Terms and Conditions
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 (“you,” “your”) and SWINKPAY TECHNOLOGIES(INDIA) PRIVATE LIMITED (“SwinkPay,” “we,” “our” or “us”) governing your use of SwinkPay’s services whereby SwinkPay shall provide aggregate payment gateway solutions to you for selling Products (as defined below) and/or collecting money for a specified purpose (together, the “SwinkPay Services”).
This is an important document which you must consider carefully when choosing whether to use SwinkPay 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 SwinkPay Services together with guidance on how online payments through SwinkPay can be facilitated.
You are solely responsible for understanding and complying with any and all laws, rules and regulations of your specific jurisdiction that may be applicable to you in connection with your business and your use of the SwinkPay Services.
BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, USING OR INSTALLING ANY PART OF THE SERVICE, YOU EXPRESSLY AGREE TO AND CONSENT TO BEING IRREVOCABLY BOUND BY THIS AGREEMENT AND ALL OF THE TERMS SET OUT HEREIN. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED. SWINKPAY WILL PROMPTLY CANCEL THE ASSOCIATION AND YOU MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE SERVICE. SWINKPAY 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 YOU, DUE VERIFICATION OF THE SAME BY SWINKPAY AND A VERIFICATION OF THE CONTRACT BEING SENT BY SWINKPAY TO YOU AS MORE SPECIFICALLY STATED BELOW.
THE CONTRACT SHALL BE DEEMED TO HAVE BEEN RECEIVED, ACCEPTED AND FORMED AT SWINKPAY'S REGISTERED OFFICE, 1- VIDHAN SABHA MARG HAZRATGANJ LUCKNOW UP 226001 IN.
This Agreement is divided into two parts. Part One explains the terms that govern your use of the Services. Part Two contains additional legal terms, including provisions that limit our liability to you and require individual arbitration for any potential legal dispute. To use the Services, you must accept all of the terms of this Agreement.
PART ONE: TERMS GOVERNING USE OF THE SERVICE
1. DEFINITIONS For the purpose of this Agreement:
a. “Acquiring Banks” shall mean various banks, financial institutions, Card Associations, payment system providers who are defined and licensed under the Payment and Settlement Systems Act, 2007.
b. “Acquiring Bank Services” shall mean the payment gateway system and services provided by the Acquiring Banks such as to (i) route internet based Valid Card transactions; (ii) offer various facilities through the internet, including Net Banking facilities; (iii) provide Authentication and Authorization from Card Associations or other third party clearing houses; and (iv) provide settlement facilities in respect of payment instructions initiated by the customers.
c. "Authentication" shall mean the process by which the Customer’s identification is authenticated by the Acquiring Banks.
d. "Authorization" shall mean the process by which the Issuing Institution and/or the relevant Card Association electronically or otherwise convey the approval of the charge (i.e. if the Customer has a Valid Card and/or the required credit limit/ debit limit to pay the Customer Charge requested) on a Transaction being undertaken by a Customer on your Website.
e. “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 us and/or Acquiring Bank as a Holidays
f. "Card Association(s)" shall mean any of Visa, MasterCard, Visa Electron, Maestro, Diners, American Express or any other card association as may be specified by us from time to time.
g. “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.
h. “Chargeback” shall mean reversal of the value of the Customer Charge with respect to any Transaction, inter alia, on account of (i) alleged forgery of the card number / bank account or other details (ii) any charge/debit made on a card that has been listed as a hot listed card or otherwise listed on the Card association warning bulletins (iii) duplicate processing of the transaction; or (iv) for other reasons as per applicable rules and guidelines issued by RBI, Card Associations, Acquiring Banks and Issuing Institutions. In addition, it shall include any debit to the SwinkPay’s bank account to recover the value of the Customer Charge in the event that you have insufficient funds in the Nodal Account and/or you fail to pay for the same.
i. “Completion of Transaction” shall mean SwinkPay Completion of Transaction and/or SwinkPay Completion of Transaction depending upon the SwinkPay Product opted for or if SwinkPay demands Proof of Delivery.
j. “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.
k. "Customer" shall mean an individual or legal entity, who/which purchases Products, offered by you on the your Website or Mobile Application or through IVR System and is directed to the Internet Payment Gateway using a Valid Card or Net Banking account or any other acceptable modes of Payment Mechanism, provided by us.
l. “Customer Bank Account” shall mean a bank account or credit/ prepaid/ cash card account of the Customer with Issuing Institution.
m. “Customer Wallet” shall mean a digital prepaid instrument authorized under the Payment and Settlement Systems Act, 2007 and held by the Customer with the Issuing Institution.
n. “Customer Charge” shall mean the sale price of the Products purchased by the Customer plus the shipping charge (if any) and all other taxes, duties, costs, charges and expenses in respect of the Products/payment that are to be paid by the Customer.
o. “Delivery” shall mean (i) in respect of a good, delivery of the good by a courier /parcel service appointed by the you or your vendors, to the Customer within Delivery Due Date at the address specified by the Customer in this behalf; or (ii) in respect of a service, delivery or performance of provisions of service within the Delivery Due Date.
p. “Delivery Due Date” shall mean the date/period displayed on the Website or otherwise notified to the Customer on or before which you shall deliver the Products to the Customer(s).
q. “EMI” shall mean equated monthly installment payment plan schemes of various Issuing Institutions which SwinkPay offers you.
r. “Escrow account” shall mean an inoperative account held by SwinkPay with any of the banks for the purpose of pooling the monies collected from Customers on your behalf and facilitating the transfer of these funds in final settlement to you (after deducting Service Fees), pursuant to RBI notificationRBI/DPSS/2019-20/174 DPSS.CO.PD.No.1810/02.14.008/2019-20
s. "Issuing Institution" shall mean a bank or financial institution or other legal entity, with which the Customer has a Customer Wallet, a Net Banking account and/or which has issued the Valid Card to the Customers (explanation: except for debit card or credit card Transactions, the Issuing Institution of the Customer and the respective Acquiring Bank will be the same).
t. “IVR System” shall mean interactive voice response technology that allows the Customer to interact with the your SwinkPay hosted IVR platform through a telephone by way of telecommunication signal tone inputs on the keypad and make payments of Customer Charge through IVR dialogue.
u. "Merchant Bank Account" shall mean the bank account maintained and nominated by you for settlement of your Settlement Amount.
v. “Merchant Site” shall mean your Website or Mobile Application as detailed in the Merchant Service Form or the IVR System hosted by SwinkPay for you.
w. “Mobile Application” shall mean a software application that runs on smart phones, tablet computers and other mobile devices, the contents of which are controlled, operated and owned and established by you, for the purposes of enabling the Customers to view Products and carry out Transactions for purchase of Products, offered on the Mobile Application.
x. “Mobile SDK” shall mean proprietary mobile software development kit, a custom mobile software application and packaged Application Programming Interface codes (APIs) developed by SwinkPay.
y. “Net Banking Account” shall mean the facility and internet account provided by the Issuing Institution to Customers holding a bank account or digital wallet account with the Issuing Institutions specified by SwinkPay from time to time. Provided that the bank account is not listed in current warning or restricted bank account bulletins or notices. or any other RBI notifications/guidelines amended from time to time.
z. “Nodal Bank” shall mean the bank(s) designated by SwinkPay for the purpose of pooling the funds collected from Customers on your behalf and facilitating the transfer of these funds in final settlement to you (after deducting Service Fees), pursuant to RBI notification RBI/DPSS/2019-20/174 DPSS.CO.PD.No.1810/02.14.008/2019-20 or any other RBI notifications/guidelines amended from time to time.
ab. “Outstanding Amount” shall mean the amount payable by you to SwinkPay, Acquiring Banks and/or Customers for any losses, costs, damages, penalties, Chargebacks, refund overdraft or credit problems suffered or incurred by the Customers, SwinkPay and/or Acquiring Banks; any fees and other payments owed to SwinkPay by you; and any claims or proceedings filed against SwinkPay and/or Acquiring Banks by the Customers or any third Party.
ac. “Payment Mechanism” shall mean the mechanism of making payment by utilizing the internet facilities of various Acquiring Banks, Card Associations, card payment systems and through such other modes and mechanisms of payment and delivery as may be notified by SwinkPay from time to time.
ad. "Products" shall mean goods and/or services offered for sale by you on the Merchant Site.
ae.Proof of Delivery” shall mean sufficient legitimate records evidencing Delivery of the Product to the Customer (i.e. Courier Company’s delivery confirmation and delivery confirmation by the Customer).
af. "RBI" shall mean the Reserve Bank of India. ag. “Reserve” shall mean the interest free, refundable funds provided and replenished by you to SwinkPay from time to time. ah. “Service Fee” shall mean the fee charged by SwinkPay for providing SwinkPay Services. The Service Fee shall include bank charges, technology fee and the fee for various value added services provided by SwinkPay.
ai. “Settlement Amount” shall mean Customer Charge minus the Service Fees and any other charges/fees payable by you to SwinkPay under this Agreement.
aj. “SwinkPay Account” shall mean the merchant account maintained with SwinkPay in order to provide the SwinkPay Services to you.
ak. “SwinkPay Product” shall mean the SwinkPay Enterprise and/or SwinkPay Money product opted for by you, by means of which SwinkPay provides you SwinkPay Services.
al. “SwinkPay Services” shall have the meaning ascribed to it in Recital A provided through SwinkPay Products.
am. “SwinkPay Site” shall mean the websites provided by SwinkPay Payments Private Limited (i.e secure.SwinkPay.in and/or SwinkPay.com depending upon the SwinkPay Product opted for by you) by means of which SwinkPay provides aggregative Internet Payment Gateway services/ SwinkPay Services to you and the Customers.
an. “Transaction" shall mean every payment request/order placed by the Customer on the Merchant Site for purchasing Products from you.
ao. “Upgraded Mobile Application” shall mean the Merchant’s Mobile Application integrated with the Mobile SDK.
ap. "Valid Card" shall mean any unexpired credit card or debit card which is issued by an Issuing Institution designated to issue a Rupay,Visa, MasterCard, Visa Electron or a Maestro or cash card, pre-paid card or other card as may be specified by SwinkPay 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.
You must register with us in order to open a SwinkPay Account and use SwinkPay Services. We allow both individuals and Legal Entities to register with SwinkPay. Without any legal obligation to do so, we require certain information from you, as laid out in the registration form, to permit the use of SwinkPay Services. You must provide accurate and complete information. In addition, you must keep the information that you provide up-to-date at all times. For business Users, you are only permitted to apply and enroll, if you represent a legitimate business and have the authority to enter into this Agreement on behalf of the business. You represent and warrant that you are duly authorized by the business entity to accept this Agreement and have the authority to bind such business entity. You further represent and warrant that the business entity has all the requisite consents, approvals, certificates, agreements, registrations and licences in accordance with the laws, regulations, rules and guidelines in force in India from time to time. You must provide accurate and complete information in response to our questions. You must complete this and other processes to access any funds that you accept through the Services. You must also keep the information that you provide up-to-date. We reserve the right to suspend or terminate your SwinkPay Account in event that you provide inaccurate, untrue, or incomplete information, or fail to comply with the account registration requirements.
3. ELIGIBILITY REQUIREMENT FOR OPENING A SWINKPAY ACCOUNT
By creating/opening a SwinkPay Account, you represent and confirm that you are:
a. 18 (eighteen) years of age or older;
b. an Indian citizen, a legal resident of India or a business entity, authorized to conduct business in India;
c. not 'incompetent to contract' within the meaning of the Indian Contract Act, 1972; and
d. entering into and performing this Agreement, as per applicable law. You further represent and confirm that you are not a person debarred from using the SwinkPay website and/or receiving the SwinkPay Services under the laws of India or other applicable laws.
SwinkPay Services and your SwinkPay Account can only be used in India. You acknowledge that SwinkPay Services may be subject to export restrictions imposed by the laws, rules, regulations, and guidelines in force in India.
4. USER NAME AND PASSWORD
You must choose a reasonably descriptive User name that clearly identifies you or your business. This name will appear on the Customer’s Valid card/ Account statement. If a Transaction dispute results from your failure to use a reasonably descriptive user name, you agree to indemnify SwinkPay for any costs stemming from such dispute.
As part of the SwinkPay registration process, you will create a password for your SwinkPay Account. You are responsible for maintaining the confidentiality of the password and the SwinkPay Account, and are fully responsible for all activities that occur under the SwinkPay Account, including, without limitation, all actions by sub-users registered under the SwinkPay Account. You agree to (a) immediately notify SwinkPay of any unauthorized use of your password or the SwinkPay Account or any other breach of security, and (b) ensure that you exit from your SwinkPay Account at the end of each session. SwinkPay cannot and will not be liable for any loss, damage or other liability arising from your failure to comply with this Clause or from any unauthorized access to or use of the SwinkPay Account. In the event of any dispute between two or more parties as to ownership of a particular SwinkPay Account, you agree that SwinkPay will be the sole arbiter of such dispute, at its sole discretion and that SwinkPay’s decision (which may include termination or suspension of any account subject to dispute) will be final and binding on all parties.
5. APPROVAL AND REGISTRATION TO AVAIL SWINKPAY SERVICES
At the time of registration you are required to disclose the exact business category/business sub-category for which you will be using the SwinkPay Services and only avail the SwinkPay Services through your designated Merchant Site. You understand and acknowledge that in order to use the SwinkPay Services for any other purpose, you shall notify SwinkPay in writing of such change and such change will be subject to approval by SwinkPay.
In order to avail the SwinkPay Services and Acquiring Bank Services, you must be approved by and registered with SwinkPay, the Acquiring Banks and Nodal Bank. Any undertaking with respect to the SwinkPay Services under this Agreement shall be subject to SwinkPay’s, the Acquiring Banks’ and Nodal Bank’s approval and completion of the registration process. By accepting the terms of this Agreement, you agree to provide SwinkPay with all such documents as required by SwinkPay to register you with SwinkPay, the Acquiring Banks and Nodal Bank. You authorize SwinkPay to request for supplemental documentation at any time (before or after your SwinkPay Account has been activated), in order to verify your identity, the accuracy of the information provided, legitimacy of your business, and/or your Customers, including a Customer report that contains your name and address, etc. If we cannot verify that this information is accurate and complete, we may deny your use of the Services, or close your SwinkPay Account at any time. You further understand and acknowledge that SwinkPay, the Acquiring Banks and Nodal Bank have the right to withdraw their approval/consent at any time prior to or after commencement of the SwinkPay Services.
6. OUR RELATIONSHIP WITH YOU
SwinkPay facilitates individuals and legal entities in accepting payments initiated by their customers on their website or mobile application directed to the SwinkPay Site or through SwinkPay’s IVR System, using Valid Cards, Net Banking and various other acceptable modes of Payment Mechanism provided by SwinkPay.
SwinkPay a software application (“Software Application”) and established a SwinkPay Merchant Apps. SwinkPay will act as an intermediary, by creating a link between the Merchant APP/SDK/Portals and the respective Acquiring Banks by means of the Software Applications for enabling the Customers to make payment of Customer Charge on the Merchant APPs/Portals for the Transactions carried, using Acquiring Bank’s Services (“Internet Payment Gateway "). In order to serve in this role, we have entered into agreements with various Acquiring Banks, Escrow Bank, Payment gateways and other financial institutions, Card Associations and other software providers who are in the business of providing information technology services, including but not limited to, internet based electronic commerce, internet payment gateway and electronic software distribution services, to enable use of internet payment gateways developed by them, to
(i) route internet based Valid Card Transactions; (ii) offer various facilities through the internet, including net banking facilities; (iii) provide Authorization from Card Associations or other third-party clearing houses; and (iv) provide settlement facilities in respect of payment instructions initiated by the Buyers.
These Transactions are between you and your Customers and we are only acting as an intermediary. We are NOT
(i) a payment System Provider as defined under the Payment and Settlement Systems Act, 2007, (ii) a banking company as defined under the Banking Regulation Act, 1949 or (iii) a non-banking financial company as defined by the Reserve Bank of India Act, 1938.
The relationship between SwinkPay and you 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 us 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.
SwinkPay has no connection or interest of whatsoever nature in your business or the Products offered/ marketed on the Merchant APPs/SDKs/Portals. SwinkPay shall provide SwinkPay Services to you, as an independent entity and under the terms and conditions of this Agreement. SwinkPay has no relationship with the Customers and all actions under this Agreement which may affect the Customers are instructed by you. You alone shall be responsible to the Customers and neither SwinkPay nor the Acquiring Bank or anybody connected to SwinkPay or Acquiring Bank shall have any responsibility or liability towards the Customers and you shall keep SwinkPay and Acquiring Bank fully indemnified for all times to come in this respect. SwinkPay is neither concerned nor required to monitor in any manner the use of the payment modes by the Customers for procuring / availing the Products. The Customers should be required to use the payment modes at their sole option and risks. You shall be required to notify this responsibility to all its Customers under the instructions provided by SwinkPay.
7. OBLIGATIONS TOWARDS ACQUIRING BANKS AND CARD ASSOCIATION
As you will be using the Acquiring Banks Services and Card Association Services, you undertake 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 and Card Associations may also put limitations and restrictions on you, at its sole discretion. In addition, the Acquiring Banks has the right to reverse/reject settlement, suspend and/or terminate services, make inspections or inquiries in relation to the Transaction, etc. You understand and acknowledge that the Acquiring Banks and Card Association Rules form a part of this Agreement. In the event that your non-compliance of Acquiring Banks and/or Card Association Rules, results in any fines, penalties or other amounts being levied on or demanded of SwinkPay by an Acquiring Bank and/or Card Association, then without prejudice to SwinkPay’s other rights hereunder, you shall forthwith indemnify SwinkPay in an amount equal to the fines, penalties or other amount so levied or demanded. If you fail to comply with your obligations towards the Acquiring Banks and/or Card Associations, SwinkPay may suspend settlement or suspend/terminate the SwinkPay Services forthwith.
8. CONNECTIVITY AND INTEGRITY OF HOTLINK
You shall be responsible at your own costs for providing and maintaining all necessary equipment, software and facilities at your end so as to connect the Merchant Site software to the Software Application. You shall take all such precautions and measures as may be directed by SwinkPay from time to time to ensure that there is no breach of security and the integrity of the link between the Merchant APP/Portal and the Internet Payment Gateway ("Hotlink") is maintained and shall ensure that all Customers upon accessing the Hotlink are properly directed to the Internet Payment Gateway. You shall also ensure that there are proper encryption and robust security measures to prevent any hacking into the information of the Customers and other data. In addition to the above, you shall also comply with security practices and procedures as prescribed in the Information Technology Act, 2000 and the rules made thereunder and/or the RBI Rules and Regulations. Any loss incurred to you, SwinkPay or the Acquiring Bank as a result of the Hotlink being breached due to improper security on part of you, your employees, contractors, agents, etc. and/or on the Merchant Site, shall be borne solely by you and you agree to indemnify, defend and hold harmless SwinkPay and the Acquiring Banks from any claims, actions, damages or losses arising out or in relation thereto. Without prejudice to the generality of the aforesaid, you shall routinely and at such time intervals as may be specified by SwinkPay and/or the Acquiring Banks to check the integrity of the Hotlink and provide such reports and/or conduct such tests as may be required by SwinkPay and/or Acquiring Banks from time to time.
9. AUTHORIZATION AND AUTHENTICATION OF TRANSACTION
The Acquiring Bank will authenticate, authorize, and process the payment instructions given by the Customers on the Merchant APP/Portals in respect of the Transactions upon fulfillment of valid criteria as set forth by the Acquiring Banks and the Card Associations from time to time and accordingly transfer such approved Customer Charge from the Customer Bank Account/ Customer Wallet to the Nodal Account/Escrow Account. SwinkPay, Acquiring Banks and/or Card Association may reject authorization of Transaction placed by the Customer for any reason including but not limited to risk management, suspicion of fraudulent, illegal or doubtful Transactions, selling of banned items, use of compromised Valid Cards, use of blacklisted/banned cards or in accordance with the RBI, Acquiring Banks, Issuing Institution and/or Card Association rules, guidelines, regulations, etc. and any other laws, rules, regulations, guidelines in force in India, etc. You acknowledge that as a risk management tool, SwinkPay and/or the Acquiring Banks reserve the right to limit or restrict transaction size, amount and/or monthly volume at any time. For the purpose of clarity such limitations or restrictions may be imposed for the following reasons including but not limited to limits/restrictions on the number of purchases which may be charged on an individual Valid Card or net banking account during any time period, rejection of Payment in respect of Customer Orders from Customers with a prior history of questionable charges, unusual monetary value of Transaction, etc. Further, as a security measure, SwinkPay may at its sole discretion block any card number, account numbers, group of cards or Transactions from any specific blocked or blacklisted customer cards, accounts, specific, group of IP addresses, devices, geographic locations and / or any such risk mitigation measures it wishes to undertake.
10. YOUR AUTHORIZATION
By accepting the terms of this Agreement, you authorize us to hold, receive, disburse and settle funds on your behalf. Your authorization permits us to generate an electronic funds transfer between the Acquiring Banks and our Nodal/Escrow Account to process each Transaction that you authorize. Thereafter you authorise us to transfer the Settlement Amount received from your Customers to the Merchant Bank Account designated by you for this purpose at the time of registration. Your authorization will remain in full force and effect until your SwinkPay Account is closed or terminated.
11. OUR FEES
In consideration for SwinkPay Services, you shall pay SwinkPay, Service Fees. The Service Fees shall be deducted by SwinkPay from the Customer Charge payable to you in respect of each completed Transaction. SwinkPay reserves the right to revise the Service Fees periodically, and SwinkPay will intimate you of any such change within reasonable time. You may also pay to SwinkPay (i) a non-refundable one time set up fee, and (ii) Annual Maintenance Charge payable in advance every year. SwinkPay shall have a right to deduct such set-up fee and Annual Maintenance Charges from the Settlement Amount payable to you. In addition, in consideration of the license granted with respect to the Mobile APP/SDK, you agree to pay SwinkPay a Platform Fee.
12. TERMS OF PAYMENT TO MERCHANT
Subject to any other Clause of this Agreement, SwinkPay shall endeavor to instruct the Nodal Bank/Escrow to transmit the Settlement Amount from the Nodal/Escrow Account to the your Bank Account within the time period prescribed by RBI commencing from date of Completion of Transaction. In the event that you opt for SwinkPay Services using SwinkPay APP/SDK/APK the Transaction shall be completed only upon receipt of the Customer Charge in the Nodal/Escrow Account from the Acquiring Banks and reconciliation of the same by the Acquiring Banks, SwinkPay and the Nodal Bank (“SwinkPay Completion of Transaction”) In the event that you opt for SwinkPay Services using SwinkPay Product: SwinkPay demands Proof of Delivery for any Transaction(s), the Transaction shall be completed only upon submission of Proof of Delivery by you (in the manner prescribed by SwinkPay) and the confirmation of the same by the respective Customer. In the event that the Customer does not confirm delivery within 3 (three) days from the date on which you provide Proof of Delivery, it shall be considered as deemed confirmation and the Transaction shall be deemed to be completed. (“SwinkPay Completion of Transaction”) The transmission of the Settlement Amount to the Merchant Bank Account shall be subject to reconciliation of the Customer Charge by the Acquiring Banks, SwinkPay and the Nodal Bank after actual receipt of Customer Charge in the Nodal Account. All payments with respect to refunds and Chargebacks shall be solely your responsibility and SwinkPay shall not be liable for any claims, disputes, penalties which may arise in connection with such refunds or Chargebacks to you or the Customer. You shall indemnify SwinkPay in respect of any claims, disputes, penalties, costs and expenses arising directly or indirectly in relation to refunds or Chargebacks for all Transactions initiated and instructed through the Merchant Site. Notwithstanding anything contained anywhere in this Agreement, you hereby confirm and agrees that SwinkPay, 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, erroneous Transaction, Chargeback, refund, fraud, suspicious activities, card Authentication and Authorization issues, overpayment made due to mathematical errors or otherwise, penalties incurred, Transaction related issues, issues related to Delivery, Customer Charge or Product, if the Transaction was not made in accordance with the requirements of SwinkPay and/or the Acquiring Banks and/or Card Association. In the event of rejection of payment with respect to Customer Charge, Chargeback, refunds or other Outstanding Amounts due to SwinkPay, Acquiring Bank and/or the Customer by you, SwinkPay and/or the Acquiring Bank reserve the right to reverse the credit given to the Merchant Bank Account or set-off the payment amount rejected, Chargeback or refunded or the Outstanding Amount against Settlement Amount payable to you. SwinkPay and/or Acquiring Banks may also deduct the payment amount due from future Settlement Amounts payable to you with respect to subsequent Transactions. All Settlement Amount due to you under this Agreement may be suspended or delayed till such time as SwinkPay, the Acquiring Banks and/or nodal bank deems fit, if (a) the you or your Customer or a third party commits any fraud or violates any law or legal requirement; (b) SwinkPay and/or the Acquiring Banks have reasons to believe that a fraud has been committed against the Customers, SwinkPay, Acquiring Banks or any third party by you, your 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) you have excessive pending Chargebacks or poses high Chargeback and/or refund Risk; (d) continuous non-delivery or delayed delivery of Products to Customers; or (e) for any other reasonable reasons.
You understand and acknowledge that at any time and from time to time, we may temporarily suspend or delay payments to you or require you to provide SwinkPay with Reserve of such amounts as may be requested by SwinkPay to secure the performance of your payment 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 SwinkPay or any other indications of performance problems related to your use of the SwinkPay Services. If you fail to provide SwinkPay with Reserve within seven (7) days of receipt of notice for the same, SwinkPay reserves the right to suspend and/or terminate the Settlement Amount payable you or the SwinkPay Services without further notice. SwinkPay may use this Reserve to set-off including but not limited to any Outstanding Amounts payable by you to SwinkPay, Acquiring Banks and/or Customers. In case the Settlement Amount payable to you and/or the Reserve (if any) is not sufficient to cover your Outstanding Amount, then you shall pay SwinkPay and/or the Acquiring Banks the remaining amount due immediately upon request. SwinkPay 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 SwinkPay 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 SwinkPay to recover all such losses, costs and damages etc. from you by any other means, which may be available to SwinkPay under the law. In addition, you 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 you.
a. Our Collection Rights for Chargebacks: For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve. We may debit the amount of any Chargeback and any associated Fees, fines, or from your Settlement Amount and/or Reserve. If we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a Customer’s complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation or Card Association Rules by which the Customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us with respect to collection of all Outstanding Amounts unpaid by you. b. Excessive Chargebacks: If we determine that you are incurring an excessive amount of Chargebacks, SwinkPay may establish controls or conditions governing the Transactions contemplated under this Agreement, including without limitation, by (a) establishing new processing fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payouts, and (d) terminating or suspending the Services. c. Contesting Disputed Transactions: In the event of a Chargeback dispute relating to a Transaction contemplated under this Agreement (“Disputed Transaction”), on any grounds whatsoever, SwinkPay shall forthwith notify you of the same. On such notification you shall conduct an internal review of such matter and shall within 5 (five) days from receipt of notice, revert to SwinkPay in writing either: a. Requesting SwinkPay to refund (”Refund Request”) the Customer Charge Amount received by it in respect of such Transaction ("Refund Monies"); or b. Providing SwinkPay with a statement explaining how the Disputed Transaction is not warranted together with all documentary evidence in support of contesting such Disputed Transaction. In the event that you: (a) provide a Refund Request to SwinkPay; (b) fail to provide Refund Request and fail to contest such Disputed Transaction within the aforesaid period or contests Disputed Transaction without providing supporting documentation to the satisfaction of SwinkPay, Acquiring Banks, Card Association and/or Issuing Institution, SwinkPay shall be entitled to recover the Refund Monies from Settlement Amount subsequently made to the Nodal Account. In the event that SwinkPay is unable to recover the Refund Monies as aforesaid, due to the Settlement Amount credited to the Nodal Account being lower than the Refund Monies, SwinkPay shall deduct the remaining Refund Monies from the Reserve (if any) or set-off the remaining Refund Monies against the future Settlement Amounts payables to you and refund the same to the Customer. You shall be liable to make payment of the Refund Monies or part thereof which has not been recovered by SwinkPay forthwith. It is hereby agreed and acknowledged by the Parties that the Service Fees charged by SwinkPay in respect of a Transaction that has been confirmed shall not be refunded or repaid by SwinkPay to you or any other person irrespective of the Customer Charge being rejected, chargeback, refunded or disputed. .
15. TERMS OF EMI OFFERING
You understand that in order to avail the EMI services of a bank, you must be specifically approved by such bank for provision of EMI services. The EMI services shall be offered at the discretion and as per the terms and conditions of the respective bank and SwinkPay. You shall ensure that while making a Transaction, the Customer also accepts such terms and conditions. You understands that at time of the making the Transaction, the Customer shall be charged the full amount of the sale price; SwinkPay shall send details of settled Transactions for conversion to EMI along with complete details, within 2 (two) Business Days from the date of Completion of Transaction. EMI transactions once submitted cannot be cancelled / reversed. In the event that you provide EMI options to the Customers, you shall endeavor to deliver the Product after the approval of the EMI option from the Issuing Institution providing the EMI option through SwinkPay. SwinkPay shall not be liable to you or the Customer for any dispute arising with respect to rejection of EMI option to a Customer after a Transaction has been confirmed, irrespective of the Settlement Amount being in the Nodal Bank or already transferred to the Merchant Bank Account. The Customer shall raise such dispute directly with the Issuing Institution. You understand and acknowledge that all Transactions shall be converted to EMI transactions in offline mode. The Issuing Institution shall endeavor to convert all transactions approved by them to EMI within 5 (five) Business Days. You shall ensure that an EMI calculator is available on the Merchant Site in order to explain the EMI calculation to the Customer. You understand and acknowledge that the Issuing Institution may modify the terms of the EMI offering or withdraw the EMI Scheme completely at any time. SwinkPay and the Acquiring Banks shall not be responsible to you or the Customer for any disputes arising due to non-conversion of a Transaction to EMI or informing you about rejection of EMI request by the Issuing Institution.
You shall dispatch/render the Products to the Customer only upon receipt of transaction confirmation from SwinkPay. SwinkPay shall give confirmation only upon receipt of transaction confirmation in respect of the Transaction from the Acquiring Bank. SwinkPay shall not be responsible for any Transactions that have not been confirmed with SwinkPay by the Acquiring Banks. You shall ensure that it maintains Proof of Delivery with respect to each Transaction initiated through the Merchant Site for a period of at least one (1) year from the date of Delivery. Proof of Delivery shall be open for inspection by SwinkPay and/or the Acquiring Banks at all times during working hours on Business Days. Notwithstanding any other Clause of this Agreement, you understand that SwinkPay 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. SwinkPay 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. You shall deliver the Product within the Delivery Due Dates specified at the time of making the transaction on the Merchant Site. If you are unable to deliver the whole or any part of the Transaction within the Delivery Due Date, you shall forthwith inform the Customer and take immediate action to refund the Customer Charge in whole or in part as per the Customers instructions. All risks associated with the Delivery shall be borne solely by you and not SwinkPay. Any and all disputes regarding quality, merchantability, non-Delivery, delay in Delivery or otherwise shall be resolved directly between the Customer and you without making SwinkPay and/or the respective Acquiring Bank a party to such disputes.
17. REFUNDS AND RETURNS POLICY
By accepting to use SwinkPay Services, you agree to process returns of, and provide refunds and adjustments for, Products sold and/or payment collected through the Merchant Site in accordance with this Agreement, the Acquiring Banks’ instructions and Card Association Rules. You shall (a) maintain a fair refund, cancellation or adjustment policy; (b) disclose its return or cancellation policy to Buyers, (c) not give cash refunds to its Buyers in connection with a card sale, unless required by law, and (d) not accept cash or any other item of value for preparing a card sale refund. The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the Customer for postage that the Customer paid to return merchandise. If the Customer accepts returns and makes an uneven exchange of Products (e.g., the sales price is not the same), you must issue a credit for the total amount of the Products being returned and the Users must complete a new sale for any new Products. Please be aware, that if your refund policy prohibits returns or is unsatisfactory to the Customer, you may still receive a chargeback relating to such sales.
18. CUSTOMER SUPPORT
All Customer service issues relating to the Transaction, Products sold on its Merchant Site 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 personnel, policies or processes, are solely your responsibility. In performing Customer service, you will always present itself as a separate entity from SwinkPay. You shall provide Customer support during all Business Days. Such support shall include appropriate notice to Customers of means of contacting you 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 SwinkPay be responsible for customer support to the Customer or any third party.
19. MERCHANT RISK ASSESSMENT
We may, from time to time during the term, make or carry out risk assessments on you and/or the Transactions carried out on the Merchant Site (each a "Risk Assessment") which shall inter alia be for the following purposes: a. verify that you are properly constituted and operate a bona fide business; b. verify that you have sufficient safeguards in place to protect Customer's Data; c. quantify and investigate the levels of fraud or your default relating to the Transactions; and/or d. provide any other comfort that we (acting reasonably) may require in the context of its exposure under this Agreement and the agreements with the Acquiring Banks or Card Associations, and you shall provide all reasonable assistance and information to us with respect to such Risk Assessments. We may periodically obtain additional reports to determine whether you continue to meet the requirements of this Agreement. You agree that we are permitted to collect and share information about you and your application (including whether you are approved or declined), and your SwinkPay Account with the Acquiring Banks, Card Associations, Issuing Institutions, other banks, financial institutions and governmental authorities. This includes sharing information (a) about your Transactions for regulatory or compliance purposes (including compliance with KYC), (b) for use in connection with the management and maintenance of the Service, (c) to create and update their customer records about you and to assist them in better serving you, and (d) to conduct SwinkPay's risk management process. If, at any time after we have made or carried out a Risk Assessment or it has been notified of an issue, we determine (acting reasonably) that you or circumstances relating to you represent a material credit risk or potentially increase our exposure under this Agreement, we may: a. terminate this Agreement with immediate effect; and b. defer the payments due to you for such period as we deem appropriate (acting reasonably) to address the credit risk or exposure and, where necessary, such amount (in whole or part) may be applied towards any amount owed by you to us under this Agreement. c. If, at any time, we discover that a fraud has been committed you; or you have in connivance with any other person done any fraud or assisted in the same; or any transaction has been fraudulently initiated, we may report the same to any governmental and/or law enforcement authorities.
You shall maintain records of such periodical checks in such manner as may be specified by us and/or the Acquiring Banks. We and/or the Acquiring Banks shall be entitled to check and audit your records and statements to ensure compliance with your obligations under this Agreement at such intervals or times as we and/or the Acquiring Banks may deem fit. We and/or the Acquiring Banks may also inspect your business location. If you refuse such inspection, your SwinkPay Account may be terminated. We reserve the right to suspend or terminate the SwinkPay Account of any user who provides inaccurate, untrue, or incomplete information, or fails to comply with the SwinkPay Account registration requirements. If you refuse such inspection or provides inaccurate, untrue, or incomplete information, or fails to comply with the terms and conditions of this Agreement, we reserve the right to suspend or terminate the SwinkPay Services forthwith.
21. YOUR RESPONSIBILITIES
22. DORMANT ACCOUNTS
If there is no activity in your SwinkPay Account (including access or payment transactions) for a period of one (1) year, we may close your SwinkPay Account
24. DISCLOSURES AND NOTICES
You agree that SwinkPay can provide disclosures and notices required by law and other information about your SwinkPay Account to you electronically by posting it on our website, or by e-mailing it to the email address provided by you at the time of registration. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within 24 hours of the time posted to our website, or within 24 hours of the time emailed to you unless we receive notice that the email was not delivered.
25. TERMINATION BY EITHER PARTY
This Agreement may be terminated by either Party by giving 30 (thirty) days prior written notice to the other Party. Either Party may terminate this Agreement forthwith in the event: a. the Party discovers at any stage that the other Party is in violation of any law or regulation; b. the other Party is adjudicated as bankrupt, or if a receiver or as a trustee is appointed for it or for a substantial portion of its assets, or if any assignment for the benefit of its creditors is made and such adjudication appointment or assignment is not set aside within 90 (ninety) Business Days; c. the other Party goes into liquidation either voluntarily or compulsorily; d. the other Party is prohibited by any regulatory or statutory restriction from continuing to provide services under this Agreement.
26. TERMINATION BY SWINKPAY
SwinkPay 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. The termination under this Clause is in addition to and without prejudice to the termination rights which SwinkPay may have under any other Clause in this Agreement.
27. CONSEQUENCES OF TERMINATION
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. Where any payments claimed by SwinkPay exceeds the Settlement Amount due to you the difference thereof shall be a debt due from you to SwinkPay and be forthwith recoverable by appropriate legal action, as deemed fit by SwinkPay. Without prejudice to SwinkPay’s rights and remedies, in the event that you do not make any payments to SwinkPay by its due date or on demand as required under this Agreement, SwinkPay 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 SwinkPay from recourse to any other remedies available to it under any statute or otherwise, at law or in equity. All materials, documentation, instruction manuals, guidelines, letters and writings and other materials issued by SwinkPay from time to time in respect of this Agreement, whether in respect of the utilization of the Internet Payment Gateway or otherwise shall be returned by you to SwinkPay upon termination. You agree and confirm that you shall remain solely liable after the termination of this Agreement for all Chargebacks, refunds, penalties, loss, damages or cost incurred by SwinkPay, Acquiring Banks, Card Associations and/or Customers and for all claims and proceedings arising against SwinkPay and/or Acquiring Banks with respect to this Agreement. At the time of termination, SwinkPay may retain such amount from the Reserve (if any) and Settlement Amount payable to you (including Settlement Amounts withheld) as may be determined by SwinkPay to cover chargeback risk, refund risk or any potential loss, damages, penalties, cost that may be incurred by SwinkPay, 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 you after notice of termination shall be done post termination. In the event that such retained amount is not sufficient to cover all Outstanding Amounts owed by you post termination, you shall ensure that it pays SwinkPay all pending amounts within 10 (ten) days of receiving the demand notice and shall at all times keep SwinkPay indemnified in this respect. This Clause survives the termination of this Agreement.
PART TWO: ADDITIONAL LEGAL TERMS
28. REPRESENTATIONS AND WARRANTIES
You represent and warrant to us that: (a) you are at least 18 (eighteen) years of age; (b) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name under which you sell the Products (d) you are duly organized and validly existing under the laws of the jurisdiction in which you are established; (e) your obligations hereunder constitute legal, valid, binding and enforceable obligations; (f) 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; (g) any sales Transaction submitted by you will represent a bona fide sale by you; (h) any sales Transactions submitted by you will accurately describe the Products sold and delivered to Customers; (i) you will fulfil all of your obligations to each Customer for which you submit a Transaction and will resolve any consumer dispute or complaint directly with the Customers; ( j) except in the ordinary course of business, no sales Transaction submitted by you through the Services will represent a sale to any principal, partner, proprietor, or owner of your entity; (m) you will not use SwinkPay Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of SwinkPay Services; (n) your use of SwinkPay Services will be in compliance with this Agreement.
29. YOUR LICENSE
We grant you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense or assign, to electronically access and use SwinkPay Services solely to: a. receive and accept or make Payments, and b. manage the funds you so receive or paid; You will be entitled to download updates to SwinkPay Services, subject to any additional terms made known to you at the time, when we makes these updates available. We will use reasonable endeavors to give you prior notice of any down-time in relation to SwinkPay Services as a result of updates or preventative or reactive maintenance of our Services. You also acknowledge that the arrangement between one or more Acquiring Banks and us may terminate at any time and services by such Acquiring Banks may be withdrawn. While we want you to enjoy SwinkPay Services, you may not, permit any third party to do any of the following: (i) access or monitor any material or information on any SwinkPay system using any manual process or robot, spider, scraper, or other automated means unless you have separately executed a written agreement with us referencing this Clause that expressly grants you an exception to this prohibition; (ii) copy, reproduce, alter, modify, dismantle, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material or information from SwinkPay; (iii) permit any third party to use and benefit from SwinkPay Services via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) violate the restrictions in any robot exclusion headers on SwinkPay Services, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, decode or attempt to decode or reverse engineer the Services or to in any way override or break down any protection system integrated into the Services; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; (vii) create a derivative software program; or (viii) otherwise use the Services except as expressly allowed under this Agreement.
30. USE OF INTELLECTUAL PROPERTY RIGHTS AND PROTECTION OF SOFTWARE APPLICATION
You hereby grant to SwinkPay to use, display and reproduce its name, brand name, logo, wordmark, trademark, service marks (“Marks”) on a non-exclusive, royalty-free basis, solely in connection with the sales, marketing and advertising SwinkPay Services provided to you, to the public. You hereby release SwinkPay from all liability relating to the publication or use of the Marks for such purpose. You hereby confirms that you have the requisite right to use the said Marks and to grant permission to use as stated herein. You shall retain all intellectual property rights in such marks. You shall prominently display on its website and/or in other online marketing materials, a statement/logo/marks/image provided by SwinkPay relating to SwinkPay Services and that of the respective Acquiring Banks providing the Payment Mechanism. You must only use the logos/marks/images provided by SwinkPay and no other. 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. You undertakes not to infringe the intellectual property rights of Acquiring Banks and/or SwinkPay respectively, whether directly or indirectly through any third party in the Acquiring Banks Services and software and/or SwinkPay Services and Software Application. You warrant that it shall only use the SwinkPay’s Software Application and the Acquiring Banks software for the purposes of this Agreement. You fully understand that due to use of the Customer of the Internet Payment Gateway through SwinkPay Site, SwinkPay may create or generate database in respect of such Customers. All rights and ownership with respect to such database shall vest with SwinkPay.
31. GRANT AND SCOPE OF THE MOBILE SDK LICENSE
a. Subject to the terms of this Agreement, SwinkPay grants you a limited, royalty bearing, non-assignable and non-exclusive license to use the Mobile SDK solely for purpose of integrating the Mobile SDK with the Upgraded Mobile Application. b. Each time SwinkPay provides you an updated Mobile SDK, you shall integrate Mobile Application with the updated Mobile SDK. c. SwinkPay owns all legal rights, title and interest in and to the Mobile SDK, including any Intellectual Property Rights that subsist in the Mobile SDK. SwinkPay reserves all rights not expressly granted to you. d. You shall not take any actions that may cause or result in the fragmentation of the Mobile SDK, including but not limited to distributing, participating in the creation of, or promoting in any way a software development kit derived from the Mobile SDK. e. Subject to the express License granted in this Agreement, SwinkPay will retain exclusive right, title and interest in and to the Mobile SDK, and all Intellectual Property Rights subsisting therein. There are no implied licenses under this Agreement, and all rights not expressly granted hereunder are reserved. It is further agreed that you shall not license or assign or offer for sale any software application developed using the Mobile SDK to a third party. f. You will not delete or in any manner alter any proprietary rights notices, codes etc. that may be affixed to, embedded in or contained within the Mobile SDK delivered to it.
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. 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. The obligations set out in this Clause shall not apply to Confidential Information that: (a) is or becomes publicly known other than through breach of this Clause; (b) is in possession of the receiving Party prior to disclosure by the other Party; (c) is independently developed by the receiving Party; (d) needs to be disclosed to professional advisers or in accordance with the order of a competent court or administrative authority; (e) is thereafter rightfully furnished to such receiving Party by a third party without restriction by that third party on disclosure; or (f) 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. Such obligation of confidentiality shall continue for a period of 1 (one) year after the termination or expiry of this Agreement.
You undertake and agree to indemnify, defend and hold harmless SwinkPay 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: a. breach or non-performance by you of any of your undertakings, warranties, covenants, declarations or obligations under this Agreement; b. breach of confidentiality and intellectual property rights obligations by you; c. any claim or proceeding brought by the Customer or any third party against SwinkPay and/or the Acquiring Banks in respect of any Products or Services offered by you; d. any claim or proceeding brought by the Customer or any third party against SwinkPay and/or the Acquiring Banks in respect of SwinkPay Services; e. any act, deed, negligence, omission, misrepresentation, default, misconduct, non-performance or fraud by you, your employees, contractors, agents, Customers or any third party; f. any hacking or lapse in security of the Merchant Site or the Customer data; g. Chargebacks or refunds relating to the Transactions contemplated under this Agreement; h. 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 i. any fines, penalties or interest imposed directly or indirectly on SwinkPay on account of your default or Transactions conducted through Merchant Site under these Terms and Conditions. The indemnities under this Clause are in addition to and without prejudice to the indemnities given elsewhere in this Agreement. The indemnities provided herein shall survive the termination of this Agreement.
34. LIMITATION OF LIABILITY
Notwithstanding anything stated under this Agreement, the aggregate liability of SwinkPay to you from any cause whatsoever shall not in any event exceed the sum equivalent to the preceding one month’s aggregate Service Fees earned by SwinkPay under this Agreement from the date of occurrence of such liability. Provided that SwinkPay shall not be liable to you for any special, incidental, indirect or consequential damages, damages from loss of profits or business opportunities even if you have been advised in advance of the possibility of such loss, cost or damages. In no event shall SwinkPay be liable to the Customers or any third party. In no event shall the Nodal Bank or the Acquiring Bank be liable to you in any way under this Agreement.
SwinkPay will make all reasonable efforts to provide uninterrupted service subject to down time and regular maintenance. However, notwithstanding anything in this Agreement, the SwinkPay Services and the Acquiring Bank’s Services may not be uninterrupted or error free or free from any virus or other malicious, destructive or corrupting code, program or macro and SwinkPay 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. Although SwinkPay adopts security measures it considers appropriate for the offer of the SwinkPay Service, it does not assure or guarantee that no person will overcome or subvert the security measures and gain unauthorized access to the SwinkPay Service or your/Customer data. SwinkPay shall not be responsible or liable if any unauthorized person hacks into or gains access to the SwinkPay Service or to your SwinkPay Account. In event of incorrect settlement in the Merchant’s Account due to error on the part of SwinkPay or the Bank, SwinkPay shall have the right to reverse the extra funds from the Merchant Bank Account. In addition, you shall be fully liable to return the extra funds settled within 7 (seven) days of intimation by SwinkPay. Subject to the other clauses of this Agreement, in the event that the Settlement Amounts to be transferred to you have not been transferred, SwinkPay shall endeavor to settle the relevant Settlement Amount to the Merchant’s account within 7 (seven) days of notification from you. In addition SwinkPay shall not be liable to you 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, SwinkPay Services and/or the Payment Mechanism, interruption or stoppage of SwinkPay Site, hacking or unauthorized access to the SwinkPay Services, Software Application and Internet Payment Gateway, non-availability of connectivity between the Merchant APP and SwinkPay, etc. Any material/information downloaded or otherwise obtained through the use of the SwinkPay Services is done at your own discretion and risk and you 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 you from SwinkPay or through or from the use of SwinkPay Services shall create any warranty. SwinkPay shall have no liability in this respect. SwinkPay's sole obligation and your sole and exclusive remedy in the event of interruption in SwinkPay Site, or loss of use and/or access to SwinkPay Site, the Acquiring banks Services and the Payment Mechanism and services, shall be to use all reasonable endeavors to restore the Services and/or access to the Payment Mechanism as soon as reasonably possible. SwinkPay or Acquiring Bank obligations under this Agreement are subject to following limitations: a. messages that originate from the server of your or the server of a third party designated by you (e.g., a host) shall be deemed to be authorized by you, and SwinkPay shall not be liable for processing such messages; b. messages that originate from the cardholder are deemed to be authorized by the cardholder and SwinkPay shall not be required to check its veracity and SwinkPay shall not be liable for processing such messages; c. SwinkPay or the Acquiring Bank are not responsible for the security of data residing on the your server or a third party designated by you (e.g., a host) or on the server of a cardholder or a third party designated by you/cardholder (e.g., a host); and d. SwinkPay 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 your acts or omissions; (ii) results from actions taken by SwinkPay 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 cardholders/accounts; or (iii) is caused by circumstances beyond SwinkPay 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. 36. ASSIGNMENTS SwinkPay may assign, in whole or in part, the benefits or obligations of this Agreement to its associates or affiliates of other group company, pursuant to a restructuring or re-organization or demerger of its organization or operations. SwinkPay shall provide a thirty (30) days prior intimation of such assignment to you, which shall be binding on the Parties to this Agreement.
37. FORCE MAJEURE
SwinkPay 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, pandemic, labor unrest, action of Statutory Authorities or local or Central Governments, change in Laws, Rules and Regulations, affecting the performance of SwinkPay or the Acquiring Banks.
38. 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.
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.
40. 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.
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.
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.
43. 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.
All notices, requests, demands, waivers and other communications required or permitted to be given under the Agreement shall be in writing through certified or registered mail, courier, email, facsimile or telegram to be sent to the following addresses: For SwinkPay: SwinkPay Technologies (India) Pvt Ltd 3rd floor DSR Diya Arcade, 220, 9th Main Rd HRBR Layout 1st Block, HRBR Layout Kalyan Nagar, Bengaluru - 560043 For Merchant: To the name and address provided for at the time of registration 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.
This Agreement shall not be varied, amended or modified by any of the Parties in any manner whatsoever unless such variation, amendment or modification is mutually discussed and agreed to in writing and duly executed by both the Parties.
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.
Banned list of Products referred to in this Agreement is as mentioned herein below:-
1. Securities including shares, bonds, debentures, share tips etc. and/or any other financial instruments/assets of any description. 2. Living, dead creatures and/or the whole or any part of any animal which has been kept or preserved by any means Endangered species, which includes plants, animals or other organisms (including product derivatives) in danger of extinction. E.g. Elephant Tusks, Rhino Horns, etc. 3. Weapons which includes firearms, ammunition, knives, brass knuckles, gun parts, and other armaments. 4. Tobacco and cigarettes which includes cigarettes, cigars, chewing tobacco, and related products. 5. Alcohol which includes alcohol or alcoholic beverages such as beer, liquor, wine, or champagne. Drugs and drug paraphernalia which include illegal drugs and drug accessories, including herbal drugs like salvia and magic mushrooms. Psychotropic (mood altering) substances, narcotics, intoxicants of any description, medicines, palliative/curative substances. Prescription drugs or herbal drugs or any kind of online pharmacies which includes drugs or other products requiring a prescription by a licensed medical Practitioner. Herbal and Ayurvedic products. 6. Religious items, including books, artifacts, etc. of any description or any other such item which is likely to affect the religious sentiments of any person. 7. "Antiquities" and "Art Treasures". 8. Adult goods and services and other sexually suggestive materials (including literature, imagery and other media); escort or prostitution services; Website access and/or Website memberships of pornography or illegal sites. 9. Body parts which includes organs or other body parts. 10. Child pornography which includes pornographic materials involving minors. 11. Copyrighted media which includes unauthorized copies of books, music, movies, and other licensed or protected materials. Digital download/PDF (eBook, software) e.g.: Music/Movies: content downloaded from the internet and burned on CDs and sold as genuine. 12. Copyrighted software which includes unauthorized copies of software, video games and other licensed or protected materials, including OEM or bundled Software. E.g.: Downloaded software copied/ burned on a marketable CD and sold as authentic/ trial versions of software downloaded and sold as genuine. Bundled software is software distributed with another product such as a piece of computer hardware (http://en.wikipedia.org/wiki/Computer_hardware) or other electronic devices or a group of software packages which are sold together and are released/ authorized by Manufacturers Only. 13. Counterfeit and unauthorized goods which includes replicas or imitations of designer goods; items without a celebrity endorsement that would normally require such an association; fake autographs, counterfeit stamps, and other potentially unauthorized goods.
14. Endangered species which includes plants, animals or other organisms (including derivatives) in danger of extinction.
15. Gaming/gambling which includes lottery tickets, contests, sports bets, memberships/ enrollment in online gambling sites, and related content.
16. Hacking and cracking materials which includes manuals, how-to-do guides, information, or equipment enabling illegal access to software, servers, websites, or other protected property. 17. Illegal goods which includes materials, products, or information promoting illegal goods or enabling illegal acts. 18. Offensive goods which includes literature, products or other materials that: a. Defame or slander any person or groups of people based on race, ethnicity, national origin, religion, sex, or other factors. b. Encourage or incite violent acts. c. Promote intolerance or hatred. d. Offensive goods, crime which includes crime scene photos or items, such as personal belongings, associated with criminals. 19. Pyrotechnic devices, combustibles, corrosives and hazardous materials which includes explosives, fireworks and related goods; toxic, flammable, and radioactive materials and substances. 20. Regulated goods which includes air bags; batteries containing mercury; Freon or similar substances/refrigerants; chemical/industrial solvents; government uniforms; car titles; license plates; police badges and law enforcement equipment; lock-picking devices; pesticides; postage meters; recalled items; slot machines; surveillance equipment; goods regulated by government or other agency specifications. 21. Wholesale currency which includes discounted currencies or currency exchanges. 22. Any product or service which is not in compliance with all applicable laws and regulations of India or international, whether federal, state, local. 23. Businesses or websites that operate within the scope of laws which are not absolutely clear or are ambiguous in nature (e.g. Web-based telephony, Websites supplying medicines or controlled substances, websites that promise online match-making). 24. Businesses banned/kept strict vigil on, by law (e.g. Betting & Gambling/lotteries/sweepstakes & games of chance). 25. SIM cards. 26. . Selling of medical packages. 27. Unauthorized Wallet services. 28. Sites booking online appointments, websites selling VIA Call Centers. 29. Technical Support Eg: Web Hosting, SEO, Web designing, and allied services. 30. . Pyramid/Referral Schemes Eg: A pyramid scheme/ referral scheme is an unsustainable business model (http://en.wikipedia.org/wiki/Business_model) that involves promising participants payment or services, primarily for enrolling other people into the scheme, rather than supplying any real investment or sale of products (http://en.wikipedia.org/wiki/Product_(business)) or services (http://en.wikipedia.org/wiki/Service_(economics)) to the public. 31. Marketing – Bulk Emails, Bulk SMS’s. Eg: mails/messages sent via mail servers and/or Bulk SMS service providers. 32. Spy Camera’s and Likewise. 33. Protein Supplements, Height increaser, Weight Loss/Gain, Impotency, Hair Loss/Hair Fall , Memory Enhancement, etc. 34. . Counseling and consulting services/market research - Online Consulting – Of any Kind. 35. Recruitment classifieds/job portals. Work-at-home jobs/information. 36. Rental services for goods. 37. Government IDs or documents which includes fake IDs, passports, diplomas, and noble titles. 38. Drop-shipped merchandise. Eg: Drop shipping is a supply chain management technique in which the retailer does not keep goods in stock, but instead transfers customer orders and shipment details to either the manufacturer or a wholesaler, who then ships the goods directly to the customer. 39. Portfolio design. Eg: Financial services like Mutual Funds, Stocks, IPOs, etc.
In addition, the following activities are restricted and not permitted under this Agreement:
1. Using SwinkPay Services while impersonating any person or entity or falsely claiming an affiliation with any person or entity; 2. Using SwinkPay Services to make unsolicited offers, advertisements, proposals, or to send junk mail or spam to others. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation materials, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signature; 3. . Using SwinkPay Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation and other proprietary rights and data collection and privacy; 4. Using SwinkPay Services to defame, harass, abuse, threaten or defraud others, or collect, or attempt to collect, personal information about Customers, registered recipients, or third parties without their consent; 5. Using SwinkPay Services to collect legal fees; 6. Using SwinkPay Services in order to act as a private banking institution; 7. Any activity which is in violation of the Competition Act 2002 and the rules and regulations framed thereunder; 8. Using SwinkPay Services in any manner that could damage, disable, overburden, or impair SwinkPay and/or Acquiring Bank, including without limitation, using the Services in an automated manner; 9. Using SwinkPay Services, in any manner or for whatsoever purpose, to host, display, upload, modify, publish, transmit, update or share any Information that: a. belongs to another person and to which the User does not have any right to, b. is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, pedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever, c. harm minors in any way, d. infringes any patent, trademark, copyright or other proprietary rights of any third party, e. violates any law for the time being in force, f. deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature, g. impersonate another person, h. contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource, and i. threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.
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