1.1.1 “POS Equipment” shall mean the POS terminal consisting of encrypted and certified card reader and related accessories provided by RealCash and shall include any replacement, modification, enhancement and/or additions to the POS Equipment (including the supporting software used therein) as may be provided for/caused to be provided for authorization by RealCash to the Merchant.
1.1.2 “Intellectual Property Rights” shall deem to mean and include all logos, symbols, copyright, designs, inventions patents, service marks, trademarks (in each case, whether registered or arising at common law, or its overseas equivalent) or applications for any of these, formulations, trade names, business names, inventions, discoveries, trade secrets, know-how, source code, object code, technical Information, commercial and financial data and all other industrial or intellectual property rights (whether or not registered).
1.1.3 “Laws” shall mean all statutes, enactments, and acts of legislature, laws, ordinances, rules, bylaws, regulations, notifications, guidelines, policies, directions, directives, treaties and orders of Government of India and/or any government, judicial or quasi-judicial body or any other authority, as amended or supplemented from time to time.
1.1.4 “Support Services” shall mean the periodical/annual maintenance service provided by RealCash to the Merchant in order to keep the POS Equipment in good order and condition and the authorization given to the Merchant for use of the RealCash point of sale application/payment gateway, merchant portal and for connecting the POS Equipment to RealCash’s server or to such other entity’s server that RealCash has contracted with in this respect, when the Merchant initiates the connecting process for any charges made by the Merchant’s customer.
1.1.5 “TSF” shall mean the transaction support fee that is applied on transaction completed on RealCash Mobile point of sale solution to recover the minimum cost RealCash Technologies Limited has to bear in processing the respective transactions.
The interpretation and construction of the Terms and conditions shall be subject to the following:
1.2.1 The headings to clauses/annexure are for ease of reference only and will not be deemed to form any part of the context or to affect the interpretation of this Terms and Conditions.
1.2.2 Words importing the singular will include the plural and vice versa; words importing any gender will include all other genders; and the term ‘person’ shall, based on the context, mean any natural person, limited or unlimited liability company, corporation, partnership (whether limited or unlimited), proprietorship, Hindu undivided family, trust, union, association, government or any agency or political subdivision thereof or any other entity that may be treated as a person under Law.
1.2.3 References to clause, schedules and annexures are references to clause, schedules and annexures in these Terms and Conditions and the provisions and conditions contained in them, will have the same effect as if set out in the body of these Terms and Conditions.
1.2.4 Grammatical variations of defined terms shall have the corresponding meaning.
1.2.5 Reference to the word “include” shall be construed without limitation.
1.2.6 Reference to any legislation or Law or to any provision thereof shall include references to any such Law as it may, after the date hereof, from time to time, be amended, supplemented or re-enacted, and any reference to statutory provision shall include any subordinate legislation made from time to time under that provision.
2.1 RealCash agrees to sell, license or rent and the Merchant agrees to purchase, acquire license or take on rental basis the POS Equipment, particulars of which are mentioned in Schedule I hereto, on the terms and conditions of this document and on an exclusive basis. Whether the POS Equipment is sold, licensed or rented shall be based on the total payments made by the Merchant and the details provided in Schedule I. It is hereby clarified that RealCash has granted to the Merchant only a limited right to use the POS Equipment as per the terms of this document and the ownership will remain with RealCash.
2.2 The Merchant acknowledges and agrees that none of RealCash’s systems or embedded and supporting software, confidential documentation or any related and other Intellectual Property Rights of RealCash is being sold, by the sale, licensing or rental of the POS Equipment. In respect of any embedded and supporting software or documentation or other Intellectual Property Rights, it is expressly acknowledged and agreed by the Merchant that, unless specified otherwise in this document, RealCash and or service providers engaged by RealCash shall be deemed to have licensed only a limited right to use such software or documentation or other Intellectual Property Rights to the Merchant as a part of the POS Equipment (device). It is hereby clarified that all rights, title and interests to the RealCash’s systems, embedded and supporting software, confidential documentation, and any related and other Intellectual Property Rights of RealCash or of service providers engaged by RealCash not expressly granted to the Merchant under these Terms and Conditions remain with RealCash.
2.3 The Merchant agrees that it shall be bound by the terms and conditions laid out in Schedule II while using the POS Equipment for acceptance of any payments via debit or credit cards. The Merchant hereby acknowledges and agrees that RealCash shall have the right to add any new terms and conditions to Schedule II in its sole discretion.
2.4 The Merchant agrees that any card organization shall have the right to enforce any provision of the card scheme rules and to prohibit the Merchant from engaging in any conduct the card organizations deem could injure or could create a risk of injury to the card, including injury to reputation, or that could adversely affect the integrity of the interchange system, the card organization’s confidential information as defined in the card scheme rules, or both. The Merchant will not take any action that could interfere with or prevent the exercise of this right by the card organizations.
2.5 The Merchant acknowledges that the card organizations may under the card scheme rules impose fines, penalties and additional fees in connection with any disputed transactions and the Merchant agrees to pay such fine, penalties and additional fee without any delay, demure or protest.
The Merchant agrees to pay RealCash the Installation Fees mentioned in Payment Details of Schedule I for availing the POS Equipment. The Merchant shall pay to RealCash the Installation Fee or any other charges before taking delivery of the POS Equipment.4. Support Services
4.1 The Merchant shall at all times during the period of use of the POS Equipment avail the Support Services provided by or on behalf of RealCash. The Merchant, in consideration of availing the Support Services, agrees to pay to RealCash an amount/rental on monthly basis on or before the start of the first (1st) day of every month as mentioned in Payment details of Schedule I. If any amount/rental is unpaid on the due date as mentioned in RealCash’s invoice, the Merchant shall be liable to pay an Interest charge of 2% per month of amount/rental due till the entire amount/rental is paid to RealCash.
4.2 The Merchant may handover cheque/pay order/demand draft/NEFT/ECS in respect of payment of the amounts/rentals mentioned in Payment Details of Schedule I to RealCash or to the agents of RealCash specifically authorised by RealCash in this regard.
4.3 For the purpose of payment of the fees as mentioned In Clause 4.1 and such other monetary obligations which may be required to be complied by the Merchant in terms of this Agreement, the Merchant gives his unconditional consent and authorizes RealCash to debit Merchants bank account through Electronic Clearing System (“ECS”). The Merchant further authorizes RealCash to recover all costs and expenses in the event the payment or amounts/rentals and such other monetary obligations are not honored on the respective due dates as per the ECS mandate given. The details of Merchant’s bank account through which the Merchant desires to arrange for payment to RealCash by means of ECS is provided in Merchant Bank Details of Schedule-I.
RealCash shall deliver or cause to be delivered to the Merchant the POS Equipment together with all manuals and documents pertaining thereto, at a place specified in Schedule I. The mode of delivery of the POS Equipment may be affected in a manner mutually agreed between the Parties. All expenses and costs incurred for delivery of the POS Equipment shall be solely borne by the Merchant.6. Taxes
6.1 The Merchant shall be responsible for any applicable sales, value-added service or any other taxes, cess, duties and impositions (“Taxes”) payable with respect to the POS Equipment or provision of Support Services, or otherwise arising out of or in connection with this Document.
6.2 The Merchant shall make all payments of amounts/fees due under this document to RealCash free and clear of, and without reduction for, any withholding taxes. If the Merchant is, by virtue of any Law required to make any withholding from any amounts due to RealCash in accordance with these Terms and Conditions, the sum payable by the Merchant to RealCash shall be increased to the extent necessary to ensure that, after such withholding, RealCash receives the amount due under the invoice raised by RealCash on the Merchant. The Merchant shall, on an immediate basis, provide to RealCash all official documentation and/or tax receipts on any withholdings or deductions made by the Merchant on payments to be made to RealCash.
6.3 The Merchant shall be responsible to deduct the tax at source as applicable under Income Tax Act, 1961 or any other laws/rules/ or regulations as may be applicable from time to time and deposit the same to the credit of the government within the respective due dates. Also the Merchant shall be responsible to submit the certificate of tax deducted or any other document evidencing deduction of tax as applicable within 30 days from the due date for submission of returns of tax deduction to the government. The duty to comply with the provisions of tax deduction solely rests upon the Merchant and RealCash shall not be liable for the same under any circumstances and in any manner whatsoever.
6.4 The Merchant shall keep current, complete and accurate records regarding (i) the Support Services provided by RealCash under this Agreement; (ii) the slips signed by the customers of the Merchant acknowledging the payments concerned; and (iii) such other information as may be necessary for the Merchant or RealCash to validate the Merchant’s compliance with the terms of this Agreement. The Merchant shall provide such information to RealCash within seven (7) days of RealCash’s written request and with not less than two (2) days prior written notice, RealCash or its representatives may inspect, audit, and copy such records of the Merchant and access the POS Equipment, at any time during the Merchants regular business hours.
The training provided by RealCash shall be pursuant to RealCash’s standard training terms. On completion of the training provided by RealCash, the Merchant shall acknowledge the same by signing on the report provided by RealCash in this regard.8. Obligations, Representations and Warranties
8.1 The Merchant represents and warrants to RealCash that on the date hereof: 8.1.1 It is an entity duly incorporated and/or validly existing and in good standing under the laws of India; 8.1.2 It has all necessary power and authority to accept these Terms and Conditions; 8.1.3 The persons accepting these Terms and Conditions on behalf of the Merchant have the authority to sign and execute it on behalf of the Merchant so as to create binding obligations on the Merchant. 8.1.4 The execution and delivery of these Terms and Conditions, and the consummation of the transaction contemplated hereby, and the fulfillment of and compliance with the terms and conditions hereof, do not (i) violate any Laws, judicial or administrative order, award, judgment or decree applicable to it, or (ii) conflict with the terms, conditions or provisions of its constitutional documents or any other contractual obligations to or regulations; and 8.1.5 This document constitutes valid and legally binding obligation and will be enforceable against the Merchant in accordance with its terms. 8.2 The Merchant shall comply with all the Laws including the guidelines and standard terms and conditions as per Schedule II and such other amended guidelines and terms issued by RealCash from time to time. 8.3 RealCash reserves the right to change the standard terms and conditions and guidelines applicable to the usage of POS Equipment or Support Services at any time without prior consent of the Merchant. 8.4 RealCash is not giving any warranties either express or implied whether of merchantability or fitness for any particular use or otherwise, in respect of the POS Equipment or any Support Services provided to merchant and no waiver, alteration or modification of the foregoing condition shall be valid unless an amendment to this document is executed in on the website having its domain www.realcash.in. The Merchant’s sole and exclusive remedy in the event of interruption to or loss of use and/or access to the Support Services shall be to get the Support Services restored from RealCash. RealCash will use all reasonable endeavors, at its sole and absolute discretion which shall be final and binding on the Merchant, to restore the Support Services and/or access to the Support Services as soon as reasonably possible. 8.5 The Merchant acknowledges that it has been advised that no agent, employee or representative of RealCash has any authority to buy and sell or affirm or promise any representation and warranty concerning the POS Equipment or Support Services.9. Intellectual Property Rights
9.1 The Merchant shall not use any RealCash’s trademark, service marks, trade name or logo without specific written consent from RealCash to that effect. Any infringement of any Intellectual Property Rights of RealCash shall be subject to legal action and damages.
9.2 The Merchant shall not to do anything whatsoever which might impair RealCash’s right, title or Interest in or to RealCash’s Intellectual Property Rights and agree that the Merchant shall not acquire or attempt to acquire any right, claims, title or interest, license in or to any of the Intellectual Property Rights of RealCash. The Merchant shall not decompile/disassemble, or create or attempt to create or reconstruct, by reverse engineering or otherwise, any code supplied under this document including in respect of the POS Equipment or use it to create any derivative work.
10.1 The POS Equipment and/or Support Services may include material, technology services which RealCash licenses from third parties. To the extent required by any such third party in its applicable license or acceptance of terms and conditions with RealCash, such third party shall be a direct and intended third party beneficiary of this document, insofar as it pertains to protection of Intellectual Property Rights. The Merchant shall fully indemnify and defend and hold RealCash and any bank and/or entity associated with RealCash harmless from and against any third party claim, damage, demand, liabilities, obligations, actions, suits, litigation, interest, loss, expenses, whether direct or indirect, alleging that its Intellectual Property Rights are infringed by the Merchant.
10.2 The Merchant shall promptly notify RealCash of any unauthorized use of any POS Equipment(s) of which the Merchant becomes aware. In the event of any unauthorized use by any user, the Merchant shall immediately terminate and prevent further occurrences of such unauthorized use. The Merchant shall fully indemnify RealCash and any bank and/or entity associated with RealCash against all claim, liabilities, demand, obligations, actions, suits, litigation, interest, damage, loss, expenses (including attorney fees) whether direct or indirect, arising out of such unauthorized use of the POS Equipment.
10.3 The POS Equipment connects to RealCash’s server or to such other entity’s server that RealCash has contracted with in this respect on real time basis when the Merchant initiates the connecting process. The Merchant shall reasonably maintain the POS Equipment such that the Merchant can get connected to the server all the time without any lags. However, if the server fails to respond, the Merchant shall report the issue and RealCash or entity associated with RealCash will fix it as early as possible and the Merchant shall not be entitled to make any claims for any reason including for any claims for loss of business, revenue, profit, goodwill, data or indirect, direct, incidental, special, consequential damages or losses suffered by the Merchant due to the failure of RealCash’s server or to such other entity’s server that RealCash has contracted with in this respect.
11.1 The Merchant hereby agrees to indemnify, defend and hold RealCash and any banks, payment facilitators and/or entities associated with RealCash including their directors, employees and agents harmless from and against any and all damages, losses, liabilities, obligations, demands, claims of any kind, actions, suits, litigation, interest, costs or expenses directly incurred or suffered by RealCash in any manner arising out of:
11.1.1 Breach by the Merchant of its obligations under these Terms and Conditions, including but not limited to those specified in Clause 8 (Obligations, Representations and Warranties), Clause 9 (Confidentiality), Clause 10 (Intellectual Property Rights) and Schedule II (Terms and Conditions of Payments);
11.1.2 Any injuries to persons or damage to the POS Equipment, including theft, resulting from Merchant’s acts or omissions;
11.1.3 Any claims brought against RealCash arising in whole or in part out of claims brought against the Merchant involving negligence, fraud, willful default or mishandling or misplacing charge slips during the Term or the Renewal Term of this document or for violation of any standards and/or program requirements references in this agreement;
11.1.4 Any claim or proceeding brought by the customer or any other person against RealCash or any bank, payment facilitators and/or entity associated with RealCash in respect of any products/services of the Merchant or operations of the Merchant;
11.1.5 Any claim or proceeding related to the misuse of the POS Equipment;
11.1.6 Any act of negligence or default by the Merchant or the Merchant’s affiliates, agents, employees or licensees of the Merchant;
11.1.7 Any act or omission by the Merchant in respect of the sale of /payment for the products/services;
11.1.8 Any penalties, interest on delayed payments imposed directly or indirectly on RealCash, payment facilitators and/or any banks and/or entities associated with RealCash on account of the Merchant’s use of POS Equipment and/or the products, services supplied by the Merchant or any expenses caused by Merchant as well as reprocessing of any transactions relating to suspended or rejected products/services;
11.1.9 Any penalties, interest or fine imposed on RealCash, payment facilitators, bank and/or any other entity associated with RealCash by the card organizations on account of chargebacks, credit and customer service related issues and disputed transactions.
11.1.10 Any claim or proceeding brought against RealCash by a regulatory or judicial body flowing from a breach of any anti-money laundering requirements as a result of any failure by the Merchant to follow applicable laws, instructions provided by RealCash or due to non-disclosure or misrepresentation to RealCash of any facts in this respect;
11.1.11 Breach of applicable law or card scheme rules by the Merchant.
11.2 Notwithstanding anything contained in this document, in no event shall RealCash, payment facilitator, any banks and/or entities associated with RealCash be liable to the Merchant for any consequential, remote, direct, indirect, special, incidental, exemplary or punitive damages, losses, compensation, costs, Charges or expenses including without limitation, loss of business, profits or revenues, loss of opportunity, goodwill etc.) Of any nature whatsoever arising in connection POS Equipment, Support Services or any other matter in relation to this Document.
11.3 The Merchant shall fully indemnify and keep indemnified RealCash, payment facilitator, any banks and/or entities associated with RealCash from all damages, costs, legal fees, charges and expenses, and losses that RealCash, payment facilitator, any banks and/or entities associated with RealCash may incur as a consequence of any failure whether temporary or permanent of the support services provided by the bank associated with RealCash to the extent such failure results in any wrongful or incorrect payment to the Merchant. The Merchant shall also undertake to make good and reimburse RealCash and/or any banks and/or entities associated with RealCash and/or the customer for any failure of the support services, to the extent of such failure results in any wrongful or incorrect payment to the Merchant.
11.4 In the event of RealCash is entitled to be indemnified pursuant to the provisions of this Document, RealCash shall be entitled to debit an amount equivalent to the amount of damages, losses, liabilities, obligations, demands, claims of any kind, actions, suits, litigation, interest, costs or expenses incurred or anticipated by RealCash from the payments to be made to the Merchant or through direct debit (ECS) from Merchant’s bank account. The Merchant hereby agrees to permit the debit of such amount by RealCash without any protest. The Merchant hereby acknowledges that the amount to be debited under this Clause 12.4 shall be determined by RealCash in its sole discretion.
11.5 The indemnity provided herein shall survive the termination/cancellation of these Terms and conditions, in so far as it pertains to events that transpired during the subsistence of this Document.
No Party shall be liable to the other, nor be in default if, and to the extent, that the performance or delay in performance of any of its obligations under this Document is prevented, restricted, delayed or interrupted with due to circumstances beyond the reasonable control of such Party, including but not limited to, change in applicable Laws, fires, floods, tsunami, explosions, epidemics, diseases, accidents, acts of God, threat of wars, riots, strikes, lockouts, acts of Government, shortages of materials and/or industrial emergency, terrorist attacks (“Force Majeure”).
The Party claiming an event of force majeure shall promptly notify the other Party in writing and in any event not later than fifteen (15) business days from the date of occurrence of such event of Force Majeure, and provide full particulars of the event and also keep the other Party informed of any further developments. The Party so affected shall use its best efforts to remove the cause of non-performance, and the Parties shall resume performance hereunder when such cause is removed.
The Merchant shall not be entitled to assign or transfer any of its rights and liabilities hereunder to any third party without the prior written consent of RealCash.
14.2 Further assurance
Each of the Parties to this document agrees to perform (or procure the performance of) all further acts and things and execute and deliver (or procure the execution and delivery of) such further documents, as may be required by law or as may be necessary or reasonably desirable to implement and/or give effect to these Terms and Conditions.
All rights and remedies hereunder shall be cumulative and may be exercised singularly or concurrently. If any legal action is brought to enforce any obligations hereunder, save and except and subject to the decision of adjudicating authority or Court, the prevailing Party may be entitled to receive its attorney’s, fees, court costs and other collection expenses, in addition to any other relief it may receive. If either Party fails to perform its obligations under any provision of this document and the other Party does not enforce such provision, failure to enforce on that occasion shall not prevent enforcement on later occasions and would not construed as waiver.
This document shall be altered, modified or supplemented only in writing and shall be valid when duly signed by all the Parties. 14.5 Notices
Any notices or communications required to be given or served by any of the Parties on the others in respect of this document shall be given in writing in English to the others, and shall be deemed to have been duly served, if sent by prepaid registered mail with acknowledgment due or courier at the address specified in the title of this document.
All provisions of this document shall be severable and no such provisions shall be affected by the invalidity of any other provision to the extent that such invalidity does not also render such other provisions invalid. In the event of the invalidity of any provision of this document, it shall be interpreted and enforced as if the provisions thereby rendered invalid were not contained herein, if any provision of this Document shall be susceptible of two interpretations, one of which would render the provision invalid and the other of which would cause the provision to be valid, such provision shall be deemed to have the meaning which would cause it to be valid. If any provision of this Document shall be prohibited by or adjudicated by a court to be unlawful, void or unenforceable such provision shall to the extent required be severed from this document and rendered ineffective as far as possible without modifying the remaining provisions of this document and shall not in any way affect any other provisions or the validity or enforcement of this Agreement. 14.7 Survival
The obligations and rights of the Parties under this document including without limitation Clause 9 (Confidential Information), Clause 12 (Indemnification), Clause 14 (Governing Law and Dispute Resolution) Clause 15.6 (Notices), shall survive the expiration or termination of these Terms and Conditions.
1.1. “Card Member or Member or Customer or Cardholder” shall mean a person holding a Valid Card making payment using a valid card.
1.2. “Card Schemes” means Rupay, Visa, MasterCard, Maestro and such other Card Schemes notified by RealCash to Merchant from time to time.
1.3. “Card Scheme Rules” means the rules, regulations and operating instructions issued by particular Card Schemes, as may be varied and updated from time to time.
1.4. “Charge Slip” means the form used by the Merchant in a format provided by RealCash to enable the Merchant to record charges, transaction details and obtain the cardholders signature thereby obtaining the cardholders consent to debit his card account.
1.5. “Merchant Discount Rate (MDR)” means with respect to each Transaction Amount a percentage thereof as specified in MDR Details of Schedule I. Provided however that the Merchant Discount Rate may be revised from time to time by RealCash.
1.6. “Transaction Support Fee” means with respect to each Transaction Amount a percentage thereof as specified in Additional Payment Details of Schedule I. This Transaction Support fee is charged against services provided related to transaction such as SMS, Email, and NEFT etc.
1.7. “Transaction Amount” shall mean the amount payable by the Customer using the Valid Card for the product/ service offered by the Merchant inclusive of shipping charges and other taxes, duties, cost, charges and expenses in respect of the product/ service that are to be charged to the Cardholders Valid Card.
1.8. “Transaction” means an act between the Cardholder and the Merchant that complies with the requirements set out at this Agreement regarding the purchase or return of goods and/or services where the Cardholder uses its Card to pay for goods and/or services that results in the generation of a Transaction Record for the provision of goods and/or services and/or Refunds but which, for the avoidance of doubt, does not include any transactions between a Cardholder and RealCash.
1.9. “Transaction Data” means all data relating to Transactions.
1.10. “Valid Card” shall mean a credit or debit card issued by Rupay/VISA/MasterCard or any such card association as per the rules or such other card as notified by RealCash from time to time bearing signature of the holder whose name is embossed on the same but shall not include (i) a card listed on a current warning notice or (ii) an expired card or a card not yet operational or (iii) a card that cannot be used in India or (iv) a damaged or torn card.
1.11. “Valid Charges” is a charge within the amount authorized in accordance with Clause 5 herein below, which is charged to the Card Member (i) on a Charge slip acceptable to RealCash, bearing an imprint of a Valid Card and bearing the same signature as that on the Valid Card; and (ii) using the POS Equipment with Charge Slip generated from the POS Equipment after swiping the Valid Card, and bearing the same signature as that on the Valid Card.
1.12. “Refund” means where Merchant agrees to make a refund to the Cardholders Card of the whole or part of any sum authorized by a Cardholder to be debited to their Cardholders Account
2.1. These terms and conditions shall be applicable in respect of each and every transaction involving payment by means of a Valid Card.
2.2. The Parties understand and acknowledge that prior to assigning an identification number for the Merchant and in case before entering into, extending or renewing this Agreement and prior to submitting a Merchant application to a bank or a payment facilitator, as relevant, RealCash shall carry out, in full a screening process and a due diligence exercise on the Merchant as may be prescribed by the bank or the payment facilitator, as relevant. The Merchant hereby agrees to cooperate with such process or due diligence exercise and shall provide to RealCash access to its premises and/or all information including but not limited to books, records etc., as requested for. The Merchant shall provide to RealCash with copies of any documents (whether or not in electronic form) or information that it may request for in relation to fulfillment of its obligations under the Prevention of Money Laundering Act 2002.
2.3. The Merchant hereby undertakes to honor and accept every Valid Card when property presented as payment by Customers for all transactions.
INITIALS FOR REALCASH
REALCASH payments made easy WITHOUT PREJUDICE shall not engage in such acceptance practices or procedures that discriminate against, or discourage the use of VISA/MasterCard/Rupay or any other cards in favor of any other payment mode accepted by the Merchant. If a Merchant indicates a price to a cardholder which is not a price applicable to all methods of payment accepted by it, then the Merchant shall display a statement explaining any methods of payment to which the indicated price does not apply and the difference in price either as an amount or a percentage. The statement must be displayed at each public entrance to the Merchants premises and at each Point of Sale.
2.4. On an on-going basis, the Merchant must promptly provide RealCash with the current address of each of its offices, all “doing business as” (DBA) names used by the Merchant, and a complete description of goods sold and services provided to its customers
2.5. The Merchant hereby agrees that:
2.5.1. It shall comply at all times with all applicable Laws;
2.5.2. It shall comply with all applicable Card Scheme Rules, as amended from time to time and shall carry out Transactions in the territory of India only;
2.5.3. the Card Schemes are the sole and exclusive owner of all Intellectual Property Rights in relation to names, logos, symbols and trademarks as published by them and the Merchant shall not contest the ownership of such Intellectual Property for any reason;
2.5.4. It shall submit Transactions to RealCash in respect of goods/ and or services provided by the Merchant to the Cardholder;
2.5.5. It shall ensure that it prominently and unequivocally informs a Cardholder of the identity of the Merchant at all points of interaction, so that the Cardholder can readily distinguish the Merchant from any other third party, such as supplier of products or services.
2.5.6. It shall display appropriate signage at the relevant POS Equipment (including on-line, on multi-media platforms and at payment gateways, as applicable) which displays the relevant trademarks, symbols, logos provided by the Card Schemes to indicate which Cards are accepted for payment.
3.1. The Merchant shall retain in its possession and for its exclusive use the POS Equipment, provided by RealCash and keep the same in a good condition.
3.2. RealCash shall be entitled to charge the Merchant for the costs of the POS Equipment and/or the costs of repairing the POS Equipment, in the event the POS Equipment is damaged or is used in an improper manner by the Merchant.
3.3. The Merchant shall not permit any third party to perform any maintenance services on the POS Equipment or effect modification or enhancement or software/engineering changes to the POS Equipment without the prior written consent of RealCash.
3.4. The Merchant shall not,
(i) sell, assign, transfer, lease or otherwise cause or allow or attempt to cause or allow, any dealings with the POS Equipment or any encumbrance on the POS Equipment tube created;
(ii) Remove, conceal or alter any markings, tags or plates attached to the POS Equipment or part thereof;
(iii) Disallow RealCash’s right to access, repossess or dispose of the POS Equipment pursuant to this Agreement; or
(iv) Otherwise to be encumbered in any way whatsoever.
3.5. The loss or damage arising out of negligence, or misuse of the POS Equipment and/or default in payment due to any reason whatsoever or that of any telecommunication devices attached to/ inbuilt within/ embedded in the POS Equipment shall be to the account of the Merchant, and RealCash shall recover such losses and expenses from the Merchant.
3.6. The Merchant shall permit the authorized representatives of RealCash or RealCash’s authorized agent to carry out physical inspections of the POS Equipment (or take possession of the POS Equipment, in case of termination of this Agreement) during business hours, with or without prior notice.
3.7. RealCash may seek enhancement of the POS Equipment for provision of additional services using the POS Equipment and the Merchant shall allow RealCash or RealCash’s agent to undertake such enhancements and facilitate and provide such services.
3.8. RealCash reserves the right to fix a daily merchant limit (i.e. the amount beyond which the cards of the Customers cannot be accepted in a day on the payment gateway of RealCash) or such other limits as may be specified by RealCash from time to time.
3.9. The Merchant undertakes that it shall comply with the guidelines of the MasterCard, Visa, Rupay and such other card associations as may be specified by RealCash from time to time.
INITIALS FOR MERCHANT
MERCHANT SERVICES AGREEMENT SUBJECT TO CONTRACT
3.10. The Merchant shall make timely payment of the rentals and other charges only to the authorized representatives of RealCash.
3.11. The Merchant shall ensure that its products shall, at all times, be marketed and/or distributed as the products marketed/sold by the Merchants. The Merchants shall ensure to take all necessary steps and/or precautions to ensure that the products are not mistaken or misrepresented as being associated with, being sold by, marketed by or being offered for sale by RealCash, payment facilitator, any bank and/or entity associated with RealCash and none of the aforesaid entities or RealCash shall bear any liability in this regard. Merchant shall ensure that it displays on the Merchants premises such disclaimers, warranties and indemnities as RealCash may require from time to time in this regard.
3.12. The Merchant shall adopt appropriate measures of privacy, which measures should clearly ensure that the privacy of its customers is protected and no information given by such. Customers shall be utilized in any manner whatsoever which could directly or indirectly result in any harm to the customers or which would constitute a breach of such privacy.
3.13. The Merchant hereby undertakes and agrees:
3.13.1. Not to describe itself as an agent, representative, partner or employee of RealCash, payment facilitator, any bank and/or entity associated with RealCash.
3.13.2. Not to make any representations to its Customers or any third party or give any warranties which may require RealCash, payment facilitator, any bank and/or entity associated with RealCash to undertake or be liable for, whether directly or indirectly, any obligation and/or responsibility to Customers or any third party.
3.14. The Merchants shall ensure that all transactions are identified with (a) the card acceptor business code/ MCC that most closely reflects the Merchants primary business in accordance with the Card Scheme Rules, the Merchant shall ensure that it shall carry out transactions in India only and in Indian Rupees only, as required by the Card Scheme Rules. RealCash shall have the right to request that Merchant to use a specific MCC if increased cardholder disputes or inappropriate authorizations result from the use of a general MCC.
3.15. The Merchant shall not retain or store magnetic stripe or CW2/CVC2 data after authorization for a transaction has been received.
4.1. Merchant must obtain an authorization from RealCash (or any other entity associated with RealCash in this regard) for any and every charges incurred by the card Member. Authorization in respect of charges can be obtained swiping the Valid Card using the POS Equipment.
4.2. If the Merchant accepts charges without prior authorization, RealCash will not be responsible for any such charges or any part thereof and all such charges will be accepted only on a collection basis.
4.3. Splitting of charges into two (2) or more Charge Slips will not be acceptable to RealCash.
4.4. RealCash reserves the right to refuse the charges if an authorization is declined. Any authorization given by RealCash will be in its absolute discretion and RealCash may further, in such an event, also direct the Merchant to take immediate preventive action.
4.5. In case of any disputes regarding authorizations given by RealCash regarding any details pertaining thereto (whether as to card number, expiry date of a Valid Card, amount, date and the time of charges, time at which authorization is given or otherwise whatsoever), the decision of RealCash to grant or refuse authorization and the details mentioned by RealCash shall be final and binding on the Merchant.
4.6. Merchant shall be responsible for verification of Card Member signature on back panel of Valid Card with the signature of the said card Member on the Charge Slip. In the event of mismatch of the Card Member signature, Merchant shall follow procedure as laid down by RealCash from time to time. Merchant shall obtain photocopy (ies) of the passport of the Card Member and front side of Valid Card in case of transaction conducted on an international card above 10,000/-(Rupees Ten Thousand Only) or such other amounts as maybe prescribed by RealCash from time to time. The Merchant shall verify such photocopy (ies) with the originals before accepting the same. Merchant shall verify photo id of customer and match the name & sign on such id with name and sign on card in case of local card, ID proof shall be collected by the Merchant for transaction above INR 10,000/- for merchandise or service particularly related to jewellery, electronics, antiques, handicrafts, travel and telecom or such merchandise as may be directed by RealCash, payment facilitator or the Bank or regulatory authorities. Amount thresholds, the list of documents to be collected are subject to change as per card scheme rules from time to time. Merchant agrees to provide invoice copy or any such other documents related to transaction as required by RealCash from time to time.
INITIALS FOR REALCASH
REALCASH payments WITHOUT PREJUDICE
4.7. The Merchant shall not process or deposit transactions with RealCash for or on behalf of any third party The Merchant will also not give cash advance by showing the transaction as a sale transaction. The Merhant shall not accept payment from a Cardholder to re-finance an existing debt.
4.8. RealCash reserves the right to discontinue the Support Service and or terminate this Agreement in case of any non-compliance with the terms of this Schedule II or any other terms of the Agreement and recover such amounts from the Merchant in case his exposed to losses due to chargebacks or disputes.
4.9. The Merchant shall refrain from indulging in any practice whereby the Merchant refuses to accept a valid card for payment.
4.10. The Merchant shall not accept any transaction using any card issued in the Merchants’ name, or of a partner in, or director or other officer of Merchants Business, or of the spouse or any member of the immediate family or household of any such person.
5.1. The Merchant is handling transaction (s) via payment gateway of RealCash and therefore must ensure that the extraction of data from the Valid Card must be in the manner specified by RealCash (this may vary from time to time but RealCash will give prior notice of variation to the Merchant);
5.2. Deliver to the Cardholder a bill mentioning the Transaction Amount received from the Cardholder through the payment gateway of RealCash.
5.3. RealCash reserves the right to impose limits on the number of transactions undertaken using particular Valid Card and the value of a single transaction during any time period, and reserves the right to refuse to make payments in respect of transactions exceeding such limit.
5.4. The Merchant shall not require any cardholder to pay any surcharge, to pay any part of the discount, whether through any increase in price or otherwise, or to pay any contemporaneous finance charge in connection with the transaction in which a Valid Card issued.
5.5. The Merchant hereby agrees that RealCash or any payment facilitator may retain or withhold settlement of any sums due from RealCash to the Merchant if any contractual obligation of RealCash to banks, payment facilitators or any other third parties are breached as a result of the Merchants breach of its obligations under this Agreement.
In consideration of the services provided under this Agreement, the Merchant agrees to pay to RealCash, the Merchant Discount Rate (MDR) and any further charges as detailed in this Agreement, which shall be deducted by RealCash from the amounts payable to the Merchant in respect of a Transaction Amount. For the purpose of this Agreement, the discount rate would be as mentioned in Transaction Fee Details of the Schedule I attached hereto.
(i) Merchant Discount Rate shall be calculated as a percentage of the Transaction Amount;
(ii) If any extra credit is given by the Merchant to the Card holder without prior approval of RealCash, the Merchant shall do so at its own risk and responsibility. In such case the entire transaction would be treated as void and RealCash will reject payment of the same;
(iii) All applicable tax including service tax, consumption tax or value added tax whether currently in force or introduced after the date of this Agreement and any other taxes, duties, fees and charges arising out of the performance of this Agreement shall be borne by the Merchant.
7.1. The Merchant agrees to inform the Cardholder about its credit refund policy clearly mentioning the same in bill invoice and/ or on the website.
7.1.1. If in respect of any transaction, any goods/services are not received as described, by the Cardholder or are lawfully rejected or accepted for or services are not performed or partly performed or cancelled or price is lawfully disputed by the Cardholder or price adjustment is allowed, the Merchant shall not make a cash refund but shall complete a Charge Slip supplied or approved by RealCash. The Merchant shall sign and date each Charge Slip and include a brief description of the items concerned. A true and completed copy of the Charge Slip must be delivered or forwarded to the Cardholder.
7.1.2. In the event of a refund to a Cardholder, the Merchant shall not make a cash refund to the Cardholder. The Merchant must present a credit process/ refund letter on headed stationary and signed by authorized signatory/is. The Merchant must not process a refund transaction, unless there is a preceding corresponding debit on a card account. In the event that only Charge Slips are presented to RealCash at any one time, the Merchant shall at the same time make payment of the net refund (i e. the total refund(s) to the cardholder(s) less the discount) to RealCash.
8.1. Subject to the provision of sub-clause (b) hereof, and without prejudice to the right conferred by Clause 10 of Schedule II hereinafter appearing, RealCash shall pay to the Merchant, Valid Charges specified in the Charge Slips received at their offices within 3 days of receipt, in case of Rupay/Visa/ MasterCard any other card association except under circumstances beyond the reasonable control of RealCash. Payment of such charges by RealCash is not to be construed or deemed to mean that the charges involved are Valid Charges. RealCash will be entitled at any time by giving notice to set-off and adjust outstanding of the Merchant, against all payments due to the Merchant and such set-off and/or adjustments shall be final and binding on the Merchant.INITIALS FOR REALCASH a Facts made ETV WITHOUT PREJUDICE
8.2. Where RealCash has mason to believe that any charges have been fraudulently incurred or charged either on a Valid Card or a counterfeit card or where RealCash has reason to investigate or cause to be investigated any charges (hereinafter referred to as “Suspect Charges”), RealCash shall be entitled to withhold payment (without interest) pertaining to such Suspect Charge(s) for a period not exceeding 6 (six) months from the due date of payment under sub-clause (a) above. RealCash shall with or without notice change processing or payment terms and/or suspend credits or other payments of any and all funds, money and amounts now due or which subsequently become due to Merchant pursuant to this Agreement if in good faith RealCash suspect that
(i) Any Transaction is fraudulent or involves other criminal activity;
(ii) That any Transaction was not in the ordinary course of Merchant’s business;
(iii) If the number and/or size of the Transaction (s) is significantly greater than expected;
(iv) It any of the termination events has occurred; or
(v) If RealCash suspect that any such termination event has, or is likely to occur (whether or not RealCash have terminated this Agreement). All payments so suspended may be retained by RealCash until RealCash have satisfied that such Transaction(s) is/are legitimate and no longer liable to be the subject of a Chargeback, No interest shall accrue in respect of any such amount that is so withheld.
8.3. Provided that if before expiry of 6 (six) months from the due date of payment under sub-clause (a) above. RealCash determines after due enquiry and investigation that the charge is a Valid Charge and not a Suspect Charge, RealCash shall release such withheld payment.
8.4. Provided further that if within the said period of 6 (six) months RealCash determines after due enquiry and investigation that any Suspect Charge is not a Valid Charge, RealCash shall be entitled not to pay the carne at all and the Merchant undertakes not to raise any claims thereto.
8.5. If RealCash suspects, on reasonable ground and in its sole and exclusive opinion, that the Merchant has been negligent, or has committed a breach of this Agreement or acts dishonesty or commits fraud against RealCash or any Cardholder, RealCash shall be entitled to suspend all payments under this Agreement to the Merchant pending enquiries by RealCash and resolution of the same to the RealCash’s satisfaction.
8.6. Net payments to the Merchant shall be made by RealCash directly into the respective account of the Merchant or by cheques.
8.7. In the event of a Customer making a purchase by a Valid Card and the Customer or the bank associated with RealCash with whom the Customer has taken the credit card raises any dispute whatsoever, RealCash shall forthwith inform the Merchant of the same and the Merchant shall be obliged, forthwith, to refund all such amounts received without any demur or protest whatsoever. RealCash shall, without prejudice to Its other rights, be entitled no debit the payment to be made to the Merchant and/or from any other account of the Merchant with RealCash and/or shall also be entitled to set-off the same from any amounts due to the merchant by RealCash and make a corresponding credit to the customer’s valid card. It the dispute raised by the customer is decided, to the satisfaction of RealCash or bank and/or entity associated with RealCash, In favor of the Merchant, such payment shall be forthwith returned to the Merchant without any interest after the monies have been recovered from the customer. RealCash or any other bank shall not be liable for any delay in returning the payment to the Merchant and shall be absolved from all liabilities thereon.
8.8. In the event of a Customer making a purchase by a Valid Card and requesting any bank associated with RealCash for a refund on any grounds whatsoever, or in the event of the Customer raising any dispute in respect of the products whatsoever, RealCash shall forthwith inform the Merchant of the same and shall cause to make a provisional credit in the customer’s account and the Merchant shall be obliged to, forthwith, refund all such amounts to RealCash and such refund shall be made in a period of not more than five (5) days. If the Merchant and the Customer are unable to arrive at a satisfactory resolution of the problem within a period of Ten (10) days thereafter, RealCash shall be entitled to cause a direct credit to the disputing Customers account for the disputed amount by debiting the Merchants account. Such debit to the Merchants account and the direct credit to the disputing Customers account shall not be disputed by The Merchant in any manner whatsoever. In the event of the Customer and the Merchant arriving at a settlement within the said 10 days period, RealCash shall cause to deal with the said moneys in accordance with the terms of the settlement arrived at RealCash or any other bank and/or entity associated with RealCash shall not be liable to any Customer and the Merchant shall indemnify and keep indemnified RealCash and any other bank and/or entity associated with RealCash against any claims, damages, liabilities, costs, expenses, legal tees suffered by RealCash and any other bank and/or entity associated with RealCash in this regard.
8.9. The Merchant acknowledges and agrees that RealCash reserves the right to deduct any charges, fines, penalties or additional fees charged by the card organizations on RealCash or any bank, payment facilitator associated with it, in respect of any Transactions processed and submitted to RealCash.
8.10. Other Amounts Due. The Merchant shall pay to RealCash all amounts which become due and payable to RealCash, as specified in this Agreement, including:
8.10.1. The amount of any Refunds issued (if not already deducted from sums paid by RealCash to the Merchant);
8.10.2. The full amount of any over payments made by RealCash in respect of Transaction Data, however caused;
8.10.3. The full amount of any payments made by RealCash in respect of invalid Transaction Data (it not already deducted from sums paid by RealCash to the Merchant);
8.10.4. The lull amount of all Chargebacks (it not already deducted from sums paid by RealCash to the Merchant);
8.10.5. The amount of any lees, fines, penalties and/or other charges payable by RealCash to a Card Scheme, or any other person, as a result of any failure by the Merchant to comply with this Agreement, or if the ratio of the Merchant’s aggregate Chargebacks to Transactions exceeds the relevant industry average (as determined by the Card Schemes from time to time) if not already deducted from sums paid by RealCash to the Merchant; and
8.10.6. Any other sums due and payable by the Merchant to RealCash under this Agreement.
RealCash Technologies Limited, company incorporated under the provisions of the Indian Companies Act, 1956, having its corporate office at Third Floor, B-2, 3rd Floor, Shankar Garden, Vikaspuri, Delhi-110018 (hereinafter referred to as “REALCASH”, which expression shall, unless repugnant to the context or meaning thereof, mean and include its successors and permitted assignees) of the First Part; And The person, details whereof are given in MERCHANT EMPANELMENT FORM (“MEF”), which is signed at the time of opting for REALCASH services (hereinafter referred to as “MERCHANT”) of the OTHER PART, which expression shall unless it be repugnant to the context or meaning hereof shall be deemed to mean and include –
1. in the case of MERCHANT being a sole proprietary concern / individual ‐ the heirs, administrators, executors, legal representatives and permitted assigns of the Proprietor;
2. in the case of MERCHANT, being a limited liability partnership/ partnership firm – the designated partners/ partners for the time being and from time to time of the firm, the survivor or survivors of them, their respective heirs, administrators, executors, legal representatives and permitted assigns and
3. in the case of MERCHANT, being a company – its directors, successors and assigns (as the case may be)
4. in the case of MERCHANT being a Trust, The trustees from time to time of the trust, administrators,
beneficiaries and the survivor or survivors of them, executors, legal representatives and permitted assigns (as the case may be)
5. in case of MERCHANT being a Society, the governing body managing person or beneficiaries (by whatever name called and as the case may be) of the Second Party;
MERCHANT and REALCASH are hereinafter individually referred to as “Party” and jointly as “Parties”.
1. MERCHANT is in the business as mentioned in “MEF” in India.
2. Whereas REALCASH is inter alia engaged in the business of providing software and mobile payment solutions, which includes enablement of transaction processing technology in its Point of Sale Application available on the smart phone in possession of the concerned Merchant (“POS Solution”) and other ancillary services to various third party merchants.
3. The Parties have provided certain information to each other at the time of enlisting and they have represented the same to be true and correct to the best of their knowledge and that they have not withheld any relevant information required to be made known to each other.
4. The Parties, upon the representations made to each other, have agreed to enter into an agreement in accordance with the terms set out below, and subject to the mutual indemnities, undertaking(s) and the declarations given by the Parties to each other.
5. Parties have decided to enter into this Agreement to reduce their intent and scope of contractual understanding on terms and conditions provided hereinafter.
6. The MERCHANT has read, fully understood, accepted and will continue to abide in good faith with the terms and conditions of the Wallet Service Provider (s) namely: MobiKwik Wallet, Freecharge Wallet, PayU money Wallet, Citrus Cash Wallet, Airtel Money Wallet available online at www.mobikwik.com,www.freecharge.in, www.payumoney.com, www.citruspay.com, www.airtel.in respectively.
7. Modification to this Agreement shall be binding, when this terms and conditions document is updated on the company website – www.realcash.in
8. Nothing in this‐ Agreement shall prohibit/restrict any Party from offering/rendering the services similar to those provided under this Agreement to any other Person (natural or non-natural).
9. The MERCHANT must maintain adequate records of ALL and ANY Transaction in connection with this agreement.
10. REALCASH shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties under this Agreement. 11. REALCASH disclaim all warranties, express or implied, written or oral, including, but not limited to, warranties and fitness for a particular purpose with respect to the Services or otherwise made as regards this Agreement. Merchant acknowledges and accepts that REALCASH’s Services may not be uninterrupted or error free.
12. Notwithstanding anything contained herein, REALCASH may refrain from taking any action which in its opinion, would or might contravene any law in any relevant jurisdiction, and do all such things in its opinion to comply with all applicable law.
13. The indemnities contained in this clause shall survive the termination of this Agreement.
14. MERCHANT has read through the agreement and agrees to not use the services, provided under this agreement, for sale of articles/goods or provision of services included in the ANNEXURE to MEF signed
15. The MERCHANT agrees that notwithstanding anything contained in this Agreement, the aggregate liability of REALCASH to the MERCHANT or any of them, for any action done, or omitted to be done under or pursuant to the terms and conditions of this Agreement or for any breach of any covenant or in tort, shall at all times be limited to INR 1000 (RUPEES ONE THOUSAND ONLY). Provided however that REALCASH shall not be liable for any indirect or consequential loss or damage, or special or punitive or exemplary damages, or loss of profit, business, revenue, goodwill or anticipated savings to the MERCHANT. REALCASH shall also not be liable for any liability, losses, damages, costs, expenses, (including legal fees, court fees and professional fees), suits and claims that are finally judicially determined to have resulted primarily from the negligence or infringing action of the Client or any other person.
16. However, in no circumstances shall either Party be liable to the other tort (including, without limitation, negligence) by reason of or in connection with this Agreement for loss (whether direct or indirect) of profits, business, goodwill or anticipated savings or for any consequential or indirect loss whatsoever.
17. IN CONSIDERATION OF THE SERVICES, REALCASH SHALL BE ENTITLED TO CHARGE A TRANSACTION DISCOUNT RATE (“TDR”) (EXCLUSIVE OF ALL APPLICABLE TAXES, WHICH SHALL BE ADDITIONALLY CHARGEABLE) TO THE MERCHANT ON THE PAYMENTS COLLECTED THROUGH REALCASH POS SOLUTION FOR EACH SUCCESSFUL TRANSACTION UNDERTAKEN BY A USER USING THE WALLET SERVICE PROVIDER WALLET THROUGH THE WALLET SERVICE PROVIDER PLATFORM ON THE REALCASH POS SOLUTION. THE DETAILS OF CHARGES LEVIED BY REALCASH, INCLUDING TDR, HAVE BEEN PROVIDED IN THIS AGREEMENT.
Now therefore, in consideration of the foregoing and the mutual covenants and promises contained herein and other good and valuable consideration the receipt and adequacy of which is hereby acknowledged, the Parties intending to be bound legally, agree as follows:-
In this Agreement, unless the context otherwise requires:
The role of REALCASH shall be limited to such functions as expressly laid out in this Agreement. No implied duties or obligations shall be read into this Agreement against REALCASH. REALCASH shall further not be bound by the provisions of any other agreement.
REALCASH shall not be liable or responsible for obtaining any regulatory or governmental or other approval in connection with or in relation to the transactions contemplated herein and shall not be in any manner obliged to inquire or consider whether any regulatory or governmental approvals have been obtained.
REALCASH shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties under this Agreement.
Although REALCASH adopts security measures it considers appropriate for the offer of the REALCASH Service, it does not assure or guarantee that no person will overcome or subvert the security measures and gain unauthorized access to the REALCASH Service or the POS Provider/Customer data. REALCASH shall not be responsible or liable if any unauthorized person hacks into or gains access to the REALCASH Service or to the Merchant REALCASH Account.
REALCASH may, in good faith, accept and rely on any notice, instruction or other document received by it under this Agreement as conclusive evidence of the facts and of the validity of the instructions stated in it and as having been duly authorized, executed and delivered and need not make any further enquiry in relation to it. REALCASH may act in conclusive reliance upon any instrument or signature believed by it, acting reasonably, to be genuine and may assume, acting reasonably, that any person purporting to give receipt, instruction or advice, make any statement, or execute any document in connection with the provisions of this Agreement has been duly authorized to do so. REALCASH shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document.
REALCASH shall not be liable to any person for any losses or damages arising out of or in connection with the performance or nonperformance of its obligations under this Agreement, except to the extent directly resulting from the fraud, willful default or gross negligence of REALCASH or any of its directors, officers, agents and employees. REALCASH may execute any of its powers and perform any of its duties under this Agreement directly or through appointed agents or attorneys.
No instructions shall be given to REALCASH which is not contemplated by or which is contrary to or inconsistent with this Agreement; and, in the event of any such instructions being given, the same shall be null and void and REALCASH shall not be obliged to act upon, and shall be entitled to ignore, such instructions and continue to comply with the provisions of this Agreement.
REALCASH shall not incur any liability and shall not be liable for any loss or damage to the any person whomsoever consequent to REALCASH not acting upon, and ignoring, any such instruction which is not contemplated by or which is contrary to or inconsistent with this Agreement. MERCHANT shall pay or reimburse REALCASH upon its request for any payments including penalties, fines and/or any statutory or regulatory charges and duties at any time in relation to this Agreement and any other related documents, whether at the time of execution or thereafter.
REALCASH shall not be obliged to supervise, control or perform any acts or responsibilities of the Parties or any other third party. Any act to be done by REALCASH shall be done only on a Business Day, during business hours, at Gurgaon, India and in the event that any day on which REALCASH is required to do an act, under the terms of the Agreement, is a day on which business is not, or cannot for any reason be conducted, then REALCASH shall do those acts on the next succeeding Business Day. Without prejudice to the other provisions of this Agreement, REALCASH shall not be obliged to make any payment or otherwise to act on any request or instruction notified to it under this Agreement if:
1. that the transactions as referred to in this Agreement and the underlying transactions are pursuant to/and in consonance and conformity with, all Applicable Law and all necessary regulatory and other approvals required for consummation of the transactions contemplated herein have been obtained;
2. that entering into this Agreement and the transactions referred to in this Agreement and taking any steps in respect thereof, do not and will not involve a breach of any contractual, statutory, regulatory, legal or other provision or obligation to which they are subject and that they have not taken and will not take any action and know of no matter as a result of which they would be in violation of;
3. that to the best of its knowledge, there are no claims, disputes, demands, awards, arbitrations orders of attachment, garnishee orders, injunctions or any other orders or proceedings, whether passed, pending, anticipated or threatened, against them, which would in any manner prevent any transaction contemplated by this Agreement from taking place in the manner contemplated by this Agreement;
4. it has read, fully understood, accepted and will continue to abide in good faith with the terms and conditions of the Wallet Service Provider (s) namely: MobiKwik Wallet, Freecharge Wallet, Payumoney Wallet, Citrus Cash Wallet and Airtel Money Wallet available online at www.mobikwik.com,www.freecharge.in, www.payumoney.com, www.citruspay.com and www.airtel.in respectively.
Each party, for itself and not for the others, represents and warrants to the others that:
1. it has the power and authority to execute this Agreement and perform its obligations hereunder;
2. its obligations under this Agreement constitute legal, valid and binding obligations enforceable in accordance with the terms of this Agreement; and
3. it is not aware of any legal, quasi-legal, administrative, arbitration, mediation, conciliation or other proceedings, claims, actions, governmental investigations, orders, judgments or decrees of any nature made, existing, threatened, anticipated or pending by or against it which may prejudicially affect the due performance or enforceability of this Agreement or any obligation, act, omission or transaction contemplated hereunder.
4. MERCHANT agrees to comply with Applicable Law pertaining to Know Your Customer (KYC), Anti-Money Laundering (AML) and Combating of Financing of Terrorism (CFT).
5. REALCASH being a mobile payments company agrees to put in place adequate information and data security infrastructure and systems for prevention and detection of frauds.
MERCHANT agrees to indemnify and hereby indemnifies and keeps harmless REALCASH (and without limitation, its directors, officers, agents and employees) (each an Indemnified Party), from and against any and all losses, liabilities, claims, actions, damages, fees and expenses claimed (including lawyers’ fees and disbursements) (together, Claims), arising out of or in connection with this Agreement, (save as are caused by the Indemnified Party’s own gross negligence or willful default and provided that such gross negligence or willful default has been determined by the final and non-appealable award or order of an arbitrator or of a competent court) or the breach of its representations and warranties or any of the terms of this Agreement or any Applicable Law. The provisions of indemnification of any Indemnified Party under this Agreement shall not be affected by any other terms set out in this Agreement and shall be in addition to any other rights which the Indemnified Party may have in law or otherwise. Notwithstanding the foregoing, under no circumstances will either party be liable to the other party for any consequential loss (inter alia, being loss of business, goodwill, opportunity or profit) even if advised of such loss or damage.GOVERNING LAW &JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of India and the courts of New Delhi shall have the exclusive jurisdiction to entertain all dispute arise between the Parties in relation to this Agreement. In the event any dispute arises between the Parties out of or in connection with this Agreement, including the validity thereof, the Parties hereto shall endeavor to settle such dispute amicably in the first instance. The attempt to bring about an amicable settlement shall be treated as having failed as soon as one of the Parties hereto, after reasonable attempts, which shall continue for not less than 15 (fifteen) days, gives a notice to this effect, to the other Party in writing. In case of such failure, the dispute shall be referred to a sole arbitrator, who shall be mutually appointed by the Parties. In the event the Parties are unable to mutually agree on the identity of the sole arbitrator in the manner specified above, then the arbitration proceedings shall be conducted by the three Arbitrators of which the first arbitrator shall be appointed by REALCASH, the second arbitrator by the Merchant and both such arbitrators appointed shall mutually appoint the third presiding arbitrator. The Arbitration proceedings shall be governed by the (Indian) Arbitration and Conciliation Act, 1996 and shall be held in New Delhi, India and the language of arbitration shall be English.
OFFLINE MODE OF BUSINESS IMPLIES BUSINESS TRANSACTIONS CONDUCTED IN PHYSICAL OUTLET/S OF THE MERCHANT.
IN CONSIDERATION OF THE SERVICES, REALCASH SHALL BE ENTITLED TO CHARGE A TRANSACTION DISCOUNT RATE (“TDR”) (EXCLUSIVE OF ALL APPLICABLE TAXES, WHICH SHALL BE ADDITIONALLY CHARGEABLE) TO THE MERCHANT ON THE PAYMENTS COLLECTED THROUGH REALCASH POS SOLUTION FOR EACH SUCCESSFUL TRANSACTION UNDERTAKEN BY A USER USING WALLET SERVICE PROVIDER WALLET THROUGH THE WALLET SERVICE PROVIDER PLATFORM ON THE REALCASH POS SOLUTION. THE DETAILS OF CHARGES LEVIED BY REALCASH, INCLUDING TDR, HAVE BEEN PROVIDED HEREIN THIS AGREEMENT.
AFTER DEDUCTING THE TDR (AND APPLICABLE TAXES, IF ANY), REALCASH SHALL TRANSFER THE REMAINING AMOUNT TO THE BANK ACCOUNT OF THE MERCHANT. THE DETAILS OF SETTLEMENT PERIOD AND BANK ACCOUNT OF THE MERCHANT HAVE BEEN PROVIDED IN THE MEF
SETTLEMENT PERIOD OF THE FUNDS – REALCASH will settle funds to the Merchant’s bank account by T + 3 Business Days*, where T is the date of the transaction.
Each Party represents and warrants that:
1. It is an entity duly constituted and validly existing under Indian law;
2. It holds necessary licenses, approvals and consents as may be required for the conduct of its business and such licenses, approvals and consents are valid and subsisting;
3. It has, in terms of applicable law and its constitution documents, capacity to enter into and perform this agreement and it has taken all actions required for entering into this agreement;
4. Neither execution nor performance of this agreement will result into violation of any law or conflicting with or will result in the breach or constitute a default or require any consent under any decree, order, judgment, indenture or agreement; and
5. It warrants to the other party that the representations made above shall continue to be true during the period of this agreement. No provisions of this agreement shall be interpreted in favor of or against any party by reason of the extent to which such party or its counsel participated in the drafting hereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof.