WALLET SERVICES – MARKETPLACE – TERMS AND CONDITIONS FOR MERCHANTS
These Merchant Terms and Conditions, the Application Form and each Extension (as applicable) (the “Agreement“) set out the terms on which Barq will enable the Merchant to accept payment for Products through Barq’s Wallet Services and provide other Services to the Merchant.
This Agreement will be effective from the date of acceptance by the Merchant (“Effective Date“).
1. DEFINITIONS
The following defined terms appear in this Agreement:
“Account” means the e-wallet account Barq holds for the Merchant.
“Affiliate” means an entity owned or controlled by us or any entity controlled by, in control of, or under common control with us.
“App” means the Barq e-wallet services app made available and as updated by Barq from time to time for use by Customers.
“Applicable Law” means all applicable national, state, local, municipal legislation, regulations, statutes, by-laws, consents and/or other law, orders, court rulings and any other instrument having the force of law as may be issued and in force from time to time (and any amendment or subordinate provisions) relating to or connected with the activities contemplated under this Agreement in the Kingdom of Saudi Arabia.
“Application Form” means the Merchant Application Form completed and signed by the Merchant and submitted to Barq’s approval for the provision of the Services.
“Barq”, “we“, “us“, “our” means Barraq Finance Company, a closed joint-stock company established under the laws of the Kingdom of Saudi Arabia and registered in the Commercial Register in the city of Riyadh under No. 1010810920 and unified ID No. 7029786717 having its place of business and main office at 2163 Alorobah rd., Northern Maathar district 7795, Riyadh 12334, Kingdom of Saudi Arabia.
“Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as owned (or licensed) by such party from time to time.
“Business Day” means a day that is not a Friday or Saturday, or a public holiday in the Kingdom of Saudi Arabia.
“Credentials” means your password and access keys that you used to access the Merchant Portal.
“Customer” means a person that holds a Wallet Account with Barq or with another wallet provider duly licensed in the Kingdom of Saudi Arabia to provide such service.
“Cut Off Time” means the last time for making or receiving payments under the relevant payment scheme.
“Digital Disbursements and Collection Services” means the services to be provided by Barq as more fully described in the Digital Disbursements and Collection Services Extension.
“Digital Disbursements and Collection Services Extension” means the terms and conditions contained in Appendix 2 to this Agreement which apply to the provision of the Digital Disbursements and Collection Services.
“Disputes” means any disagreements, litigation, arrangements and/or other such disputes between Customers or other third parties arising from the use of the Service other than Service Disputes.
“Extension” means together: [(i) the Payroll Services Extension; (ii) the Digital Disbursements and Collection Services Extension; (iii) the Marketplace Extension;] and (iv) any other extension that Barq may add to this Agreement.
“Force Majeure Event” means any act of God including fire, flood, earthquake or other natural disaster; act of any sovereign including terrorist attacks, war, invasion, act of foreign enemies, hostilities, labor dispute including strike, lockout or boycott; act of failure or interruption or failure of utility service including electronic, power, gas, water or telephone services; acts or failure to act on rulings of administrative boards, government authorities or any other cause beyond the reasonable control of either Party but shall not include causes related to the Parties.
“Freelancer” means any natural person duly registered with a freelancer license that uses the Services to sell Products and receive Purchase Amounts in relation to Transactions. Any terms that are not stated with regards to Freelancers shall be subject to the same terms and conditions applied to Merchants, unless the text clearly expresses otherwise.
“Intellectual Property Rights” means all patent rights, copyrights, semiconductor topography rights, rights in software, moral rights, trade mark and/or service marks, logos, rights in or relating to databases, rights in or relating to confidential information or trade secrets, rights in relation to domain names and any other proprietary rights (registered or unregistered) throughout the world, including all rights of reversion and rights to any applications and pending registrations and the right to sue for and recover damages for past infringements.
“Marketplace” means the marketplace made available by Barq to you which allows you to advertise and sell your Products to Customers via the App.
“Marketplace Extension” means the terms and conditions contained in Appendix 3 to this Agreement which apply to your access to and use of the Marketplace.
“Merchant“, “you“, “your” means any person or entity that uses the Services including to sell Products and receive Purchase Amounts from Transactions, and shall include a Freelancer, unless the context requires otherwise.
“Merchant Portal” means such Barq web portal that gives you access to use the Services whether hosted by Barq or integrated with your information technology systems, and may as well be partially available for limited purposes via a Merchant-specific mobile app (this Agreement shall apply to your use of such mobile app when and where we make it available from time to time).
“Merchant Web Site” means the web site pages of the Merchant that offer Products that can be paid for by means of the Service.
“MID” means your unique identification number designated to you by us pursuant to the Agreement becoming effective.
“Payment Order” means the instruction the Merchant gives to Barq to execute a Transaction authorised by a Customer.
“Payroll Services Extension” means the terms and conditions contained in Appendix 1 to this Agreement which apply to the provision of Payroll Services (as defined in Appendix 1) to you.
“Policies” means all of Barq’s applicable policies, notices, procedures, specifications, FAQs, guides and guidelines, including the “Privacy Policy”, that are provided or made available to you, appear on the Merchant Portal or are referenced in this Agreement.
“Product” means any merchandise, good, or service that a Customer may purchase from a Merchant by using the Service.
“Purchase Amount” means an amount equal to the price of a Product, including any related fees, taxes, shipping charges or handling charges, as applicable.
“Refund Amount” means an amount to be refunded to a Customer in accordance with the Merchant’s return/cancellation policy.
“Refund Transaction” means a transaction by which the Merchant transfers to Barq from its Settlement Account an amount corresponding to a Refund Amount.
“SAMA” means the Saudi Central Bank.
“SAMA Guidelines” means the payment service provide regulatory guidelines issued by SAMA dated January 2020, as amended from time to time.
“SAR” means Saudi Arabian Riyals.
“Service(s)” means the services provided by Barq described in this Agreement that includes the processing of Transactions on behalf of the Merchants relating to the purchase of Products between the Merchant and Customer and (as applicable and where the context requires) the Payroll Services, the Digital Disbursements and Collections Services and access to the Marketplace.
“Service Disputes” means any disagreements, complaints, litigation, arrangements and/or other such disputes arising solely from the alleged failure by Barq to meet its obligations under this Agreement or any applicable law and any associated error in the provision of the Service.
“Service Fees” means the fees charged by Barq for the Service.
“Settlement Account” means the bank account of the Merchant maintained at a bank located in Saudi Arabia that is designated by the Merchant and notified in writing to and approved by Barq for receipt of funds.
“Tax” means and includes all forms of taxation (including value added tax) and statutory, contributions, deductions, withholdings, governmental, or municipal impositions, duties, levies whether of the Kingdom of Saudi Arabia or elsewhere whenever imposed.
“Transaction” means the transaction by which Barq transfers an amount equivalent to the Purchase Amount to the Account.
“Wallet Account” means the account held by Customers with Barq for the use of the Wallet Services.
“Wallet Services” means the services provided by Barq to Customers, which include the ability for Customers to make payments to the Merchants from their Wallet Account, as well as services provided by Barq to Merchants, which include the ability for Merchants to receive payments into their Accounts and transfer amounts from their Accounts to their Settlement Accounts.
2. THE SERVICES
2.1 Barq provides Wallet Services to its Customers which enable Customers to pay for the purchase of Products supplied by Merchants. This Agreement sets out the terms on which Barq enables you to use the Merchant Portal to avail of the Wallet Services, as a means of payment, as well as other Services.
2.2 The Merchant acknowledges and agrees that:
(a) Barq offers the Wallet Services to facilitate the processing of Transactions on behalf of Merchants to enable payment for Products by Customers; and
(b) Barq processes Transactions on behalf of the Merchants.
2.3 The Merchant acknowledges that Barq is offering and continues to offer the Services to the Merchant on the condition that the Merchant satisfies all due diligence and identity checks Barq may conduct, and that the Merchant complies with Barq regulatory and anti-money laundering requirements. The Merchant will provide all assistance requested by Barq in carrying out such checks and determining compliance with anti-money laundering requirements, including the provision of such additional registration or identity verification information as Barq may require.
2.4 When a Customer authorises a purchase using the Wallet Service through the App, Barq will after receiving a Payment Order from the Merchant process the Transaction on behalf of the Merchant through the appropriate payment processing network. Barq will transfer all funds in respect of Transactions to the Merchant’s Account. The Merchant may from time to time request via the Wallet Services to transfer amounts from the available balance in its Account to the Settlement Account. You may provide us with a Payment Order by producing a quick response (QR) code that the Customer scans and approves via the App thus approving the Purchase Amount, by enabling Barq’s Wallet Services as a payment method on your e-store, or such other methods enabled by Barq from time to time. If you provide Barq with a Payment Order, you may withdraw this Payment Order provided that you notify Barq before Barq has initiated the processing of the Transaction. We shall not be liable to you for any errors made by you in respect of a Payment Order (including without limitation the Purchase Amount) and you are responsible for ensuring the Payment Order is accurate and correct.
2.5 The Merchant will only use the Wallet Services to process a Payment Order for a Product that is purchased by a Customer through a legitimate sale of the Product.
2.6 Barq may establish general practices and limits concerning use of the Service without prior notice to the Merchant, including without limitation individual or aggregate transaction limits, provided that you will only be bound to such changes after the lapse of thirty (30) days of notifying you of this same, unless a shorter period is mandated by the competent regulatory authorities.
2.7 The Merchant will not use the Service in any way for an illegal or prohibited purpose, and such prohibited use is grounds for immediate suspension of the Service and/or termination of the Agreement.
2.8 The Merchant will comply with all policies and limits concerning use of the Service for Merchants, as published and updated by Barq from time to time. Such policies may include:
(a) the Policies notified to the Merchant from time to time and/or made available via the Merchant Portal;
(b) Barq’s technical and implementation requirements; and
(c) Barq’s requirements for data security and privacy, as notified to the Merchant from time to time.
2.9 Barq may change or suspend the Service, in whole or in part, as necessary to perform maintenance or updates to the Service, or where Barq has any concerns about the manner in which the Merchant uses the Service.
2.10 The Merchant shall not establish a minimum or maximum Transaction amount as a condition for Customer’s use of the Service to pay for a Product.
2.11 The Merchant shall not add any surcharge to a Transaction for use of the Service.
2.12 In the event that any Transaction is reversed for any reason, Barq may seek to recover such funds from the Merchant by debiting the Account. The Merchant acknowledges and agrees that should there be insufficient funds in the Account, Barq may collect the Merchant’s debt by debiting the Account following a subsequent Transaction or by any other means not prohibited by law.
2.13 Barq will process Transactions in accordance with its Policies.
2.14 Your mobile telephone number or username and a password that you select will be used to access the Merchant Portal and for communications with you. You also may be prompted to answer several security questions or select other issued security access keys or credentials that may be used to enable access to Services and authorise the transaction contemplated by this Agreement and under an Extension. You are responsible for maintaining the secrecy and security of your Credentials. You should not disclose your Credentials to any third party. If any of your Credentials is compromised, you must notify us immediately in accordance with the methods stated in your Agreement so that we can suspend use of your Account in order to avoid unauthorised transactions. You must also notify us if you wish to request us to unblock your Account. You will not be financially responsible for any use of your Account by an unauthorised person due to the loss or compromise of your Credentials occurring after you properly notify us of the loss or compromise unless you act fraudulently.
2.15 Service and Device eligibility: If you do not meet our eligibility requirements set forth in this Agreement (as applicable), you may not be able to receive the Services.
You are required to have eligible devices in order to use the Services. We, at our own discretion, shall determine which devices are eligible to be used with the Services. Devices that have been unlocked in an unauthorised fashion or otherwise modified may not be eligible to use all or certain Services.
2.16 Payroll Services: Where you elect, directly or via an approved third party, to use Payroll Services (as defined in the Payroll Services Extension), you agree to comply with the terms and conditions set out in the Payroll Services Extension.
2.17 Digital Disbursements and Collection Services: Where you elect to receive Digital Disbursements and Collection Services, you agree to comply with the terms and conditions set out in the Digital Disbursements and Collection Services Extension.
2.18 Marketplace: Where you elect to access and use the Marketplace, you agree to comply with the terms and conditions set out in the Marketplace Extension.
3. SERVICE IMPLEMENTATION
3.1 As part of the Merchant’s implementation of the Service and as a condition of Barq providing the Service, the Merchant will establish, register and maintain a Settlement Account linked to the Service.
3.2 The Merchant will provide current, complete and accurate registration information and Settlement Account information and will update such information to maintain it as current and accurate. Barq may require the Merchant to provide additional information from time to time as a condition of continued use of the Service, or to assist Barq in determining whether to permit the Merchant to continue to use the Service.
3.3 If Barq updates its technical or implementation specifications from time to time, the Merchant will implement such updates or modifications as soon as reasonably practical, but in any event within thirty (30) days of the date it receives notice of the update.
3.4 Barq will investigate Service Disputes, provided that the Merchant provides reasonable assistance to Barq as requested by Barq, from time to time. To avoid Service Disputes, the Merchant hereby undertakes to respond to and resolve with Barq any Customer enquiries and claims that Barq passes on to the Merchant within a maximum period of three (3) Business Days of the Merchant’s receipt of such enquiries and claims.
3.5 Any Service Dispute should in the first instance be referred to Barq’s Customer Support Team. For more information please contact your assigned account manager or contact us by telephoning our customer service team at 77 10000 800 966+, via the chat facility on the Merchant Portal (as available), or by writing to us by email at info@barq.com or through social media, at our website: www.barq.com. We will ensure that all Service Disputes are handled and addressed in a fair and timely manner. We will communicate with you regarding the Service Dispute within a period of seven (7) calendar days from the date of receipt (unless you notify us that the Service Dispute has been resolved). We will respond to You with a decision regarding the Service Dispute within fourteen (14) calendar days from the date We receive the complaint.
4. BRAND FEATURES
4.1 Subject to the terms and conditions of this Agreement, Barq grants to the Merchant a limited, revocable, non-exclusive licence (without the right to sub-license) during the term of this Agreement to display those Barq Brand Features provided to the Merchant by Barq solely for use in connection with the implementation of the Service. Barq may revoke the licence granted by it in this clause with notice to the Merchant, giving the Merchant a reasonable period of time to stop using the relevant Brand Features.
4.2 Subject to the terms and conditions of this Agreement, the Merchant grants to each of Barq and its Affiliates a limited, non-exclusive (except as set out in this clause) licence (without the right to sub-license) during the term of this Agreement to display the Merchant Brand Features for use in connection with the Service and in order to fulfil its obligations under this Agreement.
4.3 Each party will own all right, title and interest, including without limitation all Intellectual Property Rights, relating to its Brand Features. Except to the limited extent expressly provided in the Agreement, neither party grants, and the other party will not acquire, any right, title or interest (including, without limitation, any implied licence) in or to any Brand Features of the other party.
5. SERVICE FEES AND PAYMENT TERMS
5.1 The Merchant will pay the Service Fees specified by Barq in the Application Form (as may be updated from time to time). Barq may in its discretion increase or decrease the Service Fees. All changes to Service Fees will be notified by Barq to the Merchant via email or the Merchant Portal, as Barq may determine at its sole discretion and in accordance with the change provisions in this Agreement.
5.2 To enable a speedy reconciliation process, Barq will deduct Service Fees automatically and instantaneously from each Transaction such that the Merchant will receive for each Transaction an amount equivalent to the Payment Order less the Service Fees and any applicable Taxes. Any balance Service Fees, Taxes will be reflected in the statement(s) communicated as per the preceding paragraph to be paid accordingly. Additional terms in respect of the payment of Service Fees for other Services are set out in the relevant Extensions.
5.3 Barq may withhold or reject a Payment Order:
(a) If the Customer has made a claim for a refund;
(b) If Barq, in its reasonable discretion, believes that the relevant transaction:
(i) Is subject to a factual error;
(ii) Involves misconduct or fraud;
(iii) Violates Applicable Law;
(iv) Violates this Agreement or the Customer Wallet Services – Terms and Conditions; or
(v) Violates applicable Policies, or
(c) In the event Barq requires additional information from the Merchant to fulfil identity verification or anti-money laundering and terrorism financing requirements.
5.4 Barq will (to the extent permitted by Applicable Law) notify you in a timely manner of the refusal to process a Payment Order in accordance with the preceding section and provide you with objectively justifiable reasons for the refusal, as well as details on how to resolve or rectify the applicable refusal.
5.5 The Merchant will maintain a fair policy with regard to the return/cancellation of merchandise or services and adjustment of Transactions. The Merchant will disclose its return/cancellation policy to Customers. If the Merchant allows a price adjustment, return of Products or cancellation of Products in connection with a Transaction from a Customer, the Merchant will initiate and authorise a Refund Transaction as soon as possible following receipt of the Customer’s request for such refund/adjustment by using the refund function of the Service, and in no longer than five (5) working days from receiving the Customer’s request. The amount of the refund/adjustment cannot exceed the amount shown as the total on the original Transaction. The Merchant is not allowed to accept cash or any other payment or consideration from a Customer in return for preparing a refund to Customer nor to give cash refunds to a Customer in connection with a Transaction.
5.6 The Merchant will pay any Taxes imposed by governmental entities of whatever kind and imposed with respect to Transactions under the Agreement, including penalties, but specifically excluding Taxes based upon Barq’s net income or such Taxes that are due on Barq for carrying out its business activities. Barq is not responsible for, and is not the entity collecting sales or income or other taxes with respect to Transactions.
5.7 After you provide a Payment Order, we will promptly process the Payment Order in accordance with this Agreement and thereafter provide you via the Merchant Portal with the relevant information in relation to a Transaction. If we are unable to execute a Payment Order in a timely fashion, we will inform you of the time by which we expect to have executed such Payment Order.
5.8 Any payments to your Account (whether from you to top up your Account or from a Customer) will be credited on the Business Day they are received, on best endeavor basis.
5.9 It is your responsibility to ensure that accurate, complete and correct references are ascribed for each incoming payment you make into your Account so that we can credit the funds into your Account. If no reference or an incorrect reference is provided then we will not be able to credit your Account. In such cases, we will not be liable for any loss you incur, although we will use reasonable efforts to investigate and credit or return incorrect and inaccurately referenced payments into or from your Account.
5.10 Notwithstanding Barq’s rights above, you must notify us by telephone or in writing as soon as is reasonably practicable after you become aware of any unauthorised or incorrectly executed Payment Order. Barq will not be liable for incorrectly executed Payment Orders where you have failed to provide prompt notice of such matters.
5.11 Information about your history of Transactions, including Purchase Amounts, Services Fees, charges and commissions, the dates and times of execution and the reference numbers for each Transaction, will be made available to you via the Merchant Portal or email (as we may see fit) free of charge.
6. CONFIDENTIALITY, DATA PROTECTION AND INTELLECTUAL PROPERTY RIGHTS
6.1 The Merchant will not disclose or cause to be disclosed any confidential and/or proprietary information belonging to Barq or in relation to a Customer without Barq’s prior written consent, except to those employees, agents, representatives or contractors of the parties who require access to such information to perform under this Agreement (“Authorised Personnel“) and who are bound by written agreement not to disclose third party confidential or proprietary information disclosed to the Merchant, or as such disclosure may be required by law or governmental regulation. The Merchant acknowledges and agrees that the Merchant is responsible for any act and/or omission of any Authorised Person in breach of this clause. The Merchant will protect Barq’s confidential and proprietary information by using the same degree of care (and no less than a reasonable degree of care) that it uses to protect its own confidential and proprietary information of a like nature to prevent its unauthorised use, dissemination or publication to any unauthorised third party.
6.2 The Merchant represents and warrants that all officers, employees, agents, representatives and others having access to its Credentials will be authorised by the Merchant to use the Service and legally bind the Merchant.
6.3 The Merchant will exercise reasonable care to prevent disclosure of any transactional information, other than to Authorised Personnel, or as specifically required by law.
6.4 The Merchant will comply with all Applicable Law and reasonable industry standards for ensuring data security and data protection for transactional and Customer information.
6.5 We will protect your personal data and maintain its confidentiality in accordance with our “Privacy Policy” accessible through the Merchant Portal.
7. WARRANTIES
7.1 Each party represents and warrants that it has full power and authority to enter into the Agreement.
7.2 The Merchant warrants to Barq that the Merchant:
(a) Owns and controls the Merchant Web Site(s); and
(b) Has and will maintain throughout the term of this Agreement all rights, authorisations and licences that are required to permit the Merchant to implement the Service.
7.3 The Merchant warrants to Barq that:
(a) The performance by the Merchant of its obligations under this Agreement will not constitute a breach or default of or otherwise violate any agreement to which the Merchant is a party;
(b) It will comply with all Applicable Laws connected with the Merchant’s use of the Service;
(c) It will not attempt to initiate or receive a transaction using the Service that is, or would be, illegal under any applicable law; and
(d) It will comply with all Applicable Laws in relation to the sale of Products and its relationship with Customers.
7.4 Barq warrants to the Merchant that it will provide the Services with reasonable care and skill. Barq further represents and warrants that, with respect to processing as part of the Service in relation to a Transaction, at all times while this Agreement is in effect, Barq will maintain its compliance with the Payment Card Industry Data Security Standard (PCI DSS) or other comparable industry standards (as applicable) across Barq’s payment infrastructure.
7.5 Barq does not warrant that the Services will meet all of the Merchant’s requirements or that the operation of the Services will be uninterrupted, virus-free, secure or error-free.
7.6 No conditions, warranties or other terms (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description) apply to the Services except to the extent that they are expressly set out in this Agreement.
7.7 We and our Affiliates (and their licensors) make no express warranties or representations with respect to the provision of the Services other than to the extent expressly mentioned in this Agreement and the Applicable Laws.
7.8 In particular, we, and our Affiliates (and their licensors) do not represent or warrant to you that:
(a) your use of the Services will meet your requirements; or
(b) any information obtained by you as a result of your use of the Services will be accurate or reliable.
7.9 Barq will not be liable for any breach of any term of this Agreement, including any representation, condition or warranty to the extent that the breach concerned results from a failure by the Merchant to fulfil its obligations under this Agreement.
8. LIMITATION OF LIABILITY
8.1 Nothing in this Agreement will exclude or limit either party’s liability for gross negligence, wilful misconduct, fraud or fraudulent misrepresentation.
8.2 Except to the extent that this Agreement expressly states otherwise, nothing in this Agreement will exclude or limit either party’s liability for breach of the other party’s Intellectual Property Rights.
8.3 Neither party will be liable for:
(a) Any economic losses (including, without limitation, loss of revenues, profits, contracts, data, business, anticipated savings);
(b) Cost of substitute services;
(c) Any loss of goodwill or reputation; or
(d) Any special, indirect or consequential losses,
suffered or incurred by that party arising out of or in connection with this Agreement, in any case, whether or not such losses were within the contemplation of the parties at the date of this Agreement.
8.4 Subject to the liability terms of the Agreement, we, and our Affiliates (and their licensors), will not be liable to you for any loss or damage which may be incurred by you as a result of:
(a) any reliance placed by you on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the Merchant Portal;
(b) any change which we may make to the Services, or any permanent or temporary suspensionin the provision of the Services (or any features within the Services);
(c) malfunction of the Services;
(d) the deletion of, corruption of or failure to store any communications data maintained or transmitted by or through your use of the Services;
(e) your failure to provide us with accurate account information; or
(f) any fraudulent use of the Services by you.
8.5 Subject to the preceding subsections above, each party’s total liability arising out of or in connection with this Agreement will be limited to no more than an amount equal to Service Fees paid and/or payable by the Merchant to Barq for the twelve (12) month period of the year in which the cause of action giving rise to the liability arose.
8.6 Nothing in this Agreement will limit or exclude any liability of the Merchant arising under any indemnities set out in this Agreement.
9. FORCE MAJEURE
9.1 Should any Force Majeure Event delay the performance by either party of its obligations under this Agreement, the affected party shall notify the other party in writing within seven (7) calendar days of such Force Majeure Event.
9.2 Upon the occurrence of a Force Majeure Event, the affected party’s duty to perform its obligations under this agreement shall cease until such Force Majeure Event have been remedied and the affected party shall not be liable for any non-performance during such time.
10. INDEMNIFICATION
10.1 The Merchant will indemnify, defend and hold Barq, its Affiliates and/or any subcontractors with whom Barq has an agreement in relation to or in connection with the Services, and their respective employees, directors, agents and representatives (the “Indemnified Persons“) harmless from and against any and all claims brought against any Indemnified Persons and all liability, loss and expenses (including damage awards, settlement amounts, and reasonable legal fees) incurred or suffered by the Indemnified Persons, arising out of or in connection with:
(a) The Merchant Web Site(s);
(b) The Merchant Brand Features;
(c) The Merchant’s use of the Service otherwise than as permitted by this Agreement;
(d) Any actual or alleged infringement, misappropriation or violation of any third-party rights or Applicable Laws by your Intellectual Property Rights uploaded, shared, displayed or otherwise transmitted on or via the Marketplace;
(e) any actual or alleged breach of your representations, warranties, or obligations set forth in the Extensions (as applicable);
(f) any death of or injury to any person, damage to any property or any other damage or loss due to any defect in or use of any Product;
(g) Any negligence, strict liability or willful misconduct;
(h) Any liability arising out under the Applicable Laws in relation to a Product or its offering; or
(i) Any Product which a Customer has attempted to, intends to or has acquired using the Service.
11. TERM AND TERMINATION
11.1 This Agreement will commence on the Effective Date and, will continue until terminated in accordance with the provisions set out herein.
11.2 Either party may terminate this Agreement on 10 (ten) days’ prior written notice.
11.3 Either party may suspend performance and/or terminate the Agreement, in whole or in part and on immediate notice if:
(a) The other party materially breaches any term of the Agreement and it is not possible to remedy that breach; or
(b) The other party materially breaches any term of the Agreement and it is possible to remedy that breach, but the other fails to do so within thirty (30) days of receiving notice asking it to do so.
11.4 Either party may terminate this agreement on immediate notice if the other party ceases to carry on business or is unable to pay its debts within the meaning of applicable personal or corporate insolvency or bankruptcy legislation or otherwise in the event of its insolvency, receivership or voluntary or involuntary bankruptcy (or any analogous procedure) or the initiation of proceedings therefor.
11.5 Barq may, on notice to you, immediately suspend the Merchant’s use of the Service in relation to Transactions or otherwise if:
(a) The Merchant is in breach of this Agreement (including any of the Policies, such as the Barq payments program policies and guidelines which are referred to within this document); or
(b) In Barq’s reasonable discretion, the Merchant’s use of the Service creates a risk of financial harm or loss of goodwill to Barq, the Service, and/or any of the payment card systems used for processing Transactions or there is a reasonable suspicion of fraud, money laundering or other illegal activity by the Merchant.
12. THIRD PARTIES
12.1 The terms of this Agreement may be enforced only by a party to it or such party’s successors and permitted assignees.
13. GOVERNING LAW AND DISPUTE RESOLUTION
13.1 This Agreement shall be governed by and construed in accordance with the laws and regulations of the Kingdom of Saudi Arabia. Any dispute arising out of this Agreement shall be submitted to the Committee for the Banking Disputes operating under SAMA.
14. COMMUNICATIONS AND NOTICES
14.1 This Agreement is concluded in English and Arabic, and unless provided for to the contrary in this Agreement, any and all notices or other communications or deliveries required or permitted to be made under this Agreement will be in writing and in English and Arabic. Any translations are provided for convenience only and in the event of a discrepancy between the English and Arabic version and a translation, the Arabic version shall govern.
14.2 Barq may communicate with the Merchant regarding the Service by means of electronic communications, including (a) sending email to the Merchant’s email address, or (b) posting notices or communications on a Barq web site or through the Merchant Portal. The Merchant agrees that Barq may send electronic communications to the Merchant in relation to any matter relating to the Merchant’s use of the Service including the Agreement (and revisions or amendments to the Agreement).
15. GENERAL
15.1 This Agreement and (as applicable) each Extension (including the URLs provided herein), constitutes the entire agreement between the parties in relation to its subject matter and supersedes any previous contracts or arrangements of any kind between the parties relating to its subject matter.
15.2 Nothing in this Agreement is intended to be or creates any type of joint venture, employee-employer, escrow, partnership, or any fiduciary relationship between you and us or our Affiliates. Further, neither party shall be deemed to be an agent or representative of the other by virtue of this Agreement. Neither party is authorized to, and will attempt to, create or assume any obligation or liability, express or implied, in the name of or otherwise on behalf of the other party. Without limiting the generality of the foregoing, neither party will enter into any contract, agreement or other commitment, make any warranty or guaranty, or incur any obligation or liability in the name or otherwise on behalf of the other party.
15.3 If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect and, upon Our request, the court will construe any invalid or unenforceable portions in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement and the rest of the Agreement shall remain in full force and effect.
15.4 To be effective, any waiver by a party of any of its rights or the other party’s obligations under this Agreement must be made in a writing signed by the waiving party. No failure or forbearance by either party to insist upon or enforce performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise constitutes a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right, or remedy in that or any other instance; rather, the same will be and remain in full force and effect.
15.5 You may not assign or transfer any rights, obligations, or privileges that you have under this Agreement without our prior written consent. Subject to the foregoing, this Agreement will be binding on each party’s successors and permitted assigns. Any assignment or transfer in violation of this section will be deemed null and void.
15.6 In the event of a planned down-time of the Service, we endeavor to inform you at least five (5) Business Days in advance, unless the urgency requires a shorter time.
15.7 We may modify the terms of this Agreement, the Service Fees or the features of the Service at any time. However, we will provide you with at least thirty (30) days’ notice before such we implement any such changes to your use of the Services. We will notify you of any updated Agreement, Service Fees and/or Services in accordance with the communication methods described in section 14.2. If You do not agree to any change to this Agreement, the Service Fees and/or feature of a Service, You may terminate this Agreement in accordance with section 11.2 and close your Account without charge to you for such termination. You will be deemed to accept the changes to this Agreement, the Service Fees and/or the features of the Service (as applicable) if you do not terminate this Agreement by the date which is thirty (30) days from the date that we notified you of the change. You are at all times responsible for reading and understanding each version of this Agreement.
APPENDIX 1
PAYROLL SERVICES EXTENSION
1. TERMS
1.1 This Payroll Services Extension, as may be modified from time to time, applies as an extension to the terms of your Agreement when you elect in your Proposal Form to use, directly or via an approved third party, the Payroll Services described herein which enables you to pay Salaries of your Employees as per these extended terms.
1.2 Extension of terms. This Payroll Services Extension forms an integral part of your Agreement and applies in addition to its terms as one whole document. These additional terms tell you how we will provide the Payroll Services to you, how you and we may change or end this Payroll Extension, what to do if there is a problem and other important information.
1.3 Your eligibility. You may not use the Payroll Services and may not accept this Payroll Services Extension if:
a) you do not have a current and valid MID or you do not complete the required information to our reasonable satisfaction; or
b) your Agreement is terminated or the provision of Services to you have been put on hold; or
c) you are a person barred from receiving the Services or the Payroll Services or not permitted to make payments of Salaries to Employees in the Kingdom of Saudi Arabia.
1.4 A copy of the Payroll Services Extension, as amended from time to time, is available to you on the Merchant Portal. In order to use the Payroll Services, you must first have a valid Agreement and MID. As long as the Agreement is in effect, this Payroll Services Extension forms a legally binding agreement between you and Barq as part of your Agreement. This Payroll Services Extension is deemed accepted along with the terms of your Agreement upon your election to use the Payroll Services whether directly through the Application Form or via approved third parties as Barq makes available from time to time.
1.5 The Payroll Services. This Payroll Services Extension applies to your use of the Payroll Services. Our Payroll Services enables you to give orders, directly or through approved third parties, to pay from your Account, Salaries to Your Employees’ designated Wallet Account or bank account in the Kingdom of Saudi Arabia. It is your responsibility to ensure that you have read and accepted all terms and conditions herein.
2. ADDITIONAL DEFINED TERMS
2.1 The following defined terms, in addition to those in your Agreement, appear in this Payroll Services Extension:
a) “Employee” means a part-time or full-time individual that has entered into an employment contract with you and is identified as an employee of the Merchant in accordance with Applicable Law;
b) “Payroll Services” means the services by which we enable Merchants to pay from their Accounts, the Salaries of their Employees, pursuant to single or standing orders of the Merchant, directly or through third parties approved by Barq;
c) “Payroll Transaction” means a successfully executed payment of a Salary to your Employee pursuant to the Payroll Services;
d) “Payroll Transaction Fee” means the fee applicable to the Payroll Services (as amended from time to time), excluding any Tax; and
e) “Salary” means for any given Employee the full remuneration agreed between the Merchant and such Employee including any payments, bonuses, expenses, deductions and such other amounts agreed to as per the corresponding employment contract and the Applicable Law.
3. REGISTRATION AND ACTIVATION
3.1 To activate and use the Payroll Services, you must have a current and valid MID pursuant to your Agreement, and complete all information elements whether such Payroll Services are made available to you directly by Barq or through the platform or portal of a third party, as Barq may enable from time to time.
3.2 You must provide current, complete and accurate information and maintain it as current and accurate during your use of the Payroll Services, including but not limited to the details we request in relation to the destination of the Salaries to be paid to your Employees, identification of Employees, the values of Salaries to be paid in Saudi Arabian Riyals, and such other information that may be requested from time to time. You agree to provide any information that we may require or that may be required by Applicable Laws, our financial institutions or third party service providers to provide the Payroll Services. You will promptly give us all documents and other evidence that we reasonably ask for at any stage of using the Payroll Services, including but not limited to your registration numbers with the relevant Saudi authorities and such other documentation that ascertain that payments made are Salaries and to existing Employees. We may require you to provide additional information to verify your identity and status of registration with the labor authorities as a condition of providing the Payroll Services to you or before we permit you to make any Payroll Transaction. You agree to provide such information as Barq may require in this regard, including information necessary to validate your identity or confirm the authenticity of any funding instrument that you register for use with Barq.
3.3 We may make, directly or through any third party, any inquiries we consider necessary to validate information that you provide to us, including without limitation checking commercial and labour databases or credit reports. While we will take steps to verify the identity of our users, we cannot and do not guarantee any user identity.
3.4 We treat all activities in respect of an account to be those of the registered user. You must only use the Payroll Services to transact on your own account and not on behalf of any other person or entity.
4. ACCOUNT CONDITIONS
4.1 The Payroll Services will enable You to issue orders to execute Payroll Transactions which entail the transfer of Salaries to your Employees from your Account to:
a) your Employees’ Wallet Accounts;
b) your Employees’ bank accounts held with licensed banks in the Kingdom of Saudi Arabia; and
c) such other methods to be identified by Barq from time to time and listed on the Application Form.
4.2 No Payroll Transactions will be executed if you do not have sufficient funds at least equivalent to the total value of Payroll Transactions in addition to the Payroll Transaction Fees. There is no overdraft facility available on your Account.
4.3 Barq is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that Barq may provide a new service as it may announce from time to time. Should you wish to use such new service(s), their respective terms and conditions apply.
4.4 You acknowledge and agree that Barq may stop providing the Payroll Services to You as provided in this Payroll Services Extension by providing you with prior notice in accordance with your Agreement. You may stop using the Payroll Services at any time. You do not need to inform Barq when you stop using the Payroll Services, provided that you remain responsible to handle the cancellation of any standing orders you put in place for Payroll Transactions whether directly with Barq or through approved third parties.
4.5 You acknowledge and agree that Barq may establish general practices and limits concerning the use of the Payroll Services, which could be without prior notice to you if it is pursuant to a regulatory requirement or in order to comply with Applicable Laws, including without limitation individual or aggregate transaction limits on the value or number of Payroll Transactions during any specified time period(s). In addition to any applicable Account limits, we may restrict transactions to or from your Account or limit access to your Account in such amounts and for such time as we reasonably deem necessary to protect us or other users if (a) we are subject to financial risk, (b) you have violated any term of this Payroll Services Extension, (c) any dispute exists involving your Account or transaction conducted in connection therewith, or (d) needed to protect the security of our systems. We may restrict access to your Account while we complete any pending investigation or resolve a pending dispute. We also may hold the funds in your Account as required by Applicable Laws or court order or if otherwise requested by law enforcement or any governmental entity.
4.6 Barq may refuse to execute any Payroll Transactions or orders or other use of the Payroll Services if Barq has reasonable grounds to suspect fraud, a breach of this Payroll Services Extension or the Agreement by you or a violation of Applicable Laws. Payroll Services may also be delayed due to Barq’s or a third party’s compliance with its obligations under applicable anti-money laundering legislation, including if Barq or the relevant third party suspects the Payroll Services transaction involves fraud. In the event that Barq refuses to execute a Payroll Transaction or order or other use of the Payroll Services, you will be notified, unless it is unlawful for Barq to do so, or would compromise reasonable security measures.
4.7 Funding, payments and transfers are displayed in your Account and you should check your available balance and transactions history regularly. You should report any irregularities or clarify any questions you have as soon as possible as per your Agreement.
4.8 Except for our role in offering the Payroll Services, we are not involved in any underlying employment relationship or other transactions between you or any other Employee. We will not mediate disputes between you and your Employees or third party service providers who enable the use of the Payroll Services through their platform, portal or otherwise.
5. PROHIBITED PAYMENTS
5.1 In respect to the Payroll Services, you are prohibited from making any payments other than Salaries. You are also prohibited from making any payments to any person who is not an Employee.
5.2 You must not use your Account for any illegal purposes including without limitation fraud and money laundering. If you conduct or attempt to conduct any Payroll Transaction in violation of the prohibitions, Barq reserves the right to reverse the corresponding Payroll Transaction, and/or close or suspend your Account and/or report the Payroll Transaction to the relevant law enforcement agency and/or claim damages from you.
6. FUNDING, RECEIVING AND MAKING PAYMENTS
6.1 Payroll Transactions made into an Employee Wallet Account will be credited on the Business Day they are received. We do not guarantee the date or time on which the amount of a Payroll Transaction would be credited by any bank if the designated Employee receiving account is a bank account held with any bank. If we receive funds after the Cut Off Time on a Business Day or on a day that is not a Business Day, funds will be deemed to have been received on the next Business Day. We shall not be responsible for the funds until they are received by us.
7. PAYMENT TERMS
7.1 You agree to pay the Payroll Transaction Fees in consideration for each Payroll Transaction.
7.2 To enable a speedy reconciliation process, the Payroll Transaction Fee in respect of a Payroll Transaction shall be deducted by us automatically and instantaneously from your Account for each Payroll Transaction at the time of executing the Payroll Transaction.
7.3 We shall, on a monthly basis, issue an invoice or a statement to you (on your registered email address with us or make it available via the Merchant Portal) on the first Business Day of each following month, commencing from the date that you enter into this Payroll Services Extension, or consolidate such invoice or statement with other invoices or statements that we produce to you from time to time for all Services you avail of.
7.4 Each statement or invoice issued by us to you shall relate to the preceding invoicing period and shall include the following in relation to the Payroll Transaction Fees:
a) a detailed summary of the Payroll Transactions that have occurred during the previous invoicing period;
b) the aggregate amount of the Payroll Transaction Fees payable by you; and
c) any applicable Taxes.
7.5 Should you wish to dispute an invoice (partially or fully) under this Payroll Extension, you shall notify us of such issue with sufficient justification within five (5) Business Days from the date of making such statement available to you, otherwise, the invoice shall be deemed finally and irrevocably accepted. The disputed part of an invoice shall be resolved in accordance with your Agreement.
7.6 If there are any outstanding amounts payable to us (in addition to the Payroll Transaction Fees that have been deducted from time to time automatically), you hereby authorise us to automatically deduct from your Account the outstanding amount of any due invoice. Should the available balance of your Account not be sufficient to cover your obligation under a due invoice, we will prompt you of such deficiency and you shall settle such invoice amount within five (5) Business Days from such prompting.
7.7 In the event there is an error in the processing of any Payroll Transaction, you authorise us to initiate debit or credit entries to your Account to correct such error, provided that any such correction is made in accordance with Applicable Laws.
7.8 You are responsible for determining any and all Taxes and duties assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with any request for or performance or use of the Payroll Services, your use of the Merchant Portal, or otherwise in connection with any action, inaction, or omission by you or any affiliate of yours, or any of your or their respective employees, agents, contractors, or representatives. You also are responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. Barq is not obliged to determine whether Taxes apply to you and are not responsible for calculating, collecting, reporting, or remitting any Taxes to any tax authority arising from any Payroll Transaction due on you, other than value added tax due on us in relation to amounts invoiced by us to you, unless the Applicable Laws mandate otherwise.
8. TERM AND TERMINATION
8.1 This Payroll Extension commences along with your Agreement and terminates with it.
8.2 In the event of the termination of the Agreement or this Payroll Extension or the suspension of the Payroll Services as per the terms above, all pending instructions of any Payroll Transactions shall be cancelled.
8.3 We will not be liable to you for compensation, reimbursement, or damages of any kind, direct or indirect, including damages on account of the loss of prospective profits, anticipated sales, goodwill, or on account of expenditures, investments, or commitments in connection with your use of the Payroll Services, or in connection with any termination or suspension of the Payroll Services. Upon termination of your Agreement for any reason: (a) you will remain liable for all Payment Transaction Fees and other payment obligations that have been incurred through the date of termination with respect to the Payroll Services; and (b) your access to your Account on the Merchant Portal will be terminated.
9. WARRANTIES
9.1 In addition to the warranties provided under the Agreement, you represent and warrant to us that: (a) you are eligible to register for and use the Payroll Services and have the right, power, and ability to enter into and perform under this Payroll Services Extension and grant the rights, licenses and authorisations you grant under this Payroll Services Extension; (b) the information and details that you provided in relation to any Employees and Salaries is fully true and accurate; (c) any Payroll Transaction submitted by you will represent a bona fide Payroll Transaction by you as described on your Account under the Merchant Portal or via the portal of any third party service provider; (d) you will only use the Payroll Services to transact on your own account and not on behalf of any other person or entity; (e) you and all Payroll Transactions initiated by you will comply with all Applicable Laws to your business, including any applicable tax laws and regulations; (f) you will not use the Payroll Services, directly or indirectly, for any fraudulent undertaking or purpose other than the payment of Salaries to Employees, or in any manner so as to interfere with the use of the Payroll Services; (g) you are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by SAMA, the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority.
APPENDIX 2
DIGITAL DISBURSEMENTS AND COLLECTION SERVICES EXTENSION
1. TERMS
1.1 This Digital Disbursements and Collection Services Extension, as may be modified from time to time, applies as an extension to the terms of your Agreement when you elect on the Application Form to receive Digital Disbursements and Collection Services from Barq which enable you to make and receive payments from time to time in relation to your Business.
1.2 Extension of terms. This Digital Disbursements and Collection Services Extension forms an integral part of your Agreement and apply in addition to its terms as one whole document. These additional terms tell you how we will provide the Digital Disbursements and Collection Services to you, how you and we may change or end this Digital Disbursements and Collection Extension, what to do if there is a problem and other important information
1.3 Your eligibility. You may not use the Digital Disbursements and Collection Services and may not accept this Digital Disbursements and Collection Services Extension if:
(a) you have not completed the Application Form to our reasonable satisfaction;
(b) you have not satisfied the ‘know your customer’ requirements as requested by Barq from time to time; or
(c) you are a person barred from receiving the Digital Disbursements and Collection Services or not permitted to make disbursements or collections in the Kingdom of Saudi Arabia.
1.4 A copy of this Digital Disbursements and Collection Services Extension, as amended from time to time, is available to you on the Merchant Portal. In order to use the Digital Disbursements and Collection Services, you must first have a valid Agreement and MID. As long as the Agreement is in effect, this Digital Disbursements and Collection Services Extension forms a legally binding agreement between you and Barq. This Digital Disbursements and Collection Services Extension is deemed accepted along with the terms of your Agreement upon your election to use the Digital Disbursements and Collection Services through the Application Form.
1.5 The Digital Disbursements and Collections Services. This Digital Disbursements and Collection Services Extension applies to your use of the Digital Disbursements and Collection Services. Our Digital Disbursements and Collection Services enable you to top up your Account, make bulk payments for disbursements in relation to the Business other than Payroll Transactions and receive into your Account payments relating to the Business other than end-customers of the Business. It is your responsibility to ensure that you have read and accepted all terms and conditions herein.
2. DEFINED TERMS
2.1 The following defined terms, in addition to those in your Agreement, appear in this Digital Disbursements and Collection Services Extension:
(a) “Business” means the core business that you carry out, as you have disclosed to Barq in the Application Form.
(b) “Collection Transaction” means a payment transaction made by a Payor into your Account in relation to your Business and in accordance with the Collection Wallet Service.
(c) “Collection Wallet Service“ means the service that we provide to you that enables you to accept payments from Payors’ active Wallet Accounts into your Account, in accordance with the terms of this Digital Disbursements and Collection Services Extension.
(d) “Digital Disbursements and Collection Services” means the Payment Wallet Services and the Collection Wallet Services, collectively (as applicable), that Barq provide under this Digital Disbursements and Collection Services Extension and as described in your Agreement.
(e) “Payee” means a person, other than end customers of the Business or Employee, identified as such by you in a Payment Instruction, designated to receive payments from your Account, in relation to the Business, into such person’s Wallet Account.
(f) “Payment Instruction“ means one or more instructions that you give us during the validity of this Digital Disbursements and Collection Services Extension via the Merchant Portal, to make a payment from your Account to a Payee’s Wallet Account.
(g) “Payment Transaction” means a Payment Instruction successfully executed in accordance with the Payment Wallet Service.
(h) “Payment Wallet Service“ means the service that we provide to you that enables you to give us Payment Instructions via the Merchant Portal to execute digitally and transfer the corresponding amounts from your Account to the Wallet Account of a Payee.
(i) “Payor“ means the person, other than end customers of the Business, who intends to make a payment to you, in relation to the Business.
(j) “Settlement Cycles” means such periods of time agreed by us and stipulated on the Application Form for us to transfer funds from your Account to the Settlement Account in relation to Digital Disbursements and Collection Services.
(k) “Services Transaction” means a successfully executed Payment Instruction or a Collection Transaction, as the case may be.
(l) “Services Transaction Fee” means the fee applicable to the Digital Disbursements and Collection Services as agreed to in the Application Form (as amended from time to time), excluding any Tax.
3. REGISTRATION
3.1 To use the Digital Disbursements and Collections Services, you must complete all required information elements including the completion of the Application Form and any other requirements as per Barq’s registration process, have a current and valid MID pursuant to your Agreement, and open up an Account with us.
3.2 You must provide current, complete and accurate information and maintain it as current and accurate during your use of the Digital Disbursements and Collection Services. You agree to provide any information that we may require or that may be required by Applicable Law or our financial institutions to provide the Digital Disbursements and Collection Services. You will promptly give us all documents and other evidence that we reasonably ask for at any stage of providing the Digital Disbursements and Collection Services to you. We may require you to provide additional information to verify your identity as a condition of providing the Digital Disbursements and Collection Services to you or before we permit you to make payments or receive or redeem funds from your Account. You agree to provide such information as Barq may require in this regard, including information necessary to validate your identity or confirm the authenticity of any funding instrument that you register for use with Barq.
3.3 We may make, directly or through any third party, any inquiries we consider necessary to validate information that you provide to us, including without limitation checking commercial databases or credit reports. While we will take steps to verify the identity of our users, we cannot and do not guarantee any user identity.
3.4 We treat all activities in respect of an account to be those of the registered user. You must only use the Digital Disbursements and Collection Services to transact on your own account and not on behalf of any other person or entity.
3.5 You must update your registration information promptly upon any change so that it is at all times complete and accurate. We reserve the right to refuse to provide or discontinue the Digital Disbursements and Collection Services to any person or entity at any time for any reason.
4. YOUR ACCOUNT
4.1 Your Account will enable you to:
(a) transfer funds from your Settlement Account to your Account, and transfer funds from your Settlement Account to your bank account designated on the Application Form;
(b) instruct Barq to execute Payment Instructions via the Merchant Portal from your Account; and
(c) accept Collections Transactions into Your Account.
4.2 Your Account is an e-wallet account. You acknowledge that your Account is not a bank account. There is no overdraft facility available on your Account.
4.3 Barq is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that Barq may provide a new service that it may announce from time to time. Should You wish to use such new service(s), their respective terms and conditions apply.
4.4 You acknowledge and agree that Barq may stop providing the Digital Disbursements and Collection Services to you as provided in this Digital Disbursements and Collection Extension. You may stop using the Digital Disbursements and Collection Services at any time. You do not need to inform Barq when you stop using the Digital Disbursements and Collection Services.
4.5 You acknowledge and agree that Barq may establish general practices and limits concerning the use of the Digital Disbursements and Collection Services, which could be without prior notice to you if it is pursuant to a regulatory requirement or in order to comply with Applicable Laws, including without limitation individual or aggregate transaction limits on the value or number of transactions during any specified time period(s). In addition to any applicable account limits, we may restrict transactions to or from your Account or limit access to your Account in such amounts and for such time as we reasonably deem necessary to protect us or other users if (a) we are subject to financial risk, (b) you have violated any term of this Digital Disbursements and Collection Services Extension, (c) any dispute exists involving your Account or transactions conducted in connection therewith, or (d) needed to protect the security of our systems. We may restrict access to your Account while we complete any pending investigation or resolve a pending dispute. We also may hold the funds in your Account as required by law or court order or if otherwise requested by law enforcement or any governmental entity.
4.6 Barq may refuse to execute any Services Transactions or other use of the Digital Disbursements and Collection Services if Barq has reasonable grounds to suspect fraud, a breach of the applicable Agreement by you or a violation of Applicable Laws. The Digital Disbursements and Collection Services may also be delayed due to Barq’s or a third party’s compliance with its obligations under applicable anti-money laundering legislation, including if Barq or the relevant third party suspects the Services Transaction involves fraud. In the event that Barq refuses to execute a Services Transaction or other use of the Digital Disbursements and Collection Services, you will be notified, unless it is unlawful for Barq to do so, or would compromise reasonable security measures.
4.7 Funding, payments and transfers are displayed when you access your Account via the Merchant Portal and you should check your available balance and transactions history regularly. You should report any irregularities or clarify any questions you have as soon as possible by contacting Barq in accordance with the terms of your Agreement.
4.8 Except for our role in offering the Digital Disbursements and Collection Services, we are not involved in any underlying sales transaction between you or any other user. We will not mediate disputes between you, Payees and Payors or enforce or execute the performance of any commercial contract.
5. PROHIBITED PAYMENTS
5.1 We reserve the right to impose acceptable use terms in relation to the operation of your Account and the provision of any Digital Disbursements and Collection Services including the prohibition of certain categories of transactions for example payments in relation to gaming, cryptocurrencies such as Bitcoin and all other virtual currencies by specifying these on the Merchant Portal, when and as practicable.
5.2 You must not use your Account for any illegal purposes including without limitation fraud and money laundering. If you conduct or attempt to conduct any Service Transaction in violation of the prohibitions Barq reserves the right to reverse the corresponding Service Transaction, and/or close or suspend your Account and/or report the Service Transaction to the relevant law enforcement agency and/or claim damages from you.
6. FUNDING, RECEIVING AND MAKING PAYMENTS
6.1 Any payments to your Account (whether from you to top up your Account or from a Payor), or to a Payee’s Wallet Account from your Account will be credited to the designated receiving Wallet Account on the Business Day they are received. If we receive funds after the Cut Off Time on a Business Day or on a day that is not a Business Day, funds will be deemed to have been received on the next Business Day. We shall not be responsible for the funds until they are received by us.
7. COLLECTION WALLET SERVICE
7.1 Pursuant to this Digital Disbursements and Collection Services Extension, we will enable you to use your Account to accept payments from a Payor subject to the following:
(a) you maintain a valid Account as per this Digital Disbursements and Collection Services Extension and the Payor has a valid and active e-wallet account with Barq;
(b) Payors can only make payments from their active and valid Wallet Accounts;
(c) it is not our responsibility to ensure that Payors make any payments due by them to you on or before the due date of the corresponding payment;
(d) it is not our responsibility to (i) ensure or guarantee the availability of sufficient funds in a Payor’s Wallet Account for a Payor to make a payment due to you, or (ii) to ensure that a Payor is providing us with the correct and accurate details of your Account;
(e) you should regularly reconcile incoming payments with your own records. You should be aware that the crediting of funds to your Account does not mean that these transactions cannot be reversed. We reserve the right to reverse a payment where the Payor or the Payor’s bank or payment service provider has reversed (or is reasonably likely to reverse) a payment to your Account; and
(f) in the event that the funds are subject to a reversal, we will deduct such reversed transaction from the balance of your Account. If your Account balance is insufficient to cover the reversal, we reserve the right to require repayment from You.
7.2 If a Payor claims from us the refund of a Collection Transaction, whether partially or fully, we shall handle such claim in accordance with our then current complaints procedures and the Applicable Laws and directives of SAMA and any other competent authorities in the Kingdom of Saudi Arabia. If such claim relates to the relationship between you and the Payor, we shall notify you of such claim to enable you to resolve the matter directly with the Payor and we shall proceed with resolving the complaint as per our aforementioned procedures. We shall not be entitled to the Services Transaction Fee in the event of the reversal of a Collection Transaction.
8. PAYMENT WALLET SERVICE
8.1 Our Payment Wallet Service permits you to give us Payment Instructions, through the Merchant Portal, to make payments to Payees from your Account. The terms of the paragraphs under section 5 of your Agreement shall apply in respect of a Payment Instruction issued under this Digital Disbursements and Collection Services Extension. A Payment Instruction to Barq may be made only in accordance with the form and method determined by Barq from time to time, and shall include at a minimum:
(a) identification and Wallet Account details of the Payee;
(b) the amount in SAR to be transferred in execution of the Payment Instruction; and
(c) any other information reasonably required by Barq from time to time via the Merchant Portal.
8.2 In relation to a Payment Wallet Service, Barq shall only be obliged to complete a Payment Instruction subject to the following:
(a) your Account is valid and active in accordance with this Digital Disbursements and Collection Services Extension, and the Payee(s) have valid and active Wallet Accounts with Barq;
(b) the Payment Instruction is made in accordance with the preceding section;
(c) your are not in default of any agreement with Barq;
(d) all details of a Payment Instruction are given to Barq’s reasonable satisfaction;
(e) you are not in default of any provision under this Digital Disbursements and Collection Services Extension (including without limitation any payment obligation under these terms);
(f) the total value of Payment Instructions shall be equal to or less than the available balance in your Account; and
(g) it shall at all times be your responsibility to verify if the available balance is commensurate with the requirements that you anticipate to have.
8.3 If you provide Barq with a Payment Instruction, you may withdraw this Payment Instruction provided that you notify Barq before Barq has initiated the processing of the Payment Instruction in accordance with this Digital Disbursements and Collection Services Extension. We shall have the right to reject or not proceed with a Payment Instruction (in whole or in part) if the value of the Payment Instruction exceeds the available balance in your Account. We shall have no liability whatsoever for not proceeding with a Payment Instruction in such instance of deficiency. In the event you give us a Payment Instruction without having sufficient funds in the available balance, we shall not accept the corresponding Payment Instructions in their entirety and shall notify you of such rejection.
8.4 In case of a non-executed or defectively executed Services Transaction, we will rectify the error subject to the terms of this Agreement. In this case, we will refund your Account with the amount of the non-executed or defectively executed transaction without undue delay and take any other action necessary to restore your Account in the state in which it would have been had the defective transaction not taken place. We will make efforts to trace the Service Transaction and will notify you of the outcome.
9. PAYMENT TERMS
9.1 You agree to pay the Service Transaction Fees in consideration for each Service Transaction.
9.2 To enable a speedy reconciliation process, the Service Transaction Fee in respect of a Payment Instruction or a Collection Transaction (as the case may be) shall be deducted by us automatically and instantaneously from your Account for each Service Transaction, simultaneously with accepting a payment made into your Account in the case of a Collection Transaction, and with executing a Payment Transaction in the event of a Payment Instruction.
9.3 We shall, on a monthly basis, make available to you a statement or invoice (on your registered email address with us or via the Merchant Portal) on the first Business Day of each following month, commencing from the Effective Date.
9.4 Each statement issued by us to you shall relate to the preceding month and shall include the following in relation to the Service Transaction Fees:
(a) a detailed summary of the Service Transactions that have occurred during the previous month;
(b) the aggregate amount of the Service Transaction Fees payable by you; and
(c) any applicable Tax.
9.5 Should you wish to dispute a statement (partially or fully) under this Extension, you shall notify us of such dispute with sufficient justification within five (5) Business Days from the date of receipt of the relevant invoice, otherwise, the invoice shall be deemed finally and irrevocably accepted. The disputed part of a statement shall be resolved in accordance with the Agreement.
9.6 If there are any outstanding amounts payable to us (in addition to the Service Transaction Fees that have been deducted from time to time automatically), you hereby authorise us to automatically deduct from your Account the outstanding amount of any due invoice or statement. Should the available balance of your Account not be sufficient to cover your obligation under a due invoice, we will promptly notify you of such deficiency and you shall settle such amount within five (5) Business Days from such prompting.
9.7 From time to time, you may request us to transfer reasonable amounts from the available balance of your Account to your Settlement Account, provided that:
(a) we shall only be required to make such transfers within the limitations of the Settlement Cycles; and
(b) we would only make one transfer from your Account to your Settlement Account during each Settlement Cycle.
9.8 We would accept your request to make a transfer from your Account to your Settlement Account if you have paid to us fully any amounts that we invoiced to you and are due in accordance with this Digital Disbursements and Collection Services Extension. Any Fees payable for any transfers from your Account to your Settlement Account are fully covered by You.
9.9 In the event there is an error in the processing of any Service Transaction, you hereby authorize us to initiate debit or credit entries to your Account to correct such error, provided that any such correction is made in accordance with Applicable Laws.
9.10 You are responsible for determining any and all Taxes and duties assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with any request for or performance or use of the Digital Disbursements and Collection Services, your use of the Merchant Portal, the sale or purchase of any products or services, or otherwise in connection with any action, inaction, or omission by you or any affiliate of yours, or any of your or their respective employees, agents, contractors, or representatives. You also are responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We and our Affiliates are not obliged to determine whether Taxes apply and are not responsible for calculating, collecting, reporting, or remitting any Taxes to any tax authority arising from any Service Transaction, other than value added tax due on us in relation to amounts invoiced by us to you.
10. TERM AND TERMINATION
10.1 This Digital Disbursements and Collection Services Extension commences along with your Agreement or such other date agreed on the Application Form or an addendum to it, and terminates with your Agreement unless we agree otherwise in writing.
10.2 In the event of the termination of the Agreement or this Digital Disbursements and Collection Services Extension or the suspension of the Digital Disbursements and Collections Service Extension as per the terms above, all pending instructions of any Services Transactions shall be cancelled.
10.3 We will not be liable to you for compensation, reimbursement, or damages of any kind, direct or indirect, including damages on account of the loss of prospective profits, anticipated sales, goodwill, or on account of expenditures, investments, or commitments in connection with your use of the Digital Disbursements and Collection Service, or in connection with any termination or suspension of the Digital Disbursements and Collection Services. Upon termination of this Agreement for any reason: (a) you will remain liable for all fees, charges and other payment obligations that have been incurred through the date of termination with respect to the Digital Disbursements and Collection Services; and (b) your access to your account on the Merchant Portal will be terminated.
11. WARRANTIES
11.1 In addition to the warranties provided under the Agreement, you represent and warrant to us that: (a) you are eligible to register and use the Digital Disbursements and Collection Services and have the right, power, and ability to enter into and perform under this Digital Disbursements and Collection Services Extension and grant the rights, licenses and authorisations you grant under this Digital Disbursements and Collection Services Extension; (b) the information and details that you provided in the Application Form are fully accurate and reflect the business name under which you carry out your Business; (c) any Service Transaction submitted by you will represent a bona fide Service Transaction by you as described on your account under the Merchant Portal; (d) you will only use the Digital Disbursements and Collection Services to transact on your own account and not on behalf of any other person or entity; (e) you and all Service Transactions initiated by you will comply with all Applicable Laws, including any applicable tax laws and regulations; (f) you will not use the Digital Disbursements and Collection Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Digital Disbursements and Collection Services; (g) you are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority.
APPENDIX 3
MARKETPLACE EXTENSION
1. GENERAL
1.1 This Marketplace Extension, as may be modified from time to time, applies as an Extension to the terms of your Agreement when you elect to use the Marketplace in the Application Form or subsequent addendum thereof.
1.2 Extension of terms. This Marketplace Extension forms an integral part of your Agreement and applies in addition to its terms as one whole document. These additional terms tell you how we will make available the Marketplace and the obligations that you must comply with when using the Marketplace.
1.3 Your eligibility. You may not use the Marketplace and may not accept this Marketplace Extension if:
(a) you do not have a current and valid MID or you do not complete the required information to our reasonable satisfaction; or
(b) your Agreement is terminated or the provision of Services to you under the Agreement have been put on hold;
(c) you are a person barred from receiving products and/or services in the Kingdom of Saudi Arabia; or
(d) you are a person not permitted under the Applicable Laws to offer your products, services or e-store into the Kingdom of Saudi Arabia, whether directly or via a marketplace.
1.4 For the purposes of this Marketplace Extension, the following definition shall apply in addition to the definitions used in the Agreement:
(a) “Marketplace Fees” means the fees that will be charged by us to you for every sale of a Product you make via the Marketplace as indicated on your corresponding application form, an addendum thereof or such other revised fee that we may decide upon notifying you thirty (30) days prior to such revised fee taking effect.
2. MARKETPLACE
2.1 You can access the Marketplace by accessing the Merchant Portal and following the instructions provided on the Merchant Portal for uploading information for the offering of your Products. Upon accepting these terms our technical team will work with you to complete the required integration of your e-store with the Marketplace.
2.2 Barq provides a Marketplace for you to negotiate and complete transactions for Products and we allow you to list and sell your Products through the Marketplace, you being the seller and Customers being the buyers. While Barq helps facilitate transactions that are carried out in the Marketplace, Barq shall in no circumstances be considered to be the buyer of the Products. Accordingly, the contract formed at the completion of a sale for your Products is solely between you and the Customer. Barq is not a party to this contract nor assumes any responsibility or liability arising out of or in connection with such contract (including for the avoidance of doubt, in respect of the processing of any refunds to Customers). Barq does not act as your agent through the Marketplace.
2.3 Barq is not responsible for the quality, safety or legality of the Products supplied or for any representation made in relation to such Products.
2.4 You are responsible for the sale of the Products and for dealing with any claims that Customers may have or any other issues arising out of or in connection with the contract between you and the Customer in accordance with the Applicable Laws.
3. YOUR OBLIGATIONS
3.1 In accessing the Marketplace, you shall not:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Marketplace;
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Marketplace;
(c) do anything that would negatively impact any other user of the Marketplace;
(d) access all or any part of the Marketplace in order to build a product or service which competes with the Marketplace; or
(e) allow any third party to access the Marketplace through your account with Barq.
3.2 You may post reviews, comments, and other content, send communications and submit suggestions, ideas, comments, questions, or other information in the Marketplace provided that the content is in full compliance with the Applicable Laws and is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of Intellectual Property Rights (including publicity rights), or otherwise injurious to third parties or objectionable, and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam” or unsolicited commercial electronic messages.
3.3 You shall make available to Barq, free of charge, all current Product information, including electronic images, list prices, age ratings, any information required by Applicable Laws to be displayed to consumers and all information regarding safety, compliance, industry standards or testing related to your Products (“Product Information”). You shall provide timely updates to the Product Information.
3.4 You hereby grant Barq a non-exclusive, worldwide, irrevocable and royalty-free license for such period as the rights you have in the Product Information subsist at law to:
(a) use, copy and display the Product Information in the Marketplace;
(b) convert to digital electronic form, excerpt, reformat, adapt or otherwise create derivative works of the Product Information;
(c) use all Intellectual Property Rights or tradenames included in the Product Information; and
(d) sublicense any of the foregoing rights for the purpose of marketing and promotion of the Products.
3.5 You shall be responsible for:
(a) the delivery and/or shipping of any Products to Customers (including all associated costs and expenses);
(b) notifying Customers of any Product recalls; and
(c) paying us the Marketplace Fees.
3.6 In addition to any warranties provided in the Agreement, you represent and warrant that:
(a) the Products that you make available through the Marketplace are safe, fit for purpose and free from any defects;
(b) the Product Information is accurate and complete and that neither Barq’s exercise of its license rights, nor the listing of the Products on the Marketplace for sale will violate any Intellectual Property Rights or other third party’s rights;
(c) the Products and the Product Information comply with all Applicable Laws and unless otherwise agreed, are supplied with all available Arabic and English language versions of instructions and warranty and equipment;
(d) the Products may be lawfully marketed, sold and distributed without restriction on the Marketplace;
(e) no Products were produced, manufactured, assembled, or packaged by forced, prison or child labour; and
(f) the Products are not subject to any import or export bans, embargos or restrictions.
4. PAYMENT TERMS
4.1 You agree to pay the Marketplace Fees in consideration for each sale of a Product that you make on the Marketplace.
4.2 To enable a speedy reconciliation process, the Marketplace Fee in respect of a sale shall be deducted by us automatically and instantaneously from your Account for each sale, simultaneously with accepting a payment made into your Account from Customers.
4.3 We shall, on a monthly basis, make available to you a statement (on your registered email address with us or via the Merchant Portal) on the first Business Day of each following month, commencing from the Effective Date and subject to you opting to use the Marketplace.
4.4 Each statement issued by us to you shall relate to the preceding month and shall include the following in relation to sales you make via the Marketplace:
(a) a detailed summary of the sales that you have made through the Marketplace during the previous month;
(b) the aggregate amount of the Marketplace Fees payable by you; and
(c) any applicable Tax.
4.5 Should you wish to dispute a statement (partially or fully) under this Extension, you shall notify us of such dispute with sufficient justification within five (5) Business Days from the date of receipt of the relevant statement, otherwise, the statement shall be deemed finally and irrevocably accepted. The disputed part of a statement shall be resolved in accordance with the Agreement.
4.6 If there are any outstanding amounts payable to us (in addition to the Marketplace Fees that have been deducted from time to time automatically), you hereby authorise us to automatically deduct from your Account the outstanding amount of any due invoice or statement. Should the available balance of your Account not be sufficient to cover your obligation under a due invoice, we will promptly notify you of such deficiency and you shall settle such amount within five (5) Business Days from such prompting.
4.7 For the avoidance of doubt, in the event you agree to refund a Customer (whether fully or partially) for a Product or if you accept the return of a Product that you have sold via the Marketplace, the Marketplace Fee will remain payable in full.
5. GENERAL
5.1 This Marketplace Extension commences along with your Agreement unless agreed otherwise on your Application Form or an addendum thereof and terminates with your Agreement unless we agree otherwise in writing. In the event of the termination of the Agreement or this Marketplace Extension, you shall no longer be permitted to use the Marketplace, you will be required to remove your Products from the Marketplace and you hereby authorise us to remove your Products from the Marketplace in such events. You shall be responsible for fulfilling any Product sales as at the date of termination.
5.2 All content including, but not limited to, texts, graphic designs, logos, buttons icons, codes, audio tracks, and digital content (including all Intellectual Property Rights contained therein) in the Marketplace (other than the Products and Product Information) are the sole ownership of Barq and no ownership rights will be granted to you by your use or access to the Marketplace.
5.3 If you breach the terms of this Marketplace Extension, we reserve the right to suspend your access to the Marketplace immediately.
5.4 You hereby agree and accept that Barq may at its sole discretion delete any content that violates any Applicable Laws from the Marketplace.
