General Service Agreement
This document is an electronic record in terms of Information Technology Act, 2000 and rules made 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 document is published in accordance with the provisions of Rule 3 (1) of the Information Technology (Intermediaries guidelines) Rules, 2018 that require publishing the rules and regulations, privacy policy and Terms of Service for access or usage of the Service.
This SERVICES AGREEMENT (the "Agreement") is made and executed:
BETWEEN
EVERYSCOPE COMMUNICATIONS PRIVATE LIMITED, a company incorporated under the provisions of the Companies Act, 2013, having its Registered Office at 69/P/4, K G School Road (Extension), Barrackpore, Kolkata - 700122, N24PGS, West Bengal, India, (hereinafter referred to as "Aircash/Company" which expression shall unless repugnant to the subject or context thereof mean and include its successors and assigns) of the "ONE PART";
AND
The "OTHER PART" is the MerchantPartner/Aggregator/Distributor who has signed up for the services of Everyscope Communications Private Limited;
- In case the MerchantPartner/Aggregator/Distributor is a company or limited liability partnership (LLP) by constitution incorporated under the Companies Act, 2013 or Limited Liability Partnership Act, 2008 including its successors and permitted assigns thereof;
- In case the MerchantPartner/Aggregator/Distributor is a partnership firm by constitution formed under the Partnership Act, 1932, the partners for the time being and from time to time and their respective legal heirs. executors and administrators of last such surviving partner;
- In case the MerchantPartner/Aggregator/Distributor is an individual or a sole proprietary firm by constitution including his/her heirs, administrators, legal representatives, and executors thereof;
- In case the MerchantPartner/Aggregator/Distributor is a joint Hindu Undivided Family (HUF), by constitution, the Karta and any or each of the adult members of the HUF and their survivor(s); and his / her / their respective heirs, legal representatives, executors, administrators and permitted assigns thereof;
- In case the MerchantPartner/Aggregator/Distributor is the governing body of a Society. by constitution respective successors of the members of the governing body and any new members elected, appointed, or co-opted thereof;
- In case the MerchantPartner/Aggregator/Distributor is a trust, by constitution the trustee or trustees for the time being thereof and their successors and assigns.
Aircash and the MerchantPartner / Aggregator / Distributor may, wherever the context so permits, be referred to, collectively as the “Parties” and individually as a “Party".
WHEREAS: -
Aircash is involved in the business of providing complete payment solution. enabling individuals and businesses of all sizes to easily manage their payment activities. Aircash is desirous, upon Merchant's request to provide the Services to the MerchantPartner/Aggregator/Distributor directly or through Aggregators/Distributors using Digital Payments such as Aadhaar Enabled Payment Systems (AEPS), Unified Payment Interface (UPI), Immediate Payment system (IMPS), Bill Payments using BBPS, prepaid instruments including Mobile Wallets or any such other prevailing payment systems. Such Services are provided in detail under Schedule I of this Agreement;
The Company is now desirous of collaborating with various entities of goods and services by associating them as their MerchantPartner/Aggregator/Distributor to enable the Company to expand their network for providing services more particularly described in the Second Schedule hereunder written;
The MerchantPartner/Aggregator/Distributor has expressed desire of engaging with the Company to assist the Company in appointing various retail partners in various cities, managing such retail partner and in certain cases also dissemination of services to such retail merchant partner;
The MerchantPartner/Aggregator/Distributor has submitted information to the Company and the Company has verified the contents in the application form as a part of Company`s verification process;
The Parties are desirous of entering into this Agreement to record their respective rights and obligations as agreed between them in respect of the aforesaid business activities in accordance with the terms and conditions set out herein;
By Signing up in the Aircash App, the MerchantPartner/Aggregator/Distributor offers to receive and, subject to acceptance of the offer and the payment of the relevant fee and charges by the MerchantPartner/Aggregator/Distributor, the MerchantPartner/Aggregator/Distributor agrees with Aircash to receive payment processing facilities and services on the terms set out in this Agreement and agrees to comply with all the terms and conditions provided in this Agreement and other applicable laws including but not limited to the regulations. rules. directives, notifications issued by the regulatory authorities, including Reserve Bank of India (RBI), Unique Identification Authority of India (UIDAI) and National Payments Corporation of India (NPCI), from time to time. It is hereby clarified that Fin in its sole discretion reserves the right to accept or reject the liaitions of MerchantPartner/Aggregator/Distributor.
NOW THEREFORE, THIS DISTRIBUTION AGREEMENT WITNESSETH AND THE PAR-TIES HERETO AGREE AS FOLLOWS:
DEFINITIONS
“Aadhaar Authentication Services” shall mean the authentication services provided by UIDAI whereby the personal identity information of/data of an Aadhaar-holder is matched with their personal identity information/data that is stored in the UIDAI’s Central Identity Data Repository in order to provide Aadhaar Enabled Payment Services or/and UPI Services to such Aadhaar holder. The Company avails Aadhaar authentication service by establishing a connection with UIDAI’s Central Identity Data Repository (CIDR), through NSDL e-Governance Infrastructure Limited;
“Aadhaar Details” shall mean Aadhaar Number/Card Number/Pin, Demographics Information, Biometrics Information and Aadhaar associated one –time PIN associated with an Aadhaar/Card Holder;
“Aadhaar Holder” shall mean an individual who holds an Aadhaar Number/Card Number/Pin;
"Aadhaar Number/Card Number/Pin” shall mean the unique identification number issued by UIDAI;
"Acquiring Bank” shall mean a Commercial Bank, authorized by RBI to operate in India and which has allowed the Company to integrate with its payment gateways such as cards, wallets, AEPS, IMPS, NEFT, RTGS, NACH, UPI, BBPS etc. for the purposes of routing the payment request of the payer and facilitated collection of Authentication Parameters in the prescribed format for the purpose of further routing it to the Issuing Bank for authorization of such payment request and receive the payment confirmation from the Issuing Bank;
"AEPS Services” shall mean Aadhaar Enabled Payment System, a multi-platform operable payment network solution which is being provided by NPCI for the purpose of inter- bank transfer of funds, balance enquiry, Cash deposit, cash withdrawal, remittances that are intrabank or interbank in nature using Aadhaar Authentication Services, pursuant to the rules, regulations and guidelines issued by NPCI, UIDAI, Reserve Bank of India and the Banks, from time to time;
"Agreement” shall mean this agreement, all its schedules, amendments thereto made from time to time and all related deeds, documents and writings in connection with the transaction contemplated herein;
"Agent” or “CSP” or “Customer Service Point” or “Bank Mitra” or "Aircash App / API User" shall mean MerchantPartner / Aggregator / Distributor’s personnel who facilitate the Customer Service(s)/ Non-Customer Service(s)/ Enrolment process.
"Applicable Law” includes all applicable Indian statutes, enactments, acts of the state legislature or parliament, laws, ordinances, rules, bye-laws, regulations, notifications, guidelines, directions, directives and orders of any governmental authority, statutory authority, board, recognized stock exchange, as may be applicable including but not limited to Guidelines on managing Risks and Code of Conduct in Outsourcing of Financial Services by Banks, Business Correspondent Guidelines issued by RBI from time to time, Payment & Settlement Systems Act, 2007, Payment & Settlement Systems Regulations, 2008, Policy Guidelines on Issuance and Operation of Pre-paid Payment Instruments in India;
"Amount” shall mean the payment amount in question which is required to be transferred from the Payer to the MerchantPartner / Aggregator / Distributor via the Company as part of the Transaction;
"Affiliate" means with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with, such entity, except with respect to Aircash, "Affiliate" means solely its Affiliates domiciled in India.
"Aircash Site" means www.aircash.in, www.aircash.co.in, www.arcash.in, www.arcash.co.in, www.py2.in, www.everyscope.co.in;
"Aircash App" means https://play.google.com/store/apps/details?id=com.aircash.app;
"Authorization” means the process by which the Company routes the said transaction through the Acquiring Bank using any of the payment systems such as AEPS, IMPS, NEFT, RTGS, UPI, BBPS etc. and communicates the approval of the Issuing Bank for the said Transaction using third party authentication services and infrastructure, as stipulated by the Acquiring Bank and approved by NPCI from time to time. Such Authorization approval may be communicated to the MerchantPartner / Aggregator / Distributor on the Mobile POS Device or on the MerchantPartner / Aggregator / Distributor’s web page or by any such other mode mutually agreed between the MerchantPartner / Aggregator / Distributor and Company from time to time;
"Authentication” shall mean the process by which the identification parameters of an individual Payer as prescribed by the respective payment system as per the relevant nodal body such as NPCI and approved by the Acquiring and Issuing Banks from time to time, is submitted to the Central Identities Data Repository or Acquiring Bank or NPCI or Card Scheme operator for its verification and such Repository verifies the correctness, or the lack thereof, on the basis of information available with it;
"Authentication Credentials” shall mean password, biometrics, PIN, OTP, card, mobile number, mobile handset identifier etc., as provided by the Banks or Regulators from time to time, which shall be required by the Payer for completion of the transfer of funds through any of the aforesaid payment systems;
"Biometric Information” shall mean ten finger prints and iris image, captured by UIDAI, as a part of the enrolment process for issuance of Aadhaar Number/Card Number/Pin;
"Business” shall mean such business activity in which the MerchantPartner / Aggregator / Distributor is normally engaged in;
"Business day” means any day that is not a Saturday, Sunday or other day on which banks are required or authorized by Law to be closed in India;
"Chargeback” means a Transaction that is returned to the Acquiring Bank by the Issuer, or any Transaction where the amount paid by a Payer remains uncollectable due to any reason whatsoever;
"Chargeslip” means the form used by the MerchantPartner / Aggregator / Distributor in a format provided by the Company to enable the MerchantPartner / Aggregator / Distributor to record charges, transaction details and obtain the Payer’s signature or electronic consent thereby authorizing the MerchantPartner / Aggregator / Distributor to debit Payer’s bank account or third party e-wallets;
"Company” means Everyscope Communications Private Limited, a company incorporated under the provisions of the Companies Act, 2013 having its registered office at 69/P/4, K G School Road (Extension), Barrackpore, Kolkata - 700122, N24PGS, West Bengal, India;
"Commission” means the commission payable to the Company by MerchantPartner / Aggregator / Distributor or vice versa depending on type of Transaction for facilitating a Transaction under the terms of this Agreement;
"Currency" means Indian Rupees (INR);
"Content" means copyrightable works and other content protected under applicable Law;
"control” includes the power to direct the management and policies of an entity, whether through the ownership of voting capital, by contract or otherwise;
"MerchantPartner / Aggregator / Distributor” shall mean the person(s) named in First Schedule hereof and authorised by Aircash to market, solicit and onboard new MerchantPartner / Aggregator / Distributor for and on behalf of Aircash;
"MerchantPartner / Aggregator / Distributor Account” means the bank account maintained by MerchantPartner / Aggregator / Distributor for the crediting of the collected funds and the debiting of the fees and charges under the terms of this Agreement;
"encumbrance” includes a mortgage, charge, lien, pledge, hypothecation, security interest or any lien or any right of any description whatsoever;
"e-KYC authentication facility” means a type of authentication facility in which the biometric information and/or OTP and Aadhaar Number/Card Number/Pin securely submitted with the consent of the Aadhaar Number/Card Number/Pin holder through a requesting entity, is matched against the data available in the CIDR, and the Authority returns a digitally signed response containing e-KYC data along with other technical details related to the authentication transaction;
"Excessive Activity” means, during any monthly period and for any one of MerchantPartner / Aggregator / Distributor’s terminal identification numbers or MerchantPartner / Aggregator / Distributor identification numbers, Chargebacks and/or retrieval requests in excess of 5% of the average monthly amount of Transactions or returns in excess of 5% of the average monthly amount of Transactions;
"Aircash” the brand name in which the Company is operating;
"Aircash M-ATM/POS Device” shall mean a device provided by the Company to the MerchantPartner / Aggregator / Distributor to deliver basic banking services. This device seek authentication of Aadhaar /Card Holders identity to enable them to use AEPS, UPI, Micro-ATM or/and Partner Third Party Services to make payment for the goods or/and services provided by the MerchantPartner / Aggregator / Distributor;
"Aircash Application” means the Aircash Mobile Application or Web Application powered by the company which can be used in a mobile/tablet/desktop/laptop running on Android platform or IOS or windows and created and belonging to the Company;
"Aircash Per Transaction Charges” includes the charges payable to the various stake holders which includes the Acquiring/issuing banks, Switching Service Providers, Authentication Service Providers and it also includes the charges for the Value Added Services provided by Aircash. This charge will be levied on each and every transaction processed successfully by Aircash;
"Issuing Bank” shall mean a Commercial Bank, authorized by RBI to operate in India and which holds the valid accounts of the Payers who are desirous of availing the Services from the MerchantPartner / Aggregator / Distributor and which on receipt of the request to debit the payer’s account by the Payer along with the relevant Authentication Parameters and routed by Aircash through the Acquiring Bank as per the prescribed format of the relevant payment system, either approves or declines such request and communicates such decision in the relevant format. The Issuing Bank by virtue of authorizing the payment request agrees to make the payment to the MerchantPartner / Aggregator / Distributor as per the rules prescribed by the relevant payment system;
"Law” includes any constitution, statute, law, rule, regulation, ordinance, judgment, order, decree, authorization, or any published directive, guideline, requirement or governmental restriction having the force of law, or any determination by, or interpretation of any of the foregoing by, any judicial authority, whether in effect as of the date of this Agreement or thereafter and each as amended from time to time;
"Micro ATM Services” shall mean the basic banking services through M-ATM device of the Company, viz., deposit, withdrawal, fund transfer and balance enquiry that are to be given to card holders after verification of their authenticity using UID of card holders;
"NPCI” shall mean National Payments Corporation of India, a company incorporated in India under Section 25 of the Companies Act, 1956 and having its registered office at 1001A, B wing 10th Floor, The Capital, Plot 70, Block G, Bandra- Kurla Complex, Bandra (East), Mumbai – 400 051, and acting as the settlement, clearing house, regulating agency for UPI, AESP and other e-payment services with the core objective of consolidating and integrating the multiple payment systems with varying service levels into nation-wide uniform and standard business process for all retail payment systems;
"NSDL” means NSDL e-Governance Infrastructure Ltd., a company incorporated under the provisions of the Companies Act, 1956having its registered address at First Floor, Times Tower, Kamala Mills Compound, Senapati Bapat Marg, Lower Parel, Mumbai – 400 013 which provides Aadhaar Authentication Services as per the terms and conditions of UIDAI;
"Partner Third Party Services” refers to such services offered by third parties in collaboration with Aircash, including but not limiting to e-wallets and bill payment services;
"Payable Amount” means the amount payable to the MerchantPartner / Aggregator / Distributor, calculated after deducting Commission, Chargebacks and other deductibles from the Transaction Amount;
"Payer” shall mean any person holding a banking account and who desires to pay money to the MerchantPartner / Aggregator / Distributor for purchase of goods or/and services of the MerchantPartner / Aggregator / Distributor using the Aircash Services;
"Personal Identity Data (PID)” refers to Aadhaar-based Personal Identity Data / Information including biometric and demographic information as well as the OTP used for Authentication;
"Person” includes an individual, statutory corporation, body corporate, partnership, joint venture, association of persons, Hindu Undivided Family (HUF), societies (including co-operative societies), trust, unincorporated organization, government (central, state or otherwise), sovereign state, or any agency, department, authority or political subdivision thereof, international organization, agency or authority (in each case, whether or not having separate legal personality) and shall include their respective successors and assigns and in case of an individual shall include his legal representatives, administrators, executors and heirs and in case of a trust shall include the trustee or the trustees for the time being;
"Merchant Partner/s” shall mean the potential partner engaged by the Company as Merchant Partner;
"Service” shall mean and include an access provided by Aircash of its software, programs, documentation, tools, internet-based services, mobile-devices-based services, biometric devices, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) to the MerchantPartner / Aggregator / Distributor by Aircash;
"Transaction” means an act between a Payer and MerchantPartner / Aggregator / Distributor towards purchase of goods or services or otherwise from the MerchantPartner / Aggregator / Distributor;
"Transaction Amount” means the consideration payable for purchase of goods or services, or otherwise by the Payer to the MerchantPartner / Aggregator / Distributor;
"Your Account" means the particular account in our systems, in which information about Your Transactions is recorded, and which is one of the online portals and tools which Amazon may make available to you, for your use in managing your orders, inventory and presence on the Aircash App/Site;
"Your Materials" means all Technology, Your Trademarks, Content, Required Product Information, data, materials, and other items provided or made available by you or your Affiliates to Aircash or its Affiliates;
"Your Product" means any product that is made available for listing for sale, offered for sale or sold by you through the Selling on Aircash Service and/or fulfilled or otherwise processed through the Fulfilment by Aircash Service in connection with Your Account, or made available for advertising by you through Aircash Biz Circle;
"UIDAI” shall mean the Unique Identification Authority of India, which is a government agency based in New Delhi that serves as the issuing authority for Aadhaar unique identification numbers (UIDs) and cards;
"UPI Services” shall mean Unified Payment Interface, a multi-platform operable payment network solution which is being provided by NPCI for the purpose of inter- bank transfer of funds i.e., pay someone (push) or collect from someone (pull) pursuant to the rules, regulations and guidelines issued by NPCI, Reserve Bank of India and the ICICI Bank, from time to time;
"VAN” shall mean Virtual Account Number, an online account supporting affiliates (company or financial institution) which have multiple clients for collecting sales proceeds (or commission) by assigning virtual account number to each client, facilitating payment collection;
"VPA” shall mean Virtual Payment Address, an address that is used to identify an individual or a business on UPI. UPI allows customers and businesses to transfer funds instantly. The payer does not need to fill in the recipient’s bank account details to make the payment. It can simply be done by entering the recipient’s VPA;
INTERPRETATION
In this Agreement, unless the contrary intention appears: a reference to an agreement / document / undertaking / deed / instrument / in-denture / writing includes all amendments made thereto from time to time as also all schedules, annexures and appendices thereto;
An “amendment” includes a supplement, modification, novation, replacement or re-enactment and “amended” is to be construed accordingly;
“Authorization” includes an authorization, consent, clearance, approval, permission, resolution, license, exemption, filing and registration;
the singular includes the plural (and vice versa);
the headings in this Agreement are inserted for convenience of reference only and are to be ignored in construing and interpreting this Agreement;
reference to the words “include” or “including” shall be construed without limitation;
reference to a gender shall include references to the female, male and neuter genders;
all approvals, permissions, consents or acceptance required from the Company for any matter shall require the “prior”, “written” approval, permission, consent or acceptance of the Company;
in the event of any disagreement or dispute between the Company and the MerchantPartner / Aggregator / Distributor regarding the materiality or reasonableness of any matter including of any event, occurrence, circumstance, change, fact, information, document, authorization, proceeding, act, omission, claims, breach, default or otherwise, the opinion of the Company as to the materiality or reasonableness of any of the foregoing shall be final and binding on the MerchantPartner / Aggregator / Distributor;
the term “Aircash” and “Company” has been interchangeably used in this Agreement;
All capitalized terms used but not specifically defined; herein shall have the respective meanings ascribed to them under the relevant Schedule(s);
in a Schedule shall have the respective meanings ascribed to them in the main body of this Agreement or in the other relevant Schedule(s).
SCOPE OF THIS AGREEMENT
During the term of this Agreement, the MerchantPartner / Aggregator / Distributor shall identify and refer to the Company, persons operating within the territory for appointment as potential Retail Partners / MerchantPartner of the Company with respect to facilitation of the company services (“Potential Partner/s”);
Prior to referring any person as Potential Partner/s, the MerchantPartner / Aggregator / Distributor shall conduct a thorough due diligence that: (i) such Potential Partner fulfill the criteria set out by the Company with respect to appointment of Retail Partner/s; and (ii) such Potential Partner has the ability to carry out a financial transaction on the platform using the company services. It is agreed and declared by the Parties for the avoidance of doubt that the Company at its sole discretion and with or without providing any reason may reject any Potential Partner to be appointed/engaged as Retail Partner; Simultaneous with the execution of these presents, the MerchantPartner / Aggregator / Distributor shall provide a Security Deposit of a sum of Rs. 10000.00/- to the Company; The MerchantPartner / Aggregator / Distributor shall execute this Agreement as the Company requires it to register with Aircash. The aforesaid Agreement shall be stamped/franked for such amount as mentioned under the Applicable Law; The MerchantPartner / Aggregator / Distributor’s license shall be evidenced by a MerchantPartner / Aggregator / Distributor code assigned by Aircash to the MerchantPartner / Aggregator / Distributor.
CONSIDERATION
In consideration of the Company providing license to the MerchantPartner / Aggregator / Distributor to electronically access and use the Service as may be agreed to be provided by Aircash along with the electronic device/equipment to accept and receive payments and to manage the funds, the MerchantPartner / Aggregator / Distributor agrees to distribute and make available the services of the Company to the public at large and receive the Transaction Amount;
The Company shall be entitled to receive/deduct any other service fee from MerchantPartner / Aggregator / Distributor for any services provided by Aircash to MerchantPartner / Aggregator / Distributor as may be specified by the Company from time to time;
The MerchantPartner / Aggregator / Distributor may be entitled commission, discount or service fees, or such other remuneration for the services as may be specified by the Company from time to time;
The MerchantPartner / Aggregator / Distributor shall be responsible for payment of its own Taxes, of whatever nature, in respect of all sums payable by the Company to the MerchantPartner / Aggregator / Distributor under this Agreement;
Aircash shall impose such charges and fees as mentioned in the Third Schedule of this Agreement. MerchantPartner / Aggregator / Distributor understands and agrees that such charges and fees may be revised or changed at any time without any prior notice by Aircash;
Aircash grants the MerchantPartner / Aggregator / Distributor a limited, non-exclusive, revocable and non-transferable license (hereinafter referred to as “MerchantPartner / Aggregator / Distributor’s License”), to electronically access and use the Service as may be agreed to be provided by Aircash along with the electronic device/equipment to accept and receive payments and to manage the funds the MerchantPartner / Aggregator / Distributor so receives. MerchantPartner / Aggregator / Distributor shall be entitled to update of the service, subject to any additional terms made known to MerchantPartner / Aggregator / Distributor at that time, when Aircash makes these updates available.
The MerchantPartner / Aggregator / Distributor shall not have the right to sub-license;
The Parties hereby agree, declare and confirm that upon MerchantPartner / Aggregator / Distributor being granted the access to the MerchantPartner / Aggregator / Distributor Account, the financial transaction of MerchantPartner / Aggregator / Distributor paying the amounts to the Company shall become irreversible and irrevocable;
The MerchantPartner / Aggregator / Distributor shall provide necessary instructions to its bank or any other financial service provider, assisting and enabling this transaction, in a form prescribed by the Company, ensuring that no Chargeback shall be permitted for the said transaction;
Authorization to Post Entries in MerchantPartner / Aggregator / Distributor’s Account MerchantPartner / Aggregator / Distributor irrevocably authorizes Aircash to debit the MerchantPartner / Aggregator / Distributor Account for fees, Chargebacks, returns, fines, customer complaints through bank or directly and any other penalties or amounts owed under this Agreement. In the event the MerchantPartner / Aggregator / Distributor Account lacks sufficient funds or the entry cannot be posted by Aircash, MerchantPartner / Aggregator / Distributor authorizes Aircash to post the entries and cause the resultant debits/credits, upon request by Aircash, before the close of the banking hours for the day or debit the amount from the consecutive trans-action amount to be settled to the MerchantPartner / Aggregator / Distributor. Further, it is agreed by and between the parties hereto that in the event the MerchantPartner / Aggregator / Distributor lacks sufficient funds or if an entry cannot be posted by Aircash then in that event the MerchantPartner / Aggregator / Distributor agrees and undertakes to pay such amounts to Aircash;
Change in MerchantPartner / Aggregator / Distributor Account MerchantPartner / Aggregator / Distributor shall procure prior written consent of Aircash before changing the MerchantPartner / Aggregator / Distributor Account. MerchantPartner / Aggregator / Distributor agrees that upon change in MerchantPartner / Aggregator / Distributor Account, the Distributor/Aggregator Account Verification process shall be re-performed on the new MerchantPartner / Aggregator / Distributor Account, before any credits on account of Payable Amounts can be posted to new MerchantPartner / Aggregator / Distributor Account. The MerchantPartner / Aggregator / Distributor shall also pay Aircash the required charges for carrying out such change, as mentioned under this Agreement;
Reserve Account MerchantPartner / Aggregator / Distributor hereby authorizes Aircash to establish a Reserve Account, with or without prior notice to MerchantPartner / Aggregator / Distributor, at any time prior to, or after termination of this Agreement, to ensure the recovery of any liabilities owed by them or reasonably anticipated by Aircash in their sole discretion to be owed by MerchantPartner / Aggregator / Distributor pursuant to this Agreement. In addition, MerchantPartner / Aggregator / Distributor further agrees:
Liabilities to be paid from the Reserve Account include but are not limited to those arising out of actual and/or potential post termination Chargebacks, as well as any and all post-termination fees, charges and expenses due or anticipated to be due to Aircash from MerchantPartner / Aggregator / Distributor;
The Reserve Account may be funded and/or replenished by Aircash by withholding or withdrawing from, or freezing all or any part of, the account and/or any other deposit accounts maintained by MerchantPartner / Aggregator / Distributor and/or Guarantor at any bank, wherever found by any means available;
Aircash may enforce its security interest in the Reserve Account without notice on demand being first made to MerchantPartner / Aggregator / Distributor. Aircash’s right to amounts owed to it by MerchantPartner / Aggregator / Distributor pursuant to this Agreement, shall in no way, be limited by the balance or existence of the Reserve Account.
Aircash's rights with respect to the Reserve Account, as well as the security interest granted Aircash under this Agreement, shall survive the termination of this Agreement.
Unusual and Suspicious Transactions/ Account Monitoring MerchantPartner / Aggregator / Distributor acknowledges that Aircash shall monitor MerchantPartner / Aggregator / Distributor’s daily deposit activity for purposes of monitoring compliance with this Agreement. MerchantPartner / Aggregator / Distributor further agrees that Aircash may, at its sole discretion suspend the disbursement of MerchantPartner / Aggregator / Distributor’s funds for any reasonable period of time in order to investigate suspicious or unusual deposit activity and that such suspension may subject the MerchantPartner / Aggregator / Distributor to additional suspension fees as set forth herein. Aircash shall make good faith efforts to notify MerchantPartner / Aggregator / Distributor as promptly as is commercially reasonable. Aircash shall have no liability for any losses, either direct or indirect, which MerchantPartner / Aggregator / Distributor may attribute to any suspension of funds disbursement or otherwise;
In the event of suspension arising from a suspicious or unusual Transaction, MerchantPartner / Aggregator / Distributor agrees that MerchantPartner / Aggregator / Distributor’s account may be charged a Security Processing Fee of Rupees One thousand Rs.1,000/- (Rupees One Thousand Only) per suspended Transaction, and, if the suspended Transaction or unusual or suspicious activity exceeds Rs. 10,000, an additional INR 1,000 Investigative Fee may be assessed for each such event. The MerchantPartner / Aggregator / Distributor undertakes to indemnify and keep indemnified the Company for any such suspicious and/or unusual activity and take absolute responsibility of the same;
MerchantPartner / Aggregator / Distributor’s presentation to Aircash of Excessive Activity shall be a breach of the Agreement and a cause for immediate termination of this Agreement. MerchantPartner / Aggregator / Distributor authorizes, upon the occurrence of Excessive Activity, Aircash to take additional actions as it may deem necessary, including, but not limited to, suspension of processing privileges or creation or maintenance of a Reserve Account in accordance with this Agreement or levying penalty as the Company may deem fit and proper.
OBLIGATIONS OF MERCHANT-PARTNER/DISTRIBUTOR/AGGREGATOR
MerchantPartner / Aggregator / Distributor represents and warrants to the Company that the execution and delivery by the MerchantPartner / Aggregator / Distributor of this Agreement does not, and the performance by the MerchantPartner / Aggregator / Distributor of its obligations hereunder shall not, with or without giving notice:-
Violate any judgment, writ, injunction or order of any court, arbitrator or governmental agency, applicable to the MerchantPartner / Aggregator / Distributor;
Conflict with result in the breach of any provisions of or the termination of, or constitute a default under any, agreement to which MerchantPartner / Aggregator / Distributor is or may be bound, including, without limitation, any non-competition, non-solicitation agreement or similar agreement.
MerchantPartner / Aggregator / Distributor agrees and undertakes the following:-
It shall at all times ensure compliance with the laws, the provisions of this Agreement, RBI, NPCI and Bank’s Business Correspondent guidelines and Company rules and policies and shall also ensure Onboarding is compliant with the Bank Guidelines issued from time to time;
It shall not at any point undertake or facilitate, through any officer, employee, agent of the Company, any cash collection or settlement and shall indemnify and hold harmless the Company from any loss arising out or in relation to such cash transaction/collection;
It shall ensure that the potential partners shall meet the financial and legal eligibility criteria for Retail Partner as intimated by the Company from time to time;
It shall make correct and accurate representations of the services offered by the Company;
It shall not at any point in time make any communication regarding the services to any person unless and until authorised by the Company;
It shall immediately intimate the Company of any violation of the terms of the retailer agreement and/or the terms and conditions of an agreement made between the Company and the Retail Partner, or of any other circumstances that can cause damage to the business and goodwill reputation of the Company;
It shall undertake the complete responsibility of any fraud, unauthorized transaction, phishing attack on customer cards, tampering with Aircash M-ATM Device and/or SDK, chargebacks, refunds, arbitration cases, unlawful activities etc. using the payment processing services of the Company and the MerchantPartner / Aggregator / Distributor shall also indemnify, on demand, the Company for any loss or harm as such;
It shall work exclusively for the Company during the Term and shall not provide its services to any other person, unless permitted by the Company in writing;
During the Term, it shall not directly/indirectly, either individually or through any Person (including through its employees, affiliates or relatives or in a firm where the MerchantPartner / Aggregator / Distributor or any relative or nominee of the MerchantPartner / Aggregator / Distributor is a partner, or in any Company where the MerchantPartner / Aggregator / Distributor or any relative or nominee of the MerchantPartner / Aggregator / Distributor is a director/shareholder:
be appointed as a distributor/strategic business partner/retail partner for any other Person that is carrying out any business that is similar in nature to the business carried by the Company and/or the related entities; and/or;
engage or be interested (as a stockholder, director, officer, trustee, consultant or otherwise) either individually or through any Person, in any other business, which undertakes, anywhere in India or elsewhere, any activity, which is competitive with the Companys and/or Related Entities business activity without the prior written consent of the Company, which consent may be withheld at the Companys sole discretion.
It shall not encroach upon/solicit business in the territories assigned to other business partners, distributors or retailers of the Company. In the event of disputes between the MerchantPartner / Aggregator / Distributor and any such other business partner of the Company, such disputes shall be resolved by an officer appointed by Company in this regard, whose decision shall be final and binding;
It shall maintain accurate and proper accounts of all transactions between the Retail Partner/s and itself in the form prescribed and updated by the Company from time to time;
It shall observe proper ethics and transparency in all its actions in the course of provisions of the Services and shall not in any circumstances, take any action or make any statement that may mislead any Retail partner, consumer and/or potential partner;
It shall bear the costs of providing any discounts that it offers and not approach the Company to recover such amounts/costs;
It shall promote the sale of Company`s products/services in accordance with the guidelines issued by the Company from time to time;
It shall make all efforts to settle any disputes that may arise between the Retail Partners and the consumers amicably and in the event any such dispute is referred before a consumer forum or any competent authority then in that event, it shall provide all assistance in settlement of the dispute;
It shall intimate the Company of any change in the constitution and/or location of its office and other place of business;
It shall use its best endeavours and take such steps as the Company may reasonably require ensuring that its management and staff keep confidential the contents of this Agreement and/or all information they obtain about Company’s business which is not available to the general public;
It shall upon a request made by the Company in writing in this regard:
Immediately freeze all amounts held in MerchantPartner / Aggregator / Distributor Business Account and/or Retail Partner account;
Remit/transfer/return to Company such amounts as is indicated by the Company and/or;
Undertake all such actions as is required by the Company in the event of any authorised and/or erroneous transfer made to and/or by the MerchantPartner / Aggregator / Distributor and/or the Retail Partner.
It agrees and acknowledges that the services provided by the Company including company service is provided on “as is” and “as available” basis and that the use of Company Service by MerchantPartner / Aggregator / Distributor is at its own risk;
It is aware that the Company does not warrant, endorse, guarantee or assume responsibility for any product or service advertised or offered by a third party including the financial services being provided by various service provider through the Company Services or any platform or any hyperlinked website/service;
It shall not without the prior written approval of the Company, either on its invoices, letterheads or any other place or by any other means, orally or in writing, make any statement or representation, calculated or liable to induce others to believe that the MerchantPartner / Aggregator / Distributor is the agent of the Company or do any act, deed or things to bind the Company in any way dealing with any third party/ies.
TERMS OF SERVICES
MerchantPartner / Aggregator / Distributor shall be entitled to update service, subject to any additional terms made known to MerchantPartner / Aggregator / Distributor at that time, when Aircash makes these updates available;
The MerchantPartner / Aggregator / Distributor shall duly fulfil all Transactions in accordance with the instructions of the Payer and as mutually decided between the MerchantPartner / Aggregator / Distributor and its Payer and shall not dispute or dishonor them for any reason whatsoever, other than reasons as mentioned herein or upon mutual agreement between the Payer and the MerchantPartner / Aggregator / Distributor;
MerchantPartner / Aggregator / Distributor shall not deposit duplicate Transactions. MerchantPartner / Aggregator / Distributor shall be debited for any duplicate Transactions and shall be liable for any Chargebacks that may result there from;
The MerchantPartner / Aggregator / Distributor shall ensure to keep confidential all information submitted by the Payers on the MerchantPartner / Aggregator / Distributor’s Platform. The MerchantPartner / Aggregator / Distributor shall ensure that there are proper encryption and robust security measures to prevent any hacking of the information of the Payers. The Payer shall not be required or asked to disclose any confidential or personal data, which may be prejudicial to the interests of the Payer. The MerchantPartner / Aggregator / Distributor shall use the Payer's data only for the purpose of completing the Transaction for which it was furnished and shall not sell or otherwise furnish such information to any third party;
The MerchantPartner / Aggregator / Distributor shall take all precautions as may be required or as may be directed by Aircash, the NPCI, RBI, UIDAI and other relevant parties to ensure that there is no breach of security of the Aircash software, apps, and/or the link between both parties is maintained at all times during the term of the contractual arrangement between the MerchantPartner / Aggregator / Distributor and Aircash;
The MerchantPartner / Aggregator / Distributor shall permit the authorized representatives of Aircash to carry out physical inspections of the place(s) of business and records to verify compliance during normal business hours of the MerchantPartner / Aggregator / Distributor without prior written notice. The MerchantPartner / Aggregator / Distributor shall permit the authorized representatives of Aircash to audit the MerchantPartner / Aggregator / Distributor’s premises and the Aircash M-ATM/POS Device provided to MerchantPartner / Aggregator / Distributor to verify compliance to security guidelines without giving prior written notice;
The MerchantPartner / Aggregator / Distributor shall provide a reasonable level of service support to the Payers which support shall include appropriate notice to Payers of means of contacting the MerchantPartner / Aggregator / Distributor in the event the Payer has questions regarding the nature or quality of the products and/or services and the procedures for resolving disputes;
The MerchantPartner / Aggregator / Distributor agrees and confirms that all risks associated with the delivery of the products and/or services by the MerchantPartner / Aggregator / Distributor shall be solely that of the MerchantPartner / Aggregator / Distributor. Any and all disputes regarding quality, non- delivery and delay in delivery of the products and/or services or otherwise will be resolved directly between the MerchantPartner / Aggregator / Distributor and the Payer without making the Bank, the Service Providers and the acquiring banks and/or the Company a party to such disputes;
The MerchantPartner / Aggregator / Distributor shall keep Aircash informed of the claims it receives in relation to Transactions or any other matter in connection with the arrangement providing details as may be required by Aircash. However, Aircash shall not be under any obligation to provide any assistance to the MerchantPartner / Aggregator / Distributor satisfy the aforesaid claim/s;
MerchantPartner / Aggregator / Distributor agrees and undertakes to settle the issues regarding chargeback or returns or refunds on their own without involving Company. The MerchantPartner / Aggregator / Distributor acknowledges and agrees that Aircash is only a payment processing service and not liable for any Chargebacks, refunds and returns. The MerchantPartner / Aggregator / Distributor shall if required, do a reverse transaction through any medium to pay back to Customer. The disputes regarding chargebacks, refunds and returns, consumer disputes, quality of service and product should be resolved between the MerchantPartner / Aggregator / Distributor and the Payer without involving Aircash;
The MerchantPartner / Aggregator / Distributor shall integrate Aircash M-ATM/POS Device provided by the Bank/Aircash/MerchantPartner / Aggregator / Distributor or an Authorized Device in a manner that it will not capture, access, and store or try to store, sensitive Payer data like Aadhaar Number/Card Number/Pin, Demographics Information, Biometrics, OTP, Card Number, Pin etc. All these details shall be captured only by Aircash M-ATM/POS Device provided by Aircash or the Authorized Device, whereas the MerchantPartner / Aggregator / Distributor shall only facilitate it, without any facility to store the sensitive Payer data;
The MerchantPartner / Aggregator / Distributor shall not misuse the sensitive Payer data;
The MerchantPartner / Aggregator / Distributor shall enter into Transactions only in Indian Rupees, unless otherwise permitted by the Bank in writing in advance;
The MerchantPartner / Aggregator / Distributor agrees and confirms that any Transaction entered by the Distributor/ Aggregator, or any of the Distributor/ Aggregators, in any of the following circumstances shall be the final responsibility of Distributor/Aggregator;
The MerchantPartner / Aggregator / Distributor agrees and confirms to charge back the Transaction without any demur or protest in the following circumstances for transactions: (1) which are fraudulent, collusive, illegal, misrepresented or otherwise irregular in any manner whatsoever; or (2) in relation to a Payer’s complaint or request for an adjustment, which has not been resolved; (3) which are recorded or submitted otherwise than in accordance with the terms and conditions stipulated by Aircash;
The MerchantPartner / Aggregator / Distributor agrees and confirms that Aircash reserves the following rights (in accordance with the Regulatory guidelines):(1) Deduct and set off from settlement of funds due to the MerchantPartner / Aggregator / Distributor; or (2) Raise an invoice or raise a debit note to recover the amounts outstanding from the MerchantPartner / Aggregator / Distributor separately; or (3) Debit the MerchantPartner / Aggregator / Distributor Settlement Account, for any of the following amounts: the amount of any refunds issued/due to the Payer; invalid transactions (including Chargeback and our related losses); any fees or charges; fees or penalties or fines imposed by and any other regulatory / competent authority/compliances/agencies/ banks etc. for violation of applicable Rules and Regulations or acts or omissions or Chargeback; government charges or tax claims; over payment by Aircash or Nodal Bank or Partner Third Party Services due to errors or otherwise; Extra costs incurred for the MerchantPartner / Aggregator / Distributor or MerchantPartner / Aggregator / Distributor transactions related to AEPS, UPI, Partner Third Party Services, incurred after termination of this agreement; and any other amounts due from the MerchantPartner / Aggregator / Distributor to Aircash;
The MerchantPartner / Aggregator / Distributor shall ensure that the Transaction information and MerchantPartner / Aggregator / Distributor information (e.g. MerchantPartner / Aggregator / Distributor Category Code (MCC), transaction type, payment identifiers, etc.) sent through the APIs or any other mode to Aircash or Nodal Bank is correct and any claims, demands, disputes, fines or losses incurred due to or arising in connection with supply of any incorrect information sent by MerchantPartner / Aggregator / Distributor shall be the sole responsibility and liability of the MerchantPartner / Aggregator / Distributor. Further, the MerchantPartner / Aggregator / Distributor shall acknowledge that Aircash Micro ATM post sales shall not be returnable and refundable in any case;
MerchantPartner / Aggregator / Distributor shall use all reasonable endeavors to ensure no viruses or malicious code like malware, spyware, keyloggers, bots (as the expressions are generally understood in the computing industry) are introduced, and that there is no corruption or modification or compromise of Aircash Systems or participant in-formation. However, the same shall not result in denial of service, interruption of service, outages, reduction or compromise in quality and efficiency of service, leakage or stealing of participant information, interference with mandated lawful interception policy, methodology and provisions, enhance risks of attacks, overbilling, frauds or any other aspect that compromises the security of all the stakeholders including Aircash and the participants;
The MerchantPartner / Aggregator / Distributor shall establish and maintain necessary authentication related operations, including systems, processes, infrastructure, technology, security, etc., which may be necessary for using Aadhaar Authentication Service, in compliance with standards and specifications, issued by UIDAI from time to time;
The MerchantPartner / Aggregator / Distributor shall, at all times, comply with the provisions contained in the Information Technology Act, 2000 and Aadhaar (Targeted Delivery of Financial and Other.
Subsidies, Benefits and Services) Act, 2016 and all statutory rules framed there under, from time to time, in so far as the same has application to its operations in accordance with this Agreement, and also with all other Applicable Laws;
MerchantPartner / Aggregator / Distributor shall ensure that the Services are not used for money laundering and it is in compliance with Anti-Money Laundering laws, including but not limited to Prevention of Money Laundering Act, 2002 and the rules and regulations made under it;
In case of any investigations around authentication related fraud(s) or dispute (s), the MerchantPartner / Aggregator / Distributor shall extend full cooperation to NSDL, NPCI, UIDAI, Bank, Aircash and/or any agency appointed/authorized by it and/or any other authorized investigation agency, including, but not limited to, providing access to their premises, records, personnel and any other relevant resource / information, etc. of or pertaining to the Aircash M-ATM/POS Device or the Authorised Device;
MerchantPartner / Aggregator / Distributor shall not use any unauthorized authentication devices, finger-print devices and other Information Technology devices along with Aircash Application. MerchantPartner / Aggregator / Distributor shall only employ the Authentication Devices and associated application components (such as sensor and extractor pairs for finger-print and iris scanners), which are duly registered with/approved/ certified by UIDAI or an agency appointed by UIDAI for this purpose (“Authorised Device”);
MerchantPartner / Aggregator / Distributor shall not by itself undertake any repair or modification to the device including installation of unauthorized or any other third party APK files, software or App;
MerchantPartner / Aggregator / Distributor shall not run the Aircash mobile application in a personal computer or laptop with any android simulator or similar kind of app. Aircash mobile application must be run in an Android or IOS phone and fingerprint reader should be connected to phone only. Aircash Web Application should be used only with computer having secured network and antivirus systems installed;
MerchantPartner / Aggregator / Distributor shall only use the APK or the SDK files provided by Aircash to run the Aircash Application;
MerchantPartner / Aggregator / Distributor shall not copy, reverse engineer, modify, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the Services or related technology in Aircash Application;
MerchantPartner / Aggregator / Distributor shall use only secured internet connection to use the Aircash application. MerchantPartner / Aggregator / Distributor shall not use any open or unsecured or public Wi-Fi connection or internet connection while using the Aircash application;
MerchantPartner / Aggregator / Distributor shall make sure that transaction is carried out in supervised environment. MerchantPartner / Aggregator / Distributor shall ensure that Payer is using his finger-print for authentication and nothing is morphed on his finger nor using a silicon finger. MerchantPartner / Aggregator / Distributor shall ensure that after each transaction, MerchantPartner / Aggregator / Distributor should immediately wipe the fingerprint reader sensor;
MerchantPartner / Aggregator / Distributor shall ensure that the biometric put by the Payer is genuine and is not forced or coerced by another person to put his biometric or biometric of other person. The MerchantPartner / Aggregator / Distributor shall ensure that Payer is not using any wax coating, or using fingerprint imprinted of any other person using any other device or by any method whatsoever;
MerchantPartner / Aggregator / Distributor shall seek expressed authorization from the Payer for each transaction;
MerchantPartner / Aggregator / Distributor shall also put a printed/hand-written notice at a visible place in such a font size that is readable by human eyes from the place where the transaction is made. The notice should clearly seek authorization of usage of Aadhaar Number/Card Number/Pin and state that by putting his biometrics the Payer understands and agrees that his/her bank account will be debited with the Transaction Amount;
MerchantPartner / Aggregator / Distributor understands and agrees that Aircash maintains logs of all authentication transactions processed by it, capturing the complete details of the authentication transaction and shall retain the same for a duration as prescribed by UIDAI from time to time but shall not, in any event, store the Aadhaar Personal Identity Data of the Aadhaar Holder (PID). The MerchantPartner / Aggregator / Distributor understands and agrees that the logs maintained by Aircash shall not be shared with any individual or entity, and that the storage of the logs maintained by it shall comply with all the relevant laws, rules and regulations, including, but not limited to, the Information Technology Act, 2000, Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 and the Evidence Act, 1872. Aircash may at its own discretion check the devices and the premises of the MerchantPartner / Aggregator / Distributor to ensure that there is no tampering or unauthorized usage of the logs of transactions;
MerchantPartner / Aggregator / Distributor shall ensure that the persons employed by it for providing Aadhaar Enabled Services and for maintaining necessary systems, infrastructure, processes, etc. in this regard, possess requisite qualifications for undertaking such works. The MerchantPartner / Aggregator / Distributor shall be responsible for ensuring that such personnel are suitably and adequately trained to conduct Aadhaar Enabled Services, in compliance with specifications and standards prescribed by UIDAI from time to time;
MerchantPartner / Aggregator / Distributor agrees to comply with the various directives and guidelines and/or enter into any other supplementary agreement which is necessitated by any directive or guidelines issued by UIDAI, RBI, NPCI, Bank or any other regulatory body from time to time;
The MerchantPartner / Aggregator / Distributor shall inform and train the sub-agents of the terms and conditions laid down by NPCI, UIDAI, RBI and Bank and shall take responsibility that the sub-agent does not violate the conditions laid down in this Agreement and/or guidelines issued by UIDAI, RBI, NPCI, Bank or any other regulatory body from time to time;
The MerchantPartner / Aggregator / Distributor agrees not to assign or transfer the Aircash application or Aircash M-ATM/POS Device to any person without prior written permission of Aircash;
The MerchantPartner / Aggregator / Distributor shall not use a similar or competitive service to the Services provided by Aircash during the Term of this Agreement and for a period of 2 (two) years after termination of this Agreement;
The MerchantPartner / Aggregator / Distributor shall keep the supplied equipment safe and notify Aircash immediately of any damage to, or loss of such equipment;
The MerchantPartner / Aggregator / Distributor ensures and undertakes that under no circumstances shall the equipment and the facilities be used for personal use by the employees and other agents of the MerchantPartner / Aggregator / Distributor nor shall allow the use of the equipment/device to be used in the manner for any purpose other than that for which it has been designed or reasonably suited or be used with any other processing system unless prior consent from Aircash is obtained;
MerchantPartner / Aggregator / Distributor shall not use the Aircash Services for any activities, which is prohibited by Indian laws.
ERROR HANDLING
MerchantPartner / Aggregator / Distributor shall promptly examine all MerchantPartner / Aggregator / Distributor transaction statements relating to the MerchantPartner / Aggregator / Distributor Account and immediately notify Aircash in writing or by email, in case of any errors. The standard delivery method for monthly statements is in an electronic, online version can be downloaded from the app/web or/and receive in email of MerchantPartner / Aggregator / Distributor. MerchantPartner / Aggregator / Distributor’s written or electronic notice must include:
MerchantPartner / Aggregator / Distributor code, assigned by Aircash and MerchantPartner / Aggregator / Distributor’s name and Account number, the amount of the asserted error, a description of the asserted error, and an explanation of why MerchantPartner / Aggregator Distributor believes an error exists and the cause of it, if known. Such written notice must be received by Aircash within ten (10) days of such asserted error. MerchantPartner / Aggregator / Distributor may not make any claim against Aircash for any loss or expense relating to any asserted error (as mentioned in the notice) for a period of thirty (30) days immediately following receipt of MerchantPartner / Aggregator / Distributor’s written notice. During that thirty (30) days period, Aircash shall be entitled to investigate the asserted error and MerchantPartner / Aggregator / Distributor shall not incur any cost or expense in connection with the asserted error without notifying Aircash. If no error is found by Aircash and sufficient clarifications are provided, the MerchantPartner / Aggregator / Distributor shall be charged fees amounting to 10% of asserted amount or Rupees Two Thousand, whichever is higher. The decision taken by Aircash will be binding.
PROTECTION OF CONFIDENTIAL INFORMATION
The MerchantPartner / Aggregator / Distributor shall hold the Confidential Information in confidence and with the exception of its Affiliates, shall not disclose the Confidential Information to any third party. The MerchantPartner / Aggregator / Distributor shall protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, Aircash uses to prevent the unauthorized use, dissemination or publication of its own confidential information of a like nature. The MerchantPartner / Aggregator / Distributor may use and disclose the Confidential Information only for the purpose specified by the Aircash to its employees, agents and independent contractors (“Representatives”) on a “need-to-know” basis, provided such employees, agents and independent contractors have signed a Non-Disclosure Agreement(NDA) at least as protective of the Aircash’s rights as this Agreement.
DISTRIBUTORS’S RESPONSIBILITIES
Maintain the Confidentiality, Integrity and Availability values of Aircash’s data and services;
Report any incident that may affect the Aircash’s data/service in terms of Confidentiality, Integrity and Availability;
Insert Aircash’s party performance requirements here. E.g.: For web development: delivery of the application and ongoing maintenance support.
SECURITY CONTROL PRACTICES, AUDIT & DISASTER RECOVERY
Both the parties hereby agree to maintain sufficient security practices, control processes and checks in respect of the Software provided to Licensee;
Both parties shall monitor its Software on regular basis and disclose any breaches in the security practices /processes and controls;
Both parties hereby agree and undertake that the recovery plan will be carried out by them promptly and streamlined immediately.
DISPUTE MANAGEMENT
Both parties agree to negotiate in good faith the settlement of any disputes that may arise under this Agreement. This Agreement shall be governed by and construed in accordance with the laws of India and subject to exclusive of the courts at Kolkata:
Any dispute, controversy or claims arising out of or relating to this Agreement or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the provisions of the Indian Arbitration and Conciliation Act, 1996;
The arbitral tribunal shall be composed of three arbitrators, one of the arbitrators is to be appointed by each Party, and a third arbitrator appointed by such arbitrators;
The place of arbitration shall be at Kolkata and any award whether interim or final, shall be made, and shall be deemed for all purposes between the parties to be made, in Kolkata;
The arbitral procedure shall be conducted in English language and any award or awards shall be rendered in English. The procedural law of the arbitration shall be Indian law;
The award of the arbitrator shall be final, conclusive and binding upon the Parties. Any appeal of the arbitral award shall be made as per the Indian Arbitration and Conciliation Act, 1996.
COVENANT
MerchantPartner / Aggregator / Distributor Covenants that MerchantPartner / Aggregator / Distributor shall:
Conduct business in a manner that reflects favorably at all times on Aircash’s products and the good name, good will and reputation of Aircash;
Avoid deceptive, misleading or unethical practices that are or might be detrimental to Aircash, or the public;
Make no false or misleading representation with regard to Aircash or Aircash services;
Not publish or employ, or cooperate in the publication or employment of any misleading or deceptive advertising material with regard to Aircash or Aircash services;
Make no representation, warranties or guaranties to customers or to the trade with respect to the specifications, features or capabilities of Aircash services that inconsistent with the literature detailed by the Aircash;
If it is found that the MerchantPartner / Aggregator / Distributor fails to adhere to the terms and conditions mentioned above, Aircash shall reserve the sole authority to rescind the agreement that have entered into and shall also make them liable under the relevant sections of IPC, Contract Act, Information Technology Act and also other relevant laws as and when the situation warrants;
MerchantPartner / Aggregator / Distributor shall not make any wrongful use of the company’s device or software for any fraudulent transaction or for the furtherance of any illicit intension or compromise any sensitive information of the payers. Any dereliction of contractual obligation or any misconduct on the part of the MerchantPartner / Aggregator / Distributor shall make them liable under Information Technology Act, 2000 and Aadhaar (Targeted Delivery of Financial and Other. Subsidies, Benefits and Services) Act, 2016 and all statutory rules framed there under, from time to time, in so far as the same has application to its operations in accordance with this Agreement, and also with all other Applicable Laws.
PRICES; EXPENSES
All expenses incurred by the MerchantPartner / Aggregator / Distributor for the service rendered, shall be borne by them and not the Aircash;
The Aircash has the final discretion to evaluate the performance of the MerchantPartner / Aggregator / Distributor and all payments to the MerchantPartner / Aggregator / Distributor are linked to their performance as per the targets that may be given from time to time. In case the MerchantPartner / Aggregator / Distributor don’t perform as per the targets set by the Aircash, the MerchantPartner / Aggregator / Distributor may at its own sole discretion terminate the MerchantPartner / Aggregator / Distributorship without assigning any reasons for such termination.
MANPOWER AND UTILITIES
The MerchantPartner / Aggregator / Distributor shall employ its own manpower in order to fulfill his obligations and duties, which shall arise out of this Agreement. The MerchantPartner / Aggregator / Distributor shall be responsible for payment of wages/salary to such manpower appointed by them and to comply with all statutory rules and regulations governing the employment.
They shall keep the Aircash harmless and indemnified against any loss, claim or damages arising from negligence or breach of any rules and regulations.
The MerchantPartner / Aggregator / Distributor shall engage the services of adequate number of staff for diligent performance of the duties enumerated herein as maybe specified by the Aircash from time to time.
It is expressly understood that such employees are those of the MerchantPartner / Aggregator / Distributor and the Aircash shall not be responsible for any act of such employees.
TRADEMARKS, TRADE NAMES, LOGOS, DESIGNATIONS AND COPYRIGHTS
During the term of this Agreement and subject to the terms and conditions specified herein, Aircash grants to MerchantPartner / Aggregator / Distributor a nonexclusive, non-transferable, limited license to use, in the territory, Aircash’s trademarks, trade names, logos and designations only as necessary for MerchantPartner / Aggregator / Distributor to fulfill its obligations hereunder. MerchantPartner / Aggregator / Distributor’s use of such trademarks, trade names, logos and designations will be in accordance with Aircash’s policies in effect from time to time. Changes to this trademark use policy that Aircash in its sole discretion will specify, shall be effective upon thirty days’ written notice to MerchantPartner / Aggregator / Distributor. MerchantPartner / Aggregator / Distributor agrees not to attach any additional trademarks, trade names, logos or designations to any Aircash product. MerchantPartner / Aggregator / Distributor further agree not to use any Aircash trademark, trade name, logo or designation in connection with any non-Aircash services. Aircash reserves the right to review planned uses of its trademarks, trade names, logos and designations to confirm that they are within the guidelines, prior to usage of such trademarks by MerchantPartner / Aggregator / Distributor.
TRAINING & SUPPORT
The Aircash shall provide the relevant and necessary trainings and support Online and/or Offline mode to the MerchantPartner / Aggregator / Distributor to do transactions efficiently whenever required;
The Aircash will provide the necessary maintenance and servicing of the device and/or software Updates, Versions and Releases, whenever deems fit and necessary;
The Company shall make best efforts to service M-ATM/POS Device and keep the system up to date. However, the services are dependent on the various entities such as Banks, NPCI, VISA, MasterCard, RuPay etc. Also, services are dependent on infrastructure like HSM device, AWS cloud etc. And for this reason, the Company shall not be responsible and liable for failure of any of these entities and/or infrastructures.
INFORMATION TECHNOLOGY ACT, 2000
MerchantPartner / Aggregator / Distributor shall implement the documented Information and Security policies & programs as per Rule 8 (1), 8(2) & 8(3) of the Information Technology (Amendment) Act, 2008 and are bound to implement standard as follow:
MerchantPartner / Aggregator / Distributor must comply and ensure that their IT Security policy contains managerial, technical, operational & physical security contracts that are commensurate with the value of information assets being protected and risk exposure;
MerchantPartner / Aggregator / Distributor follow and implement codes of best practices of an industry association duly approved by the Central Government;
MerchantPartner / Aggregator / Distributor should adopt Security practices and procedures must be IS/ISO/IEC 27001, PCI-DSS or other regulatory standards Information Technology (Amendment) Act, 2008.
PENALTIES UNDER THE INFORMATION TECHNOLOGY ACT, 2000
Under Section 43A of the (Indian) Information Technology Act, 2000, a body corporate who is possessing, dealing or handling any sensitive personal data or information, and is negligent in implementing and maintaining reasonable security practices resulting in wrongful loss or wrongful gain to any person, then such body corporate may be held liable to pay damages to the person so affected.
It is important to note that there is no upper limit specified for the compensation that can be claimed by the affected party in such circumstances.
Under Section 72A of the (Indian) Information Technology Act, 2000, disclosure of information, knowingly and intentionally, without the consent of the person concerned and in breach of the lawful contract has been also made punishable with imprisonment for a term extending to three years and fine extending to INR 5,00,000
The penal provisions mentioned above shall be applicable on the MerchantPartner / Aggregator / Distributor if they are found to have committed any such acts.
GUIDELINES UNDER AADHAAR ACT, 2016
LEGAL PROVISIONS IN THE AADHAAR SYSTEM FOR DATA SHARING/DISCLOSURE, OFFENCES AND PENALTIES
This section outlines the manner in which resident privacy and data sharing aspects are addressed in the Aadhaar system while ensuring compliance to the Aadhaar Act 2016. As per the clauses specified in the sub-section (1) of Section 29 of Aadhaar Act, no core biometric information collected/created from the individual would be shared with anyone for any reason whatsoever. Also, the core biometric information / reference is used only for the purpose of the generation of Aadhaar numbers and authentication;
The identity information, other than core biometric information, collected or created under the Act may be shared only in accordance with the provisions of this Act and in such a manner as specified by the regulations framed under the Aadhaar Act;
The clause (b) of sub-section (3) of Section 29 states that no identity information available with the requesting entity shall be disclosed further, except with the prior consent of the individual to whom such information relates;
No Aadhaar number or core biometric information collected or created under this Act in respect of an Aadhaar number holder shall be published, displayed or posted publicly, except for the purposes as may be specified by Aadhaar regulations.
PENALTIES UNDER AADHAAR ACT
Any data sharing violation or attempts relating to impersonation of Aadhaar number holder at the time of enrolment / authentication are subject to offences and penalties in accordance with the clauses specified in Chapter 7 of Aadhaar Act. Some of the penalties associated with the violations on data sharing and impersonation attempts are listed hereunder:
Penalty for impersonation at the time of Enrolment (as per Section 34): Whoever impersonates or attempts to impersonate another person, whether dead or alive, real or imaginary, by providing any false demographic information or biometric information, shall be punishable with imprisonment for a term which may extend to three years or with a fine which may extend to ten thousand rupees or with both;
Penalty for impersonation of Aadhaar number holder by altering bio-metric/demographic information (as per Section 35): Whoever, with the intention of causing harm or mischief to an Aadhaar number holder, or with the intention of appropriating the identity of an Aadhaar number holder changes or attempts to change any demographic information or biometric information of an Aadhaar number holder by impersonating or attempting to impersonate another person, dead or alive, real or imaginary, shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to a fine which may extend to ten thousand rupees;
Penalty for impersonation (as per Section 36 for unauthorized collection of resident information): Whoever, not being authorized to collect identity information under the provisions of this Act, by words, conduct or demean our pretends that he is authorized to do so, shall be punishable with imprisonment for a term which may extend to three years or with a fine which may extend to ten thousand rupees or, in the case of a Aircash, with a fine which may extend to one lakh rupees or with both;
Penalty for disclosing identity information (as per Section 37): Whoever, intentionally discloses, transmits, copies or otherwise disseminates any identity information collected in the course of enrolment or authentication to any person not authorized under this Act or regulations made there under or in contravention of any agreement or arrangement entered into pursuant to the provisions of this Act, shall be punishable with imprisonment for a term which may extend to three years or with a fine which may extend to ten thousand rupees or, in the case of a Aircash, with a fine which may extend to one lakh rupees or with both;
Penalty for unauthorized access to the CIDR [as per Section 38(g)]: Whoever, not being authorized by the Authority, intentionally, reveals any information in contravention of sub-section (5) of Section 28, or shares, uses or displays information in contravention of Section 29 or assists any person in any of the aforementioned acts; shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to a fine which shall not be less than ten lakh rupee.
RESTRICTIONS ON USE
The MerchantPartner / Aggregator / Distributor shall not permit either directly or indirectly do or undertake to do any acts, deeds to or things or enable or assist any third party, to do or attempt to do any of the following:
to use the Aircash Service(s) in any other manner apart from using it to process the payments for the entity and the Products/Services mentioned in this Agreement;
to use or permit to use the payment facility and the Services including the electronic equipment and device other than for the usage of and for the business model as has been declared, disclosed and specified to Aircash and such other regulatory authorities as may be required by the applicable laws, at the time of application for obtaining the MerchantPartner / Aggregator / Distributor License. The MerchantPartner / Aggregator / Distributor also undertakes that no such information shall be suppressed and/or omitted to be disclosed which shall be required to be duly specified and declared to Aircash as part of the process for availing the Service(s).
The MerchantPartner / Aggregator / Distributor hereby agrees and acknowledges that in the event of any deviation from the declaration or the business model or such other information as specified herein above by the MerchantPartner / Aggregator / Distributor to Aircash and such other regulatory authorities or deviation from the usage of the Services as may be availed from Aircash including but not limited to the electronic equipment/device, biometrics devices, website, software, programs, documentation, tools, internet-based services, mobile-devices-based services, it shall be the obligation and responsibility of the MerchantPartner / Aggregator / Distributor to provide prior written intimation to Aircash for matters not limited to the following: (1) change in constitution of the business of the MerchantPartner / Aggregator / Distributor; (2) alteration of the business model of the MerchantPartner / Aggregator / Distributor; (3) change of registered office or principal office or other place of business; (4) modification or change or closure of the bank account of the MerchantPartner / Aggregator / Distributor; (5) any other events which may have a material adverse effect on the business of the MerchantPartner / Aggregator / Distributor and Aircash;
The MerchantPartner / Aggregator / Distributor hereby agrees and acknowledges that payment processing services using Aircash M-ATM/POS Devices and the SDK (Software Development Kit) shall not be reverse engineered by neither insertion of any malicious code nor phishing attacks. The MerchantPartner / Aggregator / Distributor shall be solely responsible to maintain the safety of the device and SDK.
In case the MerchantPartner / Aggregator / Distributor fails to provide prior notice/intimation in relation to the aforesaid events and/or deviations and upon identification of the same by the banking partners of Aircash or by Aircash itself, the MerchantPartner / Aggregator / Distributor shall be liable to pay an assessment fee of Rs. 10,000 (Rupees Ten Thousand only) immediately upon notice being issued by Aircash to the MerchantPartner / Aggregator / Distributor. Upon the receipt of notice, the MerchantPartner / Aggregator / Distributor shall without any demur or protest shall forthwith pay to Aircash the assessment fee.
TERMINATION
This Agreement shall become effective from the date of signing of this Agreement and shall be valid for 2 years (“Default Term”) unless specified in an Exclusive Agreement;
During the term of this Agreement, the MerchantPartner / Aggregator / Distributor shall perform the services and at all times ensure that the Retail Partner/s carry out their activities with respect to providing Company Services in accordance with the terms of this Agreement, Company Rules and instructions provided by the Company to MerchantPartner / Aggregator / Distributor or to the Retail Partner/s;
Upon the expiry of the Term and subject to satisfactory performance of MerchantPartner / Aggregator / Distributor’s obligations under the Agreement, this Agreement may be renewed at Company’s sole option, on such terms and conditions as may be applicable at the time of such renewal. Company may exercise its right of renewal by giving in writing to the MerchantPartner / Aggregator / Distributor its notice to renew at least 60 days prior to the completion of the Term;
In the event the Company is desirous of renewing the Agreement, then in that event the Parties shall execute an Agreement on similar terms and conditions mentioned in these presents as may be applicable;
The Company shall not be responsible or held liable for any acts done by the MerchantPartner / Aggregator / Distributor during or after the expiry of the Term and further renewal;
MerchantPartner / Aggregator / Distributor may terminate this Agreement or one or more Services delivered under this Agreement at any time with or without cause by providing written notice of thirty (30) days to Aircash after an initial lock-in period of 24 (twenty-four) months from the effective date and such termination shall become effective on the date specified by such notice;
Lock-in: This Agreement shall be subject to a lock-in period, for a period of two (2) years, wherein if the MerchantPartner / Aggregator / Distributor, once signs this Agreement, shall be bound by its terms for a minimum period of two (2) years, that is the “Lock-in” period. However if the MerchantPartner / Aggregator / Distributor wishes to terminate this Agreement before the expiry of the Lock-in period, the MerchantPartner / Aggregator / Distributor shall be liable to pay a termination fee of Rs. 10,000 (Rupees Ten Thousand Only) to Aircash before terminating this Agreement. The termination fee is in addition to any other charges and fee that is payable by the MerchantPartner / Aggregator / Distributor to Aircash;
After the expiry of the lock-in–period, the MerchantPartner / Aggregator / Distributor may terminate this Agreement by giving 45 days written notice to the Company and all the balance amount payable, if any, to Aircash shall be paid by the MerchantPartner / Aggregator / Distributor to the Company;
Aircash may terminate this Agreement or any of the Services at any time without giving any prior notice to the MerchantPartner / Aggregator / Distributor and no penalty/compensation shall be payable on such termination;
The Company shall have the right to terminate this Agreement immediately up-on the occurrence of an “Event of Default”. For the purposes of this Agreement, the term “Event of Default” shall have occurred if:-
If there is material breach by the MerchantPartner / Aggregator / Distributor of any terms of this Agreement which remains uncured even after the expiry of 15 (Fifteen) days after the date of a written notice issued by the Company of such occurrence; or
If an order is made by the Court of a competent jurisdiction or a resolution passed, for the liquidation, bankruptcy, insolvency or administration of the MerchantPartner / Aggregator / Distributor is filed with a Court of competent jurisdiction;
If the MerchantPartner / Aggregator / Distributor commits a breach of any statutory law/rules/regulations.
The Company may terminate this Agreement immediately without prior notice if:(1)they have reasons to believe that fraudulent Transactions or other activity prohibited by this Agreement or by the Banks and Partner Third Party Services or by Applicable Law or prohibited businesses under any other law, is occurring at any MerchantPartner / Aggregator / Distributor location; (2) such action is taken to cause loss to Aircash or Banks or Partner Third Party Services , (3) MerchantPartner / Aggregator / Distributor appears on any Payment Network's security reporting; (4) dispute between the MerchantPartner / Aggregator / Distributor and Payer has arisen due to deficiency in service by the MerchantPartner / Aggregator / Distributor; (5) any material adverse change in the business or financial condition including bankruptcy or insolvency proceedings commenced by or against the MerchantPartner / Aggregator / Distributor; (6) excessive chargebacks or any other circumstances which in the opinion of Aircash may increase the risk of loss; (7) negligence or willful misconduct of MerchantPartner / Aggregator / Distributor or its employees or agents; (8) distribution or offering for sale of information or content that infringes a patent, copyright, trademark, or other intellectual property right or contains libelous or slanderous material; (9) the MerchantPartner / Aggregator / Distributor assigns or attempts to assign this Agreement or any portion hereof without the prior written consent of Aircash; (10) Aircash in its sole discretion deems the MerchantPartner / Aggregator / Distributor to be potentially and financially insecure; (11) the MerchantPartner / Aggregator / Distributor or any other person owning or controlling MerchantPartner / Aggregator / Distributor’s business is listed in one or more databases of terminated or high risk MerchantPartner / Aggregator / Distributor maintained by any banks or financial institutions; (12) the MerchantPartner / Aggregator / Distributor engages in conduct that creates or could tend to create harm or loss of goodwill of any of the Banks or Partner Third Party Services or Aircash; (13) storing or misusing biometric details of Payers, (14) non-usage of authorized biometric reader devices or not using the biometric device and Aircash Application as per the terms of this Agreement; (15) hacking, introduces virus or causing security breach to Aircash or Banks or Partner Third Party Services or commits negligence in taking adequate measure to prevent any hacking or virus or security breach related issue, (16) any other breach of any representation and/or obligations by the MerchantPartner / Aggregator / Distributor under this Agreement.
An administrative account closure fee of Rs.10,000/- (Rupees Ten Thousand only) shall be charged to MerchantPartner / Aggregator / Distributor in case of termination for the reasons set forth above. MerchantPartner / Aggregator / Distributor shall return the Aircash M-ATM/POS Device to Aircash upon termination in good condition. If the MerchantPartner / Aggregator / Distributor fails to return the Aircash that it procures from Aircash M-ATM/POS Device in workable and good condition, an additional amount of Rs.5000 (Rupees Five Thou-sand only) shall be charged.
In the event the MerchantPartner / Aggregator / Distributor is not using the Aircash M-ATM/POS Device for a continuous period of 24 (twenty-four) months from the Effective Date of this Agreement, Aircash shall be entitled to receive and the MerchantPartner / Aggregator / Distributor shall upon the expiry of the aforesaid 24 (twenty four) months shall immediately pay a pre-closure fee of Rs 10,000 (Rupees Ten Thousands only) to Aircash without any demur or protest.
Effect of Termination
All of MerchantPartner / Aggregator / Distributor’s obligations under this Agreement that arise or are incurred prior to the effective date of termination shall survive the expiration or termination of this Agreement;
The Company shall be at liberty to appoint an alternate MerchantPartner / Aggregator / Distributor and all amounts paid by MerchantPartner / Aggregator / Distributor shall be adjusted against compensation for consequential opportunity loss of the Company. In such a case the Company may require MerchantPartner / Aggregator / Distributor to continue to provide the services till new MerchantPartner / Aggregator / Distributor is appointed;
Upon termination, the Company shall refund the Security Deposit to the MerchantPartner / Aggregator / Distributor;
The MerchantPartner / Aggregator / Distributor hereby agrees and undertakes that it shall grant the Company, its employees or agents, access to its offices/place of business and information technology systems for a period of 30 days (Default) after termination for the verification of its compliance.
Upon termination of this Agreement for any reason stated hereinabove, the MerchantPartner / Aggregator / Distributor shall:
Upon termination of this Agreement for any reason stated hereinabove, the MerchantPartner / Aggregator / Distributor shall:
Immediately cease to utilize, promote, market or advertise Company’s products and/or services;
Immediately discontinue to utilize any Intellectual Property including but not limited to logo and the name of the Company and shall immediately handover any and all copies for documentation of such Intellectual Property;
Immediately return to the Company any confidential information provided to MerchantPartner / Aggregator / Distributor under the Agreement including but not limited to all information and data with respect to the Retail Partners and the consumers;
Immediately return to the Company originals and copies of any and all material provided to MerchantPartner / Aggregator / Distributor pursuant to this Agreement;
Immediately discontinue and cease to use the platform and/or any software provided by the Company and shall handover copy of the documentation of such software and shall purge such software or cause it to be purged from all human and electronic media (or other memory devices);
Provide remote access to the Company to disable any software that the Company had installed;
Immediately remove all signboards, banners, glow signboards all such material which indicates any association with the Company from its office and any other premises and confirm in writing to the Company of having complied with the provisions of this Clause.
SETTLEMENT OF TRANSACTIONS
Aircash through its bank shall be the Acquirer and shall only settle the transactions carried out using UPI, AEPS, M-ATM and wallets under the terms of this Agreement. Aircash, in association with the acquiring bank, will take all measures in seeing that the settlement of the payments to the MerchantPartner / Aggregator / Distributor’s bank account will be done in a very effective manner. However, the MerchantPartner / Aggregator / Distributor acknowledges that Aircash will have a very limited role/control on the settlement when it is being independently managed by the Nodal Bank which is being regulated by RBI guidelines. The settlements will be in accordance with the UIDAI, NPCI, RBI and other statutory rules, regulations and guidelines as shall be applicable from time to time.
All settlement to MerchantPartner / Aggregator / Distributor’s Settlement Account, subjected to deductions and chargebacks, shall be made within 3 (Three) business days from the date of settlement made by Aircash or by the Nodal Bank into Aircash’s bank account.
The MerchantPartner / Aggregator / Distributor is required to maintain one or more bank accounts (hereinafter referred to “Settlement Account”) with any bank or as may be specified by Aircash or any other approved financial institution, which shall be used for the purpose of payment of the Transaction Amount less MerchantPartner / Aggregator / Distributor service fee and any other specified amounts. Aircash in association with Acquiring Bank or any Banking Partner or the Nodal Bank and/or Partner Third Party Services will endeavour to pay such amounts into the Settlement Accounts within timeframes required by law and Bank rules after the date of settlement of the transaction. However, no interest shall be payable and the Company shall not be liable for any delay if amounts are not paid within these target timeframes. Aircash reserves the right to initiate credit and debit in the Settlement Account in connection with this arrangement under the transaction documents. If the MerchantPartner / Aggregator / Distributor intend to change the Settlement Account, the MerchantPartner / Aggregator / Distributor must notify Aircash in writing and initiate a new payment instruction and provide all necessary KYC documents in relation to new Settlement Account. Aircash shall conduct all necessary verification as per the applicable statutory rules and regulations, and on successful verification the same will be affected within three (3) days of receipt of the MerchantPartner / Aggregator / Distributor’s notice. All unsettled payments till the date of confirmation by Aircash of change in Settlement Account will be made in the existing Settlement Account. **Subject to the terms of this Agreement, Aircash will pay into the Settlement Account of the MerchantPartner / Aggregator / Distributor, after presentation of a sales receipt by the MerchantPartner / Aggregator / Distributor, the value of all valid Transactions processed by MerchantPartner / Aggregator / Distributor since the last payment/credit to MerchantPartner / Aggregator / Distributor’s Settlement Account less Aircash Per Transaction Charges, MerchantPartner / Aggregator / Distributor service fee and any other specified fee and amounts and after withholding refund transactions, chargebacks or other debits MerchantPartner / Aggregator / Distributor processed and after deducting any additional fees or pricing set out as per tariff offered / agreed by MerchantPartner / Aggregator / Distributor and any indirect tax including service taxes as and when applicable.
Aircash shall not be liable, in any manner, for any delays in receipt of funds or errors in debit and credit entries caused by third parties including without limitation, Nodal Bank, Partner Third Party Services, MerchantPartner / Aggregator / Distributor’s financial institution, couriers or any failure in the electronic fund transfer or telephone files;
All the transaction related details may be obtained from the login provided by Aircash to the MerchantPartner / Aggregator / Distributor in its website and/or mobile app. An e-copy of statement can be sought by the MerchantPartner / Aggregator / Distributor for any period for a cost set out from time to time for any period by the MerchantPartner / Aggregator / Distributor by paying the stipulated charges for the same;
Notwithstanding the foregoing, the MerchantPartner / Aggregator / Distributor shall execute an National Automated Clearing House (NACH) mandate in favour of the Company and the Company is entitled to debit, without prior notice to the MerchantPartner / Aggregator / Distributor, any account of the MerchantPartner / Aggregator / Distributor with ICICI Bank to pay all such amounts incurred by the Company as a result of any claims, actions, demands, damages, liabilities, obligations, losses, settlements, costs and expenses which arise out of, relate to or result from any act or omission, Fraud, negligence or willful misconduct of the MerchantPartner / Aggregator / Distributor.
Aircash hereby represents and warrants that:
It is an entity duly organized, incorporated and validly existing under applicable laws;
It is carrying on its business and affairs in accordance with its Memorandum and Articles of Association;
It has all requisite corporate, government and other approvals required to carry on its business;
It has the power and authority to execute and deliver this Agreement; and
The execution and delivery of this Agreement by the Aircash does not violate any law, rule, regulation or order applicable to it;
It shall make best efforts to service M-ATM/POS Devices and keep the systems up to date. However, the services are dependent on the various entities such as Banks, NPCI, VISA, MasterCard, RuPay etc. Also, services are dependent on infrastructure like HSM device, AWS cloud etc. And for this reason, the Company shall not be responsible and liable for failure of any of these entities and/or infrastructures;
Aircash M-ATM/POS is subject to various certifications in terms of device sale, software services and transaction services.
MerchantPartner / Aggregator / Distributor hereby represents and warrants that:
It is an entity duly recognized and validly existing under applicable laws;
It has all the requisite corporate, government and other approvals required to carry on its business;
It has the power and authority to execute and deliver this Agreement;
The execution and delivery of this Agreement by the MerchantPartner / Aggregator / Distributor does not violate any law, rule, regulation or order applicable to it;
The MerchantPartner / Aggregator / Distributor has received, reviewed and understood the terms contained herein prior to executing this Agreement;
The MerchantPartner / Aggregator / Distributor acknowledges that upon execution, this Agreement becomes a binding agreement between the MerchantPartner / Aggregator / Distributor and Aircash from the Effective Date;
The MerchantPartner / Aggregator / Distributor undertakes and agrees that for availing the Services it shall abide by and duly adhere to and shall not directly or indirectly violate or be in non-compliance with any or all of the terms and conditions of the third parties and all applicable laws including the directions, rules, regulations, directives and notifications issued by Reserve Bank of India and any other statutory regulatory authorities as may be amended from time to time;
The documents provided for verification of MerchantPartner / Aggregator / Distributor credentials is true and correct as on the date of signing this Agreement;
At the time of authentication by a Payer, the MerchantPartner / Aggregator / Distributor shall verify the identity of the Payer and ensure that there is no coercion, force or misuse of bio-metrics of other person;
The MerchantPartner / Aggregator / Distributor undertakes that all representations and warranties made by the MerchantPartner / Aggregator / Distributor under this Agreement shall, continue to be true and correct in all respects.
DISCLAIMERS
No Warranties: The Service is provided on an “as is where is” and “as available” basis. To the maximum extent permitted by applicable law, the service is provided without warranties of any kind, whether express or implied, including, but not limited to implied warranties of fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by the MerchantPartner / Aggregator / Distributor from Aircash or through the service shall create any warranty not expressly stated herein.
Limited Liability: The Service is provided on an “as is where is” and “as available” basis. Aircash will not be responsible and will not take any liability whatsoever arises directly or indirectly out of using its Services.
The MerchantPartner / Aggregator / Distributor agrees to extinguish Aircash from any and all such liabilities, which may arise directly or indirectly by using its Services. Aircash, Banks, Partner Third Party Services, NPCI and UIDAI shall not be liable for any loss and/or damage arising out of or related to fraud with respect to the Services.
Service Location: The Service is controlled and operated from Aircash’s facilities in India. Aircash makes no representations that the service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable local laws and regulations, including but not limited to export and import regulations. Unless otherwise explicitly stated, all materials about Aircash are solely directed to individuals, companies, or other entities located in India.
The Parties agree and acknowledge that the Service is being provided by Aircash in conjunction with other third parties and stake holders, including but not limited to, banks, communication carriers, server and internet service providers, data processors, or clearing houses and payment gateways thorough which transactions may be passed, originated or authorized. The Parties agree that the third party service providers have also set forth terms and conditions and are also be guided by applicable laws, rules and regulations. The MerchantPartner / Aggregator / Distributor undertakes and agrees that it shall abide by and duly adhere to all the terms and conditions of the third parties and all applicable laws, rules, regulations, directives and notifications as may be amended from time to time.
INDEMNITY
The MerchantPartner / Aggregator / Distributor undertakes to as and when called upon to do so indemnify, defend and hold harmless the Company and its officers, directors, employees, representatives, agents, respective directors and assigns from and against any and all liability and (including but not limited to liabilities, judgments, damages, losses, claims, costs and expenses, including attorney’s fees and expenses) any other loss that may occur, arising from or relating to: (i) a breach, non-performance or inadequate performance by the MerchantPartner / Aggregator / Distributor of any of the terms, conditions, covenants, representations, undertakings, obligations or warranties under this Agreement; (ii) the acts, errors, representations, misrepresentations, frauds, willful misconduct or negligence of the MerchantPartner / Aggregator / Distributor, its employees, sub-contractors and agents in performance of its obligations under this Agreement; (iii) the MerchantPartner / Aggregator / Distributor shall indemnify and keep indemnified the Company in the event of a breach of a condition by the agent of the MerchantPartner / Aggregator / Distributor which the MerchantPartner / Aggregator / Distributor is bound to impose on sub-agents under this Agreement. The MerchantPartner / Aggregator / Distributor accepts and agrees that the Services offered by the Company in terms of the electronic payment acceptance are subject to final approval of the concerned Partner Third Party Services and banking partners and undertake to duly abide by the guidelines, bye laws, rules and regulations of the statutory bodies. It is hereby clarified that the MerchantPartner / Aggregator / Distributor understand and accepts that Aircash shall pro-vide the Services on a best effort basis and shall not under any circumstances whatsoever be liable to the Distributor/Aggregator or to any third party in relation to or in connection with the MerchantPartner / Aggregator / Distributor for any loss, damage whether direct, indirect, consequential, exemplary, or for any interruption or loss of use of data, business, profits. Aircash specifically disclaims any warranties of any kind, expressed or implied including without limitation any warranty for a particular purpose with respect to the Services provided hereunder.
It is agreed by and between the Parties hereto that without limiting the generality of the foregoing provisions, the Services shall subject to Force Majeure mentioned hereinbelow, be uninterrupted or error free or will not have any downtime. The MerchantPartner / Aggregator / Distributor shall be responsible for misconduct of an agent appointed by the MerchantPartner / Aggregator / Distributor. The agent appointed by the MerchantPartner / Aggregator / Distributor shall comply with all the conditions and obligations of these presents.
Aircash, Banks, Partner Third Party Services, NPCI and UIDAI under no circumstances shall be liable to the MerchantPartner / Aggregator / Distributor for indirect, incidental, consequential, special or exemplary damages arising from or in connection with this Agreement, even if that Party has been advised of the possibility of such damages, such as, but not limited to, loss of revenue or anticipated profits or lost business.
MerchantPartner / Aggregator / Distributor, its directors or its partners or proprietor or its employees or its agents (“Indemnifying Party”) agrees to indemnify and hold harmless Aircash, NSDL, UIDAI, its directors or its employees or its agents, and its acquiring and processing partners, and their affiliates, employees, agents, representatives, members, or stockholders (collectively referred to as the “Indemnified Party”), from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) arising out of any claim, action), judgments, awards, assessments, obligations, damages, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to any of the following events (referred herein after as “Indemnification Event”):
Any dispute between MerchantPartner / Aggregator / Distributor and Payer, or any Chargeslip paid for by or Transaction Gateway Partners;
Any actual or alleged action or omission by the MerchantPartner / Aggregator / Distributor that would constitute a breach or non-performance or inadequate performance of any representation, warranty, undertakings, covenants or obligation of MerchantPartner / Aggregator / Distributor set forth in this Agreement;
Any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by MerchantPartner / Aggregator / Distributor or any of its employees, agents or Payers;
The reliability, accuracy, or legitimacy of payment data submitted by MerchantPartner / Aggregator / Distributor;
Any alleged infringement of Aircash’s or third party’s intellectual property rights by the MerchantPartner / Aggregator / Distributor, involving damage done by the MerchantPartner / Aggregator / Distributor to the brand name/trade name/trademark/intellectual property of Aircash;
Any failure of MerchantPartner / Aggregator / Distributor to maintain the confidentiality of Payer information, including biometric details;
Any failure to provide processing services as set forth in this Second Schedule due to any reasons, whatsoever, arising out or in connection with, services not solely attributable to Aircash, including but not limited to, server failure, system failure, network failure, authentication issues, etc.;
MerchantPartner / Aggregator / Distributor’s wrongful or improper use of the device or service;
Any damage to the device/equipment provided by Aircash;
Introduction of malicious scripts, virus or cause hacking or security breach of Aircash website, software or application;
Any transaction submitted by MerchantPartner / Aggregator / Distributor through the service (including without limitation the accuracy of any Product Information that the MerchantPartner / Aggregator / Distributor provides or any claim or dispute arising out of products or services offered or sold by the MerchantPartner / Aggregator / Distributor);
Any other party’s access and/or use of the Service with MerchantPartner / Aggregator / Distributor’s unique MerchantPartner / Aggregator / Distributor Code/Username, password or other appropriate security code;
Any act, neglect, default or omission on the part of the MerchantPartner / Aggregator / Distributor, its subsidiaries or any person associated with the MerchantPartner / Aggregator / Distributor, including but not limited to liabilities arising from non-compliance of Standards and Regulations prescribed by UIDAI, from time to time, unauthorized use or disclosure of Confidential Information and failure to comply with data protection and storage requirements, as prescribed by UIDAI, from time to time;
Any breach by the MerchantPartner / Aggregator / Distributor of the terms and conditions or its appointment or its obligations under this Agreement;
default or omission on the part of the MerchantPartner / Aggregator / Distributor to follow statutory instructions and guidelines issued by the Government of India, UIDAI, RBI, NCPI, NSDL and any other governmental authority;
Any deficiency in the service or non-delivery of products/services; and
MerchantPartner / Aggregator / Distributor’s violation of any law, rule or regulation of India or any other country.
Upon the Indemnified Party becoming aware of any matter or circumstance in relation to the Indemnification Event, the Indemnified Party shall forthwith and in any event within a period of seven (7) days following the date on which such matter or circumstance has actually been brought to/ actually comes to the attention of the Indemnified Party, inform the Indemnifying Party in writing of such matter/circumstance (“Indemnification Notice”);
Upon receipt of the notice by the Indemnified Party, the Indemnifying Party shall perform all the necessary actions so as to make full restitution to the Indemnified Party no later than seven (7) days from the date of final determination of the indemnified claim (“Indemnified Claim”). If the Indemnifying Party does not object to the claims made under the Indemnification Notice, within the period provided above, in accordance with the Indemnification Notice, it shall be conclusively deemed to have accepted the claims made in such Indemnification Notice and must promptly restitute the Indemnified Party on demand. If, however, the Indemnifying Party does object to the claims made under the Indemnification Notice, within the seven (7) days of the receipt of the Indemnification Notice by delivering to the Indemnified Party a notice in writing of such objection, the Indemnifying Party and the Indemnified Party shall make best efforts to amicably resolve the objections. If such objections are not resolved within seven (7) days, either Party may refer the dispute to arbitration as per Clause 11 of this Agreement. Notwithstanding anything contained herein to the contrary, the Indemnified Party shall have the right to de-mand the payment of the Indemnified Claim amount as and when they arise during the pendency of any dispute resolution; provided that, if it is determined by a final non-appealable judgment of the court of competent jurisdiction or by an binding Arbitral Award, as the case may be, that any such payment of Indemnified Claim paid by the Indemnifying Party to the Indemnified Party was not due and payable to the Indemnified Party under the terms of this Agreement, the Indemnified Party shall on the order of such court or Arbitral Award, refund the Indemnifying Party of such Indemnified Claim amount, where such Indemnified Claim amount were paid by the Indemnifying Party to the Indemnified Party;
The aggregate liability of the Company under this Agreement, on account of any material breach of its obligations shall not exceed the total liability remaining for the MerchantPartner / Aggregator / Distributor;
It is hereby mutually agreed by the Parties that this Clause shall survive the termination of this Agreement.
CONFIDENTIAL INFORMATION
Obligations of Aircash : Aircash shall comply with the Rules in how it treats MerchantPartner / Aggregator / Distributor transaction information. Aircash may disclose information relating to MerchantPartner / Aggregator / Distributor’s sales to financial institutions, networks and third parties that need the information for a purpose relating to this Agreement and to the Aircash’s agent or referral source, if any, that played a role in establishing MerchantPartner / Aggregator / Distributor’s relationship with Aircash solely for the purpose of computing payment due to such persons. Aircash may also disclose information regarding the MerchantPartner / Aggregator / Distributor as part of an investigation by Aircash into MerchantPartner / Aggregator / Distributor’s compliance with its obligations under this Agreement, if Aircash determines there is cause to make such an inquiry, or to the extent required by a court or governmental authority, or otherwise as required by law.
Obligations of MerchantPartner / Aggregator / Distributor : Except to the extent specifically permitted by the rules of this Agreement, MerchantPartner / Aggregator / Distributor shall not disclose any information relating to any Aadhaar Number/Card Number/Pin, or Authentication details, Transaction details to any person or entity other than Aircash, its employees, its agents and independent contractors hired by Aircash, and those of MerchantPartner / Aggregator / Distributor’s employees who have a specific need to know such information except to complete the transaction or as otherwise required or authorized under this Agreement or by law. MerchantPartner / Aggregator / Distributor shall treat all documents provided by Aircash relating to this Agreement as confidential and proprietary and protect them with the same degree of care as MerchantPartner / Aggregator / Distributor would protect its own confidential and proprietary information, and not less than reasonable care. MerchantPartner / Aggregator / Distributor must notify Aircash of any third party agent of MerchantPartner / Aggregator / Distributor that shall have any access to Aadhaar Number/Card Number/PinNumber/Card Number/Pin or Authentication details or Transaction details.
Proprietary Information : All materials, software, hardware and training materials supplied/shared by Aircash to the MerchantPartner / Aggregator / Distributor are solely owned by Aircash and its licensed partners. Under no circumstances, the MerchantPartner / Aggregator / Distributor should share any such information with any third party without an explicit written permission from Aircash and any violation of this will terminate this Agreement and will be treated as willful MerchantPartner / Aggregator / Distributor misconduct. All applicable fines, penalties and charges will be levied against the MerchantPartner / Aggregator / Distributor in case if such misconduct is proved. Aircash shall provide facilities in the Aircash Application which shall enable the MerchantPartner / Aggregator / Distributor to store Payer data and other relevant details of the Payer including the details of the transaction, except Aadhaar /Card Details. The MerchantPartner / Aggregator / Distributor hereby undertakes and agrees that Aircash shall have unrestricted access to the aforesaid Payer data as may be stored in the system by the MerchantPartner / Aggregator / Distributor and shall have the full right to use the said Payer data for analysis and data mining purposes and for such other purposes as may be deemed by Aircash. Further the software belongs to the Company/Aircash and at no point in time can the software be used by the MerchantPartner / Aggregator / Distributor for the purposes beyond this Agreement. Further, the MerchantPartner / Aggregator / Distributor agrees and undertakes that the MerchantPartner / Aggregator / Distributor shall not cause any third party to use the software of the Company.
MerchantPartner / Aggregator / Distributor User Account Access : If MerchantPartner / Aggregator / Distributor receives a user identification name or password from Aircash to access Aircash’s database or use services offered by Airacsh, the MerchantPartner / Aggregator / Distributor shall: (i) keep the user identification name, MerchantPartner / Aggregator / Distributor Code and password confidential; (ii) not allow any other entity or person to use the user identification name or password or gain access to Aircash's database; (iii) be liable for all action taken by any user of the user identification name or password; and (iv) promptly notify Aircash if MerchantPartner / Aggregator / Distributor believes the user identification name or password have been used inappropriately or the confidentiality of the information made available through their use has been compromised in any manner whatsoever.
Aadhaar /ATM Card Details : The MerchantPartner / Aggregator / Distributor shall use the Aadhaar/ATM Card Details strictly for the purposes of authentication of the Aadhaar Holder, and for providing Aadhaar/ATM Card Enabled Services, in accordance with this Agreement. It is hereby mutually agreed between the parties that Aircash assumes no responsibility or liability for any action or inaction, use or misuse of the Aadhaar/ATM Card Details and other data in the control of the MerchantPartner / Aggregator / Distributor. The MerchantPartner / Aggregator / Distributor agrees and acknowledges that any loss, damage, liability caused or suffered by Aircash due to disclosure Aadhaar/ATM Card Details or/and of information of confidential nature shall be borne by the MerchantPartner / Aggregator / Distributor without transferring any liability or responsibility towards Aircash.
The MerchantPartner / Aggregator / Distributor agrees that during the Term of this Agreement and 1 (one) year after the termination of the Agreement, it will not engage in following acts:
Directly or indirectly assist, promote or encourage any Retail Partner, consumer existing or potential employees, customers, clients or vendors of the Company or any Retail Partner, as well as any other parties which have business relationship with the Company to terminate, discontinue or reduce the extent of their relationship with the Company;
Directly or indirectly offer employment to, enter into a contract for the services of, or attempt to solicit or seek to entice away from the Company any individual who is at the time of the offer: (i) a director, officer or employee with the Company and its Affiliates; (ii) client of the Company and/or its Affiliates; and/or (iii) or procure facilitate the making of any such offer or attempt by any other person;
Disparage the Company, any related entities and/or any shareholder, director, officer, employee or agent of the Company or any related entities;
Engage in any practice, the purpose of which is to evade the provisions of this Clause or commit any act, which adversely affects the Company, any related entity or their respective business.
EQUIPMENT HARDWARE AND SOFTWARE
Equipment provided by Aircash : MerchantPartner / Aggregator / Distributor may purchase/lease the Aircash M-ATM/POS Device from Aircash at the time of signing this Agreement. MerchantPartner / Aggregator / Distributor agrees to pay the deposits, documentation charges, advance rentals and any other agreed charges and related taxes for any such equipment supplied by Aircash as provided under the terms of the offer made by Aircash to the MerchantPartner / Aggregator / Distributor. Aircash Micro ATM shall be serviced for 1 year from date of sale and post which shall be renewed on sole discretion of the Company;
Leased Equipment: Aircash does not lease any other equipment other than the mentioned Aircash M-ATM/POS Device. However, the MerchantPartner / Aggregator / Distributor is required to verify with Aircash the terms of any equipment lease it has entered into and the nature of the terms of the Agreement the MerchantPartner / Aggregator / Distributor executes;
Termination & Equipment Returns: MerchantPartner / Aggregator / Distributor may terminate this Agreement and return the Aircash M-ATM/POS Device in working condition within a period of seven (7) days from the date of termination. Return of Aircash M-ATM/POS Device may be subject to payment of Rs.7,500/- (Rupees Seven Thousand and Five Hundred only) as lease cancellation fee if returned within the lock-in period. However, if the equipment is returned after the lock-in period, the MerchantPartner / Aggregator / Distributor may terminate this Agreement and return the Aircash M-ATM/POS Device in working condition to get the device deposit (if paid any in advance). The device deposit (if paid any in advance) will be refunded back to the MerchantPartner / Aggregator / Distributor within 30 days of the receipt of the Aircash M-ATM/POS Device by Aircash, after duly verifying that the equipment has been received in working condition by Aircash. In the event the Aircash M-ATM/POS Device is not returned by the MerchantPartner / Aggregator / Distributor within 30 (Thirty) days from the date of termination, the MerchantPartner / Aggregator / Distributor shall pay to Aircash, an amount of Rs.10,000/- (Rupees Ten Thousand only) against the loss of the Aircash M-ATM/POS Device. It is hereby agreed between the Parties that Aircash shall at all times retain the title to the Aircash M-ATM/Pos Device and ownership and intellectual property rights in all the software, documentation, technology, knowhow and processes embodied in connection with the equipment and the equipment is leased with no representation or warranties, express or implied, statutory or otherwise including without limitation as to the suitability of the equipment for any particular purpose, quality, fitness or otherwise;
Equipment Support: From time to time, at the MerchantPartner / Aggregator / Distributor’s request, Aircash may provide assistance to the MerchantPartner / Aggregator / Distributor to contact with the device manufacturer and assist the MerchantPartner / Aggregator / Distributor in resolving the issue with regards to Aircash M-ATM/POS Device in case device is leased or purchased from Aircash. In the event the issue with Aircash M-ATM/POS Device arises within the warranty period then in that event any costs/charges that maybe incurred by the MerchantPartner / Aggregator / Distributor shall be borne by the manufacturer or the retailer. However, in case the issue arises post the expiry of the warranty period then in that event the same shall be borne by MerchantPartner / Aggregator / Distributor;
Disclaimer of Equipment Warranties: MerchantPartner / Aggregator / Distributor understands that Aircash is not manufacturer of Aircash M-ATM/POS Device used to process electronic payment transactions. For any issue arising out of usage of the provided equipment/device, Aircash will replace the Aircash M-ATM/POS Device only subject to the terms and conditions of the use of such Aircash M-ATM/POS Device and of the manufacturer of the device.
LIMITATION OF LIABILITY
Under no circumstances shall the Company be liable to the other party or any other sub-distributor/aggregator for indirect, incidental, consequential, special or exemplary damages arising from or in connection with this Agreement, even if that party has been advised of the possibility of such damages, such as, but not limited to, loss of revenue or anticipated profits or lost business.
NOTICES
To the Company
Any amendment, notice or other communication under this Agreement by MerchantPartner / Aggregator / Distributor to Company shall be sent by person delivery or courier or email/facsimilie or by registered mail at the addresses set forth below (or at such other address or through such other medium as the Company may previously have notified MerchantPartner / Aggregator / Distributor in writing):-
Kind Attention: Aircash Support Team
Address: Registered Address of the company
Email: support@aircash.in
To MerchantPartner / Aggregator / Distributor
Any amendment, notice, or other communication under this Agreement by Company to MerchantPartner / Aggregator / Distributor shall be sent either by (i) personal delivery or courier or email/facsimilie or by registered mail as provided in application form; (ii) communication on the website and/or platform; or (iii) at such other address or through such other medium as the Company may previously have notified MerchantPartner / Aggregator / Distributor in writing:-
Kind Attention: Account belongs to / Authorized Representation as per Records
Address: Verified Registered Address as per Records
Email: Registered Email ID as per Records
OTHER TERMS
All the general Terms and Conditions, Privacy Policy and other applicable policies as available in the website;
Relationship : Nothing in this Agreement shall be deemed to constitute a partnership between the parties or constitute either Party the agent of the other for any purpose unless it is specified. Either Party shall have no authority, without the prior written consent of an exclusive officer of the other Party, to (i) create any obligation or responsibility on the part of the other Party; (ii) legally bind or obligate the Party in any other manner; and/or (iii) supervise or direct any of the other Party`s employees;
Entire Agreement : This Agreement, terms and conditions provided in the Website and/or platform (as amended from time to time) and any documents referred to in it contain the entire agreement between the Parties, and supersedes any prior agreements, representations or communications, written or oral amongst them relating to its subject mat-ter. This Agreement, including the MerchantPartner / Aggregator / Distributor application, the schedule of fees, the rules, and exhibits expresses the entire understanding of the Parties with respect to its subject matter and except as provided to the contrary herein, reference to this Agreement shall also include all the documents incorporated into this Agreement by reference;
Modifications to Agreement : Notwithstanding anything contrary to this Agreement, the Company has the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Company services and/or platform with notice that Company in its sole discretion deems to be reasonable in the circumstances, including such notice on the website or any other website maintained or owned by the Company for the purposes of providing Company Services in terms of this Agreement. Any use of the Company Services and/or the platform after the publication of any such changes shall constitute acceptance of this Agreement by the MerchantPartner / Aggregator / Distributor as modified. However, any dispute that arose before the modification shall be governed by this Agreement that was in place before the dispute arose;
Specific Performance : MerchantPartner / Aggregator / Distributor agrees that damages may not be adequate remedy and that they shall be entitled to an injunction, restraining order, right for recovery, suit for specific performance or any such other equitable relief as a court of competent jurisdiction may deem necessary or appropriate to restrain the MerchantPartner / Aggregator / Distributor from committing any violation or enforce the performance of the covenants, representations and obligations contained in this Agreement. These injunctive remedies are cumulative and are in addition to any other rights and remedies the Company may have at applicable law or in equity, including a right for damages;
Partial Invalidity : If any provision of this Agreement or the application thereof to any Person or circumstances shall be invalid or unenforceable to any extent for any reason including by reason of any applicable law, the remainder of such provision and/or this Agreement and the application of such provision to persons or circumstances other than those which are held to be invalid or unenforceable shall not be affected thereby, and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law . Any invalid or unenforceable provision of this Agreement shall be replaced with a provision, which is valid and enforceable and most nearly reflects the original intent of the invalid and unenforceable provision;
Additional Services Offered by Aircash : From time to time, Aircash may offer to the MerchantPartner / Aggregator / Distributor additional products and services, which may or may not be related to the processing of electronic financial transactions. In the event of such offers being made to the MerchantPartner / Aggregator / Distributor, MerchantPartner / Aggregator / Distributor shall indicate its desire to Aircash to decline such offers, failing which the MerchantPartner / Aggregator / Distributor shall be deemed to have accepted such offers and be liable for payment therefore. The Parties hereby agree that Aircash reserves the right to modify, alter and impose additional terms and conditions as may be decided by Aircash at its sole discretion and the same shall be effective and binding on both the Parties to the transaction;
MerchantPartner / Aggregator / Distributor Dispute Notification : MerchantPartner / Aggregator / Distributor is responsible for the timely reconciliation of all issues related to services provided under this Agreement. MerchantPartner / Aggregator / Distributor must submit any dispute to Aircash in writing within sixty (60) days of the initial posting of the disputed item to the MerchantPartner / Aggregator / Distributor Account or appearance of the disputed item on the MerchantPartner / Aggregator / Distributor’s statement. If a dispute arises out of or relating to the interpretation, construction, meaning and operation or effect of this Agreement or any breach, both the Parties agrees to refer the dispute to arbitration as per Clause 11.
FORCE MAJEURE
The obligations of each Party under this Agreement shall be suspended during the period and to the extent that that Party is prevented or hindered from complying with them by any cause beyond its reasonable control, including (insofar as beyond such control but without prejudice to the generality of the foregoing expression) strikes, lock-outs, labour disputes, act of God, war, riot, civil commotion, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm, difficulty or increased expense in obtaining workmen, materials, unavailability of communication system, goods or raw materials in connection with the performance of this Agreement. In the event of either Party being so hindered or prevented, the Party concerned shall give notice of suspension to the other Party as soon as reasonably possible, stating the date and extent of the suspension and its cause, and the omission to give such notice shall forfeit the rights of that Party to claim suspension. Any party whose obligations have been suspended as aforesaid shall resume the performance of those obligations as soon as reasonably possible after the removal of the cause and shall so notify the other party. In the event that the cause continues for more than six months, either Party may terminate this Agreement by giving the other Party prior 30 days' notice.
JURISDICTION
This Agreement shall be subject to the laws of India. The Parties submit themselves to the exclusive jurisdiction of the Courts at Kolkata.
ARBITRATION
Any dispute or differences whatsoever arising between any of the Parties out of or relating to the interpretation, construction, meaning and operation or effect of this Agreement or any breach thereof shall be first attempted to be settled amicably by such Parties by negotiations and if such a effort fails within thirty days of the commencement of negotiations, then by arbitration in accordance with the Arbitration and Conciliation Act, 1996 (“the Act”) and rules thereunder, and the award made in pursuance thereof shall be binding on the parties.
The parties agree that the arbitration proceedings shall be conducted by way of submission of written pleadings, documents and submissions made by the parties without any oral hearing. The parties agree that the written pleadings will be submitted to the Arbitral Tribunal appointed under the Act who will resolve the dispute and differences hereunder by fast track procedure. The Arbitral Tribunal shall take a decision in a time bound manner after considering only such written arguments. The decision or award so given by the Arbitral Tribunal shall be binding on the parties hereto. In case, one of the parties does not take part in the arbitration proceedings and/or obstruct the arbitration proceedings, the Arbitral Tribunal shall pass ex-parte order which would be enforceable on both the parties.
COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which when so executed and delivered shall be deemed an original but all of which together shall constitute one and the same instrument and any Party may execute this Agreement by signing any one or more of such originals or counterparts. The delivery of signed counterparts by facsimile transmission or electronic mail in “portable document format (pdf)” or providing consent on website/platform shall be as effective as signing and delivering the counterpart in person.
MISCELLANEOUS
Each Party is responsible for its employee's actions while such employee in its scope of employment. The Parties do not intend to confer any benefits under this Agreement to any person apart from the Parties. Each Party is also responsible for procuring, maintaining and servicing all equipment and software necessary to allow it to engage with the other Party systems, as well as for all related internet, telecommunication, mobile phone (including SMS charges and mobile data plan fees) and other similar fees.
SURVIVAL
The provisions of this Agreement, which by their nature are intended to survive the termination or of this Agreement, including without limitation, the provisions of Clause 23 (Representations and Warranties), Non-compete, non-solicitation and non-disclosure covenants, Intellectual Property, Confidentiality, Indemnity and Miscellaneous shall survive the termination of this Agreement.
This is a General Agreement. Exclusive and Non-Exclusive can be processed as per request.