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Definitions
Unless otherwise stated, or the context otherwise requires, the words and expressions listed below shall bear the meanings ascribed to them:
  • "Agreement" means this Agreement together with all schedules and annexes thereto, as same may be amended or supplemented by the Parties from time to time.
  • "Applicable Laws" means all national, provincial, local and municipal legislation, regulations, statutes, by-laws, consents and/or other laws of any relevant Governmental Authority and any other instrument having the force of law as may be issued and in force from time to time relating to or connected with the activities contemplated under this Agreement.
  • "Business Day" means any day in South Africa which is not a Saturday, Sunday, or a day which, from time to time, is proclaimed a public holiday in South Africa.
  • "Confidential Information" means, in relation to a party, any information of a confidential and/or commercially sensitive nature, howsoever obtained or received and whether or not marked confidential, including any technical, commercial, financial, or scientific information, know how, trade secrets, processes, business information, and/or any other information or material of whatever description or nature proprietary to such party in whatever format;
  • "Customer" means an entity or individual who owes payment to the Merchant in exchange for the provision of goods or services, including charitable donations or services.
  • "Dispute" means an instruction initiated by a customer to reverse or invalidate a processed Transaction (including "chargebacks" and "disputes" as those terms may be used by Payment Method Providers).
  • "Fees" means the fees payable to Mustang Financial by the Merchant in consideration for the Services, as set out in the Service Schedule, including the Processing Fee, and Merchant Acceptance Fee.
  • "Intellectual Property" means all intellectual property rights owned by any party subsisting anywhere in the world, which is capable of protection in law, including trademarks, domain names, copyright, patents, designs and all proprietary rights in and to ownership of any idea, discovery, artwork, design, concept, technique or improvement, industry information, know how, system, methodology, data model, computer software, computer source code and object code, report, correspondence, documentation, flow chart, data base, table, calculation, spreadsheet, schematic plan, photograph, presentation or invention (whether patented or not) and any other rights of a similar nature which exist now or will in the future exist;
  • "KYB" means "Know your Business";
  • "KYC" means "Know your Customer;"
  • "Merchant" means the person contracting with Mustang Financial in terms of a Mustang Financial Agreement to use its;
  • "Merchant Acceptance Fee" means the fee that Mustang Financial charges per Transaction for the use of the relevant Payment Method for that Transaction. This can be a percentage of the Transaction amount, or a fixed fee, or a combination of a percentage and a fixed fee. The Processing Fee is not part of the Merchant Acceptance Fee.
  • "Merchant Account" means an account held by the Merchant directly with a Payment Method Acquirer or alternative Payment Method Provider enabling the Merchant to accept Transactions using the applicable Payment method, and in terms of which the Payment Method Acquirer or Payment Method Provider may charge an acceptance or other fee to the Merchant directly.
  • "Ordinary business hours" means the hours between 08h00 and 17h00 (SAST) on a Business Day.
  • "Payment System Management Body" means the relevant payment system management body recognized in terms of Applicable Laws in South Africa, currently being the Payments Association of South Africa.
  • "Payment Method Acquirer" means an entity that a Payment Method Provider has authorized to sponsor or submit Transactions at the request of the Merchant to the Payment Method Provider for authorization and clearing; and to receive and remit settlement funds for authorized and cleared Transactions.
  • "Payment Method Provider" means the provider of the Payment Method, e.g. VISA.
  • "Payment Methods" means the various mechanisms, or mediums through which a customer can transfer funds to the Merchant using the Services. This includes, but is not limited to, Card payment, instant electronic funds transfers (EFTs), digital or electronic wallets, bank transfers, and any other method or medium that facilitates the transfer of money or its equivalent.
  • "Payment Scheme" means VISA and/or Mastercard, and American Express and such other associations governing the issue and use of credit, debit, charge, purchase or any other cards or payment methods, as approved and notified by Mustang Financial to Merchant in writing or on the MustangPay Platform from time to time.
  • "Payment Scheme Rules" means the rules, regulations, and operating guidelines published and updated by the Payment Schemes from time to time.
  • "Mustang Financial" means Mustang Financial (Pty) Ltd (Registration No. 2020/099114/07) with physical address situated at: 39 Renaissance Drive, Crown Mines, Johannesburg, Gauteng; and email address: [ ]
  • "MustangPay Platform" means the technological infrastructure, software, and application program interfaces, owned by or duly licensed to Mustang Financial, through which Transaction requests are processed. It encompasses all digital interfaces, tools, systems, and technologies provided by Mustang Financial to enable, facilitate, or manage Transactional activity between the Merchant and their Customers.
  • "Person" means a natural person, juristic person, trust, organization, partnership, joint venture, syndicate, or any other association.
  • "Processing Fee" means the fee that Mustang Financial charges for each Transaction submitted for processing via the MustangPay Platform, regardless of the Transaction amount and the type of Payment Method used.
  • "Refund" means a Transaction reversing a Purchase in full or in part and refunding the Purchase Price in full or in part, issued to the original payment source or Customer account.
  • "Services" means the services Mustang Financial makes available to the Merchant under this Agreement, as more fully set out in the Service Schedule, in particular enabling and facilitating Transactions between the Merchant and their Customers, allowing the Merchant to accept, process, and manage payments, refunds, or any other monetary exchanges, in consideration of the Payment Method chosen by the end Customer;
  • "Signature Date" means the date upon which the last of the named parties to this agreement signs this agreement.
  • "Transaction" means a Payment Method transaction request via the MustangPay Platform in terms of which funds for or from a customer's associated account are directed to be captured with respect to a payment from a Customer to the Merchant, and includes chargebacks, refunds and reversals with respect to that Payment Method transaction request.
  • "VAT" means value added tax at the rates specified in the VAT Act; and
  • "VAT Act" means the Value Added Tax Act, No. 89 of 1991.
Interpretation
  • Clause and paragraph headings are for purposes of reference only and shall not be used in interpretation.
  • Unless the context clearly indicates a contrary intention, any word indicates:
  • any gender includes any other gender.
  • the singular includes the plural and vice versa; and
  • Natural people include juristic people and vice versa.
  • A reference to days (as opposed to Business Days) shall mean calendar days.
  • When any number of days, or Business Days, is prescribed, such number shall exclude the first and include the last, unless, in the case of days, the last day falls on a Saturday, Sunday, or a public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding Business Day.
  • A reference to an enactment is a reference to that enactment as at the Signature Date of this Agreement, and as amended or re-enacted from time to time.
  • A reference to any other agreement or document shall be to such agreement or document as amended.
  • The words "include", "including" and "in particular" are by way of example only and shall not limit the generality of any preceding words.
  • The words "other" and "otherwise" shall be interpreted as widely as possible and shall not be limited by any preceding words.
  • Clauses shall continue to operate after the termination of this agreement if necessitated by their nature.
  • If figures are referred to in numerals and in words and there is a conflict between the two, the words shall prevail.
  • The rule of interpretation that a written agreement shall be interpreted against the party responsible for the drafting or preparation of that agreement shall not apply.
  • If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.
  • Where any term is defined within the context of any particular clause in this Agreement, then, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, the term so defined shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in the definition clause.
  • If any provision becomes illegal, invalid, or unenforceable, such provision shall be severed, to the extent of its illegality, invalidity, or unenforceability, from the balance of this agreement.
Onboarding And Information
  • To use the Services, the Merchant will have to register and complete the Customer onboarding process.
  • The Merchant onboarding process includes commercial approval and verification process, as well as the Merchant's technical integration to access the Services via the MustangPay Platform. Mustang Financial, the Payment Method Acquirer, or the Providers of other Payment Methods may conduct various checks to determine whether the Merchant's application can be approved.
  • The Merchant must immediately disclose to Mustang Financial such information as reasonably required for the provision of the Services, including any information required in terms of any Payment Scheme Rule or Applicable Law, and such information as Mustang Financial may require verifying the identity of the Merchant and its ultimate beneficial owners. The Merchant must notify Mustang Financial promptly of any material change in such information.
  • Subject to Applicable Laws, Mustang Financial may share this information with its affiliates, the Payment Schemes, Payment Method Acquirers, Payment Method Providers, credit reference agencies, fraud prevention agencies and crime enforcement authorities to the extent required in terms of the Payment SchemeRules, Applicable Laws, or as Mustang Financial may reasonably consider necessary or appropriate for the provision of the Services.
  • The Merchant acknowledges that:
  • Payment Schemes to which Mustang Financial discloses information may maintain databases which may be available to third parties (including card issuers, regulators and other authorities containing information regarding the conduct of transactions by Merchants, and/or categorize undesirable conduct of Merchants; and
  • if any of the Services or this Agreement are terminated, relevant Payment Schemes may, subject to Applicable Laws, be notified andmay retain such information in accordance with their normal practice.
  • The Merchant must provide Mustang Financial with:
  • the business URL/website link if applicable.
  • the Merchant Identification Number ("MID"), if the Merchant has its own account with a Payment Method Acquirer for Card Transactions; and
  • proof of the relevant Merchant Account where applicable.
  • the trading name as it shall appear on the Customer's statement.
  • The Merchant must notify Mustang Financial of any changes to the MID, business URL and/or of significant changes to its business model.
  • Mustang Financialmay request additional information from Merchantshould it be deemed appropriate, based on an unusual or unreasonable increase in Transaction volume, the occurrence of Disputes or other circumstances that might affect Mustang Financial, the Payment Method Acquirer's, or other Payment Method Provider's risk exposure in connection with the provision of the Services.
  • The Merchant is obliged to notify Mustang Financial of any changes in its company information or beneficial ownership structure and shall be responsible for providing updated KYC or KYB documentation.
Fraud Prevention And Compliance With Laws
  • The processing of Transactions or the making of payments may be delayed or suspended where Mustang Financial has a reasonable suspicion that a Transaction may be fraudulent or involve other criminal activity.
  • The Merchant must not use the Services:
    • to accept payments for goods or services where payment is not yet due and for which no invoice exists which can be presented to Mustang Financial on request.
    • to accept payment for illegal products or services, including materials that infringe the intellectual property rights of third parties.
    • to conduct any money laundering, or any activity that constitutes a crime or a breach of Applicable Laws.
  • Mustang Financial is not part of any sales or services contracts executed between the Merchant and the Customer. The Merchant is responsible for complying with all consumer obligations, tax obligations, exchange obligations or any other obligation in terms of Applicable Laws. The Merchant bears the risk of contracting with Customers (including where payments are made by Customers to unintended recipients or payments reflect the incorrect amounts due to the input of incorrect information by Customers or the Merchant).
  • If Mustang Financial has reasonable suspicion that a Transaction may be fraudulent, or involve other criminal activity, Mustang Financial may suspend the processing of that, and any connected Transaction (and, if applicable, withhold settlement of the Transaction proceeds) until the satisfactory competition of an internal investigation.
  • If Mustang Financial has reasonable suspicion that a Transaction may be fraudulent, or involve other criminal activity, Mustang Financial shall contact the Merchant to provide the necessary information and transaction data required to validate the Transaction and assist in Mustang Financial's fraud prevention and investigation process.
Intellectual Property
  • Except as otherwise provided in this agreement:
    • All Intellectual Property owned by either party shall remain the sole property of that party, and the other party shall not obtain any rights, title, or interest in such Intellectual Property under this agreement.
    • Neither party shall reverse assembly, decompile, reverse engineer, or otherwise attempt to derive the source code (or any underlying algorithms) from the other party's Intellectual Property, except as expressly authorized in writing by the owning party or as provided for in this agreement.
    • Neither party shall alter, remove, or in any way affect the display of the other party's Intellectual Property rights notices (and disclaimers), including those of their vendors or licensors, without prior written consent from the other party and, where applicable, their vendors or licensors; and
    • Neither party shall use the other party's Intellectual Property, including but not limited to trade names, logos, or any derivatives or componentsthereof, without prior written consent from the other party.
  • Each party shall be responsible, at its own expense,for obtaining licensesto any third-party intellectual property rights included within its Intellectual Property from time to time, to the extent such third party intellectual property is used in connection with that party's Intellectual Property.
Data Protection
  • The parties shall comply with all applicable requirements and obligations of any Applicable Laws relating to data protection or data privacy, including the Protection of Personal Information Act (No. 4 of 2013) and any other data protection legislation and/or regulation applicable to the parties in respect of Personal Information as defined in the Protection of Personal Information Act (No. 4 of 2013) which may be processed by the parties in terms of this agreement.
  • Each party shall take all appropriate technical and organizational security measures to ensure that PersonalInformation supplied by the other party in connection with this agreement is protected against loss, destruction, and damage, and against unauthorized access, use,modification, deletion, disclosure, or other misuse.
  • Each party shall take reasonable steps to identify all foreseeable internal and external risks posed to Personal Information and shall establish and maintain appropriate safeguards against any risks identified. The safeguards shall be updated continually in response to new risks or deficiencies in previously implemented safeguards.
  • Where Mustang Financial processes the Personal Information of a Customer while processing Transactions on behalf of the Merchant, the parties shall comply with all Data Processing Policies made available on the website and updated from time to time.
Warranties
  • The Merchant warrants to Mustang Financial that:
    • Itshall use the Servicessolely for the purposes of receiving legitimate and lawful payments in terms of all Applicable Laws.
    • The information provided by it during the onboarding process in clause 5 is true and correct.
    • its business complies with Applicable Laws.
    • It shall not offer goods or services in the following market segments:
      • counterfeit or stolen goods; or
      • any other business which MustangPay may identify, from time to time, due to regulatory,risk or operationalreasonsto be a restricted business on written notice to the Merchant.
    • the Merchant shall fulfil all its obligations to each Customer for which they submit a Transaction and shall resolve disputes and complaints directly with the Customer; and
    • neither it nor its Merchant has ever had a contract with a Payment Scheme terminated at the direction of the Payment Scheme or at the direction of any regulatory authority or court of law.
  • Mustang Financial warrants to Merchant that it:
    • it shall take reasonable steps to ensure that the Services shall be provided with minimal interruption, be available on a 24 hour per day basis, and that upon discovery of any defects, these are addressed timeously in accordance with the service levels described in the Merchant Service Agreement. However, due to the nature of the Services, these are necessarily provided on an "as is" and "as available" basis to the maximum extent permitted by Applicable Law.
    • has the necessary licenses, authorizations, consents, and/or other regulatory permissions as are necessary in accordance with Applicable Law and the Payment Scheme Rules in order to provide the Services; and
    • it provides the Services in a professional manner and according to industry security standards and the service levels described in the Merchant Service Agreement. However, due to the nature of the Services, the Merchant acknowledges that they use them at their own risk.
  • Each party warrants to the other that:
    • it has full capacity and authority to enter into and perform its obligations under this Agreement.
    • this Agreement is executed by a duly authorised representative of that party.
    • it has the necessary skills and resources to comply with the obligations assumed by it in terms of this Agreement.
    • the conclusion and/or compliance by that party of its obligations hereunder shall not breach any Applicable Law or agreement binding on it.
    • All information supplied to the other party is true, accurate and complete in all respects; and
    • it shall not do anything, or engage in any activity, which is likely to adversely affect or damage the other party's good name and/or reputation.
Indemnities
  • Mustang Financial assumes no liability for any products or services purchased through the use of its Services.
  • No party will be liable for any indirect,special, or consequential loss or damage of any kind, including loss of business opportunities or profits.
  • A party will not be liable for losses caused by circumstances beyond its reasonable control. This includes software or system failures, delays, errors in electronic communications (including cellular), and network malfunctions.
  • The use of electronic communication is at the Merchant's own risk. Mustang Financial does not guarantee the accuracy, completeness, reliability, performance, or quality of such communication.
  • Mustang Financial is not liable for any loss, damage, or costs incurred due to transmissions over the internet or other public networks, including those involving software, services, or emails containing personal information sent to Mustang Financial.
  • The Merchant acknowledges the risk of operational challenges, such as cyber-attacks, security breaches, or technical difficulties that may disrupt services or access to the Merchant's application. While Mustang Financial will take reasonable steps to minimize these disruptions, the Merchant accepts the risk of failure of transaction and agrees to indemnify Mustang Financial for any related losses, unless Mustang Financial has been grossly negligent.
  • Each party indemnifies the other from any loss, damage, costs, expenses, or liabilities arising from third-party claims caused by their actions or omissions, except where the claim arisesfrom fraud, gross negligence, or willful misconduct of the indemnified party.
Force Majeure
If either Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by any cause beyond the reasonable control of that Party, including, without limitations, acts of God, civil commotion, riots, insurrection, acts of government, fire, explosion, the elements, epidemics, governmental embargoes or like causes ("force majeure"), the Party so affected shall, to the extent so prevented, be relieved of its obligations hereunder during the period of such events and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damage either general, special or consequential which the other Party may suffer due to or resulting from such delay or failure; provided always that written notice of the occurrence constituting force majeure shall be given within 24 (twenty-four) hours by the affected Party.
Dispute Resolution
  • If a dispute of any nature arises between the parties, including in regard to the interpretation of, the effect of, the parties' respective rights or obligations hereunder, a breach of or the termination of this agreement, then, upon written request of either party, each of the parties shall appoint a senior representative whose task it shall be to meet for the purposes of resolving such dispute. Such representatives shall discuss the matter in dispute and negotiate in good faith in an effort to resolve the dispute on amicable terms within 14 (fourteen) days. No formal proceedings may commence until the designated representatives conclude in good faith that an amicable resolution of the matter is not likely to occur.
  • Accuracy of Settlement Data and Dispute Handling
    • In the event theMerchant disputes any settlement amount provided byMustangPay, theMerchant shall raise such dispute in writing within three (5) business days of receiving the corresponding settlement report.
    • Upon receiving the written notice of dispute, MustangPay shall respond in good faith within twenty-four (24) hours, providing the Merchant with detailed transaction reports and relevant supporting documents for reconciliation purposes.
    • If the Merchant fails to raise a dispute within the stated period, the settlement amount shall be deemed accepted by the Merchant and final for that settlement cycle.
    • Unless otherwise agreed in writing, all reconciliation and settlement calculations shall be based on the transaction records maintained by MustangPay's backend system, which shall be deemed accurate and final for all settlement purposes.
    • Both parties agree to cooperate fully and transparently to resolve any settlement discrepancies in a timely manner.
  • Should the representatives of the parties be unable to resolve a dispute in accordance with a foregoing, such dispute shall be submitted to and decided by a court of competent jurisdiction or, upon agreement between the parties, by arbitration in terms of this clause.
  • The arbitrator shall be appointed by the parties, and failing agreement, shall be nominated by the Chairperson for the time being of the Johannesburg Bar Council.
  • The arbitration shall be held at Johannesburg, South Africa.
  • The arbitration shall be held in accordance with the Arbitration Act, No 42 of 1965.
  • The arbitrator shall be entitled to: -
    • determine and settle the formalities and procedures, which shall be in an informal and summary manner, that is, it shall not be necessary to observe or conduct either the usual formalities or procedure or the strict rules of evidence.
    • investigate or cause to be investigated any matter, fact, or thing which he considers necessary or desirable in connection with any matter referred to him for decision.
    • decide the matters submitted to him according to what he considers just and equitable in all circumstances, having regard to the purpose of this agreement; and
    • make such an award, including an award for specific performance, an interdict, damages or a penalty or the costs of arbitration or otherwise as he, in his discretion, may deem fit and appropriate.
  • The arbitration shall be held as quickly as possible after it is demanded, with a view to it being completed within 30 (thirty) days after it has been so demanded.
  • This clause shall not preclude any party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
  • The parties hereby consent to the non-exclusive jurisdiction ofthe Gauteng Local Division ofthe High Court of South Africa, situated in Johannesburg in respect of the proceedings in this clause, where applicable, and the above Court shall have jurisdiction to enforce any award made by an arbitrator under this clause.