Merchant Service Agreement
This Merchant Service Agreement (“Agreement”) is made and entered into at [●] on this [●] day of [●], 2023 (“Effective Date”) between:
Newbazaar Technologies Pvt Ltd, a company incorporated under the provisions of the Companies Act, 2013, having its registered office at We Work Raheja Platinum, Sag Baug Road, Off Andheri Kurla Road, Marol, Andheri East, Mumbai, Maharashtra, India, 400059 (hereinafter referred to as the “Company” or “ShopSe”, which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include its successors and assigns) of the FIRST PART
[●], a company incorporated under the provisions of the Companies Act, 2013, having its registered office at [●] (hereinafter referred to as the “Merchant”, which expression shall unless it be repugnant to the subject or context thereof, include its successors and permitted assigns), of the OTHER PART;
ShopSe and the Merchant shall be individually referred to as a “Party” and collectively as “Parties”.
Now, based on mutual covenants and promises set forth, the Parties are desirous of entering into this Agreement, based on the terms and conditions mentioned herein.
Definitions & Interpretations
In this Agreement, unless the context otherwise requires, the following words and expressions shall bear the meanings ascribed to them below:
“Act” means the Payment and Settlement Systems Act, 2007 and the rules, regulations, guidelines and notifications framed and/or issued thereunder.
“Acquirer” shall mean entities, including but not limited to banks, financial institutions and Card Payment Networks, authorised under the Act to operate Payment Systems and to acquire authorize and authenticate the online payments for the Transactions.
“Affiliate” in relation to a Person, means any other Person, directly or indirectly Controlling, Controlled by, or under Common Control of or with, that Person or any Person or entity forming part of such Person. If such Person is an individual, the term Affiliate shall include a relative of such individual; Control” means, with respect to any Person: (i) the ownership of more than 50% (Fifty per cent) of the equity shares or other voting securities of such Person; or (ii) the possession of the power to direct the management and policies of such Person; or (iii) the power to appoint a majority of the directors, managers, partners or other individuals exercising similar authority with respect to such Person by virtue of ownership of voting securities or management or contract or in any other manner, whether directly or indirectly, including through one or more other Persons; and the term “Common Control” and “Controlled by” shall be construed accordingly;
“Agreement” means this agreement along with schedules hereto as amended from time to time.
“Applicable Law” means any law, statute, rule, regulation, order, circular, decree, directive, judgment, decision or other similar mandates of any applicable central, national, state or local Governmental Authority including the Reserve Bank of India (“RBI”) having competent jurisdiction over, or application to the Party or subject matter in question.
“Activation Date” means the date on which the Merchant starts availing Services.
“Chargeback” shall mean the approved and settled Transactions which are at any time refused, debited, or reversed from the Merchant’s account or from the Merchant’s Settlement Amount by the Payment Aggregator or Lender(s) for any reason whatsoever, together with the bank fees, penalties and other charges incidental thereto.
“Chargeback Amount” shall mean the aggregate amount that is refused, debited, or reversed by the Payment Aggregator, the Lender, Acquirer or Issuer pursuant to a Chargeback.
“Chargeback Documents” has the meaning ascribed to the term in Schedule I.
“Credit Facility” shall mean credit/loan facilities provided by the Lender to the Customers, through the Platform, based on their internal eligibility checks
"Customer" shall mean the customer of the Merchant, who purchases (or wants to purchase) the Products and pays (for such Products) using the Credit Facility extended by the Lender through the Platform using the services of a Payment Aggregator or by itself.
“Dashboard” is a part of ShopSe’s Platform which establishes an electronic information management tool that visually tracks, displays and stores metrics and data points pertaining to Transactions.
“Facility Providers” ” includes banks, financial institutions, financing partners, and technology service providers, including Acquirers, banks, payment aggregators, payment gateways, and Card Payment Networks, facilitating the Transaction or any part thereof.
“Force Majeure Event” means any event, not within the reasonable control of the Party affected, which that Party is unable to prevent, avoid or remove by the use of reasonable diligence. For the purposes of this Agreement, a Force Majeure Event shall comprise the following events and circumstances namely: war, hostilities, invasion, armed conflict, an act of a foreign enemy, embargoes, riot, insurrection, prolonged labour stoppages, outages and downtimes systems failures experienced by the Lender and/or the Payment Aggregator, revolution or usurped power, acts of terrorism, sabotage, nuclear explosion, earthquakes, fires, typhoons, storms and other natural catastrophes.
“Governmental Authority” ” means any central or state government or other political subdivision thereof and any entity, including any regulatory or administrative authority or court/tribunal, exercising executive, legislative, judicial or quasi-judicial, regulatory or administrative or quasi-administrative functions of or pertaining to government.
“Issuer” ” means (i) a bank or financial institution that offers and/or issues cards on behalf of the Card Payment Networks, such as inter alia Visa, MasterCard or American Express; (ii) a bank that offers accounts; and (iii) an entity authorised under the Act to issue a Prepaid Payment Instrument.
"Merchant Store" means physical or online retail presence operated by the Merchant in India or people assigned by the Merchant to sell on its behalf in India. Also includes the Sub Merchants that use “the Merchant Store” platform to sell in India.
“MDR” means “Merchant Discount Rate” is the rate charged to the merchant for digital payment processing services as per RBI guidelines.
“Escrow/ Nodal Account” is an account held by the Payment Aggregator with a bank for the purpose of receiving the Transaction Amount from the Lender(s) and affecting Settlements to the Merchant or the Merchant’s third-party vendor(s) (where authorised by the Merchant and ShopSe).
“Fraudulent Transaction” shall mean any Transaction where the Customer reports (to ShopSe, the Merchant, the Lender, Payment Aggregator, or any other entity) an unauthorised debit of the their Payment Instrument, or if the Merchant collaborates, supports, or assists a Customer in conducting or committing any unauthorized or fraudulent Transaction, or if the Merchant submits false or fabricated Transaction details, or if the QR codes installed by ShopSe at Merchant’s premises/site are used or manipulated in any manner resulting in an unauthorized or fraudulent transaction, and any other similar instances as may reasonably be determined, by ShopSe, to be fraudulent in nature./p>
“Bank Working Days” means days on which the bank is operational to undertake Settlements through the Escrow/Nodal Account.
“NPCI” means the National Payments Corporation of India constituted under the Act.
“OFAC” means the Office of Foreign Assets Control constituted under the law of the United State of America.
“Payment Instrument” includes credit card, debit card, bank account, Prepaid Payment Instrument or any other instrument issued under Applicable Law, used by a Customer to pay the Transaction Amount.
“Payment System” has the meaning ascribed to the term in the Act.
“Permissible Deductions” includes credit card, debit card, bank account, Prepaid Payment Instrument(s) or any other instrument issued under Applicable Law, used by a Customer to pay the Transaction Amount.
“Payment Aggregator” refers to third-party payment aggregators [as defined under the RBI’s ‘Guidelines on Regulation of Payment Aggregators and Payment Gateways’ dated 17 March 2020 (as may be amended from time to time)], that ShopSe has partnered with to facilitate payment collection and Settlement services to the Merchant.
“Payment Aggregator Agreement” refers to the Agreement(s) entered into by ShopSe with its Payment Aggregator(s) for seeking payment collection and Settlement services, towards the Merchant.
“Person” includes an individual, an association, a corporation, a partnership, a joint venture, a trust, an unincorporated organisation, a joint stock company, a bank, a non-banking financial company or other entity or organisation, including a government or political subdivision, or an agency or instrumentality thereof and/or any other legal entity;
“Personal Data '' for the purposes of this Agreement means both ‘personal information’ and ‘sensitive personal data or information’ as defined under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 as maybe amended from time to time, or defined under any other Applicable Law.
“Platform” refers to ShopSe’s mobile application and website named www.getshopse.com owned and operated by ShopSe, either individually or collectively, as the context permits.
“Platform Fee” refers to the fee payable to ShopSe for providing its Platform as well as its Services to the Merchant, and is further detailed in Schedule-III.
“Products” means the goods or services of the Merchant purchased by the Customer using the Credit Facility, except for the category of prohibited offerings listed in Schedule II.
“Proof of Delivery” means all records which evidence the delivery and fulfilment of all Transactions initiated through the Platform.
“Refund(s)” means the processing of the Merchant’s request to ShopSe, through the option available on the Dashboard, for returning the Transaction Amount (or part thereof) to the Payment Instrument which was used for effecting the payment of the Transaction Amount.
“RBI” means the Reserve Bank of India constituted under the Reserve Bank of India Act, 1934.
“Services” or ;">“ShopSe’s Services” are the Platform and technology Services provided by ShopSe to the Merchant, through which the Customers can avail the Credit Facility (from Lenders) and other related services using the Platform as further set out in Schedule I
“Settlement” means transfer of the Settlement Amount from the Lender via the Payment Aggregator to the Merchant.
“Settlement Amount” means the amount of the Transaction plus all other taxes, duties, costs, charges and expenses in respect of the Products that are to be paid by the Customer minus any discount on the Transaction that the Merchant may offer to ShopSe for each purchase of the Product by the Customer.
“ShopSe’s Materials” shall mean any/all materials provided by ShopSe to the Merchant for affixing in the Merchant Store (including but not limited to materials necessary for the operation of ShopSe’s Services and promotional material relating to ShopSe’s Services) for such duration as may be required by the Company
“Subvention charges” means the amount that the merchant is ready to bear, equal to the interest amount charged by the lender, in order to provide affordable payment options on its platform.
“Tp” means date of charge / debit to the customer’s account against the purchase of goods / services.
“Ts” means the date of intimation by the Merchant to the Company about the shipment of goods.
“Td” means the date of confirmation by the Merchant to the Company about the delivery of goods to the customer.
“Tr” means the date of expiry of the refund period as fixed by the Merchant.
“Transaction” means an order or request placed by the Customer with the Merchant (or a third party vendor availing of the Merchant’s services) by paying the Transaction Amount to the Merchant, using ShopSe’s Services, to (i) purchase products or; (ii) avail of services.
“Transaction Amount” ” means the amount paid by the Customer in connection with the Transaction.
Scope & Services
ShopSe has partnered with Lender(s) who offer the Credit Facility to the Customer(s) through ShopSe’s Platform. Customer(s) can purchase the Merchant’s Products using the Credit Facility offered by the Lender(s) using ShopSe’s Platform. ShopSe uses the services of Payment Aggregator(s) and has entered into Payment Aggregator Agreements for the Transactions and for settling the Settlement Amount to the Merchant.
The Merchant acknowledges and agrees that the terms of this Agreement and ShopSe’s Services being received by it shall always be subject to the terms of the respective Payment Aggregator Agreement(s), since Payment Aggregators are RBI regulated entities.
To enable the Transaction, the Merchant shall collect Customers’ Personal Data (including name and phone number) and shall share this data with ShopSe and the Lender after ensuring that it has taken adequate consent from the Customers to do so. ShopSe and the Lender require the data so collected and may also collect further Personal Data for:
ShopSe to onboard the Customers on the Platform; and
Lenders to extend Credit Facility to the Customers.
The Lender has the sole discretion to extend any Credit Facility to the Customers based on the Lender’s policies and the Customer’s creditworthiness. Neither the Merchant nor ShopSe shall have any role to play in the Lender’s decision to extend the Credit Facility. Pursuant to the Lender’s decision, ShopSe and the Lender may execute a separate written instrument with the Customer to whom the Lender agrees to provide the Credit Facility.
The Parties hereby agree that the Merchant shall not be liable in the event the Customer fails to repay back the Credit Facility taken by such Customer from the Lender, except in cases where such default is caused, or any liability has arisen, due to any act or omission on behalf of the Merchant.
Subject to the terms of this agreement, ShopSe further agrees that the Credit Facility is rendered by the Lender to the Customer and is only facilitated by ShopSe, but the Transaction Amount (net of deductions mentioned in this Agreement such as Chargeback, Refunds and charges mentioned in Schedule I) shall be transferred in the Merchant’s account on behalf of the Customer, through the Lender directly or by availing the services of the Payment Aggregator (“Payment Aggregator Services”).
Unless and until the Lender has approved and disbursed the amount in lieu of the Credit Facility, the Payment Aggregator(s) have no responsibility or liability to provide the same to the Merchant. The Parties also agree that the Lender may not disburse the amount due to various reasons including but not limited to a discrepancy in the document(s) or information provided by the Customer/Merchant; non-permitted, fraudulent, erroneous, duplicate Transactions; violation of applicable laws; violation of sanctions (including US (including OFAC), EU, UN, and India imposed sanctions); or non-compliance with the terms of this Agreement.
ShopSe’s Limited Role – Notwithstanding anything contained in this Agreement, Parties agree and understand that:
the sole discretion to provide any Credit Facility to eligible Customers shall be of the Lender(s), based on the assessment and creditworthiness of such Customers, as ascertained by the Lender(s). ShopSe has no role to play in deciding the terms and conditions on which any Credit Facility shall be extended to any Customer. ShopSe is neither involved nor will participate in any lending activity and shall only provide the Platform for enabling Transactions between the Customer, the Lender(s), the Merchant and any Payment Aggregator(s) (as applicable). At no point in the entire Transaction shall ShopSe have access to or control over the flow of funds of the Customer.
Pursuant to the above, since ShopSe’s role is limited to facilitating the Transaction and Settlement, Parties agree and understand that ShopSe shall have no liability, of any nature whatsoever, in case –
where the Customer defaults in repaying any part of any Credit Facility extended to it by the Lender; or
where any of the Payment Aggregator(s) (as applicable) defaults or delays in settling the Settlement Amount to the Merchant(s); or
where any of the Payment Aggregator(s) (as applicable) defaults or delays in transferring any fund(s) from the Customer(s) or the Merchant(s) to the Lender(s); or
where the services of either ShopSe, the Merchant(s), or the Payment Aggregator(s) are facing any interruption, of any nature, either technical or otherwise, for the stipulated duration as agreed in this Agreement; or
where the Merchant(s) have not delivered the agreed Products to the customer(s);
of any Fraudulent Transaction(s) occurring on account of either the Customer(s), the Merchant(s) or the Payment Aggregator(s) (as applicable);
of any other loss or liability accruing to the Lender(s) due to the acts of the Customer(s), the Merchant(s) or the Payment Aggregator(s) (as applicable);
Merchant also acknowledges that nothing in this Agreement shall be construed to impose the responsibility in the nature of First Loss Default Guarantee (FLDG) (as described under the RBI’s Digital Lending Guidelines) upon ShopSe
The Parties shall perform their respective duties and responsibilities (as specified in Schedule I) under this Agreement in such a manner so as to enable ShopSe to maximize the reach of its Services to the Customers (including by provision of value-added services).
Commercials/ Service Fee Payments
Payment Aggregator’s Role:
Subject to the terms of the respective Payment Aggregator Agreement(s), the Payment Aggregator shall settle each the Settlement Amount for each Transaction performed by the Customer in relation to the purchase of the Products using the Platform, as applicable, to the bank account of the Merchant, after deducting the Platform Fee as detailed in Schedule III for each Transaction and as per the Settlement terms stated in the Agreement (Timeline specified in Schedule I).
For this, the Merchant shall be required to provide all necessary Know-Your-Customer (KYC) documents to ShopSe and/or the Payment Aggregator.
In case, due to any regulatory reasons or usage of a third-party service provider or direct Settlement from the Lender(s), the amount is settled on a gross basis (without deducting the agreed charges or the Platform Fee) to the Merchant, the Merchant shall Refund the same as per the instructions of ShopSe.
Merchant Bank Account:
To use the Services, ShopSe may require the Merchant to submit valid bank account information for a bank account in the Merchant’s name that is held with a bank located within India (“Merchant Bank Account”).
The Merchant will use only a name that it is authorized to use in connection with the Services and will update such information as necessary to ensure that it remains accurate and complete at all times. ShopSe may require the Merchant to provide any such information as may be necessary for the facilitation of the Transaction, including all information necessary under Applicable Laws to conduct KYC of the Merchant.
The Merchant authorizes ShopSe to verify the information (including any updated information) by all means and to share this information with the Payment Aggregator for the purposes of carrying out Transactions in the manner as detailed in the Agreement.
The Merchant authorises ShopSe and/or Payment Aggregator to charge the Merchant Bank Account for any sums payable by the Merchant under this Agreement including taxes.
All payments made to the Merchant will be made to the Merchant Bank Account, via cheque or electronic transfers, or through any other means mutually agreed upon by both Parties.
The Merchant agrees that ShopSe will not be responsible for any default, delay or failure of the Lender(s) or the Payment Aggregator(s) in settling any amount or the Settlement Amount that is due to the Merchant, for any reason whatsoever.
ShopSe shall not be responsible for any default, delay or failure in settling any amount or the Settlement Amount that is due to the Merchant for Merchant’s default such as incomplete or inaccurate information provided by the Merchant with respect to the Merchant Bank Account or any other relevant account information.
In the cases contemplated above, the Lender or the Payment Aggregator (as the case may be) shall transfer the outstanding Settlement Amount as per their own terms and conditions and policies, subject to the correct and rectified necessary information being provided by the Merchant
The Merchant agrees and understands that the Settlement Amount will be transferred directly by the Lender(s) itself or through the Payment Aggregator in accordance with the regulatory requirement and industry practices.
The Merchant hereby irrevocably authorizes (for the tenure of the Agreement and/or till the final Settlement of all Transactions under this Agreement) ShopSe to provide necessary details and instructions to the Payment Aggregator and/or Lender on behalf of the Merchant for processing the payments to or from the Merchant under this Agreement.
The Merchant shall ratify the instructions provided by ShopSe and will not dispute or modify the instruction provided by ShopSe on its behalf. The Merchant shall raise all the queries in relation to the Transactions to ShopSe and not to the Payment Aggregator.
In addition to ShopSe’s aforesaid rights, ShopSe or the Payment Aggregator or Lender may instead choose to either:
offset any amounts including tax that are payable by the Merchant to ShopSe or the Payment Aggregator(s) or Lender(s) against any Settlement Amount; or
invoice the Merchant for amounts (including taxes) due to the Lender(s), Payment Aggregator(s) or ShopSe, in which case the Merchant shall Refund the invoiced amounts and taxes within 7 days from the receipt of the undisputed invoice, as per the instructions provided to it. The Merchant shall raise disputes with respect to invoice, if any, within 2 days from the receipt of invoice and ShopSe shall resolve it within 3 days from the date of raising disputes; or (c) seek payment by any other lawful means.
Significant Customer Disputes:
If ShopSe reasonably concludes based on the information available to it that the Merchant’s actions or performance in connection with the Agreement may result in a Significant Number of Customer Disputes (as defined below), Chargebacks, or other claims in connection with the use of the Services, then ShopSe may, in its sole discretion and subject to Applicable Law, delay initiating any payments to be made or that are otherwise due to the Merchant under this Agreement for the shorter of:
a period of ninety (90) days following the initial date of suspension of payments; or
completion of any investigation(s) regarding the actions or performance in connection with the Agreement.
The Significant Number of Customer Disputes in this Agreement shall mean not more than 5% of the total Customers availing the Services.
Representations and Warranties
Merchant’s Representations and Warranties: The Merchant warrants and represents that:
it is validly constituted under the Applicable Laws and has all necessary permissions and authorizations to enter into this Agreement.
it holds and shall hold, throughout the Term, all the valid and subsisting licenses, permits and consents required for the conduct and operation of its business from appropriate competent authorities under the Applicable Law.
its obligations under this Agreement are not in contravention with any other agreement or arrangement it may have with any third-party.
it shall comply with all Applicable Laws and regulations throughout the Term. It shall not offer anything to the Customers, which is illegal or offensive or brings disrepute to ShopSe, and is not in compliance with Applicable Laws, and regulations.
it shall obtain a valid and demonstrable consent from the Customer for sharing the Customer’s data with ShopSe, Payment Aggregator or with the Lender.
it has undergone ShopSe’s Customer Grievance Policy, the Merchant Onboarding Policy(Collectively “ShopSe’s Policies”), and shall comply with the same at all times during the Term. In case of any conflict between this Agreement or its Schedules with ShopSe’s Policies, Shop Se’s Policies shall prevail;
it is in compliance with the Payment Card Industry-Data Security Standard (PCI-DSS) and the Payment Application-Data Security Standard (PA-DSS);
ShopSe’s Representations and Warranties: ShopSe represents and warrants that:
it is validly constituted under the Applicable Laws and has all necessary permissions and authorizations to enter into this Agreement.
it has taken all necessary actions to authorize the execution, delivery and performance of its part under this Agreement.
it acknowledges that either the Lender or ShopSe itself shall be responsible for making the decision for sanctioning of any loan to the Customer.
it has entered into an arrangement with the Customer to facilitate the Transaction.
Merchant’s Covenants: The Merchant hereby agrees to abide by the following covenants:
Transaction Handling: The Merchant shall accept payment only in Indian Rupees unless otherwise approved in writing by ShopSe
The Merchant shall not make any cash Refunds to the Customer.
Chargeback: The Merchant hereby agrees that all payments with respect to Refunds and Chargebacks shall be the sole responsibility of the Merchant and ShopSe shall not be liable for any claims, disputes, or penalties which may arise in connection with such Refunds or Chargebacks towards the Merchant or the Customer. This also includes Chargebacks raised due to any issues or glitches with the Merchant’s services.
Payment Aggregator Services: The Merchant agrees that the provision of the Payment Aggregator Services shall always remain subject to the terms of the respective Payment Aggregator Agreement(s). Merchant understands and agrees that any delay, default, error or breach of any of ShopSe’s obligations or covenants under this Agreement, when attributable to the Payment Aggregator, ShopSe shall not be held liable for any such delay, default, error or breach, or for any liability arising therefrom.
Lender’s services: The Merchant agrees and acknowledges that the provision of the Credit Facility by the Lender remains subject to the Lender’s sole discretion. Therefore the Merchant agrees that ShopSe shall have no liability of any nature whatsoever, either towards the Customer or the Merchant, should the Lender, in its sole discretion, decides to not provide the Credit Facility to any Customer or restricts or prohibits the provision of the Credit Facility to any Customer.
The Merchant shall ensure that the entire data relating to payment and lending Transactions, which includes the full end-to-end Transaction details / information collected / carried / processed as part of the message / payment instruction, is stored in a system only in India;
Right to Conduct Audit:
Except as required by law, the Merchant shall be solely responsible for (a) compiling and retaining records of all Transactions and other data and (b) reconciling all Transaction information that is associated with its Customers for up to 5 years.
The Merchant shall maintain records of such periodical checks in such manner as may be specified by ShopSe and/or the Payment Aggregator or the Lender. ShopSe and/or the Payment Aggregator or the Lender shall be entitled to check and audit records and statements of the Merchant for the purpose of compulsory audit process or any regulatory requirements. ShopSe and/or the Payment Aggregator or the Lender shall also be entitled to carry out physical inspections of the place of business of the Merchant to ensure compliance with the Merchant’s obligations under this Agreement at such intervals or times as ShopSe and/or the Payment Aggregator or the Lender may deem fit.
Lender’s and Payment Aggregator’s policies:
The Merchant acknowledges and agrees that the Lender and the Payment Aggregator may have their own internal policies which the Merchant shall follow and abide by, as applicable to it.
In cases of any conflict under this Agreement, as well as these policies, these policies shall prevail.
The Merchant shall be solely responsible for an breach and/or violation of the above policies.
In case of such a breach / violation, the Merchant shall promptly notify ShopSe about the occurrence of the breach / violation and shall pay all such amounts, without any protest, delay or demur.
Mutual Covenants:Both Parties agree to abide by the following covenant
Ownership of Customer Data: The Parties acknowledge that the respective data collected of the Customer data shall be jointly owned by such Party, which has collected such data under this Agreement. For removal of doubt, it is clarified that all the personal documents of the Customer obtained by ShopSe for rendering the Services shall be only owned by ShopSe and not the Merchant. The Parties hereby agree that each of the Parties shall be responsible to protect and keep safe the respective data so collected and shared under this Agreement by such Party, as per applicable laws.
Obligations under the Agreement: The Parties acknowledge that the obligations expressed to be assumed by them hereunder are legal, valid, binding and enforceable.
“Confidential Information” means and includes any and all information/data which is confidential to a Party including but not limited to (i) any business information, memorandums, business strategies, tangible evaluation material and plans, (ii) advertising and marketing plans or marketing information, data and/or material, (iii) any past, current or proposed development projects or plans for future development work, (iv) any technical, marketing, financial and commercial information, (v) the commercial and business affairs of a Party, and (vi) all other related information including any rates, payment terms and discounts. Each Party agrees that during the Term of this Agreement, it will:
Only disclose Confidential Information to those of its employees, officers, directors, agents and contractors (collectively “Representatives”) with a need to know, provided, the receiving party ensures that such representatives are aware of, and they have sufficient processes to adhere to these confidentiality obligations and comply with the obligations of confidentiality prior to such disclosure;
Not disclose any Confidential Information to any third party without the prior written consent of the disclosing party;
Not reproduce Confidential Information in any form except as required to perform its obligations under this Agreement
Not directly or indirectly export or transmit any Confidential Information to any country to which such export or transmission is restricted by regulation or statute; and
Promptly provide the disclosing Party with notice of any actual or threatened breach of this clause
The provisions of this clause shall not apply to:
Disclosure of Confidential Information that is or becomes generally available to the public other than as a result of disclosure by or at the direction of the receiving party or any of its Representatives in violation of this Agreement; or
Disclosure, after giving prior written notice to the disclosing Party to the extent practicable under the circumstances and subject to any practicable arrangements to protect confidentiality, to the extent required under the rules of any applicable laws, regulations or processes of any government authority or in connection with any judicial process regarding any legal action, suit or proceeding arising out of or relating to this Agreement.
Which subsequently comes lawfully into the possession of the receiving party by a third party not obligated to the disclosing party to keep the information confidential; or
All intellectual property rights, including without limitation, data, product design, patent, copyright, trade/service-mark(s), trade names(s), and logos (collectively referred to as “ShopSe Intellectual Property”) that are either pre-existing and/or conceived, generated, derived, produced or reduced to practice, by ShopSe or any of its Affiliates, as a result of the Services performed by ShopSe or such Affiliate shall be and remain the exclusive property of ShopSe or such Affiliate.
All intellectual property rights, including without limitation, data, product design, patent, copyright, trade/service-mark(s), trade names(s), and logos (collectively referred to as “Merchant Intellectual Property”) that are either pre-existing and/or conceived, generated, derived, produced or reduced to practice, by the Merchant or any of its Affiliates, as may be required by ShopSe for the Services performed by ShopSe or its Affiliate shall be and remain the exclusive property of the Merchant or its Affiliate. Merchant hereby grants to ShopSe, for the Term of the Agreement, a non-exclusive, non-assignable, non-sublicensable and revocable license to use Merchant Intellectual Property, as may be notified by the Merchant from time-to-time.
For the avoidance of any doubt, it is clarified that the intellectual property created by ShopSe or its Affiliates during the course of Services is presumed to be owned by ShopSe (or the Affiliate) unless otherwise stated in writing.
ShopSe hereby grants to the Merchant, for the Term of the Agreement, a non-exclusive, non-assignable, non-sublicensable and revocable license to use ShopSe’s Platform and Dashboard.
Nothing contained herein shall authorise the Parties to use, apply, invade or in any manner exploit or infringe the intellectual property rights of the other Party without the prior written consent of the other Party, the usage shall be in compliance with this Agreement and such approval and policies may be notified from time to time. In addition, the Parties undertake not to infringe the intellectual property rights of any third party.
Upon termination of this Agreement all rights relating to the Intellectual Property developed by ShopSe during the Term of this Agreement for the performance of Service thereto shall continue to vest with ShopSe and the Merchant shall not have any right whatsoever over such Intellectual Property.
Suspension of Settlement:
If ShopSe is notified of the occurrence of a Fraudulent Transaction, ShopSe, acting through the Payment Aggregator(s) or the Lender(s), shall be entitled to suspend Settlement associated with the Fraudulent Transaction during the pendency of inquiries, investigations and resolution thereof by the Payment Aggregator and/or Lender(s) as the case may be.
Resolution of Chargeback/amount already settled:
If the Fraudulent Transaction results in a Chargeback, then the Chargeback shall be resolved in accordance with the provisions set out in Schedule I.
If the amount in respect of the Fraudulent Transaction has already been settled to the Merchant, any dispute arising in relation to the said Fraudulent Transaction, following Settlement, shall be resolved in accordance with the RBI’s notification DBR.No.Leg.BC.78/09.07.005/2017-18, dated July 6, 2017 read with RBI’s notification DBOD. LEG. BC 86/09.07.007/2001-02 dated April 8, 2002 (or as may be amended from time to time) or other notifications, circulars and guidelines issued by the RBI in this regard from time to time;
Liability of Fraudulent Transaction:
Any liability, loss or damages to either the Customer(s), Merchant or any third-party, arising from any Fraudulent Transaction, will be that of the Merchant, exclusively, and ShopSe will not bear any liability of any nature whatsoever.
If ShopSe incurs any cost, charges, liability or expenses for any Fraudulent Transaction, or where the Merchant is not able to provide the necessary supporting documents for the Transaction directly attributable to the Merchant, the Merchant shall be liable to reimburse all such amounts to ShopSe promptly, but not later than 7 days from the date of accrual of such liability on ShopSe.
If the Merchant disputes the claim of a Fraudulent Transaction, the Merchant shall provide all the information relating to the Transaction including the Proof of Delivery (if any) within 5 days of receipt of the intimation from ShopSe.
If any Settlement Amount is transferred by the Lender and/or Payment Aggregator in pursuance of any unauthorized or Fraudulent Transaction, then the Merchant shall be liable to refund all such Settlement Amount(s) to the Lender and/or Payment Aggregator, as per ShopSe’s instructions, promptly, but not later than 48 hours from the date of Settlement.
OPERATION OF SERVCIES, LIMITATIONS AND DISCLAIMERS
The Merchant acknowledges and understands that:
ShopSe will make all reasonable efforts to provide uninterrupted Services subject to downtime and regular maintenance which shall be updated to the Merchant.
However, notwithstanding anything in this Agreement, the Merchant acknowledges that the Platform, ShopSe’s Services and the Payment Aggregator Services may not be uninterrupted or error-free, free from any virus or other malicious, destructive or corrupting code, program or macro.
ShopSe, the Payment Aggregator, and the Lender 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 arrangement between one or more Payment Aggregator(s) and/or Lender(s) and ShopSe may terminate at any time and services of such Payment Aggregator and/or Lender may be withdrawn. and adopt adopts security measures it considers appropriate
ShopSe adopts security measures it considers appropriate and shall have a decent, working, and market-fit standard system and programs to protect its Services from getting hacked or unauthorised access.
Notwithstanding the above, ShopSe neither assures nor guarantees that no person will overcome or subvert the security measures and gain unauthorized access to ShopSe’s Service or the Merchant/Customer data.
Further, ShopSe shall not be responsible or liable if any unauthorized person hacks into or gains access to ShopSe’s Services or to the Merchant’s ShopSe Account and the Merchant shall be liable and responsible for the same.
In the event of any interruption of services or loss of use and / or access to ShopSe Site, or the Acquirer services or the Payment Mechanism and services, as the case may be (“Interrupted Services”) that is beyond ShopSe’s control and/or direction, ShopSe shall intimate the Merchant about the Interrupted Services and make all reasonable attempts to restore them as soon as reasonably possible.
However, if in the event any Interrupted Services are within the control and/or direction of ShopSe, it shall endeavour to restore the interrupted services forthwith.
In any case, ShopSe’s sole obligation and the Merchant’s sole and exclusive remedy in the event of an interruption in ShopSe’s Services, or loss of use and/or access to the Dashboard, the services of the Lender and/or the Payment Aggregator, shall be to use all reasonable endeavours to restore the Services and/or access to the Payment Aggregator as soon as reasonably possible.
Messages that originate from the server of the Merchant or the server of a third party designated by the Merchant (e.g., a host) shall be deemed to be authorized by the Merchant, and ShopSe shall not be liable for processing such messages.
Messages that originate from the cardholder are deemed to be authorized by the cardholder and ShopSe shall not be required to check its veracity and ShopSe shall not be liable for processing such messages.
ShopSe or the Payment Aggregator and/or the Lender are not responsible for the security of data residing on the server of the Merchant or a third party designated by the Merchant (e.g., a host) or on the server of a cardholder or a third party designated by a Merchant/cardholder (e.g., a host).
ShopSe or the Payment Aggregator and/or the Lender shall have no liability for any failure or delay in performing their respective obligations under or in relation to this Agreement if such failure or delay: (i) is caused by the Merchant’s acts or omissions; (ii) results from actions taken by ShopSe or the Payment Aggregator and/or the Lender in reasonable good faith to avoid violating a law, rule or regulation of any Governmental Authority or to prevent fraud on cardholders/accounts; or (iii) is caused by circumstances beyond ShopSe’s control, including but not limited to vandalism, internet disruptions, loss of data, extreme or any other causes in the nature of Force Majeure event.
Neither Party shall be in breach of its obligation hereunder if it is delayed in the performance of, or is unable to perform (whether partially or fully), such obligations as a result of the occurrence of a Force Majeure Event (defined below); provided that the Party affected by the Force Majeure Event shall give notice to the other Party of the occurrence of the Force Majeure Event as soon as reasonably practicable and in any case within 7 (seven) days from the date on which the affected Party knew or should reasonably have known of the occurrence of a Force Majeure Event.
Each Party shall make all reasonable endeavours to mitigate any delay or interruption to any part of the performance of this Agreement as a result of the occurrence of a Force Majeure Event.
If a Force Majeure Event which substantially impairs the performance by a Party of its material obligations under this Agreement occurs and such Force Majeure Event continues for a continuous period of more than thirty (30) days, then either Party may terminate this Agreement at any time thereafter by giving seven (7) days prior written notice to the other Party.
Force Majeure Event shall, to the extent such events and circumstances or their consequences satisfy the requirements mentioned hereinabove, comprise the following events and circumstances namely: war, hostilities, invasion, armed conflict, an act of a foreign enemy, embargoes, riot, insurrection, prolonged labour stoppages, outages and downtimes systems failures experienced by the Payment Aggregator and/or the Lender, revolution or usurped power, acts of terrorism, sabotage, nuclear explosion, earthquakes, fires, typhoons, storms and other natural catastrophes.
INDEMNITY AND LIMITATION OF LIABILITY
Either Party agrees to indemnify, defend and hold harmless the other from and against any and all claims, damages, liabilities, losses, judgments, costs (including reasonable attorneys’ fees) arising directly out of, or relating to: (a) Either Party’s fraud, negligence or wilful misconduct in the performance of its obligation stated hereunder; (b) breach of any representations, covenants or warranties provided by either Party, (c) claims or demands resulting from any damage or personal injury to any third party (including the Customer), resulting from the performance (or non-performance) of the obligations of either Party hereunder, (d) any infringement or unauthorized use of the intellectual property and associated rights (whether such intellectual property is registered or not) of the Company and / or Merchant, and failure to comply with any regulatory/legal requirements and compliances under the applicable laws. Notwithstanding the foregoing, the Company shall have the right, in its absolute discretion and at its sole cost, to employ attorneys of its own choice and to institute or defend any claim for which the Company has a right to be indemnified under this clause.
The indemnification obligation of the Merchant shall survive the termination of the Agreement.
If a dispute arises with respect to the services offered by the Merchant, Merchant will release ShopSe (And its Officers, Directors, employees, agents & Affiliates) from claims, demands, & Damages (Actual & Consequential) of every kind & nature, known and unknown, suspected & unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute, except for the disputes arising out of ShopSe’s failure to perform the terms of this Agreement, wilful negligence and Fraudulent Transactions and other causes that are directly attributable to ShopSe.
In case of any breach / violation by the Merchant of the Lender and/or the Payment Aggregator’s policies, the Merchant shall indemnify ShopSe against any losses, damages, claims, liabilities, judgments, and costs arising out of or attributable to the Merchant’s breach / violation.
Limitation of Liability:
Neither Party shall be liable to the other Party for any special, consequential, punitive, incidental, or indirect damages, or any damages for lost data, business interruption, lost profits, lost revenue or lost business, arising out of or in connection with the Agreement, however, caused and based on any theory of liability, arising out of the Agreement, whether or not such Party has been advised of the possibility of such damage, and notwithstanding any failure of essential purpose of any limited remedy. In no event will the Company be liable or the Merchant be entitled to claim any monetary damages from the Company under the Agreement.
Notwithstanding anything stated under this Agreement, the aggregate liability of ShopSe to the Merchant from any cause whatsoever shall not, in any event, exceed the sum equivalent to 1 month’s aggregate preceding revenue earned by ShopSe under this Agreement from the date of occurrence of such liability. Provided that ShopSe 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.
ShopSe shall not be liable to the Merchant for any loss or damage whatsoever or howsoever caused or arising, directly or indirectly, including without limitation, as a result of loss of data; interruption or stoppage to the Customer’s access to and/or use of the Merchant Site, ShopSe’s Services and/or the Payment Aggregator Services, or the services offered by the Lender, interruption or stoppage of ShopSe Site, non-availability of connectivity between the Merchant Site and ShopSe Site, etc. Any material/information downloaded or otherwise obtained through the use of ShopSe’s 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 ShopSe or through or from the use of ShopSe’s Services shall create any warranty. ShopSe shall have no liability in this respect.
11. Term and Termination
Term of the Agreement:The term of the Agreement will be valid for 1 year from the Effective Date in accordance with the terms stated in this Clause (“Term”).
Termination without cause:It is clarified that either Party may terminate this Agreement, without cause, upon providing 30 (thirty) days’ prior written notice to the other Party.
Termination with cause:Each Party shall have the right to terminate the Agreement, by giving a notice in writing to the other Party upon the occurrence of any of the following events:
Breach of Agreement:If the other Party commits any breach of any of the terms and conditions of the Agreement and in case such breaching Party fails to cure the breach within a period of 30 (thirty) days from the date of notice of the breach; and
Insolvency:If the other Party: (a) becomes the subject of a bankruptcy, insolvency or similar proceeding, or (b) makes a composition with its creditors generally, or (c) if a receiver or administrator or trustee is appointed to take possession of the business or properties or undertaking of such Party, or (d) if such Party ceases to carry on its business for a period of 60 (sixty) days as presently conducted,
Change in operation of business:The Company shall be entitled to terminate the Agreement, with immediate effect, if, (a) the business of the Merchant dissolves or ceases to function as ‘on a going concern’; (b) if there occurs any change in the control in the business of the Merchant without the prior written approval of the Company;
Involvement in illegal/prohibited activities:The Company shall also be entitled to terminate the Agreement, with immediate effect, if (a) the Merchant does, or facilitates, any fraudulent act or any non-permissible transaction; (b) the Merchant is involved in any criminal or illegal activity; (c) the Merchant misuses the Platform (including ShopSe’s Materials); (d) the Merchant offers any goods/services that are prohibited under Schedule-II of the Agreement or may reasonably be considered as immoral or illegal.
Consequences of Termination Upon termination of the Agreement:
all rights and licenses (if any) granted to the Merchant will be revoked and stand cancelled.
the Merchant acknowledges and agrees that the Company shall be the exclusive owner of all intellectual property, Confidential Information including all kinds of proprietary information, material and other material developed or prepared by the Company during the Term of the Agreement.
All materials, documentation, instruction, manuals, guidelines, letters and writings, and other materials issued by ShopSe 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 Merchant to ShopSe upon termination.
12. Dispute Resolution
If any dispute arises amongst the Parties hereto during the subsistence of this Agreement or thereafter, in connection with the validity, interpretation, implementation or alleged breach of any provision of this Agreement or regarding a question, including the questions as to whether the termination of this Agreement has been legitimate, the Parties shall endeavour to settle such dispute amicably.
In the case of failure by the Parties to resolve the dispute in the manner set out above within 7 (seven) days from the date when a dispute is notified by one Party to the other Party, the dispute shall be referred to and finally resolved by a sole arbitrator, appointed by both the parties. The arbitration proceedings shall be conducted as per the provisions of the Arbitration and Conciliation Act, 1996. The seat and venue of arbitration shall be in Mumbai, Maharashtra, India and the proceedings of the arbitration shall be conducted in English. The sole arbitrator shall also decide on the costs of the arbitration proceedings. The sole arbitrator’s award shall be substantiated in writing and the Parties shall submit to the sole arbitrator’s award, as per law.
The Settlement towards the Transaction performed using the Platform, shall be done by the Payment Aggregator within T+2 Bank Working Days (excluding Saturday, Sunday or any other bank holidays, in which case such period will be calculated after deducting the holiday period) excluding bank and public holidays.
In the event of extra Settlement in the Merchant Bank Account, the Lender(s), or the Payment Aggregator(s) and/or ShopSe acting through the Lender(s) or the Payment Aggregator(s) shall have the right to reverse the extra funds from the Merchant Account and/or set it off against the Merchant’s subsequent Payments in the Escrow/Nodal Account. In the event that ShopSe is unable to recover the funds in such a manner, the Merchant shall refund the amount of additional funds transferred within 7 (seven) days of notification. Subject to other clauses of this Agreement, in the event that the Payments to be transferred to the Merchant have not been transferred, ShopSe shall endeavour to settle the relevant Payments to the Merchant’s account within 7 (seven) days of notification from the Merchant.
Settlement post-termination: The Merchant agrees and acknowledges that in the event the terms of the onboarding documents are terminated by ShopSe (a) no Settlement shall be done by the Payment Aggregator for any transaction performed by the Customer using the Platform, and (b) the Merchant shall stop, and cease to use any ShopSe’s services or offerings. Further, the amount received by the Payment Aggregator(s) or the Lender(s) pursuant to the transaction performed by the Customer shall be refunded by the Payment Aggregator(s) or the Lender(s), as the case may be, to the Customer, through the medium through which the transaction was performed.
Final Settlement with the Merchant by the Payment Aggregator or the Lender(s) shall be effected as under:
Where a Merchant is responsible for delivery, the payment to the Merchant shall be not later than on Td + 2 basis.
Where the agreement with the Merchant provides for keeping the amount by the Company till the expiry of the refund period, the payment to the Merchant shall be not later than on Tr + 2 basis.
The Merchant agrees and acknowledges that subject to the availability of funds received in the Escrow/Nodal Account of the Payment Aggregator(s) or funds received by the Lender pursuant to the Transactions, the Merchant is entitled to effect Refunds. The Merchant also agrees and acknowledges that all the Refunds shall be concluded within 2 (two) working days of the first request, however, the process of Refund will be subject to any applicable policies of the Lender.
The Merchant further agrees and acknowledges that initiation of Refunds is at the discretion of the Merchant and ShopSe shall facilitate the processing of a Refund only upon initiation of the same on the Dashboard.
All Refunds initiated by the Merchant shall be routed through the same channel that processed the Transaction Amount related to the Refund or as per the decision taken by ShopSe.
The Merchant hereby acknowledges and agrees that on the Chargeback Refund Direction being issued by ShopSe, the Merchant concerned Refunds the amounts received by it in respect of such Transaction (“Refund Monies”) by depositing the same into the Escrow/Nodal Account of the Payment Aggregator(s) or towards the Lender (i.e. on the same day on which the Refund Direction is received by ShopSe).
The Merchant hereby agrees that all such Refunds and Chargebacks shall be the sole responsibility of the Merchant and ShopSe shall not be liable for any claims or disputes which may arise in connection with such Refunds or charge-backs. In particular, if any penalties or fines are imposed on ShopSe by the Card Associations, the Governmental Authority, the Payment Aggregator or the Lender, the Merchant shall indemnify ShopSe.
The Merchant shall (a) maintain a fair return, cancellation or adjustment policy in accordance with the 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 Transaction, unless required by law, and (d) not accept cash or any other item of value for preparing a card sale Refund. In case the Merchant provides a cash Refund to the Customer instead of providing the amount to the Lender and/or the Payment Aggregator, the Merchant shall be liable to provide the entire outstanding amount of the loan to the Lender and/or the Payment Aggregator.
15.1 Except as required by law, Merchant shall be solely responsible for (a) compiling and retaining permanent records of all Transactions and other data and (b) reconciling all Transaction information that is associated with its Customers.
15.2 The Merchant shall maintain records of such periodical checks in such manner as may be specified by ShopSe and/or Acquirers. ShopSe and/or Acquirers shall be entitled to check and audit records and statements of Merchant or to carry out physical inspections of the place of business of the Merchant to ensure compliance with the Merchant’s obligations under this Agreement at such intervals or times as ShopSe and/or Acquirers may deem fit.
Agreement subject to other terms and conditions: Notwithstanding anything contained in this Agreement, the Merchant also understands that the terms and conditions of this Agreement remain subject to the policies as well as terms and conditions of the Payment Aggregator or Lender(s). In case of any inconsistency between this Agreement and the respective terms and conditions of the Payment Aggregator and/or the Lender, the latter will prevail.
Non-Waiver: The waiver or failure of either Party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
Amendments: This Agreement may only be amended by a written agreement executed by duly authorized representatives of both Parties.
Binding Effect: This Agreement is a legal and valid obligation binding upon the Parties and enforceable in accordance with its terms, except as such enforcement may be limited by Applicable Law and subject to general equity principles and limitations on the availability of equitable relief, including specific performance. The execution, delivery and performance of this Agreement by the Parties do not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound.
Further Actions: The Parties shall do or cause to be done such further acts, deeds, matters and things and execute such further documents and papers as may reasonably be required to give effect to the terms of this Agreement.
Survival: The provisions of this Agreement, which by its nature survives, shall survive the termination including without limitation Clause 6 (Confidentiality), Clause 11 (Indemnity), Clause 12 (Term and Termination), and Clause 16.7 (Severability) and this Clause hereof shall survive the expiration or termination of this Agreement.
Severability: If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future Applicable Laws, and if the rights or obligations under this Agreement of the Parties shall not be materially and adversely affected thereby, (a) such provision shall be fully severable; (b) this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof; and, (c) the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance here from. Without prejudice to the foregoing, the Parties hereto shall mutually agree to provide a legal, valid and enforceable provision as similar in terms and effect to such illegal, invalid or unenforceable provision as may be possible.
Counterparts: This Agreement may be executed in counterparts, each of which taken together shall constitute one and the same instrument and be an original. The delivery of signed counterparts by facsimile transmission or electronic mail in “portable document format” (“.pdf”) shall be as effective as signing and delivering the document in person.
Assignment: Merchant shall not assign or transfer this Agreement or part of this Agreement or any rights or obligations there under to or for the benefit of any third party without the prior written consent from ShopSe. Any assignment without such consent shall be null and void. ShopSe shall not require the Merchant’s consent before assigning any of its rights or obligations under the Agreement.
Notice: Any “notice” by any Party under this Agreement shall be addressed to the signatories to this Agreement and shall be deemed to be delivered when received by the other Party either through a registered post at the address or email of the signatories to this Agreement.
Signed by authorised representatives of the Parties on the dates written below:
|[Insert name of the Merchant]||Newbzaar Technologies Pvt Ltd|
|Authorised Signatory:||Authorised Signatory:|
Details of the Merchant
|Name of the Merchant|
|Type of Organization|
|Organization Registration Number|
|Registered Address/Principal place of Business|
|Product and/or services provided by Merchant|
DUTIES, RESPONSIBILITIES AND OBLIGATIONS
Duties and responsibilities of the Merchant
Products offered by the Merchant:The Platform is used for making Transactions for only those Products which are not listed as under Schedule II of this Agreement.
Billing of Products:
The Merchant shall be solely responsible to bill the Products selected by the Customer, and ShopSe shall not be responsible for any wrong billing of the Products at any point of time.
The Merchant shall ensure that the invoices are correctly generated with the correct Product details and the genuine price of the Products including the net of any discounts offered by the Merchant and the tax component as applicable.
The Merchant shall provide a copy of the invoice for each Transaction to ShopSe and the Payment Aggregator and/or the Lender which the Payment Aggregator and/or the Lender will use for Settlement of the amount.
In case of any information or suspicion that the Merchant may be involved in a Fraudulent Transaction, the Payment Aggregator shall not be liable for Settlement unless the Merchant is able to provide sufficient and proper proof of a valid Transaction.
The Merchant shall be solely responsible for (a) compiling and retaining permanent records of all Transactions and other data and (b) reconciling all Transaction information that is associated with its Customers.
Treatment of Customers:
The Merchant shall ensure that every Customer who visits the Merchant Store is given the same treatment and attention (without any discrimination), as the other customers of the Merchant notwithstanding the fact that such Customer uses the Platform or not.
The Merchant will not misbehave or try to influence the Customer to use the Platform for a purpose other than as agreed under this Agreement.
Collection of amounts:The Merchant acknowledges that ShopSe, acting through the Payment Aggregator, shall collect amount(s) paid by the Customer towards the Products purchased from the Merchant Store using the Platform. The Merchant further agrees and acknowledges that the Payment Aggregator shall deduct the Platform Fee from the Settlement Amount, as specified and detailed in the Agreement.
Processing of data:Any data relating to Transactions performed using the Platform or the Dashboard will be processed and passed on to the Company and the Payment Aggregator on a daily/real-time basis, and the Merchant shall inform ShopSe and the Payment Aggregator immediately in case of any discrepancies in the Settlement Amounts.
Transactions are binding:The Merchant acknowledges that any Transaction performed by the Customer(s) through the Platform in relation to the Merchant Store shall be construed as an agreement between the Merchant and the Customer, and the Merchant shall bear full responsibility for the performance of its obligations to the Customer, including but not limited to fulfilment of orders placed by the Customer.
Safeguarding ShopSe’s Platform:
The Merchant shall not, nor shall the Merchant allow any other person or entity, to reverse engineer, decompile, or use any other means to try to ascertain the source code of ShopSe’s Services / Platform.
The Merchant shall not, nor shall the Merchant allow any other person or entity, to sell or re-sell, license or rent ShopSe’s Services / Platform.
If ShopSe receives a Chargeback request from a Customer, then the Merchant will forthwith be notified of the Chargeback.
The Merchant shall be entitled to furnish to ShopSe and/or the Payment Aggregator documents and any other information/details (“hargeback Documents”) pertaining to the Transaction associated with the Chargeback in order to substantiate (i) the completion of the aforesaid Transaction and/or; (ii) delivery of goods / services sought by the Customer pursuant to the said Transaction.
However, if the Merchant is desirous of furnishing the Chargeback Documents, it shall do so within five (5) days of receiving notification of the Chargeback under this Schedule.
The Merchant agrees and acknowledges that (i) if the Merchant is unable to furnish Chargeback Documents and/or; (ii) the Payment Aggregator and/or the Lender is not satisfied with the Chargeback Documents furnished by the Merchant, then the Payment Aggregator shall be entitled to effect a reversal of the debit of the Chargeback Amount associated with the Chargeback such that the said Chargeback Amount is credited to the Customer’s Payment Instrument.
If a Chargeback Amount is raised on ShopSe, the Payment Aggregator, or the Lender, as the case may be, by the Customer, then the Merchant agrees and acknowledges that ShopSe, the Payment Aggregator or the Lender are entitled to charge such Chargeback Amount to the Merchant by way of deduction from the Transaction Amounts to be settled to the Merchant subsequent to ShopSe incurring the charge of the Chargeback Amount.
The Merchant further agrees and acknowledges that following ShopSe incurring the charge stipulated in the above paragraph, if the available Transaction Amounts are insufficient for deduction of the Chargeback Amount, then ShopSe and/or the Payment Aggregator or the Lender is entitled to issue a debit note seeking reimbursement of the Chargeback Amount. The Merchant shall reimburse the Chargeback Amount within seven (7) days of receipt of the debit note.
On the issuance of notice of termination under Clause 12, the Payment Aggregator reserves the right to withhold, on ShopSe’s behalf, from each Settlement made during the Notice Period, a sum computed based on a Stipulated Percentage (defined hereinbelow) for a period of 60 days (“Withholding Term”) from the date of termination of this Agreement.
The sums so withheld shall be utilized towards the Settlement of Chargebacks. After processing such Chargebacks, the Payment Aggregator shall transfer the unutilized amounts, if any, to the Merchant forthwith upon completion of the Withholding Term.
The ‘Stipulated Percentage’ is the proportion of the Chargeback Amounts out of the total Transaction Amounts settled during the subsistence of this Agreement.
Notwithstanding anything contained in this Agreement, if the amount withheld pursuant to paragraph A-8 of this Schedule is insufficient to settle Chargeback Amounts received during the Withholding Term, then ShopSe or the Payment Aggregator and/or the Lender, as the case may be, are entitled to issue a debit note seeking reimbursement of the Chargeback Amount. The Merchant shall reimburse the Chargeback Amount within seven (7) days of receipt of the debit note
Use of Services:
ShopSe’s services will be used directly and solely by the Merchant for processing payments towards Products offered by the Merchant and will not be used by the Merchant or its Affiliates in any other manner.
The Merchant or its Affiliates shall not provide or facilitate (in any manner) any cash line, cash withdrawal, cash Refund, or personal loan (for any other purpose other than the purchase of Products at the Merchant Store) to the Customer by using ShopSe’s Services.
In case of any dispute or any issue relating to the Transactions, the Merchant will provide all the necessary cooperation to ShopSe and/or the Payment Aggregator for identifying or tracing the Customer.
Cash Refunds: ShopSe shall not be liable in case any amount has been refunded by the Merchant directly to the Customer. The Merchant shall in such cases also, be liable to pay to the Lender the loan amount cancelled/reduced/refunded to the Customer by the Merchant.
⦁ Customer Support:
The Merchant shall provide customer support to Customers at all times during business hours and business days. Such support shall include appropriate notice to Customers of means of contacting the Merchant including e-mail address and telephone number, in the event the Customer has questions/queries regarding the nature or quality of the Product and the procedures for resolving disputes.
Under no circumstances shall ShopSe be responsible for customer support to the Customer, or any third party.
Compliance with Applicable Law:
The Merchant shall take all such precautions and measures as may be directed by ShopSe to ensure that there is no breach of security and the integrity of the link between ShopSe’s application and/or website and the Payment Aggregator (“Hotlink”). The Merchant shall ensure that all Customers upon accessing the Hotlink are properly directed to the Payment Gateway’s portal. The Merchant shall ensure that there are proper encryption and robust security measures to prevent any hacking into the information of the Customers and other data.
Without prejudice to the aforesaid, the Merchant shall routinely and at such time intervals as may be specified by ShopSe and/or the Payment Aggregator check the integrity of the Hotlink and provide such reports as may be required by ShopSe and/or the Payment Aggregator from time to time.
Delivery of Products:
The Merchant shall ensure that Proof of Delivery is maintained for a period of at least one (1) year from the date of Delivery and shall be open to inspection by ShopSe and/or the Acquirers at all times during business hours and business days.
In case a Customer, Payment Aggregator, or a Lender raises any dispute, claims a Refund, claims Chargeback, alleges fraud or raises any queries relating to the Transaction, the Merchant shall provide to ShopSe all the relevant information relating to the Transaction, including Proof of Delivery within 5 days of receiving a request from ShopSe. ShopSe may share such information with the Payment Aggregator, Lender, any Governmental Authority, regulator, or any third party as it may deem fit and necessary.
All risks associated with the delivery by the Merchant shall be solely that of the Merchant and not ShopSe. Any and all disputes regarding the quality, merchantability, non-delivery and delay in Delivery or otherwise will be resolved directly between the Merchant and the Customer without making ShopSe or the Payment Aggregator, or the Lender a party to such disputes.
ShopSe’s Materials:In case the Merchant wishes to remove ShopSe’s Materials, the Merchant will reach out to the Company for the same. The Merchant shall ensure that (i) ShopSe’s Materials placed in the Merchant Stores are not stolen, and (ii) are not permitted to be taken outside the premises of the Merchant Store. Any loss incurred to the Company under this provision shall be remedied by the Merchant and the Company shall have the right to recover damages from the Merchant in the manner it deems fit.
⦁ Limitation of Liability:Either Party shall not raise or file any complaint against any representative, officer, director, employee, agent, or contractor of the other Party, in any case, relating to or arising out of this Agreement or the Transactions. The representative, directors, officers, employees, agents or contractors of either Party are not personally liable for any matter relating to or arising out of this Agreement.
Duties and responsibilities of the Company
The Company shall implement a mechanism on the Platform or the Dashboard by way of which the Customer(s) can access the details of the Products billed by the Merchant and make payment for the orders billed by the Merchant.
The Company shall provide necessary training (if required) to the Merchant in relation to the use of the Platform and be available on call during Business hours as required by the Merchant.
Obligations of the Parties
Either Party shall not release any publicity or marketing documents or information concerning this Agreement without the Company’s prior written consent. In no case shall either Party refer to the other Party as an alliance or joint venture partner.
The Parties shall provide each other with their respective logos (in mutually agreeable formats) for use strictly in connection with the activities contemplated under the Agreement.
The Parties shall, if required, mutually agree to create joint promotional materials in connection with their activities under the Agreement.
The Merchant agrees and accepts that the Company will establish references of the Merchant Store on the Platform and such other websites owned and operated by the Company within its control or control of its Affiliates regarding ShopSe’s Services made available to the Customers.
Neither Party shall be obliged to enter into any other agreement(except as provided in this Agreement) with the other Party and will not act in a manner intended to interfere with the cooperative purposes of the Agreement.
Unless otherwise agreed to by the Parties, each Party will be responsible for the costs and expenses incurred by it in connection with its respective obligations under the Agreement.
No Disparagement: Notwithstanding anything in the Agreement, neither Party will make any claims, representations or warranties on behalf of the other Party or bind the other Party, and neither Party is authorized to do so by this Agreement. The relationship between the Parties will be that of independent contractors. Nothing contained herein will be construed to imply a joint venture, principal or agent relationship, or other joint relationship, and neither Party will have the right, power or authority to bind or create any obligation, express or implied, on behalf of the other Party. During the Term of this Agreement, each Party shall not make any public statement disparaging the other Party’s marks, products or services.
Each Party shall ensure that all of its employees, officers, agents and representatives connected with each Party’s obligations under the Agreement prevent abuse of the Platform.
The taxes as may be applicable (and to be levied) on the Products shall be collected by the Merchant Store from the Customers and shall be the sole responsibility of the Merchant and not the Company.
PROHIBITED MERCHANT STORE LIST
Merchant selling products that are illegal or breach any law or regulation;
Selling legal highs (including, narcotics or other psychotropic substances);
Selling products or services that require licenses, where the license cannot be presented, or the license is not valid;
Selling replica, counterfeit and/or fake goods;
Selling casinos and gambling equipment, including “Junket Operators” that arrange gambling tours;
Betting, bookmaking, racing – car/ animals;
Military arms, firearms ammunitions and related products;
Political candidates or political organizations;
Pornography goods/stores, companion / escort services, dating services/ matchmaker services, online adult membership, adult book stores, adult telephone conversations;
Replica and counterfeit merchandise;
Companies engaged in financial services which are not regulated by RBI/any other regulatory body or where relevant licenses are not available even though required;
Body parts, which includes organs or other body parts – live, cultured/preserved or from a cadaver;
Endangered species, which includes plants, animals or other organisms (including product derivatives) in danger of extinction;
Hacking and cracking materials which include manuals, how-to guides, information, or equipment enabling illegal access to software, servers, websites, or other protected property;
Prescription drugs or herbal drugs or any kind of online pharmacies which includes drugs or other products requiring a prescription by a recognized and licensed medical practitioner in India or anywhere else;
Pyrotechnic devices and hazardous materials which include fireworks and related goods; toxic, flammable, and radioactive materials and substances;
Live animals or hides/skins/teeth, nails and other parts etc. of animals;
Merchant establishments where the promoter/partner/proprietor/owner’s name appears in the RBI defaulters/negative list/bank’s internal negative list or such other list which may be published by the bank from time to time;
Merchant Store engaged in products or services where specific licenses are required to operate in the local jurisdiction;
Tobacco, cigars and cigarettes which includes cigarettes, cigars, chewing tobacco, and related products;
Entities engaged in chit funds / unauthorized financial schemes;
Entities owned by politically exposed persons (promoters/owners);
International Merchant Stores not having a local presence in India;
Mining / oil drilling & refining;
Credit repair companies /debt consolidation firms;
Houses of worship (e.g., churches, temples etc. for donations) / fundraising by political, religious organizations or institutions / charities or non-profit organizations;
Money changers, remittance services, money transmitters, check cashing businesses, currency exchange; and/or
Alcohol / wine shops which includes alcohol or alcoholic beverages such as beer, liquor, wine, or champagne, Merchant Store blacklisted by associations (NMAS/MATCH database)
Platform Fee payable to ShopSe
The Platform Fee shall be payable to ShopSe as follows
|Tenure of the Credit Facility||ShopSe’s Platform Fee, as a percentage of the Transaction Amount|