Terms and Conditions
THIS DOCUMENT IS PUBLISHED IN COMPLIANCE OF AND SHALL BE GOVERNED BY INDIAN LAW, INCLUDING BUT NOT LIMITED TO (I) THE INDIAN CONTRACT ACT, 1872; (II) THE INFORMATION TECHNOLOGY ACT, 2000, THE RULES, REGULATIONS, GUIDELINES AND CLARIFICATIONS FRAMED THEREUNDER INCLUDING THE INFORMATION TECHNOLOGY (REASONABLE SECURITY PRACTICES AND PROCEDURES AND SENSITIVE PERSONAL INFORMATION) RULES, 2011, AND THE PROVISIONS OF RULE 3 (1) OF THE INFORMATION TECHNOLOGY (INTERMEDIARIES GUIDELINES) RULES, 2011; (III) THE PAYMENT AND SETTLEMENT SYSTEMS ACT, 2007 AND APPLICABLE RULES, REGULATIONS AND GUIDELINES MADE THEREUNDER INCLUDING POLICY GUIDELINES ON ISSUANCE AND OPERATION OF PRE-PAID PAYMENT INSTRUMENT IN INDIA; AND (IV) RESERVE BANK OF INDIA ACT, 1934 AND THE APPLICABLE RULES, REGULATIONS AND GUIDELINES MADE THEREUNDER FOR THE ISSUANCE OF PRE-PAID PAYMENT INSTRUMENT AND FOR MONEY TRANSFER.
THIS DOCUMENT IS AN ELECTRONIC RECORD IN THE FORM OF AN ELECTRONIC CONTRACT FORMED UNDER INFORMATION TECHNOLOGY ACT, 2000 AND RULES MADE THEREUNDER AND THE AMENDED PROVISIONS PERTAINING TO ELECTRONIC DOCUMENTS / RECORDS IN VARIOUS STATUTES AS AMENDED BY THE INFORMATION TECHNOLOGY ACT, 2000. THIS AGREEMENT DOES NOT REQUIRE ANY PHYSICAL, ELECTRONIC OR DIGITAL SIGNATURE. THIS DOCUMENT IS ALSO DISCLOSED IN COMPLIANCE WITH SECTION 21 OF PAYMENT AND SETTLEMENT SYSTEMS ACT, 2007 AND AS REQUIRED TO BE DISCLOSED UNDER POLICY GUIDELINES ON ISSUANCE AND OPERATION OF PRE-PAID PAYMENT INSTRUMENT IN INDIA.
THIS AGREEMENT IS A LEGALLY BINDING DOCUMENT BETWEEN YOU (DEFINED BELOW) AND BINGE ESERVICES INDIA PRIVATE LIMITED AND HEREIN AFTER REFERRED TO AS "PAYLO"). THE TERMS OF THIS DOCUMENT WILL BE EFFECTIVE UPON YOUR ACCEPTANCE OF THE SAME (IN ELECTRONIC FORM OR BY MEANS OF AN ELECTRONIC RECORD OR OTHER MEANS) AND WILL GOVERN THE RELATIONSHIP BETWEEN YOU AND PAYLO FOR THE USE OF PAYLO PAYMENT SERVICES. IF ANY TERMS OF THIS DOCUMENT CONFLICT WITH ANY OTHER DOCUMENT/ELECTRONIC RECORD IN THIS BEHALF, THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL PREVAIL, UNTIL FURTHER CHANGE / MODIFICATIONS ARE NOTIFIED BY THE BANK.
You are therefore requested to read and understand these Terms and Conditions prior to upgrading your account to a Merchant. If you do not want to be bound by the below-mentioned terms and conditions or any part thereof, PLEASE DO NOT PROCEEED WITH UPGRADING TO A MERCHANT. Upgrading to a Merchant shall be conclusively deemed assent to the below mentioned terms and conditions.
All references in these Terms and Conditions to "You" or "Your" shall refer to the users or Customer of Website or Merchant Site(s). All references in these Terms and Conditions to "We," "Us," or "Our" shall refer to Binge eservices India Private Limited, and their respective affiliates, as the case may be.
1.The Merchant is in the business of providing various merchandise / services to its customers and is desirous of enabling its customers to use debit / credit card services facilitated/provided by Bank / VISA / MASTERCARD /RUPAY and such other card associations and has represented that it is carrying on the business specified in this contract. The Merchant is desirous to procure the PayLo Services (as defined herein below) through PAYLO. Relying upon the representations provided by the Merchant and acceptance by the Merchant of the terms and conditions set forth herein, PAYLO has agreed to provide PayLo Services to the Merchant, either directly and/or through its business associates, on the terms and conditions hereinafter specified; and
2.PAYLO along with its business associates, has the necessary expertise, knowledge and infrastructure and are inter alia in the business of providing: (a) certain services in respect of processing payments for establishments in respect of payments sought to be made by way of Valid Cards through the EMV compliant point of sale (“POS”) and Mobile Point of Sale (“MPOS”) devices (“Card Transaction”); (b) Value Added Services, through the POS and Mobile POS devices; and (c) Payment Processing through website and mobile app.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the Merchant hereby agrees on the following Terms and Conditions as follows:
1.DEFINITION: The Capitalized terms used shall have the meaning ascribed to it hereunder:
(a)a)“Authorization” shall mean the process by which PAYLO approves and confirms to the Merchant whether the Valid Card of the Card Member has the required credit limit/funds (as the case may be) to make payments for a transaction and includes approval flashed on the POS terminal at the premises
(b)“Bank” shall mean the settlement bank of PAYLO.
(c)“Card Member” or “Cardholder” shall mean a person holding a Valid Card and making payment using that Valid Card;
(d)“Card Organization” includes VISA, MasterCard and any other card organization acceptable to the Bank and/or PAYLO offering credit, debit or any other card program to Issuers;
(e)“Charge Slip” shall mean the receipt printed out by the POS device or a digital receipt, sent or provided to the Cardholder through an SMS and /or email or to the Merchant on the mobile application and/or PayLo web portal on successful completion of an Authorization of a charge;
(f) “Chargeback” means a transaction that is returned to the Bank by the Issuer.
(g)“Equipment” shall mean the Electronic Data Capture terminal (EDC) or Mobile Point of Sale device with integrated PIN pad. The Equipment will also include printer, credit authorization terminal or any other machine, which may be integrated with the basic mPOS device. The expression shall include any replacement, modification, enhancements and/or additions to the Equipment (including the software thereto used) as may be provided for/caused to be provided for authorization by the Bank or through its arrangement with any third party.
(h)“Equipment Provider” shall mean the owner of the Equipment.
(i)“Floor Limit” shall mean the limit as mentioned in the Schedule hereto and as may be prescribed by the Bank in respect of the cards such that the Merchant shall be bound to obtain prior authorization from the Bank for transactions exceeding such limit.
(j)"Digital Charge Slip" means the software application provided to the Merchant by Bank through PayLo to enable the Merchant to record charges with cardholder’s signature “Issuer” means a licensee of a Card Organization issuing a card;
(k)“Issuer” means a licensee of a Card Organization issuing a card ;
(l) “PayLo Service Fee” means the service fee at the rate mentioned in the Schedule hereto as may be charged by PAYLO in consideration of providing services herein. Provided that this fee may be subject to change from time to time as PAYLO may determine in its sole discretion.
(m)“Settlement” means the closure of batch at predefined frequencies by PAYLO.
(n)“Valid Card” shall mean a card issued by an Issuer, bearing signature of the holder whose name is embossed on the same but shall not include (i) a card listed on a current Warning Notice or (ii) an expired card or a card not yet operational or (iii) a card that cannot be used in India or (iv) a damaged or torn card; and
(o)“Valid Charges” is a charge within the amount authorized in accordance with this Agreement, which is charged to the Card Member (i) On a Charge slip acceptable to Bank, bearing an imprint of a Valid Card and bearing the same signature as that on the Valid Card (ii) Using the Equipment with Charge Slip generated from the Equipment after swiping the Valid Card, and bearing the same signature as that on the Valid Card.
(p)"Affiliates" shall mean any company which is the holding company (including step up holding) or subsidiary (including step down subsidiary) of the Party, or a Person which is controlled by, under the control of or under common control with the Party, or any Person in which Party has a direct or beneficial interest of 20% or more of the voting securities. For the purpose of this definition of Affiliate, the term "control" together with grammatical variations and cognate expressions when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of the securities carrying voting rights, by contract or otherwise howsoever; and the term "Person" means any individual, company, firm, corporation, body corporate, a partnership (including limited liability partnership), Hindu undivided family, trust or any other entity or organization or other natural or legal person.
(q)"PayLo Services" shall mean for the purpose of these Terms and Conditions, the payment processing and settlement services provided by PayLo for payment made by the Customer to Merchant using PayLo payment services.
(r)"Applicable Laws" shall mean and include all statutes, legislations, rules, regulations, directives, judicial pronouncements and administrative guidelines that may be in force in the Republic of India including the Information Technology Act, 2000, The Payment and Settlement Systems Act 2007 and the Payment and Settlement Systems Regulations, 2008 and the guidelines and notifications issued by the RBI there under from time to time.
(s)"Customer" means any person who desires to purchase Product offered by Merchant and make payment using PayLo Services.
(t)"Commencement Date" shall mean the date on which this Terms and Conditions shall come into force and shall be the date on which this contract is signed by the merchant.
(u)"Merchant" shall mean and include the seller(s), retailers, proprietor(s), its employees, agents, authorized representatives and their Affiliates who accept PayLo Services on Merchant Establishment for collecting payments from the Customer.
(v)"Merchant Establishment" shall mean any web addresses, unique resource locators, applications, software (including without limitation mobile applications) of the Merchant (the contents of which are controlled and owned by the Merchant), and/or physical outlets which are used by the Merchant for the sale of Products to the Customers, and in respect of which PayLo has agreed to provide PayLo Services.
(w)"PayLo Merchant Application Form" shall mean the application form filled by the Merchant for using the PayLo Services.
(x)"Personal Information" means any information relating to any natural person which in combination with other information available with the Merchant or likely to be available with the Merchant is capable of identifying such person and it shall also include sensitive personal information such as call data records; financial information such as bank account details, credit/ debit card details, payment instrument details; password etc. or any other type of information prescribed under the Information Technology Act, 2000 and the rules framed there under or any other law as sensitive personal information.
(y)"RBI" shall mean the Reserve Bank of India;
(z)"RBI Guidelines" shall mean and include regulations, guidelines, notifications, etc., issued by the Reserve Bank of India that governs the PayLo Services under this Terms and Conditions.
(aa)"Product" shall mean the goods and/or services sold or provided by Merchant through Merchant Establishment.
(ab)"Transaction" shall mean payments for purchase of Products or for any other specified purpose to a Merchant;
(ac)"Transaction Value" shall mean purchase price of the Products collected from the Customer using PayLo Services;
(ad)"Term" of this contract (Terms and Conditions) shall be for a period of three (3) years from the Commencement Date, and shall be automatically renewed for successive periods of one (1) year until terminated by either Party in accordance with the provisions of this Terms and Conditions.
2.SCOPE AND APPLICABILITY
(a)APPOINTMENT: The Merchant agrees and acknowledges that PAYLO is the facilitator for procuring the PayLo Services for the Merchant and that all or some of the PayLo Services or any part thereof would be provided by a person appointed or nominated by PAYLO for providing the same. (b)These Terms and Conditions shall be applicable in respect of each and every transaction involving payment by means of a PayLo Payment service
(b) INSTALLATION AND USE OF EQUIPMENT
(a)In order to provide the Merchant Services, PAYLO may provide the Merchant with certain equipment and products including those specified in Schedule-1 (“Equipment”) that are necessary for the provision of the Merchant Services. The Merchant shall acknowledge the receipt of such Equipment in a form and manner acceptable to PAYLO and each such acknowledgement shall be deemed to be a part of these Terms and Conditions and shall be construed to form a part of PayLo Service Fee Schedule.
(b)PAYLO, or its business associate, shall after receiving instructions in writing, install the Equipment at the Merchant’s premises. The Merchant shall ensure that the necessary Equipments (like mobile phone(s) or tablet(s) and GPRS Network) required to install the Equipment is available at the Merchant location.
(c)The Merchant shall arrange, co-operate, and provide for installation at the Merchant’s premises the Equipment and such related accessories and software as PAYLO may deem fit and appropriate. The Merchant states and agrees that the Equipment shall be used exclusively at the Merchant establishment for the purchase of goods or services for which the Merchant has been signed up and for no other purpose whatsoever.
(d)The Merchant shall retain in its possession and for its exclusive use the Equipment, provided under these Terms and Conditions, and keep the same in good condition. The Merchant agrees and acknowledges to safe keep and control the use of the Equipment such that any transaction using the Equipment shall be deemed to be authorized and sanctioned by the Merchant.
(e)PAYLO shall be entitled to charge the Merchant for the costs of the Equipment(s) and/or the costs of repairing the Equipment(s) in the event the Equipment(s) is/are damaged as a result of improper handling by the Merchant unless the Equipment is bought by the Merchant from PAYLO.
(f)In case the Equipment is provided by PAYLO to the Merchant, the Equipment is the exclusive property of PayLo and the Merchant shall forthwith surrender the Equipment to PAYLO in the event of termination of this arrangement for any reason whatsoever. During the tenure of this arrangement and thereafter the Merchant shall not claim any right, title, interest or lien over the Equipment.
(g)In case the Equipment is provided by PAYLO on lease to the Merchant, the Merchant shall not (i) sell, assign, transfer, lease or otherwise cause \or allow or attempt to cause or allow, any dealings with the Equipment or any encumbrance on the Equipment to be created (ii) remove, conceal or alter any markings, tags or plates attached to the Equipment or part of it indicating PAYLO’s ownership of the Equipment (iii) Cause or allow PAYLO’s right to access, repossession or disposition of the Equipment pursuant to this Agreement or otherwise to be encumbered in any way jeopardized by any act of the Merchant or its servants or agents or by any other factor within its control (iv) Permit any third party to perform the maintenance services on the Equipment or effect modifications, enhancement or software/hardware changes to the Equipment without the prior written consent of PAYLO.
(h)The loss or damage caused to PAYLO arising out of negligence, or misuse of the Equipment and / or default in payment due to any reason whatsoever or that of any telecommunication devices attached to / inbuilt within / embedded in the Equipment shall be to the account of the Merchant, and PAYLO will recover such losses and expenses from the Merchant.
(i)The Merchant shall permit the authorized representatives of PAYLO or any other concerned service provider to carry out physical inspections of the Equipment or telecom equipment (or possession of any of these, in case of termination of this arrangement) during business hours, with or without prior notice.
(j)PAYLO may seek enhancement of the Equipment for provision of additional services using the Equipment. Merchant shall allow PAYLO or Equipment Provider to undertake such enhancements and facilitate and provide such services in addition to the services to be provided under this Agreement.
(a)The Merchant agrees to abide by the Authorization procedure and such other terms and conditions as may be specified by PAYLO from time to time.
(b)Authorization in respect of charges can be obtained by swiping or inserting or tapping the Valid Card using the Equipment (online authorization)
(c)PAYLO reserves the right to refuse the charges if an authorization is declined. Any authorization given by PAYLO will be in its absolute discretion and PAYLO may further, in such an event, also direct the Merchant to take immediate preventive action
(e)In case of any disputes regarding authorizations given by PAYLO or regarding any details pertaining thereto (whether as to card number, expiry date of a Valid Card, amount, date and the time of charges, time at which authorization is given or otherwise whatsoever), the decision of PAYLO to grant or refuse authorization and the details mentioned by PAYLO shall be final and binding on the Merchant
(f)Merchant shall be responsible for verification of Card Member signature on back panel of Valid Card with the signature of the said Card Member on the Charge Slip. In the event of mismatch of the Card Member signature, Merchant shall follow procedure as laid down by PAYLO from time to time.
(g)Merchant shall obtain photocopy (ies) of the passport or any government issued identity proof of Card Member and front side of Valid Card in case of transaction conducted on international card is above Rs.10, 000/- (Rupees Ten Thousand Only) or such other amount as may be prescribed by PAYLO from time to time. The Merchant shall verify such photocopy (ies) with the originals before accepting the same. Merchant to verify photo id of customer & match the name & sign on id with name & sign on card In case of local card, ID proof shall be collected by the Merchant for transaction above INR 10000/- for merchandise or service particularly related to jewellery, electronics, antiques, handicrafts, travel and telecom or such merchandise as may be directed by PAYLO or regulatory authorities. The amount thresholds and the list of documents to be collected are subject to change as per PAYLO policies from time to time.
(a)Subject to the provision of sub-clause (c) hereof, and without prejudice to the right conferred by Clause 8 hereinafter appearing, PAYLO agrees to pay to the Merchant, Valid Charges specified in the Charge Slips or online receipt, received at their offices post deduction of commission and taxes within 3 days of receipt, except under circumstances beyond the reasonable control of Bank. Payment of such charges by PAYLO is not to be construed or deemed to mean that the charges involved are Valid Charges. Bank will be entitled at any time by giving notice to set-off and adjust outstanding of the Merchant, against all payments due to the Merchant and such set-off and/or adjustments shall be final and binding on the Merchant
(b)The Merchant hereby agrees that PAYLO may from time to time increase or decrease the PayLo Service Fee.
(c)Further, the Parties hereby agree that all the applicable taxes, cess and other statutory levies (including but not limited to service tax and education cess), as specified from time to time and mentioned in these Terms and Conditions, which are payable in respect of the PayLo service fee and/or the payments shall be borne by the Merchant. The Merchant hereby authorizes PAYLO to deduct, in addition to the PayLo service fee, these tax amounts, at the time making the aforesaid payment.
(d)Where PAYLO has reason to believe that any charges have been fraudulently incurred or charged either on a counterfeit card or where PayLo has reason to investigate or cause to be investigated on any charges (hereinafter referred to as “Suspect charges”), PAYLO shall be entitled to withhold payment pertaining to such Suspect Charge(s) and not make payment to the Merchant and shall conduct due enquiry and investigation.
(e)PROVIDED THAT, if PAYLO determines after due enquiry and investigation that the charge is a Valid Charge and not a Suspect Charge, PAYLO shall release such withheld payment
(f)PROVIDED FURTHER that if PAYLO determines after due enquiry and investigation that any suspect charges is not a Valid Charge or transaction reported as fraudulent by Issuing bank, PAYLO shall be entitled not to pay the same at all and the Merchant agrees and undertakes not to raise any claims thereto
(g)If PAYLO suspects that the Merchant has committed a breach of these Terms and Conditions or has acted dishonestly or fraud has been committed against PAYLO or any Cardholder or third party or has in connivance with any other person done the same or assisted in the same, PAYLO shall be entitled to suspend all payments under this arrangement to the Merchant as well as withholding suitable sum, as may be determined by PAYLO in its discretion, till pending enquiries by PAYLO.
5.Fee Debit: All applicable fee and charges as mentioned in PayLo service Fee schedule will be charged to the merchant. These fees will be charged every month in advance and will be upfront debited in the beginning of the Month
The Merchant agrees that any charges accepted by PAYLO, which prove to be uncollectible, and which were incurred in any of the following circumstances shall be the exclusive financial responsibility of the Merchant:
(a)Any charge which is not a Valid Charge and/or which is made by a card, which is not a Valid Card at the time of incurring of the charge by the Card Member;
(b)Any charge which was incurred by a Member outside the date indicated as “valid through” on the Members’ Valid Card;
(c)Any charge incurred outside the territory authorized for the use of a Valid Card;
(d)Any charge incurred involving the forgery of the Card Member’s signature on the Charge Slip;
(e)Any charge incurred which involves a charge form incomplete or illegible as to the Card Member’s name, the number of the Valid Card or the validity date of the Valid Card;
(f)Any charge received by PAYLO more than Six (6) days after a Card Member incurred the charges and were authorized by PAYLO; (g)Any charge incurred by splitting the transaction multiple times;
(h)Any charge that was previously billed and paid directly by the Merchant to the Card Member;
(i)Any charges (as set out in this contract) without prior authorization of PAYLO as provided therein
(j)Any charges for merchandising or services in an amount in excess of the advertised price
(k)Any charges for undelivered merchandise or service
(l)Any charges with respect to which a Card Member refuses to pay because the merchandise or services purchased from the Merchant were not as promised or the merchandise was defective
(m)Any charges with respect to which the Merchant has not resolved a Card Member’s complaint or request the Equipment Provider for an adjustment
(n)Any late settlements done by the merchant
The Merchant agrees to the non-payment of such charges or the charging back of such uncollectible charges (as the case may be) by PAYLO, without any demur or protest.
7.ADDITIONAL OBLIGATIONS OF THE MERCHANT:
a.The Merchant shall not sell any goods / items or provide any services which are prohibited under the laws of India.
b.The Merchant shall utilize the PayLo Services with due regard and absolute compliance to all Applicable Laws.
c.The Merchant shall, thereafter, fulfill its obligations of facilitating the Customer with the delivery of the Product(s) in accordance with the terms and conditions that have been accepted by the Customer. The Merchant shall retain with it proof of such delivery of the Product(s) for such period as may be practicable however not less than two hundred ten (210) days. The Merchant shall furnish such Proof of Fulfillment whenever required by PayLo. The Merchant shall store the customer order number unique to that purchase.
d.In case, any other content/service is added on to the existing PayLo Services, the Terms and Conditions shall be modified to that extent post the Parties mutually discuss and agree to the modification in writing.
e.The Merchant shall be solely responsible at its own cost for obtaining all necessary approvals, sanctions, permissions, and licenses from the relevant authorities for sale of Product. Merchant shall ensure that the sale of Product shall occur in compliance with all applicable laws, and, without prejudice to the generality of the foregoing, it is expressly stated that-
f.In case of Merchant Establishment being a physical outlet (shop/ showroom etc.) subject to the terms of this Terms and Conditions, PayLo may provide the Merchant with an EDC Terminal/MPos devices to be placed at the Merchant's outlet/premises. The Merchant shall ensure that the EDC Terminal/MPOS device is maintained in good condition and used only in the manner and for the purposes as provided in this Terms and Conditions. The Merchant shall pay PayLo all expenses that may be incurred by PayLo for the repairs, maintenance and/or replacement of the EDC Terminal/MPos devices which has got damaged as a result of the improper handling by the Merchant. The Merchant shall bear the costs, charges and expenses for electrical power or network connectivity in connection with the EDC Terminal/MPos devices. The Merchant shall report promptly to PayLo a fault or suspected fault in the operation of the EDC Terminal/MPos devices. Merchant shall ensure that all rules and regulations applicable to such outlet have been complied with and all necessary licenses, municipal permissions etc., as may be applicable, have been procured and that such physical outlet shall not be used for any purpose contrary to law. The Merchant shall make best efforts to recover and retain any card:
(ii)In respect of which a request has been made by a Card Organization to recover the card; or
(iii)Which the Merchant has reasonable grounds to believe to be counterfeit, fraudulent or stolen.
g.The Merchant shall promptly notify PAYLO of any such recovery and retention and deliver the card so recovered to PAYLO within 48 (Forty Eight) hours of such recovery and retention.
h.The Merchant shall immediately inform PAYLO in the event the same card is being used for repeated Card Transactions or if the same Card Member uses the card indiscriminately or of any other suspicious activity.
i.In case of Merchant Establishment being a website/app or online sales Merchant shall ensure that such website/app is maintained in accordance with applicable law and regulations and shall ensure that appropriate steps are taken to ensure the security of data and Transactions occurring at such website/app. Merchant or any of its employees, agents or permitted subcontractors shall not transmit or host or publish or modify or upload or update or share any information or content which is grossly harmful, harassing, blasphemous, obscene, pornographic, paedophilic, harmful to minors in any manner, hateful or racially or ethnically objectionable, disparaging, relating to encouraging money laundering or gambling or defamatory or which infringes any right of privacy of any individual, or which infringes any intellectual property rights of any individual or entity or PayLo or Partner Bank or which is otherwise unlawful, or misleads the addressee about the origin of such information, or impersonates any person, or contains computer virus or computer contaminants or which threatens public order or incites commission of offence. Merchant shall comply with Information Technology Act, 2000 and rules made there under as amended from time to time and shall further comply with the statutory obligations cast upon it in its capacity of having access to computer resource containing Personal Information or data.
j.Merchant shall not charge the Customer any additional amount or discriminate against the Customers in any way for using PayLo Services.
k.PayLo will have sole and exclusive ownership of, and rights to collect, store, and use all information received by PayLo from the Customer in the course of any Customer's use of the PayLo Services under these Terms and Conditions. Merchant shall not claim any right or interest in the same and the Merchant undertakes that he shall not store, copy, transfer or use such information for any purpose other than those specifically agreed between the Parties during or after the term of the Terms and Conditions.
l.Merchant shall maintain the Transaction data for a minimum of 5 years' time period from the Transaction date.
m.Merchant shall ensure security of Transactions using the PayLo Services including taking all necessary precautions that may be mentioned in Applicable Law and all other prudent steps that might be required.
n.Merchant undertakes to protect the Personal Information with reasonable security practices as provided in Information Technology Act, 2000 & Rules framed there under as amended from time to time to ensure that such Personal Information is not disclosed, transferred, or published to any third party. Merchant undertakes to take necessary steps like executing non- disclosure Terms and Conditions etc. to ensure reasonable security practices are complied with by its employees, permitted subcontractors and its agents.
o.The Merchant hereby undertakes and agrees:
1.Not to describe itself as agent, representative, partner or employee of PayLo or Partner Banks;
2.Not to pledge the credit of PayLo or Partner Banks in any way;
3.Not to make any representations to Customers or any third party or to give any warranties other than what is agreed hereunder, which may require PayLo or Partner Bank to undertake to or be liable for, whether directly or indirectly, any obligation and/or responsibility to Customers or any third party.
4.The Merchant shall bear and be responsible for the payment of all sales, octroi, customs and/or other relevant taxes (including any applicable withholding taxes) due upon the sale of the Products through the Merchant's website or outlets.
8.Refunds – Merchant has to make all refunds to the cardholder through PAYLO only, as per the process communicated or as may be communicated from time to time. PAYLO will be recovering the gross amount of the transaction from merchant settlements for refunding the amount back to cardholder. In case there are no transactions for adjustment, the Merchant will have to fund PAYLO for processing any refund.
9.CASH ADVANCES AND/OR CASH REFUNDS: In case any Valid Charges of any Card Member are required to be credited back to such Card Member in accordance with this Agreement, the Merchant will not allow such Card Member to encash any cheque and/or the Merchant will not make any cash advances and cash refunds directly to such Card Member unless it is in accordance with the policy of PAYLO. Further, PAYLO will not be responsible or held liable for refund of such Valid Charges, by the Merchant directly to the Card Member. Merchant will not refund cash for Valid Cards swiped at the establishment.
10.TRANSFER OF OWNERSHIP: The Merchant will be immediately advised of any sale, assignment, lease or transfer of its business or establishment to PAYLO. The rights obtained under this arrangement are not assignable without written prior approval by PAYLO. Change in Nature of Business or Merchandise Sold: Where the Merchant proposes to change the nature of business or merchandise sold, which may result in the Merchant Category to be changed in the books of the VISA/MASTERCARD/NPCI etc., the Equipment shall be used only after such change is informed to PAYLO and acceptance thereof conveyed in writing by PAYLO to the Merchant.
(a)Modification: Any modification, amendment, supplement, or other change in the Terms and Conditions shall be done only in writing duly signed by the authorized signatory of the parties.
(b)Rights and Remedies; All rights and remedies hereunder shall be cumulative and may be exercised singularly or concurrently. If either party fails to perform its obligations under any provision of this arrangement or the other party does not enforce such provision, failure to enforce on that occasion shall not prevent enforcement on later occasions.
(c)Survival of Provisions: Notwithstanding any other provision to the contrary herein, terms that by their nature survive termination or expiration of this Agreement shall bind the parties following any expiration or termination of this Agreement
(d)Headings and sub headings: The headings and sub headings in this document are for convenience only and do not affect the meaning of the relative section / clause.
(e)Notices: Any notice, direction or instruction given under these Terms and Conditions shall be in writing and delivered by email, hand or pos
12. General Obligations of PayLo
a PayLo shall ensure that the PayLo Services are provided in accordance with these Terms and Conditions, however, the service is not guaranteed against failure. PayLo shall not be responsible for any loss caused or any compensation claimed on account of interruption in service, non-availability of service, connectivity link/hyperlinks or any other such factor(s) outside the reasonable control of PayLo.
b PayLo hereby expressly disclaims any and all warranties, express or implied, including but not limited to any warranties of condition, quality, durability, performance, accuracy, reliability, availability, merchantability or fitness for a particular purpose or non-infringement. All such warranties, representations, conditions, undertakings and terms are hereby excluded. To the maximum extent permitted by law, PayLo makes no representations or warranties about the validity, accuracy, reliability, quality, stability, completeness or correctness of any information provided through PayLo Services.
c It is expressly understood that the scope of the services provided under these Terms and Conditions is limited to the integration of a payment system of the Partner Banks that the Merchant may utilize to accept payments from Customers. PayLo does not claim any right or give any representation or warranty regarding any Transaction between the Customer and Merchant and nor does PayLo make any representation or warranty regarding any Customer using the PayLo Services.
d PayLo shall not share the customer data collected through services provided to the merchant, with any external party unless required under government regulations or compliance reasons. PayLo shall not share the confidential data of the customer such and bank account details, cards details etc with any party including merchant unless required under government regulations or compliance reasons.
Merchant shall be responsible for addressing all Customer related queries, disputes and any other assistance that might be required by the Customer with regard to the Merchant insofar as the query, dispute or assistance sought refers to:
a.Any Transaction between any prospective customer or Customer and the Merchant.
b.Any Product that is sold by the Merchant.
PayLo reserves the right to communicate the Merchants queries/complaints and other such details if the Customer reverts for the product/service issue.
Call Centre Operations – Merchant agrees, at its sole cost, to provide help line/help desk services manned by appropriately qualified personnel to answers queries from and provide assistance to Customer's, personnel of PayLo /its Affiliates and agents regarding the services provided by the Merchant.
a. All payments under this Terms and Conditions shall be made in accordance with the contents of the Merchant Enrolment Application Form and PayLo shall not be liable to pay any amounts except as provided in the said Merchant Enrolment Application Form.
b. The Mode of payment to Merchant would be through Real Time Gross Settlement (RTGS) or National Electronic Fund Transfer (NEFT) or Immediate Payment Service (IMPS) transfer mechanism. Merchants are expected to have a RTGS/NEFT/IMPS enabled bank account to receive payments. Any future taxes applicable on these transactions would become part of the scope of this settlement process.
c. The existence of any payment related dispute shall not be acknowledged by PayLo unless information along with relevant details of such dispute are communicated to PayLo within 7 (seven) days of the occurrence/apprehension of such dispute.
d. In case Merchant's bank account details change, Merchant should inform the same to PayLo and PayLo will not be liable for any payment delays due to non-communication of change in bank account details.
e. Timelines for Settlement–The payment to Merchant will be settled within T+3 day(s) where 'T' shall be the date on which the transaction is intimated to PayLo or such other timelines as may be specified in RBI Guidelines or directions from time to time.
f. Unless otherwise provided in the Terms and Conditions, any amount not paid through the above settlement process shall be invoiced to the Merchant on a monthly basis and shall be payable within 15 working days from the date of invoice. In case the Merchant fails to pay the invoice amount within 15 working days, PayLo shall have a right to recover the same from any amount due to the Merchant.
g. All tax or statutory liabilities arising in connection with Transactions or any other obligations pertaining to the Merchant shall be the responsibility of the Merchant.
It is hereby agreed and acknowledged by the Parties that the PayLo Service Fee charged by PayLo in respect of a Transaction that has been confirmed shall not be refunded or repaid by PayLo to the Merchant or any other person irrespective of the Transaction being rejected, chargeback, refunded or disputed.
15.Service Audit and Investigation
a. During the term of this Terms and Conditions, and for a period of six months thereafter, PayLo, at its sole expense, reserves the right to audit, inspect, and make copies or extracts of relevant customer support systems (processes, records, documents etc.) that may be maintained by the Merchant. This Audit may be conducted by PayLo or by RBI or any person appointed by the RBI. The scope of this audit will be limited to transactions arising out of or in connection with the terms of this Terms and Conditions. PayLo may conduct audit either directly or through its consultants or agents ("Auditor') during the normal business hours of the Merchant. However, unless required in compliance of Applicable Laws, no such Audit shall be conducted unless the Merchant has been given advance intimation of 7 working days in this regard. PayLo or any Auditor appointed by PayLo, shall have unrestricted access to all documents whether maintained electronically or otherwise including but not limited to the right to call for documents and explanations from the employees of the Merchant, as it may think necessary for performance of its duties as an Auditor. Merchant shall always cooperate and assist with PayLo and its Auditor and provide all documents and other relevant data and information, as and when required, for conducting audit including not limited to investigate any allegations/ instances of fraud. PayLo shall always ensure confidentiality of the documents and findings of the audits, however if required, PayLo may share the relevant audit observations with its statutory Auditors, any internal committee of PayLo or any other Governmental/ Statutory/ Judicial/ Quasi-Judicial body (ies). In the event the audit findings relate, to overcharging, misrepresentations, unethical practice, fraud or breach of terms and conditions of the Terms and Conditions, PayLo shall have all or any of the rights stated herein against the Merchant
i). to recover the overcharged amount;
ii). to suspend/stop all the outstanding/future payments;
iii). to terminate the Terms and Conditions forthwith without prejudice to other rights under law and contract
iv). to take appropriate legal action as may be necessary
v). PayLo shall at all times have the right to ask the Merchant to undertake investigations on certain events, and the Merchant shall within 72 business hours of such direction from PayLo conduct and complete the investigations and shall submit the report.
16. Business Rules
Merchant shall provide PayLo with a complete list of the terms and conditions under which Merchant provides Product(s) to the Customers and any proposed amendment to these terms and conditions shall be intimated to PayLo two weeks before such change becomes effective. In no event shall such terms and conditions differ to the detriment of Customers just by virtue of the fact that such Customers wish to utilize PayLo Services.
The Merchant shall ensure compliance with the terms and conditions under which Product(s) are sold by Merchant to Customers and PayLo shall have no liability with regard to any claim arising with respect to any breach of any conditions under which Product(s)are provided by Merchant to Customer.
PayLo reserves the exclusive right to determine the manner in which PayLo Services are offered to Merchant and thereafter availed by Customers.
17.Relationship between the Parties
The relationship between the parties is limited to the provision of PayLo Services which are the subject matter of this Terms and Conditions.
This Terms and Conditions does not create any employee-employer relationship between the Parties. The Merchant, its employees, agents and representatives are independent contractors and nothing contained herein shall be deemed to create any partnership, joint venture between the Parties or a merger of their assets or their fiscal or other liabilities or undertakings or create any employment between PayLo and the Merchant and/or its representatives, employees and agents.
At no time shall the Merchant represent to any third party that the scope of its association with PayLo extends beyond the scope of this Terms and Conditions. Persons employed by the Merchant will be under the sole and exclusive direction and control of the Merchant and shall not be considered employees of PayLo for any purpose. In the event Merchant is permitted to employ subcontractors under this Terms and Conditions, the Merchant shall remain the prime contractor under this Terms and Conditions and as such the Merchant assumes prime responsibility for the delivery and performance of this Terms and Conditions. The Merchant shall be solely responsible for ensuring that all its subcontractors comply with the terms of this Terms and Conditions and all applicable laws.
At no time any of the employees/representatives of the sub-contractors is considered to have any privity of contract with PayLo.
Neither Party will be liable to the other for:
Any incidental, indirect, consequential or special damages of any kind, however arising or
any costs, damages or expenses arising from delays, actions or problems caused by any third party, including without limitation, any telecommunications carrier or banking system.
This provision survives termination of this Terms and Conditions.
a. Merchant agrees to indemnify and hold harmless PayLo, its Affiliates, agents, sub-contractors, Partner Bank and third party service providers from all losses, claims, damages and liabilities arising from:
Loss caused by any breach of Applicable Laws by the Merchant.
Claims by third parties including Customers relating to acts/omissions by the Merchant and all costs associated with the defense of such a claim. Loss arising out of any misrepresentation, negligence, willful misconduct by the Merchant. Loss caused by breach of any obligations contained in this Terms and Conditions by the Merchant.
20.Trademark, IPR, Advertising and Display
Parties agree that neither shall have any right in any intellectual property or commercial mark of the other or in the IPR or commercial marks pursuant to this Terms and Conditions except as provided in this Clause.
The Merchant agrees to display any promotional material, signs, posters, logos, standees, interactive displays, demos and any other such materials that PayLo might specify, in the form and manner specified for such display, for the duration of this Terms and Conditions.
Merchant authorizes PayLo to utilize, for such purposes as may be reasonably required for the operation of PayLo Services, the name, logo, address and any other such details of the Merchant.
In the event Merchant wishes to identify PayLo Services as a payment service on Merchant Establishment or through any other medium, Merchant shall do so in the form and manner approved by PayLo in writing.
The Parties acknowledges that it will be in receipt of certain confidential and proprietary information relating to the other Party, its affiliate(s) and/or its subsidiaries including, without limitation, lists and other details of Customers and prospective customers, financial and business information, including pricing structures, technical information and other information not generally known to the public (collectively referred to as "Confidential Information").
The Parties acknowledges that any Confidential Information is the exclusive property of the other Party and is a trade secret and any disclosure and/or improper use of Confidential Information would irreparably injure the Party.
The Parties agrees that, during and after the term of this Terms and Conditions, neither it nor any person, firm, corporation, or any other entity affiliated with, owned in whole, or in part by, employed by or otherwise connected with it, shall directly or indirectly without prior written consent of the other Party divulge, use, sell, exchange, give away/part with or transfer Confidential Information by any current or former employees.
If any Party is served with any form of notice/process/proceedings to obtain any information, confidential or otherwise pertaining to the other Party or any business relating to this Terms and Conditions, the Party shall immediately notify the other Party and initiate such action to seek to quash/oppose such notice process/proceedings as intimated by the other Party.
Parties agree that the terms and conditions of this Terms and Conditions shall be treated as Confidential Information and that no reference to the terms and conditions of this Terms and Conditions or to activities pertaining thereto can be made in any form without the prior written consent of the other Party; provided, that either Party may disclose the terms and conditions of this Terms and Conditions:
As required by any court or other governmental body;
As otherwise required by law;
In confidence, to accountants, banks, proposed investors or alliance partners, and financing sources and their advisors;
In confidence, in connection with the enforcement of this Terms and Conditions or rights under this Terms and Conditions;
In confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
This Terms and Conditions shall terminate automatically at the conclusion of the Term, as calculated from the Commencement Date.
This Terms and Conditions can be terminated by either Party by giving a notice period of one (1) month in writing to the other Party.
PayLo shall have the right to terminate this Terms and Conditions by written notice to the Merchant if the Merchant breaches any representation, warranty, covenant, or any term of this Terms and Conditions or fails to comply with any material rules or procedures required by PayLo. Such termination shall be effective from the date mentioned in such written notice.
This Terms and Conditions shall come to an end forthwith if the RBI or any other regulatory agency promulgates any rule, regulation or order which in effect, or application prohibits or substantially impedes the provision of PayLo Services to the Customer.
Upon the termination or expiration of this Terms and Conditions for any reason, the Merchant shall immediately discontinue the use of the PayLo Services.
Upon the termination or expiration of this Terms and Conditions, all the Merchant's rights under the Terms and Conditions shall cease and no payment whatsoever shall be due to the Merchant for loss of goodwill, anticipated profits and any other claims or losses in respect of such termination. The Merchant hereby waives any claim to receive any compensation as a consequence of the termination of this Terms and Conditions. Upon the termination or expiration of this Terms and Conditions for any reason whatsoever the Merchant shall not be entitled to claim from PayLo any compensation for costs or expenses incurred by it in either the setting up or promotion of its business or for any other matter. Parties agree that the pricing provisions sufficiently reflect the risk involved in the present business arrangement.
Upon the termination or expiration of this Terms and Conditions for any reason, the Merchant shall discontinue the use of all Intellectual Property in or upon any material that identifies or relates to PayLo's business, and shall return forthwith to PayLo all materials containing any Intellectual Property within timelines specified by PayLo, cease representing themselves in any manner as the Merchant or representative of PayLo; and, return to PayLo or destroy those documents, records, or other materials (including, without limitation, all copies either photocopy, computer disks media or tapes or the like thereof) which are provided to the Merchant by PayLo or replicated by the Merchant or which may contain any of PayLo's Confidential Information.
Any transaction presented to PayLo after the termination date whether it bears authorization or not, shall not be paid by PayLo, In the event that either of the parties serve a notice of termination of this agreement on the other party, PayLo shall be entitled to withhold for a period of 210 (two hundred and ten) days from the date of termination of the agreement and/or last transaction attempted, balance and amounts payable to the merchant or any balance thereof after making adjustments/deductions in terms of this agreement.
(a)The Merchant shall present all Charge Slips, identity proofs, invoice copies, or any transaction related document as desired by PAYLO to PAYLO at the time of termination; the payments for the same shall be made within 90 (Ninety) days from the date of transaction, subject to the provision of clause 6(b) hereinabove. PAYLO shall accept no further Charge Slips after termination of the services. Where any refund claimed by PAYLO exceeds the amount due to the Merchant, the difference thereof shall be a debt due from the Merchant to PAYLO and be forthwith recoverable by action.
(b)Upon the termination of the services for whatever cause or without cause, the Merchant agrees to return the Equipment to PAYLO unless the same is purchased by the Merchant. For this purpose Merchant agrees to provide PAYLO free ingress and egress to his premises for the removal of Equipment. Further, the Merchant agrees to forthwith pay all dues for the Equipment and/or for any telecom equipment to PAYLO.
23.GOVERNING LAW AND JURISDICTION
The laws of the Republic of India shall govern this Terms and Conditions.
Subject to the provisions of Clause 19 below, the courts of New Delhi shall have the exclusive jurisdiction in respect of any dispute or differences arising out of or in connection with or touching upon the subject matter of this Terms and Conditions.
24. ACTS & CAUSES BEYOND CONTROL
18.1 Neither Party shall be liable for the loss or damage or deemed to be in breach of this Terms and Conditions if its failure to perform its obligations results from: (1) compliance with any law, ruling, order, regulation, requirement or instruction of any Central or State Government or any department or agency thereof, or any municipal or any other statutory body, or any Court of competent jurisdiction; (2) technical, power or other infrastructure failure, electricity break down, , or; (3) acts of God, fires, strikes or other industrial disputes, embargoes, war, insurrection, riots and other causes beyond the reasonable control of the Party. However, in the event of a Parties failure to perform its obligations as a result of acts of God, fires, acts of terrorism, strikes, embargoes, war, insurrection, riots and other causes beyond the reasonable control of such Party, such Party shall use its best efforts to minimize the loss or damage that may be cause to the other Party, and shall endeavor to perform its obligations within a period of ninety (90) days from the occurrence of the event, which earlier prevented it from performing its obligations.
a. Waivers. The failure of either Party to require the performance of any of the terms of this Terms and Conditions or the waiver by either Party of any breach of this Terms and Conditions, shall neither prevent a subsequent enforcement of such terms of this Terms and Conditions nor be deemed a waiver of any subsequent breach. All the waivers, in order to be legally binding, shall be in writing and duly signed by the authorized person of the waiving Party.
b. Severability: If any term or provision of this Terms and Conditions should be declared invalid by a court of competent jurisdiction, the remaining terms and provisions of this Terms and Conditions shall remain unimpaired and in full force and effect.
c. Entire Agreement: This Terms and Conditions including its Annexure/appendix and other documents referred to herein represents the entire Agreement between the Parties and shall supersede /prevail over any other prior Terms and Conditions/ agreement/arrangement with respect to the subject matter hereof.
d. Survivability / Obligations: Subject always to the (Indian) Limitation Act, 1963, termination or expiration of this Terms and Conditions for any reason (a) shall not relieve the Parties of their obligations with respect to the provisions related to Trademarks and Confidentiality, (b) shall not relieve the Parties of any obligation which expressly or by implication survives termination (including but not limited to Clauses relating to Indemnification, Taxes, Confidentiality and Arbitration). In addition to the above mentioned sub-clauses, any other provision which by its content is intended to survive the performance, termination, expiration or cancellation of this Terms and Conditions shall so survive, without limiting the abovementioned sub-clauses in any manner.
e. Assignment: Merchant may neither assign its rights and remedies nor transfer its obligations under this Terms and Conditions without the prior written consent of PayLo.
f. PayLo may take steps (including proceeding in law or in equity for an injunctive relief and for specific performance) necessary to protect its rights, Intellectual Property, Confidential Information.
g. Merchant shall notify the other in writing within forty-eight hours of commencement of any action, suit or proceedings or the issuance of any order, writ, injunction, award or decree of any court, agency or other governmental instrumentality, involving the subject matter of this Terms and Conditions.
h. Regulatory matters: This Terms and Conditions shall at all times be subject to (i) changes or modifications in any regulatory framework and (ii) any necessary approvals of Local, State and Central Regulatory Authorities having jurisdiction over the offering or provision of the PayLo Services to the Customers and/or any of the Merchant's activities in connection therewith.
i. Amendment: PayLo have the right, at its sole and absolute discretion, to change, modify, or amend any portion of these Terms at any time by posting notification here or otherwise communicating the notification to You. The changes will become effective, and shall be deemed accepted by You, after the initial posting and shall apply on a going-forward basis with respect to Transactions initiated after the posting date. You should make sure You view these Terms and Conditions periodically to make sure You are familiar with their most recent version. In the event that You do not agree with any such modification, Your sole and exclusive remedy is to terminate Your use of the Services.
j. Notices: All notices, requests, demands and other communications hereunder shall be in writing and the same shall be deemed to be served, if given personally delivered or sent by registered mail at the addresses as mentioned in the Merchant Enrolment Application Form.
k. Further Assurances: Parties agree to execute all such further documents and instruments and to do all such further things as any other party may reasonably request in order to give effect to and to consummate the transactions contemplated by this Terms and Conditions.