Terms and Conditions for PayUMoney Merchant Establishment
This document is an electronic record in terms of Information Technology Act, 2000 and rules there under as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require any physical or digital signatures.
This Merchant Agreement (“Agreement”) is a legal agreement between you – the Merchant (“hereinafter referred to as “Merchant”) and PayU Payments Private Limited (“PayU) governing the Merchant’s use of PayU’s services whereby PayU shall provide aggregate payment gateway solutions to the Merchant for selling Products (as defined below) and/or collecting money for a specified purpose (together, the “PayU Services”).
When the Merchant uses PayU Services provided by PayU, the Merchant will be subject to the rules, guidelines, policies, terms, and conditions applicable to such service, and they shall be deemed to be incorporated into this Agreement and shall be considered as part and parcel of this Agreement. PayU reserves the right, at its sole discretion, to change, modify, add or remove portions of this Agreement at any time without any prior written notice to the Merchant. It is the Merchant’s responsibility to review this Agreement periodically for updates / changes. The Merchant’s continued use of PayU Services following the posting of changes will mean that the Merchant accepts and agrees to the revisions.
This is an important document which the Merchant must consider carefully when choosing whether to use PayU Services at any time. Please read the terms of this Agreement carefully before agreeing to it. This Agreement also highlights certain risks on using the PayU Services together with guidance on how online payments through PayU can be facilitated.
The Merchant is solely responsible for understanding and complying with any and all laws, rules and regulations of your specific jurisdiction that may be applicable to the Merchant in connection with the Merchant’s business and the Merchant’s use of the PayU Services.
BY SIGNING THE MERCHANT ESTABLISHMENT FORM OR ACCESSING, USING OR INSTALLING ANY PART OF THE SERVICE, THE MERCHANT EXPRESSLY AGREES TO AND CONSENTS TO BEING IRREVOCABLY BOUND BY THIS AGREEMENT AND ALL OF THE TERMS SET OUT HEREIN.
PAYU SHALL HAVE DEEMED TO HAVE ACCEPTED THIS AGREEMENT AND THE CONTRACT SHALL ONLY BE CONSIDERED TO BE DULY EXECUTED, VALID AND BINDING AFTER THE RECEIPT OF THE REQUIRED INFORMATION FROM THE MERCHANT, DUE VERIFICATION OF THE SAME BY PAYU AND A VERIFICATION OF THE CONTRACT BEING SENT BY PAYU TO THE MERCHANT THROUGH THE SIGNED FORM.
THE CONTRACT SHALL BE DEEMED TO HAVE BEEN RECEIVED, ACCEPTED AND FORMED AT PAYU'S REGISTERED OFFICE, AT F-130, GF, STREET NO. 7, PANDAV NAGAR, NEW DELHI – 110091, INDIA.
1. DEFINITIONS AND INTERPRETATION:
- 1.1 In this Agreement, except where the context otherwise requires, the following words and expressions shall have the following meanings:
- "Acquiring Banks" shall mean various banks, financial institutions, Card Associations, payment system providers who are defined and licenced under the Payment and Settlement Systems Act, 2007 and other software providers who are in the business of providing information technology services, including but not limited to, MRL Posnet Private Limited and other electronic hardware and software distribution services.
- "Acquiring Bank Services" ” shall mean the services provided by the Acquiring Banks such as to (i) route Valid Valid Card transactions; (ii) provide Authentication and Authorization from Card Associations; and (iv) provide settlement facilities in respect of payment instructions so initiated.
- "Agreement" shall mean this Service Agreement, all schedules, appendices, annexures and exhibits attached to it or incorporated in it by reference.
- "Annual Maintenance Charge" shall mean the charges set out in the Merchant Establishment Form.
- "Authentication" shall mean the process by which the Customer’s identification is authenticated by the Acquiring Banks.
- "Authorization" shall mean the process by which the Issuing Institution and/or the relevant Card Association electronically or otherwise convey the approval of the charge (i.e. if the Customer has a Valid Valid Card and/or the required credit limit/ debit limit to pay the Customer Charge requested) on a Transaction being undertaken by a Customer.
- "Business Days" shall mean any day on which Acquiring Banks are open for business in India, other than Saturday, Sunday and any days declared by PayU India and/or Acquiring Bank as a Holidays.
- "Card Association(s)" shall mean any of Visa, MasterValid Card, Visa Electron, Maestro, Diners, American Express or any other Card Association as may be specified by PayU from time to time.
- "Card Association Rules" shall mean the written rules, regulations, releases, guidelines, processes, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Card Association.
- "Chargeback" shall mean the approved and settled Valid Card which are at any time refused, debited or reversed from the Merchant Bank Account or from the Merchant’s Settlement Amount in the Nodal Account (shall also include similar debits to PayU bank accounts, if any) by the Acquiring Bank for any reason whatsoever, together with the bank fees, penalties and other charges incidental thereto.
- "Chargeslip" means an electronic or paper record of a Transaction generated by the Merchant using the EDC Terminal.
- "Completion of Transaction" shall mean receipt of the Customer Charge in the Nodal Account from the Acquiring Banks and reconciliation of the same by the Acquiring Banks, PayU and the Nodal Bank.
- "Confidential Information" shall mean any and all written, oral or other tangible or intangible form of information, discoveries, ideas, concepts, know-how (whether patentable or copyrightable or not), research, development, designs, drawings, blueprints, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, algorithms, software programs, marketing plans or techniques, technical, financial, or business information” trade secrets which includes but is not restricted to any portion or scientific or technical or proprietary information, design, process, procedure, formula or improvement which is not generally available to the public as delivered by either Party (“Disclosing Party” to the other Party (“Receiving Party”) within the framework of this Agreement or resulting therefrom. Provided that confidential information disclosed orally or those produced by electronic media or through any other intangible means shall be deemed confidential if it is identified as being confidential if it is reduced in writing within (30) thirty days of the date of disclosure. Such writing shall specify the date, time, place, persons involved and the substance of the confidential information so disclosed.
- "Customer" shall mean an individual or legal entity, who/which purchases Products, offered by the Merchant using a Valid Card.
- "Customer Account" shall mean a credit/ prepaid/ cash Valid Card account of the Customer with Issuing Institution.
- "Customer Charge" shall mean the sale price of the Products purchased by the Customer and all other taxes, duties, costs, charges and expenses in respect of the Products/payment that are to be paid by the Customer.
- "Delivery" shall mean (i) in respect of a good, providing the good to the Customer or delivery of the good by a courier /parcel service appointed by the Merchant or its vendors, to the Customer within the time promised at the address specified by the Customer in this behalf; or (ii) in respect of a service, delivery or performance of provisions of service.
- "EDC Terminal" shall mean the electronic data capture machines provided by PayU to the Merchant.
- "Issuing Institution" shall mean a bank or financial institution or other legal entity, which has issued the Valid Valid Card to the Customers.
- "Merchant PayU Account" shall mean the merchant account maintained with PayU in order to provide the PayU Services to the Merchant.
- "Merchant Bank Account" shall mean the bank account maintained by Merchant which it nominates for settlement of its Settlement Amount and the details of which are provide in the Merchant Establishment Form (Consideration).
- "Nodal Account" shall mean an inoperative account held by PayU with any of the banks for the purpose of pooling the monies collected from Customers on behalf of the Merchant and facilitating the transfer of these funds in final settlement to the Merchant (after deducting TDR), pursuant to RBI notification DPSS.CO.PD.No.1102/ 02.14.08/2009-10, dated 24/11/2009 or any other RBI notifications/guidelines amended from time to time.
- "Nodal Bank" shall mean the bank(s) designated by PayU for the purpose of pooling the funds collected from Customers on behalf of the Merchant and facilitating the transfer of these funds in final settlement to the Merchant (after deducting TDR), pursuant to RBI notification DPSS.CO.PD.No.1102/ 02.14.08/2009-10, dated 24/11/2009 or any other RBI notifications/guidelines amended from time to time.
- "Outstanding Amount" shall mean the amount payable by the Merchant to PayU, Acquiring Banks and/or Customers for any losses, costs, damages, penalties, Chargebacks, refund overdraft or credit problems suffered or incurred by the Customers, PayU and/or Acquiring Banks; any fees and other payments owed to PayU by the Merchant; and any claims or proceedings filed against PayU and/or Acquiring Banks by the Customers or any third Party.
- "PayU Services" shall have the meaning ascribed to it in Recital A.
- "Products" shall mean goods and/or services offered for sale by the Merchant.
- "Proof of Delivery" shall mean sufficient legitimate records evidencing Delivery of the Product to the Customer (i.e. Chargeslips, bills etc).
- "RBI" shall mean the Reserve Bank of India.
- "Reserve" shall mean the interest free, refundable funds provided and replenished by the Merchant to PayU from time to time.
- "Settlement Amount" shall mean Customer Charge minus the TDR and any other charges/fees payable by the Merchant to PayU under this Agreement.
- "Transaction" shall mean every payments request/order placed by the Customer for purchasing Products from the Merchant.
- "Transaction Discount Rate" or "TDR" shall mean the rates as specified in the Merchant Establishment Form.
- "Valid Card" shall mean any unexpired credit card or debit card which is issued by an Issuing Institution designated to issue a Visa, Master Card, Visa Electron or a Maestro or cash card, pre-paid card or other card as may be specified by PayU from time to time. Provided that the card is not listed in current warning or restricted card bulletins or notices and bears the signature of the person in whose name the card is issued.
- 1.2 In this Agreement:
- Except where the context requires otherwise, references to Clauses, Schedules and Annexures
- are to Clauses of, Schedules to and Annexures to this Agreement.
- Words denoting the singular number include the plural number and vice versa, words denoting the masculine gender include the feminine gender and words denoting persons include companies.
- Headings are inserted for convenience only and shall not affect the construction of this Agreement.
- In case of any ambiguity or discrepancy between the Clauses and the Annexures to this Agreement, the Clauses shall prevail.
- Any use of the word ‘including’ will not be limited by the words that follow.
- Any reference to any agreement, deed, instrument, licence, code or other document of any description shall be construed, at the particular time, as a reference to that agreement, deed, instrument, licence code or other document as the same may then have been amended, varied, supplemented, modified, suspended or novated.
- 2.1 This Agreement shall be in force from Effective Date and shall remain in force until terminated by either Party in accordance with the provisions of this Agreement.
3. SCOPE OF SERVICES
- 3.1 Subject to the terms of this Agreement, PayU shall provide the Merchant with an EDC Terminal to be placed at the Merchant’s premises. Using the EDC Terminal, PayU shall facilitate processing of payments instructions given by Customers using Valid Cards.
- 3.2 In order to serve in this role, PayU has entered into agreements with various Acquiring Banks to enable use of the payment mechanisms developed by them and process payments using Acquiring Bank Services.
- 3.3 Once the payment instruction is Authenticated and Authorized by the respective Acquiring Bank in respect of a Transaction, the Acquiring Bank will transfer such approved Customer Charge from the Customer Bank Account to the Nodal Account.
- 3.4 The Merchant hereby directs and authorizes PayU to receive, hold, disburse and settle the Customer Charge in accordance with and subject to the provisions of this Agreement.
- 3.5 Except as provided in this Agreement and Schedules hereto, no right is granted to the Merchant or to any third party
4. APPROVAL AND REGISTRATION TO AVAIL PAYU SERIVCES/ACQUIRNG BANK SERVICES
- 4.1 The Merchant shall disclose the exact business category/business sub-category for which the Merchant will be using the PayU Services in the Merchant Establishment Form. In order to use the PayU Services for any other purpose, the Merchant understands and acknowledges that it shall notify PayU in writing of such change and such change will be subject to approval by PayU.
- 4.2 The Merchant understands that in order to avail the PayU Services and Acquiring Bank Services, the Merchant must be approved by and registered with PayU, the Acquiring Banks and Nodal Bank. Any undertaking with respect to the PayU Services under this Agreement shall be subject to PayU’s, the Acquiring Banks’ and Nodal Bank’s approval and completion of the registration process. The Merchant shall provide PayU with all such documents as required by PayU to register the Merchant with PayU, the Acquiring Banks and Nodal Bank. The Merchant further understands and acknowledges that PayU, the Acquiring Banks and Nodal Bank have the right to withdraw their approval/consent at any time prior to or after commencement of the PayU Services.
5. PROCEDURE FOR TRANSACTION TO BE FOLLOWED BY THE MERCHANT ESTABLISHMENT
- 5.1 Prior to proceeding with a Transaction, the Merchant shall carry out primary verification of the Valid Card and shall:
- ensure that the card is a Valid Card;
- in case of photo Valid Card, identify the person desirous of Transaction with the photograph on the Valid Card; and
- ensure that the signature panel strip on the reverse of the Valid Card has been duly signed.
- 5.2 The Merchant shall, after completion of the primary verification as above, swipe the Valid Card in the EDC Terminal and enter Transaction details as requested (and also allow the Valid Card Holder to enter the identification number if so required providing the Valid Card Holder sufficient privacy to do so) so as to obtain Authorisation and generate a Chargeslip.
- 5.3 The Merchant shall obtain the Customer's signature on the Chargeslip and match the same with that on the signature panel strip on the reverse of the Valid Card.
- 5.4 The Merchant shall not entertain a Transaction in case of being unsure of any of the foregoing or when in doubt that the person requesting Transaction is not the Valid Card Holder. In such cases Merchant shall forthwith inform the incidence to PayU and seek further instructions.
- 5.5 The Merchant shall provide to the Customer the copy of the Chargeslip marked as Valid Card Holder's copy.
- 5.6 Notwithstanding the aforesaid, the Merchant shall obtain additional Authorization for Transactions in excess of floor limits as may be stipulated by PayU from time to time in writing or when the Merchant has reason to believe that the Valid Card may be stolen or counterfeit or invalid or in any other suspicious circumstances.
6. AUTHORIZATION AND AUTHENTICATION OF TRANSACTION
- 6.1 The Merchant understands that the Acquiring Bank will authenticate, authorize, and process the payment instructions given by the Customers through the EDC in respect of the Transactions upon fulfillment of valid criteria as set forth by the Acquiring Banks and the Card Associations from time to time and accordingly transfer such approved Customer Charge from the Customer Account to the Nodal Account.
- 6.2 The Merchant understands that PayU, Acquiring Banks and/or Card Association may reject authorization of Transaction placed by the Customer for any reason including but not limited to risk management, suspicion of fraudulent, illegal or doubtful Transactions, selling of banned items, use of compromised Valid Valid Cards, use of blacklisted/banned Valid Cards or in accordance with the RBI, Acquiring Banks, Issuing Institution and/or Card Association rules, guidelines, regulations, etc and any other laws, rules, regulations, guidelines in force in India, etc.
- 6.3 The Merchant acknowledges that as a risk management tool, PayU and/or the Acquiring Banks reserve the right to limit or restrict transaction size, amount and/or monthly volume at any time. For the purpose of clarity such limitations or restrictions may be imposed for the following reasons including but not limited to limits/restrictions on the number of purchases which may be charged on an individual Valid Valid Card or net banking account during any time period, rejection of Payment in respect of Customer Orders from Customers with a prior history of questionable charges, unusual monetary value of Transaction, etc. Further, as a security measure, PayU may at its sole discretion block any Valid Card number, group of Valid Cards or Transactions from any specific blocked or blacklisted customer Valid Cards and / or any such risk mitigation measures it wishes to undertake.
7. PAYMENT TO PAYU
- 7.1 In consideration for PayU Services, the Merchant agrees to pay PayU, Transaction Discount Rate as detailed in the Merchant Establishment Form. The TDR shall be deducted by PayU from the Customer Charge payable to the Merchant in respect of each completed Transaction. PayU reserves the right to revise the TDR periodically, and PayU will intimate the Merchant of any such change within reasonable time.
- 7.2 The Merchant shall also pay to PayU (i) a non-refundable one time set up fee, and (ii) Annual Maintenance Charge payable in advance every year as detailed in the Merchant Establishment Form. PayU shall have a right to deduct such set-up fee and Annual Maintenance Charges from the Settlement Amount payable to the Merchant.
8. TERMS OF PAYMENT TO MERCHANT ESTABLISHMENT
- 8.1 Subject to any other Clause of this Agreement, PayU shall endeavor to instruct the Nodal Bank to transmit the Settlement Amount from the Nodal Account to the Merchant’s Bank Account within the time period prescribed by RBI commencing from date of Completion of Transaction.
- 8.2 The Merchant further acknowledges that transmission of the Settlement Amount to the Merchant Bank Account shall be subject to reconciliation of the Customer Charge by the Acquiring Banks, PayU and the Nodal Bank after actual receipt of Customer Charge in the Nodal Account.
- 8.3 The Merchant hereby agrees that all payments with respect to refunds and Chargebacks shall be the sole responsibility of the Merchant and PayU shall not be liable for any claims, disputes, penalties which may arise in connection with such refunds or Chargebacks to the Merchant or the Customer. The Merchant agrees to indemnify PayU in respect of any claims, disputes, penalties, costs and expenses arising directly or indirectly in relation to refunds or Chargebacks for all Transactions made through the Merchant Establishment.
- 8.4 Notwithstanding anything contained anywhere in this Agreement, the Merchant hereby fully confirms and agrees that PayU, Acquiring Bank and Nodal Bank reserve the right to reject payments with respect to any Customer Charge for reasons including but not limited to unlawful, unenforceable, erroneous Transaction, Chargeback, refund, fraud, suspicious activities, Valid Card Authentication and Authorization issues, overpayment made due to mathematical errors or otherwise, penalties incurred, Transaction related issues, issues related to Delivery, Customer Charge or Product, if the Transaction was not made in accordance with the requirements of PayU and/or the Acquiring Banks and/or Card Association.
- 8.5 If PayU and/or the Acquiring Banks determine that the Merchant is incurring an excessive amount of Chargebacks, PayU may establish controls or conditions governing the Transactions contemplated under this Agreement, including without limitation, by (a) establishing new processing fees, (b) by requesting a Reserve in an amount reasonably determined by PayU to cover anticipated Chargebacks, (c) delaying payouts, and (d) terminating or suspending the PayU Services.
- 8.6 All Settlement Amount due to the Merchant under this Agreement may be suspended or delayed till such time as PayU, the Acquiring Banks and/or nodal bank deems fit, if (a) the Merchant or its Customer or a third party commits any fraud or violates any law or legal requirement; (b) PayU and/or the Acquiring Banks have reasons to believe that a fraud has been committed against the Customers, PayU, Acquiring Banks or any third party by the Merchant, its Customers, or any other third party; or has reason to believe that the Merchant or the Customer has in connivance with any other person done any fraud or assisted in the same; or any transaction has been fraudulently initiated; (c) the Merchant has excessive pending Chargebacks or poses high Chargeback and/or refund Risk; or, (d) for any other reasonable reasons. In case, if PayU and or the Acquiring Banks after due enquiry determines that any payment of Customer Charge is not a valid charge, PayU and or the Acquiring Banks shall be entitled not to pay the same at all and the Merchant agrees and undertakes not to raise any claims.
9. RESERVE AND SET-OFF RIGHTS
- 9.1 The Merchant agrees to provide PayU with Reserve of such amounts as may be requested by PayU from time to time to secure the performance of the Merchant’s obligations under this Agreement for reason, including without limitation, high Chargeback risk, credit risk, refund overdraft risk, non-delivery issues, selling of banned items, non-payment of maintenance fees or other amount payable to PayU or any other indications of performance problems related to Merchant’s use of the PayU Services. If the Merchant fails to provide PayU with Reserve within seven (7) days of receipt of notice for the same, PayU reserves the right to suspend and/or terminate the Settlement Amount payable to the Merchant or the PayU Services without further notice. PayU may use this Reserve to set-off including but not limited to any Outstanding Amounts payable by the Merchant to PayU, Acquiring Banks and/or Customers.
- 9.2 In case the Settlement Amount payable to the Merchant and/or the Reserve (if any) is not sufficient to cover the Merchant’s Outstanding Amount, then the Merchant shall pay PayU and/or the Acquiring Banks the remaining amount due immediately upon request. PayU shall be entitled to charge daily interest on such Outstanding Amount from the date of request until the date of payment in full, at the rate of 1.5% per month. Provided that the above right of PayU to appropriate the Reserve and set-off the Outstanding Amount in the above manner shall be in addition to and reserving fully the right of PayU to recover all such losses, costs and damages etc from Merchant by any other means, which may be available to PayU under the law. In addition, Merchant agree to pay all costs and expenses, including without limitation attorneys' fees and other legal expenses, incurred by or on behalf of us in connection with the outstanding amount and the collection of same from the Merchant.
10. DELIVERY OF PRODUCTS
- 10.1 The Merchant shall provide/render the Products to the Customer only upon receipt of transaction confirmation from PayU. The Merchant acknowledges that PayU shall give confirmation only upon receipt of transaction confirmation in respect of the Transaction from the Acquiring Bank. PayU shall not be responsible for any Transactions that have not been confirmed to the Merchant by PayU and the Acquiring Banks.
- 10.2 The Merchant shall ensure that it maintains Proof of Delivery with respect to each Transaction initiated through it for a period of at least one (1) year from the date of Delivery. Proof of Delivery shall be open for inspection by PayU and/or the Acquiring Banks at all times during working hours on Business Days. Notwithstanding any other Clause of this Agreement, the Merchant understands that PayU and/or the Acquiring Bank and/or Nodal Bank reserve the right to call for Proof of Delivery, at any time, before and/or after settlement of Settlement Amount to the Merchant’s Bank Account with respect to any Transaction. PayU and/or the Acquiring Banks have the right to reverse Customer Charge amount to the Customers and/or reject the Customer Charge to Merchant, if Proof of Delivery is not provided in accordance to this Agreement.
- 10.3 Any and all disputes regarding quality, merchantability, non-Delivery, delay in Delivery of the Product or otherwise shall be resolved directly between the Merchant and the Customer without making PayU and/or the respective Acquiring Bank a party to such disputes.
11. REFUND AND RETURN POLICY
- 11.1 The Merchant agree to process returns of, and provide refunds and adjustments for, Products sold and/or payment collected through the EDC Terminal in accordance with this Agreement, the Acquiring Banks instructions and Card Association Rules. The Merchant shall ensure that PayU at all times have sufficient funds of the Merchant to process refunds initiated. PayU shall not be liable to process any refund initiated in the event of insufficient funds.
- 11.2 The Merchant understands that no refund shall be processed by PayU after a period of 180 days from the date of the Transaction.
- 11.3 The Merchant shall (a) maintain a fair return, cancellation or adjustment policy in accordance with type of business; (b) disclose its return or cancellation policy to Customers at the time of purchase, (c) not give cash refunds to a Customer in connection with a Valid Card sale, unless required by law, and (d) not accept cash or any other item of value for preparing a Valid Card sale refund.
- 11.4 The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the customer for postage (if any) that the Customer paid to return Product. The Merchant understands that if the refund policy prohibits returns or is unsatisfactory to the Customers, the Merchant may still receive a Chargeback relating to the Disputed Transaction.
- 11.5 It is hereby agreed and acknowledged by the Parties that the TDR charged by PayU in respect of a Transaction that has been confirmed shall not be refunded or repaid by PayU to the Merchant or any other person irrespective of the Customer Charge being rejected, chargeback, refunded or disputed.
12. CUSTOMER SUPPORT
- 12.1 The Merchant is solely responsible for all Customer service issues relating to the Transaction, Products sold by the Merchant including but not limited to Customer Charge, order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with its personnels, policies or processes. In performing Customer service, the Merchant will always present itself as a separate entity from PayU.
13. COVENANTS OF THE MERCHANT:
- 13.1 The Merchant hereby declares, assures, undertakes and covenants as under:
- The Merchant shall, when requested by a Customer, facilitate a Transaction via the EDC Terminal and in accordance with the terms and conditions of this Agreement including the procedure stated as may be previously amended by PayU from time to time in writing.
- The Merchant shall enter into Transactions only in relations to goods sold or services provided by it to Customers. The Merchant shall not enter into a third party transaction or dispense cash by processing a Transaction.
- The Merchant shall own, and not dispute for any reason whatsoever, Transactions effected via the Equipment.
- The Merchant acknowledges and agrees that the sale of goods and services under the Transaction shall be transactions between the Merchant and the Customer without PayU or the Acquiring Banks being a party thereto, unless required otherwise by Card Association’s regulations.
- The Merchant shall keep PayU informed of the claims it receives in relation to Transactions or any other matter in connection with this Agreement providing details as may be required by PayU and shall not dispute, compromise or otherwise deal with the same without the consent in writing of PayU and acknowledges that PayU shall however be under no obligation to provide any assistance to it in connection with any such claim.
- The Merchant shall not split the Customer Charge payable by the customer into 2 (two) or more transactions
- The Merchant shall ensure that the EDC Terminal is maintained in good condition and used only in the manner and for the purposes as provided in this Agreement. The Merchant shall pay PayU all expenses that may be incurred by the Bank for the repairs, maintenance and/or replacement of the Equipment 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 Equipment. The Merchant shall report promptly to PayU a fault or suspected fault in the operation of the EDC Terminal.
- The Merchant shall provide all reasonable assistance to PayU for the prevention and detection of fraud in respect of usage of the EDC Terminal;
- The Merchant shall keep confidential the information received from PayU in connection with the EDC Terminal and not disclose it to any person other than its staff member(s) connected with the operation of the EDC Terminal for effecting payments through it;
- The Merchant shall not deploy any other payment applications in the EDC Terminal which have the capacity to capture the card number or any card details.
- The Merchant hereby agrees that this Agreement shall be applicable in respect of all card transactions undertaken by the Merchant using the EDC Terminal provided to him and undertakes to honor and accept all Valid Cards as presented by the card members.
- The Merchant shall comply with all applicable laws, rules and regulations in offering the Products or collecting payments. The Merchant shall ensure that all requisite approvals, licenses and registrations, etc in accordance with all laws, rules, regulations, guidelines in force in India from time to time, have been obtained and are kept in full force and effect to enable the Merchant to offer the Products for sale. The Merchant shall not conduct any business through the PayU Services or offer Products thereof in violation of any law or legal requirement of any applicable jurisdiction and shall keep PayU fully indemnified for all times to come in this regard. The Merchant agrees and understands that PayU reserves the right to suspend Settlement Amount and/or PayU Services to the Merchant until such time that the Merchant does not discontinue selling such banned/illegal Products or does not conform to all applicable laws and regulations in force from time to time. In addition, PayU reserves the right to terminate this Agreement without further notice in the case of breach of this Clause.
- The Merchant shall have the marketable and legal right and title to sell Products offered by it to the Customers by using PayU Services.
- In the event any Customer complaints or is dissatisfied with any Product, the Merchant shall take such measures as may be required to resolve the same at its sole cost and expenses.
- The Merchant hereby agrees that it shall bear and be responsible for the payment of all relevant taxes, surcharge, levies etc. (including withholding taxes) in relation to the Customer Charge and PayU Services provided under this Agreement.
- As the Merchant will be using the Acquiring Banks Services and Card Association Services, the Merchant shall comply with all applicable rules, guidelines, instructions, requests and actions, etc made by the Acquiring Banks and/or Card Associations from time to time. The Acquiring Banks has the right to reverse/reject settlement, suspend and/or terminate Acquiring Banks Services/PayU Services, make inspections or inquiries in relation to the Transaction, etc. The Merchant understands that the Acquiring Banks and Card Association Rules form a part of this Agreement. In the event that Merchant’s non-compliance of Acquiring Banks and/or Card Association Rules, results in any fines, penalties or other amounts being levied on or demanded of PayU by an Acquiring Bank and/or Card Association, then without prejudice to PayU’s other rights hereunder, the Merchant shall forthwith indemnify PayU in an amount equal to the fines, penalties or other amount so levied or demanded. If the Merchant fails to comply with its obligations towards the Acquiring Banks and/or Card Associations, PayU may suspend settlement or suspend/terminate the PayU Services forthwith.
- The Merchant shall in writing inform PayU of all changes in its constitution, directors/partners/trustees, or change in the current addresses of each office, within seven (7) Business Days of such change having taken place listing out the names and details of the personnel in charge of the management and affairs of the Merchant. Such intimation shall be provided on the Merchant’s letterhead signed by the authorized signatory of the Merchant.
- The Merchant shall not engage in activities that harm the business and/or brand of PayU, the Acquiring Banks and/or Card Associations.
- The Client agrees that PayU reserve the right to request for such amount from time to time to be held with PayU to secure the performance of the Client’s obligations under this Agreement Non-compliance with this clause shall be considered a breach of this Agreement.
- The Merchant shall be responsible to resolve all Valid Cardholder/customer account holder disputes and provide whatever assistance necessary to assist the Acquiring Banks, Card Associations and PayU deal with all Valid Cardholder/Customer Account holder disputes at its own cost.
- The Merchant authorises PayU to share Transaction data and Customer information with the respective Acquiring Banks and Card Associations.
- The Merchant agrees that PayU reserves a right to suspend the payment and/or PayU Services provided herein, forthwith, in event the Merchant fails to observe the terms and conditions herein.
14. REPRESENTATIONS BY THE PARTIES
- 14.1 Each of the Parties represents warrants and undertakes that:
- It is duly organized and validly existing under the laws of the jurisdiction in which it is established;
- It has the requisite power and authority to execute, deliver and perform this Agreement and that this Agreement has been duly and validly authorized, executed and delivered by it;
- Its obligations hereunder constitute legal, valid, binding and enforceable obligations; and
- The execution and delivery of this Agreement and the consummation of the Transactions contemplated herein do not breach its organizational documents or any law, provisions of any contract or order of court applicable to it and do not require any applicable governmental approval; and
- The person executing this Agreement is duly authorized to execute the Agreement for and on behalf of the respective Party and shall have the authority to bind the respective Party accordingly.
- 15.1 The Merchant expressly agrees (a) to inclusion of the Merchant's name in any promotional material produced in connection with PayU and to prominently display and maintain PayU's promotional material as supplied by PayU from time to time and (b) to display logos of relevant Card Associations (if required by PayU) on the Merchant’s premises publicizing the acceptance of Valid Cards issued by such Card Association.
- 15.2 Nothing contained herein shall authorize the Parties to use, apply, invade or in any manner exploit or infringe the intellectual property rights of the other Parties without prior written consent of the other Party, and the usage shall be in compliance with this Agreement and such approval and policies as may be notified from time to time. In addition, the Parties undertake not to infringe the intellectual property rights of any third party.
- 16.1 The Parties agree to maintain the confidentiality of the Confidential Information and to protect all portions of the other Party's Confidential Information by preventing any unauthorized disclosure, copying, use, distribution, or transfer of possession of such information. Dissemination of Confidential Information by each Party shall be limited to those employees with the need to such access for the advancement of the goals anticipated under this Agreement.
- 16.2 The Parties shall at no time disclose or allow its officers, directors, employees, representatives or subcontractors to disclose the other Party's Confidential Information to any third party without the prior written consent of the other Party. The Parties agree to protect the Confidential Information of the other with the same standard of care and procedures used by themselves to protect their own Confidential Information of similar importance but at all times using at least a reasonable degree of care.
- 16.3 The obligations set out in this Clause shall not apply to Confidential Information that:
- is or becomes publicly known other than through breach of this Clause 16;
- is in possession of the receiving Party prior to disclosure by the other Party;
- is independently developed by the receiving Party;
- needs to be disclosed to professional advisers or in accordance with the order of a competent court or administrative authority;
- is thereafter rightfully furnished to such receiving Party by a third party without restriction by that third party on disclosure; or
- is required by law, judicial court, recognized stock exchange, government department or agency or other regulatory authority, provided that sufficient notice is given of any such requirement, by the receiving Party to the disclosing Party, in order that the disclosing Party may seek for an appropriate protective order or exemption from such requirement, prior to any disclosure being made by the receiving Party and/or its Affiliates.
- 16.4 Such obligation of confidentiality shall continue for a period of 1 (one) year after the termination or expiry of this Agreement.
17. RELATIONSHIP BETWEEN THE PARTIES
- 17.1 The relationship between PayU and the Merchant is on principal-to-principal basis. Nothing contained herein shall be deemed to create any association, partnership, joint venture or relationship of principal and agent or master and servant, or employer and employee between the Parties hereto or any affiliates or subsidiaries thereof or to provide either Party with the right, power or authority, whether express or implied to create any such duty or obligation on behalf of the other Party.
- 17.2 PayU has no connection or interest of whatsoever nature in the business of the Merchant or the Products offered/ marketed by the Merchant. PayU does not in any manner take part in the business of the Merchant, directly or indirectly. PayU shall only provide PayU Services to the Merchant in relation to the Merchants, the Customers and the Acquiring Bank, as an independent entity and under the terms and conditions of this Agreement. For the PayU Services provided by PayU, it shall be paid an agreed service fee (TDR) by the Merchant as stipulated in this Agreement and PayU is nowhere connected or concerned about the revenues of the Merchant or the Acquiring Banks.
- 17.3 PayU has no relationship with the Customers and all actions under this Agreement which may affect the Customers are instructed by the Merchant. The Merchant alone shall be responsible to the Customers and neither PayU nor the Acquiring Bank or anybody connected to PayU or Acquiring Bank shall have any responsibility or liability towards the Customers and the Merchant shall keep PayU and Acquiring Bank fully indemnified for all times to come in this respect.
- 17.4 PayU is neither concerned nor required to monitor in any manner the use of the payment modes by the Customers for procuring / availing the Products of the Merchant. The Customers should be required to use the payment modes at their sole option and risks. The Merchant shall be required to notify this responsibility to all its Customers under the instructions provided by PayU.
- 18.1 The Merchant hereby undertakes and agrees to indemnify, defend and hold harmless PayU and/or the Acquiring Banks including their officers, directors and agents from and against all actions, proceedings, claims (including third party claims), liabilities (including statutory liability), penalties, demands and costs (including without limitation, legal costs), awards, damages, losses and/or expenses however arising directly or indirectly, including but not limited to, as a result of:
- breach or non-performance by the Merchant of any of its undertakings, warranties, covenants, declarations or obligations under this Agreement;
- breach of confidentiality and intellectual property rights obligations by the Merchant;
- any claim or proceeding brought by the Customer or any third party against PayU and/or the Acquiring Banks in respect of any Products or Services offered by the Merchant;
- any act, deed, negligence, omission, misrepresentation, default, misconduct, non-performance or fraud by the Merchant, its employees, contractors, agents, Customers or any third party;
- Chargebacks or refunds relating to the Transactions contemplated under this Agreement;
- breach of law, rules regulations, legal requirements (including RBI regulations, Card Association Rules, Acquiring Bank rules) in force in India and/or in any place from where the Customers is making the Transaction and/or where the Product is or to be Delivered and/or where the respective Issuing Institution is incorporated/registered/established; or
- any fines, penalties or interest imposed directly or indirectly on PayU on account of Merchant’s or Transactions conducted through the Merchant under these Terms and Conditions.
- 18.2 The indemnities under this Clause are in addition to and without prejudice to the indemnities given elsewhere in this Agreement.
- 18.3 The indemnities provided herein shall survive the termination of this Agreement.
19. LIMITATION OF LIABILITY
- 19.1 Notwithstanding anything stated under this Agreement, the aggregate liability of PayU to the Merchant from any cause whatsoever shall not in any event exceed the sum equivalent to the preceding one month’s aggregate TDR margin earned by PayU under this agreement from the date of occurrence of such liability. Provided that PayU shall not be liable to the Merchant for any special, incidental, indirect or consequential damages, damages from loss of profits or business opportunities even if the Merchant shall have been advised in advance of the possibility of such loss, cost or damages. In no event shall PayU be liable to the Customers or any third party. In no event shall the Nodal Bank or the Acquiring Bank be liable to the Merchant in any way under this Agreement.
- 20.1 PayU will make all reasonable efforts to provide uninterrupted service subject to down time and regular maintenance. However, notwithstanding anything in this Agreement, the Merchant acknowledges that, PayU Services and the Acquiring Bank’s Services may not be uninterrupted or error free PayU and the Acquiring Banks disclaim all warranties, express or implied, written or oral, including but not limited to warranties of merchantability and fitness of the services for a particular purpose. The Merchant also acknowledges that the arrangement between one or more Acquiring Banks and PayU may terminate at any time and services of such Acquiring Banks may be withdrawn. Although PayU adopts security measures it considers appropriate for the offer of the PayU Service, it does not assure or guarantee that no person will overcome or subvert the security measures and gain unauthorized access to the PayU Service or the Merchant/Customer data. PayU shall not be responsible or liable if any unauthorized person hacks into or gains access to the PayU Service or to the Merchant’s PayU Account. In event of incorrect settlement in the Merchant’s Account due to error on the part of PayU or the Bank, PayU shall have the right to reverse the extra funds from the Merchant Bank Account. In addition, the Merchant shall be fully liable to return the extra funds settled within 7 (seven) days of intimation by PayU. Subject to the other clauses of this Agreement, in the event that the Settlement Amounts to be transferred to the Merchant have not been transferred, PayU shall endeavor to settle the relevant Settlement Amount to the Merchant’s account within 7 (seven) days of notification from the Merchant. In addition PayU shall not be liable to the Merchant for any loss or damage whatsoever or howsoever caused or arising, directly or indirectly, including without limitation, as a result of loss of data; interruption or stoppage to the Customer’s access to and/or use of PayU Services, non-availability of connectivity between the EDC Terminal and PayU servers etc. Any material/information downloaded or otherwise obtained through the use of the PayU Services is done at the Merchant’s own discretion and risk and the Merchant will be solely responsible for any damage to its computer system or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by the Merchant from PayU or through or from the use of PayU Services shall create any warranty. PayU shall have no liability in this respect.
- 20.2 PayU's sole obligation and the Merchant’s sole and exclusive remedy in the event of interruption in Services, shall be to use all reasonable endeavors to restore the Services and/or access to the Payment Mechanism as soon as reasonably possible.
- 20.3 PayU or Acquiring Bank obligations under this Agreement are subject to following limitations:
- messages that originate from the EDC Terminal of the Merchant shall be deemed to be authorized by the Merchant, and PayU shall not be liable for processing such messages;
- messages that originate from the EDC Terminal are deemed to be authorized by the Valid Cardholder and PayU shall not be required to check its veracity and PayU shall not be liable for processing such messages;
- PayU and/or the Acquiring Banks shall have no liability for any failure or delay in performing its obligations under this facility if such failure or delay: (i) is caused by the Merchant's acts or omissions; (ii) results from actions taken by PayU or the Acquiring Banks in a reasonable good faith to avoid violating a law, rule or regulation of any governmental authority or to prevent fraud on Valid Cardholders/accounts; or (iii) is caused by circumstances beyond PayU control, including but not limited to vandalism, hacking, theft, phone service disruptions, Internet disruptions, loss of data, extreme or severe weather conditions or any other causes in the nature of Force Majeure event.
- 21.1 This Agreement may be terminated by either Party by giving 30 (thirty) days prior written notice to the other Party.
- 21.2 Either Party may terminate this Agreement forthwith in the event:
- the Party discovers at any stage that the other Party is in violation of any law or regulation;
- the other Party is adjudicated as bankrupt, or if a receiver or as a trustee is appointed for it or for a substantial portion of its assets, or if any assignment for the benefit of its creditors is made and such adjudication appointment or assignment is not set aside within 90 (ninety) Business Days;
- the other Party goes into liquidation either voluntarily or compulsorily;
- the other Party is prohibited by any regulatory or statutory restriction from continuing to provide services under this Agreement.
- 21.3 PayU shall terminate this Agreement forthwith, if the Merchant fails to perform its obligations hereunder or is in breach of any terms and conditions of this Agreement.
- 21.4 The termination under this Clause is in addition to and without prejudice to the termination rights given to the Parties under any other Clause in this Agreement.
22. CONSEQUENCES OF TERMINATION
- 22.1 The termination of this Agreement shall not affect the rights or liabilities of either Party incurred prior to such termination. In addition, any act performed during the term of this Agreement which may result in a dispute post termination or any provision expressed to survive this Agreement or to be effective on termination or the obligations set out in this Clause shall remain in full force and effect notwithstanding termination. Subject to other Clauses of this Agreement, both Parties shall undertake to settle all outstanding charges within 30 (thirty) days of the termination taking effect.
- 22.2 Where any payments claimed by PayU exceeds the Settlement Amount due to the Merchant the difference thereof shall be a debt due from the Merchant to PayU and be forthwith recoverable by appropriate legal action, as deemed fit by PayU. Without prejudice to PayU’s rights and remedies, in the event that the Merchant does not make any payments to PayU by its due date or on demand as required under this Agreement, PayU shall be entitled to charge daily compounded interest on such overdue amount from the due date until the date of Settlement Amount in full, at the rate of 2.5% per month. This section shall not preclude PayU from recourse to any other remedies available to it under any statute or otherwise, at law or in equity.
- 22.3 All materials, documentation, instruction manuals, guidelines, letters and writings and other materials issued by PayU from time to time in respect of this Agreement, whether in respect of the utilization of the Payment Gateway or otherwise shall be returned by the Merchant to PayU upon termination.
- 22.4 The Merchant agrees and confirms that the Merchant shall remain solely liable after the termination of this Agreement for all Chargebacks, refunds, penalties, loss, damages or cost incurred by PayU, Acquiring Banks, Card Associations and/or Customers and for all claims and proceedings arising against PayU and/or Acquiring Banks with respect to this Agreement. At the time of termination, PayU may retain such amount from the Reserve (if any) and Settlement Amount payable to the Merchant (including Settlement Amounts withheld) as may be determined by PayU to cover chargeback risk, refund risk or any potential loss, damages, penalties, cost that may be incurred by PayU, Acquiring Banks, Card Associations and/or Customers for a period of 210 Business Days. Subject to this Clause and any other Clause of this Agreement, all settlement to the Merchant after notice of termination shall be done post termination. In the event that such retained amount is not sufficient to cover all Outstanding Amounts of the Merchant post termination, the Merchant shall ensure that it pays PayU all pending amounts within 10 (ten) days of receiving the demand notice and shall at all times keep PayU indemnified in this respect. This Clause survives the termination of this Agreement.
23. GENERAL PROVISIONS
- 23.1 Assignments: PayU may assign, in whole or in part, the benefits or obligations of this Agreement by providing prior intimation of such assignment to the Merchant, which shall be binding on the Parties to this Agreement.
- 23.2 Force Majeure: PayU shall not be liable for its failure to perform under this Agreement as a result of any event of force majeure events like acts of god, fire, wars, sabotage, civil unrest, labour unrest, action of Statutory Authorities or local or Central Governments, change in Laws, Rules and Regulations, affecting the performance of PayU or the Acquiring Banks.
- 23.3 Governing Law, Settlement of Disputes and Jurisdiction: This Agreement (and any dispute or claim relating to it, its enforceability or its termination) is to be governed by and construed in accordance with the laws of India. Each of the Parties agrees that, if any dispute(s) or difference(s) shall arise between the Parties in connection with or arising out of this Agreement, the Parties shall attempt, for a period of 30 (thirty) days from the receipt of a notice from the other Party of the existence of a dispute(s), to settle such dispute(s) by mutual discussions between the Parties. If the said dispute(s) cannot be settled by mutual discussions within the thirty-day period provided above, either Party may refer the matter to a sole arbitrator to be mutually appointed in accordance with the Arbitration and Conciliation Act, 1996. The arbitration proceedings shall be held under the provisions of the Arbitration and Conciliation Act, 1996. The arbitration proceedings shall be held in English language at New Delhi. The courts at New Delhi shall have the exclusive jurisdiction over any disputes relating to the subject matter of this Agreement.
- 23.4 Waiver: Unless otherwise expressly stated in this Agreement, the failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies, and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
- 23.5 Survival of Provisions: The terms and provisions of this Agreement that by their nature and content are intended to survive the performance hereof by any or all Parties hereto shall so survive the completion and termination of this Agreement.
- 23.6 Severability: If any provision of this Agreement is or becomes, in whole or in part, invalid or unenforceable but would be valid or enforceable if some part of that provision was deleted, that provision shall apply with such deletions as may be necessary to make it valid. If any Court/Tribunal of competent jurisdiction holds any of the provisions of this Agreement unlawful or otherwise ineffective, the remainder of this Agreement shall remain in full force and the unlawful or otherwise ineffective provision shall be substituted by a new provision reflecting the intent of the provision so substituted.
- 23.7 Non-Exclusivity: It is agreed and clarified that this Agreement is on a non-exclusive basis and the Parties are at liberty to enter into similar Agreements with others.
- 23.8 Entire Agreement: This Agreement constitutes the entire Agreement and understanding between the Parties, and supersedes any previous agreement or understanding or promise between the Parties, relating to the subject matter of this Agreement. All Schedules, Recitals and Annexure to this Agreement shall be an integral part of this Agreement and will be in full force and effect as though they were expressly set out in the body of this Agreement.
- 23.9 Notices: All notices, requests, demands, waivers and other communications required or permitted to be given to PayU under the Agreement shall be in writing through certified or registered mail, courier, email, facsimile or telegram to be sent to the following addresses:
Attn: Legal Department
PayU Payments Private Limited
9th Floor, Bestech Business Tower,
Sector 48, Sohna Road, Gurgaon,
Haryana, Pin - 122001
Or, in each case, at such other address as may be specified in writing to the other Parties in accordance with the requirements of this Clause. All such notices, requests, demands, waivers and other communications shall be deemed duly given (i) if by personal delivery, on the day after such delivery, (ii) if by certified or registered mail, on the10th (tenth) day after the mailing thereof, (iii) if by courier service or similar service, on the day delivered, or (iv) if by email, facsimile or telegram, on the day following the day on which such email, facsimile or telegram was sent, provided that a copy is also sent by registered mail and, in the case of a facsimile, electronic confirmation of receipt is received.
- 23.10 Counterparts: This Agreement may be executed in two or more counterparts, each of which, when executed and delivered, is an original, but all the counterparts taken together shall constitute one document.