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Merchant Service Agreement

Effective Date: 26th day of January 2022

 

Introduction

The platform accessible through the https://betiku.africa domain and subdomain names (the “Platform”) and the services offered through the Site are provided by Betiku Africa, LLC (hereinafter referred to as “us”, “we” or the “Company”), an entity with registered address at 256 Chapman Road, Newark, 19702 Delaware, USA.

 

  1. General

These Conditions (together with the privacy policy as well as terms and conditions on our site, set out at the time of purchase or in the Estimate (if any)) constitute the entire agreement between the parties and supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions express or implied by statute or otherwise are excluded to the fullest extent permitted by law.

Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right and no waiver by either party of any breach of the contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be effected.

Any dispute arising under or in connection with these Conditions or the provision of the Services shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party in accordance with the provisions of the Arbitration Act 1996.

Delaware State Law shall apply to the Contract and the parties agree to submit to the non-exclusive jurisdiction of Delaware.

 

  1. Access to the Services

a. Eligible individuals

Services are offered to individuals and companies, for facilitating the sale of their creative works. For purposes of these MSA, ‘merchant’ shall be interpreted as any individual or company using the Services for a purpose to conduct a business or commercial activity.

The Services are only applicable to individuals being eighteen (18) years of age or older. By filling out the registration forms and requesting into our Services, you warrant and represent that you have that legal age.

b. Account creation

In order to access the Services, you will need to register and create a personal or company and non-transferable account in the Site (the “Account”). To this end, you must provide true, current, complete, and accurate information, as requested during the registration process, that refers to you. You cannot sign up or otherwise create an account with us on behalf of a third party.

Account ownership is based on the data provided when signing up and, to this end, it is important as mentioned above that all information you have submitted is true, accurate, current, and complete. Note that when you are providing your information and accepting these MSA, you are entering into an agreement with us which described are the obligations we have with regards to each other. If you have problems accessing or logging in into the Services, please visit our Help Center or contact us.

c. Provision of the Services

The Company shall provide the Services to the merchant subject to these Conditions. Any changes to these Conditions shall be notified to the merchant by the Company and deemed to have been accepted unless the contrary is indicated by the merchant in writing within one month. Any changes to the Services proposed by the merchant must be agreed in writing by an authorised manager of the Company.

Note, however, that Accounts for companies and individuals may be subject to prior authentication to ascertain the veracity of the information provided which may come in form of government identification or company registration documents, so access to and use of some functionalities and Services under said Accounts is subject to said requirements.

This section does not preclude your rights as a merchant under section 7 below—if you are using the Services as a merchant, you are entitled to cancel and withdraw from these MSA and the Services under the terms and conditions detailed in that section.

d. Services and third parties service providers

To ensure you are provided with high-quality Services, from time to time we may rely on third party service providers. You understand that those providers may act beyond our reasonable control and that we shall not be held liable for any damages caused by an action or omission attributable to them in such instances.

We, however, will ensure due diligence to protect all merchandise within our care within reasonable limits with your approval.

 

  1. Merchant Obligations

a. Account security and credentials

Accounts are to be used by you or an approved representation of your company, and it is strictly forbidden to share or allow others to use it. You must keep credentials for your Account secured at all times. It is strictly forbidden to share said sets of data with any third parties, or to write them down for recovery purposes.

Should you suspect that your Account or your credentials have been or are being used by a third party, or have been compromised, you must contact us immediately at [email protected] Otherwise, we may attribute all use of your Account to you, and you agree to be responsible for all activities that occur under your Account.

b. Use of your Account and Services

You must use your Account and the Services complying with law and public order. In particular but without limitation, you shall not:

Access the Site, Accounts and/or the Services by any means other than through interfaces provided by us and as otherwise expressly authorized under these MSA;

Avoid, bypass, remove, deactivate, impair, descramble or otherwise tamper the security measures, usage rules or other protection measures implemented by us, our service providers or any third parties to protect the Site, the Accounts or the Services, as well as the restricted features or functionalities available for given categories of Accounts other than the one you are holding, or to attempt to do any of those actions;

Access, tamper with, or use non-public areas of the Service or the Site, the computer systems of the Company, or the technical delivery systems of our providers;

Use any metatags or other hidden text or metadata in the Site or Services, as well as forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;

Use, display, mirror, or frame the Site or Services, any individual element within the Site or Service, the layout and design of any portion of the Service or the Site, or the intellectual property rights and other proprietary rights of the Company;

Attempt to access or search the Services or Site, or scrap or download content from the Services or Site, or otherwise use, upload content to, or create new links, reposts, or referrals in the Services or Site through the use of any engine, software, tool, agent, device or mechanism (including automated scripts, spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by us or other generally available third party web browsers or search engines;

Reverse engineer, decompile or disassemble software used in connection within our Platforms, Site or Services;

Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services or the Site;

Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the Site or the Services, or your access to or use of the Site or Services;

Impersonate or misrepresent your affiliation with any person or entity, as well as stalk or harass other users or third parties, or share or use offensive or pornographic materials;

Activities such as vulnerability scanning, load testing, penetration tests or bypassing our security measures in any intended way are strictly prohibited to be carried out on our platform without our previous written approval;

Use the Services and, in particular, the functionalities aimed at ensuring interaction of the Services and our product to monitor the availability, performance or functionality of our Services or the Site, or for benchmarking or other competitive purposes;

Send any unsolicited or unauthorized electronic commercial communications, chain letters, or other form of non-authorized solicitation; or/and

Otherwise, use the Account, Site or Services in a manner contrary to the rights and legitimate interests of the Company or any other third party, or in any other manner that may tamper, disrupt, overload, or otherwise damage the Site or the Services. You may let us know about any abuse by sending us a mail to [email protected]

For avoidance of doubt, you—or any third party authorized by you—may carry out any action that enables the sale of your merchandise through our range of services or offerings provided by us. Therefore, you understand and agree that we shall not defend, indemnify, or hold you harmless for any and all costs or damages arising from any abuse of our offerings.

c. Materials available in the Services or the Site

The Site and the Services may include information, graphics, text, images, and other materials uploaded by other Account holders or third parties. Said materials are strictly and wholly owned by the owners, we do not claim ownership of same; and their legality, accuracy, and completeness are the sole responsibility of the party that have uploaded them to or provided as part of the Site or the Services. Use of the materials may be subject to intellectual property infringements, and you are responsible to obtain any required licenses or authorizations, and to comply with any licenses or terms and conditions applicable to them.

d. Your contents

We do not claim ownership on the contents you may upload or otherwise use in connection with the Site or Services. However, to ensure we can provide you with the Services or access to the Site, you grant us a worldwide, royalty-free, transferable, sublicensable, non-exclusive, perpetual, irrevocable license under all your intellectual property rights to use, reproduce, distribute, communicate, public perform or display (including, among others, the rights to broadcast and transmit, for exhibitions, 3D modelling or representation and security scanning), transform and modify, and/or adapt your contents in connection with the operation of the Site and/or the Services. You represent and warrant that you have the rights necessary to grant the license hereunder, and that your contents do not infringe the law or third party rights or interests.

You assent to the collection and display of your information in form of marketing (digital or otherwise) to connect with buyers registered on any of our platform networks via our newsletters, social media platforms, magazines and exhibitory materials to aid in fulfilling our service obligations towards you.

Please note that by submitting content (photos or videos) into the Service, said contents are may be processed though our third parties to help us fulfill our obligations. Please evaluate whether you want to share said content under those conditions before signing up on our platform.

e. Third parties’ intellectual property & other proprietary rights

Without prejudice to section 3.b above, you accept not to upload into the Services or the Site, or post, email, transmit, share, or otherwise use, in conjunction with, or related in any manner with the Services or the Site, content for which you do not possess the prior authorization of their titleholders. We are not responsible for said content nor the actions you may take with respect to the content, and you shall not use third party content unless you have first obtained the permission of its owner.

By way of example, you shall not use photographs, music, text, graphics, information, trademarks, trade names, or other content protected under intellectual property rights that are not yours, except when the corresponding owner has expressly given its approval. It is strictly forbidden to use the Services to circumvent the rights of any titleholder upon its intellectual property or other exclusive rights, such as, for instance, providing through the Services links to P2P platforms including infringing materials.

Notwithstanding section 11 below, we may delete at any time any content that breaches this section, without prior notice and accepting no liability for any such deletion.

f. Review of your contents

You acknowledge that, in order to ensure compliance with legal obligations, prevent phishing or fraud, or when unlawful content is reported to us, we may be required by third parties to review certain content submitted by you to determine whether it is illegal or whether it breaches these MSA. We may at our sole discretion modify, prevent access to, delete, or refuse to display content that we believe violates the law or these MSA. However, you acknowledge that we have no obligation to monitor or review any content submitted by you.

g. Obligations vis-à-vis Buyers

Your use of the Services may result in the collection and further processing and analysis by you of information belonging to third parties (the “Buyers”). Any contractual relationship existing with buyers is entered into between the buyer and us so long as such relationship is established on our platform. We are fully responsible for meeting any applicable obligations when contacting buyers and processing their data, such as, without limitation, those under data protection (including informing buyers about the data collection and processing, as well as attending the rights granted to them by law), cookies or e-commerce laws and regulations.

h. Account information

You undertake to submit true, accurate, current, and complete information for the Account creation and product/ merchandise specification, and to notify us from time to time so as to keep said information current and accurate. In particular, when providing details on payment methods used for paying any fees associated with our provision of the Services to you, to make sure that said method is valid and can be used by you.

i. Collaboration with us

You undertake to comply with any instructions or recommendations given by us or by any individual acting on behalf of the Company in connection with the use of the Site, your Account, or the Services.

j. Product Information

It is important that all information you have submitted with regard to products/merchandise listed on any of our platforms is true, accurate, current, and complete down to specifications, and that same are duly available for purchase and that same will be duly updated as an at when due should they no longer be available. Should in case of any fallibility to do so, any costs or expenses that evolve from misrepresentation of goods or materials will be borne by you or company represented accordingly without reservation.

Supply of the Services

The merchant shall at its own expense supply the Company with all necessary data or other information relating to the Services within sufficient time to enable the Company to provide the Services in a prompt and professional manner.

The merchant shall ensure the clarity and accuracy of all such data and information. The merchant shall check any Certificates provided by the Company, and notify the Company within 28 days of any inconsistencies, these shall be effected free of charge and a new Certificate issued. Excepting updates to merchant contact information, no other changes will be permitted.

The merchant shall if so requested by the Company supply it (in the form specified by the Company) with any declaration necessary for the purposes of obtaining any consent or clearance which the Company might be required to obtain by any competent authority to enable it to provide the Services.

The Services shall be provided in accordance with the Estimate (if any) and otherwise in accordance with the Company’s current practice and literature relating to the Services published from time to time subject to these Conditions.
Further details about the Services and advice or recommendations about its provision or utilisation which are not given in the Estimate or other literature may be made available on request.

The Company may without any liability to the merchant make such alterations to any brochure promotional literature quotation or other document relating to the provision of the Services if in its absolute discretion it believes such alteration is necessary to correct any typographical or other errors or omissions.

The Company may at any time without notifying the merchant make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements or which do not materially effect the nature or quality of the Services.

For storage, insurance, and data integrity purposes, the Company may create back up copies of submitted works if it is practicable to do so. Submitted ‘original’ copies may be discarded due to storage requirements, but only after a secure back up has been made.

In all cases any merchant data will be considered confidential, and treated accordingly.
Duplicate works can be provided on request of the merchant, and will demonstrate the full content of the registered item(s), but may be produced on a medium other than that submitted, (normally this will be an electronic media form).

Confidentiality

Any data or other information provided by the merchant which is so designated by the merchant as confidential shall be kept confidential by the Company but the foregoing shall not apply to any data or other information which is public knowledge at the time when it is so provided and shall cease to apply if at any future time it becomes public knowledge through no fault of the Company.

 

  1. Fees and payments

Payment for the Services shall be subject to the Payment Terms and Conditions, which are included below in these MSA by reference.

Subject to any special terms agreed, the merchant shall pay the Charges and any additional sums which are agreed between the Company and the merchant for the provision of the Services, or which in the Company’s sole discretion are required as a result of the merchant’s (or the merchant’s agents) instructions, or lack of instructions, the inaccuracy of any data, or information supplied by the merchant or its agents, or any other cause attributable to the merchant or its agents.

The Company shall be entitled to vary Charges from time to time, these will be published or made available to the merchant on request and shall apply to any new transactions.

The Company shall be entitled to invoice the merchant directly following the provision of the Services or at such other times as it may agree with the merchant.

The Charges and any additional sums payable shall be paid by the merchant (together with any applicable Value Added Tax and without any set off or other deduction) within 14 days of the date of the Company’s invoice unless otherwise agreed by the merchant with an authorised manager of the Company and confirmed in writing.

If payment is not made on the due date the Company shall be entitled without limiting any other rights it may have to charge interest on the outstanding amount (both before and after any judgement) at the rate of 1% above the base rate from time to time of Lloyds Bank PLC from the due date until the outstanding amount is paid in full. The Company shall also be entitled to refuse any further transactions with the merchant or refuse to provide any Services for the merchant.

The Company shall also be entitled to terminate any Services offered where the merchant has not made full payment or where payment was made fraudulently (for example card fraud). The Company shall also be entitled to charge the merchant for any Bank charges as well as reasonable administration charges that may be attributed to the merchant’s failure to pay.

Fees

In consideration for the provision of the service, merchant agrees to a nominal fee of $50 + 7.5% included per sale of goods via its platform to cover associated and third party costs. This cost is exclusive of VAT, sales taxes and duties where applicable.

The Company reserves the right to revise these fees as necessary upon a written or electronic notification to the merchant.

Asides global sales taxes and VAT, merchants shall be wholly responsible for remitting to the relevant tax authorities and taxes such as income tax and other such taxes payable on amounts earned by it under this Agreement

Chargebacks

Set-Off

 

  1. Term

You may terminate your Account at any time, and we reserve the right to terminate your Account under the conditions set forth in section 6 below. These MSA apply as long as you have an Account through our Site or any of our platforms, regardless of the type of Account you held at each moment.

This section shall not prevent the rights you have as a merchant in connection with the cancellation of, or withdrawal from, your Account. For further information please refer to section 7 below.

 

  1. Suspension and termination of the Account

Either party may terminate this agreement by giving the other party at least 30 days (30) written notice of the intention to do so and such termination becomes effective upon expiration of the 30-day notice.

Nothwithstanding, the company reserves the right to terminate this agreement, without notice in the event of the following:

a. Termination or suspension by the Company

We are entitled to suspend your Account in the event that you provide us with untrue, inaccurate, not current, or incomplete information when creating your Account, as well as when you fail to comply with this MSA or other mandatory provisions by law. Upon occurrence of any of these, we will contact you and request you to remedy your breach of these.

We are entitled to terminate your Account in the event you fail to redress any MSA breach in the non-extendable term of ten (10) working days from notification date. Additionally, your Account may be terminated in the event you substantially breach these MSA, including without limitation any case in which the Account is used to commit fraud (e.g. to carry out phishing attacks) or willfully addressed to breach the law. Account termination may result in data loss.

Finally, we may terminate your Account should you oppose the appointment of any sub-processor, as further detailed in our Privacy Policy.

b. Termination by you

You may terminate your Account at any time by using the account termination option. If you terminate your Account you will lose to access the Site, you will not have access to the Services, features and content that are available to Account holders. Please note that this may result in irrevocable data loss for which you hold complete responsibility.

Termination of this agreement shall not affect any obligations of the respective parties incurred or arising prior to such termination becoming effective.

 

  1. Social media and third party platforms

The Services may include functionality that allows you to access and post content to social media and third party platforms regarding your activities while using our Services. If you choose to use this functionality, we may:

a. have access to certain information that you make available through the social media or third party platforms at issue, provided that the data has been made available to us under the terms and conditions and privacy policies set forth by said third parties; or

b. post status messages, notes, photos, videos and other materials to the applicable Social Media or third party platform on your behalf.

Subject to all the applicable third parties’ terms and conditions and privacy policies, by connecting your Account with your account on a social media or third party platform, you grant us permission to access and use the information that you make available to us on social media or third party platform at issue. To manage the information provided to us, please review the privacy settings applicable to your social media or third party platform accounts.

 

  1. Warranties and Liability

To the maximum extent permitted by applicable law, the Site and the Services are provided “as is”, “with all faults” and “as available” and the entire risk of use and performance remains with you.

You may have additional rights under your local laws that these MSA cannot change and, in any such cases, the Company’s liability is limited in accordance with and to the extent permissible under the Delaware State Law in the United States.

The Company warrants to the merchant that the Services will be provided using reasonable care and skill and as far as reasonably possible.

To the maximum extent permitted by applicable law, in no event will the Company be liable for any consequential, incidental, exemplary, punitive, or special damages, including any damages to or for loss of data or privacy, revenue, profits, or property (including buildings, wiring, fixtures, devices, computers, peripherals, and animals) or for injury or death, arising from or relating to these MSA, your Account, or the Services.

Subject to sections 9 and 10 above, Company’s maximum, aggregate liability to you, and your exclusive remedy under these terms for any and all damages, injuries, and losses arising from any and all claims and causes of action arising out of, based on, resulting from or in any way related to these terms, your Account, the Services, or the Site will not exceed a total maximum amount equivalent to the total amount paid and payable to us under the contract.

The merchant warrants that any data or other information provided and its use by the Company for the purpose of providing the Services will not infringe the copyright or other rights of any third party and the merchant shall indemnify the Company against any loss damages costs expenses or other claims arising from any such infringement.

The limitation of liability set forth in this section shall only apply to the maximum extent permitted by law. In particular, it shall not be applicable in the event of gross negligence or willful misconduct, or—subject to you using the Services as a merchant—injury or death.

The Company shall not be liable to the merchant or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Company’s obligations in relation to the Services if the delay or failure was due to any cause beyond the Company’s reasonable control.

Except in respect of the Company’s negligence or as expressly provided in these conditions the Company shall not be liable to the merchant by reason of any representation (unless fraudulent) or any implied warranty condition or other term or any duty at common law or under the express terms of the Contract for any loss of profit or any indirect special or consequential loss damage costs expenses or other claims (whether caused by the negligence of the Company or otherwise) which arise out of or in connection with the provision of the Services or their use by the merchant and the entire liability of the Company under or in connection with the Contract shall not exceed the amount of the Company’s charges for the provision of the Services except as expressly provided in these conditions.

The merchant warrants that any data or other information provided and its use by the Company for the purpose of providing the Services will not infringe the copyright or other rights of any third party and the merchant shall indemnify the Company against any loss damages costs expenses or other claims arising from any such infringement.

The merchant warrants, with regard to all items the merchant submits to the Company for the purpose of the Company’s Services, that the merchant is the copyright owner of those items, or that the merchant is acting directly on behalf of the copyright owner of those items.

The merchant warrants that all items submitted are suitable for the provision of the Company’s services, and understands that the Company will not or cannot normally make any judgement regarding the suitability of submitted material.

Where applicable, the merchant acknowlwdges that the Company’s Service is as an independent witness and intended as an aid in the proof of authentication of goods listed on its platform. No guarantee, warranty or liability is given or implied and the responsibility of proving copyright remains with the merchant. The Company will not enter into any legal issues on the merchant’s behalf other than providing copies of certificates and/or copies of the work at the merchant’s request.

The Company undertakes to provide contingency measures to ensure that, where reasonably practicable, appointed agents of the company are identified and made personally responsible for the complete fulfilment of any existing merchant contracts in the unlikely event of a cessation to trade.

In the event that the merchant instructs the Company to use any third party in connection with the provision of the Services. The Company cannot give any warranty, guarantee or other term as to the quality of services of any such third party.

 

  1. Indemnity

You shall indemnify, defend and hold the Company, its officers, directors, employees, agents, partners, suppliers, and/or licensors harmless and will keep them indemnified from and against any claim, loss, expense, liability, damage, or demand, including reasonable attorney’s fees, relating to, arising from, or allegedly arising from (a) your use of the Site or the Services, and activities occurring under your Account; (b) any violation of these MSA; or (c) your violation of any other party’s rights or applicable law.

The Company reserves the right to assume, at your sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses.

 

  1. Amendments to the MSA

We may modify these MSA from time to time. We will provide you with reasonable prior written notice of any change. If you do not agree to any amendments to the MSA, you shall (as your sole remedy) stop using the Site and the Services. By continuing to use the Services or the Site, you are providing your agreement to be bound by the updated terms of the MSA.

 

  1. Miscellanea

The illegality, invalidity, nullity, or unenforceability of any of the sections of these MSA will not affect the validity of its other provisions, which shall remain in full force and effect. Such sections are to be replaced or integrated into others that, in accordance with law, correspond to the objective of the substituted sections.

If, at any time, we fail to respond to a breach of these MSA by you, that failure will not waive our right to act with respect to subsequent or similar breaches. A waiver will only be binding on the Company if it is in writing and signed by the Company. These MSA constitute the entire agreement between you and the Company with respect to your Account and the Services. Both you and the Company, warrant to each other that, in entering these MSA, neither the Company nor you have relied on or will have any right or remedy based upon any statement, representation, warranty, or assurance other than those expressly stated in these MSA.

The rights and obligations set forth in these MSA (or, otherwise, of the Account) cannot be assigned to any third party without the prior written consent of the Company.

These MSA are drafted both in plain and legal jargon versions. In case of any discrepancies, the legal version included herein shall prevail and take precedence with respect to the plain version.

 

  1. Support

You can contact us in case you have any doubts, comments or concerns by any of the following means:

By post:
BETIKU AFRICA, LLC
256 Chapman Road, STE 105-4, Newark, 19702, Delaware, USA.

By email:
[email protected]

 

  1. Applicable law and jurisdiction

a. General