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Schedule 12 – ShopBack PayLater Payment Channel


GENERAL TERMS AND CONDITIONS

  1. TERM

    1. Unless otherwise agreed by the Parties in writing, this Agreement shall commence and take effect from the Effective Date and shall continue until terminated as provided in Clause 7 of this Schedule 2 below.

  2. MARKETING EFFORTS

    1. The Merchant permits ShopBack FS MY and its related entities in the ShopBack Group (the “ShopBack Entities”) to use and have access to its name, product and service information, logo and trademarks and to the names, product and service information, logos and trademarks belonging to any third party to the Agreement that the Merchant intends to be used by ShopBack FS MY and/or the ShopBack Entities for the purpose of promoting, advertising and marketing the Merchant’s products and services.

  3. CONFIDENTIAL INFORMATION, INTELLECTUAL PROPERTY AND PERSONAL DATA

    1. Confidential Information” shall mean the terms and conditions of this Agreement and all information and data (including Personal Data), whether technical or non-technical, electronic, or written, received from the other Parties, including but not limited to production information, plans and pricing, financials, marketing plans, business strategies, customer information, data, software, APIs, specifications, designs, proprietary formulae and algorithms.

    2. Personal Data” shall mean all data which is defined to be such under the relevant data protection legislation and includes all information which identifies or which relates to an individual, whether true or not, in any form.

    3. Intellectual Property” shall mean any inventions, discoveries, designs, developments, processes, improvements, copyrightable or patentable material, marks and trade secrets owned by either Party or created in the course of this collaboration.

    4. Each Party shall keep confidential any Confidential Information and any Intellectual Property received from the other Parties, and will not use or disclose any of the same to any third party to the Agreement (save as required by law or for the purpose of obtaining professional legal advice) without prior written consent of the other Parties. Each Party shall use its reasonable endeavors to prevent the publication or disclosure of any Confidential Information or Intellectual Property of the other Parties.

    5. The Parties agree to use any Personal Data disclosed, furnished or made available to it by the other Parties solely for purpose of this Agreement, and represent and warrant that they have in place internal procedures and processes with regard to their collection, disclosure, use, storage and processing of Personal Data which comply with the relevant data protection legislation, and undertake to maintain internal procedures and processes with regard to their collection, disclosure, use and processing of Personal Data which comply with the said legislation. The Parties acknowledge that there may be a need to revise the processes put in place under this Agreement that facilitate the sharing of personal data in circumstances where new laws, regulations and guidelines are promulgated in relation to the collection, disclosure, use, storage and processing of Personal Data. Source Information shall not constitute Personal data for the purpose of this Clause.

    6. For the avoidance of doubt, each Party owns all rights, title and interests in all software and intellectual property rights that have been developed by it prior to this Agreement. Nothing in this Agreement shall be construed to have the effect of transferring or in any way divesting ownership in the intellectual property rights of one Party to the other Parties. The Parties hereby acknowledge that the Intellectual Property rights in any information received by each Party and the products and/or services pertaining to such information are and shall remain at all times with the disclosing Party.

    7. The Merchant’s use of third party payment providers’ trademarks, whether registered or not, does not lead to any transfer of ownership, rights or copyrights to the Merchant. Upon termination of the Agreement, the Merchant shall immediately remove any QR Code, all logotypes of ShopBack FS MY and/or the ShopBack Entities and/or of the third party payment provider specifically relating to such payment method, unless the Merchant is expressly allowed to continue using such logotypes.

    8. Clause 3.4 of this Schedule 2 shall not apply to information or data which by the time of disclosure has become public knowledge for a reason other than the fault of the Party who received such Confidential Information from the other Parties.

    9. Clauses 3.4 and 3.5 of this Schedule 2 shall not apply to information and data independently obtained by the receiving Party provided that the means through which the receiving Party independently obtained such information and data was not a violation of any law or regulation, a breach of any contract or agreement or otherwise unlawful in any way and shall not restrict or prevent a disclosure of information or data that is required by the law or by an order of Court or the Government authorities.

    10. Upon the request of a Party, all copies of the other Parties’ Confidential Information and/or Intellectual Property shall be returned or promptly destroyed.

    11. This Clause 3 of this Schedule 2 shall survive the termination and/or expiration of this Agreement.

  4. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS

    1. Each Party hereby warrants that it has obtained all requisite licenses, permits and approvals, is in compliance with all applicable laws and regulations, and has all requisite legal governmental and corporate authority to enter into and perform its obligations under this Agreement.

    2. The Merchant shall assume full responsibility and liability for the contents of any of its marketing or publicity material, including its website or any of its other online or offline platforms and the products and services offered on / by it (including the quality, merchantability and fitness of such products and services). ShopBack FS MY shall assume no responsibility and shall not be liable for such content, products and/or services. Accordingly, the Merchant represents, warrants and undertakes that:

      1. where such products or services are supplied by third parties to the Agreement, the Merchant has and will continue to have adequate warranties and insurance for such products and services;

      2. such products and services offered by it do not and will not breach or violate any laws or regulations, or any contracts or agreements with third parties; and

      3. the Merchant shall defend and indemnify and/or hold harmless ShopBack FS MY and its directors, officers, employees, agents, stockholders, affiliates, subcontractors and customers from and against all allegations, claims, actions, suits, demands, damages, liabilities, obligations, losses, settlements, judgments, costs and expenses (including without limitation attorneys’ fees and costs) from any parties whatsoever (including third parties and customers, where applicable) which arise out of, relate to or result from this Agreement and the products and services offered by the Merchant.

    3. The Merchant represents and warrants to ShopBack FS MY that it owns or, where applicable, has procured the express written approval of / license from the relevant third parties to the Agreement for ShopBack FS MY and/or the ShopBack Entities to use such third party’s names, logos, images and trademark(s) and ShopBack FS MY and/or the ShopBack Entities’ use of the same will not infringe upon the rights of any third party to the Agreement.

    4. The Merchant undertakes to do all things necessary to facilitate customers’ access and use of the Merchant’s products and services and any of its online or offline platforms, subject always to the Merchant and ShopBack FS MY’s terms and conditions.

    5. The Merchant undertakes to take all necessary steps to ensure that all information stated in the Validation Format and Source Information is true and accurate (if applicable).

    6. Without prejudice to any other rights and remedies ShopBack FS MY may have at law, the Merchant agrees to indemnify and hold harmless ShopBack FS MY and, where relevant, the ShopBack Entities, its branches and affiliates, and their respective officers, employees and directors free and harmless from any complaint, suit, action, claim, loss or damage arising out of a breach or failure on the part of the Merchant to observe and abide by this Clause 4.

    7. The Merchant agrees that the total liability of ShopBack FS MY in respect of all loss or damage arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed the total commission paid to the Merchant during the twelve (12) months immediately preceding on which the claim arose. For the avoidance of doubt, the limitation of liability set out in this Clause 4.7 shall not apply to each Party’s liability under relevant personal data laws and/or regulation.

  5. FORCE MAJEURE

    1. No Party shall be in breach of this agreement nor be liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 14 business days’, the Party not affected may terminate this agreement by giving 7 business days' prior written notice to the affected Party.

  6. USE OF ONLINE MERCHANT TOOL AND DASHBOARD (“SHOPBACK FOR BUSINESS”)

    1. Where the Merchant has chosen to use ShopBack for Business, the Merchant shall do so responsibly and shall take all reasonable precautions to prevent any unauthorised use of ShopBack for Business.

    2. The Merchant acknowledges that it shall not cause ShopBack for Business and the data available therein to be accessed, copied or otherwise used by any unauthorised persons, including authorised employees of the Merchant. ShopBack FS MY shall not be held liable by the Merchant for any such unauthorised access that is a result of the Merchant’s negligence, mismanagement or fault.

    3. Merchant warranties and representations in relation to ShopBack for Business.
      The Merchant warrants, represents and undertakes that: (a) it is authorised to enter into this Agreement and that this Agreement has been accepted by an authorised representative of the Merchant; (b) it shall inform ShopBack FS MY in writing immediately of any changes that could affect this Agreement; and (c) all information provided by the Merchant, if any, in ShopBack for Business is accurate, complete and correct.

    4. Exclusion of liability.
      Insofar as ShopBack FS MY and/or the ShopBack Entities do not exclude or limit any liability that cannot be excluded or limited by applicable law, ShopBack FS MY and/or the ShopBack Entities shall not be liable for any indirect loss. Further, ShopBack FS MY and/or the ShopBack Entities shall not be liable, whether directly or indirectly, for (i) loss of actual or anticipated profits; (ii) loss of goodwill; or (iii) loss of data and/or the costs of restoration of data. ShopBack FS MY and the ShopBack Entities’ total liability under this Agreement arising from and in relation to ShopBack for Business, shall in no circumstances exceed 5000 (Five Thousand) Malaysian Ringgit only.

    5. License to use ShopBack for Business.
      ShopBack FS MY grants the Merchant a non-exclusive, revocable license for the Merchant to use ShopBack for Business to track total users’ purchases, redemptions etc. other data that ShopBack FS MY chooses to make available to the Merchant from time to time. The Merchant may not at any time, directly or indirectly, reverse engineer or aid or assist in the reverse engineering of all or any part of ShopBack for Business. Reverse engineering includes, without limitation, decompiling, disassembly, sniffing, peeling semiconductor components, or otherwise deriving source code.

  7. TERMINATION

    1. A Party may terminate this Agreement forthwith if another Party to the Agreement commits a material breach of this Agreement, by serving upon the Parties a written notice of the breach.

    2. For the purpose of Clause 7.1 of this Schedule 2 above, a Party shall be deemed to commit a material breach of this agreement in, inter alia, the following circumstances:-

      1. it has ceased or threatened to cease business, is or has been wound up or becomes bankrupt;

      2. it passes a resolution for winding-up or a court shall make an order to that effect;

      3. a receiver and manager or judicial manager has been appointed over the whole or substantial part of its assets or property;

      4. it makes or proposes to make any arrangement or composition with its creditors, admits in writing of the inability to pay debts generally as they become due;

      5. a step analogous to those set out in Clauses 7.2.1 to 7.2.4 of this Schedule 2 is taken in connection with its insolvency bankruptcy or dissolution; or

      6. it fails to make payment for an invoice issued pursuant to this Agreement within the time stipulated under this Agreement.

    3. Notwithstanding Clauses 7.1 and 7.2 above, a Party may terminate this Agreement at any time for convenience by giving 60 days prior written notice to the other Parties without providing any reason for such termination and without being liable to the other in damages or otherwise for such termination;

    4. Termination of this Agreement for any reason whatsoever shall not prejudice or affect the rights and obligations of a Party accruing prior to the date of termination, nor any of the rights and remedies the terminating Party may have at law or equity (including the right to sue or to claim for damages).

  8. COMMUNICATIONS

    1. Any notice, request, waiver, consent or approval required or permitted to be made or obtained under this Agreement shall be in writing and shall be deemed to have been duly given or made by a Party when it shall be delivered by hand, prepaid registered mail or e-mail (accompanied by confirmation of successful delivery) at such other addresses and contact particulars as such Party shall have designated by notice in writing to the Party giving such notice, request, waiver, consent or approval.

      ShopBack FS Malaysia Sdn. Bhd.

      17.03, Level 17, Menara IGB

      Mid Valley City, Lingkaran Syed Putra, 59200 KL E-mail: [email protected]

      Attention: ShopBack FS Malaysia Sdn. Bhd.

      Merchant

      See Special Terms & Conditions Contact Details

  9. MISCELLANEOUS

    1. If any provision, term or condition of this Agreement is declared invalid, all other provisions, terms and conditions shall not be affected thereby and shall continue to be in full force and effect.

    2. The commissions payable by the Merchant to ShopBack FS MY are subject to applicable taxes. The commission rate set out in the Appendices to the Special Terms and Conditions do not include such taxes. Subject to applicable law, all taxes (including sales and services tax (“SST”) and stamp duty) levied upon any sums payable under this Agreement shall be borne solely by the Merchant.

    3. Any amendment or waiver of any provision found in this Agreement shall require the written consent of all Parties hereto.

    4. All payments to be made under this Agreement shall be made in cleared funds, without any deduction or set-off and free and clear of and without deduction for or on account of any taxes other than value-added tax (“VAT”), levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority. If a Party to this Agreement is compelled by law to make any such deduction, it will pay to the receiving Party such additional amounts as are necessary to ensure receipt by the receiving Party of the full amount which that party would have received but for the deduction.

    5. This Agreement does not constitute any Party the agent of the other, or create a partnership, joint venture or similar relationship between the Parties, and no Party shall have the power to obligate or bind the other Party in contract, in tort or otherwise howsoever except as provided in this Agreement.

    6. Save for the assignment of this Agreement by ShopBack FS MY and/or the ShopBack Entities to one if its affiliates or related entities, no Party may assign this Agreement or any of its rights, nor delegate any of its obligations hereunder, in whole or in part, without the other Parties’ prior written consent. Any attempted or purported assignment and/or assumption of this Agreement or any right and/or obligation contemplated hereunder other than as explicitly permitted herein shall be null and void, and of no force or effect whatsoever.

      The terms and conditions of this Agreement will inure to the benefit of and bind the Parties’ respective successors and permitted assigns.

    7. Failure on the part of a Party to enforce any provision, right or remedy under this Agreement shall not be construed as a waiver of any such provision, right or remedy.

    8. The Parties expressly acknowledge that they have read this Agreement and understood its provisions. The Parties agree that this Agreement constitutes the entire agreement between them with respect to the subject matter of this Agreement and that it supersedes all prior or contemporaneous proposals, agreements, negotiations, representations, warranties, understandings, correspondence and all other communications (whether written or oral, express or implied) or arrangements entered into between the parties prior to this Agreement in respect of the matters dealt with in it. No promise, inducement, representation or agreement other than as expressly set forth in this Agreement has been made to or by the Parties.

    9. These terms hereunder shall be governed by and construed in accordance with the laws of Malaysia and the Parties agree to submit to the exclusive jurisdiction of the Malaysia courts.

    10. A person who is not a Party to this Agreement has no rights to enforce any terms of this Agreement.

    11. This Agreement may be executed in one or more counterparts and may be delivered by electronic PDF or facsimile transmission, all of which shall be considered one and the same agreement and each of which shall be deemed an original.

    12. In the event of any conflict or inconsistency with the General Terms and Conditions and the Special Terms and Conditions (including the Appendices thereto), the terms and conditions in the Special Terms and Conditions (including the Appendices thereto) shall prevail.

SCHEDULE 3

ADDITIONAL TERMS AND CONDITIONS (APPLICABLE FOR SBPL)

  1. The SBPL Service

    1. ShopBack FS MY shall grant the Merchant access to and use of the ShopBack platform, which connects Merchants with its customers who seek to purchase and pay for goods or services in the Merchant’s store (whether in-store or online) in instalments and on a deferred basis, among others.

    2. The Merchant shall sell and assign, and ShopBack FS MY shall purchase, on the terms and conditions of this Agreement, each Deferred Payable (as defined below) which arises after a customer has elected to use the SBPL service and which is due to the Merchant. Immediately upon the successful completion of an order, the Merchant irrevocably sells and assigns the relevant Deferred Payables absolutely to ShopBack FS MY. With immediate effect from the Merchant selling and assigning a Deferred Payable to ShopBack FS MY, the Merchant’s interest in that Deferred Payable and all subsisting rights and remedies for enforcing that Deferred Payable shall vest in ShopBack FS MY and the Merchant shall have no rights, title, interests, claim or anything whatsoever to that Deferred Payable or any part thereof and shall make no claim whatsoever in respect thereof.

    3. In respect of the Deferred Payables assigned to ShopBack FS MY under this Agreement, the Merchant irrevocably appoints ShopBack FS MY or such other person as ShopBack FS MY may designate as its nominee or agent and in the Merchant's name to execute and deliver by way of electronic communication a notice of assignment in the form set out below or in such other form as acceptable to ShopBack FS MY (a "Notice of Assignment").

      To: [Insert Consumer]

      Thank you for choosing ShopBack PayLater. The payment for your order has been sold and assigned to ShopBack FS Malaysia Sdn. Bhd. (formerly known as hoolah Malaysia Sdn. Bhd.) (Registration No. 201901013249 (1322577-D)). Please make payment according to the Terms and Conditions as communicated to you by ShopBack.

    4. Deferred Payable” shall mean the aggregate value of instalments due from a customer to the Merchant and the rights, title and interest thereto, including the right to impose a late payment charge and receive the proceeds thereof and/or to determine all requests for refunds or reversals in relation thereto.

    5. For the avoidance of doubt, neither the SBPL service nor the ShopBack platform constitute a lending or credit facility, or a credit card or charge card, and neither ShopBack FS MY nor the ShopBack Entities provide any credit to customers. The purchase of Deferred Payables by ShopBack FS MY from the Merchant constitutes a factoring transaction.

  2. Merchant’s Obligations

    1. The Merchant shall at all times comply with the following eligibility requirements:

      1. be duly incorporated or established as a company in its jurisdiction of incorporation or establishment, and not operate as a trust or partnership;

      2. have a registered place of business in Malaysia;

      3. provide the contact details of an authorized representative who has the authority to make business decisions from time to time relating to the SBPL service;

      4. have a bank account opened with a financial institution (the details of which it has notified to ShopBack FS MY) for receiving payments due from ShopBack FS MY to the Merchant;

      5. not have filed for winding-up or liquidation in any jurisdiction, not be subject to any administration, scheme of arrangement, receivership or judicial management or similar financial administration and not have any Insolvency Event (as defined below) applicable to it;

      6. not have any corporate action, legal proceeding or other procedure or creditors' process taken or, to its knowledge, threatened in relation to it;

      7. not have any director who has been made bankrupt, is subject to any financial administration conditions or is subject to any legal proceedings that would make them unfit to maintain their role as a director of the Merchant under the laws of any jurisdiction; and

      8. upon ShopBack FS MY’s reasonable request and without undue delay, provide to ShopBack FS MY all relevant documents necessary to establish its compliance with the above.

    2. Should the Merchant fail to meet the eligibility requirements set out in Clause 2.1 of this Schedule 3 at any point in time, ShopBack FS MY may in its sole discretion suspend, block, withdraw, close or otherwise render inoperable the Merchant Account(s) associated with the Merchant. Any such action taken by ShopBack FS MY shall not prejudice any rights of ShopBack FS MY and/or the ShopBack Entities against the Merchant.

    3. In addition to Clause 2.1 of this Schedule 3, the Merchant shall:

      1. at all times, use SBPL and/or the ShopBack platform in the accordance with the operating procedures determined by ShopBack FS MY;

      2. comply with the PCI DSS (as defined below) at all times and shall, where ShopBack FS MY reasonably directs the Merchant to do so, provide evidence of such compliance;

      3. display the ShopBack logotype and/or signage in such form and manner approved by ShopBack FS MY, including but not limited to ensuring any QR code provided by ShopBack FS MY to the Merchant is displayed, accessible and unobstructed;

      4. provide customers with purchase terms and conditions for every order with the terms and conditions as set out in the “ShopBack PayLater Terms of Use” (available at https://support.shopback.my/hc/en-gb/articles/5171311855891-ShopBack-PayLater-SBPL-Terms-of-Use or at such other webpage that may be amended by ShopBack FS TH and/or the ShopBack Entities and notified to the Merchant from time to time) and ensure that each customer agrees, expressly, impliedly or otherwise, to such purchase terms and conditions before using the ShopBack platform to conclude their order;

      5. treat orders placed by ShopBack Users using the ShopBack platform in the same manner as those placed via any other payment method;

      6. not pass any additional impost, charge or fee onto the customer at any point in time for using the ShopBack platform as a payment method, unless the Merchant has informed ShopBack FS MY in writing of its intention to do so prior to charging such additional impost, charge or fee and ShopBack FS MY provides its consent thereto in writing;

      7. be solely responsible for notifying ShopBack Users of its ability or inability to fulfil their orders within the expected timeframe;

      8. immediately inform ShopBack FS MY of any change to the following: (i) the Merchant’s physical address and registered address; (ii) the Merchant’s ownership, management and/or directorship; (iii) the Merchant’s board and/or company structure; (iv) the Merchant’s position with respect to compliance with AML Laws; (v) the type of products and/or services offered by the Merchant; (vi) the name under which the Merchant conducts its principal business; (vii) any actual or potential fraudulent activities which the Merchant Deposit Account has or may have been involved in; (viii) any actual or potential breach of legal or regulatory requirements (including, but not limited to, anti-money laundering and countering the financing of terrorism laws); (ix) the Merchant’s financial status, including any insolvency, liquidation, receivership or judicial management; and (x) any other material particular relating to the Merchant and its business and activities.

      9. allow a third-party payment provider or their designees to conduct onsite audits and reviews at the Merchant’s place of business and, in this regard, shall allow such access to facilities and data and provide any information reasonably requested to conclude such review or audit. Where the third-party payment provider utilizes a third party to conduct such review or audit, the third party payment provider shall issue its appointment and authorization of such third party and provide the Merchant with a copy thereof and such third party shall enter into a separate confidentiality agreement with the Merchant;

      10. not, for the entire duration of the term of the Agreement and unless otherwise agreed by the Parties on writing, directly or indirectly engage in any discussions or negotiations regarding, or enter into any agreements for, or otherwise take any action to engage any Buy-Now-Pay-Later service provider (other than ShopBack FS MY);

      11. upon request by ShopBack FS MY, the ShopBack Entities or such other assignee, do such act(s) and execute all such forms, agreements, deeds and documents required under applicable law to legally vest all legal and beneficial ownership and full and unencumbered rights in respect of the relevant Deferred Payables in ShopBack FS MY or such other assignee, and to perfect each assignment of the relevant Deferred Payables;

      12. not, without the prior written consent of ShopBack FS MY, grant any extension of the due date or grant any waiver or consent or amendment or otherwise enter into any compromise in relation to the terms and amount of payment of the relevant Deferred Payables other than any refund or reversal of the corresponding order made with the prior written consent of ShopBack FS MY.

    4. Insolvency Event” shall mean, in relation to the Merchant: (i) the Merchant is or is presumed or deemed unable or admits its inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness; (ii) the value of the assets of the Merchant is less than its liabilities (taking into account contingent and prospective liabilities); (iii) any expropriation, attachment, sequestration, distress or execution affects any asset or assets of the Merchant and is not discharged within 30 days; (iv) or any insolvency proceedings are, to its knowledge, threatened, pending or commenced against the Merchant.

    5. Merchant Account” shall mean the virtual ledger account maintained by ShopBack FS MY and/or the ShopBack Entities on the ShopBack platform in respect of the Merchant.

    6. PCI DSS” shall mean the Payment Card Industry Data Security Standard, the industry standard which applies to all entities that store, process and/or transmit cardholder data and sets out technical and operational practices for system components included in or connected to environments with cardholder data.

  3. Use of the ShopBack Platform

    1. Unless otherwise agreed between the Parties and upon signing of the Specific Terms, the Merchant shall as soon as possible and prior to accepting any orders, complete ShopBack FS MY’s Know-Your-Customer (“KYC”) process.

    2. The Merchant shall remain solely responsible for the safety and security of the Merchant Account (as defined below). Where the Merchant believes that its Merchant Account has been compromised, the Merchant shall notify ShopBack FS MY immediately and in the event the Merchant fails to do so, the Merchant shall be liable for further purchases made using the Merchant’s credentials.

    3. The Merchant acknowledges and agrees that ShopBack FS MY may terminate and/or otherwise limit the Merchant’s access to the Merchant Account in its sole discretion without the Merchant’s prior consent and without giving the Merchant any prior notice, including

      but not limited to the following circumstances: (i) where the Merchant has monies that are outstanding to ShopBack FS MY for a period exceeding fourteen (14) Business Days; (ii) where ShopBack FS MY has reasonable cause to suspect that the Merchant has been involved in any Nefarious Behaviour (as defined below) within the ShopBack platform; (iii) the Merchant Account associated with the Merchant is being used by a third party to the Agreement or has been compromised in any way; and/or (iv) the Merchant fails to meet the eligibility requirements stipulated in Clause 2.1 of this Schedule 3 at any point at time.

    4. Where any device, email account and/or phone number owned by the Merchant, persons under the Merchant’s employment or authorised representatives or agents of the Merchants are reasonably suspected by ShopBack FS MY to be involved in connection with any Nefarious Behavior (as defined below) within the ShopBack system, ShopBack FS MY reserves the right to:

      1. conduct investigations, including in connection or collaboration with third parties, to determine the extent and impact of the suspected Nefarious Behaviour;

      2. block those decides and their attributes;

      3. temporarily suspend any and all accounts associated with such devices and/or their attributes and the suspected Nefarious Behaviour;

      4. close any Merchant Account(s) whether associated with the suspected Nefarious Behaviour or otherwise; and

      5. report such behaviour to the relevant authorities.

    5. ShopBack FS MY implements and maintains Merchant Exposure Limits (as defined below) and the Merchant acknowledges and agrees that it will be subject to such Merchant Exposure Limits. The Merchant further acknowledges and agrees that where a Merchant Exposure Limit is exceeded by the Merchant, any further orders may be suspended on the ShopBack platform until the Merchant Exposure Limit is refreshed.

    6. All payments between: (i) a Merchant and ShopBack FS MY, (ii) a customer and ShopBack FS MY and (iii) a Merchant and a customer in connection with a Deferred Payable or contemplated under the Agreement, shall be made through ShopBack FS MY as collection and payment agent.

    7. Merchant Exposure Limits” shall mean the amount of financial exposure that the Merchant is allowed to accumulate on the ShopBack platform as determined by ShopBack FS MY and/or the ShopBack Entities in its sole discretion from time to time.

    8. Nefarious Behaviour” shall mean any behaviour in bad faith including, but not limited to: (i) using the ShopBack platform for unauthorised purposes; (ii) inappropriately gaining from the ShopBack platform or merchants using it; (iii) reverse engineering the ShopBack platform; or (iv) engaging in fraudulent activities in and around the ShopBack platform or supporting ShopBack Group (being ShopBack FS MY, any of its parents, subsidiaries and/or affiliates as defined under applicable law) systems, and shall include any attempts by the Merchant in relation to the foregoing and any acts which, if carried out to a natural conclusion, could conceivably lead to the occurrence of any of the foregoing.

  4. SBPL Transaction Settlement

    1. ShopBack FS MY shall collect payments on behalf of the Merchant for the various Transactions made by its Users.

    2. ShopBack FS MY shall transfer such collected payment to the Merchant less (i) the SBPL Fees, Cashback, Loyalty Fees (where applicable) as expressed as a percentage of the Transaction Value as set out in the Special Terms and Conditions, (ii) such other fees or commission payments payable to ShopBack FS MY under this Agreement; (iii) any disputed charges by the User; (iv) any money or receivables payable to ShopBack FS MY; and (v) any legally applicable goods and services tax (“SBPL Remittance Amount”).

    3. ShopBack FS MY shall remit the SBPL Remittance Amount to the Merchant within time intervals as set out in this Agreement. Unless stated otherwise, ShopBack FS MY does not transmit monies to persons or accounts outside of Malaysia or provide cross-border money transfer services and appropriately licensed persons such as an international money remittance or a foreign exchange processor will need to be engaged in order to do so.

    4. The SBPL Remittance Amount shall be transferable to the Merchant if:

      1. The Merchant has delivered the Merchant Offering in full to the customer; and

      2. The Merchant has provided to ShopBack FS MY evidence of such delivery including the receipt id and/or other evidence ShopBack FS MY may reasonably request as proof of the provision of the Merchant Offering, for example, but not limited to a delivery confirmation in case of delivery of physical goods.

    5. For the avoidance of doubt, ShopBack FS MY is under no obligation to transfer any amounts (including, but not limited to, any SBPL Remittance Amount) to the Merchant where a transaction is not deemed by ShopBack FS MY to have been made. Any payment made by ShopBack FS MY to the Merchant shall be without prejudice to any claims or rights which ShopBack FS MY may have against the Merchant.

    6. ShopBack FS MY reserves the right to withhold any amounts due to the Merchant (including any SBPL Remittance Amount) if, at any point in time: (a) the Merchant fails to meet the eligibility requirements stipulated in Clause 2.1 of this Schedule 3; (b) in relation to the a Merchant Account, the Merchant exceeds any relevant thresholds as determined by ShopBack FS MY and notified to the Merchant; and/or (c) the Merchant uses the ShopBack platform in contravention of ShopBack FS TH’s operating policies.

  5. Refunds

    1. ShopBack FS MY has the right to refund any User who, in ShopBack FS MY’s reasonable opinion, has a valid complaint about the Merchant Offering, including, but not limited to, its supply or delivery. If ShopBack FS MY has already paid the Merchant in respect of such refunded payment, ShopBack FS MY may recover the refunded amount from the Merchant. In such event, ShopBack FS MY shall have the discretion to retain its applicable SBPL Fees.

    2. In the event of a refund, the Merchant shall lodge a refund request with ShopBack FS MY within 60 calendar days of a relevant order being captured on the ShopBack platform and any refund request beyond this time must be expressly agreed between the Merchant and the customer.

  6. Chargebacks, Reversals and Disputed Transactions.

    1. ShopBack FS MY reserves the right at all times to (i) impose a reserve of a defined percentage of the Transaction amount, in the event ShopBack FS MY reasonably suspects there to be chargebacks, reversals, and/or fraudulent Transactions (whether by Merchant / User or any such representative of either party), which the reserve percentage will be agreed upon during underwriting exercise; and (ii) delay or suspend payment subject to ShopBack FS MY’s completion of satisfactory checks (including anti-money laundering and countering the financing of terrorism).

    2. Such reserve, delay or suspension shall be notified to the Merchant in writing / by email as soon as reasonably practicable.

    3. Unless specifically agreed in writing otherwise, Merchant shall bear the full liability for disputed Transactions concerning unsatisfactory services or goods provided by the Merchant. Where a Transaction is subject to any form of claim, dispute, chargeback, partial or complete refund and ShopBack FS MY and/or its acquirers or related card schemes have to investigate or handle such claim, Merchant shall be liable towards payment of ShopBack FS MY’s costs involved in such handling, including: refund of the Transaction amount to the User, if applicable; fees for Transaction processing and dispute handling; any additional fee imposed by external partners such as chargeback fees as well as investigation fees.

    4. ShopBack FS MY’s purchase of the Deferred Payables shall be subject to a right to require the Merchant to immediately repurchase from ShopBack FS MY the relevant Deferred Payables or to immediately refund the SBPL Remittance Amount if:

      1. any representation and warranties made by the Merchant under the Agreement is or proves to be incorrect or misleading when made;

      2. there has been any breach of any undertaking set out in Clause 2;

      3. ShopBack FS MY fails to receive any amounts owing to it by any customer in respect of any Deferred Payable as a result of a commercial dispute (including the raising of any defence, counterclaim or set-off, or a claim by the customer that it is not liable for such payment);

      4. there has been any fraud or illegality or unauthorised act (whether by the Merchant or the customer) in relation to any Deferred Payable.

  7. Termination

    1. ShopBack FS MY may at any time terminate this Agreement immediately and without liability if the Merchant:

      1. engages in any fraud, misrepresentation, or intentional misconduct;

      2. experiences excessive chargebacks, irregular, or fraudulent payment transactions; or otherwise engages in business practices of which ShopBack FS MY does not approve;

      3. materially breached any provision of the Agreement;

      4. in actual or potential breach of any legal of regulatory requirement;

      5. undergoes a material change in the nature of its business;

      6. undergoes a significant deterioration in financial situation or becomes insolvent;

      7. goes into receivership, liquidation, administration, a scheme of arrangement or judicial management whether in Malaysia or elsewhere;

      8. accepts payment for goods and services or provides goods or services of which ShopBack FS MY does not approve;

      9. any of the conditions stipulated in Clause 3.3 of this Schedule 3 are met.

    2. ShopBack FS MY may also at any time terminate this Agreement immediately and without liability in the event any payment service provider or governmental authority instructs ShopBack FS MY to limit, suspend its performance under or terminate this Agreement.

    3. Any termination for whatever reason shall not affect any liabilities incurred by or accrued to the Parties prior to the termination, or any rights or liabilities which have acquired or may accrue in respect of any Deferred Payables.

    4. Notwithstanding termination for whatever reason, ShopBack FS MY reserves the right to do the following:

      1. pursue any outstanding sums due and owing to ShopBack FS MY or the ShopBack Entities in connection with the Agreement through third parties and all relevant legal means available to ShopBack FS MY;

      2. notify any credit reporting agency or bureau located in Malaysia or any agency or bureau that reports such credit reporting information to Malaysia companies, and identify any outstanding amounts against the Merchant’s known details to ShopBack FS MY or the ShopBack Entities as at the date of termination of the Agreement; and

      3. notify any other statutory or governmental authority regarding the outstanding amounts and the Merchant’s identity where required under the laws of Malaysia.

  8. Provision of Information for due diligence, AML and other assessments

    1. The Merchant shall promptly provide any and all information and/or documents reasonably requested by ShopBack FS MY to perform credit risk assessments, security assessments, regulatory assessments (including anti-money laundering and sanctions monitoring), and such other assessments or reviews made necessary by payment service providers' compliance requirements and/or regulations relating to the provision of payment services, the transactions submitted, or the financial condition of the Merchant. The Merchant also authorises ShopBack FS MY and/or the ShopBack Entities to obtain information from third parties when performing such credit risk, security, regulatory and other assessments or reviews.

  9. Representations and warranties

    1. The Merchant represents and warrants that:

      1. it is a company, duly incorporated, validly existing, and in good standing under the laws of Malaysia;

      2. it has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, this Agreement and the transactions contemplated by this Agreement;

      3. the entry into and performance by it of, and the transactions contemplated by, this Agreement do not and will not conflict with: (i) any law or regulation applicable to it; (ii) its constitutional documents; or (iii) any agreement or instrument binding upon it or any of its assets;

      4. the Merchant is the sole and beneficial owner of the Deferred Payables and no charge, mortgage, pledge, lien, trust or encumbrance or security interest or any claim exist on or over any part of the Deferred Payables;

      5. that there are no proceedings current or pending before any court or to the Merchant’s knowledge threatened against or affecting the Merchant and no pending proceedings are before any government agency or administrative body or to the Merchant’s knowledge threatened against the Merchant which if adversely determined would materially or adversely affect the Merchant’s financial condition or impair the Merchant’s right or ability to satisfy or discharge the Indebtedness due or to perform the Merchant’s obligations under this Agreement;

      6. no event or circumstance has occurred or might reasonably be expected to occur that constitutes a Material Adverse Effect (as defined below);

      7. no Insolvency Event has occurred or might reasonably be expected to occur;

      8. no corporate action, legal proceeding or other procedure or creditors' process has been taken or, to its knowledge, threatened in relation to it;

      9. neither the signing of the Agreement nor the performance of any of the transactions contemplated herein will contravene or constitute a default under any provision contained in any agreement, instrument, law, judgment, order, licence, permit or consent by which the Merchant or any of the Merchant’s assets are bound or affected;

      10. no customer will be entitled to any counter-claim, set-off, defence or other equity against the Merchant in respect of any Deferred Payables;

      11. it shall at all times comply with all laws, rules and regulations applicable to it, the conduct of its business and the performance of its obligations under the Agreement, including but not limited to, AML Laws;

      12. there is no amendment, variation, supplementation, cancellation or termination of the terms of sale of any goods or service on the Merchant’s Store (as defined below) in any manner which could adversely affect the rights of ShopBack FS MY in respect of any Deferred Payables;

      13. there is no prior sale, assignment, trust, transfer or encumbrance in respect of the Deferred Payables purchased under the Agreement;

      14. any factual information contained in or provided by or on behalf of the Merchant in respect of or in connection with the Agreement is true and accurate in all respects as at the date it was provided or (if applicable) as at the date at which it is stated;

      15. the Merchant has not breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect;

      16. the Merchant has good, valid and marketable title to, or valid licences of, and all appropriate authorisations to use all assets necessary to carry on the Merchant’s business as it is presently being, and as it is proposed to be, conducted;

      17. it has obtained all material licences, authorisations, approvals, consents, or permits required by applicable laws (including the rules and regulations of all authorities having jurisdiction over the provision of the Services) to conduct its business generally and to perform its obligations under the Agreement;

      18. it will, at all times, meet the eligibility requirements specified in Clause 2.1;

      19. it will, at all times, comply with the PCI DSS; and

      20. it has control over the goods and/or services sold under this Agreement and shall ensure that their quality is maintained throughout the term of the Agreement.

    2. Material Adverse Effect” shall mean a material adverse effect on or a material adverse change in: (i) the business, operations, assets, property, condition (financial or otherwise) or prospects of the Merchant; (ii) the ability of the Merchant to perform its obligations under the Agreement; or (iii) the validity, legality or enforceability of any rights or remedies of ShopBack FS MY or the ShopBack Entities under the Agreement.

  10. Transfer and Assignment

    1. ShopBack FS MY may transfer, assign or novate the Agreement and any rights and obligations under the Agreement to a third party without the Merchant’s consent and/or notice.

    2. The Merchant acknowledges and agrees that ShopBack FS MY may, without the Merchant’s notice or consent, appoint third party debt collection agencies in relation to the collection and enforcement of any outstanding amounts owed by the Merchant and any customer to ShopBack FS MY.

  11. Modification

    1. From time to time ShopBack FS MY may unilaterally modify provisions of the Agreement which apply generally to all merchants without requiring express or implied consent and without prior notice of such modifications. In such cases, ShopBack FS MY will inform all merchants using the ShopBack platform of the modifications as soon as practicable and within a reasonable time from the implementation of such modifications (if any) and the Merchant shall be deemed to have consented to such modification(s) if the Merchant does not inform ShopBack FS MY that it does not agree to any such modification(s) within thirty (30) days of ShopBack FS MY’s notification to the Merchant.

    2. In the event the Merchant does not agree to any modification(s), the Merchant may notify ShopBack FS MY in writing to terminate the Agreement and the provisions of Clause 7.3 and Clause 7.4 shall apply. The Merchant’s continued use of the SBPL service and the Merchant Account by the Merchant after such modification(s) shall constitute deemed acceptance of such modification(s).

  12. General Terms and Conditions

    1. In the event of any conflict or inconsistency with the other terms and conditions of the General Terms and Conditions, the terms and conditions in this section “ADDITIONAL TERMS AND CONDITIONS (APPLICABLE FOR SBPL)” shall prevail.

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