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Merchant terms & conditions

Updated day: 19-02-2023

1. Preamble

The Smart Management Solutions company (SMS) has developed cloud-based Point-of-Sale Systems, including Hardware, Software, that it makes available to subscribers for the purpose of accurately track, record, and analyze sales, inventory, product usage and Zakat and tax information in connection with the operation of each merchant business.

The merchant wishes to use the SMS company service in its business operations.

The SMS company has agreed to provide, and the merchant has agreed to take and pay for the SMS company service subject to the terms and conditions of this agreement.

2. SMS’s Obligations and Rights.

The SMS company undertakes that the services will be performed substantially in accordance with this agreement and with reasonable skill and care.

The undertaking at Clause 1 shall not apply to the extent of any non-conformance which is caused by use of the services contrary to the SMS company instructions, or modification or alteration of the services by any party other than the SMS company.

SMS company will undertake commercially reasonable efforts to make the services available twenty-four (24) hours a day, seven 7 days a week.

SMS company reserves the right to suspend merchant access to the services: (i) for scheduled or emergency maintenance, or (ii) in the event merchant is in breach of this agreement, including failure to pay any amounts due to SMS.

The SMS company will, as part of the services and at no additional cost to the merchant OR and in consideration of the support fees, provide the merchant with the SMS standard customer support services during normal business hours.

3. Merchant’s Obligations and Rights

1. The merchant shall a provide the SMS company with:

(a) all necessary co-operation in relation to this agreement; and

(b) all necessary access to such information as may be required by the SMS company.

2. The merchant agrees to provide, install, and maintain, the necessary electric service and equipment for internet access to access the SMS services.

3. The merchant shall comply with all applicable laws and regulations in the Kingdom of Saudi Arabia with respect to its activities under this agreement.

4. The merchant shall carry out all responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the merchant’s provision of such assistance as agreed by the parties, the SMS company may adjust any agreed timetable or delivery schedule as reasonably necessary.

5. The merchant shall ensure that the authorized users use the services in accordance with the terms and conditions of this agreement and shall be responsible for any authorized user’s breach of this agreement.

6. The merchant acknowledged and agreed that the subscription of this agreement is a non-transferable and non-sublicensable.

7. The merchant solely responsible for procuring, maintaining, and securing its network connections and telecommunications links from its systems to the SMS company data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the merchant network connections or telecommunications links or caused by the internet.

8. The merchant shall not store, access, publish, disseminate, distribute, or transmit via the services any material which:

a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing.

b) facilitates illegal activity.

c) depicts sexually explicit images.

d) is otherwise illegal or causes damage or injury to any person or property.

9. The merchant shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the services, and if there is any such unauthorized access or use, promptly notify the SMS company.

10. The merchant will be responsible for any theft of equipment that in the merchant’s possession.

4. Warranty

1. All electronic devices are warranted for one year except accessories – scanner, cash drawer and receipt printer.

2. Warranty of hardware means repairing the device, not exchanging the device.

3. As of the date we grant you the subscription to use the services, and if you are under the annual fee and your quotation includes the “Technical Support, Updates, and Maintenance” service, you are granted a one-year warranty only covering all the SMS system for the full period of service. This warranty will be renewed annually in advance.

4. The SMS company does not warrant any hardware and software that the company does not own.

5. Article (4): Warranty Disclaimer

1. The merchant acknowledge that the SMS company may use third party suppliers to hardware, software, connectivity, and all business requirements to get the merchant the services. The acts and omissions of those third-party suppliers may be outside of the SMS company’s control and the merchant shall not hold the SMS company liable for any loss or damage suffered as a result of any act or omission of any third party.

6. System Ownership and Right

1. The merchant confirms his acknowledgment that being given the authorization for system usage does not grant him as well his staff the possession right in any form of hardware, software, documents, trademark, logo programs.

2. The merchant shall held liable against users acts like infringing, amending, duplicating or misusing the system software and hardware or any part thereof.

3. The SMS has the ownership of system equipment (Hardware). During the validity period of the contract, the merchant has full responsibility for security and maintenance system equipment, and the merchant shall return the equipment when this agreement ends in good working and condition, or the merchant shall be liable for any damage caused to the equipment.

4. The SMS company have the right to the usage business information data (not personal information) the merchant provides for the use and operation of the SMS services. In addition, the SMS company has the right to retain, analyze, use, and share such information in anonymous, filtered, or aggregate form for general business purposes only.

7. Payment Terms

1. The merchant shall pay (amount) indicated on the attached invoice form to the SMS company upon ordering the SMS system. The amount covers the software annual subscription and hardware (Equipment) rental.

2. The SMS company may schedule the payment for the amount in (Clause 1) into monthly installments. Each installment shall be invoiced monthly in advance and shall be due and payable in full within receiving the invoice form

3. The merchant acknowledges that the amount of this agreement and installments are non-refundable

4. If the merchant fails to make any installments payment due to the SMS company, then the SMS company has the right to collect and return the SMS system equipment (Hardware) from the merchant. In addition, the merchant shall cooperate and allow SMS company or its representative’s access to the site or any premises where the equipment is located for the purpose of removing and returning the equipment. The amount previously paid will not be settled

8. Confidentiality and Data Protection

1. The merchant acknowledges and agrees that the merchant is responsible for any act and/or omission of any authorized person in breach of this agreement

2. The merchant will protect SMS company confidential and proprietary information by using the same reasonable degree of care that it uses to protect its own confidential and proprietary information of a like nature to prevent its unauthorized use, dissemination, or publication to any unauthorized third party

3. The merchant represents and warrants that all officers, employees, agents, representatives and others having access to its login details will be authorized by the merchant to use the service and legally bind the merchant.

4. The merchant’s data and user content are the merchant responsibility. SMS company have no responsibility or liability for it, or for any loss or damage your user content may cause to the merchant or other people. SMS company do not claim any ownership or rights in the merchant user content except as provided for under this agreement, but SMS company shall have the right to use the merchant user content to the extent necessary to provide the services, now and in the future. Therefore, by posting or distributing user content to or through the SMS services.

5. The merchant grants the SMS Company non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such user content, in the manner in and for the purposes for which the services from time to time use such user content.

9. Limitation of liability

1. Nothing in this agreement will exclude or limit the merchant liability for fraud or fraudulent misrepresentation

2. SMS company shall not be liable for the following:

a) Any economic losses (including, without limitation, loss of revenues, profits, contracts, data, business, anticipated savings)

b) Any civil or criminal penalty imposed by Saudi authorities including but not limited to (Ministry of Municipality and Environment, Ministry of Commerce, and General Authority of Zakat and Tax) or Saudi courts

c) Cost of substitute services

10. Termination

The agreement may be terminated if any of the following circumstances makes the performance of the contract unnecessary or impossible:

1. Both parties agree to terminate the agreement through negotiation

2. Both parties fail to renew the agreement upon expiration of the term

3. If either party’s subject qualification disappears, such as being revoked or entering into bankruptcy or liquidation procedures, the other party shall have the right to terminate the contract, except for reorganization, name change, division or merger with a third party

4. The SMS company has right to terminate the agreement if the merchant fails to perform or violates its obligations hereunder or fails to perform its obligations or fails to take remedial measures within a certain period of time given by the SMS

5. If it is impossible or unnecessary to continue the performance of the contract due to force majeure or accidents, both parties may request to terminate the contract

11. Jurisdiction and Governing law

1. The agreement is governed by the laws of the Kingdom of Saudi Arabia

2. All disputes arising out of or in connection with the agreement shall be settled through friendly negotiations between both parties. If the parties fail to settle the dispute through friendly negotiation, the Saudi court where SMS company locate in Saudi Arabia shall have exclusive jurisdiction to settle any dispute or claim

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