Terms and Conditions
This Service Agreement ("Agreement") is made at Vijayawada on 11th Day of August, 2018 ("Effective Date") by and between: Indus IT Valley Designs, a sole proprietorship, having its registered office at 107 Garuda Crest Apartments,Eluru Rd, Vijayawada, Andhra Pradesh — 520008 (hereinafter referred to as “Merchant". which expression shall, unless repugnant to the context thereof, include its successors-in-interest and permitted assigns): ANDWHEREAS:
- A. Charge4u provides inter alia aggregate payment gateway solutions ("Charge4u Services") to various businesses/organizations selling goods and services or collecting money for a specified purpose, over the internet. Charge4u has developed a software application ("Software Application") and hosting Charge4u Sites by way of which Charge4u provides a single payment gateway solution to such businesses/organizations and facilitates them in accepting online payments initiated by their customers on their website or mobile application directed to the Charge4u Site or through Charge4u's IVR System, using credit/debit cards, net banking and various other acceptable modes of Payment Mechanism options provided by Charge4u.
- B. The Merchant is desirous of availing Charge4u Services in order to accept payments of Customer Charge through the internet and/or through IVR System from Customers, for Products purchased by them on the Merchant Site and receive aggregate final payment of Settlement Amounts in the Merchant Bank Account.
- C. Charge4u has agreed to provide the Charge4u Services and Merchant has agreed to obtain the same on terms and conditions hereinafter contained in this Agreement.
- 1. DEFINITIONS AND INTERPRETATION: 1.1 In this Agreement, except where the context otherwise requires, the following words and expressions shall have the following meanings.
- (a) "Acquiring Banks" shall mean various banks, financial institutions, Card Associations, payment system providers who are defined and licensed under the Payment and Settlement Systems Art 2007 and other software providers who are in the business of providing information technology services, including but not limited to. Internet based electronic commerce. Internet payment electronic software distribution services.
- Acquiring Bank Services" shall mean the payment gateway system and services provided by the Acquiring Banks such as to (I) route internet based Valid Card transactions: (ii) offer various facilities through the internet, including Net Banking facilities: (iii) provide Authentication and Authorization from Card Associations or other third party clearing houses: and (iv) provide settlement facilities in respect of payment instructions initiated by the customers.
- (c) "Agreement" shall mean this Service Agreement, all schedules, appendices, Annexures and exhibits attached to it or incorporated in it by reference.
- (d) “Annual Maintenance Charge" shall mean the charges set out in Part I of Schedule 'A' (Consideration).
- (e) "Authentication" shall mean the process by which the Customer's identification is authenticated by the Acquiring Banks.
- (f) “Authorization" shall mean the process by which the Issuing Institution and/or the relevant Card Association electronically or otherwise convey the approval of the charge (i.e. if the Customer has a Valid Card and/or the required credit limit/ debit limit to pay the Customer Charge requested) on a Transaction being undertaken by a Customer on the Merchant Site.
- (g) "Business Days” shall mean any day on which Acquiring Banks are open for business in India, other than Saturday. Sunday and any days declared by Charge4u India and/or Acquiring Bank as a Holidays
- (h) "Card Association(s)" shall mean any of Visa, MasterCard. Visa Electron. Maestro. Diners. American Express or any other card association as may be specified by Charge4u front time to time.
- (i) "Card Association Rules" shall mean the written rules, regulations, releases, guidelines, processes, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Card Association.
- (j) "Chargeback" shall mean the approved and settled card or net banking Transactions which are at any time refused. debited or reversed from the Merchant Bank Account or from the Merchant's Settlement Amount in the Nodal Account (shall also include similar debits to Charge4u bank accounts, if any) by the Acquiring Bank for any reason whatsoever, together with the bank tees, penalties and other charges incidental thereto.
- (k) "Completion of Transaction" shall mean Charge4u Completion of Transaction and/or Charge4uMoney completion of transaction depending upon the Charge4u Services Product opted there or if Charge4u demands Proof or Delivery.
- (l) “Confidential Information" shall mean any and all written, oral or other tangible or intangible form of information. Discoveries, ideas, concepts, know-how (whether patentable or copyrightable or not), research, development, designs, drawings, blueprints, diagrams, models, samples, flow charts. Data, computer programs, disks, diskettes, tapes, algorithms, software programs, marketing plans or techniques. Technical, financial. or business information" trade secrets which includes but is not restricted to any portion or scientific or technical or proprietary information, design, process, procedure, formula or improvement which is not generally available to the public as delivered by either Party ("Disclosing Party" to the other Party ("Receiving Party") within the framework or this Agreement or resulting there from. Provided that confidential information disclosed orally or those produced by electronic media or through any other intangible means shall be deemed confidential if it is identified as being confidential if it is reduced in writing within (30) thirty days of the date of disclosure. Such writing shall specify the date, time, place. persons involved and the substance of the confidential information so disclosed.
- (m) "Customer" shall mean an individual or legal entity, who/which purchases Products, offered by the Merchant on the Merchant's Website or Mobile Application or through IVR System directed to the Internet Payment Gateway using a Valid Card or Net Banking account or any other acceptable modes of Payment Mechanism, provided by Charge4u.
- (n) "Customer Bank Account" shall mean a bank account or credit/ prepaid/ cash card account of the Customer with Issuing Institution.
- (o) “Customer Charge" shall mean the sale price of the Products purchased by the Customer plus the shipping charge (if an) ) and all other taxes, duties, costs, charges and expenses in respect of the Products/payment that are to be paid by the Customer.
- (p) “Delivery" shall mean ( I ) in respect of a good, delivery of the good by a courier /parcel service appointed by the Merchant or its vendors, to the Customer within Delivery Due Date at the address specified by the Customer in this behalf: or (ii) in respect of a service, delivery or performance of provisions of service within the Delivery Due Date.
- (q) “Delivery Due Date" shall mean the date/period displayed on the Website or otherwise notify to the Customer on or before which the Merchant shall deliver the Products to the Customer(s).
- (r) ”Internet Payment Gateway" shall have the meaning ascribed to it in Clause 3.3.
- (s) "Issuing Institution" shall mean a bank or financial institution or other legal entity. with which the Customer has an Net Banking account and/or which has issued the Valid Card to the Customers (explanation: except for debit card or credit card Transactions_ the Issuing Institution of the Customer and the respective Acquiring Bank will be the same).
- (t) "Merchant Charge4u Account" shall mean the merchant account maintained with Charge4u in order to provide the Charge4u Services to the Merchant.
- (u) "Merchant Bank Account" shall mean the bank account, maintained by Merchant which it nominates for settlement Of its Settlement Amount and the details of which are provide in Part II of Schedule A (Consideration).
- (v) “Merchant Site" shall mean the website bearing the domain name www.charge4u.in and/or the mobile application, the contents of which are controlled, operated and owned by the Merchant and established for the purposes of enabling the Customers to view Products and carry out Transactions for purchase of Products, offered on the website or mobile application: and/or the 1VR System hosted by Payt1 for the Merchant through which the Customer can make payments for Products purchased from the Merchant.
- (w) "Net Banking Account" shall mean the facility and internet account provided by the Issuing Institution to Customers holding a bank account or digital wallet account with the Issuing Institutions specified by Charge4u from time to time. Provided that the bank account is not listed in current warning or restricted bank account bulletins or notices.
- (x) "Nodal Account" shall mean an inoperative account held by Charge4u with any of the banks for the purpose of pooling the monies collected from Customers on behalf of the Merchant and facilitating the transfer of these funds in final settlement to the Merchant (after deducting TDR), pursuant to R131 notification DPSS.CO.PD.No.1102/ 02.14.08/2009-10, dated 24/11/2009 or an. other RBI notifications/guidelines amended from time to time.
- (y) "Nodal Bank" shall mean the bank(s) designated by Charge4u for the purpose of pooling the funds collected from Customers on behalf of the Merchant and facilitating the transfer of these funds in final settlement to the Merchant (after deducting TDR). Pursuant to RBI notification DPSS.CO.PD.No.1102/ 02.14.08/2009-10, dated 24/11/2009 or any other RBI notifications/guidelines amended from time to time.
- (z) "One Click Checkout" shall mean the facility provided to the Customers to save its Valid Card details on the Charge4u server to purchase the Products from the Merchant Site with a single click.
- (aa) "Outstanding Amount" shall mean the amount payable by the Merchant to Charge4u. Acquiring Banks and or Customers for any losses costs, damages, penalties. Chargeback's, refund overdraft or credit problems suffered or incurred by the Customers. Charge4u and or Acquiring Banks any fees and other payments owed to Charge4u by the Merchant: and any claims or proceedings filed against Charge4u and/or Acquiring Banks by the Customers or any third Party.
- (bb) "Payment Mechanism" shall mean the mechanism of making payment by utilizing the interne facilities of various Acquiring Banks. Card Associations, card payment systems and through such other modes and mechanisms of payment and delivery as may be notified by Charge4u from time to time.
- "Charge4u Services” shall have the meaning ascribed to it in Recital A provided through Charge4u Services Products.
- "Charge4u Services Product" shall mean the Charge4u and/or Charge4u Money product by means of which Charge4u provides Charge4u Services. The Merchant will be provided with the Pay1.1 Services Product opted for in Schedule B.
- (ee) "Charge4u Site" shall mean the websites provided by Charge4u Payments Private Limited (i.e. secure.Charge4u.in and/or Charge4umoney.com
- (ff) depending upon the Charge4u Services Product opted for by the Merchant and as mentioned in Schedule B of this Agreement) by means of which Charge4u provides aggregative Internet Payment Gateway services/ Charge4u Services to the Merchant and the Customers.(e.g.) "Products" shall mean goods and/or services offered for sale by the Merchant on the Merchant Site.
- (gg) 'Proof of Delivery" shall mean sufficient legitimate records evidencing Delivery of the Product to the Customer (i.e. Courier Company's delivery confirmation and delivery confirmation by the Customer).
- (hh) "RBI" shall mean the Reserve Bank of India.
- (ii) "Reserve" shall mean the interest free, refundable funds provided and replenished by the Merchant to Charge4u from time to time.
- (jj) "Settlement Amount” shall mean Customer Charge minus the TDR and any other charges/fees payable by the Merchant to Charge4u under this Agreement.
- (kk) "Software Application" shall have the meaning ascribed to it in Recital A.
- (ll) "Transaction" shall mean every payments request/order placed by the Customer on the Merchant Site for purchasing Products from the Merchant.
- (mm) "Transaction Discount Rate" or -"TDR" shall mean the rates as specified in Part I of Schedule A.
- (nn) "Valid Card" shall mean any unexpired credit card or debit card which is issued by an Issuing Institution designated to issue a Visa. MasterCard. Visa Electron or a Maestro or cash card, pre-paid card or other card as may be specified by Charge4u from time to time. Provided that the card is not listed in current warning or restricted card bulletins or notices and bears the signature of the person in whose name the card is issued.
- a) Except where the context requires otherwise, references to Clauses. Schedules and Annexures are to Clauses of. Schedules to and Annexures to this Agreement
- b) Words denoting the singular number include the plural number and vice versa, words denoting the masculine gender include the feminine gender and words denoting persons include companies.
- c) Headings are inserted for convenience only and shall not affect the construction of this Agreement.
- d) In case of any ambiguity or discrepancy between the Clauses and the Annexures to this Agreement, the Clauses shall prevail. Any reference to any agreement, deed, instrument, license, code or other document of any description shall be construed. at the particular time, as a reference to that agreement, deed, instrument, license code or other document as the same may then have been amended, varied, supplemented modified, suspended or negated.
- 2 TERM 2.1 This Agreement shall be in force from Effective Date and shall remain in force until terminated by either Party in accordance with the provisions of this Agreement. SCOPE OF CHARGE4U SERVICES
- Charge4u has developed a Software Application and established Charge4u Sites.
- The Merchant has established Merchant Site to sell the Products and/or collect payments online from the Customers.
- Charge4u will act as an intermediary by creating a link between the Merchant Site and the respective Acquiring Banks by means of the Software Application and Charge4u Site, for enabling the Customers to make payment of Customer Charge on the Merchant Site for Transactions carried through the Payment Mechanisms using Acquiring Bank's Services. ("Internet Payment Gateway").
- In order to serve in this role. Charge4u has entered into agreements with various Acquiring Banks to enable use of Internet payment gateways/Payment Mechanisms developed by them and process payments using Acquiring Bank Services.
- Once the payment instruction is Authenticated and Authorized by the respective Acquiring Bank in respect of a Transaction. The Acquiring Bank will transfer such approved Customer Charge from the Customer Bank Account to the Nodal Account.
- The Merchant hereby directs and authorizes Charge4u to receive, hold, disburse and settle the Customer Charge in accordance with and subject to the provisions of this Agreement.
- Except as provided in this Agreement and Schedules hereto, no right is granted to the Merchant or to any third party.
- The Merchant shall disclose the exact business category/business sub-category for which the Merchant will be using the Charge4u Services in Schedule B of this Agreement and shall only avail the Charge4u Services through its designated Merchant Site. In order to use the Charge4u Services for any other purpose, the Merchant understands and acknowledges that it shall notify Charge4u in writing of such change and such change will be subject to approval by Charge4u.
- The Merchant understands that in order to avail the Charge4u Services and Acquiring Bank Services, the Merchant must be approved by and registered with Charge4u, the Acquiring Banks and Nodal Bank. Any undertaking with respect to the Charge4u Services under this Agreement shall be subject to Charge4u's, the Acquiring Banks" and Nodal Bank's approval and completion of the registration process. The Merchant shall provide Charge4u with all such documents as required by Charge4u to register the Merchant with Charge4u, the Acquiring Banks and Nodal Bank. The Merchant further understands and acknowledges that Charge4u, the Acquiring Banks and Nodal Bank have the right to withdraw their approval/consent at any time prior to or after commencement of the Charge4u Services.
- Both Parties shall work together to link the Software Application with the Merchant Site software, for the purpose of connecting the Merchant Site with the Internet Payment Gateway as exemplified in Clause 3 above. The Merchant agrees to be responsible at its own costs and for providing and maintaining all necessary equipment, software and facilities at its end so as to connect the Merchant Site software to the Software Application. Each Party shall cooperate with the other Party and render assistance to it for connecting the respective software systems of the Parties.
- For security during transmission of data in the course of providing services to the Customers. both Parties shall mutually work upon developing and implementing various mechanisms.
- The Merchant shall take all such precautions and measures as may be directed by Charge4u to ensure that there is no breach of security and the integrity of the link between the Merchant Site and the Internet Payment Gateway ( "Hotlink" ) is maintained. The Merchant shall ensure that all Customers upon accessing, the Hotlink are properly directed to the Internet Payment Gateway. The Merchant shall ensure that there are proper encryption and robust security measures to prevent any hacking into the information of the Customers and other data. In addition to the above, the Merchant shall also comply with security practices and procedures as prescribed in the Information Technology Act, 2000 and the rules made there under and/or the RBI rules and Regulations. Any loss incurred to the Merchant. Charge4u or the Acquiring Bank as a result of the Hotlink being breached due to improper security on the part of the Merchant. its employees, contractors, agents, etc and/or on the Merchant Site, shall be borne solely by the Merchant and the Merchant agrees to indemnify, defend and hold harmless Charge4u and the Acquiring Banks from any claims, actions, damages or losses arising out or in relation thereto.
- Without prejudice to the generality of the aforesaid. Merchant shall routinely and at such time intervals as may be specified by
- Charge4u and/or the Acquiring Banks check the integrity of the Hotlink and provide such reports ("MIS") as may be required by Charge4u and/or Acquiring Banks from time to time.
- The Acquiring Bank will authenticate, authorize, and process the payment instructions given by the Customers on the Merchant Site in respect of the Transactions upon fulfillment of valid criteria as set forth by the Acquiring Banks and the Card Associations from time to time and accordingly transfer such approved Customer Charge from the Customer Bank Account to the Nodal Account.
- The Merchant understands that Charge4u, Acquiring Banks and/or Card Association may reject authorization of Transaction placed by the Customer for any reason including but not limited to risk management, suspicion of fraudulent, illegal or doubtful Transactions, selling of banned items, use of compromised Valid Cards. use of blacklisted/banned cards or in accordance with the RBI. Acquiring Banks, Issuing Institution and/or Card Association rules, guidelines, regulations, etc., and any other laws, rules, regulations, guidelines in force in India, etc.
- The Merchant acknowledges that as a risk management tool. Charge4u and/or the Acquiring Banks reserve the right to limit or restrict transaction size, amount and/or monthly volume at any time. For the purpose of clarity such limitations or restrictions may be imposed for the following reasons including but not limited to limits/restrictions on the number of purchases which may be charged on an individual Valid Card or net banking account during any time period, rejection of Payment in respect of Customer Orders from Customers with a prior history of questionable charges, unusual monetary value of Transaction, etc. Further, as a security measure. Charge4u may at its sole discretion block any card number, account numbers, group of cards or Transactions from any specific blocked or blacklisted customer cards, accounts, specific group of IP addresses, devices. geographic locations and / or any such risk mitigation measures it wishes to undertake.
- In consideration for Charge4u Services, the Merchant agrees to pay Charge4u, Transaction Discount Rate as detailed Part I of Schedule A. The TDR shall be deducted by Charge4u from the Customer Charge payable to the Merchant in respect of each completed Transaction. Charge4u reserves the right to revise the TDR periodically, and Charge4u will intimate the Merchant of any such change within reasonable time.
- The Merchant shall also pay to Charge4u (I) a non-refundable one time set up fee, and (ii) Annual Maintenance Charge payable in advance every year as detailed in Part I of Schedule A. Charge4u shall have a right to deduct such set-up fee and Annual Maintenance Charges from the Settlement Amount payable to the Merchant.
- Subject to any other Clause of this Agreement, Charge4u shall endeavor to instruct the Nodal Bank to transmit the Settlement Amount from the Nodal Account to the Merchant's Bank Account within the time period prescribed by RBI commencing from date of Completion of Transaction.
- In the event that the Merchant opts for Charge4u Services using Charge4u Services Product: Charge4u (as mentioned in Schedule B), the Merchant understand that the Transaction shall be completed only upon receipt of the Customer Charge in the Nodal Account from the Acquiring Banks and reconciliation of the same by the Acquiring Banks. Charge4u and the Nodal Bank ("Charge4u Completion of Transaction-)
- In the event that the Merchant opts for Pay U Services using Charge4u Services Product: Charge4uMoney (as mentioned in Schedule B) or Charge4udemands Proof of Delivery for any Transaction(s) the Merchant understands that the Transaction shall be completed only upon submission of Proof of Delivery (in the manner prescribed by Charge4u) by the Merchant to Charge4u and the confirmation of the same by the respective Customer. In the event that the Customer does not confirm delivery within 3 (three) days from the date on which the Merchant provides Proof of Delivery. it shall be considered as deemed confirmation and the Transaction shall be deemed to be completed. (“Charge4uMoney Completion of Transaction")
- The Merchant further acknowledges that transmission of the Settlement Amount to the Merchant Bank Account shall be subject to reconciliation of the Customer Charge by the Acquiring Banks, Charge4u and the Nodal Bank after actual receipt of Customer Charge in the Nodal Account.
- The Merchant hereby agrees that all payments with respect to refunds and Chargeback's shall be the sole responsibility of the Merchant andCharge4u shall not be liable for any claims. Disputes, penalties which may arise in connection with such refunds or Chargeback's to the Merchant or the Customer. The Merchant agrees to indemnify Charge4u in respect of any claims, disputes, penalties, costs and expenses arising directly or indirectly in relation to refunds or Chargeback's for all Transactions, initiated and instructed through the Merchant Site.
- Notwithstanding anything contained anywhere in this Agreement, the Merchant hereby fully confirms and agrees that Charge4u, Acquiring Bank and Nodal Bank reserve the right to reject payments with respect to any Customer Charge for reasons including but not limited to unlawful, unenforceable, doubtful or erroneous Transaction. Chargeback, refund, fraud, suspicious activities, card Authentication and Authorization issues, overpayment made due to mathematical errors or otherwise, penalties incurred, Transaction related issues, issues related to Delivery, Customer Charge or Product if the Transaction was not made in accordance with the requirements of Charge4u and/or the Acquiring Banks and/or Card Association.
- In the event of rejection of payment with respect to Customer Charge. Chargeback, refunds or other Outstanding Amounts due to Charge4u.Acquiring Bank and/or the Customer by the Merchant. Charge4u and/or the Acquiring Bank reserve the right to reverse the credit given to the Merchant Bank Account or set-off the payment amount rejected. Chargeback or refunded or the Outstanding Amount against Settlement Amount payable to the Merchant. Charge4u and/or Acquiring Banks may also deduct the payment amount due from future Settlement Amounts payable to the Merchant with respect to subsequent Transactions.
- If Charge4u and/or the Acquiring Banks determine that the Merchant is incurring an excessive amount of Chargeback's, Charge4u may establish controls or conditions governing the Transactions contemplated under this Agreement, including without limitation, by (a) establishing new processing fees. (b) by requesting a Reserve in an amount reasonably determined by Charge4u to cover anticipated Chargeback's. (c) Delaying payouts, and (d) terminating or suspending the Charge4u Services.
- All Settlement Amount due to the Merchant tinder this Agreement may be suspended or delayed till such time as Charge4u, the Acquiring Banks and/or nodal bank deems fit. if (a) the Merchant or its Customer or a third party commits any fraud or violates any law or legal requirement: (b) Charge4u and/or the Acquiring Banks have reasons to believe that a fraud has been committed against the Customers, Charge4u, Acquiring Banks or any third party by the Merchant, its Customers, or any other third party: or has reason to believe that the Merchant or the Customer has in connivance with any other person done any fraud or assisted in the same; or any transaction has been fraudulently initiated; (e) the Merchant has excessive pending Chargeback's or poses high Chargeback and/or refund Risk: (d) continuous non-delivery or delayed delivery of Products to Customers; or (e) for any other reasonable reasons.
- The Merchant agrees to provide Charge4u with Reserve of such amounts as may be requested by Charge4u from time to time to secure the performance of the Merchant's obligations under this Agreement for reason, including without limitation, high Chargeback risk. credit risk, refund overdraft risk, non-delivery issues, selling of banned items, non-payment of maintenance fees or other amount payable to Charge4u or any other indications of performance problems related to Merchant's use of the Charge4u Services. If the Merchant fails to provide Charge4u with Reserve within seven (7) days of receipt of notice for the same. Charge4u reserves the right to suspend and/or terminate the Settlement Amount payable to the Merchant or the Charge4u Services without further notice. Charge4u may use this Reserve to set-off including but not any Outstanding Amounts payable by the Merchant to Charge4u. Acquiring Banks and/or Customers.
- In case the Settlement Amount payable to the Merchant and/or the Reserve (if any) is not sufficient to cover the Merchant's Outstanding Amount, then the Merchant shall pay Charge4u and/or the Acquiring Banks the remaining amount due immediately upon request. Charge4u shall be entitled to charge daily interest on such Outstanding Amount from the date of request until the date of payment in full, at the rate of 1.5% per month. Provided that the above right of Charge4u to appropriate the Reserve and set-off the Outstanding Amount in the above manner shall be in addition to and reserving fully the right of Charge4u to recover all such losses, costs and damages etc from Merchant by any other means, which may be available to Charge4u under the law. In addition. Merchant agree to pay all costs and expenses, including without limitation attorneys' fees and other legal expenses, incurred .by or on behalf of us in connection with the outstanding amount and the collection of same from the Merchant.
- The Merchant shall dispatch/render the Products to the Customer only upon transaction confirmation from Charge4u to the Merchant; The Merchant acknowledges that Charge4u shall give confirmation only upon receipt of transaction confirmation in respect of the Transaction from the Acquiring Bank. Charge4u shall not be responsible for any Transactions that have not been confirmed with Charge4u by the Acquiring Banks,
- The Merchant shall ensure that it maintains Proof of Delivery with respect to each Transaction initiated through the Merchant Site for a period of at least one (1) year from the date of Delivery. Proof of Delivery shall be open for inspection by Charge4u, and/or the Acquiring Banks at all times during working hours on Business Days. Notwithstanding any other Clause of' this Agreement, the Merchant understands that Charge4u and/or the Acquiring Bank and/or Nodal Bank reserve the right to call for Proof of Delivery, at any time, before and/or after settlement of Settlement Amount to the Merchant's Bank Account with respect to any Transaction. Charge4u and/or the Acquiring Banks have the right to reverse Customer Charge amount to the Customers and/or reject the Customer Charge to Merchant, if Proof' of Delivery is not provided in accordance to this Agreement.
- The Merchant shall deliver the Product within the Delivery Due Dates specified at the time of making the transaction on the Merchant Site. If the Merchant is unable to deliver the whole or any part of the Transaction within the Delivery Due Date, the Merchant shall forthwith inform the Customer and take immediate action to refund the Customer Charge in whole or in part as per the Customers instructions.
- All risks associated with the Delivery by the Merchant shall be solely that of the Merchant and not Charge4u. Any and all disputes regarding quality, merchantability, non-Delivery, delay in Delivery or otherwise shall be resolved directly between the Merchant and the Customer without making Charge4u and/or the respective Acquiring Bank a party to such disputes.
- The Merchant agree to process returns of and provide refunds and adjustments for. Products sold and/or payment collected through its Merchant Site in accordance with this Agreement, the Acquiring Banks instructions and Card Association Rules. The Merchant understands that all refunds must be routed through the same Acquiring Bank payment gateway through which the Transaction was made. In the event that the Merchant initiates refunds through any other mode, the Merchant shall be fully liable for all Chargeback's raised in respect of the Transaction refunded. The Merchant shall ensure that Charge4u at all times have sufficient funds of the Merchant to process refunds initiated. Charge4u shall not be liable to process any refund initiated in the event of insufficient funds.
- The Merchant shall (a) maintain a fair return, cancellation or adjustment policy in accordance with type of business: (b) disclose its return or cancellation policy to Customers at the time of purchase, (c) not give cash refunds to a Customer in connection with a card salt unless required by law, and (d) not accept cash or any other item of value for preparing a card sale refund.
- The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the customer for postage (if any) that the Customer paid to return Product. The Merchant understands that if the refund policy prohibits returns or is unsatisfactory to the Customers, the Merchant may still receive a Chargeback relating to the Disputed Transaction.
- It is hereby agreed and acknowledged by the Parties that the TDR charged by Charge4u in respect of a Transaction that has been confirmed shall not be refunded or repaid by Charge4u to the Merchant or any other person irrespective of the Customer Charge being rejected, Chargeback, refunded or disputed.
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS, TERMS AND CONDITIONS AND UNDERSTANDINGS SET FORTH IN THIS AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION (THE RECEIPT AND ADEQUACY OF WHICH ARE HEREBY MUTUALLY ACKNOWLEDGED), THE PARTIES will THE INTENT 10 BE LEGALLY BOUND HEREBY AGREE AS FOLLOWS:
1.2 In this Agreement:
APPROVAL AND REGISTRATION TO AVAIL CHARGE4U SERIVCES/ACQUIRNG BANK SERVICES
CONNECTIVITY AND INTEGRITY OF HOTLINK
AUTHORIZATION AND AUTHENTICATION OF TRANSACTION
PAYMENT TO CHARGE4U
TERMS OF PAYMENT TO MERCHANT
REFUND AND RETURN POLICY
COVENANTS OF THE MERCHANT:
he Merchant hereby declares, assures, undertakes and covenants as under:
USE OF INTELLECTUAL PROPERTY RIGHTS AND PROTECTION OF SOFTWARE APPLICATION
18. RELATIONSHIP BETWEEN THE PARTIES
20. LIMITATION OF LIABILITY2 0 . 1
Notwithstanding anything stated under this Agreement, the aggregate liability of Charge4u to the Merchant from any cause whatsoever shall noting any event exceed the sum equivalent to the preceding one month's aggregate TDR margin earned by Charge4u under this agreement from the date of occurrence of such liability. Provided that Charge4u shall not be liable to the Merchant for any special, incidental, indirect or consequential damages, damages from loss of profits or business opportunities even if the Merchant shall have been advised in advance of the possibility of such loss, cost or damages. In no event shall Charge4u be liable to the Customers or any third party. In no event shall the Nodal Bank or the Acquiring Bank be liable to the Merchant in any way under this Agreement.
21.1 Charge4u will make all reasonable efforts to provide uninterrupted service subject to down time and regular maintenance. However, notwithstanding anything in this Agreement, the Merchant acknowledges that Charge4u Site. Charge4u Services and the Acquiring Bank's Services may not be uninterrupted or error free or free from any virus or other malicious, destructive or corrupting code, program or macro and Charge4u and the Acquiring Banks disclaim all warranties, express or implied, written or oral, including but not limited to warranties of merchantability and fitness of the services for a particular purpose. The Merchant also acknowledges that the arrangement between one or more Acquiring Banks and Charge4u may terminate at any time and services of such Acquiring Banks may be withdrawn. Although Charge4u adopts security measures it considers appropriate for the offer of the Charge4u Service, it does not assure or guarantee that no person will overcome or subvert the security measures and gain unauthorized access to the Charge4u Service or the Merchant/Customer data. Charge4u shall not be responsible or liable if any unauthorized person hacks into or gains access to the Charge4u Service or to the Merchant's Charge4u Account. In event of incorrect settlement in the Merchant's Account due to error on the part of Charge4u or the Bank, Charge4u shall have the right to reverse the extra funds from the Merchant Bank Account. In addition, the Merchant shall he fully liable to return the extra funds settled within 7 (seven.) days of intimation by Charge4u. Subject to the other clauses of this Agreement, in the event that the Settlement Amounts to be transferred to the Merchant have not been transferred, Charge4u shall endeavor to settle the relevant Settlement Amount to the Merchant's account within 7 (seven) days of notification from the Merchant. In addition Charge4u shall not be liable to the Merchant for any loss or damage whatsoever or howsoever caused or arising, directly or indirectly, including without limitation, as a result of loss of data; interruption or stoppage to the Customer's access to and/or use of the Merchant Site, Charge4u Services and/or the Payment Mechanism, interruption or stoppage of Charge4u Site, hacking or unauthorized access to the Charge4u Services, Software Application and Internet Payment Gateway, non-availability of connectivity between the Merchant Site and Charge4u Site, etc. Any material/information downloaded or otherwise obtained through the use of the Charge4u Services is done at the Merchant's own discretion and risk and the Merchant will be solely responsible for any damage to its computer system or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by the Merchant from Charge4u or through or from the use of Charge4u Services shall create any warranty. Charge4u shall have no liability in this respect.
21.2 Charge4u's sole obligation and the Merchant's sole and exclusive remedy in the event of interruption in Charge4u Site. or loss of use anchor access to Charge4u Site, the Acquiring banks Services and the Payment Mechanism and services, shall be to use all reasonable endeavors to restore the Services and/or access to the Payment Mechanism as soon as reasonably possible.
21.3 Charge4u or Acquiring Bank obligations under this Agreement are subject to following limitations: (a) Messages that originate from the server of the Merchant or the server of a third party designated by Merchant (e.g._ a host) shall be deemed to be authorized by the Merchant, and Charge4u shall not be liable for processing such messages:
(b) Messages that originate from the cardholder are deemed to be authorized by the cardholder and Charge4u shall not be required to check its veracity and Charge4u shall not be liable for processing such messages:
(c) Charge4u or the Acquiring Bank are not responsible for the security of data residing on the server of the Merchant or a third party designated by the Merchant t e.g.. a host) or on the server of a cardholder or a third part, designated by a Merchant/cardholder (e.g.. a host):
(d) andCharge4u and/or the Acquiring Banks shall have no liability for any failure or delay in performing its obligations under this facility if such failure or delay: (I) is caused by the Merchant's acts or omissions: (ii) results from actions taken by Parrot the Acquiring Banks in a reasonable good faith to avoid violating a law, rule or regulation of any governmental authority or to prevent fraud on cardholders/accounts: or (iii) is caused by circumstances beyond Charge4u control, including but not limited to vandalism, hacking, theft, phone service disruptions, Internet disruptions loss of data, extreme or se% ere weather conditions or any other causes in the nature of Force Majeure event.
22.1 This Agreement may be terminated by either Party by giving 30 (thirty) days prior written notice to the other Party.
22.1 Either Party may terminate this Agreement forthwith in the event:
(a) the Party discovers at any stage that the other Party is in violation of any law or regulation;
(b) the other Party is adjudicated as bankrupt, or if a receiver or as a trustee is appointed for it or for a substantial portion of its assets. Or if any assignment for the benefit of its creditors is made and such adjudication appointment or assignment is not set aside within 90 (ninety) Business Days:
(c) the other Party goes into liquidation either voluntarily or compulsorily:
(d) the other Party is prohibited by any regulatory or statutory restriction from continuing to provide services tinder this Agreement.
22.3 Charge4u shall terminate this Agreement forthwith, if the Merchant fails to perform its obligations hereunder or is in breach of any terms and conditions of this Agreement.
22.4 The termination under this Clause is in addition to and without prejudice to the termination rights given to the Parties under and other Clause in this Agreement.
23. GENERAL PROVISIONS
24.1 Assignments: Charge4u may assign, in whole or in part, the benefits or obligations of this Agreement to its associates of affiliates of other group company, pursuant to a restructuring or re-organization or demerger of its organization or operations. Charge4u shall provide a thirty (30) days prior intimation of such assignment to the Merchant, which shall be binding on the Parties to this Agreement.
24.2 Force Majeure: Charge4u shall not be liable for its failure to perform under this Agreement as a result of any event of force majeure events like acts of god, fire, wars, sabotage, civil unrest, labor unrest, action of Statutory Authorities or local or Central Governments, change in, Laws, Rules and Regulations, affecting the performance of Charge4u or the Acquiring Banks.
24.3 Governing Law, Settlement of Disputes and Jurisdiction: This Agreement (and any dispute or claim relating to it, its enforceability or its termination) is to be governed by and construed in accordance with the laws of India. Each of the Parties agrees that. if any dispute(s) or difference(s) shall arise between the Parties in connection with or arising out of this Agreement, the Parties shall attempt, for a period of 30 (thirty) days from the receipt of a notice from the other Party of the existence of a disputes), to settle such dispute(s) by mutual discussions between the Parties. If the said dispute(s) cannot be settled by mutual discussions within the thirty-day period provided above, either Party may refer the matter to a sole arbitrator to be mutually appointed in accordance with the Arbitration and Conciliation Act. 1996. The arbitration proceedings shall be held under the provisions of the Arbitration and Conciliation Act, 1996. The arbitration proceedings shall be held in English language at New Delhi. The courts at New Delhi shall have the exclusive jurisdiction over any disputes relating to the subject matter of this Agreement.
24.4 Waiver: Unless otherwise expressly stated in this Agreement, the failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies, and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
24.5 Survival of Provisions: The terms and provisions of this Agreement that by their nature and content are intended to survive the performance hereof by any or all Parties hereto shall so survive the completion and termination of this Agreement.
24.6 Severability: If any provision of this Agreement is or becomes, in whole or in part, invalid or unenforceable but would be valid or enforceable if some part of that provision was deleted, that provision shall apply with such deletions as may be necessary to make it valid, If any Court/Tribunal of competent jurisdiction holds any of the provisions of this Agreement unlawful or otherwise ineffective, the remainder of this Agreement shall remain in full force and the unlawful or otherwise ineffective provision shall be substituted by a new provision reflecting the intent of the provision so substituted.
24.7 Non-Exclusivity: It is agreed and clarified that this Agreement is on a non-exclusive basis and the Parties are at liberty to enter into similar Agreements with others.
24.8 Entire Agreement: This Agreement constitutes the entire Agreement and understanding between the Parties, and supersedes any previous agreement or understanding or promise between the Parties, relating to the subject matter of this Agreement. All Schedules, Recitals and Annexure to this Agreement shall be an integral part of this Agreement and will be in full force and effect as though they were expressly set out in the body of this Agreement.
24.9 Notices: All notices, requests, demands, waivers and other communications required or permitted to be given under the Agreement shall be in writing through certified or registered mail, courier, email, facsimile or telegram to be sent to the following addresses:Or, in each ease, at such other address as may be specified in writing to the other Parties in accordance with the requirements of this Clause. All such notices, requests, demands, waivers and other communications shall be deemed duly given (I) ill)), personal delivery, on the day after such delivery. (ii) if by certified or registered mail, on thel0th (tenth) day after the mailing thereof, ( ) if by courier service or similar service, on the day delivered, or (iv) if by email, facsimile or telegram, on the day following the day on which such email, facsimile or telegram was sent, provided that a copy is also sent by registered mail and. in the case of a facsimile, electronic confirmation of receipt is received. 24.10 Amendment: This Agreement shall not be varied, amended or modified by any of the Parties in any manner whatsoever unless such variation, amendment or modification is mutually discussed and agreed to in writing and duly executed by both the Parties. 24.11 Counterparts: This Agreement may be executed in two or more counterparts, each of which, when executed and delivered, is an original, but all the counterparts taken together shall constitute one document. IN WITNESS WHEREOF the Parties hereto have executed, this Agreement through their Authorized Signatories on the day, month and year first herein mentioned above: