Tamara Payment Services

Merchant Terms and Conditions

1. Tamara Payment Services

1.1 Tamara grants the Merchant access to Tamara’s business transaction system as may be updated by Tamara from time to time (“Merchant Portal or “Merchant App”).

1.2 The relationship between Customers and Tamara in relation to the Tamara Payment Service is regulated between Tamara and such Customers and does not form part of the Agreement. Equally, the relationship between the Merchant and Customers in relation to the provision of the Merchant’s goods and/or services is regulated between the Merchant and such Customers and also does not form part of the Agreement. For the avoidance of doubt, this Agreement regulates only the relationship between Tamara and the Merchant.

1.3 Tamara (together with its Affiliates) shall use reasonable endeavours to provide the Merchant access to the Order Handling System and any other Tamara software or other facilities required to enable the Merchant to offer the Tamara Payment Service to Customers in the Territory. The Merchant shall ensure that such Order Handling System and any other applicable Tamara software or other facilities is installed and functional. The Merchants shall cooperate fully with Tamara in respect of such process and shall ensure its adherence to all reasonable requests of Tamara (or Tamara’s Affiliates, or any third party expressly notified by Tamara in advance and in writing to the Merchant as authorised to act on Tamara’s behalf (as applicable)) and the Merchant’s obligations set out in the applicable documentation available at https://docs.tamara.co/.

1.4 Both Tamara and the Merchant shall be responsible for integration  in relation to the Order Handling System with the aim to go-live on or before the Go Live Date. Tamara will provide support to the Merchant for completing such integration between the Commencement Date and the Go Live Date.

1.5 The Merchant appoints Tamara as the Merchant’s agent to only collecting the Purchase Price from the Customer and delivering the same to the Merchant in accordance with the Terms, and Tamara accepts the appointment.

1.6 Once a Customer selects the Tamara Payment Service at the Merchant’s Store, the Customer will be requested to select from a range of repayment terms to be effective as between Tamara and the applicable Customer.

1.7 The Merchant shall then be responsible for providing Tamara with the Requested Information in relation to the Requested Transaction.

1.8 The Requested Information shall then be processed and assessed by Tamara, pursuant to which Tamara shall make a decision as to whether it will accept or reject the Requested Transaction. This decision will be made by Tamara at its sole and absolute discretion.

1.9 Tamara accepts to acquire the Requested Transaction from the Merchant, subject to the Merchant’s satisfactory shipment or provision of the relevant goods and/or services, as the case may be, upon Tamara’s authorisation of the Requested Transaction through the Order Handling System.

1.10 Subject to clause ‎1.9 for all Approved Transactions with shipped orders/completed services fulfilled by the Merchant between Saturday and Friday of an applicable given week, Tamara shall pay the Purchase Price to the Merchant on Tuesday of the following applicable week by bank transfer to the Merchant’s Bank Account.

1.11 Tamara shall have the right to only pay the Purchase Price to the Merchant under clause ‎1.10 above if such applicable Purchase Price is equal to or in excess of the Base Settlement Amount. In the event that the Purchase Price has not exceeded the Base Settlement Amount, Tamara shall have the right to aggregate Purchase Prices of several Approved Transactions which exceed the Base Settlement Amount and then make settlement of the applicable Purchase Prices to the Merchant the following Tuesday after which the Base Settlement Amount has been exceeded. Notwithstanding the foregoing, Tamara shall be entitled to withhold the payment of the Purchase Price for the first three (3) initial Approved Transactions under the Agreement from the date of such Approved Transactions for a period of one (1) month.

1.12 Unless otherwise agreed in writing by the Customer, the Merchant is not entitled to offer delivery to a recipient other than the Customer approved in respect of a particular Approved Transaction.

1.13 Tamara shall notify the Merchant through the Order Handling System when a  Requested Transaction is rejected, and Tamara will not complete the related Requested Transaction. It is Tamara’s sole and absolute discretion as to whether each Requested Transaction will be converted to an Approved Transaction.

1.14 Tamara shall notify the Customer through the Order Handling System when a Requested Transaction is rejected.

1.15 In the event:

(a) of fraud or fraudulent activity (actual or suspected) of the Merchant;

(b) any Dispute relating to an Approved Transaction arises;

(c) any sales terms are changed by the Merchant in respect of an Approved Transaction without Tamara’s prior written approval; or

(d) delivery by the Merchant is unreasonably delayed by ten (10) or more Business Days from the approved delivery date,

In any of the events mentioned above, Tamara has the right to withhold any applicable Purchase Price in relation to and investigate the applicable Approved Transaction, and to withhold any other Remittance until Tamara’s investigations have been finalised.

1.16 In respect of each Approved Transaction, the Merchant shall provide invoices to both the Customer, and separately to Tamara in a form, medium and frequency to be mutually agreed between Tamara and the Merchant. If requested by Tamara, the Merchant agrees to cooperate with Tamara in relation to the Merchant’s invoicing processes, systems and related documentation (including, without limitation, proof of service/delivery) to enable Tamara to undertake the necessary reviews of applicable invoices and related documentation for the purposes of Tamara considering applicable Requested Transactions and dealing with associated Disputes and Chargebacks.

1.17 In the event that for any reason a payment associated with any Approved Transaction is paid to the Merchant or to the courier that the Merchant is dealing with (to the extent applicable) by any person other than Tamara, the Merchant shall hold such payment on trust as Tamara’s property and shall immediately deliver such payment to Tamara in the manner instructed by Tamara.

1.18 The Merchant shall maintain at its official place of business complete and accurate records of all Approved Transactions, including copies of invoices and other relevant documentation in relation thereto. Such records shall be made available to Tamara for inspection upon reasonable request.

1.19 Any Remittances that are bona fide owing by Tamara to the Merchant shall be transferred to the Merchant Bank Account. The receipt of Remittances as cleared funds in the Merchant Bank Account may be delayed because of interbank systems over which Tamara has no control.

1.20 The Merchant is responsible for providing Tamara with accurate and appropriate Merchant Bank Account information. Tamara is not liable for rejected transactions (Requested Transactions, Approved Transactions or otherwise) by any Card Issuers, Card Scheme and/or Other Financial Institutions because of bank account information accuracy issues or other issues with the applicable Card Issuer, Card Scheme and/or Other Financial Institution.1.21 The Merchant is responsible for providing Tamara with accurate bank account information with appropriate Merchant Bank Account information. Tamara is not liable for rejected transactions (Requested Transactions, Approved Transactions or otherwise) by any Card Issuers, Card Scheme and/or Other Financial Institutions because of bank account information accuracy issues or other issues with the applicable Card Issuer, Card Scheme and/or Other Financial Institution

1.21 The Merchant shall provide all information - which Tamara considers is necessary in order to provide the Tamara Payment Services or to comply with applicable law, or to complete Know Your Business (KYB) or Know Your Customer (KYC) checks of the Merchant or any Customers during the Term - requested by Tamara (or Tamara’s Affiliates, or any third party expressly notified by Tamara in advance and in writing to the Merchant as authorised to act on Tamara’s behalf (as applicable) during the specified period. In the event that, Tamara considers that the Merchant is not providing such requested information, Tamara has the right to suspense the service until such information is provided, as follows:

(a) within five (5) Business Days of any request from Tamara, Tamara shall be entitled to (at its sole discretion) to withhold any applicable Purchase Price which would otherwise be due and owing to the Merchant on or after such Business days period above has lapsed; and

(b) within fourteen (14) Business Days of any request from Tamara, Tamara shall be entitled to (at its sole discretion) (i) suspend the Merchant’s use or access to the applicable Tamara Payment Service partially or fully in a temporary manner or permanently; or (ii) terminate the Agreement immediately on notice to the Merchant.

1. 22 Tamara reserves the right to increase the Tamara Fees at any time during the Term (“Notified Fee Increase”). Tamara will provide the Merchant with thirty (30) days’ prior written notice of the Notified Fee Increase (“Notification Period”). To the extent the Merchant objects to the Notified Fee Increase during the Notification Period, the Merchant shall have the right to terminate this Agreement with Tamara in accordance with the terms set out herein. If no objection has been notified to Tamara prior to the end of the Notification Period, the Merchant agrees that it shall be deemed to have accepted the Notified Fee Increase and the Tamara Fees shall be deemed to have been updated accordingly.

1.23 Tamara may, by giving seven (7) calendar days’ prior notice, vary the Tamara Fees and the basis on which they are calculated due to the inaccuracy of any information provided by or on behalf of the Merchant or any other cause attributable to the Merchant.

1.24 In the event that Tamara identifies potential fraudulent activity of a Customer, the Merchant shall, immediately on notice from Tamara (if the Merchant is reasonably able to), suspend the shipment or supply of the applicable goods and/or services relating to such Customer.

1.25 In the event that Tamara identifies actual or potential fraudulent activity, Tamara has the right to withhold the Purchase Price, and any other Remittance, for one (1) month of each relevant purchase date.

1.26 Sharia Compliance: Tamara commits to comply with Sharia standards in all its transactions according to the resolutions of the Sharia committee of Tamara and does not impose any interest or late payment penalties.

2. Disputes, Chargebacks, Credit Risk and Fraud Risk

2.1 Tamara agrees to assume all Credit Risk, Fraud Risk and Chargebacks (and certain Dispute-related costs) associated with all Approved Transactions except as set out in clauses ‎2.2 and ‎‎2.3.

2.2 Subject to Tmara’s Buyer Protection Program Terms (for Merchants), as applicable, the Merchant shall assume all Credit Risk, Fraud Risk, Dispute and Chargeback related costs if any of the following events occur:

(a) Non-delivery or Delayed Delivery: if the Merchant’s goods and/or services are not delivered to the Customer, are unreasonably delayed, or are delivered to an address not approved by the Customer (due to Force Majeure or otherwise);

(b) Breach of Advertising Policies: if the Merchant’s applicable advertisement is not compliant with Tamara’s then current available policies and guidelines;

(c) Customer’s Right to Set-Off: if the Customer has a right to set-off (e.g., the Customer owes an equivalent of $50 but is also owed $30, giving a set-off sum of $20) due to a counterclaim against the Merchant or has rights to discounts or deductions;

(d) Financial Interest with Merchant: if an Approved Transaction involves a natural person who shares a financial interest with the Merchant (including owners, or employees of the Merchant). This shall only apply to the extent the Merchant has fewer than thirty (30) employees at the time of the applicable Approved Transaction;

(e) Financial Transactions: if an Approved Transaction relates to cash transactions, checks, money orders, or currency exchange;

(f) Incomplete Information Provided by Merchant: if the Merchant has not provided Tamara with all Requested Information;

(g) Merchant’s Non-Compliance with The Agreement: if the Merchant has failed to meet Tamara’s requirements under, or has breached, the terms of this Agreement;

(h) Customer’s Right to Return or Cancel: if a Customer has exercised its legal right to cancel or return an order with the Merchant; or

(i) Deviation from Tamara’s Terms: if the Merchant has sought to impose terms and conditions on Customer’s (or otherwise agrees to such with Customers) relating to the Tamara Payment Services that deviate from Tamara’s then current position.

2.3 The Merchant shall, subject to Tmara’s Buyer Protection Program Terms (for Merchants), as applicable, be liable for all Dispute related fees for each Approved Transaction that is the subject of any Dispute if the outcome of such Dispute is not determined in the Merchant’s favour (at its own expense, including attorneys’ fees).

2.4 In the event of the occurrence of any of the circumstances described in clause ‎2.2 and ‎‎2.3 of these Terms, the Merchant shall also be liable to return to Tamara any amounts already Remitted to the Merchant in respect of such Approved Transaction (and, for the avoidance of doubt, no further Remittances will be made to the Merchant in respect of such Approved Transactions).

2.5 The Merchant represents, warrants and covenants that it shall promptly notify Tamara of any Dispute (or Chargeback, as applicable) it becomes aware of.

2.6 The Merchant agrees to respond to all Dispute and Chargeback cases within three (3) Business Days from receiving them from Tamara or otherwise.

3. Merchant Obligations, Representations and Warranties

3.1 Merchant represents, warrants, and covenants that:

(a) the Merchant is, and will remain during the Term:

(i) duly organised, validly existing, and in good standing under the laws of jurisdiction of its incorporation; and

(ii) duly authorized to carry on its business and perform its obligations under the Agreement.

(b) the Merchant’s execution, delivery, and performance of the Agreement does not and will not breach any other agreement to which it is a party, and does not require the consent of any third party;

(c) the Merchant is now solvent, and will remain solvent at all times during the Term;

(d) the Merchant shall promptly deliver or otherwise provide the goods or services that are the subject of an Approved Transaction as close to the date of the order as possible and within the timeframe communicated to the Customer by the Merchant;

(e) the Merchant shall provide Tamara with the Requested Information in order for Tamara to satisfactorily provide the Tamara Payment Service and perform any necessary credit, fraud, anti-money laundering and any other assessments of Customers;

(f) the Merchant shall not suspend Customer’s access to the Tamara Payment Service without the prior approval of Tamara, and the Merchant must submit a suspension request (including reasons for the suspension) to Tamara of the Tamara Payment Service at least five (5) Business Days prior to the date the Merchant intends to suspend such access to the Tamara Payment Service; and

(g) the Merchant shall notify Tamara in writing of any changes with regards to their trademark or brand name or web address before such changes are made.

(h) The Merchant shall not suspend the Tamara Payment Service without the prior approval of Tamara, and the Merchant must request a suspension (including reasons for the suspension) of the Tamara Payment Service at least five (5) Business Days prior to the date the Merchant intends to suspend the Tamara Payment Service; and.

(i) The Merchant shall notify Tamara in writing of any changes with regards to their trademark or brand name or web address for the Merchant Website before such changes are made.

3.2 Tamara may provide advice, and where applicable collateral, to the Merchant with regard to advertising the Tamara Payment Service to the Merchant’s customers, and the Merchant will obtain Tamara’s prior written approval of any advertising of the Tamara Payment Services not produced by Tamara or previously approved by Tamara in writing.

3.3 Tamara has the right to refuse to complete any Requested Transaction which relates to an advertisement that is not compliant with Tamara’s applicable policies and guidelines as notified to the Merchant from time to time.

3.4 The Merchant agrees to have a clear return and exchange policy published in the Merchant’s Store (to the extent required by applicable laws), and will not amend that policy without prior written notice to Tamara. In the event that Tamara considers, in its sole and absolute discretion, that any such changes are detrimental or otherwise unacceptable to Tamara, Tamara shall have the right to immediately terminate the Agreement.

3.5 The Merchant will at all times comply with all applicable laws (including those relating to anti-money laundering and anti-bribery/corruption) in relation to the conduct of its business and the performance of its obligations under the Agreement.

3.6 The Merchant shall not impose any fees or otherwise charge Customers a higher price for any goods or services on the basis that such purchase was made using the Tamara Payment Service.

3.7 The Merchant acknowledges and agrees that a breach of clause ‎1.24, ‎‎3.6 or ‎3.10 by the Merchant will be considered a material breach and Tamara shall be entitled , in the event of such material breach, to:

(a) immediately suspend the Merchant’s access to the Order Handling System, Merchant Portal and/or the Merchant’s customers’ access to the Tamara Payment Service; and/or

(b) If the breach is not remedied by the Merchant within fourteen (14) Business Days of Tamara notifying the Merchant of such breach, terminate or suspense, with immediate effect, the Agreement.

3.8 The Merchant shall not, and shall procure that all of its personnel shall not, act in a manner which is in any way defamatory to Tamara’s (or any of its Affiliates) business or which would otherwise deter a third party (including, without limitation, any of its customers) from using services that Tamara (or any of its Affiliates) provides (including any of the Tamara Payment Services). The Merchant acknowledges that Tamara shall be entitled to immediately terminate this Agreement if Tamara determines, in its sole and absolute discretion, that the Merchant’s activities violate this clause.

3.9 The Merchant acknowledges and agrees that in the event any Approved Transaction is subject to a Refund that, in addition to any other obligations set out in the Agreement, Tamara shall be entitled to charge the Merchant or retain (as applicable) any and all Tamara Fees in relation to such Approved Transaction. The Merchant also understands that any Refunds will be held/Remitted by Tamara in/from its applicable Collections Account.

3.10 The Merchant shall cooperate and provide reasonable assistance to Tamara in order to enable Tamara (and its Affiliates) to comply with any of its applicable regulatory obligations or as required by any applicable regulatory authority.

3.11 Merchant acknowledges that it will be further bound by the terms of Tamara’s Buyer Protection Program Terms (for Merchants).

3.12 Tamara may, at its discretion, hold a portion of the purchase price not exceeding 75%, during weekly settlement cycle. This amount is settled monthly, in case od suspicion or the need to verify the Merchant and their activities.

3.13 The merchant agrees that activating any new services from Noto constitutes acceptance of its terms and conditions, without the need for signing an agreement or amending the agreement or the merchant form.

3.14 The merchant agrees to update their information provided in the merchant registration form on the merchant portal, and to update it according to any changes that occur. The information provided on the merchant portal is considered the accredited data.

4. Term and Termination

4.1 The Agreement shall be effective from the Commencement Date and shall continue in full force and effect for the Initial Term and any applicable Subsequent Term, unless earlier terminated in accordance with the terms of these Terms.

4.2 The Agreement may be terminated at any time by either Party giving written notice to the other Party, specifying a termination date not less than sixty (60) days from the date of such notice.

4.3 Tamara has the right to (i) immediately suspend the applicable service partially or fully in a temporary manner or permanently and (ii) terminate the Agreement immediately, with, notwithstanding clause ‎2, all applicable Dispute and/or Chargeback costs covered by the Merchant, in the event:

(a) the Merchant does not respond to a Dispute, Chargeback or other customer service case or to Tamara’s merchant relations team within five (5) Business Days of receipt of any such Dispute, Chargeback, case, or notice (excluding in relation to any Disputes under the Buyer Protection Program Terms (for Merchants));

(b) the Merchant uses the Tamara Payment Service to sell digital products (such as balance cards, software codes, gift cards, and similar products) or any Restricted Products;

(c) the Merchant uses the Tamara Payment Service to sell goods or services in a Restricted Territory;

(d) the Merchant uses the Tamara Payment Services to sell counterfeit goods as reasonably determined by Tamara;

(e) the Merchant does not have a return and exchange policy or has removed or amended their return and exchange policy without prior written notice to Tamara;

(f) the Merchant is having recurring issues with Customers in customer service or in delivery of Customer orders, as determined in Tamara’s sole and absolute discretion;

(g) the Merchant has stopped selling products in the Merchant’s Store;

(h) Any applicable Customer has a low repayment rate compared to other Tamara merchants as reasonably determined by Tamara in its sole and absolute discretion;

(i) an Event of Default arises;

(j) Tamara has not received a Requested Transaction for a period of twelve (12) months or more;

(k) amendments are made to the Merchants website or branding under clause 3.1(‎g) (or otherwise) which Tamara considers are vulgar, distasteful, or otherwise do not align with Tamara’s values;

(l) the credit risk profile of the Merchant is flagged as “high risk” in accordance with Tamara’s then current merchant risk profiling policies; or

(m) the Merchant is in breach of clause ‎3.5.

(n) If Tamara, in its sole discretion, decide to permanently or temporarily suspend the service for any reason

4.4 Tamara reserves the right to grant, at its sole and absolute discretion, a remedy period to the Merchant to allow the Merchant to address the causes of termination under clause ‎4.3, and Tamara may, at its sole and absolute discretion, impose conditions on the Merchant in consideration of granting such remedy period. In the event that Tamara exercises this right of granting a remedy period, Tamara will notify the Merchant in writing and specify the remedy period and any conditions imposed on the Merchant in granting the remedy period and the notice shall be enforceable on the Merchant on the date of receipt of the notice. If the Merchant fails to rectify the causes of termination in accordance with the notice delivered by Tamara, the termination of this Agreement shall take effect from the date of the receipt of notice by the Merchant.

4.5 Where required by applicable law, or where the Merchant is being investigated by Tamara in relation to any suspicious activity, Tamara further reserves the right to withhold any Remittance until Tamara’s investigations have been finalised or where Tamara is able to release such Remittances in compliance with applicable law.

4.6. Termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

5. Indemnity and Liability

5.1 In using Tamara’s services (including the Tamara Payment Service or the Order Handling System) the Merchant acknowledges and agrees that:

(a) Except as stated in clause ‎1.5, Tamara is not an agent or representative acting on behalf of the Merchant;

(b) Tamara makes no representation and gives no warranty as to the condition, merchantability, or fitness for a particular purpose of the goods or services sold by the Merchant;

(c) any claims a Customer may have in relation to goods or services purchased from a Merchant must be resolved by the Merchant and not Tamara; and

(d) Tamara will have no liability to the Customer whatsoever for any claim for loss or damage that arises from the Customer’s use or purchase of goods or services from the Merchant.

5.2 Without limiting clause ‎5.1 above, to the extent permitted by applicable law, the Merchant indemnifies and releases Tamara, its Affiliate and related entities, and each of their officers, employees and agents (the “Indemnified Parties”) from and against all actions, claims (actual or threatened), proceedings (including proceedings where Tamara are joined pursuant to any proportionate liability regime) or demands (including any costs and expenses in defending or servicing same) which may be brought against the Indemnified Parties, in respect of any loss (including any indirect or consequential loss, loss of reputation), death, injury, illness or damage to persons or property, and whether direct or indirect and in respect of any breach of any industrial or intellectual property rights, howsoever arising out of the use of, reliance on, or benefit of, the goods or services purchased from the Merchant.

5.3 To the maximum extent permitted by applicable law, Tamara does not warrant or represent:

(a) the performance of the Tamara Payment Service or the Order Handling System;

(b) that the use or access to the Tamara Payment Service or the Order Handling System will be uninterrupted;

(c) that the Tamara Payment Service or the Order Handling System are free of any virus or other computer software routine intended or designed to permit unauthorised access to computer systems or disable, damage, erase, disrupt or impair the normal operation of computer system; or

(d) the accuracy, reliability, or completeness of any content of the Tamara Payment Service or the Order Handling System.

5.4 The Tamara Payment Service and the Order Handling System are provided “as is” and on an “as available” basis without warranty of any kind, except as expressly stated herein or implied by applicable law and on the condition that the Merchant undertake all responsibility for assessing the suitability of accessing and using the Tamara Payment Service and the Order Handling System, and access and use of the Tamara Payment Service or the Order Handling System is at the Merchant’s own risk.

5.5 Subject to clause ‎5.3, Tamara will have no responsibility or liability to the Merchant in relation to any loss or damage that the Merchant incurs, including damage to the Merchant’s software or hardware or loss of data, arising from the use of the Tamara Payment Service or the Order Handling System, or the unavailability of the Tamara Payment Service or the Order Handling System.

5.6 To the full extent permitted by applicable law, Tamara excludes all representations, warranties, terms, conditions, or undertakings not stated in the Agreement, whether expressed or implied or statutorily, in relation to the Tamara Payment Service or the Order Handling System, or other Tamara services (“Implied Terms”) to the fullest extent permitted by applicable law. Where any applicable law implies any Implied Terms into these Terms that cannot be modified or excluded, then such Implied Terms will deem to be included. However, to the full extent permitted by applicable law, Tamara’s liability to the Merchant or any third party for any breach of any Implied Terms that cannot be excluded by applicable law, is limited to an amount equal to the Limitation Amount.

5.7 Except as expressly stated in clause ‎5.8:

(a) Tamara shall not in any circumstances have any liability for any losses or damages which may be suffered by the Merchant or any Customer (or any person claiming under or through the Merchant), whether the same are suffered directly or indirectly or are immediate, incidental, punitive or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories (but not limited to):

(i) special damage even if Tamara was aware of the circumstances in which such special damage could arise;

(ii) loss of profits;

(iii) trading losses

(iv) loss of anticipated savings;

(v) loss of business opportunity;

(vi) loss of time or goodwill; or

(vii) loss or corruption of data,

provided that this clause 5.7(‎a) shall not prevent claims for loss of or damage to the Merchant’s tangible property that fall within the terms of clause 5.7(‎b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vii) inclusive of this clause 5.7(‎a); and

(b) the total liability of Tamara, whether in contract, tort (including negligence) or otherwise and whether in connection with the Agreement or any collateral contract, including under any indemnity, shall in no circumstances exceed the Limitation Amount.

5.8 The exclusions in clause ‎5.6 and clause ‎5.7 shall apply to the fullest extent permissible at applicable law, but Tamara does not exclude liability for:

(a) death or personal injury caused by the negligence of Tamara, its officers, employees, contractors or agents;

(b) fraud or fraudulent misrepresentation; or

(c) any other liability which may not be excluded by applicable law.

5.9 Tamara may at any time, without notice to the Merchant, deduct, withhold or otherwise set-off any fees payable by Tamara to the Merchant against any fees Tamara has or will incur in relation to any:

(a) subject always to clause ‎2, Disputes or Chargebacks relating to the applicable Customer and applicable Requested Transaction; or

(b) marketing campaign under clause ‎‎8.5.

5.10 In the event that Tamara does not hold sufficient funds on account to enable it to otherwise set-off the applicable amount owing to Tamara under clause ‎5.9, the Merchant acknowledges that:

(a) Tamara has the right to deduct any funds owing to Tamara from the Collections Account; and

(b) the Merchant shall be liable to pay such applicable amounts on demand to Tamara within seven (7) days of such demand.

5.11 The Merchant further acknowledges and agrees that Tamara shall be entitled to make a demand under clause ‎5.10 or otherwise after termination of this Agreement for any sums which are due and owing to Tamara under the Agreement, including in relation to any fees regarding Disputes and Chargebacks (as applicable).

6. Data Protection

6.1 Tamara may periodically conduct due diligence on the Merchant and the Merchant’s business during the Term. During such due diligence, Tamara may request information from the Merchant, including Personal Data of the Merchant’s beneficial owners and management for internal purposes, including conducting KYC checks. Tamara shall process such Personal Data as a Data Controller in order to conduct customer due diligence, anti-money laundering, counter-terrorist financing, sanctions, anti-bribery and corruption and similar checks.

6.2 If the Merchant or Tamara, as the case may be, collects Personal Data in performance of their obligations under the Agreement, the Parties acknowledge and agree that each Party is an independent Data Controller and shall independently determine the purposes and means of such Processing.

6.3 Each of the Merchant and Tamara, will:

(a) comply with all data protection laws applicable to it, and to its collection, processing, use, and disclosure of Personal Data;

(b) only collect or use Personal Data for the purpose of performing its obligations under the Agreement and to the Customer, and as otherwise required by applicable law; and

(c) promptly notify the other Party in writing, and give the other Party full details, about any accidental or unauthorised access to any Personal Data.

6.4 To the extent that Tamara is processing the Merchant’s own Personal Data, for example the Merchant is a sole trader, the Privacy Policy which sets out how Tamara will use such Personal Data shall apply.

6.5 Each Party (a Data Indemnifying Party) will indemnify and keep indemnified the other Party, its related entities, and each of their officers, employees and agents (the Data Indemnified Parties) in full from and against all claims, proceedings, actions, damages, costs, fines, expenses and any other liabilities which may arise out of, or in consequence of the Data Indemnifying Party’s breach of the applicable data protection laws or the performance or non-performance by its sub-processor and/or personnel of its obligations in connection with the Agreement in relation to the applicable data protection laws, (including loss of or damage to property, financial loss arising from any breach of the applicable data protection laws or any other loss which is caused directly or indirectly by any act or omission arising from any breach of the applicable data protection laws).

7. New Markets and Products

7.1 During the Term, the Merchant or an Affiliate of the Merchant may request Tamara or any of Tamara’s Affiliates to provide the Tamara Payment Service in a Territory not already specified in the Merchant Onboarding Form, or for a Merchant product or brand, or Tamara Payment Service not already specified in the Merchant Onboarding From by submitting a request to Tamara in writing.

7.2 The Merchant or Affiliate of the Merchant will provide Tamara with all information and documentation requested by Tamara in relation to any request under clause ‎7.1 above.

7.3 Tamara in its sole and absolute discretion will approve or reject any request under clause ‎7.1 above, and the Merchant acknowledges and agrees that Tamara will have no liability whatsoever to the Merchant or Affiliate of the Merchant if Tamara rejects any such request.

7.4 If Tamara approves a request under clause ‎7.1 above, the Merchant acknowledges and agrees that the services outlined in such request will be performed by Tamara subject to the terms and conditions of the Agreement unless the Parties otherwise agree in writing. If a request is submitted in relation to an Affiliate of the Merchant, then any reference to the Merchant in the Agreement will be a reference to such relevant Affiliate of the Merchant.

7.5 The Merchant and any Affiliate of the Merchant that becomes bound by the terms of the Agreement will together be jointly and severally liable for each of their obligations and liabilities to Tamara and Tamara’s Affiliates pursuant to the terms of the Agreement.

8. Intellectual Property, Branding and Marketing

8.1 Tamara retains all ownership and Intellectual Property Rights to anything developed by Tamara and provided to or accessed by the Merchant under the Agreement. The Merchant warrants that it will not directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Tamara Payment Services.

8.2 After termination of the Agreement or the removal of the Tamara Payment Services (in whole or in part), the Merchant undertakes to immediately remove all respective Intellectual Property Rights and similar of Tamara and/or of any Other Financial Institution specifically relating to such removed Tamara Payment Services. This does not apply if the Other Financial Institution entitles the Merchant to continue the use of its Intellectual Property Rights.

8.3 Tamara is entitled to refer to the Merchant, in advertising collateral or otherwise, as a user of the Tamara Payment Services or in its capacity as a merchant, and the Merchant grants to Tamara and Tamara’s Affiliates during the Term a royalty free, limited, non-exclusive, non-transferable, non-sub-licensable and revocable licence to use the Merchant’s Intellectual Property Rights to the extent required for it to provide the Tamara Payment Services and to refer to the Merchant as set out above.

8.4 The Merchant agrees to abide by the Branding Policy regarding advertisement and description of the Tamara Payment Service, Tamara and any Tamara’s Affiliates (and any of its and their Representatives). The Merchant agrees that any marketing or other advertising collateral produced or otherwise shared by the Merchant (including any social media posts) which includes reference to Tamara, Tamara’s Affiliates, or its (or their) Intellectual Property Rights, must be approved by Tamara in advance and in writing.

8.5 The Merchant may request that Tamara provides certain “click-through” marketing services that Tamara makes available from time to time. Tamara may elect to provide such marketing services to the Merchant, at its sole and absolute discretion, by giving the Merchant written notice of its acceptance of the applicable request.

8.6 The Merchant acknowledges and agrees that any “click-through” marketing which Tamara elects to provide to the Merchant under clause ‎8.5, will be provided by Tamara based on the terms of the click through marketing document as set out in the Merchant Portal (including any fees associated with such “click-through” marketing) as may be updated by Tamara from time to time.

9. Governing Law

9.1 This Agreement shall be governed by and interpreted in accordance with the provisions of the laws of Selected Governing Law.

9.2 The Parties hereby submit to the exclusive jurisdiction of the courts of the Selected Court Jurisdiction for any legal proceedings arising out of or in connection with the Agreement, the legal relationships established by them, or the various subject matters hereof. The Parties hereby waive and agree not to assert (by way of motion, as a defence, or otherwise) that any such proceeding is brought in an inconvenient forum or that the venue thereof is improper.

9.3 The Merchant undertakes and agrees that all legal proceedings conducted with reference to this clause will be kept strictly confidential, as well as any decision or award that is made or declared during the proceedings. Information covered by this confidentiality undertaking may not, in any form, be disclosed to a third party without the written consent of Tamara.

9.4 Notwithstanding the foregoing, nothing herein shall be construed to prohibit either Party from seeking preliminary or permanent injunctive relief, restraining orders, decrees of specific performance, or other equitable remedies, in any court of competent jurisdiction.

10. Miscellaneous 

10.1 Notices. All notices and other communications under the Agreement shall be in writing and shall be sent to the Merchant Authorised Representative and Tamara Relationship Manager (as applicable) via email, in person, or by pre-paid, recorded post. Such notices and communications shall be delivered: (a) if sent by email, on the day on which the communication is sent and no report of non-delivery is received by the sender PROVIDED THAT (i) any notice dispatched after 17:00 on any Business Day or on a non-Business Day, shall be deemed to have been given at 9:00 on the next Business Day; (b) if delivered personally, at the time of delivery; and (c) if sent by pre-paid, recorded post, two Business Days from the date of posting.

10.2 Tamara website notices. Notices given by Tamara may refer to documents and materials made available on Tamara’s website or the Merchant’s portal, by providing the Merchant with a website URL address where the Merchant can access such documents and materials. The Merchant acknowledges and agrees that the full contents of these documents and materials will be deemed to be communicated and notified to the Merchant as if set out in full in the applicable notice.

10.3 Amendments. Subject to clause ‎10.4, neither the Agreement nor any provision hereof may be amended, modified except in writing signed by both Parties (or their authorised representatives).

10.4 Tamara Amendments. Tamara reserves the right to update the Terms from time to time by giving the Merchant thirty (30) days’ notice. If the Merchant does not object to any such updated Terms by the end of the applicable thirty (30) day notice period, the Merchant acknowledges that they will be deemed to have accepted the applicable updated Terms.

10.5 Remedies. Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by applicable law.

10.6 Waiver. No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by applicable law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

10.7 Successors and Assigns. The provisions of the Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. The Merchant acknowledges and agrees that Tamara may at any time sub-licence, sub-contract, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under the Agreement to any of its holding, sisters, and Affiliates. The Merchant shall not sub-licence, assign or novate in whole or in part or deal in any other manner with any or all of its rights and obligations under the Agreement, without the prior written consent of Tamara, such consent not to be unreasonably withheld or delayed.

10.8 Counterparts. The Agreement and any amendments, waivers, consents, or supplements hereto may be executed in counterparts, and it may be signed electrically (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. The Agreement constitutes the entire contract between the parties with respect to the subject matter hereof and supersedes all previous agreements and understandings, oral or written, with respect to the subject matter hereof.

10.9 Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision hereof or invalidate or render unenforceable such term or provision in any other jurisdiction.

10.10 Confidentiality. The Parties hereby agree:

(a) subject to clause 10.10(‎c) during the Term (and for a period of three (3) years after termination): (a) not at any time, disclose to any person any Confidential Information of the other Party and shall use their best  endeavours to keep all Confidential Information of the other Party confidential (whether it is marked as such or not) without the prior written consent of the other Party; (b)  use the Confidential Information only for the purpose of the Agreement; and (c) protect and safeguard the Confidential Information against unauthorised disclosure and access to a standard that it applies to its own confidential information and in any case with reasonable skill and care.

(b) promptly inform the other Party to the extent permitted by applicable law, of any breach or suspected breach of any of the obligations set out in this clause;

(c) that each party may disclose the other party’s Confidential Information to: (a) its Representatives who need to know such information for the purposes of carrying out the receiving Party’s obligations under or in connection with the Agreement. Each Party shall ensure that its Representatives to whom it discloses the other Party’s Confidential Information comply with this clause; or (b) as may be required by applicable law, a court of competent jurisdiction or any governmental or regulatory authority; and

(d) upon request in writing by either Party, that the other Party shall: (a) promptly deliver to requesting Party; or (b) destroy, all copies of all or part of the Confidential Information (regardless of the form or the medium on which it is stored), and confirm in writing that all copies of such Confidential Information has been so delivered or destroyed as requested.

10.11 Inconsistency. To the extent of any inconsistency between the English and Arabic translation of the Agreement, the Arabic translation will prevail.

10.12 Independent Contractors. Tamara and the Merchant are independent contractors and shall have no power or authority to assume or create any obligation or responsibility on behalf of each other. Except as stated in clause ‎1.5 the Agreement shall not be construed to create or imply any partnership, agency or joint venture.

10.13 Entire Agreement. The Agreement constitutes the entire agreement between the Parties in relation to the Tamara Payment Services and supersedes and replaces all prior oral or written representations or agreements between the Parties on the subject matter or parts hereof.

11. Definitions and Interpretation

11.1 In the Agreement, the following terms shall have the following meanings (unless the context requires otherwise):

“Agreement” has the meaning given to it in the Merchant Onboarding Form.

“Affiliate” means any entity controlling, controlled by or under common control with the Party, where “control” means the direct or indirect ownership of more than 49% of (i) voting securities or (ii) an interest in the assets, profits or earning of an entity.

Approved Transaction” means a Requested Transaction that has been accepted by Tamara.

“Base Settlement Amount” means the amount specified in the Merchant Onboarding Form.

“Business Day” means a day (other than a Friday or a Saturday) on which licenced banks are open for general business in the country in which Tamara is incorporated.

Branding Policy” means Tamara’s policy in relation to permitted use of Tamara Intellectual Property Rights as is available on the Merchant Portal including the in-store page, banners, content, and other material and guidelines set out therein.

Cards” means a credit, debit, charge, purchase or other card issued by a Card Issuer under a Card Scheme whose payments Tamara are able to process (as notified by Tamara to the Merchant from time to time).

Card Issuer” means an entity which issues Cards.

Card Scheme” means Visa Inc, Mastercard Worldwide and any others as Tamara may approve as notified by Tamara to the Merchant from time to time.

“Chargeback” means either (a) any circumstances where Card Issuers, Card Scheme and/or Other Financial Institutions either refuse to Settle a Requested Transaction or Approved Transaction (as applicable), or demand payment from Tamara in respect of a Requested Transaction or Approved Transaction (as applicable) that has been Settled and/or in respect of which Remittance has been made to the Merchant; or (b) any other circumstances where any Other Financial Institution either refuses to make a payment to Tamara or otherwise demands payment from Tamara in respect of a disputed payment made to Tamara in respect of a Requested Transaction or Approved Transaction (as applicable), or in respect of which payment has otherwise been made to the Merchant.

Collections Account” means the account operated by Tamara which includes all of the aggregate Refund payments relating to the Merchant.

“Commencement Date” means the date the Merchant Onboarding Form is last signed by the Parties.

Confidential Information” means all confidential information (however recorded or preserved) disclosed by a Party or its Representatives to another Party and its Representatives, whether before or after the Commencement Date including (i) any information which is marked as confidential or has otherwise been indicated as being confidential, and (ii) information relating to the business, affairs, customers, clients, licensors, suppliers, new products, plans, research, intentions, or market Party belongs; (iii) the existence and terms of the Agreement; and (iv) information relating to the operations, processes, product information, ideas, formulas, data, Intellectual Property Rights or software of the disclosing Party (or of any member of the group of companies to which the disclosing Party belongs). Confidential Information shall exclude (a) information known to the Parties prior the signing of the Agreement, (b) information received by the Parties from a third party not under any obligation to keep such information confidential; and (c) sales material pre-approved in writing by Tamara and provided to the Merchant.

“Credit Risk” means the risk of any loss due solely to the inability of a Customer to pay the related invoice at maturity, provided that Customer has received and approved the goods or services to which the Approved Transaction relates without a Dispute or Chargeback.

“Customer” means any person who has ordered goods and/or services from the Merchant and has initiated a Requested Transaction in respect of that order.

Data Controller” means any person who alone or jointly with others determines the purposes for which and the way Personal Data are, or are to be, Processed.

Data Indemnifying Parties” has the meaning given to it in clause ‎6.5.

Data Subject” means the individual to whom the Personal Data relate.

“Dispute” means any refund request, deduction, setoff, claim, or counterclaim of any kind by a Customer against the Merchant relating to goods or services that gave rise to an Approved Transaction (including relating to goods or services not supplied by the Merchant, missing goods or services, incorrectly received goods or services or damaged goods/unsatisfactory services, but excluding any issues relating specifically to Chargebacks).

Event of Default” includes the occurrence of any of the following events or conditions:

(a) Merchant fails to pay any obligation when due, and such failure remains un-remedied for thirty (30) Business Days;

(b) any representation or warranty made or deemed made by Merchant under the Agreement proves to have been false or misleading in any material respect on or as of the date made or deemed made;

(c) Merchant fails to perform or observe any covenant, term, condition, or agreement contained in the Agreement, and such failure continues un-remedied for thirty (30) Business Days after written notice from Tamara;

(d) Merchant commences any case or proceeding seeking relief under any applicable existing or future bankruptcy law;

(e) Merchant is unable, or admits in writing its inability, to pay its debts as they become due;

(f) there occurs a material change in the beneficial ownership of Merchant resulting in a change of control of Merchant; or

(g) Merchant sells, leases, transfers, or otherwise disposes of all or substantially all of its property or assets, or consolidates with or merges into or with any corporation or other entity.

“Force Majeure” means any event, circumstance, matter or cause affecting the Agreement that is beyond a Party’s reasonable control and could not have been reasonably expected or avoided by exercising due care, including without limitation (i) acts of violence, including war, terrorism, civil unrest, revolution, and insurrection; (ii) government expropriation and confiscation of assets; (iii) frustration of contracts by governmental action and regulatory change, including cancellation of import or export licenses; and (iv) frustration of contracts due to pandemics or other public health related government measures, regulatory change or inability to perform.

“Fraud Risk” means the risk of loss of the value of a good or service sold pursuant to a Requested Transaction arising solely out of the fraudulent activity of a Customer provided always that the Merchant is not aware of such fraudulent activity.

"Go Live Date” has the meaning given to it in the Merchant Onboarding Form.

Implied Terms” has the meaning given to it in clause ‎5.6.

Indemnified Parties” has the meaning given to it in clause ‎5.2.

Intellectual Property Rights” means any patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

Limitation Amount” means a sum equal to the Tamara Fees paid during the 6-month period immediately before the date on which the cause of action first arose.

Merchant” has the meaning given to it in the Merchant Onboarding Form.

Merchant App” has the meaning given to it in clause ‎1.1.

Merchant Authorised Representative” has the meaning given to it in the Merchant Onboarding Form.

“Merchant Bank Account” means the Merchant’s bank account specified in the Merchant Onboarding Form.

Merchant Onboarding Form” means the order form entered into between the Merchant and Tamara and which refers to these Terms.

Merchant Portal” has the meaning given to it in clause ‎1.1.

Merchant’s Store” means the place where the Merchant sells good and/or services to the Customers, whether it is a physical place or through the internet.

“Net Amount” means the total amount paid or payable (as applicable) by a Customer (including any VAT, shipping or other applicable taxes) in respect of a Requested Transaction less (i) all returns and Refunds; and (ii) any discounts, credits, or allowances claimed by, or granted to, such Customer.

Other Financial Institution” means any third party credit or financial institution (including Card Issuers) which may be involved or which Tamara (in Tamara’s sole and absolute discretion) involve, in the course of Tamara’s provision of the Tamara Payment Services.

“Order Handling System” means Tamara’s technology interface between Tamara, the Merchant and/or Customers pursuant to which the Tamara Payment Service is administered.

“Pay in Full” means a specific payment solution provided by Tamara which permits Customers to pay for applicable goods and/or services in full (rather than on a buy-now-pay-later basis), as amended by Tamara from time to time, and which forms part of the potential Tamara Payment Services, as applicable.

“Personal Data” means any data, regardless of its source or form, that may lead to identifying an individual specifically, or that may directly or indirectly make it possible to identify an individual, including name, personal identification number, addresses, contact numbers, license numbers, records, personal assets, bank and credit card numbers, photos and videos of an individual, and any other data of personal nature.

Privacy Policy” means Tamara’s privacy policy which is updated from time to time and is available at Tamara’s website.

Processing” means any operation which is performed upon Personal Data, whether or not by automatic means, and “Process” shall be construed accordingly.

“Purchase Price” means the Net Amount of the applicable Approved Transaction minus the Tamara Fees, Chargebacks or other Dispute fees (as applicable) in respect of such Approved Transaction.

Refund” means a Requested Transaction, in respect of an initiating Approved Transaction, made wholly or partially to reverse that initiating Approved Transaction.

Remittance” means any payment Tamara makes to the Merchant under the Agreement in the course of Tamara Payment Services (including any appliable Purchase Price) and “Remitted” shall be construed accordingly.

Representatives” means in relation to a Party, its officers employees, professional advisers, consultants, and permitted contractors and sub-contractors.

Restricted Products” means the list of goods and/or services (as applicable) notified by Tamara to the Merchant from time to time.

Restricted Territory” means the list of territories notified by Tamara to the Merchant from time to time.

Requested Information” means the information for each applicable customer as notified to the Merchant by Tamara via the Merchant Portal from time to time.

“Requested Transaction” means any payment request by (or to, as applicable in the context of a Refund) a Customer to purchase goods and/or services from the Merchant using the Tamara Payment Services in the Merchant’s Store. Unless the context requires otherwise, “Requested Transaction” shall include a reference to a “Refund” and a series of connected transactions.

Selected Court Jurisdiction” means the courts with jurisdiction over the Agreement as set out in the Merchant Onboarding Form.

Selected Governing Law” means the law which governs the Agreement as set out in the Merchant Onboarding Form.

Settled” means the crediting to Tamara, Tamara’s agent or Other Financial Institution (as applicable) of the value of a Requested Transaction as determined by the relevant Card Scheme or Other Financial Institution as the case may be (and “Settle” and “Settlement” shall be construed accordingly).

"Tamara’s Buyer Protection Program Terms (for Merchants)" means the terms and conditions available in Tamara website.

“Tamara Fee” Without prejudice to clause ‎1.21, means the relevant fees payable by the Merchant to Tamara in connection with the Tamara Payment Services, whether attached or included with the Merchant Onboarding Form and/or as otherwise provided by Tamara to the Merchant from time to time and includes any applicable “Fixed Fee” and “Variable Fee” as set out in the Merchant Onboarding Form.

“Tamara Payment Service” means the service selected by a Customer in the Merchant’s Store pursuant to which the Customer selects to purchase goods and/or services from the Merchant using the applicable Tamara service that are subject to the Agreement (including, without limitation, Pay In Full or any buy-now-pay-later service).

Tamara” has the meaning given to it in the Merchant Onboarding Form.

Tamara Relationship Manager” has the meaning given to it in the Merchant Onboarding Form.

“Term” means the Initial Term (together with any Subsequent Term, if applicable) as specified in the Merchant Onboarding Form.

Territory” has the meaning given to it in the Merchant Onboarding Form.

“VAT” means the applicable value added tax.

11.2 Headings shall not affect the interpretation of these Terms.

11.3 Unless the context otherwise requires:

(a) words in the singular shall include the plural and words in the plural shall include the singular;

(b) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; and

(c) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

11.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.

11.5 Any reference to ‘in writing’ in the Agreement shall expressly include email.

Nakhla IT Systems LLC, 6901 At Takhassusi Branch Street, Al Rahmaniyah District Riyadh, Saudi Arabia
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Tamara is available in Saudi Arabia, the United Arab Emirates, and Kuwait.

Tamara is available in Saudi Arabia, the United Arab Emirates, and Kuwait.

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