This AGREEMENT (hereinafter referred to as “Agreement”) is made and entered on the day of downloading and activating PaynearONE App.
- Paynear Solutions Private Limited, a company incorporated under the Companies Act, 1956 and having its registered office at No.6-3-347/C/1, Abhinav Enclave, Dwarakapuri Colony, Punjagutta, Hyderabad – 500082 (hereinafter referred to as “Paynear”, which expression shall unless repugnant to the context or meaning thereof shall be deemed to mean and include its successors and assigns) of the ONE PART;
- The person, the details whereof are mentioned in Schedule IV attached hereto (hereinafter referred to as “Merchant”, which expression shall, unless it is repugnant to the context and meaning thereof, shall be deemed to mean and include;
- In case the Merchant is a company or limited liability partnership (LLP) by constitution incorporated under the Companies Act, 1956 or Limited Liability Partnership Act, 2008 including its successors and permitted assigns thereof;
- In case the Merchant is a partnership firm by constitution formed under the Partnership Act, 1932, the partners for the time being and from time to time and their respective legal heirs, executors and administrators of last such surviving partner; and
- In case the Merchant is an individual or a sole proprietary firm, by constitution including his/her heirs, administrators, legal representatives and executors thereof;
- In case the Merchant is a joint Hindu Undivided Family (HUF), by constitution, the Karta and any or each of the adult members of the HUF and their survivor(s); and his / her / their respective heirs, legal representatives, executors, administrators and permitted assigns thereof;
- In case the Merchant is the governing body of a Society, by constitution respective successors of the members of the governing body and any new members elected, appointed or co-opted thereof;
- In case the Merchant is a trust, by constitution the trustee or trustees for the time being thereof and their successors and assigns.
Paynear and the Merchant may, wherever the context so permits, be referred to, collectively, as the “Parties” and individually as a “Party”.)
- Background: Paynear is involved in the business of providing complete payment solution, enabling individuals and businesses of all sizes to easily manage their payment activities. Paynear is desirous, upon Merchant’s request, to provide the Services to the Merchant comprising card acceptance solutions, cash@POS, value added services, domestic money transfer and customer management services as provided in details under Schedule I of this Agreement.
- Overview: By Signing the annexed application and this Agreement, the Merchant offers to receive and, subject to acceptance of the offer and the payment of the relevant fee and charges by the Merchant, the Merchant agrees with Paynear to receive payment processing facilities and services on the terms set out in this Agreement and agrees to comply with all the terms and conditions provided in this Agreement and other applicable laws including but not limited to the regulations, rules, directives, notifications issued by the regulatory authorities from time to time. It is hereby clarified that Paynear in its sole discretion reserves the right to accept or reject the Merchant’s applications.
- Baseline Agreement: This Agreement forms the baseline agreement applicable to all merchants of the services of Paynear including the web application, the mobile application, the tablet application, the card reader application, and the payments services including the services as specified herein and as set forth in Schedule I of this Agreement and such other services as may be agreed to be provided by Paynear from time to time (collectively referred to as the “Service” or the “Service”) to merchants that are “Commercial Entities” as defined by National Payment Corporation of India or Rupay, Visa Inc. USA and MasterCard International, Inc. (collectively referred to as the “Card Brands”) or constitute a body corporate as per laws of India, by acquiring payment transactions entered into by Card holders with such Merchant establishment physically using cards or using a mobile device or over the internet using the website of the Merchant establishment or of Paynear or cash in and cash out services as provided by Paynear under its product named Paynear One.
- Services Offered: Paynear offers and Merchant accepts Card Transaction Services (“CTS”), electronic payment services, cash@POS services, value added services including domestic money transfer and equated monthly installment facility, customer management services and such other services as may be decided by Paynear from time to time and set forth under Schedule I of this Agreement, the terms and conditions of which are described in Schedule II. The Parties hereby agree that the terms and conditions of the Services may be modified or changed or additional terms and conditions may be imposed by Paynear at its sole discretion and the same shall be binding on both the Parties. It is hereby clarified that processing services of Paynear in relation to high risk cards which involves inter alia increased chances of fraud and chargebacks shall not be considered to fall within the purview of the Services and Paynear shall not be liable or obligated under any circumstances whatsoever for rendering its Services for the high risk cards as may be identified by Paynear at its sole discretion and the such decision of Paynear shall be binding on the Merchant.
- Additional Services: Paynear may offer additional services as may be decided by Paynear from time to time (hereinafter referred to as “Additional Services”) to the Merchant. If the Merchant agrees to avail themselves of one or more Additional Services, the terms and conditions of the same shall be recorded in the master service agreement and such other incidental agreements as may be decided by Paynear. If the Merchant agrees to avail themselves of one or more Additional Services in future, the terms and conditions of the same shall be recorded in follow-on service agreements to be signed between Paynear and the Merchant. The Parties hereby agree that Paynear reserves the right to modify, alter and impose additional terms and conditions as may be decided by Paynear at its sole discretion and the same shall be effective and binding on both the Parties to the transaction.
- Acceptance of Bank’s and Transaction Gateway Partner’s Terms: The Merchant by signing or electronically agreeing to the terms hereof to govern the authorization, conveyance and settlement of transactions utilizing the Service, also agrees to abide by the terms and conditions of the and those of the Transaction Gateway Partner/s (hereinafter referred to as “Rules”).
- INTERPRETATION AND DEFINITION
- Definitions: Unless the context otherwise requires, the capitalized terms shall have the meanings as ascribed to them under Schedule III.
- All schedules shall form an integral part of this Agreement;
- Reference to singular includes reference to the plural and vice versa;
- Reference to any gender includes a reference to all genders;
- Any reference to any agreement or document shall be construed as a reference to such agreement or document as the same may have been amended, varied, supplemented or novated in writing at the relevant time in accordance with the requirements of such agreement or document and if applicable, of this Agreement with respect to amendments;
- Reference to any legislation or law or to any provision thereof shall include references to any such law as it may, after the date hereof, from time to time, be amended, supplemented or re-enacted, and any reference to a statutory provision shall include any subordinate legislation made from time to time under that provision;
- References to recitals, clauses, paragraphs and schedules are references respectively to recitals, clauses, paragraphs of and schedules to this Agreement; and
- Headings are used for convenience only and shall not affect the interpretation of this Agreement.
- BASIC TERMS OF ENGAGEMENT
- Merchant’s License: Paynear grants the Merchant a limited, non-exclusive, revocable, non-transferable license (hereinafter referred to as “Merchant’s License”), without the right to sublicense, to electronically access and use the Service as may be agreed to be provided by Paynear along with the electronic device/equipment to accept and receive payments and to manage the funds the Merchant so receives. The Service includes Paynear’s website, software, programs, documentation, tools, internet-based services, mobile-devices-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to the Merchant by Paynear. Merchant shall be entitled to update of the service, subject to any additional terms made known to Merchant at that time, when Paynear makes these updates available.
- Merchant Code: The Merchant’s license shall be evidenced by a Merchant code assigned by Paynear to the Merchant.
- Restrictions on Use: The Merchant shall not permit either directly or indirectly do or undertake to do any acts, deeds to or things or enable or assist any third party, to do or attempt to do any of the following:
- The Merchant is not permitted to use the Paynear Service in any other manner apart from using it to process the payments for the entity and the Products/Services mentioned in this Agreement.
- The Merchant shall not use or permit to use the payment facility and the Services including the electronic equipment and device other than for the usage of and for the business model as has been declared, disclosed and specified to Paynear and such other regulatory authorities as may be required by the applicable laws, at the time of application for obtaining the Merchant License. The Merchant also undertakes that no such information shall be suppressed and/or omitted to be disclosed which shall be required to be duly specified and declared to Paynear as part of the process for availing the Service.The Merchant hereby agrees and acknowledges that in the event of any deviation from the declaration or the business model or such other information as specified herein above by the Merchant to Paynear and such other regulatory authorities or deviation from the usage of the Services as may be availed from Paynear including but not limited to the electronic equipment/device, website, software, programs, documentation, tools, internet-based services, mobile-devices-based services, it shall be the obligation and responsibility of the Merchant to provide prior written intimation to Paynear for matters not limited to the following: (i)change in constitution of the business of the Merchant; (ii) alteration of the business model of the Merchant; (iii) change of registered office or principal office or other place of business; (iv) modification or change or closure of the bank account of the Merchant; (v) any other events which may have a material adverse effect on the business of the Merchant and Paynear;In case the Merchant fails to provide prior notice/intimation in relation to the aforesaid events and/or deviations and upon identification of the same by the banking partners of Paynear or by Paynear itself, the Merchant shall be liable to pay an assessment fee of Rs. 10,000(Rupees Ten Thousands only) immediately upon notice being issued by Paynear to the Merchant. Upon the receipt of notice, the Merchant shall without any demur or protest shall forthwith pay to Paynear the assessment fee.
- Ensure that the supplied equipment is operated by competent and qualified personnel in accordance with operating instructions provided by the manufacturer of such instrument or as instructed by Paynear.
- Keep the supplied equipment safe and notify Paynear immediately of any damage to, or loss of such equipment.
- The Merchant ensures and undertakes that under no circumstances shall the equipment and the facilities be used for personal use by the employees and other agents of the Merchant nor shall allow the use of the equipment/device to be used in the manner for any purpose other than that for which it has been designed or reasonably suited or be used with any other processing system unless prior consent from Paynear is obtained.
- TERM AND TERMINATION
- Effective Date: This Agreement shall become effective from the date of signing of this Agreement.
- General Termination: Any Party may terminate this Agreement or one or more Services delivered under this Agreement at any time with or without cause by providing written notice of ninety (90) days to the other Party after an initial lock-in period of 24 (twenty four) months from the effective date and such termination shall become effective on the date specified by such notice.
- Termination for Merchant Misconduct: Paynear may terminate this Agreement immediately without prior notice if:(i) they have reasons to believe that fraudulent Card Transactions or other activity prohibited by this Agreement or by the Card Brands or prohibited businesses under any other law, is occurring at any Merchant location; (ii) such action is taken to prevent loss to Paynear or Card Issuers, (iii) Merchant appears on any Card Brands or Payment Network’s security reporting; (iv) dispute between the Merchant and customer has arisen due to deficiency in service by the Merchant; (v) any material adverse change in the business or financial condition including bankruptcy or insolvency proceedings commenced by or against the Merchant; (vi) excessive chargebacks or any other circumstances which in the opinion of Paynear may increase the risk of loss; (vii) negligence or willful misconduct of Merchant or its employees or agents; (vi) distribution or offering for sale of information or content that infringes a patent, copyright, trademark, or other intellectual property right or contains libelous, slanderous material; (viii) the Merchant assigns or attempts to assign the Agreement or any portion thereof without the prior written consent of Paynear; (ix) Paynear in its sole discretion deems the Merchant to be potentially and financially insecure; (x) the Merchant or any other person owning or controlling Merchant’s business is listed in one or more databases of terminated or high risk merchants maintained by any banks or financial institutions; (xi) the Merchant engages in conduct that creates or could tend to create harm or loss of goodwill of any of the Card Brands or Paynear(vii) any other breach of any representation and/or obligations by the Merchant under this Agreement.
- Merchant Misconduct related Closure Fee: An administrative account closure fee of Rs.10,000/- (Rupees Ten Thousand only) shall be charged to Merchants who are terminated for the reasons set forth above under the subsection (c) of Clause 4. Merchant shall return the device to Paynear upon termination in good condition. If the Merchant fails to return the device in workable and good condition, an additional amount of Rs.5000 (Rupees Five Thousand only) shall be charged. In the event the Merchant is not using the MPOS device or the electronic device/equipment for a period of 24 (twenty four) months from the Effective Date of this Agreement, Paynear shall be entitled to receive and the Merchant shall upon the expiry of the aforesaid 24 (twenty four) months shall immediately pay a pre-closure fee of Rs 10,000 (Rupees Ten Thousands only) to Paynear without any demur or protest.
- In the event the Merchant or its employees or agents undertakes any acts, deeds or things which damages or potentially exposes Paynear to the risk of damage of the brand/ trade name/trademark or any other intellectual property rights associated or connected with Paynear or undertakes any activities which infringes any other third party rights or introduces any software virus or program in the device designed to disrupt, interrupt, disable, damage, destroy or limit the functionality of any of the systems or device, software, system or equipment or parts thereof, the Merchant shall immediately pay to Paynear an amount of Rs 10,000 (Rupees Ten Thousands only) without any demure, protest or objection upon demand by Paynear.
- Software Effort Recovery Fee: In case of a termination on account of Merchant misconduct or a cancellation by Merchant in its sole discretion within two (2) years from Effective Date, the Merchant shall be assessed for a software recovery fee if it received a free promotional copy of any software or if significant time and effort was imparted by Paynear to integrate with Merchant systems upon entering in this Agreement. Such software recovery fee shall be determined by Paynear in its sole discretion, but shall be no greater than Rs.10,000/- (Rupees Ten Thousands only). This software recovery fee shall be in addition to any termination fee and any other payables as may have been set forth in this Agreement. This clause is not applicable if in case the device is sold to Merchant.
- Lock-in: This Agreement shall be subject to a lock-in period, for a period of two (2) years, wherein if the Merchant, once signs this Agreement, shall be bound by its terms for a minimum period of two (2) years, that is the “Lock-in” period. However if the Merchant wishes to terminate this Agreement before the expiry of the Lock-in period, the Merchant shall be liable to pay a termination fee of Rs. 10,000 (Rupees Ten Thousand Only) to Paynear before terminating this Agreement.
- Effect of Termination: All of Merchant’s obligations under this Agreement that arise or are incurred prior to the effective date of termination shall survive the expiration or termination of this Agreement.
- SETTLEMENT OF CARD TRANSACTIONS
- Paynear through its bank shall be the Acquirer and shall only settle the transactions carried out using the card and other connected Payment methods Like Net banking and wallets, the types of which are specified in Schedule IV. Paynear, in association with the acquiring bank, will take all measures in seeing that the settlement of the payments to the Merchant’s bank account will be done in a very effective manner. However the Merchant acknowledges that Paynear will have a very limited role/control on the settlement as it is being independently managed by the Nodal Bank which is being regulated by RBI guidelines. The settlements will be in accordance with the Card scheme/RBI rules, regulations & guidelines as shall be applicable from time to time; and shall be published on the Card scheme websites.
- The Merchant is required to maintain one or more bank accounts (hereinafter referred to “Settlement Account”) with any bank or as may be specified by Paynear or any other approved financial institution, which shall be used for the purpose of payment of the Transaction Amount less merchant service fee and any other specified amounts. Paynear in association with the Nodal Bank will endeavor to pay such amounts into the Settlement Accounts within timeframes required by law and Card scheme rules after the date of settlement of the transaction. However, no interest is payable and we are not liable for any delay if amounts are not paid within these target timeframes. Paynear reserves the right to initiate credit and debit in the Settlement Account in connection with this arrangement under the transaction documents. If the Merchant intend to change the Settlement Account, the Merchant must notify Paynear in writing and initiate a new payment instruction in relation to new Settlement Account, and the same will be effected within three (3) days of receipt of the Merchant’s notice.
- Subject to the terms of this Agreement, Paynear will pay into the Settlement Account of the Merchant, after presentation of a sales receipt by the Merchant, the value of all valid Transactions processed by Merchant since the last payment/credit to Merchant’s Settlement Account less merchant service fee and any other specified fee and amounts and after withholding refund transactions, chargebacks or other debits Merchant processed and after deducting any additional fees or pricing set out in the Agreement and any indirect tax including service taxes as applicable.
- Paynear shall not be liable, in any manner, for any delays in receipt of funds or errors in debit and credit entries caused by third parties including without limitation, a Card Scheme, Merchant’s financial institution, couriers or any failure in the electronic fund transfer or telephone files.
- All the transaction related details may be obtained from the login provided by Paynear to the Merchant in its website. A copy of printed statement can be sought by the Merchant for any period for a cost set out from time to time for any period by the Merchant by paying the stipulated charges for the same.
- REPRESENTATION AND WARRANTIES
- Representations and warranties by Paynear: Paynear hereby represents and warrants that:
- It is an entity duly organized, incorporated and validly existing under applicable laws;
- It is carrying on its business and affairs in accordance with its Memorandum and Articles of Association;
- It has all requisite corporate, government and other approvals required to carry on its business;
- It has the power and authority to execute and deliver this Agreement; and
- The execution and delivery of this Agreement by the Paynear does not violate any law, rule, regulation or order applicable to it.
- Representations and warranties by Merchant: Merchant hereby represents and warrants that:
- It is an entity duly recognised and validly existing under applicable laws;
- It has all the requisite corporate, government and other approvals required to carry on its business;
- It has the power and authority to execute and deliver this Agreement;
- The execution and delivery of this Agreement by the Merchant does not violate any law, rule, regulation or order applicable to it;
- The Merchant has received, reviewed and understood the terms contained herein prior to executing this Agreement;
- The Merchant acknowledge that upon execution, this Agreement becomes a binding agreement between the Merchant and Paynear from the Effective Date;
- The Merchant undertakes and agrees that for availing the Services it shall abide by and duly adhere to and shall not directly or indirectly violate or be in non-compliance with any or all of the terms and conditions of the third parties and all applicable laws including the directions, rules, regulations, directives and notifications issued by Reserve Bank of India and any other statutory regulatory authorities as may be amended from time to time.
- After due Authorization, the Card Holder’ s identity is completely true, correct and accurate; and
- The Merchant undertakes that all representations and warranties made by the Merchant under this Agreement shall, continue to be true and correct in all respects.
- No Warranties: The Service is provided on an “as is where is” and “as available” basis. To the maximum extent permitted by applicable law, the service is provided without warranties of any kind, whether express or implied, including, but not limited to implied warranties of fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by the Merchant from Paynear or through the service shall create any warranty not expressly stated herein.
- Limitation of Liability: The Service is provided on an “as is where is” and “as available” basis. Paynear will not be responsible and will not take any liability whatsoever arises directly or indirectly out of using its Services. The Merchant agrees to extinguish Paynear from any and all such liabilities, which may arise directly or indirectly by using its Services.
- Service Location: The Service is controlled and operated from Paynear’s facilities in India. Paynear makes no representations that the service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable local laws and regulations, including but not limited to export and import regulations. Unless otherwise explicitly stated, all materials about Paynear are solely directed to individuals, companies, or other entities located in India.
- The Parties agree and acknowledge that the Service is being provided by Paynear in conjunction with other third parties and stake holders, including but not limited to, banks, communication carriers, server and internet service providers, data processors, or clearing houses and payment gateways thorough which transactions may be passed, originated or authorized. The Parties agree that the third party service providers have also set forth terms and conditions and are also be guided by applicable laws, rules and regulations. The Merchant undertakes and agrees that it shall abide by and duly adhere to all the terms and conditions of the third parties and all applicable laws, rules, regulations, directives and notifications as may be amended from time to time.
- The Merchant undertakes to indemnify and hold harmless Paynear for any loss, demands or claims arising from any system or server and internet service failure. The Merchant accepts and agrees that the Services offered by Paynear in terms of the electronic payment acceptance are subject to final approval of the concerned Brands and banking partners and undertake to duly abide by the guidelines, bye laws, rules and regulations of the Brands. It is hereby clarified that the Merchant understand and accepts that Paynear shall provide the Services on a best effort basis and shall not under any circumstances whatsoever be liable to the Merchant or to any third party in relation to or in connection with the Merchant for any loss, damage whether direct, indirect, consequential, exemplary, or for any interruption or loss of use of data, business, profits. Paynear specifically disclaims any warranties of any kind, expressed or implied including without limitation any warranty or merchantability or fitness for a particular purpose with respect to the Services provided hereunder. Without limiting the generality of the foregoing, Paynear does not guarantee or warrant that the Services will be uninterrupted or error free.
- INDEMNIFICATION BY MERCHANT
Merchant, its directors or its employees or its agents (“Indemnifying Party”) agrees to indemnify and hold harmless Paynear, its directors or its employees or its agents, and its acquiring and processing partners, and their affiliates, employees, agents, representatives, members, or stockholders ( collectively referred to as the “Indemnified Party”), from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to any of the following events ( referred herein after as “Indemnification Event”):
- Any dispute between Merchant and a Cardholder or customer, or any Chargeslip paid for by or Transaction Gateway Partner;
- Any actual or alleged action or omission by the Merchant that would constitute a breach of any representation, warranty, or obligation of Merchant set forth in this Agreement;
- Any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Merchant or any of its employees, agents or customers;
- The reliability, accuracy, or legitimacy of payment data submitted by Merchant;
- Any alleged infringement of Paynear’s or third party’s intellectual property rights by the Merchant, involving damage done by the Merchant to the brand name/trade name/trademark/intellectual property of Paynear;
- Any failure of Merchant to maintain the confidentiality of Cardholder information;
- Any failure to provide processing services as set forth in this Schedule I due to any reasons, whatsoever, arising out or in connection with, services not solely attributable to Paynear, including but not limited to, server failure, system failure, network failure, authentication issues, etc.;
- Merchant’s wrongful or improper use of the device or service;
- Any damage to the device/equipment provided by Paynear;
- Any transaction submitted by Merchant through the service (including without limitation the accuracy of any Product Information that the Merchant provides or any claim or dispute arising out of products or services offered or sold by the Merchant);
- Any other party’s access and/or use of the Service with Merchant’s unique Merchant Code, password or other appropriate security code;
- Any deficiency in the service or non delivery of products/services; and
- Merchant’s violation of any law, rule or regulation of India or any other country.
8.1 PROCEDURE FOR INDEMNIFICATION
- Upon the Indemnified Party becoming aware of any matter or circumstance in relation to the Indemnification Event, the Indemnified Party shall forthwith and in any event within a period of seven (7) days following the date on which such matter or circumstance has actually been brought to/ actually comes to the attention of the Indemnified Party, inform the Indemnifying Party in writing of such matter/circumstance (“Indemnification Notice”).
- Upon receipt of the Indemnification Notice by the Indemnified Party, the Indemnifying Party shall perform all the necessary actions so as to make full restitution to the Indemnified Party no later than seven (7) days from the date of final determination of the indemnified claim (“Indemnified Claim”). If the Indemnifying Party does not object to the claims made under the Indemnification Notice, within the period provided above, in accordance with the Indemnification Notice, it shall be conclusively deemed to have accepted the claims made in such Indemnification Notice and must promptly restitute the Indemnified Party on demand. If, however, the Indemnifying Party does object to the claims made under the Indemnification Notice, within the seven (7) days of the receipt of the Indemnification Notice by delivering to the Indemnified Party a notice in writing of such objection, the Indemnifying Party and the Indemnified Party shall make best efforts to amicably resolve the objections. If such objections are not resolved within seven (7) days, either Party may seek resolution of the dispute as per the applicable law. Notwithstanding anything contained herein to the contrary, the Indemnified Party shall have the right to demand the payment of the Indemnified Claim amount as and when they arise during the pendency of any dispute resolution; provided that, if it is determined by a final non-appealable judgment of the court of competent jurisdiction that any such payment of Indemnified Claim paid by the Indemnifying Party to the Indemnified Party was not due and payable to the Indemnified Party under the terms of this Agreement, the Indemnified Party shall on the order of such court, refund the Indemnifying Party of such Indemnified Claim amount, where such Indemnified Claim amount were paid by the Indemnifying Party to the Indemnified Party.
- CONFIDENTIAL INFORMATION
- Obligations of Paynear: Paynear shall comply with the rules in how it treats Merchant transaction information. Paynear may disclose information relating to Merchant’s sales to financial institutions, networks and third parties that need the information for a purpose relating to this Agreement and to the Paynear’s agent or referral source, if any, that played a role in establishing Merchant’s relationship with Paynear solely for the purpose of computing payment due to such persons. Paynear may also disclose information regarding the Merchant as part of an investigation by Paynear into Merchant’s compliance with its obligations under this Agreement if Paynear determines there is cause to make such an inquiry, or to the extent required by a court or governmental authority, or otherwise as required by law.
- Obligations of Merchant: Except to the extent specifically permitted by the rules of this Agreement, Merchant shall not disclose any information relating to any Card or M-POS Transaction, or any Cardholder to any person or entity other than Paynear, its employees, its agents and independent contractors hired by Paynear, and those of Merchant’s employees who have a specific need to know such information except to complete the transaction or as otherwise required or authorized under this Agreement or by law. Merchant shall treat all documents provided by Paynear relating to this Agreement as confidential and proprietary and protect them with the same degree of care as Merchant would protect its own confidential and proprietary information, and not less than reasonable care. Merchant must notify Paynear of any third party agent of Merchant that shall have any access to Cardholder data.
- Proprietary Information: All materials, software, hardware and training materials supplied/shared by Paynear to the Merchant are solely owned by Paynear and its licensed partners. Under no circumstances, the Merchant should share any such information with any third party without a explicit written permission from Paynear and any violation on this will terminate this Agreement and will be treated as willful Merchant misconduct. All applicable fines, penalties and charges will be levied against the Merchant in case if such misconduct is proved. As part of the customer management services as set forth in Schedule I, Paynear shall provide facilities in the processing system which shall enable the Merchant to store customer data and other relevant details of the customer including the details of the transaction. The Merchant hereby undertakes and agrees that Paynear shall have unrestricted access to the aforesaid customer data as may be stored in the system by the Merchant and shall have the full right to use the said customer data for analysis and data mining purposes and for such other purposes as may be deemed by Paynear.
- Merchant User Account Access: If Merchant receives a user identification name or password from Paynear to access Paynear’s database or use services offered by Paynear, the Merchant shall: (i) keep the user identification name and password confidential; (ii) not allow any other entity or person to use the user identification name or password or gain access to Paynear’s database; (iii) be liable for all action taken by any user of the user identification name or password; and (iv) promptly notify Paynear if Merchant believes the user identification name or password have been used inappropriately or the confidentiality of the information made available through their use has been compromised in any manner whatsoever.
- EQUIPMENT HARDWARE AND SOFTWARE
- Equipment provided by Paynear: Paynear sells/leases equipment to the Merchant or provide equipment to the Merchant as part of promotional offers that require the Merchant to process Merchant services for a specified period of time. Merchant agrees to pay the deposits, documentation charges, advance rentals and any other agreed charges and related taxes for any such equipment supplied by Paynear as provided under the terms of the offer made by Paynear to the Merchant.
- Leased Equipment: Paynear does not lease any other equipment other than the mentioned equipment/device. However, the Merchant is required to verify with Paynear the terms of any equipment lease it has entered into, in connection with equipment it has obtained for processing transactions under this Agreement from a third party service provider.
- Termination & Equipment Returns: Merchant may terminate this Agreement and return the equipment/device in working condition within a period of seven (7) days from the date of termination. Equipment returns may be subject to a Rs.7,500/- (Rupees Seven Thousand and Five Hundred only) as lease cancellation fee if returned within the lock-in period. However, if the equipment is returned after the lock-in period, the Merchant may terminate this Agreement and return the device in working condition to get the device deposit (if paid any in advance). The device deposit (if paid any in advance) will be refunded back to the Merchant within 30 days of the receipt of the device by Paynear, after duly verifying that the equipment has been received in working condition by Paynear. In the event the device is not returned by the Merchant within seven (7) days from the date of termination, the Merchant shall pay to Paynear, an amount of Rs.10,000/- (Rupees Ten Thousand only) against the loss of the equipment/device. It is hereby agreed between the Parties that Paynear retains the title to the equipment /device and ownership and intellectual property rights in all the software, documentation, technology, knowhow and processes embodied in connection with the equipment and the equipment is leased with no representation or warranties, express or implied, statutory or otherwise including without limitation as to the suitability of the equipment for any particular purpose, quality, merchantability, fitness or otherwise.
- Equipment Support: From time to time, at the Merchant’s request, Paynear may provide assistance to the Merchant to facilitate the exchange of unoperational equipment/device. Paynear primarily will try to resolve the technical issues through remote access and if it is not resolved, then the Merchant may request for exchange of such unoperational equipment/device.
- Disclaimer of Equipment Warranties: Merchant understands that Paynear is not manufacturer of equipment/device used to process electronic payment transactions. For any issue arising out of usage of the provided equipment/device, Paynear will replace the equipment/device only subject to the terms and conditions of the use of such equipment/device.
- OTHER TERMS
- Modifications to Agreement: Paynear may from time-to-time amend any provision of this Agreement, including those relating to discount rates or other fees and charges payable by the Merchant, whether such amounts are set forth in the Merchant application, schedule of fees or fee sections of the Agreement. Paynear shall provide notice to the Merchant of any such amendment, and unless specified otherwise, the amended Agreement shall become effective at the start of the first billing cycle after Paynear has provided such notice to the Merchant. Amendments due to changes either in a Card Brand or payment network’s fees, interchange, assessments, rules, gift card systems or any law or judicial decision shall become effective at such time that Paynear may specify, which may even be before the beginning of the next billing cycle, following the date of such notice sent by Paynear to the Merchant.
- Additional Services Offered by Paynear: From time to time, Paynear may offer to the Merchant additional products and services, which may or may not be related to the processing of credit card Transactions. In the event of such offers being made to the Merchant, Merchant shall indicate its desire to Paynear to decline such offers, failing which the Merchant shall be deemed to have accepted such offers and be liable for payment therefore. The Parties hereby agree that Paynear reserves the right to modify, alter and impose additional terms and conditions as may be decided by Paynear at its sole discretion and the same shall be effective and binding on both the Parties to the transaction.
- Merchant Dispute Notification: Merchant is responsible for the timely reconciliation of all issues related to services provided under this Agreement. Merchant must submit any dispute to Paynear in writing within sixty (60) days of the initial posting of the disputed item to the Merchant Account or appearance of the disputed item on the Merchant’s statement. If a dispute of any kind arises, Paynear agrees to an informal and inexpensive dispute resolution process requiring individual arbitration. “Disputes” between Merchant and Paynear are defined for the purposes of this Agreement to include any claim, controversy or dispute (whether involving contract, tort, equitable, statutory or any other legal theory) between the Merchant and Paynear including but not limited to any claims relating in any way to this Agreement (including its breach, termination and interpretation), any other aspect of our relationship, Paynear’s advertising, and any use of Paynear’s software or services. “Disputes” also include any claims that arose before this Agreement and that may arise after termination of this Agreement.
- Force Majeure: The obligations of each Party under this Agreement shall be suspended during the period and to the extent that that Party is prevented or hindered from complying with them by any cause beyond its reasonable control, including (insofar as beyond such control but without prejudice to the generality of the foregoing expression) strikes, lock-outs, labour disputes, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, difficulty or increased expense in obtaining workmen, materials, goods or raw materials in connection with the performance of this Agreement. In the event of either Party being so hindered or prevented, the Party concerned shall give notice of suspension to the other Party as soon as reasonably possible, stating the date and extent of the suspension and its cause, and the omission to give such notice shall forfeit the rights of that Party to claim suspension. Any party whose obligations have been suspended as aforesaid shall resume the performance of those obligations as soon as reasonably possible after the removal of the cause and shall so notify the other party. In the event that the cause continues for more than six months, either Party may terminate this Agreement by giving the other Party prior 30 days’ notice.
- Choice of Law, Jurisdiction: This Agreement shall be subject to the laws of India. The Parties submit themselves to the exclusive jurisdiction of the Courts at Hyderabad. Any dispute or differences whatsoever arising between any of the Parties out of or relating to the interpretation, construction, meaning and operation or effect of this Agreement or any breach thereof shall be first attempted to be settled amicably by such Parties by negotiations and if such a effort fails then by arbitration by a panel of one arbitrator appointed by the Parties in accordance with the Indian Arbitration and Conciliation Act, 1996 and the award made in pursuance thereof shall be final and binding on all Parties. The Parties shall bear the costs of the arbitration equally in the first instance, subject to the final award as to costs that may be passed by the arbitrator.
- Costs: If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, or any part thereof, the prevailing Party shall be entitled to recover its reasonable attorneys’ and experts’ fees and costs in addition to any other legal and/or equitable remedies to which it is entitled.
- Refund: If the Cardholder claims a refund, in order for Paynear to process a refund to the Cardholder’s Card, the Merchant must provide Paynear with necessary documents as may be sought by Paynear, including a cheque for the amount of refund and shall also extend all the necessary cooperation as required by Paynear during the entire process of settling such refund.
- Publicity: Merchant agrees that Paynear may issue a press release or similar public announcement announcing the Merchant as a customer of Paynear. Merchant also grants to Paynear a limited license to use Merchant’s and its affiliates’ names, logos, trademarks, service marks or copyrights in any advertising, promotional or instructional materials for Payenar or its affiliates’ services.
- Ownership and Intellectual Property: The service is licensed and not sold. Paynear retains all the rights, title and interest in and to the services and any related technology utilized by it under or in connection with this Agreement, including but not limited to all associated intellectual property rights. No title to or ownership of any of the foregoing is granted to the Merchant or any other entity or person under this Agreement. Merchant shall not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the M-POS service or related technology. The Merchant has no right whatsoever to use any of the Intellectual Property Right of Paynear without the prior approval from Paynear. If the Merchant is found in breach of this obligation, Paynear has the absolute right and discretion to impose penalty upon the Merchant to the extent it deems fit under such scenario.
For the purposes of this Agreement, “Intellectual Property Rights” means and includes all patent rights, copyrights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
- Rights Cumulative: All rights and remedies existing in this Agreement are cumulative to, and not exclusive of, any other rights or remedies available under contract or applicable law.
- Headings: The headings listed after each section number in this Agreement are inserted for convenience only and do not constitute a part of this Agreement and are not to be considered in connection with the interpretation or enforcement of this Agreement.
- Waiver: Failure by any Party to enforce one or more of the provisions of this Agreement shall not constitute a waiver of their right to enforce the same or other provisions in the future. All waivers must be signed by the waiving Party.
- Entire Agreement: This Agreement, including the Merchant application, the Schedule of fees, the rules, and exhibits expresses the entire understanding of the Parties with respect to its subject matter and except as provided to the contrary herein, reference to this Agreement shall also include all the documents incorporated into this Agreement by reference.
- Severability: If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the Parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the Parties.
- Authorization of Agreement: Each Party represents and warrants that the person signing or electronically authorizing the Agreement is duly authorized to bind the Party to all provisions of this Agreement and that such person is authorized to execute any documents and to take any action on behalf of the Party, which may be required by the other Party now or in the future.
- User content: In connection with details associated with Merchant code, Merchant and/or its agents (hereinafter referred to as “Merchant Users”) may upload photos or other materials or information to the service (hereinafter referred to as “User Content”). Merchant agrees that the Merchant Users shall not upload User Content to the service unless the Merchant User has created that content themselves, or Merchant User has permission from the copyright owner to do so.
- For any User Content that the Merchant User uploads to the service, the Merchant User grants Paynear and its subsidiaries, affiliates, and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable, and sub licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display that User Content throughout the world in any media in order to provide and promote the service and Paynear’s business. The Merchant retains all the rights in the User Content, subject to the rights granted to Paynear in this Agreement.
- Merchant agrees not to upload to the service or otherwise post, transmit, distribute, or disseminate through the service any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity or privacy; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with Paynear’s or its partners’ products and services, as determined by Paynear in its sole discretion; or (f) in Paynear’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the service, or which may expose Paynear, its affiliates, or users to harm or liability of any nature.
- Although Paynear has no obligation to screen, edit, or monitor any User Content, Paynear reserves the right, and has absolute discretion, to remove, screen, edit, or disable any User Content at any time and for any reason without any notice to the Merchant. Merchant understands that by using the service, the Merchant may be exposed to User Content that is offensive, indecent, or objectionable. Paynear takes no responsibility and assumes no liability for any User Content, including any loss or damage to any of User Content.
- Relationship of the Parties: The parties are independent contractors and nothing in this Agreement shall make them joint ventures, partners, employees, agents or other representatives of the other Party.
- Counterparts: If copies of this Agreement or any amendments are to be physically signed, this Agreement may be executed and delivered in several counterparts and transmitted by facsimile, a copy of which shall constitute an original and all of which taken together shall constitute a single Agreement.
- General: Each Party is responsible for its employee’s actions while such employee in its scope of employment. The Parties do not intend to confer any benefits under this Agreement to any person apart from the Parties. Each Party is also responsible for procuring, maintaining and servicing all equipment and software necessary to allow it to engage with the other Party systems, as well as for all related internet, telecommunication, mobile phone (including SMS charges and mobile data plan fees) and other similar fees.
- Survival: All Clauses of this Agreement that by their very nature should survive termination or expiration shall survive, including, without limitation, Clause 4, Clause 6, Clause 7, Clause 8, Clause 8.1, Clause 9, Clause 10 (c), Clause 11 (c), Clause 11 (e), Clause 11 (i) and Clause 11 (t).
Paynear is in the business of providing the payment settlement processing to the Merchant by following below mentioned processes:
- Card Acceptance Solutions comprises of: (i) Card present solutions i.e. MPOS; and (ii) Card not present i.e. electronic payment gateway solutions and net banking; and (iii) such other similar services as may be offered and provided by Paynear in future from time to time. The commercials for additional services shall be decided by Paynear and the Merchant hereby agrees to accept the same and shall be binding.
- Value Added Services: This includes offering of services which enables the Merchant to render facilities such as recharges, bill payments and such other similar services as may be offered and provided by Paynear in future from time to time particular wherein the Merchant maintain a closed loop wallet with Paynear. The commercials for additional services shall be decided by Paynear and the Merchant hereby agrees to accept the same and shall be binding. In addition to the aforesaid, Paynear shall also provide Services pertaining to domestic money transfer services/facility in conjunction with other service providers and stakeholders having license and approvals to operate and render the said services. Paynear shall integrate its processing system with the prepaid licensed service provider and the merchant shall have to maintain a closed loop wallet account with Paynear for availing the facility.
- Cash@ POS: This includes offering of services which enables the Merchant to dispense cash from the establishment of the Merchant upon the swiping of the card by the customer based on the agreed commercial as set forth in Schedule IV
- EMI Services: Subject to the final approval from the acquiring banks, Paynear may provide and enable the Merchants to process EMI facilities /transactions for its customers. The commercials for such services shall be decided by Paynear and the Merchant hereby agrees to accept the same and shall be binding.
- Customer Management Solutions: This shall enable the Merchant to store customer data and other details in relation to a transaction into the system and maintain a record of the customer data for future references. Additionally as part of the said services Paynear may also provide in future facilities such as discount couponing and loyalties solutions etc. The commercials for such services shall be decided by Paynear and the Merchant hereby agrees to accept the same and shall be binding.
TERMS AND CONDITIONS FOR CARD TRANSACTION SERVICES (“CTS”)
The following terms and conditions govern card transaction services provided by Paynear to the Merchant.
- COMMERCIAL TERMS
- Fees: Unless stated in the Merchant Processing Agreement (referred to as “MPA”) to the contrary, the following fees are applicable. Additional fees specific if any, to any current or future service offering included in the Service are set forth in MPA defining the terms of that service offering.
- Paynear Per Transaction Charges (PPC): As mentioned in Schedule IV.
- Annual Maintenance charges/Monthly Maintenance Charges: This is charged by Paynear for providing the services to the Merchant. The charges may vary based on the Services utilized by the Merchant and is mentioned herein under Schedule IV of this Agreement.
- Cross Border Transaction Fee: For all cards issued outside of India, cross border transaction fee shall be applicable as mentioned in Schedule IV.
- Set-up Fee: As mentioned in Schedule IV.
- Merchant Settlement Account Change Fee: If the Merchant changes the Merchant Settlement Account, the fee for processing the change shall be Rs.1,000/- (Rupees One Thousand only) and such change shall be intimated immediately to Paynear.
- Merchant Business Name Change Fee: If the Merchant changes the business name, the fee for processing the change shall be Rs.1000/- (Rupees One Thousand only) and such change shall be intimated immediately to Paynear.
- Chargeback Retrieval: If the Merchant needs the assistance of Paynear to retrieve any information related to a chargeback, the fee for the same shall be Rs.300/- (Rupees Three Hundred only) for each and every instance where the Merchant seeks such assistance of Paynear.
- Late Payment Fee: In addition to other remedies provided to Paynear under this Agreement, if any sum is overdue by the Merchant to Paynear under this Agreement and has not been paid when such amount became due, the Merchant shall pay Paynear a late payment fee, as set forth in the Agreement, plus a late payment charge equal to one and half percent (1.5%) per month on the unpaid amount or Rs. 300 (Rupees Three Hundered only) whichever is higher, as determined and compounded daily from the date due of such unpaid amount until the date of payment. Payment of such late payment fee and finance charges shall not excuse or cure any breach or default for the late payment herein.
- Transaction Statement Fee: For all the Transaction data that the Merchant requires in print/hard copies for a specific time frame related to the current year or earlier periods, a fee of Rs.500/- (Rupees Five Hundred only) shall be levied for every request by Paynear.
- Device returns: If for any reason mentioned elsewhere in this agreement, if the Merchant is terminated of services from Paynear, the device and the solution provided by Paynear is to returned in good condition by the Merchant failing which Paynear reserves the right to impose penalties as may be communicated from time to time, such penalty being not less than the cost of the device. In addition to the penalty (if imposed any), a logistic charge of Rs.1,000/- (Rupees One Thousand only) will be charged for obtaining the device back and reformatting it and communicating to banks and various intermediaries involved in the payment processing. No other charges are levied if the Merchant returns the device in good working condition to Paynear or agent/distributor/partner of Paynear. It is the sole discretion of Paynear to decide whether the device/equipment is in absolutely proper condition as desired or not.
- Settlement Day/s: Unless stated in the MPA to the contrary, for all transactions, Paynear shall instruct its bank to remit Payable Amount to Merchant within two (2) working days from the date when the Transaction was done.
- Transaction Limits:
- Approved Daily Volume: The Payable Amount for any one day is as mentioned in Schedule IV, unless to the contrary is agreed and communicated.
- Average Ticket Size: As mentioned in Schedule IV.
- On Location Advertising: Merchant shall prominently display the promotional materials provided by Paynear in its place(s) of business. Use of promotional materials and use of any trade name, trademark, service mark or logo type (hereinafter referred to as “Marks”) associated with Card(s) shall be limited to informing the public that Card(s) shall be accepted at Merchant’s place(s) of business. Merchant’s use of promotional materials and Marks is subject to the direction and prior approval of Paynear.
- On Device Advertising: Merchant agrees that Paynear may prominently display its promotional materials on devices used for performing CTS.
- Advertising on Card Holder Collateral: Merchant agrees that Paynear may prominently display or print or otherwise embed its promotional messages on displayed and printed information being conveyed to the Card Holder.
- Card Brand Non-Association: Merchant shall not use any promotional materials or Marks associated with any Card Brand, in any way, which implies that the Card Brand endorses any goods or services other than Card services.
- RULES OF ENGAGEMENT
- Merchant Account:
- Merchant Bank Account Information: Merchant shall provide Paynear with details of a bank account (referred to as “Merchant Account”) maintained by the Merchant at a bank approved/recognized by Paynear. Merchant shall maintain sufficient funds in the Merchant Account to satisfy all obligations, including the fees, Chargebacks and returns contemplated by this Agreement.
- Merchant Account Verification: Merchant irrevocably authorizes Paynear to send a credit of a random amount between one Paise (Rs 0.01) and Rupee Ten (Rs 10.00) to Merchant Account. The Merchant agrees to determine the exact amount credited to Merchant Account and convey the same to Paynear correctly, to complete the process of verification of Merchant Account (referred to as “Merchant Account Verification”). Merchant agrees that unless the Merchant Account is thus verified, Paynear shall not be responsible for timely credits to be effected against the Payable Amounts.
- Authorization to Post Entries in Merchant Account: Merchant irrevocably authorizes Paynear to debit the Merchant Account for fees, Chargebacks, returns, fines and any other penalties or amounts owed under this Agreement. In the event the Merchant Account lacks sufficient funds or the entry cannot be posted by Paynear, Merchant authorizes Paynear to post the entries and cause the resultant debits/credits, upon request by Paynear, before the close of the banking hours for the day.
- Change in Merchant Account: Merchant must obtain prior consent from Paynear to change the Merchant Account. Merchant agrees that upon change in Merchant Account, the Merchant Account Verification process shall be re-performed on the new Merchant Account, before any credits on account of Payable Amounts can be posted to new Merchant Account. The Merchant shall also pay Paynear the required charges for carrying out such change, as mentioned under this Agreement.
- Settlement and Adjustment: Paynear shall settle all Payable Amount to the Merchant Account subject to the terms of this Agreement. Merchant authorizes Paynear to initiate reversal or adjustment entries and initiate or suspend such entries as may be necessary to grant Merchant conditional credit for any entry. Paynear shall be entitled to receive from Merchant any other charges and costs demanded by others or incurred by Paynear on Transactions acquired under this Agreement.
- Errors: Merchant shall promptly examine all Merchant statements relating to the Merchant Account and immediately notify Paynear in writing or by email, in case of any errors. The standard delivery method for monthly statements is in an electronic, online version. A hard copy version is available upon request for which additional fees of Rupees Five (Rs 5.00) per printed page of A4 size, may apply. Merchant’s written or electronic notice must include: (i) Merchant code, assigned by Paynear and Merchant’s name and Account number, (ii) the amount of the asserted error, (iii) a description of the asserted error, and an explanation of why Merchant believes an error exists and the cause of it, if known. Such written notice must be received by Paynear within ten (10) days of the Merchant receiving the periodic statement containing such asserted error. Merchant may not make any claim against Paynear for any loss or expense relating to any asserted error (as mentioned in the notice) for a period of thirty (30) days immediately following receipt of Merchant’s written notice. During that thirty (30) days period, Paynear shall be entitled to investigate the asserted error and Merchant shall not incur any cost or expense in connection with the asserted error without notifying Paynear.
- Merchant Account Unavailable: If the Merchant Account is closed or is otherwise unavailable to Paynear, Merchant and/or Guarantors consent to Paynear locating additional deposit accounts or assets by using any means legally available. In this event, Merchant waives all rights to his privacy in favor of Paynear until such time as all unpaid Chargebacks and fees owed to Paynear have been paid in full.
- Card Acceptance: When accepting a Card, Merchant shall follow the steps provided by Paynear and its for accepting Cards and shall:
- Determine in good faith and to the best of its ability that the Card is valid on its face.
- Merchant may not require Card Holder(s) to provide any personal information as a condition of honoring a Card unless such information is required for delivery of the goods or services or Merchant has reason to believe that the person presenting the Card may not be the actual Card Holder.
- Obtain Authorization before completing any Transaction. Where Authorization is obtained, Merchant shall be deemed to warrant the true identity of the customer as the Card Holder.
- Obtain the Card Holder’s signature on the Charge slip, wherever required, and compare that signature to the signature on the Card.
- Deliver a true and complete copy of the Chargeslip to the Card Holder at the time of delivery of the goods or performance of the services, or if the Chargeslip is prepared by a point-of-sale terminal, at the time of the sale.
- Not request Authorization for a Transaction unless Merchant intends to submit a Transaction for the authorized amount.
- Not attempt to obtain Authorization on an expired Card. Transactions shall be deemed invalid on Cards that are expired, whether or not Authorization has been obtained.
- Use its best efforts, by reasonable and peaceful means, to retain or recover a Card when receiving such instructions upon making a request for Authorization. In carrying out such obligation, Merchant shall not breach the peace or cause any injury to any person or property.
- Establish a minimum transaction size for accepting Card transactions, or such other amount established by law, and such minimum transaction size requirement does not discriminate between card issuers or between payment card networks.
- Not accept a Card as payment (other than for a mail order, telephone order, or preauthorized sale to the extent permitted under this Agreement), if the person seeking to use the Card does not present the Card to permit the Merchant to examine it and obtain an imprint or otherwise use the physical Card to complete the Transaction.
- Settlement Eligibility:
- Collection of Pre-Existing Debt: Merchant shall not present any Transaction representing the refinancing of an existing obligation of a Card Holder including, but not limited to obligations (i) previously owed to Merchant, (ii) arising from the dishonor of a Card Holder’s personal check, and/or (iii) representing the collection of any other pre-existing indebtedness, including collection of delinquent accounts on behalf of third parties.
- Prohibited Payments: Unless specifically authorized in writing by Paynear, the Merchant shall not collect or attempt to collect from a Card Holder amounts owed for any Transaction and shall promptly deliver to Paynear any payment Merchant receives, in whole or in part from a Card Holder for any Transaction, together with the Card Holder’s name and account number and any correspondence accompanying the payment.
- Cash Payments: Merchant shall not receive any payments from a Card Holder for charges included in any Transaction resulting from the use of a Card nor receive any payment from a Card Holder to prepare and present a Transaction for the purpose of affecting a deposit to the Card Holder’s Card account.
- Cash Advances:
- Merchant shall not deposit any Transaction for the purpose of obtaining or providing a cash advance either on Merchant’s Card or the Card of any other party. Merchant agrees that any such deposit shall be a ground for immediate termination by Paynear.
- Merchant shall not under any circumstances, obtain Authorization for, nor process a sale on any card that Merchant is not authorized to use. Processing Merchant’s own card is grounds for immediate termination.
- Duplicate Transactions: Merchant shall not deposit duplicate Transactions. Merchant shall be debited for any duplicate Transactions and shall be liable for any Chargebacks that may result therefrom.
- Deposit of Fraudulent Transactions: Merchant shall not accept or deposit any fraudulent Transaction and may not present for processing or credit, directly or indirectly, a Transaction, which originated with any other Merchant or any other source. Merchant shall not deposit Transactions evidencing sales that were solicited by outbound telemarketing activities. If Merchant deposits any such transactions, Paynear may hold funds and/or demand a Reserve Account. Perpetrators of fraudulent transactions shall be referred to law enforcement officials and may be subject to Card Brand penalties.
- Settlement of Transactions: Paynear accepts from Merchant all valid Chargeslips under the terms of this Agreement and shall present the same to the appropriate Card issuers for collection against Cardholder accounts. Settlement of all Chargeslips is subject to this Agreement. Paynear shall provisionally credit the value of collected Chargeslips to Merchant Account and reserve the right to adjust amounts so credited to reflect the value of Chargebacks, fees, penalties, late submission charges, the difference in currency exchange if the Chargeback amount is greater than the original sale, issuer claims, and items for which Paynear did not receive the final payment for any reason. Paynear may refuse to accept any Chargeslip or revoke its prior acceptance of a Chargeslip in the following circumstances: (a) the transaction giving rise to the Chargeslip was not made in compliance with all the terms and conditions of this Agreement, or; (b) the Card Holder disputes his liability to Paynear for any reason, including but not limited to those Chargeback rights enumerated in the rules, or; (c) the transaction giving rise to the Chargeslip was not directly between Merchant and Card Holder, or; (d) the transaction is outside the parameters indicated on the Merchant Application. Merchant shall pay Paynear and for any amount previously credited to the Merchant for a Chargeslip not accepted or later revoked by them.
- Chargebacks: All Chargebacks are due upon presentation to Merchant. In the case of a failure to pay a Chargeback upon such presentment, in addition to any other remedies which may be exercised by Paynear, Merchant agrees to pay a late charge of one and half percent (1.5%) per month or portion thereof, or the highest amount allowable by law, whichever is less, on all unpaid Chargebacks. Paynear are authorized to deduct the amount of any Chargebacks and fees from any settlement amounts due to the Merchant or from the Reserve Account, if any, or collect by any other means. Merchant understands and agrees that Sales Transactions are subject to Chargeback for a variety of reasons under the rules, or if Merchant has breached this Agreement, including without limitation, for the following reasons:
- The Chargeslip is illegible, not signed by the Cardholder or has not been presented to within the required time frames.
- The Chargeslip does not contain the imprint of a valid unexpired Card.
- A valid Authorization number has not been correctly and legibly recorded on the Chargeslip.
- The Chargeslip is a duplicate of a prior Transaction or is the result of two or more Transactions generated for a single sale.
- The Cardholder alleges that he or she did not participate in the sale, authorize the use of the Card, receive goods or services purchased, or receive a required credit adjustment, or disputes the quality of the goods or services purchased.
- The price of goods or services on the Chargeslip differs from the amount that Merchant presents for payment.
- The Transaction results from an internet, mail, phone or preauthorized order and the Card Holder disputes entering into or authorizing the Transaction or the Transaction has been made on an expired or non-existing account number.
- Paynear reasonably believes in its discretion that Merchant has violated any provision of this Agreement.
- Paynear reasonably determines that the Transaction is not bona fide or is subject to any claim of illegality, cancellation, rescission, or offset for any reason whatsoever, including without limitation, negligence, fraud or dishonesty on the part of Merchant or Merchant’s agents or employees.
- Merchant fails to provide a Chargeslip or legible copy thereof to Paynear in accordance with this Agreement.
- Merchant shall not initiate a Transaction in an attempt to collect a Chargeback.
It is hereby agreed between the Parties that in the event it appears to the reasonable opinion of Paynear that a particular transaction is fraudulent or suspicious or incorrect data has been inserted, Paynear shall not be obligated or responsible in any manner whatsoever and the Merchant hereby accepts the responsibility for such incorrect and fraudulent transaction and shall be liable to pay Paynear the entire amount of the said transaction without any objection, protest or demur upon receipt of notification by Paynear to the Merchant. Paynear undertakes to take all steps for representing the case before the banks, however Paynear shall not be responsible nor provide any guarantee for the recovery of the aforesaid transaction amount. The Merchant understands and agrees that fraudulent and incorrect transactions and consequent chargebacks shall not be considered to fall within the purview of the Services and Paynear shall not be liable or obligated under any circumstances whatsoever for rendering its Services in relation to the same.
- Recoupment and Set-Off: Paynear has the right of recoupment and set-off. This means that they may offset any outstanding/uncollected amounts owed to them from: (i) any amounts they would otherwise be obligated to deposit into the Merchant Account or with any advance account which the Merchant is maintaining with Paynear , and (ii) any other amounts Merchant may owe to Paynear under this Agreement or any reporting, or any other agreement.
- Fiduciary Relationship: Whenever Merchant has a deposit held with any bank that arose from or is subject to this Agreement, to which, pursuant to this Agreement, Merchant is not entitled, Merchant’s entitlement to such deposit shall be as a fiduciary of Paynear until any claim by Paynear against Merchant has been resolved. Merchant agrees that its failure to repay, within ten (10) calendar days of notification by Paynear, funds to which Merchant is not entitled to, shall result in a presumption that Merchant intends to misappropriate such funds. Merchant further agrees that in the event Paynear seeks to enforce its rights herein in a court of competent jurisdiction, and that any receivership, temporary restraining order, preliminary injunction, Writ of Attachment or Writ of Possession may be issued against Merchant without bond.
- Payment of Fees and Other Amounts Owed: g.Merchant shall pay to Paynear the fees and charges set forth in this Agreement. Merchant agrees that Paynear may collect its fees and other amounts owed under this Agreement by netting against the proceeds of Merchant’s processing activity. Merchant is obligated to pay all taxes and other charges imposed by any governmental authority on the services provided under this Agreement.
- Reimbursements: h.Merchant shall immediately pay Paynear any amount incurred by Paynear attributable to this Agreement or any other Agreement between the Merchant and Paynear or any subsidiary or affiliate of Paynear, including but not limited to equipment fees, Chargebacks, returns, fines imposed by a third party, non-sufficient fund fees that overdraw the Merchant Account, Reserve Account, or are otherwise dishonored. Merchant authorizes Paynear to debit the Merchant Account, the Reserve Account any other account Merchant has with Paynear, an affiliate or subsidiary of Paynear, its or at any other financial institution for any amount. Merchant owes under this Agreement or under any other contract, note, guarantee, or dealing of any kind now existing or later entered into between Merchant and Paynear or any subsidiary or affiliate of Paynear, whether Merchant’s obligation is direct, indirect, primary, secondary, fixed, contingent, joint or several. In the event such processes/events do not fully reimburse Paynear for the amount owed, Merchant shall immediately pay Paynear such amount.
- Records; Requests for Copies: Merchant shall retain a paper or microfilm copy of all Chargeslips and Credit vouchers and if a mail, phone order or preauthorized order is involved, the Cardholder’s signed Authorization for the Transaction for at least three (3) years after the date of the Transaction. Within three (3) business days of receipt of any written or verbal request by Paynear, Merchant shall provide either the actual paper Chargeslip or a legible copy thereof and any other documentary evidence reasonably requested by Paynear. A failure of Merchant to deliver the requested documentation in the required time frame may result in the Transaction in question being chargedback to the Merchant Account and the Merchant losing further presentment rights on such Transaction.
- Multiple Transaction Records; Partial Payments: Merchant shall include all goods and services purchased in a single Transaction at one time on a single Chargeslip, except: (i) for purchases in separate departments of a multiple department store; (ii) for installment payment; or (iii) for delayed or amended charges governed by rules for travel and entertainment Merchant s and transactions.
- Returns and Adjustments: Credit Vouchers:
- Merchant’s policy for the exchange or return of goods sold and the adjustment for services rendered shall be established and posted for the Card Holder.
- If Merchant does not make these disclosures, a full refund in the form of a credit to the Card Holder’s Card account must be given. Merchant shall not refund cash to a Card Holder who paid for the item by Card.
- Credits in cases of refund must be made to the same Card account number on which the original sale Transaction was processed.
- If Merchant accepts any goods for return or terminates or cancels any services, in conjunction with each such Transaction, Merchant shall have sufficient funds in its account available to Paynear to cover the amount of the Transaction and any related fees.
- Enforcement of Merchant’s Obligations:
- Security Interest: To secure Merchant’s performance under this Agreement, including without limitation Merchant’s obligations arising out of Chargebacks or returns, Merchant hereby grants to Paynear, a security interest in all Chargeslips, credit drafts, and in all deposit accounts and Reserve Accounts, regardless of source, wherever found, standing in the name of Merchant, including any affiliated companies of Merchant, whether established or designated and maintained pursuant to this Agreement or not, as well as in the proceeds of those deposits. In the event of Merchant’s default in payment of Chargebacks or Returns, Merchant and Guarantor(s) stipulate: (i) that all personal bank accounts standing in their names shall be subject to this Agreement, and (ii) Merchant and/or Guarantor irrevocably consent to Paynear to use any means available to locate such deposit accounts of the Merchant and Guarantor(s) until such time as all amounts due have been paid.
- Security Interest Enforcement: Paynear may enforce this security interest as applicable by:
- Making an immediate debit/charge to any deposit account standing in the name of Merchant, without notice or demand of any kind; and/or interrupting the electronic transmission of funds to any account;
- Freezing the entire account, without notice or demand of any kind, upon Paynear’s determination that Merchant has breached any term of this Agreement;
- Taking possession of any or all of Merchant’s Chargeslips, verification and confirmation of Transactions;
- By placing a receiver within Merchant’s place of business without notice or bond to intercept and collect all income derived from Merchant’s operations until such time as any indebtedness owed to Paynear arising under this Agreement has been satisfied in full;
- By obtaining either a writ of attachment or a writ of possession without bond pertaining to Merchant’s personal property upon a showing of a presumption that Merchant has committed an act of fraud or is about to misappropriate funds to which it is not entitled. Merchant shall provide any statement or notice that Paynear determines to be necessary to preserve and protect this security interest. Merchant’s granting of this security interest in no way limits Merchant’s liabilities to Paynear under this Agreement.
- Reserve Account: Merchant hereby authorizes Paynear to establish a Reserve Account, with or without prior notice to Merchant, at any time prior to, or after termination of this Agreement, to ensure the recovery of any liabilities owed by them or reasonably anticipated by Paynear in their sole discretion to be owed by Merchant pursuant to this Agreement. In addition, Merchant further agrees:
- Liabilities to be paid from the Reserve Account include, but are not limited to those arising out of actual and/or potential post termination Chargebacks, as well as any and all post-termination fees, charges and expenses due or anticipated to be due to Paynear from Merchant.
- The Reserve Account shall be in such amount that Paynear may deem reasonable under the circumstances. The Reserve Account may be funded and/or replenished by Paynear by withholding or withdrawing from, or freezing all or any part of, the account and/or any other deposit accounts maintained by Merchant and/or Guarantor at any bank, wherever found by any means available. Unless Paynear agree(s) otherwise in writing with the Merchant, the Reserve Account shall not bear interest.
- Paynear may enforce its security interest in the Reserve Account without notice on demand being first made to Merchant. Paynear’s right to sums owed to it by Merchant pursuant to this Agreement, shall in no way, be limited by the balance or existence of the Reserve Account. Paynear’s rights with respect to the Reserve Account, as well as the security interest granted Paynear under this Agreement, shall survive the termination of this Agreement.
- Warranties of Merchant Regarding Card Transactions: Merchant hereby represents and warrants to Paynear and at the time of execution and during the term of this Agreement that:
- Each Chargeslip presented to Paynear for collection is genuine and is not the result of any fraudulent transaction and is not being deposited on behalf of any business other than the Merchant. Further, the Merchant warrants that each Chargeslip is the result of a Card Transaction for the bona fide purchase of goods or services by the Cardholder in the total amount stated on the Charge slip.
- Merchant has performed or shall perform all of its obligations to the Cardholder in connection with the Card Transaction evidenced thereby.
- Merchant has complied with Paynear and its procedures accepting Cards, and the Card Transaction itself shall not involve any element of credit for any other purposes other than as set forth in this Agreement and shall not be subject to any defense, dispute, offset or counter claim which may be raised by any Cardholder.
- Any Credit Voucher, which it issues, represents a bona fide refund or adjustment on a Card sale by Merchant with respect to which a Chargeslip has been accepted.
- Unusual and Suspicious Transactions; Account Monitoring:
- Merchant acknowledges that Paynear shall monitor Merchant’s daily deposit activity for purposes of monitoring compliance with this Agreement. Merchant agrees that Merchant’s deposit activity shall remain consistent with the “approved” monthly volume and average ticket amount approved on the Merchant Application and/or by Paynear. Paynear may require additional documentation if the Merchant should exceed “approved” monthly volume or average ticket, and Merchant agrees promptly to provide such documentation upon request. Merchant agrees that Paynear may, in its sole discretion, elect not to process volumes over the approved monthly volume or over limit transactions. Merchant further agrees that Paynear may, in its sole discretion suspend the disbursement of Merchant’s funds for any reasonable period of time required to investigate suspicious or unusual deposit activity and that such suspension may subject the Merchant to additional suspension fees as set forth herein. Paynear shall make good faith efforts to notify Merchant as promptly as is commercially reasonable. Paynear shall have no liability for any losses, either direct or indirect, which Merchant may attribute to any suspension of funds disbursement.
- In the event of suspension arising from a suspicious or unusual Transaction, Merchant agrees that Merchant’s account may be charged a Security Processing Fee of Rupees One thousand (Rs.1,000) per suspended Transaction, and, if the suspended Transaction or unusual or suspicious activity exceeds Rs. 10,000, an additional INR 1,000 Investigative Fee may be assessed for each such event.
- Merchant’s presentation to Paynear of Excessive Activity shall be a breach of the Agreement and a cause for immediate termination of this Agreement. “Excessive Activity” means, during any monthly period and for any one of Merchant’s terminal identification numbers or Merchant identification numbers, Chargebacks and/or retrieval requests in excess of 1% of the average monthly amount of Transactions or returns in excess of 3% of the average monthly amount of Transactions or (ii) processing an Average Ticket above the amount approved by Paynear. Merchant authorizes, upon the occurrence of Excessive Activity, Paynear to take additional actions as either of them may deem necessary, including, but not limited to, suspension of processing privileges or creation or maintenance of a Reserve Account in accordance with this Agreement.
- Insurance: The Merchant irrevocably undertakes and warrants to Paynear that all the products which are been sold by the Merchant shall be insured till such product is delivered to the customer and Paynear will have no liability in case if any such product is damaged or misplaced in the process of delivery. The Merchant shall bear all the cost of such insurance and shall inform Paynear in case if any product is not insured for any reason whatsoever.
- Escrow Mechanism: Paynear shall provide an escrow mechanism to the Merchant (if the Merchant opts for it) for the purpose of holding the amount paid by the Card Holder for a product bought through the processing services of Paynear. Such amount shall be held in the nodal account of Paynear and shall be released to the Merchant subject to the following terms and conditions being fulfilled:(i) Delivery of products/goods shall be done to the Card Holder without any deficiency in service of the Merchant; (ii) No consumer complaints/dispute has been raised or initiated by the Card Holder within three (3) hours of delivery of such product/goods; (iii) If any dispute has been raised by the Card Holder within three (3) hours of delivery of such product/goods with the Merchant, the Merchant shall inform Paynear immediately of such dispute and in such circumstances Paynear shall be entitled to verify and investigate on the issues and complaints raised therein. In the event Paynear reasonably deems to believe that the complaint raised by the Card Holder in relation to or in connection with or arising out of the delivery of goods/product or performance of services etc are valid and genuine, the Parties hereby unconditionally agree that Paynear shall reserve the right to refund of the money to the account of the Card Holder; (iv) If the Card Holder does not intimate Paynear of such dispute being raised within three (3) hours of delivery, then the Merchant shall be solely responsible for refunding the entire amount to the Card Holder, failing which Paynear has the absolute right to withhold to the extent of the disputed amount from the subsequent Transaction or deduct such amount from the Merchant Account. However if the mechanism stated hereinabove are not enough to refund the amount, and if the Card Holder arises a complaint/claim against Paynear for any such refund, Paynear has the right to claim such refund from the Merchant under Clause 8 of this Agreement.
“Acquirer” means party who is member of Card Scheme.
“Authorization” means the process by which the Paynear approves a Transaction using the Acquiring infrastructure, as stipulated by Paynear from time to time and includes approval flashed on the Mobile POS Device or on the web page where the payment is being made.
“Business” means business activity the Merchant is normally engaged in.
“Card” means a credit, debit or any other card issued by an Issuer.
“Card Holder” means person to whom a Card is issued or who is authorised to use that Card.
“Card Scheme” includes National Payment Corporation of India (“Rupay”), MasterCard International, Inc., (“MasterCard”), Visa U.S.A., Inc. (“VISA”) and any other card organization offering credit, debit or any other card programs to Issuers.
“Chargeback” means a Transaction that is returned to the Acquiring Bank by the Issuer, or any Transaction where the amount paid by the Card Holder remains uncollectable due to any reason whatsoever.
“Chargeslip” means the form used by the Merchant in a format provided by Paynear to enable the Merchant to record charges, transaction details and obtain the cardholders signature thereby obtaining the Card Holders’ consent to debit his card account.
“Commission” means the commission payable to Paynear by Merchant for facilitating a Transaction under the terms of this Agreement.
“Credit Card” A valid card bearing the service mark of Visa or Master Card, Rupay, (and any other card as agreed by the Parties), the use of which accesses the Card Holder’s credit facility through one of the credit card schemes.
“Debit Card” A valid card the use of which accesses the Card Holder’s bank account facility made available by the Card Holder’s issuer DCC(Dynamic Currency Conversion of Merchant’s local currency being the currency in which Merchant’s goods or services are priced into an approved currency as agreed upon by the Card Holder of a non-Indian issued card)
“Issuer” means a licensee of a Card Brand issuing a Card.
“Merchant Account” means the bank account maintained by Merchant for the crediting of collected funds and the debiting of fees and charges under the terms of this Agreement.
“Mobile POS Device” means the electronic device adapted by Paynear to be used as a point-of-sale device for processing card payments with or without a mobile smart phone and with or without any other accessories.
“Nodal bank” means a bank which is authorized by the Reserve Bank of India and operates the nodal account under the guidelines stipulated by RBI for operating such accounts for third party settlements for Paynear, to receive all the settlement proceeds and settles it to the Merchant
“Payable Amount” means the amount payable to the Merchant, calculated after deducting Commission, Chargebacks and other deductibles from the Transaction Amount.
“Paynear Per Transaction Charges” Paynear Per Transactions charges (PPC) includes the charges payable to the Various stake holders which includes the Card Brands, Acquiring/issuing banks, Switching Service Providers and it also includes the charges for the Value Added Services provided by Paynear. This charge will be levied on each and every transaction processed successfully by Paynear.
“Transaction” means an act between a Card Holder and Merchant towards purchase of goods or services, donation or otherwise from the Merchant.
“Transaction Amount” means the consideration payable for purchase of goods or services, donation or otherwise by the Card Holder to the Merchant.
“Valid Card” shall mean a VISA/MasterCard issued as per the rules of any such card association, credit or debit card or such other card as notified by Paynear from time to time 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.
“Valid Charges” is a charge within the amount authorized in accordance with Clauses herein in the Agreement, which is charged to the Card Holder (i) on a Chargeslip acceptable to Paynear, bearing an imprint of a Valid Card and bearing the same signature as that on the Valid Card; and (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.