MERCHANT TERMS AND CONDITIONS

Applicability
The Terms and Conditions together with the Merchant application form (together “the Agreement”) contains the complete terms and conditions that apply to the Merchant’s or the Client's participation in Safaricom M-PESA Mobile Financial Services PLC (Safaricom M-PESA) mobile payment system (hereinafter the Services) and supersedes all other agreements entered into between the Client and Safaricom M-PESA in relation to the provision of the M-PESA Services (defined below).
When you use or are created as a Merchant and or by executing the Merchant Application Form you have agreed to abide by this Terms and Conditions of Use. You therefore need to read and fully understand these Terms and Conditions and if you do not agree with them, you must not proceed to register for and/or use the M-PESA Services.
DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings:
1. “Affiliate” means any entity, individual, firm, or corporation, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with either party.
2. “Arbitrage Transaction” prohibited transactions intended to take advantage of the services stipulated herein/falling outside the scope of these Terms and Conditions;
3. “Business Day” means any day of the week not being a weekend official holiday within Ethiopia;
4. “Business Number” means a destination code or numbering plan created by Safaricom M-PESA for the identification of the M-PESA pay bill accounts;
5. “Cash” means currency notes and coins constituting the legal tender of Ethiopia which, as the context requires: may be offered by a Customer in exchange for E-Money through the M-PESA System and subsequently credited to the Client’s M-PESA account; and may be paid to the Client pursuant to a Withdrawal Request Instruction given by the Client to Safaricom M-PESA;
6. “Coercive Practice” means impairing or harming, or threatening to impair or harm, directly or indirectly, any party or the property of a party to influence improperly the actions of a party;
7. “Confidential Information” means, without limitation, all information, software, data, manuals, concepts relating to marketing methods, products, developments, business and financial affairs and trade secrets, and other information of value to a party and not generally known, (whether or not designated as “confidential information” by any Party and whether written, oral, or in electronic form) and any other information clearly designated by a Party as “confidential information” or that is evidently confidential by its nature or the nature of its disclosure, and includes the terms of this Agreement;
8. “Collusive Practice” means an arrangement between two or more parties designed to achieve an improper purpose, including influencing improperly the actions of another party.
9. “Corrupt Practice” means the offering, giving, receiving, or soliciting, directly or indirectly, anything of value to influence improperly the actions of another party;
10. “Customer” means an M-PESA User who uses the MPESA system to pay money due to the Client and “Customers” shall be construed accordingly;
11. “E-Money” means the electronic value issued by Safaricom M-PESA and representing an entitlement to an equivalent amount of the Cash held by a trustee bank of Safaricom M-PESA (the “Trustee Bank”) in a trust account (the “Trust Account”) in respect of the acquisition of such electronic value;
12. “Effective Date” means the date upon which the Client’s M-PESA Account is activated by Safaricom M-PESA;
13. “EFT” means electronic funds transfer of the Client’s entitlement to Cash held in its M-PESA Account, from the Trust Account to the Client’s designated bank account and includes settlement transfers within the Settlement Period;
14. “Fraudulent Practice” means any act or omission, including a misrepresentation, that knowingly or recklessly misleads, or attempts to mislead, a party to obtain a financial or other benefit or to avoid an obligation;
15. “Intellectual Property Rights” means, in respect of each Party, such Party's proprietary rights, title, and interest in the intellectual property of whatever nature, description, or form, vesting in that Party as at the Effective Date or acquired by such Party at any time after the Effective Date;
16. “M-PESA Account” means the account belonging to the Client created in the M-PESA System through which the Client receives E-Money payments from Customers;
17. “M-PESA Service (s)” or “Service (s)” means the mobile money transfer service provided by Safaricom M-PESA and envisaged under this Agreement through which Customers can make E-Money payments to the Client;
18. “M-PESA System” or “M-PESA” means the system operated by Safaricom M-PESA providing the M-PESA Services and “M-PESA User” means either the Client or the Customer participating in the M-PESA System;
19. “M-PESA Website” means the site located athttps://m-pesa.safaricom.et/ or any other replacement website.
20. “MSISDN” means the Mobile Subscriber Integrated Services Digital Network Number issued to the M-PESA User which uniquely identifies the M-PESA User on the GSM Network of Safaricom Telecommunications Ethiopia PLC (the “Telecom Operator”), which is an Affiliate of Safaricom MPESA.
21. “GSM Network” means the global system for mobile telecommunications (GSM) network operated by the Telecom Operator.
22. “Transaction” means any movement of E-Money or Cash from one M-PESA User to another pursuant to instructions initiated on the M-PESA System and includes reversals and EFTs made by the Trustee Bank to the Client.
23. “Withdrawal Request Instruction” means an instruction given to Safaricom M-PESA by the Client requesting Safaricom M-PESA to redeem Cash on the Client’s behalf in exchange for the E-Money held in the Client’s M-PESA Account and to send it by EFT to the Client’s nominated bank account.
24. In this Agreement (including the recitals), unless the context otherwise requires:
  1. Words denoting the singular shall include the plural and vice versa and a reference to the masculine gender shall include a reference to the feminine gender and vice versa;
  2. References to clauses are references to the clauses of this Agreement;
  3. References to “Parties” shall mean the parties to this Agreement being Safaricom M-PESA and the Client and to “Party” shall mean either of them as the context may indicate;
  4. The expression “person” includes a natural person, body corporate, unincorporated venture, trust, joint venture, association, statutory corporation, state, a state agency, governmental authority or firm; and
  5. Headings to clauses are used for convenience only and shall not affect the construction and interpretation of this Agreement.
OPERATION AND SCOPE
1. The Client agrees to abide by the M-PESA operational procedures (the “Operational Procedures”) as may be prescribed by Safaricom M-PESA from time to time.
2. The Services will not be available to you if you are roaming. Applicable roaming tariffs for voice, data, or SMS charges will, however, apply when you are roaming and will be charged at the roaming rates outlined in our Tariff Guide.
3. With effect from the Effective Date, Safaricom M-PESA shall:
  1. Allocate a Business Number or Business Numbers through which Customers may make payments to the Client’s M-PESA Account through the M-PESA service functionality on the Customer’s M-PESA menu. For the avoidance of doubt, the Business Number or Business Numbers remain the property of Safaricom M-PESA and Safaricom M-PESA may, with reasonable prior notice to the Client, re-number, re-assign, re-allocate, or withdraw a Business Number(s) PROVIDED that Safaricom M-PESA shall not tamper with the M-PESA balances;
  2. Where the Merchant is entitled to an access to the M-PESA Portal, grant secure access rights to the M-PESA Website through which the Client may manage its M-PESA Account. For the avoidance of doubt, the M-PESA Website is proprietary and any material downloaded from it is Confidential Information;
  3. Provide customer service support to the Client;
  4. Provide customer service support to Customers using the M-PESA Service;
  5. Credit the Client’s M-PESA Account with E-Money upon receipt of E-Money paid through the M-PESA System;
  6. Prepare on demand and in any event within one (1) Business Day (the “Settlement Period”) an EFT of the Cash equivalent of accrued E-Money (less any charges and commissions) to the Client upon receiving a Withdrawal Request Instruction;
4. With effect from the Effective Date, Safaricom M-PESA shall:
  1. Reconcile and receipt payments received on the M-PESA System through its M-PESA Account;
  2. Initiate Withdrawal Request Instructions to Safaricom M-PESA for the redemption of accrued E-Money;
  3. Authorize Safaricom M-PESA to debit charges and commissions to its M-PESA Account for providing the service;
  4. Immediately notify Safaricom M-PESA Customer Care Services upon Customer Request for refund of any payment made to the Merchant M-PESA Account by mistake or for non-provision of services or goods by the Merchant;
  5. Use the Lipa Number strictly for Pay only transactions. It is herein prohibited to use the Lipa Number for any other transactions (Arbitrage Transactions);
  6. Permit data to be processed as the results of either giving Safaricom M-PESA instruction through its systems or in connection to third parties for the purpose of either providing services or introducing value added services or new products or promotion;
  7. Comply with Safaricom M-PESA’s charges for using the Service as may be notified to it by Safaricom M-PESA in writing from time to time;
5. The Client agrees that for the purpose of indemnification or compensation for the case whereby you use the Merchant system out of the agreed normal required operations, Safaricom M-PESA may withhold any amount whether in the Merchant’s M-PESA Account or otherwise that is due and payable to compensate Safaricom M-Pesa in order to cover for losses incurred due to transactions performed out of the agreed services and where the same is not enough, the Client shall pay the balance thereof. The Client further agrees that Safaricom M-PESA shall have a right to withhold the available amount under this Agreement upon failure by the Client to pay Safaricom M-PESA any outstanding amounts by the due date arising from other misuse of contractual relationships with Safaricom M-PESA
ACTIVATION OF THE M-PESA ACCOUNT
1. This Agreement comes into effect upon activation of the M-PESA Account by Safaricom M-PESA following (i) the acceptance of terms and conditions in this Agreement and (ii) the successful completion of KYC vetting procedures conducted on the Client by Safaricom M-PESA. The KYC documents shall include but not limited to a certified copy of the Valid Merchant Identity Card, TIN Number, VAT Registration Number and a Business License.
2. If the Client fails to produce the necessary KYC documents as set out in 4.1 above, or fails to satisfy the minimum KYC requirements, Safaricom M-PESA will refuse to activate the M-PESA Account and accordingly advise the Client as such (in which case this Agreement shall be null and void). For the avoidance of doubt, Safaricom MPESA’s refusal to activate the M-PESA Account shall neither confer on the Client any right to contest Safaricom M-PESA’s decision nor give rise to any legal claim against Safaricom M-PESA under this Agreement.
3. Where after activation of the M-PESA Merchant Account Safaricom M-Pesa finds any discrepancy in the KYC documents submitted by the Client, Safaricom M-Pesa shall be entitled to deactivate the Merchant M-PESA Account immediately.
REVERSALS
1. The Client shall within a reasonable period (but in any event no later than 72 hours) initiate and complete reversal transactions where a payment made to it is manifestly made in error.
2. Where the Client fails to initiate and complete the reversal in accordance with 5.1 in the event of a manifest error, then the Client consents to Safaricom M-PESA to initiate and complete the reversal. At all times Safaricom M-PESA shall only make the reversal having due regard to the circumstances of the erroneous payment.
3. Where a dispute in relation to a reversal arises, Safaricom M-PESA may suspend the Client’s M-PESA Account to facilitate an amicable resolution of the dispute.
SERVICE FEES
The Service shall be subject to the charges and minimum/maximum transaction values determined by Safaricom M-PESA from time to time. The Client acknowledges that Safaricom M-PESA may by notice from time to time vary the charges and minimum/maximum transaction values.
CONFIDENTIALITY
1. Each party warrants that it will treat in confidence all Confidential Information which it acquires as a result of the operation of this Agreement and to afford it the same protection afforded to its own Confidential Information but in any case, using no less than a reasonable degree of protection.
2. Any receiving party will not reveal any Confidential Information to any third party (including public statements) without the written consent of the disclosing party, except where such information is already in the public domain, has been legally acquired by the third party, or where disclosure of the confidential information is ordered by a court or other competent authority.
3. Safaricom M-PESA may disclose the Client’s Confidential Information if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with regulatory requirements (b) legal process; (c) enforce the terms of this Agreement; (d) respond to claims that the Client’s use of the M-PESA Service violates the rights of third-parties; or (e) protect the rights, property, or personal safety of Safaricom M-PESA, its Customers, and the public. Where such information is required for any of the purposes above, the Client shall provide such assistance as may be reasonably required by Safaricom M-PESA to ensure compliance.
4. The Client shall not at any time during or after the termination of this Agreement use or disclose to any third party any Confidential Information includes but not limited to the transactions statement except with the written consent of Safaricom M-Pesa.
WARRANTIES, INDEMNITIES & LIMITATION OF LIABILITY
1. The Client represents and warrants that none of its senior officers or directors (i) has ever been convicted of any crime (other than minor traffic offenses); and (ii) has ever been charged with any crime relating to fraud, embezzlement, theft, money laundering, financing terrorism or terrorist organizations, receiving stolen property, or illegal drugs or other controlled substances anywhere in the world. The Client shall notify Safaricom M-PESA in writing within forty-eight (48) hours after any of these representations and warranties cease to be true.
2. The Client warrants that it has obtained all the necessary approvals (whether internal or regulatory) to use the Service.
3. Each party shall indemnify the other, and keep each other indemnified, from and against any and all loss, damage or liability, costs, and expenses (including legal expenses) howsoever arising and incurred by the other party resulting from (i) any breach of this Agreement; or (ii) any third party claim in respect of any matter arising from any person’s conduct, provided that the liability has not been incurred directly through any default of either party in relation to this Agreement.
4. The Client shall indemnify and defend Safaricom M-PESA against, and pay any final judgment awarded against Safaricom M-PESA, resulting from third-party claims arising from the use of the Services leading to loss or damage (including consequential loss or damage) where the proximate cause of such loss or damage is attributable to the Client’s negligence, recklessness, indifference, delay or failure to receipt or acknowledge a Customer’s payment after the Customer has effected a Transaction to the Client on the MPESA System.
5. Safaricom M-PESA shall not be liable to the Client or any other person where:
  1. the Transaction amount sought by the Customer is below the minimum or above the maximum limits as communicated by Safaricom M-PESA from time to time;
  2. the Customer has entered incorrect details and the payment is made to the wrong M-PESA User;
  3. the Client’s hardware, software, or Telecom Operator’s service is dysfunctional;
  4. the Transaction is suspicious or fraudulent resulting in losses to a third party; or the Transaction details received are incorrect;
  5. the Client’s receipt of funds is intercepted by legal process or other encumbrance restricting the transfer; or
  6. unforeseen circumstances prevent the execution of a Transaction despite any reasonable precautions taken by Safaricom M-PESA.
6. Safaricom M-Pesa shall use reasonable efforts to maintain access to the Network and the M-PESA System through the term of this Agreement. However, Safaricom M-PESA does not warrant that they shall be functioning and/or available at all times. Such access is not fault-free and may be affected by factors outside Safaricom M-PESA’s control such as atmospheric conditions, type of mobile equipment in use, physical or topographical features, radio frequency interference, third party services the Merchant uses on the Network or compliance with Applicable Law and government order. Access to the M-PESA Service may also be temporarily interrupted during upgrading, maintenance and other works that may be required.
7. Without prejudice to any other provisions of this Agreement, each party undertakes to indemnify the other party and keep the other party indemnified on demand for and against all proceedings, costs, claims, damages, expenses, and liabilities of whatsoever nature howsoever suffered or incurred arising out of or by reason of any infringement or alleged infringement of any Intellectual Property Rights arising as a result of carrying out their obligations under this Agreement.
SUSPENSION
Safaricom M-PESA may, with reasonable notice where practicable, suspend the availability of the Service to The Client wholly or partially for any reason, including without limitation, where
1. The Client fails to comply with any laws, rules, or regulations of Ethiopia regarding the Service;
2. The Client fails to observe any term or obligation set out herein;
3. The Client carries on prohibited activities using the M-PESA Service as set out in Clause 12.
4. If Safaricom M-PESA is aware or suspect or have reason to believe that your Mobile Equipment or the MSIN/PIN number used in relation to the M-PESA Services is/are being used or has been so used previously, in an unauthorized, improper or fraudulent manner or for criminal activities;
5. If you notify Safaricom M-PESA that your Mobile Equipment or SIM Card has been lost or stolen or your PIN has been lost or disclosed to any other party;
6. If you do anything or allow anything to be done with your Mobile Equipment or SIM Card which we think may damage or affect the operation, revenue or security of the Vodacom Network or the M-PESA Services;
7. For reasons of force majeure and outside of our control or upon receipt of your request to close or suspend the same;
TERMINATION
1. Termination on Notice
  Either party may terminate the Agreement (i) for convenience by giving thirty (30) days prior notice in writing; or (ii) If either of the Parties commits a breach of any material obligation imposed on it in terms of this Agreement and fails to remedy such breach within a period of 15 (fifteen) days from the date on which written notice is given to the party in breach without prejudice to the right to hold the defaulting party liable in damages as a result of such termination.
2. Safaricom M-PESA may terminate this Agreement immediately if the Client uses or is reasonably suspected of using the MPESA Service in furtherance of any unlawful or criminal activity or for any conduct prohibited under clause 12. Safaricom M-PESA may terminate the Agreement if the M- PESA Account remains inactive for a period of six (6) months. For the avoidance of doubt, an “inactive” M-PESA Account includes one which has not had any credit entries over a continuous period of six (6) months.
3. The termination of this Agreement shall be without prejudice to all accrued rights and obligations of the Parties under this Agreement and to all obligations under this Agreement expressed to continue or take effect after expiration or termination.
TAXES
1. The Client shall solely determine, collect, remit, and declare all taxes and income resulting from or in consequence of using the Services to the relevant tax authority and to pay all taxes levies, and fees due on such income. Safaricom M-PESA shall not be liable to the Client for any failure by the Client to comply with its obligations under this clause and the Client shall indemnify Safaricom M-PESA from any loss or damage arising from any failure to comply with its obligations under this clause.
2. Each Party shall bear and be responsible for its own taxes, charges, impositions, or levies imposed by law.
PROHIBITED USAGE AND CONDUCT
The Client agrees to not use the Services to:
1. Conduct anything that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable or criminal;
2. Impersonate any person or entity, including, but not limited to, a Safaricom M-PESA official, or fellow user, or falsely utter or otherwise misrepresent its affiliation with a person or entity;
3. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
4. Conduct anything that makes available any content or information that the Client does not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
5. Conduct any activity that infringes any Intellectual Property Rights;
6. Conduct any activity whether solicited or unsolicited, relating to or remotely connected to SPAM, junk mail, pyramid schemes, pornography, unlicensed gaming or gambling or any other form of solicitation;
7. Conduct any activity that makes available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
8. Conduct any business that interferes with or disrupts the Service or servers or networks connected to the Service, or disobeys any requirements, procedures, policies or regulations of networks connected to the Service;
9. Conduct any business that intentionally or unintentionally violates any applicable local or international law or regulation;
10. Collect or store personal data about other users without their express authority; or
11. Aggregate payments or create “collection accounts” on behalf of third-party persons without the written consent of Safaricom M-PESA.
12. Conduct cash-related transactions unless registered as an agent.
13. Engaged in Corrupt Practice, Fraudulent Practice, Collusive Practice, or Coercive Practices during the procurement or the execution of this Agreement.
PREVENTION OF MONEY LAUNDERING SANCTIONS AND TRADE/EXPORT CONTROL LAWS
1. The movement of money through the M-PESA System which is or which forms part of the proceeds of any crime or which is intended to facilitate, aid or finance the commission of any crime is expressly prohibited.
2. The Client shall ensure that all its staff and officers responsible for the Merchant business comply with the Applicable Laws relevant to this Agreement. The Client shall have an obligation to notify Safaricom M-PESA in the event of a breach of such laws or a change of status in respect of Sanctions and Trade controls. In such circumstances, Safaricom M-PESA shall have the right to suspend services or terminate the Agreement with immediate effect and without liability.
3. Pursuant to clause 13.2 above applicable 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) Safaricom M-PESA in the provision/receipt of the Services and/or (ii) the Client in the receipt/provision of the Services or the carrying out of its business. Such laws specifically include Sanctions and Export controls restrictive measures.
4. The Client staff and officers shall adhere to the know your customer (KYC) and customer identification procedures in the course of performing transactions requested by customers including accepting and effecting payments.
5. Notwithstanding anything to the contrary contained in this Agreement, Safaricom M-PESA shall be entitled to forthwith terminate this Agreement (without prejudice to any of Safaricom M-PESA’s rights in terms of this Agreement or at law including, but not limited to, any right to claim damages) in the event that Safaricom M-Pesa reasonably and in good faith determines that the Client has breached any of its obligations contained in this clause.
6. Upon termination of this Agreement by Safaricom M-PESA pursuant to this clause the Client shall not be entitled to payment if any under this Agreement and shall have no claim of whatsoever nature against Safaricom M-Pesa arising out of such termination.
GOVERNING LAW AND JURISDICTION
The validity, construction, and interpretation of this Agreement shall be governed by the laws of Ethiopia.
DISPUTE RESOLUTION
In the event that any dispute has arisen, and the parties have not been able to settle the same, within thirty (30) days then, any party may elect to commence arbitration. Such arbitration shall be referred to arbitration by a single arbitrator to be appointed by agreement between the Parties or in default of such agreement within 14 days of the notification of a dispute, upon the application of either Party, by the Chairman for the time being of the Addis Ababa Chamber of Commerce Institute of Arbitration. Such arbitration shall be conducted in Addis Ababa in accordance with the Rules of Arbitration of the said Institute and subject to and in accordance with the provisions of the Arbitration and Conciliation Working Proclamation No. 1237/2021 (as may be amended from time to time). To the extent permissible by Law, the determination of the Arbitrator shall be final, conclusive, and binding upon the parties. Pending final settlement or determination of a dispute, the Parties shall continue to perform their subsisting obligations. Nothing in this Agreement shall prevent or delay a Party from making claims or seeking injunctive or interlocutory relief in the relevant Federal Courts in Addis Ababa.
AMENDMENTS
This Agreement (save for terms and conditions, bulletin, notices and other matters expressly reserved under this Agreement for the determination of Safaricom M-PESA) shall not be varied unless such variation shall be expressly agreed in writing by each party.
ASSIGNMENT
This Agreement may not be assigned by the Client, by operation of law or otherwise, without the prior written consent of Safaricom M-PESA. Safaricom M-PESA may assign any right or obligation under this Agreement without the prior written consent of the Client.
NOTICES
Except as otherwise specified in the Agreement, all notices, requests, approvals, consents, and other communications required or permitted under this Agreement shall be in writing and shall be personally delivered or sent by mail, registered or certified, return receipt requested, postage prepaid, courier service to the address specified above. Notices shall be deemed given on the day actually received by the party to whom the notice is addressed.
WAIVER
No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights.
SEVERABILITY
Any provision of this Agreement held by a court of competent jurisdiction to be contrary to any law shall be severed from the agreement, but such severance shall not render the remaining provisions of this agreement ineffective. The remaining provisions of this Agreement will remain in full force and effect.
FORCE MAJEURE
Notwithstanding any provision contained in this Agreement, neither party shall be liable to the other to the extent fulfillment or performance of any terms or provisions of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of enemies; strikes; lack of available resources from persons other than parties to this Agreement; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; government or regulator action; or, without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent, whether of the class of causes hereinbefore enumerated or not. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of such an event.