1. Introduction
This X Pay Addendum is entered into between Merchant and Master Merchant in order for Merchant to access the X Pay Services, and sets out the terms and conditions under which Merchant’s Customers may access the Deferred Payment Structure.
2. Definitions
Unless expressly defined in this X Pay Addendum, capitalized terms shall have the meaning ascribed to them in the Main Contract.
“Applicable Law” means all laws, orders, decrees, rules, regulations, circulars, notices or guidelines, including the requirements of any regulatory authority, having legal effect and as applicable to a Party in respect of its rights and/or obligations under this X Pay Addendum, and in relation to any Transaction, Refund or chargeback, TPA rules and Payment Scheme rules in force in any applicable jurisdiction from time to time. These include anti-money laundering, anti-bribery, anti-terrorist financing, sanctions, data privacy, tax and consumer protection laws (as applicable).
“Assignment Settlement Amount (Merchant)” means the net purchase price payable by Master Merchant to Merchant in respect of each Transaction, taking into account:
(1) the total value of the Deferred Payments assigned by Merchant to Master Merchant as per Clause 3.2;
(2) all applicable fees charged by Master Merchant for the underlying Transaction, as set out by Master Merchant.
“Cancellation” means the cancellation of a Transaction for which Master Merchant or Merchant has been paid or was due to be paid, initiated by Zero Credit Limited.
“Credit Event” means, in relation to any person, the cessation to pay its debts as they become due and payable, or any corporate action, legal proceedings or other step in relation to (a) suspension of payments, bankruptcy, winding up, dissolution, judicial management, administration and reorganization or composition or arrangement with creditors; (b) the appointment of a liquidator, receiver, judicial manager, administrator or similar officer in respect of the person or the person’s assets; (c) enforcement of any security over the person’s assets; or (d) any analogous procedure or step in any jurisdiction.
“Customers” means Merchant’s customers who purchase Merchant Services via the X Pay Platform.
“Deferred Payment” means an outstanding payment under a Deferred Payment Structure which shall be paid by the Customer and may be assigned by the Merchant to the Master Merchant for each Transaction.
“Deferred Payment Agreement” means each contract entered into between Merchant and a Customer via X Pay Platform upon conclusion of an Order as a Transaction under a Deferred Payment Structure, in substantially the form set out at https://zero-xpay.com/purchase-payment-contract.
“Deferred Payment Structure” means an extended payment feature offered by Merchant to Customers under which payment of the Purchase Price for a Transaction shall be made in one or more tranches on a deferred and interest free basis.
“Erroneous Transaction” means an Order or Transaction where the Master Merchant or Merchant is aware or should reasonably have been aware that (i) a Customer was ordering an incorrect item, (ii) the Purchase Price for the Order is incorrect, (iii) payment in relation to a Transaction has been mistakenly or wrongly made by Zero Credit Limited or the Customer, (iv) entry of the Order was unauthorized or fraudulently made, (v) the quantity of the Order was unusual or suspiciously large, (vi) the request for delivery is to a foreign country where the Customer does not typically reside or has connections to, or (vii) provision of the Merchant Services is illegal, unlawful and in breach of Applicable Laws.
“Indemnified Parties” means Zero Credit Limited, the Master Merchant or its or their subsidiaries, partners, affiliates, employees, directors, officers, agents, representatives and/or any third parties providing services for and on behalf of Zero Credit Limited or Master Merchant.
“Merchant Contract” means a Master Merchant Contract entered into between Zero Credit Limited and the Master Merchant in connection with the X Pay Services.
“Merchant Funded Discounts” means promotional payment discounts which may be granted by Merchant to Customers from time to time for promotional purposes.
“Merchant Services” means the goods and services that form part of an Order, as offered by Merchant in any of Merchant’s Sites.
“Order” means a Customer’s application to purchase the Merchant Services captured and processed via the X Pay Platform.
“Payment Method” means the method of payment nominated by a Customer to make payments to Zero Credit Limited (including payment of any fees and charges). For the avoidance of doubt, a Payment Method shall not include any issued prepaid debit cards, virtual debit cards or virtual account numbers, gift cards or any other type of access card.
“Payment Processor” means an acquirer or payment processor authorized by a Payment Scheme to enable the use of a Payment Method by accepting Transactions submitted via X Pay Platform, routing these to the Payment Scheme and collecting and paying out the resulting funds to Zero Credit Limited, Master Merchant and/or any other third parties as the case may be.
“Payment Scheme” means Visa Inc, Mastercard International Inc., or UnionPay Ltd and/or any other payment networks or cards associations that processes credit and debit cards via the central payment network.
“Purchase Price” means the total monetary value of an Order (including any applicable goods and services tax and delivery fees, and subject to any applicable Merchant Funded Discounts).
“Receivables” means in respect of a Deferred Payment Agreement, all of the Merchant’s present and future rights, title and interest in and to the benefit under such Deferred Payment Agreement (including but not limited to the right to receive the outstanding Deferred Payments from the Customer under such Deferred Payment Agreement) and all of the Merchant’s present and future rights, title and interest in all property, assets and sums derived from such Deferred Payment Agreement, and for the avoidance of doubt shall include all the Related Rights.
“Refund” means a complete or partial refund in respect of any Transaction.
“Refunded Amount” means the amount to be refunded to a Customer in respect of a Refund (including whether by way of a payment back to that Customer and/or by application to discharge any matured or unmatured Deferred Payment which remains owing by that Customer) as determined by the Master Merchant in its sole and absolute discretion.
“Related Rights” means, in respect of a Receivable, (a) the right to demand, sue for, recover and give receipts for all sums payable under such Receivable, and (b) the benefit of all securities and guarantees for such principal moneys and interest and other sums payable, the benefit of and the right to sue on all covenants and undertakings in the Merchant’s favour in such Receivable in respect thereof and the right to exercise all powers in the Merchant’s favour in relation to such Receivable.
“Repurchase Amount (Merchant)” means, upon the occurrence of any event specified in Clause 6.1 below in relation to a Transaction, the amount equal to the corresponding Assignment Settlement Amount (Merchant), less any portion of the Deferred Payment already received by the Master Merchant, or any lesser amount as determined by the Master Merchant in its sole and absolute discretion.
“Service Failure” means a dispute, objection or denial raised by a Customer relating to (i) the quality, quantity, use or fitness of the Merchant Services rendered under the Transaction, (ii) unsatisfactory or incomplete delivery of the Merchant Services, (iii) breach by the Merchant of the terms of contract of sale or service entered into between the Merchant and the Customer, or (iv) non-receipt of a refund or credit amount from the Merchant after the Customer has returned the Merchant Services to the Merchant.
“Sites” means any of Merchant’s physical stores, websites, pages within Merchant’s website, equivalent mirrors, replacements, substitutes or backup websites.
“Term” refers to the period during which this X Pay Addendum shall be in effect.
“TPA” refers to a third-party agent or payment gateway that is authorized by a Payment Scheme and/or Payment Processor to handle Transactions submitted via X Pay Platform.
“Transaction” means any transaction under a successful Order between Merchant and a Customer as facilitated and processed via X Pay Platform, and evidenced by the Customer being notified via the X Pay Platform that the Order has been approved.
“X Pay Platform” means any websites (including any subdomains thereof), mobile, tablet and other smart device applications (including X Wallet App) and application program interfaces developed, maintained and operated by Zero Credit Limited to facilitate the provision of the X Pay Services.
“X Pay Services” means the services of (i) implementing and administrating an online payment solution, whereby Merchant agrees to accept payment by Customers through a Deferred Payment Structure pursuant to the terms of the Deferred Payment Agreement and assign Receivables under such Deferred Payment Agreement to the Master Merchant (who will simultaneously assign such Receivables to Zero Credit Limited), (ii) performing validation checks and assessments on Customers and Merchant using the system, (iii) managing accounts and (iv) processing Transactions and requests, and allowing Customers to make payments via X Pay Platform.
3. X Pay Services and Assignment of Receivables
3.1. Merchant agrees to use the X Pay Services, facilitated by the Master Merchant, by entering into this X Pay Addendum.
3.2. Merchant agrees that in order to use the X Pay Services, upon any Customer initiating an Order at Merchant’s Site, Merchant shall offer to settle the Purchase Price of such Order under a Deferred Payment Structure.
3.3. Upon conclusion of such Order as a Transaction in accordance with Clauses 3.10 and 3.11:
3.3.1 the Merchant and the Customer are deemed to have entered into a Deferred Payment Agreement; and
3.3.2 the Merchant (as the seller) agrees to sell and assign absolutely to and vest in, and the Master Merchant (as the purchaser) agrees to purchase and accept the assignment absolutely to and vesting in the Master Merchant of, all of the Receivables in respect of the Deferred Payment Agreement in connection with such Transaction;
3.4. Conclusion of an Order as a Transaction in accordance with Clauses 3.10 and 3.11 will constitute:
3.4.1 a legal, valid and binding agreement between Merchant and Master Merchant on the terms contained in this X Pay Addendum (which Merchant and Master Merchant acknowledge and agree constitute arm’s length, market terms and conditions); and
3.4.2 in respect of such Receivables, without any further act or instrument by the parties, an immediate assignment and automatic vesting of the entire right, title and interest of Merchant (as seller and assignor) in the Receivables.
3.5. Any sale of Receivables in accordance with this X Pay Addendum does not constitute an assumption by Master Merchant of any obligation or liability of Merchant or of any other person in relation to such Receivables.
3.6. It is the intention of the parties that:
3.6.1 the assignment of the Receivables contemplated by this X Pay Addendum will constitute a sale of those Receivables from Merchant (as seller and assignor) to Master Merchant (as purchaser and assignee) by way of assignment and an absolute transfer of Merchant’s entire right, title and interest in the Receivables, and not a transfer of a lesser form of interest in the Receivables (such as an assignment by way of security, a charge or other type of security interest); and
3.6.2 upon completion of such sale and assignment of Receivables, the Receivables do not and will not comprise the assets of Merchant (as seller and assignor) in the event that Merchant is insolvent or otherwise.
3.7. Notwithstanding the sale of Receivables pursuant to this X Pay Addendum:
3.7.1 if the ownership of such Receivables fails, for any reason, to vest in Master Merchant (as purchaser and assignee), Merchant (as seller and assignor of such Receivables) shall hold such Receivables on trust for Master Merchant; and
3.7.2 if following the assignment of such Receivables pursuant to this X Pay Addendum, Merchant receives, or there is received to the Merchant’s order, any property, interest, right or benefit hereby agreed to be sold or the proceeds thereof with respect to those Receivables, Merchant undertakes to Master Merchant that Merchant will hold such property, interest, right or benefit or the proceeds thereof upon trust for Master Merchant as the beneficial owner and shall as soon as reasonably practicable transfer or assign such property, interest, right or benefit or pay such proceeds to Master Merchant.
3.8. As consideration for each sale and assignment of Receivables to Master Merchant pursuant to Clause 3.3 above, Master Merchant shall pay Merchant the Assignment Settlement Amount (Merchant) via Merchant’s account with the Master Merchant after the assignment under Clause 3.3 above, subject to any commercial terms which the Master Merchant may impose as set out in Schedule A below.
3.9. Merchant confirms that Merchant has irrevocably authorized Master Merchant (or Zero Credit Limited) to notify the Customers of the assignments contemplated under this X Pay Addendum and further agree to, upon Master Merchant’s or Zero Credit Limited’s request, promptly execute and deliver any other notice of assignment to the Customer that is required by Master Merchant or Zero Credit Limited.
3.10. Merchant agrees and acknowledges that as part of the X Pay Services, Zero Credit Limited will conduct the following checks and assessments in respect of any Order:
3.10.1. real-time checks and validations on Merchant’s eligibility, the transaction value of the Order, the risk associated with the Merchant Services, and overall risks for each Transaction; and
3.10.2. real-time checks and validations on Customer’s credentials, devices, relationships with other Customers and other historical data.
3.11. Merchant agrees and acknowledges that an Order will be approved by Zero Credit Limited and concluded as a Transaction if: (i) Zero Credit Limited is satisfied at its sole discretion of the eligibility of the Master Merchant, the Merchant and the Customer at the time of the Order, (ii) the authorization of the first Deferred Payment on the Customer’s chosen Payment Method is successful and (iii) the Customer has provided the Payment Schedule Confirmation (as defined in the Deferred Payment Agreement).
3.12. For the avoidance of doubt, each Party acknowledges and agrees that:
3.12.1. the Assignment Settlement Amount (Merchant) paid by Master Merchant to Merchant is for the purchase by the Master Merchant of the Receivables and is not a loan or a credit facility offered by Zero Credit Limited or Master Merchant to Merchant or the Customers;
3.12.2. this X Pay Addendum and any transactions contemplated herein shall not be deemed to be a loan or credit facility and shall not be subject to the Money Lenders Ordinance (Cap 163 of the laws of Hong Kong) or any similar laws, regulations or licensing requirements in any other jurisdiction; and
3.12.3. the X Pay Services do not constitute a lending or credit facility and Zero Credit Limited does not provide any credit to Master Merchant, to Merchant, or to Customers.
4. Cancellations
Merchant agrees and acknowledges that, pursuant to the provision of the X Pay Services, Zero Credit Limited reserves the right to effect a Cancellation of a Transaction where:
(i) Zero Credit Limited has reason to suspect, or becomes aware, that Master Merchant has breached any of its obligations under the Merchant Contract or any representation and warranty made by Master Merchant under the Merchant Contract is incorrect or misleading;
(ii) Zero Credit Limited has reason to suspect, or becomes aware, that Merchant has breached any of its obligations under this X Pay Addendum or any representation and warranty made by the Merchant under this X Pay Addendum is incorrect or misleading;
(iii) Master Merchant, Merchant and/or Customer fails to satisfy Zero Credit Limited’s validations, checks and assessments;
(iv) Zero Credit Limited suspects or becomes aware of suspicious activity from Master Merchant, Merchant and/or Customer on the X Pay Platform which may contravene Applicable Laws and/or regulations;
(v) Zero Credit Limited suspects or becomes aware that Master Merchant’s systems have been or may have been compromised;
(vi) Zero Credit Limited suspects or becomes aware that a Service Failure or Erroneous Transaction has occurred;
(vii) Zero Credit Limited suspects or becomes aware that a Credit Event has occurred on Master Merchant’s part; or
(viii) Master Merchant does not agree to necessary amendments to the Merchant Contract, or Master Merchant has terminated the Merchant Contract, but fails to procure the removal of any and all Zero Credit Limited APIs, plugins, code and other Zero Credit Limited-related parts from Master Merchant’s and Merchant’s Sites, resulting in Customers continuing to make Orders at Merchant’s Sites.
5. Refunds
5.1. Merchant agrees and acknowledges that:
5.1.1 if Merchant chooses to accept a return or process a Refund (in full or in part) in relation to a Transaction, Merchant must inform Master Merchant of the same and initiate the Refund process with Master Merchant. Such Refund must be requested within sixty (60) calendar days of the Transaction, failing which Merchant agrees and acknowledges that Zero Credit Limited may reject the Refund request at Zero Credit Limited’s sole discretion; and
5.1.2 any requests from you for Refund shall be subject to the approval of the Master Merchant and Zero Credit Limited in their sole discretion.
5.2 Upon the occurrence of a Refund, Master Merchant may charge you an amount equal to applicable Refunded Amount.
6. Limited Recourse
6.1. Merchant agrees and acknowledges that regardless of any failure or delay by the Customer to make payment of any part of a Deferred Payment on its due date, Master Merchant shall have no recourse to Merchant for such failure or delay unless there has been a dispute, Cancellation or waiver of any Deferred Payment (“Recourse Event”) for any reason whatsoever. Upon a Recourse Event, Merchant shall, upon Master Merchant’s written notification, buy back from Master Merchant the relevant Receivables assigned under this X Pay Addendum, in an amount equal to the Repurchase Amount (Merchant).
6.2. Once a written notification is given to Merchant pursuant to Clause 6.1, Master Merchant agrees to sell and assign absolutely to and vest in, and Merchant is deemed to have accepted the assignment absolutely to and vesting in Merchant of, all of such relevant Receivables. Such acceptance will constitute:
6.2.1 a legal, valid and binding agreement between Master Merchant and Merchant on the terms contained in this X Pay Addendum (which Master Merchant and Merchant acknowledge and agree constitute arm’s length, market terms and conditions); and
6.2.2 in respect of such relevant Receivables, without any further act or instrument by the parties, an immediate assignment and automatic vesting of Master Merchant’s entire right, title and interest in such Receivables.
6.3. Without prejudice to any of Master Merchant’s other rights under this X Pay Addendum, Merchant agrees and acknowledges that following a buy-back pursuant to Clause 6.1, Master Merchant shall be entitled at its discretion to set-off any Repurchase Amount (Merchant) against any present or future Assignment Settlement Amount (Merchant) or demand payment of any Repurchase Amount (Merchant) within three (3) business days of Master Merchant’s written notice to Merchant.
7. Marketing
Merchant agrees to assist Zero Credit Limited with respect to publicity and marketing activities for the Deferred Payment Structure and the X Pay Services (including but not limited to, marketing X Pay Services on Merchant’s website and social media platforms, and displaying marketing collaterals such as posters, signboards and other publicity material within designated cashier counters area and certain visible areas) as requested by Zero Credit Limited, subject to Applicable Laws. Zero Credit Limited shall have the right to display representations of Merchant’s logos and marks in all marketing and publicity material relating to the X Pay Services for the purpose of presenting Merchant as being equipped with the X Pay Services. Merchant agrees to be responsible for any marketing which Merchant causes to be published.
8. Indemnity
Merchant agrees to release, indemnify and hold harmless the Indemnified Parties from and against any costs (including reasonable legal fees), damages, claims, actions, expenses, losses or liabilities arising out of or related to:
8.1. any failure or delay by the Merchant to pay any amount due under this X Pay Addendum;
8.2. claims brought against the Indemnified Parties by any third party and/or otherwise incurred arising out of the Merchant’s and/or its representatives’ breach of this X Pay Addendum and/or any Applicable Laws;
8.3. claims brought against the Indemnified Parties by any third party or Customers relating to or in connection with the Merchant Services;
8.4. complaints, goods rejections, and disputes arising out of illegal, false, outdated or incomplete transactions;
8.5. any dishonesty, fraud or fraudulent misrepresentation by Merchant, Merchant’s affiliates or Merchant’s employees; and
8.6. any claim by any third party or any person relating to any breach (or alleged breach) of any intellectual property rights,
unless such costs, damages, claims, actions, expenses or liabilities are caused by any negligence or wilful act or omission of the Indemnified Parties.
9. Miscellaneous
9.1. Unless otherwise agreed between Merchant and Master Merchant in writing, the Term commences on the date that Merchant signs the X Pay Addendum and shall last for twelve (12) months. Upon expiry of the Term, the X Pay Addendum shall automatically renew on the same terms and conditions for successive twelve (12) month terms thereafter until and unless terminated by Merchant or Master Merchant by way of notice in writing issued to the other party no less than thirty (30) calendar days prior to the expiry of the prevailing Term.
9.2. Notwithstanding Clause 9.1 above, Merchant or Master Merchant may terminate this X Pay Addendum by one (1) calendar month’s written notice to the other party (as applicable).
9.3. In the event of any inconsistency between this X Pay Addendum and the Main Contract, the X Pay Addendum shall take precedence.
9.4. A person which is not a party to this X Pay Addendum has no rights under the Contracts (Rights of Third Parties) Ordinance (Cap 623 of the laws of Hong Kong) to enforce any terms of this X Pay Addendum, save that an Indemnified Party may enforce and rely on each provision of this X Pay Addendum which conveys a right or benefit or purports to convey a right or benefit to such Indemnified Party.
9.5. If any provision of this X Pay Addendum (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this X Pay Addendum shall not be affected thereby and shall be binding upon the Parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this X Pay Addendum.
9.6. This X Pay Addendum, including all documents or other material incorporated by reference, constitutes and contains the entire agreement between Merchant and Master Merchant with respect to the subject matter hereof and supersede any prior or contemporaneous oral or written agreements.
9.7. The Merchant shall, upon the request of X Pay or the Master Merchant, execute, stamp and deliver such documents or deeds as may be reasonably necessary to give full effect to this X Pay Addendum (including the assignment of the Receivables under the Deferred Payment Agreement(s)).
9.8. This X Pay Addendum may be executed in one or more counterparts all of which taken together shall be deemed to constitute one and the same instrument.
10. Governing law
This X Pay Addendum and the relationship between you and us are governed by, and will be construed under, the laws of Hong Kong Special Administrative Region of the People’s Republic of China, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.