respect to the Services, including the authority to terminate, transfer (where transfer is permitted by this T&C), or modify the Services with the consent of SWIPE, or purchase additional Services.

4. MERCHANT’S OBLIGATION

4.1 Merchant shall be solely responsible for:
(1) Establishing, hosting and maintenance of the Merchant Account and its connection to the Merchant’s website;
(2) Fulfilling all orders for products and services sold by Merchant to its third party users on the Merchant’s website. This includes transmitting Merchant's registration information and Transaction data to SWIPE servers and ensuring that any data stored or transmitted by Merchant in conjunction with the Services and forenrollment for the Services is accurate, complete and in the form as requested by SWIPE, is securely collected and is not corrupted due to Merchant's systems;
(3) Reviewing the Transactions in its account on a regular basis and notifying SWIPE promptly of suspected unauthorized activity through its Merchant Account;
(4) Establishing and maintaining a commercial banking relationship with one or more Financial Institution(s). The terms of such relationship shall be determined between Merchant and the Financial Institution;
(5) Keeping its login name and password to the Merchant Account confidential at all times. Merchant shall notify SWIPE immediately upon learning of any unauthorized use of its user name or password. In relation to password of the Merchant Account, Merchant shall be solely responsible for:
(i) updating its passwords for access to the Services periodically, and
(ii) creating passwords that are reasonably "strong" in accordance with SWIPE's requirements. (For your information, a "strong" password is at least six characters long, does not contain all or part of the users account name, and contains at least three of the four following categories of characters: uppercase characters, lowercase characters, base 10 digits, and symbols found on the keyboard (such as !, @, #). Strong passwords should be generated in such a way that knowledge of one does not lead to knowledge of another);
(6) Ensuring that the goods and services sold are not prohibited under the laws of Malaysia;
(7) Maintaining commercially reasonable business practices in conjunction with use of the Services, collecting, storing and transmitting its customer data in a secure manner and protecting the privacy of its customer data. Merchant shall comply with SWIPE's requests for reasonable action on Merchant's part, to the extent necessary, to maintain security and integrity of the Services;
(8) Updating to the most current software version and security updates and patches necessary to properly operate the Services and keeping all Merchant enrollment and payment information current and updated on the Merchant Account; and

4.2 Merchant agrees, and hereby represents and warrants that Merchant shall: (1) use the Services in accordance with the applicable user guides; and (2) not use or permit others to use information obtained through the use of the Services for any purpose other than in conjunction with the Services and in a manner described in this T&C.

4.3 Except as otherwise set forth herein, all SWIPE Intellectual Property Rights are owned by SWIPE or its licensors. Therefore:
(1) Merchant agrees to make no claim of interest in or ownership of any such SWIPE Intellectual Property Rights.
(2) Merchant acknowledges that no title to the SWIPE Intellectual Property Rights is transferred to Merchant, and that Merchant does not obtain any rights, express or implied, in SWIPE or its licensors' service, other than the rights expressly granted in this T&C. To the extent that Merchant create any Derivative Work (any work that is based upon one or more pre-existing versions of a work provided to Merchant, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such pre-existing works may be recast, transformed or adapted) such Derivative Work shall be owned by SWIPE and all existing and future copyright and other right, title and interest in and to each such Derivative Work, are assigned to, and shall automatically vest in, SWIPE.
(3) SWIPE shall have no obligation to grant you any right in any such derivative work.
(4) Merchant shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Services or any components thereof, or otherwise apply any procedure or process to the Services or components thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings or any algorithm, data, process, procedure or other information contained therein.
(5) Merchant shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Services or components thereof.

5. SWIPE'S OBLIGATIONS

5.1 SWIPE agrees to:
(1) provide to Merchant the Services for which Merchant enrolls and pays the applicable fees, including without limitation the transmission of Transaction information to Financial Processors, and
(2) provide Merchant with access to standardized reports regarding Merchant's Transactions processed using the Services and certain reporting tools to assist Merchant in accounting activities.
(3) grants to Merchant the right to access and use the Services in accordance with this T&C.

5.2 SWIPE is not bound by nor should Merchant rely on any representation by:
(1) any agent, representative or employee of any third party that Merchant may use to apply for the Services; or
(2) in any information posted on SWIPE’s website which is of a general informational nature. For example, rates calculated for each transaction will depend on the type of transaction, currency accepted by SWIPE, and the method of payment.
(3) For the avoidance of doubt, no employee, contractor, agent or representative of SWIPE is authorized to alter or amend this T&C unless such change is done in accordance to this T&C.

5.3 With regards to amendments and updates of the T&C:
(1) SWIPE may amend and update the T&C (which includes modifying the Services fees or payment terms and to change part of the Services) at any time by posting a revised version on SWIPE’s website or upon electronic or written notification to Merchant.
(2) Such amendment will be binding and effective 30 days after SWIPE had posted it on SWIPE’s website or upon notification sent to Merchant.
(3) In the event any Merchant do not agree to the amendments, such Merchant may terminate its relationship with SWIPE by providing SWIPE with notice as set forth in this T&C. Notice of such termination will be effective upon SWIPE’s process of the said termination. Any fees already paid by Merchant are non- refundable. Merchant acknowledges that there may be additional charges upon termination and agrees to such charges.
(4) Merchant agree to periodically review SWIPE’s website for the current version of this T&C.
(5) By continuing to use SWIPE after any revision to this T&C or any revision in Services, Merchant is deemed to agree to the revised T&C.

5.4 With regards to secure transactions:
(1) SWIPE has implemented and shall maintain security systems for the transmission of Merchant's Transactions, consisting of encryption and firewall technologies that are understood in the industry to provide adequate security for the transmission of such information or Transaction over the internet.
(2) SWIPE does not guarantee the security of the Services or Transaction data.
(3) SWIPE shall not be responsible in the event of any infiltration of its security systems provided that SWIPE has used commercially reasonable efforts to prevent any such infiltration.
(4) Merchant further acknowledges and agrees that Merchant, and not SWIPE, is responsible for the security of Transaction data or information or any other information stored on Merchant's servers.
(5) SWIPE shall not be responsible for any third party's servers. 5.5 SWIPE shall provide the technical support services to Merchant, specific to the support package selected by Merchant during enrollment. The standard technical support descriptions for the Services applicable to Merchant shall be posted at SWIPE’s website.

6. PRIVACY

6.1 The PDPA 2010, which regulates the processing of personal data in commercial transactions, applies to SWIPE and for the purpose of this written / electronic notice, the terms "personal data" and "processing" shall have the meaning prescribed in the PDPA 2010.

6.2 This T&C serves as a written /electronic notice to inform Merchant that its personal data is being processed by or on behalf of SWIPE. By agreeing to this T&C, Merchant also agrees for SWIPE to use its personal data for the Purposes as described below.

6.3 The personal data processed by SWIPE may include your name*, contact details*, email address*, username* and password*.

6.4 SWIPE will process Merchant’s personal data, including any additional information Merchant may subsequently provide, for the following purposes ("Purposes"):
(1) fulfilling SWIPE and Merchant’s contractual obligations under the T&C;
(2) to communicate with Merchant;
(3) to analyse the sales or marketing data;
(4) to manage Services including customer services and billing;
(5) to conduct research to develop and improve the Services;
(6) to conduct surveys to determine use and satisfaction with SWIPE;
(7) to generate statistics in relation to SWIPE’s website;
(8) to promote and market special offers and other services to Merchant;
(9) to provide Merchant with information on products, events or services that might be of interest to Merchant. Merchant may unsubscribe to this promotional notification accordingly;
(10) to personalize the advertising and content in respect of SWIPE’s website;
(11) to facilitate data processing services by SWIPE;
(12) any purpose which are related to any of the above purposes; and
(13) any other purpose which SWIPE deems fit. 6.5 Merchant’s personal data shall be collected from the information provided by Merchant to SWIPE on SWIPE’s website.

6.6 Merchant may access and amend its personal data through the Merchant Account or by informing to SWIPE in writing. SWIPE may refuse to comply with Merchant’s request for access or correction to its personal data under the PDPA 2010 and if SWIPE refuses to comply with such request, SWIPE will inform Merchant of its refusal and reason(s) for such refusal.

6.7 Merchant’s personal data may be disclosed to related and/or associated companies of SWIPE, its licensees, business partners and/or service providers.

6.8 SWIPE’s privacy statement for the Services shall be published on its website and is incorporated herein by reference. The privacy statement sets forth Merchant’s and SWIPE’s rights and responsibilities with regard to Merchant’s personal information. Merchant agrees that SWIPE may in its sole discretion, modify its privacy statement. SWIPE will post such revised statement on its website. Merchant agrees to monitor SWIPE’s website periodically to be notified of such revisions. By using SWIPE’s Services after any modifications to the privacy statement, Merchant is deemed to have agreed to these modifications. Merchant acknowledge that if it does not agree to any such modification, Merchant may terminate the Services pursuant to the terms of this T&C.

6.9 Merchant acknowledges and agrees that in the course of using the Services, SWIPE will capture certain transaction and user information ("Data").

(1) In relation to the above, Merchant agrees to the following:
(a) to provide SWIPE, and SWIPE shall capture, only the Data that is required by the Software and necessary for SWIPE to provide the Services; and
(b) to provide such notice and obtain such consent with regard to any third party personal data Merchant supplies to SWIPE in future. SWIPE shall not be responsible for any consequences resulting from Merchant’s failure to provide notice or receive consent from such individuals nor for Merchant providing outdated, incomplete or inaccurate information.

(2) Merchant represents and warrants that Merchant has provided notice to, and obtained consent from, third party individuals whose personal data Merchant supplied to SWIPE as part of the Services with regards to:
(a) the purposes for which such third party's personal data has been collected;
(b) the intended recipients or categories of recipients of the third party's personal data;
(c) which parts of the third party's data are obligatory and which parts, if any, are voluntary; and
(d) how the third party can access and, if necessary, rectify the data Merchant holds about them.

(3) In relation to the above, SWIPE agrees to the following: (a) to use the Data in its personally identifiable form only as necessary to complete the requested transaction which includes, among others: (i) as necessary to perform the Services contemplated in this T&C (including distributing the Data to third parties providing services requested by Merchant); (ii) to maintain the Data as long as necessary or as required by law and used internally for record keeping, internal reporting, and support purposes; (iii) to compile and disclose Data in the aggregate where individual Merchant Data is not identifiable, including without limitation, calculating Merchant averages by region or industry; and (iv) to provide the Data as required by law or court order, or to defend SWIPE's rights in a legal dispute.
(b) SWIPE shall not disclose the Data to third parties or use the Data, except in accordance to this T&C.

7. WARRANTY; DISCLAIMER

7.1 SWIPE represents and warrants that:
(1) it has all requisite authority to enter into and carry out this T&C;
(2) all corporate action on the part of SWIPE, its officers, board of directors and shareholders necessary for the performance of its obligations under this T&C have been obtained.

7.2 Except as expressly set forth above and to the extent permitted by applicable law:
(1) SWIPE and its licensors, as applicable, make no warranty of any kind, express, implied or statutory, regarding the Services or software, to the maximum extent permitted by law.
(2) All such conditions and warranties, including without limitation the implied warranties of merchantability, fitness for particular purpose and non-infringement are hereby expressly disclaimed by SWIPE and its licensors, except any implied condition or warranty the exclusion of which would contravene any statute under Malaysian law or cause any part of this clause to be void ("Non-Excludable Condition").
(3) SWIPE's liability to Merchant for breach of any Non-Excludable Condition is limited, at SWIPE's discretion, to refunding the price of the Services in respect of which the breach occurred or to providing those Services again.
(4) Merchant acknowledges that neither SWIPE nor its licensors have represented or warranted that the Services will be uninterrupted, error free or without delay or without compromise of the security systems related to the Services or that all errors will be corrected.

7.3 Merchant represents and warrants that: (1) it has all requisite authority to enter into and carry out this T&C;
(2) all corporate action on the part of Merchant, its officers, board of directors and shareholders necessary for the performance of its obligations under this T&C has been obtained;
(3) This T&C constitutes a valid and legally binding obligation, enforceable against Merchant in accordance with the terms hereof; (4) if Merchant is a corporation, then it is a corporation in good standing in its jurisdiction of incorporation;
(5) it has read and understood the entire T&C and agrees to be bound thereby, and it has been represented by counsel of its own choosing;
(6) except as expressly set forth herein, no representations of any kind or character have been made to induce it to agree to this T&C;
(7) It shall comply with all applicable privacy, consumer and other laws and regulations with respect to its:
(a) provision, use and disclosure of the Data;
(b) dealings with the users providing the Data; and
(c) use of the Services

8. INDEMNIFICATION

8.1 For the avoidance of doubt, this section is subject to the terms of Section 8.

8.2 Either party will defend, indemnify, save and hold harmless the other party and its officers, directors, agents, affiliates, distributors, franchisees and employees of the other party from any and all third party claims, demands, liabilities, costs or expenses, including reasonable legal fees, resulting from the indemnifying party's material breach of any duty, representation or warranty of this T&C.

8.3 A party's right to indemnification under this T&C ("Indemnified Party") is conditioned upon the following:
(1) prompt written / electronic notice to the party obligated to provide indemnification ("Indemnifying Party") of any claim, action or demand for which indemnity is sought;
(2) control of the investigation, preparation, defense and settlement thereof by the Indemnifying Party; and
(3) such reasonable cooperation by the Indemnified Party, at the Indemnifying Party's request and expense, in the defense of the claim.
(4) The Indemnified Party shall have the right to participate in the defense of a claim by the Indemnifying Party with counsel of the Indemnified Party's choice at the Indemnified Party's expense.
(5) The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry of any judgment in court that makes any admissions in the Indemnified Party's name or imposes any liability upon the Indemnified Party.

9. LIMITATIONS ON LIABILITY

9.1 Merchant acknowledges that SWIPE is not a financial or credit reporting institution. 9.2 SWIPE is responsible only for providing data transmission to effect or direct certain payment authorisations for Merchant and is not responsible for the results of any credit inquiry, theoperation of websites of Internet Service Providers (“ISP") or Financial Institution or the availability or performance of the Internet, or for any damages or costs Merchant suffers or incurs as a result of any instructions given, actions taken or omissions made by Merchant, Merchant's financial processor(s), Merchant's Financial Institution or any ISP.

9.3 SWIPE’s liability (including liability for negligence) arising out of this T&C shall not exceed the fees paid to SWIPE by Merchant hereunder during the twelve (12) month period immediately preceding the event which gave rise to the claim for damages.

9.4 In no event will SWIPE or its licensors have any liability (including liability for negligence) to Merchant or any other party for any lost opportunity or profits, costs of procurement of substitute goods or services, or for any indirect, incidental, consequential, punitive or special damages arising out of this T&C, under any cause of action or, and whether or not SWIPE has been advised of the possibility of such damage. Notwithstanding the above, the limitations set forth above shall be enforceable to the maximum extent permitted by applicable law.

9.5 SWIPE shall not be liable for loss of profits or any special, incidental, indirect, or consequential, or punitive damages (including without limitation damages for loss of data or loss of business) arising out of or in connection with its website, the Services, or this T&C (however arising, including negligence), to the extent prohibited by law.

9.6 SWIPE shall not be held liable in any manner whatsoever in the event there is a dispute between the Merchant and any of the Customer, unless it can be proven by the Merchant that such dispute arose, directly, from the negligence, fraudulent act, default or breach and/or omissions by SWIPE in the provision of the payment gateway service under this Agreement.

9.7 In addition, to the extent permitted by applicable law, Merchant agree not to hold SWIPE (including related and/or associated company to SWIPE, and its (and their respective) officers, directors, agents, employees, and suppliers responsible and liable for any damages or losses (including loss of money, goodwill, reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:
(1) Merchant use of or inability to use SWIPE’s website or SWIPE Services;
(2) delays or disruptions in the Website and SWIPE’s Services;
(3) viruses or other malicious software obtained by accessing SWIPE’s website or Services or any website or service linked to SWIPE’s website or SWIPE’s Services;
(4) glitches, bugs, errors, or inaccuracies of any kind in or on the website or SWIPE’s Services or in the information and graphics obtained from them;
(5) the content, actions, or inactions of third parties;
(6) a suspension or other action taken with respect to Merchant Account;
(7) any loss as a result of risks associated with online trading, including software and hardware failure latent defect, loss of data, delays, failure, errors, omissions, or losses of transmitted information or instructions, power outages, internet failure, hackers, denial of service (DoS) attacks, viruses, or other contaminating or destructive properties;
(8) information sent over the internet may not be completely secure and the internet and related online systems may not function at all times. SWIPE is not responsible for any loss or damages Merchant may incur if a third party obtains access to Merchant’s confidential information transmitted over the Internet;
(9) Merchant’s need to modify practices, content, or behavior, or its loss of or inability to do business as a result of changes to this T&C or SWIPE’s policies.

9.8 SWIPE reserves the right to modify its policies and this T&C at any time. SWIPE will not be in breach of this T&C or otherwise liable for any loss suffered or incurred as a result of any delay in performance or any non-performance of any obligations under this T&C (and, where relevant, the time for performance will be extended accordingly) if and to the extent that the delay or non-performance is owing to Force Majeure or neglect, serious fault or willful misconduct on the part of Merchant including any failure to keep Merchant’s password secure and any failure to comply with this T&C or associated policies.

10. HOLDBACK

10.1 In the event that any of the Transaction is suspected to be fraudulent or illegal transaction, SWIPE reserves the right to retain the sum and no payout of any sum or MDR should take place. The amount being held back will be kept for one hundred and eighty (180) days or until the dispute resolved (whichever is later).

10.2 In the event that the Transaction disputed successfully against the Merchant, by the Customer, the Merchant shall refund (only the charge-back amount) to the Customer. In the event the Customer fails to dispute a payment successfully, the amount will be released back to the Merchant as soon as practicable.

11. CHARGEBACK AND REFUND

11.1 In the event a claim for Chargeback is made and SWIPE is unable to recover the Chargeback, Merchant undertakes to pay SWIPE the full amount of the Chargeback and indemnify and hold harmless SWIPE from and against all and any costs, charges, expenses or liabilities of any nature whatsoever incurred directly or indirectly in connection therewith.

11.2 SWIPE may, at its absolute discretion, and at any time without notice nor assigning reason thereof, set-off, uplift, consolidate and/or combine accounts or transfer any monies standing to the credit of the Merchant’s account of whatever description and wherever located for the purpose of claiming the Chargeback or towards the reduction or discharge of any other sums due to SWIPE from the Master Merchant.

11.3 Upon cancellation by customer, money shall be refunded to the customer subject to Merchant’s consent and customer’s payment of standard banking charges.

12. DISPUTE RESOLUTION

12.1 In the event of any dispute of any Transaction raised by the Merchant, SWIPE shall be available during Business Days and Business Hours. Each Merchant can contact their respective designated service account manager via phone or email or contact SWIPE’s general contact number or via an email at [email protected]

12.2 A service level agreement (SLA) for purpose of resolving the dispute raised shall be as follows:-

(1) SWIPE shall at its best effort, provide initial response to any general questions and queries within twenty-four (24) hours; and
(2) any specific transaction disputes, refund and chargeback queries (only applicable to credit card processing), SWIPE shall endeavour to resolve such dispute within seven (7) working days from the date of the initial response from SWIPE, provided always that the Merchant shall cooperate fully with all requests by SWIPE including respond within the timeframe given and submission of any supporting documents from Merchant.

12.3 For the avoidance of doubt, Merchant shall follow the following dispute resolution process for any general issues or disputes:-

(1) Merchant calls or email SWIPE at a given address;
(2) SWIPE’s service account manager will perform first level checking on the issue or dispute to determine the nature and severity level of the issue or dispute;
(3) if service account manager is not able to resolve the issue or dispute, such issue will be forwarded to the SWIPE operations team for second level checks;
(4) if the operations team is unable to resolve the issue or dispute, it will be routed to the respective SWIPE technical support team depending on the nature of the issue for resolution; and
(5) any resolution will be routed back to service account manager to contact Merchant.

12.4 Procedures for chargeback Dispute (Not applicable for e-wallet transaction) The chargeback process will be initiated by the Customer through the Issuer and to Merchant’s acquiring bank. If the transaction is deemed valid by the Merchant, Merchant will be required to submit additional supporting documents or information to SWIPE. The Issuer then decides, based on the information, to accept or decline the chargeback. For the avoidance of doubt, SWIPE shall assume the role of a merchant acquirer). As the Issuer represents the cardholder (i.e. customer) in the process of chargeback, and SWIPE merely as the acquirer which enables the Merchants to accept payments via payment gateway services, SWIPE shall only be the intermediary between Issuer and Merchants and hold no legal and financial responsibility in a chargeback dispute. Merchant acknowledge and agree that it shall be fully and solely accountable for liaising with the Issuer and shall compensate SWIPE for any assistance or liability it has incurred as a result of any claims made by any other party.

12.5 Procedure for unresolved dispute If disputes are unresolved between Customer and Merchant through the chargeback process, either Party may re-submit chargeback with additional information from either party (i.e. cardholder or merchant). The Parties agree that this is a mandatory step prior to proceeding to arbitration or court for resolution. In the event of failure of this second resubmission, the aggrieved party may bring such dispute to the court or arbitration. In such case, Merchant hereby acknowledges that SWIPE shall not be the party be involved or be brought in such proceedings and shall strictly be between Merchant and the Customer. Merchant shall indemnify SWIPE in the event of SWIPE suffers any loss or damages (including any legal fees and costs) directly or indirectly arising out of its breach of this clause.

12.6 Refund Subject to the terms by the individual Issuer, SWIPE shall at its sole discretion, elect to refund any MDR. In the event of any conflicting provisions between the terms imposed by the Issuer and SWIPE, SWIPE’s discretion in this regard shall prevail. SWIPE will not be required to enquire or investigate further on the validity of such refund. Merchant undertakes to resolve any disputes on the refund with the Customer and shall indemnify SWIPE for any claims made by any third party as a result such refund.

13. TERM of T&C AND TERMINATION

13.1 The effective date of this T&C will commence on either (whichever is the later):
(1) the date Merchant accepts the terms of this T&C, or
(2) the date that Merchant's account is activated for live Transactions;
and will continue for a period of ONE (1) year, unless terminated earlier or suspended according to the provisions of this T&C.
13.2 This T&C will thereafter automatically renew for successive twelve (12) month terms, unless either party gives the other party written or electronic notice, in accordance with the terms herein, of its intention not to renew this T&C, at least thirty ( 30) days prior to the end of the then-current term or renewal term if termination is by SWIPE.
13.3 Any renewal of Merchant’s Services is subject to SWIPE’s then-current terms and conditions, successful completion of any applicable authentication procedure, if any, and payment of all applicable service fees at the time of renewal. Additional payment terms may apply to the Services which Merchant purchases.
13.4 Either party hereto may, at its option, and without notice, terminate this T&C immediately, should the other party hereto:
(1) admit in writing its inability to pay its debts generally as they become due;
(2) make a general assignment for the benefit of creditors; (3) institute proceedings to be adjudicated a voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; (4) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (5) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (6) Have a decree entered against it by a court of competent jurisdiction appointing a receiver liquidate, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such party's property or providing for the liquidation of such party's property or business affairs.

13.5 Merchant may terminate this T&C upon prior written notice of 3 (three) months to SWIPE by notifying SWIPE's customer support electronically or in writing. Merchant shall be responsible for the payment of all fees due and payable through the effective date of termination. Termination requests for non-SWIPE third party services may not be made through SWIPE. Merchant must instead contact such third parties directly to cancel such services.

13.6 Notwithstanding the above sections on termination, SWIPE may suspend Merchant's access to the Services or terminate this T&C as follows:
(1) Following ten (10) days prior electronic or written notice (such as an overdue invoice) if:
(a) Merchant breaches this T&C,
(b) perpetrates fraud,
(c) causes or fails to fix a security breach relating to the Services,
(d) fails to comply with SWIPE's best practices requirements for security management or to respond to any inquiry from SWIPE, concerning the accuracy or completeness of the information Merchant is required to provide pursuant to this T&C,
(e) if SWIPE reasonably suspects fraudulent activity on Merchant's payment services account, (if such breach is not cured within such 10-day period),
(f) in the event that certain third party licenses or access to third party components of the Services are terminated, or
(g) non-payment of invoice; or
(2) Immediately, without prior notice, if SWIPE reasonably believes Merchant's breach compromises the security of the Services in any material fashion, if fraudulent Transactions are being run on Merchant Account, or Merchant's financial processor or Financial Institution with which Merchant has a merchant account requires such termination or suspension.

13.7 The effect of termination are as follows:
(1) SWIPE will cease providing the Services.
(2) If termination of this T&C is due to Merchant’s default hereunder, Merchant shall bear all costs of such termination, including any reasonable costs SWIPE incurs in closing Merchant Account.
(3) Merchant agrees to pay any and all costs incurred by SWIPE in enforcing Merchant’s compliance with this Section.
(4) Upon termination in accordance to this T&c, Merchant’s right to use the Services, and any other rights granted hereunder, shall immediately cease, and Merchant shall destroy all copies of materials provided to Merchant.
(5) Each party will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except that any termination of this T&C shall not relieve SWIPE or Merchant from any liability arising prior to the termination of this T&C.
(6) To the extent permitted by applicable law, Merchant agree that upon termination for any reason, SWIPE may delete all information relating to Merchant’s use of the Service.
(7) Notwithstanding the foregoing, Merchant's obligations to pay all fees due will survive any termination of this T&C.

13.8 If Services are suspended or terminated by SWIPE due to lack of payment by Merchant, reinstatement of Services shall be subject to Merchant paying SWIPE:
(1) set-up fees, at SWIPE's then-current rates; and<
(2) all past due annual or monthly fees and Transaction fees, as applicable.

14. CONFIDENTIALITY

14.1 Confidentiality obligations of each party includes:
(1) Each party shall:
(a) shall not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this T&C and for purposes of performing this T&C;
(b) shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance;
(c) agrees to use the other party's Confidential Information only for the purpose of its performance under this T&C; and
(d) in addition, the receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects whichembody Confidential Information and which are provided to the receiving party hereunder.

14.2 The above confidentiality obligations do not apply to information that:
(1) is in or enters the public domain without breach of this T&C,
(2) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation,
(3) the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information,
(4) is disclosed with the written approval of the disclosing party, or

14.3 Notwithstanding the above confidentiality obligations, each party may disclose Confidential Information of the other party:

(1) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or
(2) on a "need-to-know" basis under an obligation of confidentiality substantially similar in all material respects to those confidentiality obligations in this T&C to its legal counsel, accountants, consultants, banks and other financing sources.

15. MISCELLANEOUS TERMS

15.1 Force Majeure (Events Beyond the Parties' Control):
(1) Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder, except for Merchant's payment obligations hereunder, due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this Section shall give the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof, and
(2) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided, however, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, either party may immediately terminate this T&C.

15.2 Entire T&C and Modification: The terms in this T&C constitute the entire terms and conditions between SWIPE and Merchant regarding its subject matter and its terms supersede any prior or simultaneous agreement, terms, negotiations, whether written or oral, or whether established by custom, practice, policy or precedent, between the parties hereto. Except as otherwise provided for herein, any waiver, modification, or amendment of any provision of this T&C will be effective at the time posted on the website. Merchant acknowledges and agrees that in the event a purchase order ("PO") contains additional terms, provisions or language ("PO Terms"), those PO Terms shall be null and void and the terms of this T&C shall prevail.

15.3 Severability: In the event that any provision of this T&C shall for any reason be held by a court illegal, unenforceable or invalid in any respect under the laws of Malaysia, such illegality, unenforceability or invalidity will not render this T&C unenforceable or invalid as a whole, and shall be deemed deleted and the remaining provisions hereof shall not in any way be affected or impaired thereby and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such illegality, unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

15.4 No Assignment: Merchant may not assign this T&C without the prior written consent of the SWIPE.

15.5 Governing Law and Jurisdiction: This T&C will be governed by and construed in accordance with the laws of the Malaysia. Each party consents to the exclusive venue and jurisdiction of the court in Malaysia for any dispute arising out of or related to this T&C. The parties acknowledge and agree that this T&C is executed and performed in Malaysia. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.

15.6 Dispute Resolution: Any dispute or controversies between the Parties arising out of this Agreement shall be first discussed between the senior management of the Parties. In the event of no resolution within 30 days from the date of the dispute notice, either Party may refer such dispute and controversies exclusively to the Court of Malaysia. 15.7 Export Restrictions: Merchant acknowledges and agrees that it shall not import, export, or re- export directly or indirectly, any commodity, including Merchant's products incorporating or using any SWIPE Services in violation of the laws and regulations of any applicable jurisdiction.

15.8 Notice: Except as otherwise expressly stated in this T&C, all notices to SWIPE shall be in writing and delivered, via courier or certified or registered mail or electronic mail, to SWIPE, Attention: [email protected] or any other address provided by SWIPE. All notices to Merchant shall be delivered to Merchant’s mailing address or e-mail address as provided in Merchant Account’s information, as updated by Merchant pursuant to this T&C. Unless Merchant chooses to opt-out of receiving marketing notices, Merchant authorizes SWIPE to notify Merchant as SWIPE’s customer, via commercial e-mails, telephone calls and other means of communication, of information that SWIPE deems is of potential interest to Merchant, including without limitation communications describing upgrades, new products and services or other information pertaining to the Services or other SWIPE offerings relating to Internet security or to enhancing Merchant’s identity on the Internet. Notwithstanding the above, Merchant shall not have the right to opt-out of service or support notices relating to the Services, including without limitation, notices of service modifications, security, performance issues or technical difficulties.

15.9 Headings: The section headings appearing in this T&C are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.

15.10 Independent Contractors: Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.

15.11 Non-Disparagement; Publicity: During the term of this T&C, neither party will disparage the other party or the other party's trademarks, websites, products or services, or display any such items in a derogatory or negative manner on any website or in any public forum or press release. Unless otherwise stated herein, neither party shall issue a press release or otherwise advertise, make a public statement or disclose to any third party information pertaining to the relationship arising under this T&C, the existence or terms of this T&C, the underlying transactions between SWIPE and Merchant, or referring to the other party in relation to this T&C without the other party's prior written approval.

15.12 Costs: Except as expressly stated in this T&C, each party shall be solely responsible for the costs and expenses of performing its obligations hereunder.

15.13 Tax: (1) It is hereby agreed that all amounts payable under this T&C is exclusive (unless otherwise stated) of SST which might be chargeable in connection with that amount. If any such tax applies, Merchant shall pay such amount to SWIPE or the authorized party.
(2) Where the terms of this T&C require Merchant to reimburse SWIPE or its authorized agent for any costs or expenses, Merchant agrees to pay and indemnify SWIPE or its authorized agent against all such tax(es) incurred by SWIPE or the authorized party.

15.14 Currency: Any and all monetary amounts displayed in the SWIPE website are in Ringgit Malaysia. SWIPE itself does not charge currency conversion fees and shall not be liable for any fees, charges, or conversion rates on international transactions which may be charged by credit card issuers, Financial Institutions, or banks.

15.15 SWIPE Mobile Application: If Merchant uses SWIPE’s mobile application, Merchant shall be responsible for any fees that its phone service provider charges for such use, including fees for SMS or data usage. Merchant’s phone service provider is not the provider of SWIPE Services.

15.16 Anti Money Laundering, Anti Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Act 613) of Malaysia: (1) Merchant shall ensure that it has never and shall not:
(a) engage, directly or indirectly, in a transaction that involves proceeds of any unlawful activity; or
(b) acquire, receive, possess, disguise, transfer, convert, exchange, carry, dispose, use, remove from or brings into Malaysia proceeds of any unlawful activity; or
(c) conceal, disguise or impede the establishment of the true nature, origin, location, movement, disposition, title of, rights with respect to, or ownership of, proceeds of any unlawful activity; and
(2) Merchant confirm to SWIPE that it will not be involved in any money laundering activity/ies within the meaning of Section 3 of the Anti Money Laundering, Anti Terrorism Financing and Proceeds of Unlawful Activities Act 2001 of Malaysia.
(3) SWIPE shall comply with the any regulatory requirement to report transactions that exceeds a specific threshold amount, is suspicious in nature and there are reasonable grounds the proceeds are generated from an unlawful activity, to the Financial Intelligence Unit in Bank Negara Malaysia without alerting Merchant on the matter.

15.17 Website Content: Although the website is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the website are available to all persons or in all geographic locations, or appropriate or available for use outside of Malaysia. SWIPE reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the website is void where prohibited. If Merchant chooses to access the Website from outside Malaysia, Merchant does so on its own initiative and Merchant is solely responsible for complying with applicable local laws.