Preamble

• Whereas “The Bank” is a participant in the Shared Online Network System with electronic fund transfer facility at the various Points of Sale (POS) inside the Sate of Kuwait, and
• Whereas the system enables the bank cardholder to pay to “the Merchant” subscribed in this system, the value of the goods, services or other transactions offered by “the Merchant” by transferring the value thereof from the cardholder’s banking account held with one of the banks subscribing in this system to the Merchant’s banking account held with “the Bank”, and
• Whereas “the Merchant” is willing to utilize this service, both contracting parties agreed upon the following:

Definitions

Meaning of words and expressions:

The following words and expressions – wherever used throughout this agreement or its appendices – shall have the following meanings assigned to them, unless the text requires otherwise:

“The Card” or “The Banking Card”:	It is the card issued by a bank that issues cards from time to time to be used in the Point of Sale transaction affiliated to The Shared Electronic Banking Services Company (K-Net).
“The Card Issuer Bank or the Banking Card Issuer Bank”:	It is the local bank which is a participant in the “Point of Sale” system, in which the “Cardholder” holds an account to be used in transactions of that system.
“The Bank”:	It is Al Ahli Bank of Kuwait, K. S. C. P. (the “First Party” herein).
“Cardholder” or “Banking Card Holder”:	The customer to whom a valid banking card is issued and his/her name appeared printed thereon.
“The Merchant”:	The second party who holds an account with the bank to be used in the transactions related to the Point of Sale System.
“The Merchant’s Establishment” or “The Establishment”:	It is an establishment, firm, headquarters, or branch in which the Merchant practices his business and in which one or more “Point of Sale Devices” is installed.
“The Shared Electronic Banking Services Company Or (K-net)”:	It is a Kuwaiti shareholding closed company, incorporated and managed by 8 local banks under official contract authenticated under No: 5253 of 1990, dated 17/2/1990. It operates the services Network of the “Point of Sale System”.
“The trademark”, “The Trademark of The Shared Electronic Banking Services Company” or “K-net trademark”:	It is the title or the logo of the Shared Electronic Banking Services Company, including any privilege, or license thereof. It is exclusively the sole property of the said company.
“Point of Sale” or “POS”:	It is the electronic system of fund transfer through Points of Sale affiliated to “The Shared Electronic Banking Services Company”. This system is linked with the central computer system for this latter company and “the Bank”.
“Point of Sale System Device”, “Point of Sale Device” or “The Device”	It is the device installed at establishment of the “the Merchant” to be used in accepting “the Banking Card” together with the software and related hardware or instruments.
“POS” System Receipt or “The Receipt”:	It is the receipt that proves the transaction made via “POS” terminal, given by the Merchant to the cardholder when carrying out a purchase transaction, to refund an amount or for carrying out any other transaction that complies with the specifications stated by “The Bank” for “POS transactions”.
“Operating Instructions”:	The instructions issued by “the Bank” to “the merchant” regarding the use and operation of POS system and the amendments thereof from time to time.

Royalty and Use of the Trademark

Royalty of the Trademark:

1. It is agreed that the trademark of the Shared Online Banking Services Network (K-Net) is the property of the Shared Online Banking Services Network Co (K-Net).
2. The merchant – expressly – declares hereby that the ownership of the trademark by the Shared Online Banking Services Network Co (K-Net) is a full, complete, valid and constant ownership and shall not be – under any circumstances – subject to dispute. The merchant shall undertake not to violate any royalty rights regarding this trademark.

Use of the Trademark:

1. The Bank hereby grants the merchant an irrevocable license to use this trademark in the transactions related to the POS System transactions, which are carried out by the merchant in accordance with the Bank's terms and conditions in this respect.
2. The merchant agrees to show this trademark on its POS terminals in conspicuous and clear locations inside his establishment.
3. The merchant shall obtain the Bank's prior written approval of presenting or publishing any materials, means, publicity or promotional subjects that bear the said trademark.
4. The merchant shall not use the trademark in any manner not approved by the bank.
5. The merchant's right to use, present or publish this trademark shall be terminated in case of terminating this agreement for any reason or in case that the Bank notifies the merchant of the expiration of its right in that use, presentation or publicity, whichever is earlier.

Point of Sale Terminals

1. Ownership of the Devices:
1. It is agreed that the “Point of Sale Device” is the property of the Bank.
2. “The Merchant” – expressly – declares that the ownership of the Point of Sale Terminal Device by the Bank is a full, complete, valid and constant ownership, which may not be under any circumstances subject to dispute or allegation that the device is a part of the installations or structures of its establishment. It undertakes not to violate the ownership right mentioned above and in particular the Merchant shall not be entitled to sell, mortgage, assign this POS Terminal Device or make any arrangement with a third party that results in any right in that device. It may not dispose of this device in any manner whatsoever with or without charge. It may not also impose any fees on it.
2. Installation and Maintenance of the Devices:
1. The Bank shall – at its own expense – provide the point of sale device after signing this contract.
2. The Merchant shall – at its own expense – before the appointment agreed upon to install the POS terminal device, provide and prepare all the wiring and connections necessary for power supply, telephone lines and prepare the area suitable for the installation of the device in the location agreed upon at the Merchant’s establishment.
3. The Bank shall install the device in the Merchant’s establishment in accordance with the terms and conditions stipulated for herein and the operating instructions and any other terms and conditions that may be added from time to time. He may authorize a third party to carry out the same and the Bank bears the costs of installation.
4. The merchant shall permit the Bank, its representatives, staff, agents, or contractors to carry out whatever action necessary to verify that the device is installed in the location agreed upon at the Merchant’s establishment.
5. The merchant shall keep the device and refrain from abusing it or let others to abuse it in any manner. The Merchant may not waive the holding of the device or control thereof unless in the cases specified in accordance with the terms and conditions stated herein and as per the operating instructions.
6. The merchant shall not permit anyone other than the Bank, its representatives, staff, agents, or contractors to carry out the maintenance and repair works necessary for the device. It shall immediately inform the Bank in case of any breakdown or malfunction occurred in the device. In such case it refrains from using the device or attempt to carry out any transactions through it.
7. The Bank, after receiving the notice of the breakdown or the malfunction, shall take all the measures necessary to repair or replace the POS terminal if necessary, as soon as possible. It shall have the right to authorize a third party to do the same.
8. The Bank shall bear the maintenance costs and expenses for repairing the breakdown or malfunction unless it is due to a fault or negligence from the Merchant or the employees thereof.
3. Measures to operate POS terminals:
1. In the operation of POS terminals, the Merchant shall comply with the terms and conditions stipulated for herein and in the operating instructions.
2. The Merchant shall operate the POS terminal and use it immediately upon installation. If it does not operate or use the terminal for a period exceeding 30 (thirty) days from the date of supply and installation by the Bank, then the Bank shall have the right to cancel this contract immediately without any notice and without prejudice to the terms and conditions mentioned hereinafter.
3. After completion of each of the POS transactions, the Merchant shall make the POS transaction receipt in Kuwaiti Dinar. The Merchant shall keep the original copy of the receipt during the period of time stated hereinafter. It shall provide a true and correct copy of the same receipt to the cardholder. In case that the Merchant fails to comply with this obligation, it shall bear the responsibility of the transaction made, and the value thereof shall be charged back to his account with the Bank.
4. If the transaction is not honored by the bank, the issuer of the card, or if the cardholder or the Merchant wholly or partially objects to the transaction for any reason whatsoever, the Merchant shall charge back this transaction for the account of the cardholder. It may agree with him to arrange for an alternative method of payment. The Bank shall not be a party in this latter agreement and shall not resume any liability whatsoever.
5. The Merchant shall undertake to honor the banking cards issued by other local banking institutions other than those banks which are members of the K-net, as long as the honor of these cards is made with the agreement of the Bank. For this purpose, the Merchant shall submit a separate application to the Bank to amend this agreement to include the use of the banking cards issued by other local banking institutions. In case of approving the application, the Bank shall take the measures and actions necessary to operate this additional service.

The Accounts

1. Merchant's Account:
1. The merchant shall allocate the banking account held with the Bank to enter the transactions related to the POS system. It shall comply with the Bank's procedures stipulated in the operational instructions. The Merchant – hereby – authorizes the Bank to disclose this account and its details to the official authorities.
2. The Bank shall be entitled – without assuming any liability – to specify or reject all or any of the transactions related to the merchant's account held with the bank, whether they are debit or credit transactions.
3. If the bank's membership in the Shared Online Banking Services Network Co has been cancelled for whatever reason, the merchant – upon receiving a notification from the Bank to that effect – shall specify another bank which is a participant in the POS system that can be linked with it in the execution of the transactions of this system.
4. The Merchant – hereby – authorizes the Bank a final and irrevocable authorization to take whatever banking measures and accounting entries necessary to recover the amounts which were entered in his account by mistake via making reverse entries for such amounts in the Merchant’s account with the Bank.
2. Suspension Account:

During the period of 100 (one hundred) days from the date of expiry of this agreement, the Merchant agrees to be responsible of all the amounts recovered due to the transactions made. Upon the expiration of this agreement, the merchant shall hold a suspension account with sufficient balance to enable the bank to settle any amounts recovered after the expiry of this agreement.

In case that the merchant does not open the suspension account or in case that the balance is not sufficient to settle the recovered amounts, the Merchant shall pay to the Bank – immediately – the value of these amounts as stated in the Bank’s entries, records and account statements. In case of failure to settle these amounts or any part thereof by the merchant, the Bank shall be entitled to charge an interest to be debited from any of the merchant’s accounts held with the bank at the maximum conventional interest rate permitted over 3 months period, without prejudice to the other rights of the Bank stipulated for under the law or this agreement.

3. Account Information:

The merchant agrees that the Bank – without resuming any liability – provides the official authorities with any information, data or documents requested by them and related to the merchant’s account held with it or the suspended account for the POS transactions or any actions or measures related to these accounts and transactions. The bank shall be entitled to provide such information, data, or documents in any lawsuit or claim or dispute arises in respect of the said accounts or transactions.

Fees and Commissions

1. The Merchant shall pay to the Bank the following fees and commissions:
1. A monthly rental for the POS terminal.
2. A monthly commission from the total debit transactions made through POS terminal by using the ATM cards (K-net).
3. A monthly commission from the total credit transactions made through POS terminal by using the credit cards (Visa, MasterCard, Diners Club and American Express).
2. The bank may from time to time amend the above-mentioned fees and commissions. The merchant shall be notified of the new fees and commissions thirty days prior to the date of commencement of the validity thereof. The Merchant may notify the Bank in writing during the said thirty days period of its rejection to the new fees and commissions. Hence, this agreement shall terminate automatically as of the date specified for the commencement of application of the new fees and commissions without prejudice to the rights and obligations of the parties of this agreement during the validity period prior to its expiry.
3. In case that the Merchant nullifies this contract prior to the expiry of its original or renewed period, or in case that the Merchant does not use the POS terminal for consecutive 30 (thirty) days from the date of its installation, the Bank shall have the right to nullify this contract immediately without any notice. The Merchant shall pay to the Bank the rental value for the period remained from this contract.

Declarations and Undertakings

1. Declarations:

The Merchant shall declare the following, in addition to other declarations stated herein:

1. All the data, information, papers and documents provided from him to the First Party, which form the basis of this agreement, are valid, true and real, and that no change has been made to them until the date of signing this agreement, and that it did not conceal any of such details, information, papers or documents, that may affect the conclusion of this agreement.
2. That it completes any measures that may be required, whether under the law or under any undertakings from him towards a third party, or others, to enable it to conclude this agreement and fulfill its obligations stipulated by it.
3. The conclusion of this agreement shall result in obligations that are legally valid, obligatory, effective and executable according to the terms and conditions thereof. This agreement does not violate the requirements of any other agreement, undertaking or document that from an obligation on him.
4. Any grace period or extension from the Bank for any of the dates during which the Merchant has to fulfill its obligations, shall not be a waiver from the bank for its rights resulted under this agreement, or a waiver of its right that the merchant has to fulfill his obligations as mentioned above.
5. The bank’s books, records, and statements shall be a decisive evident of the amounts or obligations due from the Merchant under this agreement. The latter may not object to the validity thereof in any manner.
6. It – solely – will be held fully responsible for any damages, claims, costs, or compensations incurred by the Bank at any time due to any error or fault committed by the merchant, its representatives, employees, agents, or contractors in respect of the transactions made through the point of sale system. It also – solely – bears the full responsibility of any damage that affect the POS device or any part thereof, any hardware, instruments or connections related to it due to the Merchant’s violation of the operating instructions the negligence of the Merchant, its representatives, staff, agents or contractors.
7. To discharge the Bank from any liability whatsoever of damages, direct or indirect losses, lawsuits, claims, costs or expenses that may be incurred by the Merchant due to a fault or interruption in the Bank’s mainframe computer or in the main frame computer system of the Shared Electronic Banking Services Company, or any breakdown occurred in the POS terminal device or inability of this device to connect with the electronic system of funds transfer.
2. Undertakings:

The merchant shall undertake to carry out the following – in addition to its other undertakings and obligations mentioned herein:

1. Provide the merchant’s goods or services to the cardholder who is carrying out the purchase transaction under POS system at the sale prices in cash offered by the Merchant with the discounts granted by the Merchant without any increase in the cash sale price or charging any commission or deposit from the cardholder for this transaction.
2. Verify that the POS terminal device is used by its authorized staff only and that such usage complies with the terms of this agreement and the operating instructions. It shall refrain from effecting any amendment, deletion, or addition to that terminal device, its software, hardware, instruments or wiring connected to it.
3. Use the advertising or promotional equipment, or media provided or approved by the Bank.
4. Regularly compares and deposits the electronic POS transactions receipts within one working day as a maximum – in respect of the Merchant – after the date of each transaction, and to send a balance report to the Bank on daily basis.
5. Keep all the receipts of each transaction made through the POS system for two years from the date of the transaction. It shall provide the Bank with the documents required within 5 banking days as of the date of notifying the Bank thereof. In case that the Merchant fails to comply with this obligation, the Bank shall be entitled to charge it with the value of the transaction and debit it from its account held with it.
6. Permit the Bank, its representatives, staff, agents, and contractors to access the Merchant’s establishment at any time appropriate to install, examine, repair, renew, maintain, remove, or control any of the POS terminal devices or any hardware, instruments or wiring connected to it. The Merchant undertakes to provide all the facilities necessary to perform the above-mentioned works or any other works deemed necessary by the bank. In call cases, the Merchant shall not be entitled to carry out by itself any of such works even if the location of its establishments change. It shall request the Bank in case of changing its location, to move the POS terminal device from the old site and re-install it in the new site during the appropriate period of time as estimated by the Bank. The Merchant shall bear all the costs and expenses necessary.
7. Refrain from providing any guarantees for the goods or services provided by the Merchant which may result in any obligation or responsibility to be borne by the Bank in any manner whatsoever.
8. Refrain from mortgaging any transaction of the POS system for obtaining or providing a cash advance. The Merchant agrees that such mortgage shall be a direct reason to cancel this agreement.
9. Refrain from entering in any other agreements related to the POS services with another bank participating in this system to provide these services to the same Merchant’s establishment as specified in this agreement.

Duration of the Agreement

1. This agreement shall be effective from the date of signing it by the two parties and shall remain valid for an initial period of two years. It shall be automatically renewable for another period / periods of one year each unless either party notifies the other of its desire not to renew it ninety days prior to the expiry date of the initial or renewed period.
   
   However, the Bank shall have the right at any time – during the validity of this agreement – to notify the Merchant of termination of this agreement in any of the following cases:
1. If the merchant violates any of the terms and conditions stipulated for in this agreement or if it proves that any of its declarations or undertakings mentioned herein is false.
2. If the Merchant ceases fulfilling its obligations or practicing its business in general or if it changes its activity, proceeds with merging with a third party, being subject to any action of bankruptcy, insolvency, or a court judgment being passed against it, or if there is a precautionary or executive attachments being made against it.
3. If the Bank ceases the operation of the POS system for any reason whatsoever.
2. In case of expiry of this agreement or cancellation thereof for any reason whatsoever, the Merchant shall undertake and shall in particular:
1. Return to the Bank all the materials, equipment, instruments, books and records of the POS system.
2. Refrain immediately from using or presenting the trademark of the Shared Electronic Banking Services Company.
3. Enable the Bank to disconnect the POS terminal device(s) and any equipment or instruments connected to it and to deliver them to the Bank in the same conditions during the commencement of this agreement.
4. Hold a suspension account with the Bank to settle the recovered amounts in accordance with the terms stipulated for in Article (5) herein.

Overlooking the practice of rights

The non-use or delay in the use of any right, or authorities granted to the Bank under this agreement shall not be a waiver thereof or a waiver of right to use it. Furthermore, the use of any of such rights or authorities shall prevent the dropping thereof and use of others authorized to it under this agreement, and that such rights or authorities are collective and not preventing any of other rights or authorities authorized by law.

Selected Address

The Merchant declares that the address mentioned below is to be its selected in all matters related to this agreement, or resulted from the application thereof such as disputes, court cases filed before all types and levels of litigation and for the compulsory executive measures. All the correspondence, account statements, legal and court notices addressed from the Bank to it at this address shall be valid and legally effective.

The selected address of the Merchant

The selected address of the Merchant is the legal selected address to serve any official notices and correspondences in all matters related to this agreement and execution thereof. Any change to this selected address shall not be valid and effective unless after the date of receipt of notice of such change by the First Party under a registered mail with acknowledgement of receipt.

Applicable Law and the Court Jurisprudence

This agreement shall be subject to the laws applicable in the State of Kuwait. The Courts of the Capital (Al-Asema) shall settle any disputes resulted from the execution of this agreement.