1.1 These Terms and Conditions shall apply to the provision of the payment services (“Services”) to be provided by THE BLUE PENGUIN COMPANY LTD a company registered in Ghana, whose registered office is at 16, Sixth Link Close Cantonments, Accra, Ghana (hereinafter referred to as “Blue Penguin”); AND _______________________ registered in Ghana, whose registered office is at ________________________________ (hereinafter referred to as “the Merchant”).
(Blue Penguin and Merchant are hereinafter jointly referred to as the “Parties” and each a “Party”).
No other terms and conditions shall apply to the provision of the Services unless agreed upon in writing by ‘Blue Penguin and the Merchant.
1.2 Blue Penguin is a payment service provider and owns the BluPay Mobile Application (BluPay) which is a payment platform built to enhance payments in e-commerce transactions through its mobile financial service products.
1.3 The Merchant is a subscriber of the BluPay mobile application.
1.4 Blue Penguin has agreed to provide the services described herein subject to, and in accordance with, the terms and conditions of this Agreement.
2.1 A “business day” means any day other than a Saturday, Sunday or bank holiday.
2.2 The headings in this Agreement are for convenience only and shall not affect their interpretation.
2.3 Words imparting the singular number shall include the plural and vice-versa.
2.4 “Customer” means purchaser of goods or recipient of services from the Merchant.
3. Commencement date
This Agreement becomes legally binding and made effective as at the date the Merchant subscribes, signs up and creates an account on the BluPay mobile application.
The payment services as provided on the BluPay mobile application shall be as follows:
4.1 Payment Processing Service.
This will provide Merchants with the ability to accept credit card, debit card and mobile money payments from their customers on the BluPay mobile application.
4.2 Gateway Services.
The gateway services will provide both the Merchant and Blue Penguin the software and connectivity required to allow real-time secure data transmission for processing of credit and debit card payments and other available payment methods on the mobile application.
4.3 Foreign Currency Acceptance.
Payment in foreign currency is accepted and will be automatically converted to Ghana Cedis by the system.
5.1 Card transactions.
The parties agree that fees payable to Blue Penguin by the Merchant for payments by debit or credit cards on the BluPay mobile application shall be 2.5% % on every transaction.
5.2 Mobile money transactions
The parties agree that fees payable to Blue Penguin by the Merchant for payments by mobile money wallets on the BluPay mobile application shall be 1.5% % on every transaction.
6. Obligations of the Parties
6.1 Blue Penguin shall ensure the smooth operations of the BluPay mobile application and transparency of all transactions by keeping proper and adequate information for ease of reference.
6.2 In the event of duplicate payment, overpayment or payment made in error by any of the Merchant’s customers, the Merchant shall notify Blue Penguin through its representatives, of such payment, and Blue Penguin agrees to cause the refund promptly thereafter or otherwise of the funds to Customer’s designated originating Bank/Wallet.
6.3 The Merchant shall take all reasonable steps to protect its password details regarding account access, security, and the personal electronic device on which the BluPay mobile application is being accessed.
7. Liability and Indemnity
7.1 Blue Penguin will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under this Agreement, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Blue Penguin’s employees, agents or otherwise) in connection with the provision of the services or the performance of any of its other obligations under this Agreement or with the use by the Merchant of the Services therein.
7.2 Blue Penguin shall not be liable to the Merchant or be deemed to be in breach of the provisions of this Agreement by reason of any delay in the performance of, or any failure to perform, any of Blue Penguin’s obligations if such delay or failure is due to any cause beyond Blue Penguin’s reasonable control.
7.3 The Merchant shall compensate and indemnify Blue Penguin for any chargeback or any related expenses on invalid transactions, refund transactions, overpayments due to error, negligence, willful misconduct or fraud by the Merchant or it’s representative(s).
7.4 The parties acknowledge that the BluPay mobile application is a computer network-based service which may be subject to outages and delay occurrences. As such, Blue Penguin does not guarantee continuous or uninterrupted access to the application.
8. Force Majeure
Neither party shall be liable for any failure nor delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
9. Restricted Activities
9.1 The Merchant shall not breach this Agreement.
9.2 The Merchant shall not use the BluPay mobile application in a manner that could result in the violation of anti-money laundering, counter terrorist financing laws, and similar legal and regulatory obligations applicable in Ghana.
9.3 The Merchant must not refuse to cooperate in an investigation, provide confirmation of its identity or refuse to provide any information reasonably requested in connection with this Agreement or the use of the BluPay Application.
All notices under this Agreement shall be in writing and signed by, or on behalf of, the party giving notice (or a duly authorized officer of that party).
11. No Waiver
11.1 No waiver by Blue Penguin of any breach of these Terms and Conditions by the Merchant shall be considered as a waiver of any subsequent breach of the same or any other provision. 11.2 No failure or delay on the part of either Blue Penguin or the Merchant to exercise any right, power or privilege under this Agreement shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of any other right, power or privilege.
In the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that/those provisions shall be deemed severed from the remainder of these Terms and Conditions (which shall remain valid and enforceable).
13. Data Protection
Blue Penguin will only use the Merchant’s personal information as set out on the BluPay mobile application subscription form.
14. Law and Jurisdiction
14.1 These Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of the Republic of Ghana.
14.2 Any dispute, controversy, proceedings or claim between Blue Penguin and the Merchant relating to these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of Ghana.
15.1 Either party may terminate this Agreement, without cause, by providing the other party with at least 30 (thirty) days’ notice of its intention to terminate.
15.2 Blue Penguin may immediately terminate this Agreement or suspend services by providing the Merchant with notice accordingly. 15.3 The provisions of Clause 11 (a) and (b) above does not relieve the Merchant of any obligations to pay any fees, costs, penalties, chargebacks, or any other amounts owed by the Merchant as provided under this Agreement, whether accrued prior to or after termination.
16. Fraud Detection
The Blu Penguin will have in place a fraud detection system to identify and monitor potentially fraudulent activity as may be mandated by applicable Law.
As a provision to protect buyers and sellers from unauthorized or fraudulent payments and transactions, The Blu Penguin Company Limited within a timeframe of at least 120 days will withhold any suspected transactions, to further investigate and protect the merchants from card users should in case the card users request for a reversal/charge-back. 16.1. The device obtained from The Blu Penguin should not under any circumstance be transferred or used by any person/s or entity other than the merchant signed on.