GiriToday

GiriToday Merchant Service Agreement

1. INTRODUCTION

This Merchant Service Agreement (“this Agreement” or “Terms of Service”) is between GiriToday Technology Limited (hereinafter referred to as “GiriToday” which expression shall, where the context so admits include its successors-in-title and assigns) and entity or person accessing or using GiriToday’s Services (“Merchant” or “Merchants”). If you are accessing or using the GiriToday Platform on behalf of another entity, then that entity is the Merchant or Merchant. GiriToday may modify these Terms from time to time in accordance with terms of this Agreement below.

This Agreement shall include any other Policies included GiriToday shall publish on its Websites or Platform in respect to any part of the Services to the Merchant and shall together constitute the entire understanding of parties with respect to the subject matter described herein and constitute the entire agreement between Parties (together the “Agreement”).

Where an authorized representative of the Merchant “click through” or otherwise accept or be made subject to any terms and conditions in using an electronically delivered contract, any such terms and conditions are deemed agreed upon clicking “I Agree”. By using the Services, the Merchant enters into the Agreement and confirms that its authorized representatives have read, understood and accepted these Terms.

1.1 Scope – In this Agreement, unless otherwise stated; 1.1.1 This Agreement will apply to the supply by GiriToday and Merchant’s use of GiriToday e-commerce and listing services, product listing services, payments services, multi-currency wallet services and any other online or offline services or component to a service provided to the Merchant (“the Service(s)” Service(s)”).

1.1.2 The provisions of this Agreement shall apply in respect of the Services and the subject matter of this Agreement to the exclusion of any other terms and conditions, including those set out in any invoice, delivery note, side letter or any other documentation of a Merchant, and whether provided by GiriToday before or after the effective Date.

1.1.3 In the event of a conflict between these Terms and Conditions and any other Agreement, the Terms and Conditions shall prevail, save to the extent of any express amendment referred to in the Agreement.

2. AUTHORIZATION, COMMENCEMENT AND DURATION

2.1 GiriToday hereby grants to the Merchant, a non-exclusive, non-sublicensable, non-assignable and license to access and use the Service solely for the Merchant’s business operations subject to the terms of this Agreement.

2.2 Unless otherwise agreed by the Parties in writing, this Agreement is effective as of the date that the authorized representatives of the Merchant agrees to this Agreement or the date of the creation of the Merchant Account (whichever comes first) and shall remain in force for a period of one (1) year (“Initial Term”); and shall automatically renew and extend for successive one-year term (each a “Term”) upon the same terms.

3. GIRITODAY’S OBLIGATIONS

GiriToday shall;

3.1 provide the Services under this Agreement per best practice;

3.2 grant the Merchant, a non-exclusive, non-sublicensable, non-assignable license to access and use the GiriToday Platform solely for the Merchant’s business operations;

3.3 develop, maintain, and support APIs (Application Programming Interface) based on the agreed specifications subject to the scope of this Agreement;

3.4 ensure availability of the Services in accordance with stated service levels excluding planned outages. GiriToday shall not be responsible for any losses or anticipated losses of revenue assessed by during an outage.

3.5 deploy commercial best efforts to ensure the Service and the Platform is free from viruses, worm and nefarious code.

3.6 ensure that it abides by all applicable state, national and international laws and regulation when providing the Service.

3.7 Notify the Merchant via a notification API, in respect of all Services provided by GiriToday.

3.8 respond promptly to all fraud enquiries not later than five (5) Business Day of receipt of such enquiry.

3.9 promptly notify the Merchant of any security breach, misuse, irregularity, suspected fraudulent transaction or suspicious activities that may be connected with attempts to commit fraud or other illegal activity carried out through or on the Merchant’s account on the Platform once it becomes aware and the corrective action taken;

3.10 maintain all other API(s) responsible for sustaining the functionality of the Services and the Platform;

3.11 from time to time communicate technical requirements as well as guidelines in connection with the Merchant’s use of the Services;

3.12 provide the Merchant with access to a secure, web-based portal to enable real time monitoring of transactions from use of the Service;

4. MERCHANT’S OBLIGATIONS

The Merchant shall:

4.1 create an account by registering on the GiriToday Dashboard and providing true, accurate, and complete information about the Merchant and its use of the Service. The Merchant shall be deemed to have honestly represented its identity, the legality of the Merchant’s business undertakings and any other information provided in the creation of the Merchant’s account.

4.2 Implement processes and procedures to facilitate the prevention of unauthorized access to and use of the Service and shall notify GiriToday as soon as possible after the Merchant becomes aware of any such unauthorized access and use;

4.3 pay the requisite fees for the Merchant’s use of the Service;

4.4 comply with all technical requirements prescribed by GiriToday for the continued availability/use of the Service;

4.5 maintain incident response procedures;

4.6 implement policies to protect End-User information against unauthorized access; whether stored, printed, spoken or transmitted;

4.7 provide End-User support with escalation procedures;

4.8 ensure that remote access to the Service and the Platform is only possible over secure connections;

4.9 shall not solicit or exchange any information outside this environment, failure to comply can result in account termination;

4.10 Provide accurate product information and descriptions and warrant same to be true and accurate description of said product or listing

5. MUTUAL OBLIGATIONS

Each Party under this Agreement shall;

5.1 comply with reasonable requests from the other Party for action on its part, to the extent necessary to maintain the security and integrity of the Services;

5.2 comply with all applicable Anti Money Laundering/Combating the Financing of Terrorism, and any existing data protection laws and regulations in Nigeria;

5.3 be liable and indemnify the other Party in full against all penalties or sanctions that may be levied on the other Party by any regulatory authority as a result of any failure or omission on its part to obtain any requisite regulatory permits or licenses where necessary.

6. FEES

6.1 GiriToday shall provide the fees applicable for every Service on the Platform and set the same out under the Fee and Pricing Policy of the GiriToday website.

6.2 GiriToday reserves the right to change its fees provided that it shall notify the other Party in writing thirty (30) days prior to implementing such price review.

7 INTELLECTUAL PROPERTY

7.1 Parties shall retain all rights over their respective intellectual property. Neither Party shall have any rights or interest over the other’s intellectual property, whether developed during the pendency of this Agreement or prior to the commencement of this Agreement.

7.2 At the expiration of this Agreement or the termination of this Agreement by either Party, a Party must:

7.2.1 immediately cease to use the other Party’s Intellectual Property; and

7.2.2 deliver to the other Party and/or destroy any and all materials in its possession or control that bears or contains the Intellectual Property of the other Party and confirm in writing to the other Party that it has done so.

7.3 All intellectual property rights in or pertaining to the Trademarks and any promotional material, point of sale material, brochures, sales commercial training or other literature provided by either Party shall remain the property of the Party providing it, and the other Party shall acquire no rights in the same. In a similar manner, one party shall not be permitted to use the Intellectual property of the other Party for any reason whatsoever without the prior written consent of the other Party whose consent shall not be unreasonably withheld.

7.4 For the duration of this Agreement, both Parties may use the other’s current name or logo in marketing, sales or financial materials. This permission shall only grant the Parties the express non-exclusive right to use the other’s name or logo to identify GiriToday as its Service provider, Merchant or Reseller.

7.5 GiriToday reserves the right to use merchant Intellectual Property for promotional purposes and Marketing purposes, but a written consent will be agreed upon for commercial reasons only.

7.6 Each Party (the “Suggesting Party”) acknowledges and agrees that any feedback, suggestions, comments, improvements, and ideas (collectively “Improvements”) made to the other party (“Service Provider”) in respect of its Service, may be incorporated into the said Service and will be and remain the exclusive property of the Service Provider and may be used and exploited without limitation as the Service Provider may deem fit, without obligation of any kind and without any obligation of confidentiality, attribution, accounting, compensation or other duty to account to the suggesting Party.

7.7 Nothing in this Agreement shall be construed to permit any Party under this Agreement to decipher, decompile, disassemble, copy, reverse engineer, or attempt to derive the source code or underlying ideas or algorithms responsible for the Services or any part of it.

8 PROHIBITED USE

8.1 The Merchant agrees not to or otherwise enable any third Party to;

8.1.1 access or use the Services for any unlawful, infringing, threatening, abusive, obscene, harassing, defamatory, deceptive, or fraudulent purpose; 8.1.2 access or use the Service in violation of all other applicable laws in Nigeria. 8.1.3 access or use GiriToday’s service to infringe any person’s or entity’s intellectual property, right of publicity, reproduction rights or any other exclusive rights; 8.1.4 scan or test (manually or in an automated system) the vulnerability of any part of GiriToday’s Platform without express prior written permission from GiriToday; 8.1.5 breach, disable, interfere with, or otherwise circumvent any security or authentication measures or any other aspect of the Service; 8.1.6 overload, flood, or spam any part of the Service; 8.1.7 transfer, syndicate, resell, or otherwise distribute GiriToday’s service except otherwise agreed.

9 CHANGES TO THIS AGREEMENT

This Agreement may be amended at the instance by GiriToday and shall provide notice of any changes through other means, such as placing a notice on our homepage at GiriToday.com or by an electronic. Such changes shall take effect within 7 days of the changes being published. Merchant may choose to cease its operation of the Service forthwith where changes are unfavourable to the Merchant.

10 TERMINATION

10.1 Notwithstanding any other provision of this Agreement, either Party shall be entitled to terminate this Agreement upon giving thirty (30) days’ written notice of its intention to terminate the Agreement and such termination shall be effective upon the expiration of the thirty (30) days’ notice.

10.2 Either Party may terminate this Agreement, without notice to the other Party in the event of;

10.2.1 any breach by the Merchant of any of the terms of this Agreement;

10.2.2 a change of control of the other Party which is in the reasonable opinion of the first Party detrimental to the first Party’s interests; or

10.2.3 any breach of the Intellectual Property rights of the other Party.

10.3 Upon the termination of this Agreement, each Party shall immediately return to the other Party all papers, materials, data and other property of the other Party in its possession or held by it in connection with the performance of this Agreement. Notwithstanding the above, either Party shall be entitled to retain information concerning the other Party if and to the extent that it is required to do so in terms of its reasonable retention of records policy or in terms of any applicable law, subject at all times to the confidentiality obligations under this Agreement.

10.4 Termination of this Agreement shall be without prejudice to the rights of the Parties which have accrued prior to termination.

10.5 Outstanding Transactions - Upon termination of this Agreement for any reason whatsoever, the parties will return all information and/or all outstanding transactions with respect to this Agreement that have not been settled prior to termination of this Agreement to the relevant party. For the avoidance of doubt, the provisions in this Agreement relevant to such outstanding transactions shall survive the termination of this Agreement.

10.6 The termination of this Agreement under this clause however shall be without prejudice to the Parties right to seek remedy for breach under this Agreement and Applicable Laws.

10.7 Either Party may terminate the Agreement forthwith where the other Party enters into any liquidation, calls any meeting of its creditors, or Receiver or Receiver-manager or Administrator has been appointed in respect of all or any of its undertakings or assets, or suffers the appointment or the presentation of a petition for the appointment of a liquidator, or is deemed to be unable to pay its debts under the provisions of the Companies and Allied Matters Act 2020.

11 PRIVACY AND SECURITY

11.1 Each Party shall comply with its obligations under the Nigeria Data Protection Act (NDPA) 2023 and all applicable data protection laws as well as deploy reasonable efforts to satisfy all reasonable requests made by the other Party to ensure compliance with the measures contained in this Agreement and the Data Processing Agreement between Parties.

11.3 GiriToday shall use all reasonable effort to ensure the security of their respective platform including, but not limited to, securing all hardware behind firewalls, deploying intrusion prevention software, and restricting access both physically and logically to the servers hosting their respective platforms.

11.4 Each Party shall maintain the highest level of security and ensure all interaction with servers must happen over Secure Sockets Layer (SSL) transmission.

11.5 If either Party: i. becomes aware of any unauthorised or unlawful processing of any relevant data or that any relevant data is lost or destroyed or has become damaged, corrupted or unusable; ii. becomes aware of any security breach; or

iii. learns or suspects that any security feature has been revealed to or obtained by any unauthorised person,

that Party shall, at its own expense, promptly notify the other Party in line with the terms of this Agreement and fully co-operate with the other Party to remedy the issue as soon as reasonably practicable.

11.6 To the extent that a security breach arises out of any negligence or willful default of a Party or any breach by that Party of its warranties, that Party shall indemnify, defend and hold the other Party harmless from and against any losses, damage, claims, liabilities, costs and expenses, including reasonable attorneys’ fees and other reasonable legal expenses arising out of or relating to such security breach.

12 INDEMNITIES AND LIABILITIES

12.1 Both Parties undertake to indemnify each other against all liabilities, damage, losses, expenses, actions, proceedings and claims arising from:

12.1.1 Any breach of any representation or warranty contained in this Agreement; 12.1.2 Any breach or violation of any covenant or other obligation under this Agreement or applicable laws; 12.1.3 Any claim alleging negligent act or omission or willful misconduct of the other Party or its employees. 12.2 Each Party's indemnification obligations are conditional upon the indemnified Party:

12.2.1 Promptly notifying the indemnifying Party of any claim in writing; 12.2.2 Cooperating with the indemnifying Party in the defense of any claim; and; 12.2.3 Granting the indemnifying Party control of the defence or settlement of the claim.

12.3 Parties shall not be entitled to indemnification if the claim is based on or results in any material part from the negligence or unlawful or wrongful acts of the Party seeking indemnification.

12.4 Except where directly attributable to the negligent acts or omissions of a Party, no Party shall be liable for any damages, claims, costs, expenses or losses whatsoever which may be suffered by the other Party, including but not limited to any direct, indirect, special, consequential, punitive or incidental damages, or damages for loss of use, profits, data or other intangibles, or the cost of procurement of substitute goods and services, arising out of or related to the use, inability to use, unauthorized use, performance or non-performance of the Services, or anything done or not done pursuant to this Agreement whether such damages arise in contract, delict, under statute, at law or any other cause without limitation and whether this Agreement has been terminated or not.

12.5 Notwithstanding any other provision contained in this Agreement, GiriToday acknowledges that transactions carried out through GiriToday’s service may be routed through relevant third parties and GiriToday is not solely responsible for the completion or success of transactions.

12.6 Time Limitations - The Parties shall not be entitled to indemnification unless notice is given to the indemnifying Party within twelve (12) months from the date of the event that resulted in the loss, damage, injury, or liability forming the basis of the indemnified claim.

12.7 Limitation of Liability –

12.7.1 Notwithstanding any other provision of this Agreement, GiriToday’s aggregate liability to the Indemnified Party whether under contract law, tort law, warranty or otherwise shall in no event exceed the fees received by GiriToday under terms of this Agreement, in the one (1) year period preceding the date the first of such claim(s) arises. The limit of liability applies irrespective of the number of claims.

12.7.2 No liability shall be raised against GiriToday more than two (2) years after the accrual of the cause of such liability, therefore. It is further agreed that the limitations on liability, expressed herein, shall extend to the benefit of and apply to all parents (both direct and indirect), subsidiaries and Affiliates of GiriToday.

12.8 Failure of third-party dependencies - Subject to the provisions of this Agreement, GiriToday shall not be liable for any loss as well as any special, indirect, incidental, punitive, or consequential damages, including loss of profits arising from a service failure/service unavailability, erroneous presentation of account transaction information by the End-User’s banker or financial institution or financial account service provider as well as erroneous input of credentials by the End-User, failure or delay in any mobile phone networks or internet service provider of the End-User.

13. DISPUTE RESOLUTION AND GOVERNING LAW

13.1 This Agreement shall be governed and construed in accordance with the laws of the Federal Republic of Nigeria.

13.2 The Parties shall use their best endeavor to amicably settle between them, any dispute or difference of opinion arising from or in connection with this Agreement.

13.3 Any dispute which cannot be amicably resolved in accordance with Clause 13.2 above within thirty (30) days shall be settled before a sole arbitrator to be appointed by mutual agreement of the Parties, in accordance with the Lagos State Arbitration Law 2009 (or any amendments or modification to the same). In the event that the Parties are unable to mutually agree on a sole arbitrator within thirty (30) days after a dispute has arisen, such arbitrator may be appointed by the Chairman of the Chartered Institute of Arbitrators UK (Nigeria Branch) on the application of either Party.

13.4 The seat of Arbitration shall be Lagos, Nigeria and the language of arbitration shall be English. The proceedings and decision shall be confidential to the Parties and their advisers. Each Party shall bear its own cost for the proceedings.

13.5 This clause shall survive the termination of this Agreement and shall accordingly always apply to disputes arising between the Parties under this Agreement. Notwithstanding the above provisions, nothing shall preclude either Party from seeking urgent relief or injunctive remedies from a court of appropriate jurisdiction, where grounds for urgency exist.

14. CONFIDENTIAL INFORMATION

14.1 Each Party undertakes that it shall not at any time disclose to any person any Confidential Information disclosed to it by the other Party concerning the business affairs of the other Party or of any of its affiliate or related company, including information relating to a party’s operations, processes, plans, designs, trade secrets, market opportunities and Merchants and which:

14.1.1. at the time of coming to a Party’s knowledge is not already a part of the public domain;

14.1.2. has not after coming to a Party’s knowledge, become part of the public domain through no fault of that Party; and

14.1.3. is not required to be disclosed for a proper purpose to any governmental, regulatory or other public authority or to a court of law or other tribunal.

14.2 Each Party may disclose the other Party’s Confidential Information:

14.2.1 to its employees, officers, agents, consultants or sub-contractors (“Representatives”) who need to know such information for the purposes of carrying out the Party’s obligations under this Agreement, provided that the Receiving Party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause as though they were a party to this Agreement. The Receiving Party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause. Such Representatives shall be under similar confidentiality obligations to the extent that this Agreement requires.

14.2.2 as may be required by law, court order or any governmental or regulatory authority, provided that the Receiving Party shall to the extent permitted by Applicable Laws inform the Disclosing Party of the disclosure requirement prior to such disclosure.

14.2.3 PROVIDED that the Disclosing Party under this clause shall subject to applicable laws; a. give to the other Party prompt written notice of the request and a reasonable opportunity to object to the disclosure and seek a protective order or appropriate remedy; b. disclose Confidential Information only to the extent required.

14.3 Upon the termination of this Agreement, subject to applicable Data Retention Policies/Schedules, each Party shall immediately return to the other Party all papers, materials, data and other property of the other Party in its possession or held by it in connection with the performance of this Agreement. Notwithstanding the above, either Party shall be entitled to retain the other Party Confidential Information only to the extent required in terms of its reasonable retention of records policy or any Applicable Law, subject at all times to the confidentiality obligations as set out in this Clause.

14.4 No Party shall publish, reproduce, circulate, or otherwise distribute or disclose any Confidential Information related to this Agreement without the express written consent of the Party that owns that piece of Confidential Information.

14.5 Each Party’s Confidential Information shall only be used by the other Party in the performance of its obligations under this Agreement.

14.6 Each Party agrees that it shall take all reasonable measures to protect the confidentiality of and avoid disclosure or use of confidential Information of the other Party to prevent it from falling into the public domain or the possession of parties other than those authorized under this Agreement to have any such information. Each Party further undertakes to promptly notify the Disclosing Party in writing of any actual or suspected misuse, misappropriation, or unauthorized disclosure of the Receiving Party’s Confidential Information.

14.7 The Parties agree that a breach of the confidentiality obligations contained in this Agreement may cause irreparable damage for which monetary damages cannot be an adequate relief, a Party is entitled to seek injunctive reliefs in addition to any other legal and monetary remedies that may be available to the affected Party.

14.8 The Parties agree not to use any confidential Information in any competitive form, either directly or indirectly.

14.9 The confidentiality obligation imposed under this Agreement shall continue to bind the Parties after the termination or expiration of this Agreement.

15. REPRESENTATIONS & WARRANTIES

15.1 Each Party represents and warrants that:

15.1.1 It is duly registered and legally existing under the laws of the Federal Republic of Nigeria with legal capacity to execute, deliver and perform this Agreement; 15.1.2 that the execution, delivery and performance of this Agreement has been authorized by its board of directors and all necessary action has been taken on its part and does not contravene any law, regulation, rule, order, agreement or commitment binding on it; 15.1.3 that this Agreement constitutes a legal, valid and binding obligation of the Party, enforceable against it in accordance with the terms of this Agreement; 15.1.4 that no other agreement, whether in writing or verbal form, exists between it and other third parties that would affect its obligations under this Agreement; and 15.1.5 the contents of all documents and other information supplied to the other Party during the course of negotiations between the Parties leading to the execution of this Agreement were, when given, true, accurate and complete in all material respects and there is no fact or matter which has not been disclosed in writing which renders any such documents or information untrue or misleading at the date of this Agreement or which on the basis of utmost good faith ought to be disclosed.

15.2 GiriToday provides the Services “as is” and all information, products and other content (including third party information, products and content) included in or accessible from the Service. Subject to the provision of Clause 15 of this Agreement, the Service and Platform is provided and are subject to change at any time with seven (7) days’ advance notice to the other Party.

15.3 Neither GiriToday nor its affiliates/Resellers make any representations or warranties concerning the Services except as may be expressly stated by GiriToday, in writing, or set out herein. GiriToday hereby warrants to the Merchant that its services to the Merchant or the Merchant-Merchants will be provisioned in accordance with their published specifications in all material respects. GiriToday further warrants that in performing its obligations hereunder, GiriToday shall exercise due care and reasonable efforts to ensure that information originated by GiriToday and provided to the Merchant is accurate.

15.4 Except where expressly stated GiriToday disclaims any further warranties, either express or implied, including but not limited to, the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and title.

16. NON-EXCLUSIVITY

Parties acknowledge and agree that the arrangement outlined in this Agreement is non-exclusive and shall not prevent or limit GiriToday’s commitments, previous agreements and capacity nor shall it impair any rights or obligations which GiriToday may have under any other agreement or arrangement with its partners or other Merchants.

  1. THIRD-PARTY TERMS

17.1 Subject to Clause 15 of this Agreement, the Parties acknowledge that GiriToday’s provisioning of the Services and the use of the Service by the Merchant may be subject to terms of the applicable Agreements (collectively referred to as “Third-Party Terms”) with the following parties;

17.1.1. Other technology providers responsible for delivery any parts of the services such as payments gateways, switches etc; Terms of Service.

17.1.2. Any of GiriToday or the Merchant’s Financial Institution; Terms of Service.

17.1.3. Any other terms relating specifically to the service

17.2 GiriToday shall use all commercially reasonably efforts to ensure that its provisioning of the Service is consistent with all Third-Party Terms. In the event that the use of the Service is in breach of any Third-Party Terms, without limitation to other rights of the Merchant hereunder, GiriToday shall provide the Merchant with a notice of the breach together with a copy of the clause that had been breached. The Merchant shall have thirty (30) days from such notice to cure the breach before it shall be deemed to be in default hereunder.

18. ANTI-MONEY LAUNDERING AND ANTI-CORRUPTION

  1. 18.1 Each Party hereby undertakes that, at the date of this Agreement, itself, its directors, officers, employees or Affiliates have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantages of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with this Agreement and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so.
  2. 18.2 Each Party shall comply with all applicable anti-bribery and anti-corruption laws in any relevant jurisdiction (including those in the Territory and the Foreign Corrupt Practice Act of the United States of America and the Bribery Act 2010 of the United Kingdom) and all applicable anti-bribery and anti-corruption regulations and codes of practice.

19. MISCELLANEOUS

  1. 19.1 Taxes - Payment under this Agreement does not include taxes and the Merchant shall pay all taxes applicable to payments between the Parties under this Agreement.
  2. 19.2 Relationship Between Parties – Notwithstanding anything contained in this Agreement, the relationship between the Parties hereto shall be a service provider – Merchant relationship for the single purpose of the business relationship herein created. This Agreement shall not in any way constitute a partnership or joint venture between the Parties or constitute either Party an agent of the other.
  3. 19.3 Severability - if any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remaining provisions of this Agreement shall continue in full force and effect as if the Agreement had been executed with the invalid portions eliminated. The parties agree to substitute for the invalid provision a valid provision, which most closely approximates the intent and economic effect of the invalid provision.
  4. 19.4 Assignment – Neither Party shall assign or transfer this Agreement or their rights or duties hereunder, in whole or in part, by operation of law or otherwise, without the other Party’s prior written consent. Notwithstanding the foregoing, a Party may assign such rights and obligations to an acquiring or successor entity in connection with a merger or acquisition, including the sale of all or substantially all of the assigning Party’s assets; provided that no such assignment of this Agreement shall be to any person offering competitive services similar to without GiriToday consent. Any assignment or transfer in violation of this section will be null and void and of no force or effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each Party's permitted successors and assign
  5. 19.5 Waiver - Any delay, omission or failure to exercise any right or remedy under this Agreement shall not constitute a continuing waiver of such right or remedy.
  6. 19.6 Electronic Notices – Notices and other communications shall be delivered or furnished by using electronic transmission. All notices to either of the Parties given by electronic transmission shall be effective if given by such electronic medium agreed by Party to whom the notice is given and shall be deemed given;
    1. 19.6.1 if by facsimile telecommunication, when directed to a number at which the Merchant has consented to receive notice;
    2. 19.6.2 if by electronic mail, when directed to an electronic mail address at which the Merchant has consented to receive notice;
    3. 19.6.3 if by a posting on an electronic network, together with separate notice to the Merchant of such specific posting, upon the later of such posting and the giving of such separate notice; and
    4. 19.6.4 if by another form of electronic transmission, when directed to the Merchant.

    For purposes of this Agreement, “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

  7. 19.7 Force Majeure
    1. 19.7.1 Neither of the Parties shall be liable to each other for failure or delay in performance of an obligation or enjoy the Service under this Agreement attributable to a cause beyond its reasonable control (Force Majeure as defined below), including but not limited to:
    2. 19.7.2 Acts of nature such as earthquake, floods, tornadoes, fire, actions or inactions of government;
    3. 19.7.3 War, civil disturbance, insurrection, vandalism, sabotage, epidemics, pandemics,
    4. 19.7.4 Explosions, fires, destruction of machines, factories and any kind of installations,
    5. 19.7.5 Boycotts, strikes and lock-outs of all kinds, go-slows, occupation of factories and work stoppages,
    6. 19.7.6 Acts of authority; whether lawful or unlawful, apart from acts from which the Party seeking relief has assumed the risk under any other provisions of this agreement.
    7. 19.7.7 The affected Party shall, within 5 (five) Business Days of such Force Majeure event, give written notice to the other Party of the Force Majeure event. The notice shall detail the event and its effect on the affected Party's ability to perform its obligations in terms of this Agreement.
    8. 19.7.8 Where the Force Majeure is of such a nature that it will result in the impossibility of performance of the obligation in question, the other Party shall be entitled, on receipt of the notice of the Force Majeure, to terminate this Agreement on notice to the affected Party but shall not be entitled to recover any damages which it may suffer as a result of such termination.
    9. 19.7.9 Where the Force Majeure is of such a nature that it will not result in the impossibility of performance of the obligation in question but will delay the performance thereof, the Affected Party shall be entitled to such extension of time in which to perform that obligation as may be reasonable in the circumstances, taking into account the interests of both Parties, provided that if such Force Majeure persists for a period above 30 (thirty)days, either Party shall be entitled, immediately on the expiry of such 30 (thirty) day period, to terminate this Agreement, and in such circumstances, neither Party shall be entitled to recover any damages which it may have suffered as a result of such premature termination.
  8. 19.8 Survival - Any sections intended to survive termination or expiration of this Agreement will survive the termination or expiration of this Agreement.
  9. 19.9Territory - The Agreement shall be applicable within Nigeria and any other country of the Party’s choice, which Parties may agree on from time to time. It is however understood that parties may propose terms governing its relationship under a separate Agreement between the Parties.
  10. 19.10 Definitions - In this Agreement, the following words and expressions shall have the meanings assigned to them, except where the context otherwise requires:
    1. 19.10.1 “Application Programming Interface(s)” or “API” means a set of programming code that enables data transmission and interoperability between one software product or web platform and another;
    2. 19.10.2 "Affiliate" means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity;
    3. 19.10.3 “Business Days" means a day other than a Saturday, Sunday or public holiday on which banks are open for general business in Lagos, Nigeria;
    4. 19.10.4 “Confidential Information” means all information (written, oral or electronic) disclosed by the Disclosing Party to the Receiving Party whether before or after the Effective Date and concerning the business affairs of the Disclosing Party including API as well as any Data or, information relating to that Party's operations, processes, plans, intentions, product information, know-how, designs, trade secrets, software, market opportunities, Merchants and including the provisions of this Agreement;
    5. 19.10.5 "Control" means an ownership, voting or similar interest representing fifty (50) per cent or more of the total interests of the entity in question. The term "Controlled" shall be construed accordingly;
    6. 19.10.6 “Data” means the quantities, characters, or symbols on which operations are performed by a computer, which may be stored and transmitted in the form of electrical signals and recorded on magnetic, optical, or mechanical recording media;
    7. 19.10.7 "Data Protection Laws" means all data protection laws and regulations applicable to a Party's processing of Personal Data under the Agreement, including the Nigeria Data Protection Regulation, 2019 or any modification or amendment thereof;
    8. 19.10.8 “Data Subject” means a natural person who can be identified directly or indirectly by reference to the Personal data collected by the Parties;
    9. 19.10.9 “Disclosing Party” means the party disclosing Confidential Information in terms of this Agreement;
    10. 19.10.10 “End-User” means A person, entity or group whose information/data/financial records are being processed by the Service or on the Platform;
    11. 19.10.11 “Intellectual Property” means in relation to a Party, all intellectual property of whatever nature owned and or controlled by that Party, whether or not capable of registration (including applications for and rights to obtain, use or for protection), including copyright, patents, proprietary material, trademarks, design, know-how, trade and business secrets, new proprietary and secret concepts, methods, techniques, processes, adaptations, ideas, technical specifications, inventions and testing;
    12. 19.10.12 "Personal data" means any information relating to a Data Subject and containing an identifier such as a name, an identification number, location data, photo, email address, bank details, posts on social networking websites, medical information, and other unique identifiers such as but not limited to Media Access Control (MAC) address, Internet Protocol (IP) address, International Mobile Equipment Identity (IMEI) number, International Mobile Subscriber Identity (IMSI) number, Subscriber Identification Module (SIM). Personal data shall include any online identifier or any one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that Data Subject;
    13. 19.10.13 “the Platform” means the GiriToday website, API, Dashboard etc through which the service can be accessed.
    14. 19.10.14 “Processing and Process" either means any activity that involves the use of Personal Data or as the Data Protection Laws may otherwise define processing or process. It includes any operation or set of operations that are performed on personal data or sets of personal data, whether or not by automated means, such as collection, recording, organizing, structuring, storing, adapting or altering, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, Processing also includes transferring Personal Data to third Parties;
    15. 19.10.15 “Receiving Party” means the Party receiving Confidential Information in terms of this Agreement;
    16. 19.10.16 "Security Breach/Incident" means any unauthorised or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration of, or unauthorised disclosure of or access to, personal data transmitted, stored or otherwise processed;
    17. 19.10.17 “Security Measures” means processes adopted by each Party to protect its data. Such measures include but are not limited to protecting systems from hackers, cyberattacks, viral attack, data theft, damage by rain, fire or exposure to other natural elements. These measures also include setting up firewalls, storing data securely with limited access to specifically authorised individuals, employing data encryption technologies, developing organisational policy for handling personal data (and other sensitive or confidential data), protection of email systems and continuous capacity building for staff;
    18. 19.10.18 “Technical Requirements” mean technical and systems specifications and other technical documentation specified from time to time by Girioday, including stipulations in respect of the method of communication, computer hardware, systems, applications, configurations and software, technical processes, identification procedures, transmission set up, virus and security checks, style, presentation, content and other matters which are to be utilized/ adopted by the Merchant.
    19. 19.10.19 “Trademark” means the trademarks registered in the name of or licensed to either Party and such other trademarks as are used by either Party on or in relation to GiriToday’s services during the term of this Agreement.

      20. Interpretation - In this Agreement, unless otherwise stated:

    20. 19.10.20 Words importing persons or parties shall include firms and corporations and any organisation having legal capacity. The defined words, where the context so requires, shall be deemed and understood to be and have the same effect as operative clauses subsequently.
    21. 19.10.21 Words importing the singular shall include the plural and vice versa, and words importing the masculine gender shall include the feminine and vice versa.
    22. 19.10.22 A reference to a Rule, Clause, Annexure or Schedule is to a Rule, Clause, Annexure or Schedule in or attached to this Agreement;
    23. 19.10.23 Headings in this Agreement are inserted for convenience of reference only and shall not affect the interpretation or construction of the Agreement.
    24. 19.10.24 Where a provision or section in this Agreement refers to a Partner, Reseller or Merchant Aggregator’s client or Merchant, same terms shall apply to the Partner, Reseller or Merchant Aggregators directly where the Merchant has no applicable client or Merchant.
  11. 19.11 Amendments and Changes to these terms
    1. 19.11.1 GiriToday reserves the right to, at any time, change the Services, amend the Agreement or cease the provision of the Services. If you do not accept the amended Terms, the Merchant shall have the right to at any time terminate the Agreement. If the Merchant continues to use the Services after an amendment of the Terms has come into force, the Merchant is deemed to have accepted the amended Terms.
    2. 19.11.2 The amended Terms will come into force no earlier than 1 (one) month after the Merchant has been informed of the amended Terms. Where the Merchant disagrees to the amended Terms, Such Merchant may at any time terminate the Agreement in accordance with Clause 10 of the Agreement.