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09Dec
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Terms And Conditions

MASTER SERVICES AGREEMENT

Concluded between the TurnStay Group (consisting of The Tern Group Inc. (Delaware USA) and its wholly owned subsidiaries, TernStay OU (Estonia), TernStay Ltd (UK), and TernStay (Pty) Ltd (South Africa), Turn Travel (Namibia) (collectively referred to hereinafter as “TurnStay” or the “TurnStay Group”) and you (the “Client”) described below:

INTRODUCTION

  1. TurnStay provides a booking and checkout platform which can be used by businesses such as the Client (the “Client”) to customize checkout templates, create booking links, track conversion rates, find customers, and accept payments from customers using localized payment methods customized to the customers home country.
  2. TurnStay offers highly competitive pricing and conversion rates by facilitating payment through the TurnStay companies and other payment processors from the End User’s bank account to that of the Client for the latter’s products and services.
  3. We adhere to PCI compliance and use third-party Payment Service Providers, such as Stripe, Paystack, Peach Payments, Nedbank, and Standard Bank, to process Client payments.
  4. The terms and conditions in this agreement regulate the relationship between TurnStay and the Client regarding our services to you.

DEFINITIONS

  1. In this Agreement, unless clearly inconsistent with or otherwise indicated by the context, the following capitalised terms shall have the meanings assigned to them hereunder:
    1. “Acquirers” or “Acquiring” refers to financial institutions, such as banks or Client acquirers, that partner with Clients to process credit and debit card transactions. They facilitate the
      transfer of funds from the End User’s issuing bank (the banks that provide credit or debit cards to customers) to the Client Account, ensuring the completion of electronic payments;
    2. “Act of Insolvency” means in relation to either party:
      1. an application or order is made, or a resolution is passed for its winding-up, business rescue, or dissolution, or a receiver, liquidator, business rescue practitioner, trustee or similar official is appointed over
        any of its assets or undertaking;
      2. a secured party takes possession of all or substantially all of its assets pursuant to enforcement action, or a distress, execution, attachment, sequestration or other legal process is levied, enforced or sued on or
        against all or substantially all its assets;
      3. it suspends payment of, or is unable (or admits inability) to pay, its debts generally as they fall due or it is (or admits to being) otherwise insolvent or stops, suspends, or threatens to stop or suspend payment of
        all or a material part of its indebtedness or proposes or seeks to make or makes a general assignment or any arrangement or composition with or for the benefit of its creditors or a moratorium is agreed or declared
        in respect of or affecting all or a material part of its indebtedness;
      4. it is or becomes “financially distressed” as defined in the applicable Company Governance Laws, or, where no such definition exists, as reasonably interpreted in a manner consistent
        with the principles and context of the Company Governance Laws of the Jurisdiction Country; or
      5. it enters into or resolves to enter into any arrangement, scheme, or compromise with, or assignment for the benefit of, its creditors generally or any class of them.
    3. “Agreement” means this agreement and its annexures, as amended in writing from time to time, concluded between TurnStay and the Client;
    4. “Alternative Payment Methods” refers to payment options other than card-based payments, which enable customers to complete transactions using methods such as bank deposits, Automated Clearing House (ACH) transfers,
      digital wallets, mobile money, Buy Now Pay Later (BNPL) solutions, and other region-specific or technology-enabled payment systems or Exchanges;
    5. “Alternative Payment Method Service Providers” means third parties who facilitate payment using Alternative Payment Methods.
    6. “Applicable Law” means all laws, regulations, rules, statutes, ordinances, by-laws, orders, judgments, directives, decrees, departmental or regulatory judgements, licences, permits, codes, and compliance notices or
      other governmental restrictions or requirements of any kind in force and applicable under any supranational, national, federal, state, provincial, local law to any party in respect of its rights and obligations under this Agreement,
      or any Transaction, and the rules and directions of any regulatory authority;
    7. “API” means TurnStay’s application program interface (including all specifications for routines, data structures, object classes, and related protocols, modifiable code, and accompanying libraries of software, any
      utilities, applications, installers, and documentation) provided to the Client by TurnStay for interface with the TurnStay Systems;
    8. “Authorisation” refers to the authorisation given by the Card Network, Acquirer, PSP, Alternative Payment Method Service Providers verifying if the End User has sufficient funds and authorises the completion of the
      Transaction, which authorisation is relayed to the Client through the intermediaries (External Suppliers) for validation;
    9. “Billing Currency” means the currency the Client’s Products are listed in for a given Client Account on the TurnStay System;
    10. “Cardholder Data” means the Cardholder’s whole card number plus any cardholder name, expiration date, and/or security code found on a Payment Card;
    11. “Cardholder” refers to the person or entity to whom a Payment Card is issued by an Issuer or any individual authorised to use the Payment Card used to pay the Client.
    12. “Card Network” refer to the global payment networks, such as Visa, Mastercard, American Express, amongst others, that facilitate electronic payment transactions by acting as intermediaries between Clients,
      card-issuing banks, and acquiring banks. Card Networks are responsible for authorising, clearing, and settling transactions, ensuring the secure and efficient transfer of funds between cardholders and Clients;
    13. “Chargebacks” refers to a charge back made to a Cardholder for the sale of the Client’s Products to reverse the initial charge as a result of a successful dispute by a Cardholder in respect of that Transaction;
    14. “Cleared Funds” means the Transaction proceeds converted to the Client’s Settlement Currency and available for Settlement, less the TurnStay Fees.
    15. “Client” refers to the Client described on page 1 of this Agreement;
    16. “Client Account” refers to the distinct record created on the TurnStay System for the Client to manage and separate its Transactions;
    17. “Client Bank Account” refers to the bank account nominated by the Client and approved by TurnStay for payment of Cleared Funds from time to time
    18. “Confidential Information” means any information concerning a party’s affairs or any information to which the other party has access by virtue of this Agreement or otherwise, and it includes information communicated
      through various means, such as email, instant messaging, and electronic communications, and especially Cardholder Data. However, Confidential Information does not include information that is publicly known, already known by the
      receiving party, received from a third party without restriction, or independently acquired or developed by the receiving party without breaching the Agreement;
    19. “Company Governance Laws”: Refers to any applicable legislation governing corporate entities, including, but not limited to, laws on bankruptcy, insolvency, restructuring, and corporate governance, in the
      Jurisdiction Country. If no Jurisdiction Country is specified, this shall refer to the laws of the jurisdiction where the Services are provided or the parties are incorporated. This includes, without limitation, the Companies Act
      2006, the Insolvency Act 1986, and the Corporate Insolvency and Governance Act 2020 in the United Kingdom; the Companies Act 71 of 2008 in the Republic of South Africa; the EU Insolvency Regulation ((EU) 2015/848) and applicable
      national corporate laws of EU member states in the European Union; and the United States Bankruptcy Code (Title 11 of the United States Code) and applicable state corporate laws, including the Delaware General Corporation Law, in
      the United States.
    20. “Data Protection Laws” refers to all applicable laws relating to data protection or data privacy in the United Kingdom, the Republic of South Africa (including the Protection of Personal Information Act, 2013), the
      European Union (the General Data Protection Regulation ((EU) 2016/679), and/or any other jurisdiction from which or to where the Services may be provided, or which may apply to a party from time to time;
    21. “End User” means any person or entity who concludes a Transaction with the Client for its Products;
    22. “Exchanges” mean third parties that facilitate foreign exchange transactions;
    23. “External Supplier” refers to third-party service providers utilised by TurnStay to provide aspects of the Services from time to time, including Acquirers, Payment Service Providers, Exchanges and financial
      institutions;
    24. “Fees” means the fees charged by TurnStay to the Client for the Services;
    25. “Home Country” refers to the country where the Products are purchased by the End User or the country where the Client is registered, as applicable;
    26. “Intellectual Property Rights” means the rights provided under Applicable Law relating to intellectual property, including patents, copyrights, Trademarks, trade names, brand names, logos, and trade dress;
    27. “Jurisdiction Country” means the country whose laws shall govern and interpret this Agreement, as specified in the Addendum;
    28. “Localisation Services” means the solution offered by TurnStay to the Client (and its End Users) as part of the Services, which enables the End User to make seamless payments and currency conversions to the Client
      in the End User’s Billing Currency;
    29. “Payment Card” means the payment card that is linked to a Card Network and used by the End User to pay for the Client’s Products;
    30. “Payment Methods” means the payment methods enabled by the TurnStay Systems for End Users to pay for their Transactions, including using Payment Cards, Alternative Payment Methods and other Payment Service Providers
      or as otherwise agreed between the parties in writing;
    31. “Payment Service Provider” or “PSP” means the service providers that provide the technology and infrastructure needed to handle electronic payment transactions, ensuring that funds are securely and efficiently
      transferred from End Users to Clients (card and non-card payments);
    32. “PCI DSS” refers to the Payment Card Industry (PCI) Data Security Standard (DSS), defined by the PCI Security Standards Council.
    33. “Personal Information” refers to a Cardholder’s ‘Personal information’ or ‘Cardholder Data’ as defined in the relevant Data Protection Laws;
    34. “Products” refers to the products and/or services offered or sold by the Client to End Users at a Sales Price determined by the Client;
    35. “Processing Currency” refers to the currency which is used by the Payment Service Provider to process the payment;
    36. “Refund” means when the Client agrees to refund an End User for a Transaction based on a returned or cancelled Product;
    37. “Rules” refers to the guidelines and rules of financial institutions for Transaction payments and/or the relevant Card Network, including PCI DSS, regulatory authority rules and security procedures, and Payment and
      Application Data Security Standards (PA-DSS).
    38. “Sales Price” means the sales price for the Product in the Billing Currency, which must include Sales Tax required to be levied by Applicable Laws;
    39. “Sales Tax” means any national, subnational, federal, state, provincial, or local sales, use, transfer, value-added, excise, environmental, customs, duties, or other transaction tax, governmental fee, or other like
      charge associated with a sale or purchase transaction, required under Applicable Laws;
    40. “Services” means the offered by TurnStay as contemplated in this Agreement;
    41. “Settlement” means transferring Cleared Funds from the End User’s issuing bank to the Acquirer or Alternative Payment Method Service Provider, ensuring that the Client receives payment of the Sales Price of its
      Product sold to the End User, subject to obtaining Authorisation, as more fully described in below;
    42. “Settlement Currency” means the currency chosen by the Client for Settlement;
    43. “Signature Date” refers to the date upon which the last of the named parties to this Agreement signs this Agreement;
    44. “Supported Currencies” means only those currencies supported by TurnStay, from time to time and as set out in Annexure A;
    45. “Tax” refers to any income, gross receipts, franchise, estimated, alternative minimum, add-on minimum, sales, use, transfer, real property gains, registration, value-added, ad valorem, escheat, unclaimed or
      abandoned property, excise, natural resources, severance, stamp, occupation, premium, profits, licence, windfall profit, environmental, customs, duties, real property, special assessment, personal property, capital stock, social
      security, unemployment, disability, payroll, licence, employment, employee, or withholding tax, governmental fee, or other assessment or charge of any kind associated with taxes.
    46. “Tax Returns” refers to any report, return, statement, election, schedule, claim for Refund, form, declaration, or other information in connection with Tax, as required by Applicable Laws.
    47. “TurnStay Infrastructure” refers to the technology and infrastructure provided or made available to the Client by TurnStay to deliver the Services, including any specified APIs, to be integrated into the Client’s
      e-commerce website.
    48. “TurnStay System” refers to the TurnStay Infrastructure and the hardware system through which TurnStay provides the Services to Clients;
    49. “Trademark” means any design, marks or word marks registered by either party, as their intellectual property;
    50. “Transaction” refers to the transaction concluded between an End User and the Client for the Product(s) for which the End User must pay the Sale Price to the Client through the TurnStay Systems, regardless of
      whether it results in an Authorisation;
    51. “Transaction Data” refers to the details of a Transaction, including the Sales Price;
    52. “Website” refers to one or more of the Client’s online platforms in connection with which the TurnStay Systems are used to enable End Users to conclude Transactions

DEFINITIONS

  1. In this Agreement, unless clearly inconsistent with or otherwise indicated by the context, the following capitalised terms shall have the meanings assigned to them hereunder:
    1. “Acquirers” or “Acquiring” refers to financial institutions, such as banks or Client acquirers, that partner with Clients to process credit and debit card transactions. They facilitate the transfer of funds from the End User’s issuing bank (the banks that provide credit or debit cards to customers) to the Client Account, ensuring the completion of electronic payments;
    2. “Act of Insolvency” means in relation to either party:
      1. an application or order is made, or a resolution is passed for its winding-up, business rescue, or dissolution, or a receiver, liquidator, business rescue practitioner, trustee or similar official is appointed over any of its assets or undertaking;
      2. a secured party takes possession of all or substantially all of its assets pursuant to enforcement action, or a distress, execution, attachment, sequestration or other legal process is levied, enforced or sued on or against all or substantially all its assets;
      3. it suspends payment of, or is unable (or admits inability) to pay, its debts generally as they fall due or it is (or admits to being) otherwise insolvent or stops, suspends, or threatens to stop or suspend payment of all or a material part of its indebtedness or proposes or seeks to make or makes a general assignment or any arrangement or composition with or for the benefit of its creditors or a moratorium is agreed or declared in respect of or affecting all or a material part of its indebtedness;
      4. it is or becomes “financially distressed” as defined in the applicable Company Governance Laws, or, where no such definition exists, as reasonably interpreted in a manner consistent with the principles and context of the Company Governance Laws of the Jurisdiction Country; or
      5. it enters into or resolves to enter into any arrangement, scheme, or compromise with, or assignment for the benefit of, its creditors generally or any class of them.
    3. “Agreement” means this agreement and its annexures, as amended in writing from time to time, concluded between TurnStay and the Client;
    4. “Alternative Payment Methods” refers to payment options other than card-based payments, which enable customers to complete transactions using methods such as bank deposits, Automated Clearing House (ACH) transfers, digital wallets, mobile money, Buy Now Pay Later (BNPL) solutions, and other region-specific or technology-enabled payment systems or Exchanges;
    5. “Alternative Payment Method Service Providers” means third parties who facilitate payment using Alternative Payment Methods.
    6. “Applicable Law” means all laws, regulations, rules, statutes, ordinances, by-laws, orders, judgments, directives, decrees, departmental or regulatory judgements, licences, permits, codes, and compliance notices or other governmental restrictions or requirements of any kind in force and applicable under any supranational, national, federal, state, provincial, local law to any party in respect of its rights and obligations under this Agreement, or any Transaction, and the rules and directions of any regulatory authority;
    7. “API” means TurnStay’s application program interface (including all specifications for routines, data structures, object classes, and related protocols, modifiable code, and accompanying libraries of software, any utilities, applications, installers, and documentation) provided to the Client by TurnStay for interface with the TurnStay Systems;
    8. “Authorisation” refers to the authorisation given by the Card Network, Acquirer, PSP, Alternative Payment Method Service Providers verifying if the End User has sufficient funds and authorises the completion of the Transaction, which authorisation is relayed to the Client through the intermediaries (External Suppliers) for validation;
    9. “Billing Currency” means the currency the Client’s Products are listed in for a given Client Account on the TurnStay System;
    10. “Cardholder Data” means the Cardholder’s whole card number plus any cardholder name, expiration date, and/or security code found on a Payment Card;
    11. “Cardholder” refers to the person or entity to whom a Payment Card is issued by an Issuer or any individual authorised to use the Payment Card used to pay the Client.
    12. “Card Network” refer to the global payment networks, such as Visa, Mastercard, American Express, amongst others, that facilitate electronic payment transactions by acting as intermediaries between Clients, card-issuing banks, and acquiring banks. Card Networks are responsible for authorising, clearing, and settling transactions, ensuring the secure and efficient transfer of funds between cardholders and Clients;
    13. “Chargebacks” refers to a charge back made to a Cardholder for the sale of the Client’s Products to reverse the initial charge as a result of a successful dispute by a Cardholder in respect of that Transaction;
    14. “Cleared Funds” means the Transaction proceeds converted to the Client’s Settlement Currency and available for Settlement, less the TurnStay Fees.
    15. “Client” refers to the Client described on page 1 of this Agreement;
    16. “Client Account” refers to the distinct record created on the TurnStay System for the Client to manage and separate its Transactions;
    17. “Client Bank Account” refers to the bank account nominated by the Client and approved by TurnStay for payment of Cleared Funds from time to time
    18. “Confidential Information” means any information concerning a party’s affairs or any information to which the other party has access by virtue of this Agreement or otherwise, and it includes information communicated through various means, such as email, instant messaging, and electronic communications, and especially Cardholder Data. However, Confidential Information does not include information that is publicly known, already known by the receiving party, received from a third party without restriction, or independently acquired or developed by the receiving party without breaching the Agreement;
    19. “Company Governance Laws”: Refers to any applicable legislation governing corporate entities, including, but not limited to, laws on bankruptcy, insolvency, restructuring, and corporate governance, in the Jurisdiction Country. If no Jurisdiction Country is specified, this shall refer to the laws of the jurisdiction where the Services are provided or the parties are incorporated. This includes, without limitation, the Companies Act 2006, the Insolvency Act 1986, and the Corporate Insolvency and Governance Act 2020 in the United Kingdom; the Companies Act 71 of 2008 in the Republic of South Africa; the EU Insolvency Regulation ((EU) 2015/848) and applicable national corporate laws of EU member states in the European Union; and the United States Bankruptcy Code (Title 11 of the United States Code) and applicable state corporate laws, including the Delaware General Corporation Law, in the United States.
    20. “Data Protection Laws” refers to all applicable laws relating to data protection or data privacy in the United Kingdom, the Republic of South Africa (including the Protection of Personal Information Act, 2013), the European Union (the General Data Protection Regulation ((EU) 2016/679), and/or any other jurisdiction from which or to where the Services may be provided, or which may apply to a party from time to time;
    21. “End User” means any person or entity who concludes a Transaction with the Client for its Products;
    22. “Exchanges” mean third parties that facilitate foreign exchange transactions;
    23. “External Supplier” refers to third-party service providers utilised by TurnStay to provide aspects of the Services from time to time, including Acquirers, Payment Service Providers, Exchanges and financial institutions;
    24. “Fees” means the fees charged by TurnStay to the Client for the Services;
    25. “Home Country” refers to the country where the Products are purchased by the End User or the country where the Client is registered, as applicable;
    26. “Intellectual Property Rights” means the rights provided under Applicable Law relating to intellectual property, including patents, copyrights, Trademarks, trade names, brand names, logos, and trade dress;
    27. “Jurisdiction Country” means the country whose laws shall govern and interpret this Agreement, as specified in the Addendum;
    28. “Localisation Services” means the solution offered by TurnStay to the Client (and its End Users) as part of the Services, which enables the End User to make seamless payments and currency conversions to the Client in the End User’s Billing Currency;
    29. “Payment Card” means the payment card that is linked to a Card Network and used by the End User to pay for the Client’s Products;
    30. “Payment Methods” means the payment methods enabled by the TurnStay Systems for End Users to pay for their Transactions, including using Payment Cards, Alternative Payment Methods and other Payment Service Providers or as otherwise agreed between the parties in writing;
    31. “Payment Service Provider” or “PSP” means the service providers that provide the technology and infrastructure needed to handle electronic payment transactions, ensuring that funds are securely and efficiently transferred from End Users to Clients (card and non-card payments);
    32. “PCI DSS” refers to the Payment Card Industry (PCI) Data Security Standard (DSS), defined by the PCI Security Standards Council.
    33. “Personal Information” refers to a Cardholder’s ‘Personal information’ or ‘Cardholder Data’ as defined in the relevant Data Protection Laws;
    34. “Products” refers to the products and/or services offered or sold by the Client to End Users at a Sales Price determined by the Client;
    35. “Processing Currency” refers to the currency which is used by the Payment Service Provider to process the payment;
    36. “Refund” means when the Client agrees to refund an End User for a Transaction based on a returned or cancelled Product;
    37. “Rules” refers to the guidelines and rules of financial institutions for Transaction payments and/or the relevant Card Network, including PCI DSS, regulatory authority rules and security procedures, and Payment and Application Data Security Standards (PA-DSS).
    38. “Sales Price” means the sales price for the Product in the Billing Currency, which must include Sales Tax required to be levied by Applicable Laws;
    39. “Sales Tax” means any national, subnational, federal, state, provincial, or local sales, use, transfer, value-added, excise, environmental, customs, duties, or other transaction tax, governmental fee, or other like charge associated with a sale or purchase transaction, required under Applicable Laws;
    40. “Services” means the offered by TurnStay as contemplated in this Agreement;
    41. “Settlement” means transferring Cleared Funds from the End User’s issuing bank to the Acquirer or Alternative Payment Method Service Provider, ensuring that the Client receives payment of the Sales Price of its Product sold to the End User, subject to obtaining Authorisation, as more fully described in below;
    42. “Settlement Currency” means the currency chosen by the Client for Settlement;
    43. “Signature Date” refers to the date upon which the last of the named parties to this Agreement signs this Agreement;
    44. “Supported Currencies” means only those currencies supported by TurnStay, from time to time and as set out in Annexure A;
    45. “Tax” refers to any income, gross receipts, franchise, estimated, alternative minimum, add-on minimum, sales, use, transfer, real property gains, registration, value-added, ad valorem, escheat, unclaimed or abandoned property, excise, natural resources, severance, stamp, occupation, premium, profits, licence, windfall profit, environmental, customs, duties, real property, special assessment, personal property, capital stock, social security, unemployment, disability, payroll, licence, employment, employee, or withholding tax, governmental fee, or other assessment or charge of any kind associated with taxes.
    46. “Tax Returns” refers to any report, return, statement, election, schedule, claim for Refund, form, declaration, or other information in connection with Tax, as required by Applicable Laws.
    47. “TurnStay Infrastructure” refers to the technology and infrastructure provided or made available to the Client by TurnStay to deliver the Services, including any specified APIs, to be integrated into the Client’s e-commerce website.
    48. “TurnStay System” refers to the TurnStay Infrastructure and the hardware system through which TurnStay provides the Services to Clients;
    49. “Trademark” means any design, marks or word marks registered by either party, as their intellectual property;
    50. “Transaction” refers to the transaction concluded between an End User and the Client for the Product(s) for which the End User must pay the Sale Price to the Client through the TurnStay Systems, regardless of whether it results in an Authorisation;
    51. “Transaction Data” refers to the details of a Transaction, including the Sales Price;
    52. “Website” refers to one or more of the Client’s online platforms in connection with which the TurnStay Systems are used to enable End Users to conclude Transactions

INTERPRETATION

  1. Any reference in this Agreement to —
    1. “business hours” shall be construed as being the hours between 08h30 and 17h00 on any business day. Any reference to time shall be based upon GMT+2 (Greenwich Mean Time plus 2 hours), which does not observe daylight saving time;
    2. “days” shall be construed as calendar days unless qualified by the word “business“, in which instance a “business day” will be any day other than a Saturday, Sunday or public holiday in the Jurisdiction Country, from time to time;
    3. “person” means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality;
    4. The words “include” and “including” mean “include without limitation” and “including without limitation“. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it;
    5. Any substantive provision, conferring rights or imposing obligations on TurnStay or the Client and appearing in any of the definitions in clause DEFINITIONS or elsewhere in this Agreement, shall be given effect to as if it were a substantive provision in the body of the Agreement.
    6. Words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement.
    7. Unless otherwise provided, defined terms appearing in this Agreement in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning.
    8. an enactment is to that enactment as at the Signature Date as amended and includes any subordinate legislation made from time to time under such enactment;
    9. the words “include”, “including” and “in particular” are by way of example only and shall not limit the generality of any preceding words;
    10. a reference to “business day” means a day which is not a Saturday, Sunday or public holiday in the Jurisdiction Country;
    11. any other agreement or document shall be to such agreement or document as amended;
    12. the words “other” and “otherwise” shall be interpreted as widely as possible and will not be limited by any preceding words;
    13. a law process in the Jurisdiction Country shall, if a party is subject to another jurisdiction’s law, be interpreted in relation to that party as including an equivalent or analogous proceeding under such other law; and
    14. a number of days shall exclude the first day and include the last day. If the last day is not a business day, the last day shall be the next business day.
  2. In this Agreement:
    1. clauses shall continue to operate after the termination of this Agreement if necessitated by their nature;
    2. if figures are referred to in numerals and in words and there is a conflict between the two, the words shall prevail;
    3. its provisions shall not be interpreted against the party drafting it; and
    4. if any provision becomes illegal, invalid or unenforceable, such provision shall be severed from the balance of this Agreement to the extent of its illegality, invalidity or unenforceability;
    5. any capitalised terms used in this Agreement that are not otherwise defined in the Definitions section shall have the meaning ascribed to them in the context in which they appear. If a term is capitalised and not defined, it shall be interpreted in accordance with its ordinary meaning within the relevant industry or context.

 

APPOINTMENT & TERM

  1. The Client hereby appoints and authorises TurnStay to render the Services for the duration of this Agreement, and TurnStay hereby accepts such an appointment.
  2. This Agreement shall take effect on the Signature Date.
  3. The initial term of this Agreement begins on the Signature Date and continues for 1 (one) year (the “Initial Term“). The Agreement automatically renews for successive 1 (one) year renewal terms (each, a “Renewal Term“) unless terminated by either party on written notice of at least a whole calendar month before the end of the Initial Term or any Renewal Term.

FEES

  1. The Client agrees to pay TurnStay the Fees specified in Annexure A for each Transaction and further agrees that the Fee shall be earned and will at that time be due and payable to TurnStay upon receipt of the Authorisation for a Transaction and is always non-refundable.
  2. In case of a Refund or Chargeback, the Fee will not be Refunded to the Client, and additional Fees for processing such Refund or chargeback will be deducted from the next Settlement.
  3. The Client shall pay all Fees due to TurnStay by TurnStay deducting those Fees from any Settlement amounts received, by end-of-month invoices, or by debiting the Client’s bank account, as reflected in the Client Account.
  4. Any additional Services requested by the Client beyond those outlined in this Agreement shall be subject to additional Fees according to TurnStay’s current pricing policy, from time to time.
  5. TurnStay reserves the right to add a foreign exchange Fee for the Client’s account if it facilitates currency conversion on behalf of the Client at the rate or Fee disclosed in Annexure A.

THE SERVICES

  1. TurnStay Services offers a comprehensive platform to facilitate the Client’s booking and sale of Products to End Users. The platform includes services such as customised booking and checkout templates, creating booking links, enabling product listings, marketing tools, tracking engagement and conversion rates, connecting with End Users, managing bookings, issuing refunds, and generating receipts and invoices. Additionally, the platform supports localised payment methods tailored to the End Users’ Home Country, holds and disburses proceeds on behalf of the Client, and offers tools for End User communication and experience customisation.
  2. TurnStay shall act as an intermediary facilitating the management and payment facilitation of the Client’s Products and shall specifically attend to the following:
    1. Setting up and securing a Client Account on the TurnStay System, and related reporting and management tools for Transactions and Products thereon, including detailed reports and analytics on Cleared Funds and Fees to track the Client’s sales, manage finances, and identify trends.
    2. Providing a payment gateway using the TurnStay Infrastructure to:
      1. Create customisable payment links which can be used by the End User to initialise a payment.
      2. Add a payment portal to the Client’s website or the Client’s payment links which the End User uses to initialise a payment,
    3. Ensuring compliance with PCI DSS to the extent it applies to a Transaction and by External Suppliers, to protect Cardholder Data for secure transmission of Transactions;
    4. Handle the Client’s Transactions by communicating with Card Networks, External Suppliers and Acquirers and providing Alternative Payment Methods to Authorise Settlements;
    5. Settlement to ensure the Client receives the Cleared Funds without delay or deduction (other than agreed Fees); and
  3. It is an express term of this agreement, and the Client warrants that it shall take appropriate steps to adequately inform End Users that TurnStay is acting as an intermediary in providing the payment Services for their Transactions, as stipulated in Annexure B
  4. Each party is an independent contractor and not an employee or representative of the other, except as specifically stated otherwise herein. This Agreement does not create a partnership, joint venture, or business combination other than what is stated herein.
  5. The parties shall:
    1. Not incur liability or pledge credit on behalf of each other.
    2. Act in good faith towards each other in an open and transparent manner.

THE PARTIES OBLIGATIONS

  1. Both Parties agree that they shall each or jointly be responsible, as the case may be, for:
    1. complying with all applicable terms, conditions, and rules of PSPs, Card Networks, Acquirers, Issuers, Alternative Payment Method Service Providers and national financial regulators.
    2. complying with all export control laws and regulations applicable to the Products (“Export Control Laws”) or Services.
  2. It is agreed that the Client hereby warrants that it shall:
    1. take every reasonable step to support compliance with its requirements under this Agreement, including, amongst others, keeping up-to-date terms and conditions and Refund policies, managing all payments within specified policies, liaising timeously with End Users regarding Refunds and payments, and taking all measures necessary to avoid Chargebacks.
    2. assume the risk of:
      1. fraud with respect to any Transaction payments, except in the case of fraud or gross negligence on the part of TurnStay;
      2. Product liability.
    3. solely be responsible for charging, collecting, and remitting any applicable Sales Tax to the appropriate authorities and completing and submitting its Tax Returns;
    4. not use the Services or the TurnStay Infrastructure in violation of Applicable Laws, including Export Control Laws, or any unlawful activities, and warrant that (i) it is duly authorised to promote the relevant Product, (ii) is not infringing any Intellectual Property Rights, or any right.
    5. not deceive (or attempt to deceive) End Users by displaying false, inaccurate or misleading information about the Services or the Client’s Products.
  3. It is agreed that TurnStay shall:
    1. Provide its Services, subject to the ability and cooperation of External Suppliers;
    2. Comply with all Tax laws and PCI DSS;
    3. Ensure that all Payment Service Providers engaged in the provision of its Services are adequately licensed and compliant with applicable regulations;
    4. Attend to Settlements and Refunds as stipulated herein.

TRANSACTIONS

  1. Once an End User requests a Transaction, TurnStay facilitates the payment through the TurnStay System using third party Payment Service Providers and Exchanges.
  2. Upon verifying the End User’s Transaction Data, TurnStay will facilitate the payment process to obtain Authorisation and, if approved, effect Settlement of the Cleared Funds to the Client.
  3. TurnStay System makes use of various currencies to deliver the Services. The use of each currency in a Transaction can be summarised as follows
    1. The Client lists the Sales Prices for a Product in the Billing Currency;
    2. The Sales Price of each Product is displayed to the End User in their Billing Currency or the currency chosen by the End User. The price in the Billing Currency is also displayed;
    3. Once the End User selects a currency and initiates the payment, this currency becomes the Processing Currency, and the Payment Service Provider processes the payment in the selected Processing Currency;
    4. After Authorisation is completed, the Cleared Funds are made available to TurnStay in the Processing Currency;
    5. TurnStay then attends to Settlement of Cleared Funds to the Client in the Processing Currency, except if instructed otherwise by the Client, in which case clause below will apply.
  4. Settlement to the Client is done in the Settlement Currency. Client’s may have different currencies associated with the Client Accounts. Cleared Funds processed by TurnStay become due to the Client at the time that the Product is delivered to the End User, unless otherwise agreed in the Addendum.
  5. The Sale Price is payable to the Client in the Billing Currency. Amounts due to the Client are recorded in the Billing Currency, which determines the liability for payment to the Client. However, if a Client requires payment in a currency other than the Processing Currency (referred to as the Settlement Currency), then that currency exchange is subject to a rate equal to the amount of the Product in the Billing Currency on the date and time of such Settlement (in the Settlement Currency). The Client hereby assumes full responsibility for any gain losses or damages incurred due to currency exchange fluctuations and indemnifies TurnStay against any such losses or damages.
  6. Currency conversion rates between different currencies used in the TurnStay Services are applied at a conversion rate provided by a currency conversion External Supplier. TurnStay charges an additional FX conversion fee for this Service, which is outlined in Annexure A.
  7. Upon Authorisation of a Transaction, TurnStay will transmit or make available confirmation of the executed Transaction and provide the Client with an electronic invoice and receipt of its Fees, posted on the Client Account.
  8. Refunds and Chargeback Policies:
    1. In the case where the Client does not provide a Refund policy, TurnStay’s standard Refund terms apply. The TurnStay standard refund policy is that all transactions are fully Refundable, provided that the Refund is requested one month or more before the Product is delivered. Other Refund requests will be honoured at the Client’s Discretion;
    2. The Client may override TurnStay’s Refund by providing TurnStay with a summary of their refund policy and their detailed terms and conditions, which are presented to and accepted by the End User at the time of purchase. This must be done before any Refund is actually paid.
    3. TurnStay will handle End-User Refunds according to the refund policy stated above. The Client is liable to pay all Refunds, including applicable Fees. At TurnStay’s discretion, the foreign exchange rate for Refunds will be set to either the rate applied to the original Transaction (in the Billing Currency) or the exchange rate at the time of the Refund.
    4. The Client is also liable for payment of all Chargebacks, except if caused by TurnStay’s negligent actions or omissions, in which case TurnStay shall remit a chargeback and bear the cost of the Refunded Transaction Fees and notify the Client thereof.
    5. The Client is liable for TurnStay’s Fees if it manages or facilitates the Chargeback (or Refund). Any funds due to TurnStay from Refunds or Chargebacks by the Client will be deducted from other Cleared Funds due to the Client, from future Settlements, or may be debited from the Client’s account.
    6. The Client will:
      1. Use reasonable efforts to prevent fraudulent or unauthorised use of the TurnStay Systems;
      2. Report any unauthorised or fraudulent Transactions immediately;
    7. The Client hereby acknowledges that TurnStay may, in its sole discretion and without liability, cancel or chargeback a Transaction due to fraud, Applicable Laws, Force Majeure or because of an External Party (forming part of the Transaction).
  9. Attend to Settlements and Refunds as follows:
    1. remit Cleared Funds to the Client (after deducting applicable Fees and Sales Tax required to be collected and remitted by the Client) in the Client’s chosen Settlement Currency;
    2. remit funds for Refunds to End Users, on behalf of the Client, in accordance with the Client’s disclosed contract terms, policies and procedures, which must be compliant with this Agreement; and
    3. provide direct customer service to the Client for payment-related inquiries from their End Users regarding Transactions; and
    4. assist the Client with Chargebacks and/or payment disputes, subject to:
      1. The Client timeously providing TurnStay with all relevant documents and information relevant to the dispute or Chargeback; and
      2. Indemnifying TurnStay as to the outcome of any chargeback or dispute as set out in clause INDEMNITY & LIMITATION OF LIABILITY .
  10. Service Blocking:
    1. TurnStay reserves the right to block the use of the Services, in its sole discretion and without any liability, to any End User or the Client where it suspects that such End User or the Client may be engaged in any activity that places at risk any of the role players in the payment processing chain, or that may constitute a “suspicious transaction” or be “suspicious activity” within the meaning of any applicable anti-money laundering legislation, or Applicable Laws.
    2. The Client warrants that it will use the TurnStay Systems only in accordance with this Agreement, the Rules, and the Applicable Laws, and shall notify TurnStay promptly of any suspicious transaction or suspicious activity in violation hereof;
    3. In such cases, TurnStay reserves the right to cancel the relevant Transaction, and the Client will bear the cost of the Refunded Transaction Fees and notify the Client of such cancellation forthwith.

TECHNOLOGICAL ASPECTS

  1. Access to TurnStay Systems
    1. The Client will receive a unique Client ID administered by Service Provider, granting the Client access to certain TurnStay Systems and the Client Account.
    2. No unauthorised person may use the Client ID assigned to the Client. The Client must take reasonable steps to maintain confidentiality and prevent unauthorised disclosure of the Client ID.
    3. The TurnStay Infrastructure is provided to the Client solely for the purpose of the Services. Except for the limited permission to access and use the TurnStay Infrastructure through the specified API for the Services, the Client acknowledges that it does not acquire any rights, title, or interests in the TurnStay Infrastructure. TurnStay exclusively retains all rights, title, and interests in the TurnStay Infrastructure and Trademark.
    4. TurnStay will integrate the Client’s Website and shopping cart with the TurnStay Systems, ensuring that Payment Methods and processes comply with the Applicable Laws of each Home Country.
    5. For TurnStay to provide the Services, the Client’s systems may need to be integrated with TurnStay’s systems using specified APIs. The Client is responsible for the costs and efforts of integration and must assist in maintaining compatibility between the two systems. Any system changes must first be discussed and agreed with TurnStay.
    6. TurnStay does not warrant the uptime or functionality of the TurnStay System at all times, and the Client indemnifies TurnStay against any liability, loss or delay to the fullest extent of the law, as amplified by clause below.
  2. PCI DSS Compliance
    1. TurnStay warrants that its systems (including the TurnStay Systems) and data centres meet or exceed the requirements of PCI DSS.
    2. TurnStay agrees to perform the Services and handle Cardholder Data in compliance with PCI DSS and any data security measures agreed between the parties in writing. TurnStay will promptly notify the Client if its certification of compliance with PCI DSS is revoked for any reason.

TAXES

  1. Unless otherwise stated, all Fees and other amounts stated in this Agreement are exclusive of any applicable Sales Tax.
  2. The Client will be solely responsible for determining and charging applicable Sales Taxes to End Users, filing Tax Returns, and paying or remitting Sales Tax to the relevant authorities.

SETTLEMENT & RESERVES

  1. TurnStay will credit the Client Account with the aggregate amount of all approved Transactions concluded through the TurnStay Systems in the Settlement Currency, net of Refunds, Chargebacks, Fees, applicable Sales Tax, and any other amounts owed by the Client to TurnStay under this Agreement (“Settlement”). Settlement will occur during business hours GMT+02.
  2. TurnStay will remit Settlement to the Client only after receiving Cleared Funds for a Transaction. The Client acknowledges that the timing of Cleared Funds from a Payment Methods is beyond TurnStay’s control. However, TurnStay will make reasonable efforts to expedite Settlement.
  3. External Suppliers may withhold amounts from Cleared Funds under certain circumstances without notifying or obtaining approval from TurnStay (“Withheld Settlement“). If TurnStay becomes aware of any Withheld Settlement, it will notify the Client and work to obtain the withheld amount in Cleared Funds as soon as possible.
  4. TurnStay may, at its sole discretion, place a reserve on a portion of the Client’s Settlement payments if it reasonably believes that the sale of Products poses a high risk of fraud or Chargebacks. TurnStay may hold the reserve for a reasonable time to mitigate risks related to the Client’s Transactions. The Client remains liable for all obligations related to Transactions, even after the release of any reserve.

THE CLIENT’S COVENANTS & OBLIGATIONS

  1. The Client acknowledges that it is entirely responsible for:
    1. the Products, including the quality of the products and ensuring the Product is delivered in a timely manner;
    2. the functionality of their Website;
    3. complying with consumer protection laws in relation to the Products;
    4. all Taxes and duties applicable to the sale of the Products, including Sales Taxes payable and
    5. the accuracy of all Product information.

INTELLECTUAL PROPERTY RIGHTS

  1. TurnStay grants the Client a non-exclusive, non-sublicensable, non-assignable, and non-transferable license to use and integrate the Website with the TurnStay Systems. The license does not permit any other use, including external transfer, licensing, or distribution, whether commercial or otherwise. The license is granted solely to the Client and cannot be assigned without written consent from TurnStay.
  2. All Intellectual Property Rights in the Services, the TurnStay Systems, TurnStay’s proprietary technology, and its Trademarks are owned by TurnStay, or its licensors, as applicable.
  3. All Intellectual Property Rights in the Products, the Website, the Client’s proprietary technology, and the Client’s Trademarks are owned by the Client, or its licensors, as applicable.
  4. Neither party shall misuse, copy, alter, modify, decompile, decipher, disassemble, or reverse engineer any part of the other party’s systems or proprietary technology, nor attempt to do so.
  5. Unless expressly stated in the Agreement, neither party has any rights to the other party’s Intellectual Property Rights, know-how, or concepts, regardless of their nature.

TERMINATION

  1. Either party may terminate this Agreement immediately upon providing written notice to the other party if:
    1. the other party commits a material breach of this Agreement and fails to remedy the breach within 30 days after receiving a written request to do so;
    2. termination is required under the Rules or Applicable Law; or
    3. the other party commits an Act of Insolvency.
  2. Upon termination of this Agreement:
    1. the Client must cease using TurnStay Services and accessing the TurnStay Systems;
    2. TurnStay must stop processing Transactions; and
    3. the parties must return or securely destroy all Confidential Information belonging to the other party; and
    4. TurnStay may require the Client to keep the Client Account available for a reasonable period, for open Settlements, Chargebacks, and other adjustments. TurnStay may also withhold an amount from the final Settlement to cover its Fees related to Chargebacks and other adjustments following the termination of this Agreement.
  3. Termination does not relieve either party of liability for obligations accrued or resulting from acts or events before the effective date of termination.

DATA PROTECTION

  1. Both parties will, to the fullest extent, comply with all applicable requirements and obligations of all Data Protection Laws applicable to it.
  2. Each party shall take all appropriate technical and organisational security measures to ensure that Personal Information supplied to it by the other party (“Discloser’s Data”) or to which it has access in connection with this Agreement (including, in particular, End User Personal Information, Cardholder Data, Transaction Data, or Authorisation data) is protected against loss, destruction and damage, and against unauthorised access, use, modification, deletion, disclosure or other misuse.
  3. Each party shall take reasonable steps to identify all reasonably foreseeable internal and external risks posed to the Discloser’s Data, and shall establish and maintain appropriate safeguards against any risks identified. The safeguards shall be updated continually in response to new risks or deficiencies in previously implemented safeguards.
  4. Each party warrants, represents and undertakes that it shall ensure that its technology on which the Discloser’s Data is processed, shall at all times be in a standard no less than the standards which are in compliance with the good industry practice for the protection, control and use of the Discloser’s Data and Personal Information.
  5. Each party shall ensure that all persons processing Personal Information on its behalf shall, in respect of the Discloser’s Data:
    1. not process any of the Discloser’s Data for any purpose other than to the extent necessary;
    2. comply with any request made or direction given by the Discloser in connection with the requirements of all Data Protection Laws applicable to this Agreement;
    3. not do or permit anything to be done which might jeopardise or contravene any Data Protection Laws applicable to this Agreement;
    4. not disclose the Discloser’s Data without the written authority of the Discloser, except to the extent required by Applicable Law;
    5. endeavour to have in place appropriate measures to protect against unauthorised or unlawful processing of and against accidental loss or destruction of, or damage to such Personal Information; and
    6. ensure that all personnel who have access to and/or process such Personal Information keep such Personal Information confidential.
  6. Each party agrees to notify the other promptly after the discovery of:
    1. any event that results in or may result in loss, unauthorised destruction, deletion, modification, access, use, disclosure, theft, compromise of privacy, or acquisition of Cardholder Data, Transaction Data, Authorisation data, End User information, or any other data constituting personal information under Applicable Laws; and/or
    2. suspected fraudulent, unauthorised or illegal access to, use of, or acquisition or loss of the other party’s Confidential Information,
  7. and will reasonably cooperate with the other party to address or mitigate any such incidents.

INDEMNITY & LIMITATION OF LIABILITY

  1. The Client (including your employees, contractors, representatives, agents, directors, and shareholders) hereby indemnifies and holds TurnStay harmless from and against any loss (including reputational loss), cost, expense, damages, liabilities, injury and/or death, to the fullest extent permitted in law, of whatever nature and howsoever arising in connection with or in any way attributable to: the Services, the Products and any Transactions (including Chargebacks, Refunds and/or cancellations), your breach of these terms and/or any act or omission on your part (collectively referred to hereinafter as “Loss”).
  2. To the extent that TurnStay has suffered or incurred such Loss, the Client will reimburse TurnStay fully on request for such Loss. If the Client fails to do so within five business days of such request, then TurnStay may set-off such Loss against any future payment (Cleared Funds) due to you.
  3. It is expressly agreed that TurnStay will not be liable for any indirect, special or consequential losses of any kind whatsoever arising from, or in connection with your use of the TurnStay System or our Services.
  4. Notwithstanding anything contrary, TurnStay’s liability for any Loss is limited to the Fees charged to the Client in that calendar year to date of such Loss.

FORCE MAJEURE

  1. Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure results from circumstances beyond its reasonable control, including but not limited to acts of God, war, terrorism, civil unrest, strikes, labour disputes, natural disasters, fire, flood, pandemics, governmental action, or any other events or circumstances that could not have been foreseen or prevented (each, a “Force Majeure Event“).
  2. In the event of a Force Majeure Event, the affected party shall promptly notify the other party in writing, detailing the nature of the Force Majeure Event and the anticipated duration of its impact on performance.
  3. The obligations of the affected party shall be suspended for the duration of the Force Majeure Event, provided that the affected party uses all reasonable endeavours to mitigate the impact of the Force Majeure Event and to resume full performance of its obligations as soon as practicable.
  4. If the Force Majeure Event continues for a period of more than thirty (30) days, either party may terminate this Agreement upon written notice to the other party, without any liability for such termination.

DISPUTE RESOLUTION

  1. If a dispute arises in connection with this Agreement or its termination or invalidity, the parties shall use best efforts to settle the dispute by mediation.
  2. Upon written notice from any party to another party (the “Dispute Notice”) the dispute shall be referred to a suitably qualified independent mediator. The parties shall agree the mediator’s identity in writing, within 7 days of delivery of the Dispute Notice. Failing agreement, the mediator shall be appointed by a recognised mediation or arbitration body in the Jurisdiction Country, if applicable, including, without limitation, the Arbitration Foundation of Southern Africa (“AFSA”) in the Republic of South Africa, the Centre for Effective Dispute Resolution (“CEDR”) in the United Kingdom, the International Chamber of Commerce (“ICC”) in the European Union, or the American Arbitration Association (“AAA”) in the United States.
  3. The mediation shall be held in Cape Town. The parties shall agree on the mediation procedure. Failing agreement on the mediation procedure within 14 days of delivery of the Dispute Notice, the mediation procedure shall be in accordance with the prevailing AFSA Rules for Mediation.
  4. If a dispute is not settled by mediation within 30 days of delivery of the Dispute Notice, then the dispute shall be settled by arbitration.
  5. The arbitrator shall be a suitably qualified independent person agreed in writing by the parties within 14 days of the lapse of the 30 days contemplated in clause 16.4. Failing agreement, the arbitrator shall be appointed by the Registrar of AFSA upon request by any party.
  6. The arbitration shall be held in Cape Town in accordance with the prevailing AFSA Rules for Commercial Arbitration. The AFSA Expedited Rules shall apply if the dispute would fall within the prevailing magistrates court jurisdiction.
  7. The arbitrator shall set the date, time, and venue of the arbitration.
  8. Any order or award made by the arbitrator shall be final and binding.
  9. This clause Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure results from circumstances beyond its reasonable control, including but not limited to acts of God, war, terrorism, civil unrest, strikes, labour disputes, natural disasters, fire, flood, pandemics, governmental action, or any other events or circumstances that could not have been foreseen or prevented (each, a “Force Majeure Event”). shall not prevent any party from seeking interim and/or urgent relief from a court of competent jurisdiction, and shall survive termination or cancellation of this Agreement.

LEGAL ADDRESS AND NOTICES

  1. The Client chooses the address set out in clause 1 at which to receive notices and legal process in terms of this Agreement (“Legal Address”), or as otherwise notified in writing.
  2. Notices, to be valid, must be in writing, and may be given by e-mail.
  3. Notices are deemed to have been received on the date of delivery by hand to a responsible person at, or transmission of the email to, the chosen Legal Address, during ordinary business hours. If delivery occurs outside of ordinary business hours, it shall be deemed to have been received at 08h00 on the next business day.
  4. A written notice actually received by a party shall be valid even if it was not delivered at its chosen Legal Address.

COSTS

Each party shall pay its own costs in connection with this Agreement.

GENERAL PROVISIONS

Governing Law: This Agreement shall be governed by and interpreted in accordance with the law of the Jurisdiction Country.

  1. Governing Law: This Agreement shall be governed by and interpreted in accordance with the law of the Jurisdiction Country.
  2. Whole Agreement
    1. Any amendment or cancellation of this Agreement must be agreed between the parties in writing and signed in wet ink.
    2. This Agreement encompasses the whole and only agreement between the parties relating to its subject matter. No term, representation, or warranty is binding between the Parties unless set out in this Agreement.
    3. No indulgence or waiver of any provision of this Agreement shall be binding unless given by the relevant party in writing.

COUNTERPARTS

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