Vodafone Ghana Mobile Financial Services Limited

vodafone ghana mobile financial services limited

VODAFONE CASHTERMS AND CONDITIONS

BACKGROUND

INTRODUCTION

(A)Vodafone Cash provides an electronic money transfer system branded Vodafone Cash which allows people who have access to a mobile phone to send and receive money, top-up airtime and make bill payments.

(B)Client wishes to appoint Vodafone Cash to make available the Vodafone Cash electronic money transfer system for payment transactions between its customers and/or other businesses.

(C)The following (in addition to any executed contract) defines the terms and conditions under which Vodafone Cash shall provide Vodafone Cash Service to the Merchant and under which the Merchant accesses and uses the Service.

(D)All new Merchants shall, in filling and submitting the relevant forms and documents, be deemed to have consented and agreed to receiving such Service on these Terms and Conditions and be accordingly bound.

(E)All existing Merchants shall, by continuing to use any current service, be deemed to have consented and agreed to these Terms and Conditions.

THE PARTIES AGREE AS FOLLOWS:

1.Definitions and Interpretation

1.1Account Number means a unique number as issued to the Client through which a Subscriber may be identified and against which such Subscriber may make and/or receive payments to or from the Client using the Vodafone Cash Services as further described in Schedule 1 (Vodafone Cash Services).

1.2Agreement means these Terms and Conditions, the completed application form and all schedules and annexes attached hereto and as may be amended from time to time.

1.3Applicable Law means law, regulation, binding code of practice, rule or requirement of any relevant government or governmental agency, professional or regulatory authority, each as relevant to (i) Vodafone Cash in the provision of the Vodafone Cash Services and/or (ii) the Client in the receipt of the Vodafone Cash Services or the carrying out of its business in Ghana.

1.4Background IPR means any Intellectual Property Rights owned by a Party, and/or Vodafone Group Companies(or which a Party and/or Vodafone Group Companies have the right to use and license) which exist prior to the date of this Agreement; and/or any Intellectual Property Rights to the extent generated independently of this Agreement by or on behalf of a Party and/or Vodafone Group Companies and owned by that Party and/or Vodafone Group Companies (or which they have the right to use and license), but excluding the Marks.

1.5Cash means currency notes and coins constituting the legal tender of Ghana.

1.6Charges mean the charges set out in Schedule 2 (Charges and Transaction Limits).

1.7Client means the entity/individual or company registered as a Merchant.

1.8Client Bank Account means the bank particulars of the Client, details of which shall be provided to Vodafone Cash from time to time.

1.9Confidential Informationmeans without limitation, allinformation, software, data, manuals, concepts relating tomarketing methods, products, developments, business and financial affairs and trade secrets, and other information ofvalue to a party and not generally known, (whether or not designated as “confidential information” by any Party andwhether written, oral or in electronic form) and any otherinformation clearly designated by a Party as “confidentialinformation” or that is evidently confidential by its nature or thenature of its disclosure, and includes the terms of thisAgreement

1.10Control means in relation to a body corporate, the power of a person to secure that the affairs of the body corporate are conducted in accordance with the wishes of that person: (a) by means of the holding of shares, or the possession of voting power, in or in relation to that or any other body corporate; or (b) as a result of any powers conferred by the Regulations or any other document regulating that or any other body corporate and a change of Control occurs if a person who controls anybody corporate ceases to do so or if another person acquires Control of it.

1.11Customers means those customers (whether individuals or corporate customers) of the Client who wish to pay Clients’ bills and who are Subscribers to the Vodafone Cash Service.

1.12E-Moneymeans electronically, including magnetically stored monetary value as represented by a claim on the issuer which is issued on receipt of funds, redeemable against cash and accepted by a natural or legal person other than the e-money issuer

1.13Force Majeure means anything outside the reasonable control of a Party including pandemic, an act of war or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance (excluding industrial action by employees of the Party or its subcontractors), currency restriction, embargo, or a failure of a public utility or telecommunications carrier;.

1.14Intellectual Property Rights means (i) rights in, and in relation to, any patents, registered designs, design rights, trademarks, trade and business names (including all goodwill associated with any trademarks or trade and business names), copyright, moral rights, databases, domain names, topography rights and utility models, and includes the benefit of all registrations of, applications to register and the right to apply for registration of any of the foregoing items and all rights in the nature of any of the foregoing items, each for their full term (including any extensions or renewals thereof) and wherever in the world enforceable; (ii) rights in the nature of unfair competition rights and rights to sue for passing off; and (iii) trade secrets, confidentiality and other proprietary rights, including rights to know how and other technical information.

1.15Marks means all Vodafone Group Companies’ rights in (a) the name Vodafone, the Vodafone Logo and all associated registered trademarks and branding globally, or other proprietary words or symbols owned or licensed to any Vodafone Group from time to time together with any unregistered intellectual property rights in the same including but not limited to copyright, domain names and any associated goodwill therein; and (b) the trade marks Vodafone Cash, and the Vodafone Cash Logo, including any unregistered rights or goodwill therein.

1.16Vodafone Cash Account means the E-Money accounts of Subscribers(including Client) which may include one or more of the following sub-accounts: (i) the utility account which records payments made into the Account Number, (ii) the commission account which records movements in Transaction Charges on the commission account, and (iii) the working account (M-Pesa Account) which enables the deposit or withdrawal of E-Money.

1.17Vodafone Cash Portal means the website portal through which the Client can facilitate Transactions using the Vodafone Cash Service.

1.18Vodafone Cash Service meanstheelectronic money transfer services described in Schedule 1 (Vodafone Cash Services).

1.19Vodafone CashSystem means the electronic money transfer money software system and software using mobile technology to enable transfers of value between Subscribers.

1.20MSISDN means the Mobile Subscriber Integrated Services Digital Network Number issued to the Subscriber which uniquely identifies the Subscriber on the Network and used to connect with other subscribers and includes a Pin Unlocking Key (“PUK”) for accessing the Network.

1.21Network means the telecommunications network used by Vodafone Cash.

1.22NCA means the National CommunicationsAuthority for electronic communications or telecommunications services in Ghana.

1.23Party or Parties means the parties to this Agreement.

1.24Payee means a Subscriber who receives E-Money from the Client.

1.25Pool Account shall mean the bank account maintained by Vodafone Cash into which the Client may make payments for an equivalent e-money.

1.26Service Level(s) means the service level responses and response times set out in paragraph 1 of Schedule 3 (Service Levels);

1.27Service Level Failure means any failure of either Party to perform its responsibilities under this Agreement in accordance with the Service Levels;

1.28Subscriber means a third party that is subscribed to the Vodafone Cash Service provided by Vodafone Cash.

1.29Transaction means the payment or receipt of E-Money between Subscribers and/or the Client through the Vodafone CashVodafone Cash System.

1.30VAT means value added tax or any analogous tax in any relevant jurisdiction including but not limited to use, sales and local sales taxes of any kind.

1.31Vodafone Group means: (i) Vodafone Group Plc, Vodafone Cash and any company in which Vodafone Cash Group Plc owns (directly or indirectly) 15% or more of the issued share capital; and (ii) any partner market listed on the investor relations page at (and Vodafone Group Company/Vodafone Group Companies has a corresponding meaning).

1.32VSSL means Vodafone Sales & Services Limited (incorporated in England and Wales with company registration number 06844137) whose registered office is at Vodafone House, The Connection, Newbury, Berkshire, RG14 2FN.

1.33Clause and schedule headings and index are for reference only and shall not affect the interpretation of this Agreement. The schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Reference to this Agreement or any part referred to in it is a reference to this Agreement as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.

1.34A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.35Use of the singular includes the plural and vice versa. Use of any gender includes the other genders.

1.36Any reference to a directive, guideline, standard, statute, statutory provision or subordinate legislation ("legislation") shall be construed as referring to such legislation as amended and in force from time to time, to all subordinate legislation made from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation.

1.37Any phrase introduced by the terms "including", "include", “in particular”, “for example” or any similar expression shall be construed as illustrative and do not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.38Reference to “writing” or “written” includes fax and email unless expressly stated otherwise.

1.39Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.

2.Commencement and Duration

2.1These Terms and Conditions shall bind and continue to bind the Client from the date of execution of the application form untilterminated in accordance with Clause 15 (Termination).

3.Vodafone Cash Services

3.1Client Responsibilities. Client shall:

3.1.1Other than as agreed between the Parties in writing, ensure that no third party gains access to the Vodafone Cash Service or Vodafone Cash System and Client will only use the Vodafone Cash Services and Vodafone Cash System in accordance with this Agreement.

3.1.2Comply with:

(a)Vodafone Cash’s Subscriber Vodafone Cash terms and conditions;

(b)Vodafone Cash’s user guide;

which may all be made available to the Client by Vodafone Cash from time to time. The use of the Vodafone Cash Service by the Client shall be subject to the terms and conditions listed in this clause 3.1.2.

3.1.3Implement and maintain appropriate security procedures, as advised by Vodafone Cash, to prevent damage to the Vodafone Cash Service(s), including any security procedures notified by Vodafone Cash to the Client from time to time.

3.1.4Implement and comply with any policies of Vodafone Cash from time to time, including those that address fraudulent or unlawful use of the Vodafone Cash Service, security of data, the Vodafone Cash System, the Network, and/or any mobile device.

3.1.5Provide clear and timely communication, education and support to its Customerswhen using the Vodafone Cash Service, provide regular updates to Customers on the status of their payments and have effective processes in place to deal with Customer complaints.

3.1.6Provide all information and complete all documentation (including in relation to identification, legitimation and billing details) which is required by Vodafone Cash, or a national regulatory agency for the purposes of the Vodafone Cash Service.

3.1.7Provide Vodafone Cash with quarterly reports on Customer’s queries and complaints on the Vodafone Cash Service.

3.1.8If required by Vodafone Cash, place an order for Vodafone Cash Service in the format supplied by Vodafone Cash and Vodafone Cash shall accept, reject or respond to with a request for further information.

3.1.9Be solely responsible for:

(a)Any mobile phone network and call charges when using the Vodafone Cash Service; and

(b)Any losses that arise:

(i)as a result of the Client’s failure to maintain password security; and

(ii)prior to notifying Vodafone Cash that its mobile phone or SIM card has been damaged, lost or stolen (if applicable); and

(iii)following a recipient’s decision not to accept or record a transaction made by the Client; and

(iv)as a result of the Client’s error or mistake when initiating a Transaction or inputting data using the Vodafone Cash System; and

(v)from a Transaction request not being completed due to insufficient funds, maximum limits being reached, suspension, outage or other valid reason.

3.2Vodafone CashResponsibilities. Vodafone Cash shall:

3.2.1Provide Vodafone Cash Service to the Client on the terms and conditions of this Agreement.

3.2.2Facilitate setting up Client on the Vodafone CashPortal, including but not limited to providing Client with access to the Vodafone CashPortal.

3.2.3Provide training to the Client staff to enable them to use the Vodafone Cash System.

3.2.4Issue E-Money upon confirmation of the value of Cash banked in the Pool Account or the aggregate Transaction limits, as the case may be.

3.2.5Use its best endeavours to ensure that the Transactions take place as scheduled by the Client.

3.2.6Be responsible for: (i) the provision, operation and maintenance of the Vodafone Cash System and Vodafone Cash Service and (ii) servicing the Vodafone CashVodafone Cash distribution network of agents for registration.

3.3Use of theVodafone Cash Services: The Client: (i) shall use the Vodafone CashService in accordance with the terms of this Agreement; and (ii) shall not resell, distribute, provide or sub-contractthe Vodafone CashService to any third party without the prior written consent of Vodafone Cash and any relevant Vodafone Group Company.

3.4Conditions of use: The Client shall not use theVodafone Cash Service in any way that may reasonably be considered to be: (i) contrary to the intended conditions of use (including any unauthorised modification); (ii) a nuisance, defamatory, offensive, abusive, or obscene or in violation of any person's rights; (iii) illegal; (iv) fraudulent; or (v) contrary to good faith commercial practice.

3.5Client Care. Vodafone Cash shall provide customer care and education to Subscribers and the Client will provide customer care and education to its Customers with respect to the Vodafone Cash Service as detailed in this Agreement.

3.6Applicable Law:Each Party shall (and shall ensure that its employees, agents and sub-contractors)complywith all relevant Applicable Laws of Ghana in relation to the Vodafone CashService.

3.7Records and Audit:Each Party shall keep comprehensive records to evidence compliance with their obligations under this Agreement, preserve such records for six (6) years from their creation and shall permit the other Party to inspect and copy such records as is reasonably necessary to monitor compliance under the Agreement.

3.8Dispute Resolution: If a dispute arises out of or in connection with this Agreement, either Party may call an extraordinary meeting for the purpose of resolving such dispute by giving the other Party not less than seven (7) days’ written notice. Each Party shall use its best efforts to ensure its representatives attend such meetings.The members of the meeting shall endeavour in good faith to resolve such dispute. If any dispute referred to a meeting is not resolved at that meeting, then either Party, by notice in writing to the other, may refer the dispute to designated senior officers who shall co-operate in good faith to resolve the dispute as amicably as possible within 14 days of service of such notice. If such senior officers fail to resolve the dispute in the allotted time, then this dispute resolution procedure shall be deemed exhausted.

4.Intellectual Property Rights

4.1Ownership:The Parties acknowledge and agree that each Party’s Background IPR remains at all times the property of such Party or its licensors, and that the other Party is not entitled to any rights in such Background IPR except as expressly granted in this Agreement.

4.2Marks:The Client acknowledges that Vodafone Group owns and/or has licensed the Marks.

4.3Licence:By entering into this Agreement, the Client is also entering into a trade mark licence directly with VSSLin the form set out in Schedule 4 (Trade Mark Licence), the terms of which may be varied by VSSLfrom time to time upon written notice.

4.4Third party licence: Where Vodafone Cash or Client makes third party licences available to each other, they will: (i) notify each other of the applicable licence terms; and (ii) comply with such terms.

5.Warranties

5.1Full power and authority: Each Party warrants that it has full capacity, power and authority to enter into this Agreement and to perform its obligations under this Agreement.

5.2Vodafone Cash Warranty: Vodafone Cash warrants that:

5.2.1theVodafone Cash Service will be performed in accordance with the terms and conditions of this Agreement;and

5.2.2the Vodafone CashServiceshall be performed with reasonable skill and care.

5.3The warranties in Clause 5.2 above do not include any defects, problems or failures caused by: (i) Client’s non-performance or negligence of obligations essential to Vodafone Cash’s performance of its obligations, and/or (ii) an event of Force Majeure.

5.4Client Warranty: the Client warrants that:

5.4.1there are no actions, suits or proceedings or regulatory investigations pending or, to theClient’s knowledge, threatened against or affecting the Client before any court or administrative body or arbitration tribunal that might affect the ability of the Client to meet and carry out its obligations under this Agreement;

5.4.2once duly executed, the Agreement and these Terms and Conditions will constitute its legal, valid and binding obligations;

5.4.3it will perform and procure the performance of its obligations under this Agreement;