THIS IS SIMPO CASH AGENT AGREEMENT (“This Agreement”)

BETWEEN:

First Capital Bank (FCB) PLC is duly incorporated and licensed to offer Banking Services in accordance with the laws of Malawi and has its registered office at Livingstone Towers, 21 Glyn Jones Road, Blantyre – Malawi, Private Bag 122, Blantyre (hereinafter referred to as “the Bank”) of the one part;

AND

The Agent, duly registered under the Laws of Malawi, having its principal place of business in the Republic of Malawi (hereinafter referred to as “the Agent”) of the other part.

WHEREAS

A. FCB is a commercial bank duly licensed under the Banking Act 2010 to provide Banking and related Services (the “Services”).

B. RESERVE BANK OF MALAWI (hereinafter referred to as ‘RBM’) through its E-payments guidelines has provided for Simpo Cash as a delivery channel for selected financial Services.
C. The Agent is an entity that the Bank has contracted to provide selected financial services on behalf of the bank (FCB) under the guidelines of E-payments regulation.
D. The Bank wishes to contract the Agent under the Bank’s E-payments Model called Simpo Cash for the provision of Financial Services on behalf of the Bank.
E. The Agent has indicated to the Bank that they have the requisite skills, knowledge, experience, capability, and all necessary personnel and facilities and are competent, to provide the Services.
F. The Bank has reviewed the Agent’s capabilities and is satisfied on its ability to offer the Services
envisaged.

G. The Bank and the Agent (each a “Party” or collectively the “Parties”) wish to enter into this Agreement to set out the rights and obligations of each party under the Simpo Cash Business.

NOW, THEREFORE, in consideration of these Recitals, the mutual promises set forth herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by the Parties, the Bank and the Agent agree as follows:

1. DEFINITIONS

In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings: –

1.1 “Agent’s Wallet” means a wallet established by the Agent in the Bank to facilitate customer transactions and for payment of Commissions in respect of the Services as hereinafter detailed.

1.2 “Agreement” means this Agreement concluded between the Bank and the Agent for the participation by the Agent in providing the Authorized Services as specified in Schedule B.

1.3 “Agreement Period” shall mean the initial period of twelve (12) months from the Effective Date unless earlier terminated. Unless terminated by either party, the contract shall automatically be renewed every twelve (12) months.

1.4 “Applicable Law” means applicable laws of Malawi including statutes, regulations, regulatory guidelines and judicial or administrative interpretations, any rules or requirements established by the Bank including any amendments or enactments thereto and any corresponding earlier enactment, and subordinate legislation made under a statutory provision.

1.5 “Authorization” means a process through which the Bank approves a transaction or where the Bank provides confirmation to the Agent that the transaction is successfully completed.

1.6 “Authorized Services” means the services the Agent is authorized to offer in accordance with
the provisions under Schedule B hereto.

1.7 “Business entity” means a telecommunications company, a Microfinance institution, Saccos, a limited liability company, or any other entities engaging in similar services, including but not limited to the services mentioned in Schedule B hereto.
1.8 “Commissions” means the detailed transaction earnings that the agent gets from the commission earned transactions.

1.9 “Card Holder” means the person entitled to use the Bank’s ATM Card.

1.10 “Competing Services” means engaging and acting as an agent for an institution licensed
under the Banking Act other than FCB Bank.

1.11 “Conditions of Use” means the terms and conditions of use of the Bank Agency Program Products and Services for Customers.

1.12 “Confidential Information” means all information and data provided by the Bank or customers, whether or not in material form, whatsoever and howsoever derived or acquired relating to the Bank’s Agency Program Products and Services and all other confidential or secret information disclosed by or on behalf of either party to the other including the terms of this Agreement.

1.13 “Customers” shall mean any user of the Bank’s Agency Program Authorized Services.

1.14 “Customer Data” means all information, whether personally identifiable or in aggregate, that is submitted and/or obtained as a result of a bank-customer relationship.

1.15 “Effective Date” means the date of execution of this Agreement.

1.16 “Simpo Cash” means the proprietary solution under which the Agent shall offer the Authorised Services.

1.17 “FCB Simpo Cash Operator” means each person within an outlet authorised by the Agent to operate and offer Simpo Cash Services.

1.18 “FCB Bank Card” means any debit or credit card issued to the Bank’s customers as well as any other cards issued by the Bank to its customers to facilitate financial transactions.

1.19 “Marketing Materials” means badges, links, sponsored e-mails, micro-sites, splash pages, other placements on the websites, and trade, broadcast or banner advertisements, press communications, and any elements, physical or otherwise, designed to promote the the Bank’s Agency program
1.20 “Mobile Phone” means the Agent’s mobile phone number as registered under Simpo Cash Program

1.21 “Identity” means a person’s original Malawian National ID, Driving license or original Passport.

1.22 “Outlet(s)” means the physical address (es) of each place of business from which the Agent may provide the Simpo Cash Services to Customers, which addresses shall be mutually agreed between the Parties.

1.23 “Party” shall mean either Agent or the Bank singularly, and “Parties” shall mean Agent
and the Bank jointly.

1.24 “Prohibited Services” shall mean the items articulated in Schedule C of this Agreement.

1.25 “Trademarks & Trade names” shall include without limitation all the Bank’s associated trademarks and logos which have been assigned to the Services which may only be used by the Agent in accordance with the terms of this Agreement.

1.26 “Transactions” means (as the context requires) receiving cash from Customers, paying out cash sums to Customers or undertaking the purchase or paying for some services such as bills on behalf of the Customer.

1.27 “Transaction Limits” means the cash limits placed on the transactions that may be effected by Agents from specific Outlets as specified in Schedule A hereto.

1.28 “Schedules” means the annexure to this Agreement as updated by the Bank from time to time during the Agreement Period.

1.29 Where used in the Agreement the following abbreviations shall have the following corresponding meanings;

“AML” Anti Money Laundering

“CFT” Combating Financing of Terrorism “KYC” Know Your Customer

 

2. HEAD NOTES

“The head notes to the paragraphs to this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate. In this Agreement, unless the context otherwise requires:-

2.1 The masculine gender shall include the feminine gender and vice versa.

2.2 Both masculine and feminine genders include neuter and vice versa.

2.3 The singular shall include the plural and vice versa.

2.4 Persons include partnerships and body corporate.

2.5 Any negative obligation imposed on the Agent shall be construed as if it were also an obligation not to permit or suffer the act or thing in question and any positive obligation imposed on any party shall be construed as if it were also an obligation to procure the act or thing in question to be done.

2.6 References to this Agreement and any provisions of this Agreement or to any other document or Agreement are to be construed as references to this Agreement, those provisions or that document or Agreement as is in force for the time being and as amended, varied, supplemented, substituted or novated from time to time.

2.7 References to any statute, enactment, order, regulation, or other similar instrument shall be construed as references to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment, modification or statutory extension of any of the above.

 

3. AGREEMENT

It is now agreed between the Parties as follows:

3.1 APPOINTMENT

3.1.1 The Bank appoints the Agent to offer the Authorized Services on behalf of the Bank for the duration of the Agreement Period.

3.1.2 The Agent’s authorized Outlet(s) as may be specified from time to time, are indicated in Schedule A hereto.

3.1.3 The Agent shall designate a particular counter within each outlet for agent banking. The counter shall be manned by a designated authorized Simpo Cash Operator who shall be duly authorized to conduct the operations of the Agency business. The application for authorization shall be done by completing and submitting to the Bank the Agent Application form.

3.1.4 It is understood by the Parties that the Agent shall not hold out itself as an agent or representative of the Bank SAVE as expressly authorized by this Agreement. The Agent will ensure that it conforms to all the laws, rules, regulations, and statutory requirements existing in the Republic of Malawi from time to time.

 

4 THE SERVICES

4.1 The Bank shall specify the Services the Agent is authorized to offer under Schedule B hereto and reserves the right to vary the Services the Agent may offer from time to time in writing.

4.2 The Agent undertakes to the Bank to allow Customers to access the Authorized Services

4.2.1 The Agent shall only provide the Services at the agreed Outlets within any Transaction Limits placed on such Outlets.

4.3 Agent integrity

4.3.1 The Agent shall not, under any circumstances, engage in conduct that may compromise or call into question the integrity or mission of the Bank and its Services.

4.3.2 The Agent shall at all times be completely trustworthy and transparent in its operations, services, communication, and record-keeping.

4.3.3 The Agent shall not be entitled to cede or assign any rights granted herein under any circumstances or engage in conduct that may compromise or call into question the integrity or mission of the Bank and/ or the Services herein.

4.3.4 The Agent shall at all times be completely trustworthy and transparent in its operations, services, communication, and record-keeping with respect to the community’s perception of the Bank and/ or the Services herein.

4.4 Terms of approval of a Transaction

4.4.1 A transaction shall be deemed to be successful once the notification as stipulated in the procedure has been duly received by the Agent.

4.4.2 In the event of a dispute between the Agent and a Customer on whether a transaction was successful or unsuccessful, the Agent shall refer the matter to the Bank. The Bank shall confirm whether the transaction was successful or not and determine the appropriate action.

4.4.3 In the event that any costs or loss is incurred and arises from such disputed transactions as a result of the Agent’s non-compliance with the laid down procedures herein, the Agent shall indemnify the Bank and any other party that shall have suffered such loss as a result of the Agent’s acts or omissions.

4.5 Verification of Customer’s Identity

4.5.1 The Agent shall apply diligence in validating a Customer’s identity and transactions to avoid entering into fraudulent transactions or dealing with fraudsters.

4.5.2 The Agent shall comply with the prescribed customer identification procedures (KYC/AML). These procedures have already been provided to the Agent.

4.6 Record Keeping

The Agent shall keep proper records in relation to their provision of the Services, including the registration particulars of each Customer.

4.7 Transaction Limits

4.7.1 The Agent shall comply with the Cash Transaction Limit with regard to a single Transaction and daily limit as specified by the Bank from time to time and in line with regulatory approvals.

4.7.2 Any Transactions above the allowable Transaction Limit shall be declined systematically.

4.7.3 Where a Customer wishes to transact above the Agent’s specified limit, the Agent shall refer the Customer either to another agent or to the Bank.

4.7.4 The Agent shall not set any Transaction limits other than the specified Agent Transaction limits under the Agreement.

4.8 Agent Prohibited Activities

4.8.1 The Agent shall not engage in any of the following prohibited activities:

4.8.1.1. Commence operations until confirmation of RBM approval has been given to the Bank and communicated to the Agent.

4.8.1.2. Operate when there is a communication failure in the system.

4.8.1.3. Subcontract another entity to carry out Simpo Cash on its behalf.

4.8.1.4. Carry out offline transactions or carry out a transaction when a transactional receipt or acknowledgment cannot be generated.

4.8.1.5. Charge fees directly to the Customers.

4.8.1.6. Carry on business when the Agent’s existing business has ceased, or the turnovers have significantly diminished to the extent that he has no liquidity.

4.8.1.7. Offer any type of guarantee in favour of the Customers.

4.8.1.8. Offer banking or telecommunication services on his own accord (providing on his own account financial/banking services similar to those provided by him under the Simpo Cash Agreement).

4.8.1.9. Provide, render, or hold itself out to be providing or rendering any banking service that is not specifically permitted in the Agreement.

4.8.1.10. Continue with the agency business when he has a criminal record or disciplinary case involving fraud, dishonesty, or any other financial impropriety; or when going through bankruptcy proceedings.

4.8.1.11. Approve any loan on behalf of the Bank.

4.8.1.12. Accept cheque deposits from customers and encash cheques.

4.8.1.13. Transact in foreign currency.

4.8.1.14. Deny any of its approved services to customers on the basis of race, age, religion, gender, or politics.

4.8.1.15. Provide cash advances.

4.8.1.16. Hire an existing Bank employee or associate to run or manage an Agency without prior written consent.

 

5 RIGHTS, OBLIGATIONS AND DUTIES OF THE AGENT

5.1 The Agent shall display the following in a conspicuous location in the Agent’s outlet(s):

5.1.1 The Agent’s code.

5.1.2 A list of the Services offered by the Agent.

5.1.3 A notice to the effect that the Services shall be provided subject to availability of funds.

5.1.4 Notice to the effect that if the electronic system is down, no transaction shall be carried out.

5.1.5 The current license for the commercial activity being undertaken by the Agent.

5.1.6 The tariff guide applicable from time to time and payable to the Bank by the Customers.

5.1.7 Days and hours of operation.

5.1.8 The Bank’s dedicated customer service telephone number.

5.1.9 The appointment letter from the Bank.

5.1.10 Approval by the relevant Council to conduct the business.

5.1.11 The certificate of registration of the Agent.

5.2 The Agent shall comply with all necessary FCB Simpo Cash branding as shall be prescribed by the Bank from time to time including without limitation branding relating to the Services.

5.3 The Agent shall from time to time provide to the Bank such information as the Bank may require for purposes of complying with the regulatory reporting obligations, or any other information that the Bank may reasonably require concerning the activities under this Agreement. The information should be supplied within the requested timelines and in the specified format.

5.4 The Agent shall be required to maintain a transaction record book, being evidence of every transaction undertaken in the specified format or in such manner as shall be required by the Bank. The transaction record book shall be the property of the Bank to be returned to the Bank by the Agent upon termination of the contract or when it is fully completed before issuance of a new transaction record book.

5.5 The Agent shall retain the transaction data for seven (7) years from the transaction date or such period as shall be advised to the Agent from time to time. The record shall contain the following information: –

5.5.1 Date.

5.5.2 Agent ID.

5.5.3 Transaction ID (from the electronic or printed receipt).

5.5.4 Transaction type.

5.5.5 Transaction Value.

5.5.6 Customer name and ID.

5.5.7 Customer’s signature.

5.6 The Agent shall take all reasonable steps to protect the good name and reputation of the Bank and the Services.

5.7 The Agent shall promote the Bank’s products and Authorized Services to help the Bank grow its Simpo Cash Services.

5.8 The Agent shall ensure to have separate contracts with each institution.

5.9 The Agent acknowledges that the Bank has entered into this Agreement on a non-exclusive basis and may from time-to-time contract other Agents for similar services. The Bank also acknowledges that the Agent has entered into this Agreement on a non-exclusive basis and may from time to time contract with other Banks for similar services.

5.10 The Agent shall not directly or indirectly be involved or knowingly, recklessly or negligently permit any other person to be involved in any fraud and shall notify the Bank immediately upon becoming aware of any fraud or suspicious activities.

5.11 The Agent will implement, without delay, and comply with such procedures and rules concerning fraud as shall be advised by the Bank from time to time to protect the integrity of the Bank and the provision of the Services. The Bank affirms its right to withhold Agent payments/commissions pending investigation where fraudulent activity is suspected or confirmed. Such withheld funds will be used to offset fraud-related chargebacks that the Bank may receive from Customers.

5.12 The Agent agrees to hold in confidence this Agreement and all information, documentation, data, and know-how disclosed to it by the Bank and/ or in pursuance of the Service and shall not disclose to any third party or use Confidential Information other than in connection with the performance of this Agreement or any part thereof without the Bank’s prior written consent.

5.13 The Agent shall not use the information obtained from the Customers who subscribe to the Services in any other way other than in furtherance of this Agreement.

5.14 The Agent shall not split a transaction by requiring the customer to undertake numerous transactions in place of a single transaction requested by the customer in order to increase the Agents’ commissions.

5.15 The Agent shall only use the Bank’s Trademarks and Trade names for the purpose of promoting
and providing the Services during the Agreement Period and for no other purpose whatsoever.

5.16 The Agent shall comply with the terms of all Schedules to this Agreement as may be updated from time to time.

 

6 BUSINESS HOURS

6.1 The Agent shall keep the Agency Premises open during the Agent’s formal business hours.

6.2 The Bank reserves the right to terminate the Agent’s contract if the agent fails to keep his premises
open for a month.

6.3 The Agent undertakes to the Bank to allow the Customers to access the Services at all times within the said business hours.

 

7 ANTI-MONEY LAUNDERING (AML) AND COMBATING FINANCING OF TERRORISM

7.1 The Agent shall comply with the Bank’s Know Your Customer (KYC) & Anti-Money Laundering/Combating Financing of Terrorism (AML /CFT) requirements and/or laws or other regulations in force.

7.2 The Agent shall report to the Bank all suspicious activities relating to AML/CFT that have come to
the Agent’s attention.

 

8 AGENT’S WARRANTIES AND UNDERTAKINGS

The Agent warrants and undertakes that:

8.1 The Agent is not currently aware of any claims, and is not currently involved in any litigation, challenging the Agent’s ownership of the business, business/trade name, products, trademarks.

8.2 All intellectual property used by the Agent in connection with its obligations under this Agreement is either owned or properly licensed by the Agent for the uses contemplated hereby and such intellectual property does not infringe the rights of any third parties (except that, as to patents, this representation is given only as to current knowledge).

8.3 The Services to be provided by the Agent shall be performed diligently and professionally in accordance with the Agent’s obligations under this Agreement and to the Bank’s reasonable satisfaction.

8.4 Where the Agent belongs to a separate and distinct agent network offering services similar to the Services in Schedule B, the Agent warrants that it has obtained the necessary authority to offer the services contemplated under this Agreement and that it can separate the business lines of that agent network from the Simpo Cash Services contemplated under this Agreement.

8.5 The Agent’s shareholders, directors and employees possess and shall continue to possess during the subsistence of this Agreement the required moral, business, and professional suitability/qualification as may be required by any existing law and/or guidelines.

8.6 It has the capacity and authority and all necessary licenses, permits, approvals and consents to enter into and to provide the Services under this Agreement.

8.7 It has the requisite power and authority to enter into and perform this Agreement.

8.8 Where the Agent is a body corporate, the execution and delivery of this Agreement, and the performance by the Agent of its obligations under this Agreement, will not result in a breach of any provision of the Memorandum or Articles of Association of the Agent or result in a breach of, or constitute a default under, any Agreement or instrument to which the Agent is a party or by which the Agent is bound.

8.9 It has taken all necessary corporate action to authorize the execution and delivery of this Agreement and all other documents which the Agent is required to execute and deliver under this Agreement

8.10 It is well established, enjoys a good reputation and has the confidence of the populace in the specified outlet.

8.11 It will discharge its obligations under this Agreement with all due skill, care, and diligence including but not limited to good industry practices.

 

9 CONFIDENTIALITY

9.1 The Agent shall maintain similar standards of confidentiality as Bank Customer obligation.

9.2 The Agent shall not disclose details of customers or customer transactions.

9.3 Breach of confidentiality shall be a condition for automatic termination of the Agreement.

9.4 The Agent must not use confidential Information or any other information relevant to the provision of the Services to commit any offence(s).

9.5 The Agent must for its own protection, keep confidential all personal identification or security numbers used for the provision of the Services and ensure that they are not disclosed to any person other than to authorized personnel responsible for the provision of the Services.

9.6 Access to and use of the Bank’s Interface by the Agent’s authorized personnel is subject to the policies and guidelines of acceptable information technology usage as may be published by the Bank.

9.7 The Agent must ensure that the authorized personnel responsible for the operation of the Services only access and provide the authorized services on their behalf in accordance with the terms contained herein and the Agents procedures.

9.8 Each party undertakes not to divulge at any time during the course of or following termination of the Agreement any Confidential Information relating to the Services, business or affairs of the other party to any third party without the written consent of the other party save as is necessary for the proper performance of its duties hereunder or as is required by law.

9.9 Each party may disclose the Confidential Information to its’ authorized employees as may be reasonably necessary or desirable provided that before any such disclosure shall be made such employees are aware of the obligations of confidentiality under the Agreement and shall at all times procure compliance by such employees therewith.

9.10 Without prejudice to any other rights or remedies of the Bank, the Agent acknowledges and agrees that damages would not be an adequate remedy for any breach by it of the provisions of this clause and that the Bank shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of any such provision by the Agent and no proof of special damages shall be necessary for the enforcement of the rights under this clause.

 

10 AGENT’S INDEMNITY

10.1 The Agent shall indemnify, defend and hold the Bank and the Services blameless from and against all claims, actions, suits or other proceedings, and any and all losses, judgments, damages, expenses or other costs (including reasonable counsel fees and disbursements), arising from or in any way relating to:

10.1.1 Any negligent act or omission or willful misconduct, fraudulent activity of the Agent or its directors, officers, employees, assigns in connection with the entry into or performance of this Agreement.

10.1.2 Any actual or alleged violation or inaccuracy of any representation or warranty of the Agent contained herein.

10.1.3 Any actual or alleged infringement of any trademark, copyright, trade name or other proprietary ownership interest resulting from the use by the Bank of the Agent Copyrights and Marks as contemplated by this Agreement.

10.1.4 Any use or disclosure by the Agent of the Shared Customer Data in a manner not in accordance with Applicable Law. The Agent shall not supply Equipment and other materials used for Customers to any other person, which would allow that person to carry out the Services.

 

11. OBLIGATIONS AND RIGHTS OF THE BANK

The Bank shall have the following rights and obligations:

11.1 Supply to the Agent, such equipment and materials including but not limited to branding material, tariff guides, stationery, and other promotional materials as the Bank shall from time to time deem necessary. Equipment and material provided shall remain at all times the property of the Bank, returnable on request or upon the termination of this Agreement.

11.2 Provide the Agent with functionality.

11.3 Provide the Agent with a detailed reconciliation statement on the Agent’s operations at the agent’s request.

11.4 Train the Agent on Agency banking operations upon appointment of the Agent and before commencement of the operations by the Agent.

11.5 Collect, maintain, and be the sole owner of all Customer Data.

11.6 The Bank retains the right, after prior reasonable notice to the Agent, to temporarily or permanently disconnect the Agent at any time if it determines, in its sole discretion that the connection may be used for purposes other than the Bank’s Agency Program, or that the Agent is not complying with the terms of this Agreement.

11.7 To the fullest extent permissible by law, the Bank will not be liable for any costs, loss, liability or damage whether direct, special or consequential, howsoever and when so ever arising after any suspension or termination. Should the Agent Agreement be terminated, the Bank will publish the termination in the local media so that the customers are aware of the termination.

11.8 The Bank shall have the right, at any time during the Agreement Period to inspect the Agent’s business operations and/or outlet to ensure compliance with the terms of this Agreement.

11.9 The Bank reserves the right to change the terms and conditions and charges under which it offers the Authorized Services as a direct result of new legislation, statutory instrument, Government regulations or licenses, rates of exchange, imposition or alteration of government tax or as a result of any review of the Bank’s business planning, changes within the industry, recommendations from regulatory bodies or for such other reason as it may in its sole discretion determine.

11.10 The Bank may at any time and from time to time inspect without notice during the Agent’s normal working hours any of the Agent’s premises for the purposes of ascertaining if the Agent is complying with its obligations under this Agreement and/or for the purposes of detection or prevention of fraud.

11.11 If as a result of such inspection referred to in clause 11.10, the Agent is found in the Bank’s opinion to be conducting or to have conducted its business in any way that falls below the reasonable standard expected of an Agent and/or its representative(s) acting in good faith in the best interests of the Bank and its customers, the Bank may suspend or terminate this Agreement by a seven (7) day’s written notice to the Agent without prejudice to any other right which the Bank may be entitled to.

 

12. BANK WARRANTIES AND UNDERTAKINGS

The Bank warrants and undertakes that:

12.1 All intellectual property used by the Bank in connection with its obligations under this Agreement is either owned or properly licensed by the Bank for the uses contemplated herein and that such intellectual property does not infringe the rights of any third Parties.

12.2 The RBM shall have free, full, unfettered, and timely access to the internal systems, documents, reports, records, staff, and premises of the Agent in so far as the agency banking business is concerned and shall exercise such powers as it may deem necessary.

 

13. BANK INDEMNITY

13.1 The Bank shall indemnify, defend, and hold the Agent blameless from and against all claims, actions, suits, or other proceedings, and any losses, judgments, damages, expenses, or other costs (including reasonable counsel fees and disbursements), arising from or in any way relating to:

13.1.1 Any actual or alleged violation or inaccuracy of any representation, warranty, or obligation of the Bank contained in this Agreement,

13.1.2 Any act or omission of the Bank in the administration of Customers’ Accounts, that constitutes a violation of the Applicable Law or rules and regulations,

13.1.3 Any actual or alleged infringement of any trademark, copyright, trade name or other proprietary ownership interest resulting from the use by the Agent of the Bank Copyrights and the Bank Marks as contemplated by this Agreement,

13.1.4 Any negligent act or omission or willful misconduct of the Bank or its directors, officers, employees, agents or assigns in connection with the entry into or performance of this Agreement.

 

14. FEES AND COMMISSIONS

14.1 Transaction fees chargeable to customers by the Bank for the Services shall be charged in accordance with the tariff guide on fees and commissions as published or provided by the Bank, and as may be changed by the Bank from time to time.

14.2 The Bank shall pay the Agent the commission amount due to the Agent at such interval as shall be determined by the Bank.

14.3 The Bank shall have the right of set off against the Agent’s Bank account for any
amounts owed by the Agent to the Bank.

 

15. SECURITY AND INSURANCE

15.1 The Agent shall be responsible for maintaining such security safeguards to ensure the operating environment is secure as well as to obtain suitable and secure safes, and cabinets as are necessary for the Services offered.

15.2 The Agent will keep in its care the material and equipment entrusted to it by the Bank.

15.3 The Agent will mark or identify the materials as the property of the Bank and shall be responsible for its safekeeping. Such property shall not be liable for seizure by sheriffs or any other person for debts owed by the Agent to third parties. Should the property be seized, the cost of recovering such property shall be paid by the Agent.

15.4 The Bank may from time to time stipulate the minimum-security standards.

15.5 The Agent may take out necessary insurance policies with a reputable insurer to safeguard the premises, equipment in its possession, cash in possession of the Agent and cash in transit against theft, fire, loss, injuries to persons and any other necessary insurance for the business undertaken as the Agent may deem necessary.

15.6 The Bank may from time to time stipulate the minimum insurance policies required and may further request for evidence of the existence of such insurance.

15.7 The Bank shall not be liable for any loss suffered by the Agent arising from insecurity or any other means whether or not the Agent holds valid insurance cover.

15.8 Upon request by the Bank, the Agent shall provide the Bank with all such documentation as is necessary to prove the Agency’s continuing compliance with its obligations to insure under this clause.

 

16. INTELLECTUAL PROPERTY RIGHTS

16.1 The Agent acknowledges that the Bank is the sole and exclusive owner of the FCB Bank Trademark, and the Agent agrees not to question or dispute the validity of the Trademarks or the exclusive ownership by the Bank or dispute the validity of the Trademarks or Trade names of the Services.

16.2 Nothing herein, nor any act or failure to act by the Bank or Agent shall give the Agent any proprietary or ownership interest of any kind in the Trademarks or Trade names in goodwill associated therewith.

16.3 Upon termination or expiration of this Agreement, the Agent shall cease the use or reference to the Bank name, Marks, Images, Copyrights, and hyperlinks in any manner whatsoever, and return to the Bank or otherwise dispose off as directed by the Bank within fourteen (14) days of termination of this Agreement, at its own expense, all Marketing Materials or other publications and promotional materials bearing the Bank’s name, Marks, Images and Copyrights in its possession and in the possession of its agents, employees, and independent contractors.

16.4 The Agent shall take all reasonable measures to protect and maintain the intellectual property rights relating to the Services as shall be disclosed to the Agent and shall display at the Outlets, and on all stationery and literature used by the Agent, in respect of the Services from time to time disclosing to the general public that the Agent is licensed by the Bank to provide the Services. The Agent shall also display at the Outlets such other trade or service marks or copyright notices as the FCB may stipulate from time to time in respect of the Services.

16.5 The Agent agrees that all goodwill accruing Trademarks and Trade names in respect of the Services by virtue of the use thereof by the Agent in accordance with this Agreement shall accrue to the respectful legal owners of the intellectual property rights therein and that the Agent acquires no rights in any of the said Trademarks or Trade names.

16.6 The Agent shall procure that its employees, servants and other authorized users use such Trademarks and Trade names only in accordance with and for the purposes of this Agreement and that they will not use any Trademarks or Trade names or any resemblances thereof or anything so closely resembling them as to be likely to cause confusion.

16.7 The Agent shall promptly notify the Bank of any actual, threatened or suspected infringement, improper or wrongful use of any Trademark or Trade name which comes to the Agent’s notice.

 

17. MARKETING AND PROMOTION

17.1 The Bank shall ensure the supply to the Agent of branding and advertising support materials such as external signage, the Banks posters, and internal point of sale material for the Authorized Services.

17.2 For the avoidance of doubt, materials that have been supplied to the Agent shall not be deemed the property of the Agent and shall be returnable to the Bank upon demand or termination of this Agreement.

17.3 The Agent shall conspicuously display the Bank’s and the branding and logos relating to the Authorized Services as prescribed herein within and outside the Outlets of the Agent and at the counter designated for the Agency program.

17.4 The primary FCB Simpo Cash Operator should also be easily identifiable from any customer or any other person within the Agent’s premises.

17.5 The Agent shall not use any promotional material whatsoever to advertise the Services unless such material is supplied by or approved in writing by the Bank.

 

18. LOYALTY PROGRAM

The Agent shall be notified of any loyalty program or programs to be offered to the Customers or (the “customer Retention Program”) as developed from time-to-time offering incentives to the Customers accessing the Services.

 

19. COMPLIANCE CLAUSES

19.1 FINANCIAL CRIME CLAUSE

The bank is committed to complying with all applicable laws and regulations relating to financial crime including anti-money laundering and counter-terrorism financing (AML/CFT). As a customer of the Bank, the Agent therefore certifies the following:
a) The Agent is the true and lawful owner of all funds and assets that it deposits with the Bank, and that it has obtained the same through legitimate means;

b) The Agent is not engaged in any illegal activities or financing any illegal organisations or individuals, nor will the Agent use its account with the Bank to facilitate any such activities;

c) The Agent will promptly notify the Bank if the Agent becomes aware of any suspicious activity or transaction involving its account;

d) The Agent understands that the Bank may need to obtain additional information from the Bank or take other measures to comply with AML/CFT regulations, and the Agent agrees to cooperate with the Bank in these efforts;

e) The Agent further acknowledges that the Bank reserves the right to freeze, seize or close the Agent’s account without prior notice, in the event of any suspected violation of AML/CFT regulations or any other laws or regulations.

19.2 SANCTIONS CLAUSE

The bank is subject to various international and domestic laws and regulations, including those related to economic sanctions, anti-money laundering and counter-terrorism financing. Therefore, as a customer of the bank, the Agent hereby certifies the following:
a) The Agent is not and will not engage in any transactions or activities that violate any of these laws and regulations;

b) That none of the Agent’s assets, accounts or transactions with the Bank are related to any individual, entity or country that is subject to economic sanctions or other restrictions;

 

c) In the event that the Agent becomes aware of any potential or actual violation of these laws and regulations, the Agent will immediately inform the Bank in writing and provide all necessary information to the Bank to comply with its regulatory obligations;

d) The Agent understands that any violation of these laws and regulations may result in the Bank terminating the Agent’s account(s), reporting the violation to the relevant authorities, and taking any other appropriate actions as required by law.

19.3 ANTI-BRIBERY AND CORRUPTION CLAUSE

The bank is committed to conducting business with integrity and in compliance with all applicable laws and regulations, including those related to bribery and corruption. Therefore, the Bank strictly prohibits any form of bribery, corruption or unethical behavior in its business operations and expects all employees, agents, and business partners to uphold this commitment.
Accordingly, by accepting the terms of this clause, the Agent agrees to:

a) comply with all applicable anti-bribery and corruption laws and regulations, including the Foreign Corrupt Practices Act (FCPA) as well as any other relevant laws in this jurisdiction;

b) not to offer, promise, authorize or give any payment or anything of value to any employee of the Bank for the purpose of obtaining or retaining business or gaining an improper advantage, nor to accept or solicit any such payment or thing of value.
Any breach of this anti-bribery and corruption clause by the other party will be deemed as a material breach of this agreement with the Bank and may result in immediate termination of the relationship and/or legal action, as well as any other remedies available at law or equity.

19.4 GIFTS AND ENTERTAINMENT CLAUSE

The Bank is committed to maintaining the highest standards of ethical conduct in its business relationships. As part of this commitment, the Bank adheres to a strict policy regarding the acceptance of gifts and entertainment.

To ensure that the Agent’s relationship with the Bank is based solely on the merits of its products and services, the Bank requests the Agent to refrain from offering any gifts and entertainment to its employees. While the Bank appreciates the Agents’ goodwill, it must avoid any appearance of impropriety or conflicts of interest that could result from accepting such gestures.
Furthermore, in accordance with industry regulations and the Bank’s internal policies, the Bank’s employees are prohibited from receiving any cash gifts, gifts or entertainment from third parties that could influence or be perceived as influencing business decisions. Nevertheless, any gifts (other than cash gifts) or entertainment given in goodwill and received by the Bank’s employees will be subject to declaration in line with the Bank’s internal policies.

19.5 DATA PROTECTION CLAUSE

The Bank is committed to protecting the privacy and security of the personal information it holds on behalf of its customers, employees, and other individuals. As a customer of the Bank, the Agent therefore certifies that it understands that the Bank collects and processes personal information, such as name, address, telephone number, email address, identification documents, financial information, transactional data, and other relevant information required to perform banking services, for the following purposes:

a) to verify the Agent’s identity and assess the Agent’s creditworthiness and eligibility for banking services;

b) to manage and administer the Agent’s account;

c) to provide Agent with banking services;

d) to comply with legal and regulatory requirements;

e) to prevent and detect fraud and other unlawful activities;

f) to market the bank’s products and services, where permitted by law

 

The agent further certifies that it understands that its personal information will be retained for as long as necessary to fulfill the purposes for which it was collected or as required by law.

The Agent understands that it has the right to request access to its personal information, rectification, erasure, restriction of processing, objection to processing, and data portability, subject to legal and regulatory requirements.
The Agent understands that its personal information may be shared with third-party service providers who process personal information on behalf of the Bank, subject to appropriate contractual and security measures to ensure compliance with applicable data protection laws.
By signing below, the Agent hereby consents to the bank collecting, using, disclosing, and processing of its personal information in accordance with the Data Protection Policy of the Bank and confirms that the information that the Agent has provided is accurate, complete, and up to date.

19.6 FATCA CLAUSE

In Compliance with the Foreign Account Tax Compliance Act, the Bank requires the Agent to undertake to do the following ( if applicable):
a) If the Agent is registered with the US Government for FATCA purposes, the Agent shall inform the Bank of its FATCA status including provision of its Global Intermediary Identification Number (GIIN) and provide the Bank with the relevant documents;

b) If the Agent is not registered with the US Government for FATCA purposes, the Agent shall proactively inform the Bank of its intent or plan to register;

c) The Agent shall not withhold from the Bank any amount that is payable by reason of FATCA.

 

20. TERMINATION

20.1 Without prejudice to any rights of the Parties in respect of any breach of any of the provisions herein contained, this Agreement shall terminate if either of the Parties shall have served on the other in writing Ninety (90) days prior notice of termination and all financial issues and accounts are settled between the Bank and the Agent.

20.2 The Agreement shall terminate forthwith upon occurrence of any of the following events:

20.2.1 If either party becomes bankrupt or insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors or has a liquidator, receiver, administrator, manager, trustee or similar officer appointed over any of its assets or is either compulsory or voluntarily wound up; or

20.2.2 If the Agent ceases or threatens to cease to carry on business for whatever reason or the Agent’s account becomes dormant.

20.2.3 If the Agent breaches any terms of the Agreement as agreed between the Bank and the Agent.

20.2.4 If the Agent violates a provision of the guidelines prohibiting carrying on business.

20.2.5 When the Agent’s commercial activity has ceased.

20.2.6 Where the Agent is guilty of a criminal offence involving fraud, dishonesty or other financial impropriety.

20.2.7 When the Agent sustains a loss or damage (financial or material) to such a degree as to make it impossible in the Bank’s sole discretion for the Agent to gain his financial soundness within one (1) month from the date of the damage or loss.

20.2.8 If the Agent who is a natural person dies or becomes mentally incapacitated.

20.2.9 If the Agent closes its place of Simpo Cash business without prior written consent of the Bank.

20.2.10 If the Agent fails to hold or renew a valid business license or any other documents deemed as necessary for the operation of Simpo Cash business.

20.2.11 If the Reserve Bank of Malawi terminates the Agreement in the exercise of its powers under the Banking Act, Agency Guideline, or any other applicable law.

20.2.12 If in the opinion of the Bank, the Agent does not have the capacity to separate the business lines of each separate agent network from the Services contemplated under this Agreement.

20.3 The rights to terminate this Agreement given by this clause shall be without prejudice to any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.

 

21. Process upon Termination

21.1 Upon termination, expiration or breach of this Agreement, the provisions of this sub-section shall apply and, consistent with the following:

21.1.1 The Agent and the Bank shall work together to ensure an orderly termination and to settle all financial issues and accounts.

21.1.2 The Agent shall promptly return to the Bank any equipment and/or materials that have been supplied by the Bank to the Agent.

21.1.3 Each Party shall promptly reconcile its accounts and pay any monies owed to the other Party.

21.1.4 The Bank reserves the right to advise the public of the termination of the Agent being the Bank’s Agent.

21.1.5 The Agent shall not claim against the Bank for any loss of goodwill or profits.

21.1.6 The clauses on intellectual property, confidentiality and warranties and indemnities shall survive such termination.

21.2 The failure of either party to enforce or to exercise at any time or for any period any term of or any right pursuant to this Agreement shall not be construed as a waiver of any term or right and shall in no way affect that party’s right later to enforce or exercise it.

21.3 This Agreement shall survive termination for purposes of enforcement of any accrued rights of the other party or enforcing any breaches thereof.

 

22. NOTICES/APPROVALS

22.1 All notices and approvals required under this Agreement shall be in writing and shall be deemed delivered to the Agent when sent by either of the following means.

22.1.1 By letter through registered mail to the address provided in the Agreement.

22.1.2 A confirmed fax address.

22.1.3 Short message service (sms) to the number provided by the Agent.

22.1.4 Sent to the e-mail address provided by the Agent

22.2 Notices sent by registered mail shall be deemed to be served three (3) Working Days following the day of posting.

22.3 Notices sent by facsimile, e-mail or short message service shall be deemed to be served on the day of transmission.

22.4 Notice to the Bank shall be in writing and sent by letter and shall be deemed to be delivered when hand delivered to the attention of the Chief Executive Officer, First Capital Bank PLC, Private Bag 122, Chichiri, Blantyre 3, Tel: 0891 001 111, Fax: 01 821 978, Email: info@firstcapitalbank.co.mw.

 

23. SURVIVAL OF PROVISIONS

If any provision of the Agreement, including any part of any sub-clause, be held as void, contrary to the law or unenforceable by any Court, arbitral tribunal or other administrative body of competent jurisdiction, the validity and enforceability of the remainder of the Agreement shall not be affected.

 

24. NON-ASSIGNMENT

This Agreement is personal to the Agent and no assignment of any kind whatsoever shall be permitted but in the event of individuals, the obligations set out in this Agreement shall bind the personal representatives of the Agent and in case of corporate bodies it shall bind its successors and assigns.

 

25. FORCE MAJEURE.

25.1 Neither party will be liable for non-performance hereunder to the extent such performance is prevented by fire, earthquake, tornado, flood, explosion, embargo, war, riot, governmental Regulation or act, act of God, act of public enemy, or by any other related force majeure event.

 

25.2 The party claiming the force majeure event shall promptly notify the other party in writing of its reasons for the delay or stoppage and its likely duration and shall take all reasonable steps to bring that event to a close or to find a solution by which its obligations under the Agreement may be performed.

 

26. LIMITS ON DAMAGES

Neither party shall be entitled to recover special, punitive, incidental nor consequential damages, including damages based on lost profits or lost business opportunities, arising out of a breach of the other party’s obligations hereunder, even if the party in breach has been advised of the possibility of such damages.

 

27. LIMITATION OF AGENCY

27.1 It is understood by the Parties that the Agent shall not hold out itself as an agent or representative of the Bank save as expressly authorized by this Agreement.

27.2 Where applicable law or guidelines require the Bank to be liable for any acts or omissions of the Agent in relation to Simpo Cash business then the Agent hereby undertakes to indemnify and hold harmless the Bank from any claim or liability that the Bank may incur including attorney costs because of the Agent’s breach of the terms and conditions of this Agreement or the guidelines in relation to Simpo Cash Business.

 

28. NO GUARANTEED INCOME

No warranties or representations are made regarding potential revenues that may be earned by the Agent from the provision of the Agent Program Services and no reliance should be placed on any statements or projections provided, whether verbally or in writing in this respect.

 

29. VARIATION

This Agreement shall not be modified except by written amendment duly executed by each party hereto. The Bank, in its discretion, may from time to time revise each Schedule to this Agreement effective upon, or after, written notice of such revision to the Agent.

 

30. NO PARTNERSHIP

30.1 Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture between the Parties hereto or constitute or be deemed to constitute either party the Agent of the other for any purpose other than that specifically stated herein and neither party shall have any authority or power to bind the other or to contract in the name of or create a liability against the other.

30.2 The Agent hereby expressly admits that its employees shall not be treated as employees of the Bank and will not enjoy any of the rights and privileges that belong to the Bank’s employees.

30.3 The Agent further shall not in any manner whatsoever do or express anything that can be construed or interpreted by his employees to imply to them that they are also employees of the Bank and/or that they enjoy any of the rights and privileges that the Bank’s employees enjoy.

30.4 The Agent further agrees to indemnify the Bank from any claims that may arise from current, past, or future employees of it, related to any industrial action that they participate in.

 

31. RIGHT OF SET OFF

The Bank shall have the right at all times to offset any sums owed to it by the Agent under this Agreement.

 

32. DISPUTE RESOLUTION

32.1 Should any dispute, disagreement or claim arise between the parties (called hereafter “the dispute”) concerning this Agreement, the parties shall endeavor to resolve the dispute by negotiation. This entails any one of the parties inviting the other in writing to meet and to attempt to resolve the dispute within fourteen (14) days from the date of written invitation.

32.2 If the dispute has not been resolved by such negotiations within fourteen (14) days of the commencement thereof by Agreement between the parties, either Party shall be entitled to refer, by seven (7) working days’ notice to the other, the dispute for arbitration in accordance with terms of this clause. Subject to the provision of this clause, an arbitration shall be held in accordance with the provisions of the Arbitration Act, Cap 6:03 of the Laws of Malawi, provided that the Arbitrator shall be either;

32.2.1. an independent practicing Banker of not less than ten (10) years standing, where the question in issue is primarily a commercial banking matter;

32.2.2. a practicing legal practitioner of not less than ten (10) years standing, where the question in issue is primarily a legal matter;

32.2.3. in any matter other than as specified in (a) or (b) a suitably qualified person, agreed upon by the Parties and failing such agreement within three (3) days after the date on which the arbitration is demanded, the person shall be nominated by the President of the Malawi Law Society. Either Party shall be at liberty to request the President of the Malawi Law Society to nominate an arbitrator after the expiry of the three (3) days above.

32.3 Immediately after the Arbitrator has been agreed upon or nominated, either Party shall be entitled to call upon the Arbitrator to fix a date and place for the arbitration proceedings. Further the Arbitrator shall be obliged to set the procedure and manner in which the arbitration proceedings will be held.

32.4 The arbitration shall be held expeditiously after it has been demanded with a goal of completing it within thirty (30) days after it has been so demanded.

32.5 Any decision made by the Arbitrator shall be final and binding.

32.6 If the dispute has not been resolved by such arbitration, then any of the parties shall be entitled to refer the dispute to the High Court of Malawi.

 

33. GOVERNING LAW
This Agreement and the relationship of the parties in connection with the subject matter of this Agreement and each other shall be governed and determined in accordance with the laws of Malawi.

 

34. SUBMISSION
The Parties hereby submit to the non-exclusive jurisdiction of the Courts of Malawi.

SIMPO CASH AGREEMENT: SCHEDULE A PERMISSIBLE TRANSACTIONS
1. Cash withdrawal and Cash Deposit.
2. Cardless withdraw.
3. Agent to agent transfers.
4. Civil servant loan application.
5. Loan repayment.
6. Bill Payment.
7. Airtime purchase.
8. Interbank deposits.
9. Interbank encashment using ATM card and smart POS.
10. Push and pull to and from the bank.
11. Voucher redemption.
12. Balance Enquiry.
13. Mini statement.
14. Collection of documents.

 

SCHEDULE B
The Agent shall not carry out the following activities;

1. Carry out an electronic transaction when there is communication failure in the system;

2. Carry out any transaction when the system is unable to generate or produce a transaction (electronic or physical) receipt or a short message service (SMS)

3. Acknowledgement cannot be generated; except where the transaction involved does not require issuance of a receipt, such as a cheque book collection;

4. Charge any fees directly to the customers;

5. Offer any type of guarantee in favor of any institution or customer;

 

6. Offer banking services on its own accord by providing on its own account banking services similar to those provided by it under the agency Agreement;

7. Provide or hold itself out to be rendering banking a banking service which is not specifically permitted in the Agreement;

8. Grant loans or carry out any appraisal function for purposes of opening an account or granting of a loan or any other facility.

9. Undertake cheques deposits of encashment of cheques on its own;

10. Transact in foreign currency;

11. Be run or managed by an institution’s employee or its associate;

12. Subcontract another entity to carry out Simpo Cash or its own behalf.

 

SCHEDULE C:
SIMPO CASH AGENT TRANSACTION LIMITS

Transaction and balance limits for mobile money wallets are subject to change and at the discretion of the bank.

The restrictions herein are not exhaustive.