This Terms and Conditions (“Terms and Conditions”) is between you (“Merchant”) and Mswipe Technologies Private Limited (“Mswipe”) and governs your use of Mswipe’s services. These terms and conditions shall be applicable in respect of each and every transaction involving payment by means of a Valid Mode. By clicking “I Accept” or “I Agree” on the signup page, or by accessing and using our products and/or services in any way, you agree to be bound by these terms and conditions.
1.1. “Application” means the Application Form, whether physical or digital,
submitted by the Merchant and verified and accepted by Mswipe for the purpose of
availing Mswipe’s services.
1.2. “Card Member” or “Member” or “Customer” or “Cardholder” shall mean a
person making payment using a Valid Mode.
1.3. “Chargeback” means any dispute regarding a Valid Charge raised by a
Cardholder/ Customer with the issuing bank and/or the card scheme.
1.4. “Equipment” shall mean the equipment specified in the Application as may be
provided or sold for authorization by Mswipe to the Merchant. Equipment does not
include Mswipe’s systems (embedded and supporting software), confidential
documentation or any related and other Intellectual Property Rights supplied by
Mswipe.
1.5. “Features” means the additional services or features offered by Mswipe through
the Mswipe Gateway, including, but not limited to, credit against authorisation
(“CAAT”), Mventry, ATMLe, ATMExpress, MQR, Pay by Link etc. on the terms and
conditions more clearly specified herein.
1.6. “Intellectual Property Rights” shall deem to mean and include all copyright,
designs, inventions patents, service marks, trademarks (in each case, whether
registered or arising at common law, or its overseas equivalent) or applications for
any of these, formulations, trade names, business names, inventions, discoveries,
trade secrets, know-how, source code, object code, technical information,
commercial and financial data and all other industrial or intellectual property
rights
(whether or not registered).
1.7. “Merchant Discount Rate” or “MDR” means with respect to each Transaction
Amount a percentage thereof as specified in the Application. Provided however that
the Merchant Discount Rate may be revised from time to time by Mswipe and Mswipe
will intimate Merchant of any such change.
1.8. “Mswipe Gateway” means and includes the software, applications and systems
of Mswipe and or its service providers through which a Valid Charge and payment of
the Valid Charge to the Merchant is processed.
1.9. “Facility Providers” means various bank or banking entity, card association,
software providers, as well as third party service providers associated with Mswipe
that participate in authorization / facilitation in settlement of Valid Charges to
the
Merchant
1.10. “Other Equipment” means devices such as android or other cell phones,
bluetooth printer etc. that may be sold by Mswipe to the Merchant on an outright
sale basis as specified in the Application.
1.11. “Other Mode(s)” shall mean modes of payment other than Valid Cards,
including, without limitation, MQR, UPI, Amazon Pay, or such other modes as may
be communicated by Mswipe from time to time.
1.12. “Support Services” shall mean transaction processing services through Mswipe
Gateway and help desk service on Mswipe’s standard terms and conditions.
1.13. “Transaction Amount” shall mean the amount payable by the Customer using
the Valid Mode for the product/ service offered by the Merchant inclusive of
shipping
charges and other taxes, duties, cost, charges and expenses in respect of the
product
/ service that are to be charged to the Cardholder/ Customer.
1.14. “Transaction Receipt” means the digital/physical receipt generated after
authorisation of a Valid Charge provided to the Customer and the Merchant recording
the charges and transaction details.
1.15. “Valid Card” shall mean a VISA/MasterCard/American Express/Rupay or any
other debit or credit card issued as per the rules of any such card association as
notified by Mswipe from time to time bearing signature of the holder.
1.16. “Valid Charges” is a charge within the amount authorized in accordance with
Clause 15 herein below, which is charged to the Customer (i) on a Transaction
Receipt acceptable to Mswipe, bearing details of the Valid Mode and wherever
applicable, bearing the same signature as that on the Valid Card; and (ii) using the
Equipment with Transaction Receipt generated from the Equipment after swiping or
dipping the Valid Card or using the Other Mode, and wherever applicable, bearing
the same signature as that on the Valid Card.
1.17. “Valid Mode” shall mean collectively the Valid Card and the Other Modes.
2.1. Mswipe hereby grants the right to avail the Support Services for a monthly fee
as specified in the Application and the installation and delivery charges with
respect
to the Equipment in accordance with the terms and conditions mentioned herein.
The Merchant shall also be entitled to avail various Features offered by Mswipe on
the terms and conditions prescribed herein below.
2.2. The Merchant agrees and acknowledges that Mswipe has granted to the
Merchant only a limited right to use the Equipment as per these Terms and
Conditions within the territory of India and the ownership will remain with Mswipe
except in case of purchase of Equipment. Upon termination of the arrangement
between the Merchant and Mswipe, the Merchant shall be responsible to pay the
price of the Equipment(s) and/or return of the functional Equipment(s) save and
except where the Equipment is purchased by the Merchant.
2.3. Except as specifically provided in these Terms and Conditions, all Features
provided by Mswipe shall be subject to the standard transaction processing terms
and conditions provided herein.
3.1.1. The Merchant may avail the ‘ATMLE’ feature offered by Mswipe by paying an
annual activation fees as may be prescribed by Mswipe from time to time. By availing
‘ATMLE’, the Merchant shall be entitled to provide the cash@POS service to its
Customers in accordance with these terms and conditions.
3.1.2. The Merchant shall be entitled to receive fixed commission for each ATMLE
transaction which shall be credited to the Merchant along with the Valid
Charges.
3.1.3. The Merchant undertakes to use the ‘ATMLE’ services for its Customers only
and shall not take undue advantage of the feature by swiping or dipping their own
or their relatives Valid Cards.
3.1.4. The Merchant agrees and understands that all ‘ATMLE’ transactions shall be
subject to the applicable laws and shall be undertaken in accordance with the RBI
guidelines as may be applicable.
3.1.5. Mswipe reserves the right to impose limitation on the number of transactions
or amounts that can be withdrawn through ATMLE using a particular Valid Card or
on the Equipment.
3.1.6. The Merchant agrees and undertakes to collect all such documents from the
Customers availing the cash@POS services as may be notified by Mswipe from time
to time.
3.2.1. The Merchant may avail the ‘ATMExpress’ feature offered by Mswipe by
availing the equipment as may be made available by Mswipe from time to time and
by paying an annual activation fees as may be prescribed by Mswipe from time to
time. By availing ATMExpress, the Merchant shall be entitled to provide cash
withdrawal services against Valid Charge created by the Customers in accordance
with these terms and conditions.
3.2.2. The Merchant shall be entitled to receive fixed commission for each
ATMExpress transaction which shall be credited to the Merchant along with the Valid
Charges.
3.2.3. The Merchant undertakes to use the ATMExpress services for its Customers
only and shall not take undue advantage of the feature by swiping or dipping their
own or their relatives Valid Cards.
3.2.4. The Merchant agrees and understands that all ATMExpress transactions shall
be subject to the applicable laws and shall be undertaken in accordance with the
RBI guidelines as may be applicable.
3.2.5. Mswipe reserves the right to impose limitation on the number of transactions
or amounts that can be withdrawn through ATMExpress using a particular Valid Card
or on the Equipment.
3.3.1. The Merchant may avail the credit against authorised transactions (“CAAT”)
feature offered by Mswipe wherein the Valid Charges for all authorised transactions
shall be credited to the Merchants account, except under circumstances beyond the
reasonable control of Mswipe. The Merchant agrees to pay a premium MDR as may
be prescribed by Mswipe from time to time on each transaction for availing the CAAT
feature.
3.3.2. The Merchant agrees and understands that for availing the CAAT feature the
Merchant’s right to void or cancel any transaction shall be suspended.
3.4.1. Mswipe may offer an inventory management platform ‘Mventry’ to its
Merchants through which the Merchants can manage inventory, invoices, payments,
customers, etc.
3.4.2. Merchant may register itself on the Mventry platform by paying a one-time
installation fees and a monthly subscription fees, as may be notified by Mswipe from
time to time.
3.4.3. Upon installation, Mswipe shall provide the Merchant login details for
accessing the Mventry. Merchant agrees and understands that Mswipe is only a
platform provider and the Merchant shall at all times be responsible and liable for
the inventory data, pricing details and other such details provided by the Merchant
on Mventry.
3.4.4. The Merchant understands that the performance of Mventry is dependent on
the data provided by the Merchant and shall ensure that the data provided on
Mventry is updated on a regular basis.
3.5.1. The Merchant undertakes to facilitate disbursement of pre-approved loan
amounts from lenders enlisted with Mswipe to Customers through Mswipe Systems in
accordance with the term of this Agreement (“POS EMI”).
3.5.2. The Customer may request disbursement from lender through Mswipe System
for purchase of goods and services from the Merchant and the Merchant shall initiate
the processing of the POS EMI request in the manner as intimated by Mswipe from
time to time. However, the Merchant shall deliver its goods and services only upon
receipt of authorization by the lender through Mswipe System.
3.5.3. Upon authorization in the manner as provided in Clause 3.4.2 above, all EMI
POS transactions shall be presented and settled in accordance with terms of this
Agreement. For the purpose of POS EMI transactions, “Valid Charges” shall mean a
charge within the amount authorized by the lender, which is charged to the
Customer on a Transaction Receipt in the form and manner prescribed by Mswipe.
3.5.4. The Merchant agree and acknowledges that Mswipe shall be entitled to deduct
MDR for POS EMI transactions as may be notified by Mswipe from time to time.
3.5.5. It is hereby clarified that Mswipe is only facilitating disbursement of
preapproved loans from the lender to the Customer. The Merchant shall be solely
responsible for settling and/or processing any refund claim that may be raised by
Customer relating to POS EMI transactions.
3.6.1. The Merchant may avail “Moneystore” application store developed by Mswipe
and made available to Merchants accessible through certain notified Equipment
only. Mswipe may, at its sole discretion charge fee on making the Moneystore
available, as may be intimated by Mswipe to the Merchant from time to time.
3.6.2. The Merchant agrees and understands that Mswipe is merely providing a
platform to the Merchant to access and use applications/software available on
Moneystore and usage of such applications and software shall be governed by terms
and conditions of such application/software and Mswipe shall not be responsible for
any such usage and access of application/software.
3.6.3. The Merchant agrees and acknowledges that Mswipe is not making any
representations and warranties on behalf of such applications and software.
3.7.1. For availing QR Code based payment option provided by Mswipe (“MQR”), the
Merchant shall register on the MQR platform in the manner as may be notified by
Mswipe from time to time. Upon installation of MQR on the Merchant’s system, the
Merchant shall be provided with login credentials which shall be used for processing
all transactions for purchase of Merchant’s goods and services through MQR.
3.7.2. The Merchant undertakes to use the MQR mode of payment for the Customers
only and shall not take undue advantage of the feature by scanning Merchant’s own
or Merchant’s relatives’ payment application.
3.7.3. Mswipe at all times reserve the right to impose limitation on the number of
transactions or amounts that can be paid through MQR available at the Merchant’s
location.
3.7.4. The Merchant acknowledge that Mswipe shall be entitled to charge MDR on all
transactions processed through MQR which may be different from the MDR charged
by Mswipe on transactions through Mswipe’s other features and services.
3.7.5. The Merchant agree and understand that Mswipe is only a payment facilitator
and the Merchant shall at all times be responsible and liable for the payment data
and other such details provided by the Customer through Mswipe System.
3.8.1. The Merchant may avail the ‘Pay by Link’ feature provided by Mswipe wherein
the Merchant may generate a payment link for collecting /receiving payment from
the Customer for the purchase of goods and services undertaken by such Customer
at the Merchant’s establishment/ from the Merchant.
3.8.2. For generating a payment link through ‘Pay by Link’ feature, the Merchant
will have to initiate a request for receiving payment by providing required
information/ details which may include but is not limited to name of the Customer,
mobile number and email of the Customer, validity period of the payment link,
invoice number.
3.8.3. Upon generation and receipt of the payment link by the Customer, the
Merchant shall ensure that the Customer makes payment through any of the Valid
Modes supported by the payment link.
3.8.4. The Merchant agrees and acknowledges that ‘Pay by Link’ is only facilitating
payment for transaction wherein the payment may be made by any of the Valid
Modes. For avoidance of doubt, any transaction undertaken through ‘Pay by Link’
feature will be deemed as a transaction undertaken through a Valid Mode and the
presentment, authorization and settlement of such transaction will be subject to
Clause 15 (Authorization), Clause 16 (Transaction Handling), Clause 17 (Merchant
Discount Rate and Transaction Receipt Presentment), Clause 18 (Presentment of
Transactions and Refunds), Clause 19 (Payment of Transaction Amount) and Clause
21 (Chargeback).
3.8.5. The Merchant shall use Pay By Link feature only for products and services
mentioned in approved by Mswipe and for no other products or services. In case of
any deviation from the services without prior written approval of Mswipe, the
Merchant undertakes to abide by the decisions of Mswipe including suspension of the
pay out or refund to Customer or termination of Mswipe’s services, at Mswipe’s sole
and absolute discretion which shall be final and binding on the Merchant.
4.1. At the time of installation of the Equipment and the Features availed by the
Merchant, Mswipe’s representative may train the Merchant about the procedure for
using the Equipment along with the Other Equipment and such availed Features.
4.2. To provide Support Services, the Equipment is embedded with Mswipe’s systems
and software and Mswipe also provides confidential documentation and other
Intellectual Property Rights (“Mswipe Systems”). The Merchant agrees and
acknowledges that no rights in such Mswipe Systems are being sold by Mswipe to the
Merchant and all the right, title and interest in the Mswipe Systems shall at all
times
belong to Mswipe. Further, no separate charges are recovered by Mswipe from the
Merchant for providing the Mswipe Systems and Mswipe recovers only the monthly
charges for right to avail the Support Services pursuant to these terms and
conditions, which cannot be provided in the absence of Mswipe Systems. It shall
further be deemed that Mswipe has given limited license to use Equipment and the
Intellectual Property Rights in the Mswipe Systems to Merchant during the period
when Mswipe is providing Support Services to the Merchant. The Merchant agrees
and acknowledges that except the rights expressly granted under these Terms and
Conditions, the Merchant shall have no right in the Equipment including but not
limited to the Intellectual Property Rights in or to the Equipment or the Mswipe
System.
4.3. The Merchant shall at all times during the period of use of the Equipment avail
the Support Services provided by or on behalf of Mswipe.
5.1 These terms and conditions shall be applicable to all Merchants availing Amazon Services and shall be in addition to the terms and conditions specified above. The Merchants using the Amazon Services shall be subject to the Terms and Conditions, these Additional Terms and Conditions, Amazon Pay Balance Service Terms And Programme Policies (collectively referred to as “Amazon Services T & C”). If there is any conflict between the Terms and Conditions, Additional Terms and Conditions, Programme Policies and the e-Payment Service Terms or the Amazon Pay Balance Service Terms, the Programme Policies will govern. If there is any conflict between these General Terms and the Service Terms, the Service Terms will govern.
5.2 Definitions
As used in this clause, the following terms have the following meanings:
5.2.1 “Amazon Services” shall mean the Amazon QR Code on the Soundbox through
which Merchants can collect payments from Customers in respect of sale of Merchant
products using the payment method, including but not limited to e-Payment Method
and Amazon Pay Balance Method and shall include the Alert Services provided
through the Soundbox. By clicking “I Accept” or “I Agree” on the signup page, or by
accessing and using our products and/or services in any way, the Merchant agrees to
be bound by these terms and conditions as specified above.
5.2.2 "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 Mswipe or Amazon, "Affiliate" means solely its Affiliates
domiciled in India.
5.2.3 "Amazon Associated Properties" " means any website or other online
point of
presence, other than the Amazon Pay Site, through which any services available
thereon are syndicated, offered, merchandised, advertised or described.
5.2.4 "Amazon Pay Balance" means the value in the semi-closed loop pre-paid
instrument (including stored value account or gift card) issued by Amazon or a third
party which is co-branded with its brand name, to enable customers to utilize such
stored value account/ payment instrument to purchase goods and/ or services from:
(a) merchants who have a specific contract with Amazon to accept such stored value
account/ payment instrument on their website(s)/ online or offline point(s) of
presence; and/ or
(b) merchants who have specific contracts with payment
aggregators/ payment gateways/ digital marketplaces that accept such stored value
account/ payment instrument.
5.2.5 "Amazon Pay Site" means https://amazonpay.in, which will be available
at
launch of the Amazon Service.
5.2.6 "Amazon Pay User Agreement" means Amazon Pay User Agreement
(https://www.amazonpay.in/help/202125300).
5.2.7 "Amazon Transaction Information" means, collectively, Transaction
Information, and any other data or information including customer information
acquired by Merchants from Mswipe and/or Amazon or its Affiliates, or otherwise as
a result of the Agreement, the transactions contemplated hereby or the parties'
performance hereunder.
5.2.8 "Business Days" " means any day of the week (excluding Saturdays,
Sundays and
public holidays) on which commercial banks are open for business in New Delhi,
India; Mumbai, India; Seattle, Washington, United States of America; Luxembourg;
and the Republic of Singapore.
5.2.9 "Content" " means copyrightable works including images, logos,
specifications,
code, documents, data, software, software development kits, libraries, application
programming interfaces, and other information, technology, related materials and
other content protected under applicable Laws.
5.2.10 "Intellectual Property Rights" means any patent, copyright, Trademark,
moral right, trade secret right or any other intellectual property right arising
under
any Laws and all ancillary and related rights.
5.2.11 "Law(s)" means any law, ordinance, rule, regulation, order, licence,
permit,
judgment, decision or other requirement, now or hereafter in effect, of any
governmental authority of competent jurisdiction.
5.2.12 "Local Currency" means Indian Rupees (INR).
5.2.13 "Merchant" means merchants registered for Mswipe service(s), which
integrate and launch the Amazon Services at the Merchant Store.
5.2.14 "Merchant Products" means any product, whether in the physical or
digital
form, or any service that is made available at the Merchant Store for sale, offered
for sale or sold by the Merchant or other third party merchants through the Amazon
Service. Since the term "Merchant Product" includes physical goods and services, the
references to the said defined term in this Agreement shall be construed in relation
to the context in which it the term is used.
5.2.15 "Merchant Store(s)" " means the physical shop, store, outlet or any
other
premises controlled and/or operated by the Merchant where Merchant Products are
offered for sale.
5.2.16 "Merchant Trademarks" means Trademarks of Merchants that it provides
to
Mswipe: (a) in non-text form for branding purposes; and (b) separate from (and not
embedded or otherwise incorporated in) any product specific information or
materials.
5.2.17 "Merchant Transaction" means any sale of Merchant Product(s) through
the
Amazon Service.
5.2.18 "Payment Method" means either or both of the two options chosen by
Merchants for acceptance of electronic payments towards the sale of Merchant
Products at the Merchant Store, (a) Amazon Pay Balance ("Amazon Pay Balance
Method"); or (b) other electronic payment methods being the functionality
made
available by Amazon to enable customers of Merchant to use an quick response code
or VPA to make payments in respect of sale of Merchant Products using payment
methods that may be offered and enabled by third-parties ("e-Payment
Method(s)") .
5.2.19 "Person" " means any individual, company, corporation, partnership,
limited
liability partnership, governmental authority, association, joint venture, division
or
other cognizable entity, whether or not having distinct legal existence.
5.2.20 "Programme Policies" " means all terms, conditions, policies,
guidelines, rules
and other information on the Amazon Pay Site or on Seller Central, including those
shown on the "Policies and Agreements" section of Seller Central or elsewhere in the
"Help" section of Seller Central.
5.2.21 "Seller Central" means the online portal and tools made available by
Amazon
to Mswipe, for managing transactions and access to the Amazon Pay Site.
5.2.22 "Service Terms" means the service terms specific to the Amazon
Services (in
the case of Amazon Pay Balance Method, the Amazon Pay Balance Service Terms and
in the case of the e-Payment Method, the e-Payment) set forth herein and as
amended from time to time.
5.2.23 "Technology" means any: (a) ideas, procedures, processes, systems,
methods
of operation, concepts, principles and discoveries protected or protectable under
the Laws of any jurisdiction; (b) interfaces, protocols, glossaries, libraries,
structured XML formats, specifications, grammars, data formats, or other similar
materials; and (c) software, hardware, code, technology or other functional item.
5.2.24 "Trademark"means any trademark, service mark, trade dress (including
any
proprietary "look and feel"), trade name, other proprietary logo or insignia or
other
source or business identifier, protected or protectable under applicable Laws.
5.2.25 "Transaction Information" means, with respect to any of Merchant
Products,
the transaction information posted on Seller Central constituting transaction
details,
shipping address, contact details and email address of Merchant's customers and
other related information that is made available to the Merchant.
5.2.26 "Merchant Materials" means all Technology, Merchant’s Trademarks,
Merchant’s Content, Required Product Information, data, materials, and other items
provided or made available by Merchant to Mswipe or Amazon or its Affiliates.
5.2.27 "Merchant Taxes" means any and all value added, service, sales, use,
excise,
import, export, goods and service tax and other taxes and duties assessed, incurred
or required to be collected or paid for any reason in connection with any
advertisement, offer or sale of Merchant Products by Merchants on or through or in
connection with the Amazon Services, or otherwise in connection with any action,
inaction or omission of Mswipe or its Affiliates or Merchants or their respective
employees, agents, contractors or representatives.
5.2.28 "Merchant Trademarks" " means Trademarks of the Merchant that Merchant
provides to Mswipe: (a) in non-text form for branding purposes; and (b) separate
from (and not embedded or otherwise incorporated in) any product specific
information or materials.
5.3 The Merchant hereby irrevocably and unconditionally authorises Mswipe to (i)
collect payments on the behalf of Merchant from amazon customers towards its
Products using the payment method. The Merchant hereby agrees to accept and/or
enter into such agreements/arrangements, documentation, Programme Policies as
intimated by Amazon in relation to the Amazon Services from time to time, prior to
integration and/or use of the Amazon Services at the Merchant Store.
5.4 The Merchant hereby undertakes to provide Mswipe with their up to date
business' legal name, details of business undertaken, address of their place of
business, date of establishment, phone number, e-mail address, copy of PAN card
and VAT or Service Tax or Goods and Services Tax Registration details (as
applicable)
and any other related information/documents as requested by Mswipe from time to
time. The Merchant further agrees to keep Mswipe updated of any change or
modification in the above-mentioned information or details. Mswipe shall not be
responsible for any claims or damages arising due to incorrect or inaccurate
information provided by the Merchant and shall be indemnified by the Merchant
against any claim arising due to reasons attributable to the Merchant.
5.5 Mswipe or Amazon shall, at the expense of the Merchant, be entitled to engage
a third-party auditor, in its sole discretion ("Auditor"), who will examine and
provide
a report to Mswipe, any records, information and/or other data or documents of the
Merchants that are necessary to establish the Merchants' compliance or noncompliance
with their obligations as specified under the Amazon Services T&C.
Merchant hereby agrees to co-operate with such in such audit and provide such
information and documents as may be requested by the Auditor or Mswipe.
The Merchants undertake not to engage in the sale of products and services
prohibited/restricted under the Acceptable Use Policy of Amazon
(https://www.amazonpay.in/help/6023) and shall comply with
its provisions at all
times.
5.6.1 In addition, the Merchant agrees that:
(a) it shall offer the Payment Method as a payment option to its customers at its
store;
(b) it will be solely responsible for, and bear all risk and liability for its
products and
its store including but not limited to the use or display of content (in a manner
not permitted under this Amazon Services Terms and Conditions) or other
materials at its store;
(c)it shall display the Amazon Logo prominently at its stores, at least as
prominently
as the most prominent of any other third-party authentication service logo
offered at its stores and comply with Style Guidelines available on
https://www.amazon.in/merchant-tools.
(d) if provided, it shall not use the Amazon Pay APIs for any purposes other than
the
transactions through the Amazon Services and particularly not for the purpose of
monitoring the availability, performance, or functionality of any of Amazon Pay's
products or services;
(e) if it is allowed to cache data received using the Amazon Pay API, it shall
refresh
the data at such interval as specified by Mswipe;
(f) it shall not use customer data to promote or export to a third-party, without
written permission of Mswipe;
(g) if it stops using the Amazon Services, it must delete all information about a
customer received from Mswipe except the customer's name, email address and
the transaction history;
(h) it shall keep Mswipe informed at all times about its business activities and the
nature of products including whenever it discontinues or launch any new products
(whether digital or physical, or services) or whenever there is a change in the
nature of products offered for sale at its store;
(i) it shall delete all data received from Amazon and/or Mswipe concerning a
customer if Mswipe or its customer asks it (as the case may be) to do so, and it
will provide, an easily accessible mechanism for customer to make that
request. It may be asked to delete the date data received from Amazon and/or
Mswipe if it violate any of the terms herein;
(j) it shall ensure that its infrastructure is in compliance with the 'Payment Card
Industry-Data Security Standard' (PCI-DSS) and 'Payment Application-Data
Security Standard' (PA-DSS), and it will, from time to time and on a request from
Mswipe, share a report confirming compliance with foregoing standards;
(k) it shall not save or store any payments data or any other related data, except
for
the limited purpose of transaction tracking, and it authorize and permit Mswipe
and/or Amazon to undertake a security audit of its systems and servers
associated with the Amazon Services to verify the compliance with the foregoing;
(l) it, at all times, shall ensure to secure and maintain the privacy of the
customer
data;
(m) it shall report any security incidents or card holder data breaches to Mswipe
immediately as soon as the incident is identified, and it shall also furnish any
additional information regarding such breach as Mswipe may seek, including root
cause analysis and preventive actions undertaken;
(n) it shall provide access to its technical infrastructure and systems, on a
request
from Mswipe, to enable Mswipe and/or Amazon to monitor and handle cyber
security incidents and breaches;
(o) it shall provide periodic security assessment reports based on request from
Mswipe, if required under applicable Laws and allow Mswipe with access to its
systems and infrastructure, in order to conduct security assessment periodically
as per applicable Laws;
(p) it shall ensure that it shall be solely responsible (without any involvement
from
Mswipe) to handle and redress any customer grievances or disputes in connection
with the Products sold at its store, in all manner and also establish appropriate
processes (including responsibilities, turn-around-time, etc.) for the same;
(q) it shall provide Mswipe with any information pertaining to terms herein that
Mswipe reasonably request to verify its compliance with terms herein.
5.7 Merchant shall only use a name it is authorized to use in connection with the
Amazon Services and will update such information as necessary to ensure that it
remains accurate and complete at all times. Merchant further authorizes Mswipe to
verify its information (including any updated information), and to charge its bank
account for any sums payable by it to Mswipe in accordance with the terms herein
including taxes. All payments to Merchant (including payment for all merchant
transactions) will be made to its bank account, via cheque or electronic transfers,
or through any other means specified by Mswipe. Merchant agrees that Mswipe will
not be liable for any failure to make payments to Merchant as a result of incomplete
or inaccurate information provided by it with respect to its bank account or any
other relevant account information. Merchant further agrees that Mswipe will not
be liable for failure to make any such payments to the Merchants in relation
merchant transactions.
5.8 In addition to our aforesaid right, Mswipe may instead choose to either (a)
offset
any amounts including tax that are payable by Merchant to Mswipe and/or Amazon
against any payments Mswipe and/or Amazon may make to Merchant, (b) invoice
Merchant for amounts (including taxes) due to Amazon and/or Mswipe, in which case
Merchant shall pay the invoiced amounts and taxes upon receipt of the invoice; or
(c) seek payment by any other lawful means. Except as provided otherwise, all
amounts contemplated herein will be expressed and displayed in the Local Currency
(INR), and all payments contemplated herein will be made in the Local Currency. If
Mswipe discover erroneous or duplicate transactions, Mswipe reserve the right to
obtain reimbursement from Merchant by deducting from any future payments owed
to Merchant or seeking reimbursement by any other lawful means. Mswipe’s right to
obtain reimbursement from Merchant will not limit its rights to dispute, in good
faith
dispute, any amounts Mswipe maintain are due or payable.
5.9 If Mswipe concludes based on information available with it, that Merchant's
actions or performance in connection with the terms herein may result in a
significant number of customer disputes, chargebacks or other claims in connection
with Merchant's use of the Amazon Services, then Mswipe may, in its sole discretion
and subject to applicable law, delay initiating any payments to be made or that are
otherwise due to Merchant (including payment for merchant transaction) for the
shorter of: (a) a period of ninety (90) days following the initial date of
suspension of
payments; or (b) completion of any investigation(s) regarding Merchant's actions or
performance in connection with terms herein.
5.10 Merchant grants Mswipe a royalty-free, non-exclusive, worldwide, irrevocable
right and license during the term to use, reproduce, perform, display (public
communication), distribute, adapt, modify, re-format, any and all of Merchant
Materials, and to sublicense the foregoing rights to our Affiliates and operators of
Amazon Associated Properties for the purpose of terms herein. It is hereby clarified
that Mswipe will alter any of Merchant Trademarks from the form provided by it only
to re-size trademarks to the extent necessary for presentation, so long as the
relative proportions of such trademarks remain the same and will comply with
removal requests of Mswipe as to specific uses of Merchant Trademarks. Nothing in
terms herein will prevent or impair Mswipe’s right to use Merchant Materials without
Merchant consent to the extent that such use is allowable without a license from
Merchants (as the case may be) under applicable law. Merchant undertake that it
will, from the date it begins using the Amazon Services, place the Amazon Logo at
its Stores and use the Amazon Logo in accordance with the Style Guidelines
(https://www.amazon.in/merchant-tools) of Amazon.
5.11 Merchant represent and warrant to Mswipe that: (a) it is a business duly
organized, validly existing and in good standing under the laws of the territory in
which its business is registered, and that it is a resident of India for income tax
purposes; (b) it have all requisite right, power and authority to enter into terms
and
condition and perform its obligations and grant the rights, licenses and
authorizations it grants hereunder; (c) it will comply with all applicable laws
(including directions issued by Reserve Bank of India for the opening and operation
of accounts and settlement of payments for electronic payment transactions
involving intermediaries) in performance of its obligations and exercise of its
rights
under the terms herein; (d) it will not allow usage of the Amazon Pay Balance Method
to buy another semi-closed pre-paid instrument and will ensure compliance to the
Master Direction on Issuance and Operation of Prepaid Payment Instruments dated
October 11, 2017 (and as updated thereafter); (e) it will comply with all applicable
import, re-import, sanctions, anti-boycott, export, and re-export control laws; (f)
it
will not sell any fake, counterfeit or prohibited products at its store; and (g) it
have
and will always provide terms and conditions at its store for transactions at its
store,
including for timeline for processing returns and refunds.
Merchant release Mswipe and/or Amazon from, and agree to indemnify, defend and
hold harmless Mswipe and/or Amazon (and its officers, directors, employees, agents
and Affiliates) against, any claim, loss, damage, settlement, cost, taxes, expense
or
other liability (including, without limitation, attorneys' fees) (each, a "Claim")
arising
from or related to: (a) Merchant's actual or alleged breach of any representations
or
obligations in this terms herein; (b) any sales channels owned or operated by
Merchant, Merchant's Products (including the offer, sale, fulfilment, refund,
adjustment, or return thereof), Merchant Materials any actual or alleged
infringement of any Intellectual Property Rights by any of the foregoing, and any
personal injury, death or property damage related thereto; and (c) Merchant Taxes.
If at any time Mswipe determine in its sole discretion that any indemnified Claim
might adversely affect Mswipe, Mswipe may request for exclusive control of the
defense at its expense, subject to mutual agreement from Merchant. Merchant will
not consent to the entry of any judgment or enter into any settlement of a Claim
without our prior written consent, which may not be unreasonably withheld.
5.12 DISCLAIMER
5.12.1 THE AMAZON PAY SERVICES, INCLUDING ALL CONTENT, SOFTWARE,
FUNCTIONS, MATERIALS AND INFORMATION AVAILABLE OR PROVIDED IN CONNECTION
WITH THE AMAZON SERVICES, ARE PROVIDED "AS-IS." AS A USER OF THE AMAZON
SERVICES, MERCHANT'S ACCESS AND USE OF THE AMAZON PAY SITE, THE AMAZON
SERVICES AND ANY ONLINE PORTAL OR TOOL PROVIDED BY AMAZON IS AT MERCHANTS
OWN RISK. OTHER THAN AS SPECIFIED HEREIN, MSWIPE AND THEIR AFFILIATES WAIVE
AND DISCLAIM: (1) ANY REPRESENTATIONS, WARRANTIES, DECLARATIONS OR
GUARANTEES REGARDING TERMS HEREIN, THE AMAZON SERVICES OR THE
TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES,
DECLARATIONS OR GUARANTEES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NON-INFRINGEMENT; (2) IMPLIED WARRANTIES ARISING OUT OF COURSE
OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; AND (3) ANY
OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT
ARISING FROM MSWIPE NEGLIGENCE. MSWIPE DO NOT WARRANT THAT THE
FUNCTIONS CONTAINED IN THE AMAZON PAY SITE OR THE AMAZON SERVICES WILL
MEET MERCHANT'S REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE,
UNINTERRUPTED OR ERROR FREE, AND MSWIPE WILL NOT BE LIABLE FOR ANY AMAZON
SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO SYSTEM FAILURES OR
OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE,
COMPLETION OR SETTLEMENT OF ANY TRANSACTION. SOME JURISDICTIONS' LAWS DO
NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, IN WHICH CASE THE FOREGOING
DISCLAIMER MAY NOT APPLY MERCHANTS, AND MSWIPE AND ITS AFFILIATES DISCLAIM
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALL WARRANTIES OF
ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT
LIMITATION WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT OR QUIET ENJOYMENT.
5.12.2 BECAUSE MSWIPE IS NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMERS
AND MERCHANTS, IF A DISPUTE ARISES, MERCHANTS RELEASE MSWIPE AND/OR
AMAZON (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES)
FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY
KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED,
DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH
SUCH DISPUTES.
5.13 LIMITATION OF
LIABILITY:
MSWIPE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT, DELICT
(INCLUDING NEGLIGENCE, PRODUCT LIABILITY, ANY TYPE OF CIVIL RESPONSIBILITY
OR OTHER THEORY) OR OTHERWISE TO MERCHANT OR ANY OTHER PERSON FOR COST
OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY MERCHANT IN
CONNECTION WITH ARRANGEMENT HEREIN, OR FOR ANY LOSS OF PROFIT, REVENUE,
BUSINESS, OR DATA OR PUNITIVE OR DIRECT OR INDIRECT OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR RELATING TO TERMS HEREIN, EVEN IF MSWIPE HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES. FURTHER,
MSWIPE’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH TERMS
HEREIN OR THE TRANSACTIONS CONTEMPLATED HEREBY WILL NOT EXCEED AT ANY
TIME THE TOTAL AMOUNTS OF REVENUE PAID BY MERCHANT TO MSWIPE IN
CONNECTION WITH THE RELEVANT TRANSACTION.
5.14 Use of Amazon
Transaction Information:
Merchants will not, directly or indirectly: (a) disclose or convey any Amazon
Transaction Information (except it may disclose this information as necessary for it
to perform its respective obligations under terms herein and to comply with the
provisions of applicable laws and provided that it ensure that every recipient uses
the information only for that purpose and complies with the restrictions applicable
to it related to that information); (b) use any Amazon Transaction Information for
any marketing or promotional purposes whatsoever (except as permitted in this
Agreement), or otherwise in any way inconsistent with Amazon or Mswipe or its (as
the case may be) privacy policies or applicable law; (c) contact a Person that has
ordered a Product that has not yet been delivered with the intent to collect any
amounts in connection therewith, to influence such Person to make an alternative
purchase; (d) disparage Amazon or Mswipe, their Affiliates, or any of their
respective
services or any customer; or (e) target communications of any kind on the basis of
the intended recipient being a user of the Amazon Pay Site or the Amazon Associated
Properties. The terms of this Section do not prevent Merchant from using other
information that may be acquired without reference to Amazon Transaction
Information for any purpose, even if such information is identical to Amazon
Transaction Information, provided that Merchant do not target communications on
the basis of the intended recipient being a user of the Amazon Pay Site or Amazon
Associated Properties. To the extent Amazon Transaction Information comprises of
payments data and such related data, Merchant will not to store any such Amazon
Transaction Information, and Merchants will store, if applicable, Amazon
Transaction Information that is in the nature of payments data related to payments
at the Merchant Store locally only in servers or systems located in India.
5.15 Modification:
Mswipe reserve the right to determine and control all aspects (including all
functionality) of the Amazon Services as well as the right to re-design, modify and
remove any or all aspects of them. Mswipe may amend any of the Amazon Services
T & C at any time. All changes to the terms herein shall become applicable upon
notification or updations on the Mswipe website or as per the timeline prescribed by
applicable laws. Changes to Programme Policies may be made without notice.
Merchant should refer regularly to the Mswipe Website, Amazon Pay Site and Seller
Central to understand the current Amazon Services T & C and to be sure that the
each of the Products which Merchants offer for sale can be sold using the Amazon
Services. MERCHANT’S CONTINUED ENROLMENT AND/OR MERCHANT'S CONTINUED
USE OF THE AMAZON SERVICES AFTER MSWIPE OR AMAZON’S POSTING OF ANY
CHANGES WILL CONSTITUTE MERCHANT’S ACCEPTANCE OF SUCH CHANGES OR
MODIFICATIONS.
5.16 Mswipe retains the right to immediately halt or delay any transaction, prevent or restrict access to the Amazon Services in the event any of Merchant Products violate any applicable Law and/or any Amazon Services T & C. Merchant agrees that Mswipe may, in its sole discretion, disclose or make available any information provided or submitted by Merchant or related to its participation under this agreement (including information regarding Merchants, Merchant Products or Merchant Transactions) to any judicial, quasi-judicial, governmental, regulatory or any other authority as may be required by Mswipe to co-operate and / or comply with any of their orders, instructions or directions or to fulfil any requirements under applicable laws.
5.17 Merchant Transactions
5.17.1 Transaction Processing: Mswipe will provide Transaction Information to
Merchant for each Merchant Transaction undertaken through the Amazon Pay
Balance Method. Sales Proceeds will be paid to Merchant only in accordance with
Mswipe’s policy.
5.17.2 Fraud: Mswipe will bear the risk of Merchant Transactions which are
fraudulent in nature and are made using Amazon Pay Balance which is loaded or
reloaded by theft and unauthorized use of a third party's financial information
related
to its credit card, debit card, net banking account or other user credentials, and
Merchant will bear all other risk of fraud or loss. Mswipe may in its sole
discretion
delay, withhold for investigation, refuse to process, stop or cancel any of Merchant
Transactions before authorisation and Transaction being successful. Merchant will
stop or cancel or cause to stop or cancel orders and /or delivery of Merchant
Products if Mswipe ask Merchant to do so (provided that if Merchant have transferred
Merchant Products to the applicable carrier or shipper or have initiated
transmission/delivery of Merchant Products (in the context of services or goods in
the digital form), Merchant will use commercially reasonable efforts to ensure that
it stop or cancel delivery by such carrier or shipper or restrict access to such
transmission/delivery). Merchant will refund any customer (in accordance with
clause 5.18.2) that has been charged for a transaction that Mswipe stop or cancel,
where the delivery has not been done prior to such instructions.
5.17.3 Merchant further agrees to employ suitable measures as prescribed under
applicable Laws at the Merchant Store to monitor and curb the number of Merchant
Transactions which are fraudulent in nature and are made using Amazon Pay Balance
at the Merchant Store.
5.18.1 Sale. In connection with Merchant's use of the Services, the Merchant
will:
(a) not cancel any Merchant Transactions except as may be permitted pursuant to
the terms and conditions of the Merchant or the Seller Central at the time of the
applicable transaction or as may be required under these Amazon Services Terms;
(b) provide to Mswipe information regarding Merchant’s name along with the
location of the Merchant Stores, as maybe required, to enable Mswipe to create a
directory of Merchants for customer awareness and permit Mswipe and/or Amazon
to publicly display such information received from the Merchant for the purposes
stated herein; (c) notwithstanding any other provision of these Amazon Services
Terms, the Merchant shall be the seller of all Merchant Products made available for
sale at Merchant Store and the Merchant shall identify itself as the seller of the
Merchant Products on all packing slips or other information included with Merchant
Products and as the Person to which a customer may return or request for a refund
for Merchant Products, if applicable to the nature of Merchant Product.
5.18.2 Returns and Refunds. Merchant hereby accepts and process returns,
refunds
and adjustments in accordance with these Amazon Pay balance Service Terms and
the refund and/ or returns policy of the Merchant. Merchant will determine and
calculate the amount of all refunds and adjustments (including any taxes, shipping
and handling, or other charges) or other amounts to be paid by Mswipe, on behalf of
the Merchant, to customers in connection with Merchant Transactions (including in
relation to Merchant Transactions that failed) and shall intimate the same to Mswipe
for further processing. The Merchant shall be responsible to reimburse Mswipe for
all amounts to be paid to the customers towards returns and refunds and Mswipe
shall not be responsible for any refunds or returns unless such amounts are received
from the Merchant. For the purposes of making the aforesaid payments to the
customer, Merchant authorizes Mswipe to make such payments or disbursements
from the available Settlement Amount. Mswipe reserves the right to modify or
discontinue the refund policies. It is further clarified that in respect of the
transaction taking place prior to the change will be as per the terms applicable at
the time of the transaction.
5.18.3 A to Z Guarantee and Chargebacks. If Mswipe informs the Merchant that
Mswipe has received a claim under the "A to Z Guarantee" (or any successor program)
offered in connection with the Service on the Amazon Pay Site, or any chargeback
or other dispute, concerning one of Merchant Transactions, the Merchant will deliver
to Mswipe within one (1) day after request by Mswipe (if the claim relates to
digital
products/ services) or two (2) days after request by Mswipe (if the claim relates to
physical goods), to the extent applicable: (a) proof of delivery of Merchant
Product(s); (b) the Amazon transaction identification number; and (c) a description
of Merchant Product(s). If Merchant fails to comply with the prior sentence, or if
the
claim, chargeback, or dispute is not caused by: (y) fraud for which Mswipe are
responsible under these terms; or (z) Mswipe’s failure to make the Transaction
Information available as the same was received by Mswipe, then Merchant will
promptly reimburse Mswipe in accordance for the amount of the customer purchase
(including the Purchase Price, all associated shipping and handling charges and all
taxes and any fees retained by Mswipe hereunder) and all associated credit card
association, bank or other payment processing, re-presentment and/ or penalty fees
associated with the original purchase and any chargeback or refund, in each case to
the extent paid or payable by Mswipe or Amazon or their respective Affiliates.
Mswipe will deduct the applicable MDR for each transaction during the term of these Terms. Unless otherwise agreed in writing, all taxes or surcharges imposed on any of the above-mentioned fees payable by the Merchant to Mswipe will, be payable in addition to the MDR and will be Merchant’s responsibility.
5.20.1 Except as otherwise stated in this Terms and subject to applicable laws, the
Merchant authorizes Mswipe to remit the Settlement Amount (based on
reconciliation undertaken by Mswipe) to Merchant’s designated bank account in
respect of a Merchant Transaction, and Mswipe agrees to remit the Settlement
Amount in accordance with applicable laws. If the Merchant either initially provides
or later changes its bank account information, the date of making the payment of
the Settlement Amount to the Merchant will be deferred for a period of up to 14
days.
5.20.2 In the event that Mswipe elects not to recover from the Merchant a
customer's chargeback, failed payment, or other payment reversal (a "Payment
Failure"), the Merchant irrevocably assigns to Mswipe all its rights, title and
interest
in and associated with that Payment Failure.
Upon termination of these Amazon Pay balance Service Terms in connection with the Amazon Pay Site, all rights and obligations of the parties under these Amazon Pay balance Service Terms with regard to the Amazon Pay Site will be extinguished, except that the rights and obligations of the parties with respect to Merchant Transactions occurring during the Term will survive the termination or expiration of the Term.
(a) In addition to the General Terms, Merchant agree that the price stated by
Merchant for its Products is exclusive of all taxes including VAT/ CST, customs
duty,
excise duty, service tax, GST or other tax or levy that Merchant may be required to
remit in connection with such sale.
(b) All payments by Mswipe to Merchant will be made subject to any applicable
withholding Taxes under the applicable Law. Mswipe will retain, in addition to any
other amounts it may retain under this Agreement (including its net fees together
with any applicable Taxes Mswipe determines it is obligated to charge or collect on
the fees), an amount equal to the legally applicable withholding Taxes at the
applicable rate.
(c) If Merchant is required to deposit withholding tax in the form and manner as
prescribed under applicable Laws, Merchant will issue an appropriate tax
withholding certificate for such amount to Mswipe.
(d) Merchant may submit a reimbursement claim with a valid tax withholding
certificate in Form 16A within one month from the due date of issuance of Form 16A
as per statutory timelines. Mswipe shall reimburse the claim post verification and
reconciliation with Merchant Service Fee as per books of accounts. Mswipe will have
right to reject the claim if the claimed amount does not match with service fees
invoices. Mswipe shall maintain the right to recover any excessive claims paid to
Merchant.
(e) Mswipe may, but will not be required to, obtain an order for lower or NIL
withholding tax from the Indian revenue authorities. In case Mswipe successfully
procures such an order, it will communicate the same to Merchant. In that case, the
amounts retained will be in accordance with the directions contained in the order
as in force at the point in time when tax is required to be deducted at the source.
Amazon Pay Balance Definitions
"Purchase Price" means the total gross amount payable or paid by a customer
for
Merchant Product (including taxes and customs duties).
"Sales Proceeds" means the gross sales proceeds paid by customers in the
course of
any of your Merchant Transactions, including the Purchase Price, all shipping,
handling, convenience, gift wrap and other charges, any taxes and customs duties.
"Settlement Amount" means Sales Proceeds (which Merchant will accept as
payment
in full for the sale and shipping and handling of Merchant Products), amounts
representing refunds for failed, disputed, returned or cancelled transactions and
payment received for onward transfer to Merchants for promotional activities,
incentives or cashbacks etc., less: (a) the Merchant Service Fee; (b) Taxes required
to be charged by Mswipe on Mswipe’s fees; (c) any refunds due to customers; (d)
payment of amount received under promotional activities, incentives or cashbacks
etc.; (e) payment to various merchants or service providers, if applicable; and (f)
any other applicable fee prescribed under the Programme Policies.
5.22 e-Payment Service
Terms
5.22.1 If the Payment Method chosen is e-Payment Method to accept electronic
payments towards the sale of Merchant Products at the Merchant Store, these ePayment
Service Terms along with the General Terms of the Amazon Pay Merchant
Agreement are applicable to Merchant. If there is any conflict between the General
Terms and these e-Payment Service Terms, these e-Payment Service Terms will
govern.
5.22.2 Merchant Transactions
(a) Transaction Processing: Mswipe will provide Transaction Information to Merchant
for each Merchant Transaction undertaken through the e-Payment Method. Sales
Proceeds will be paid to Merchant only in accordance with clause 5.22.6.
(b) Fraud: Mswipe will bear the risk of fraudulent purchases arising from the theft
and unauthorized use of a third party's financial information related to its credit
card, debit card, net banking account or other user credentials occurring in
connection with Merchant Transactions, and Merchant will bear all other risk of
fraud
or loss. Mswipe may in its sole discretion delay, withhold for investigation, refuse
to
process, stop or cancel any of Merchant Transactions before authorisation and
Merchant Transaction being successful. Merchant will stop or cancel or cause to stop
or cancel orders and/or delivery of Merchant Products if Mswipe ask Merchant to do
so (provided that if Merchant have transferred Merchant Products to the applicable
carrier or shipper or have initiated transmission/delivery of Merchant Products (in
the context of services or goods in the digital form), Merchant will use
commercially
reasonable efforts to ensure it stop or cancel delivery by such carrier or shipper
or
restrict access to such transmission/delivery). Merchant will refund any customer
(in accordance with clause 5.22.3 (b)) that has been charged for a transaction that
Mswipe stop or cancel.
(c) Merchant further agrees to ensure that it will employ suitable measures at the
Merchant Store to monitor and curb the number of Merchant Transactions which are
fraudulent in nature and are made using credit card, debit card, net banking account
or other user credentials at the Merchant Store.
5.22.3 Sale, Refunds and Returns
(a) Sale: In connection with Merchant's use of the Services, Merchant will: (a) not
cancel any of Merchant Transactions except as may be permitted pursuant to the
terms and conditions of the Merchant or the Seller Central at the time of the
applicable transaction or as may be required under this Agreement; (c) provide to
Mswipe information regarding its name along with the location of the Merchant
Stores, as maybe required, to enable Mswipe to create a directory of Merchants for
customer awareness and permit Mswipe and/or Amazon to publicly display such
information received from Merchant for purposes stated herein; (d) notwithstanding
any other provision of these e-Payment Service Terms, it shall ensure that it is the
seller of all Merchant Products made available for sale at Merchant Store; (f) it
shall
identify themselves as the seller of the Merchant Products on all packing slips or
other information included with Merchant Products and as the Person to which a
customer may return or request for a refund for Merchant Products.
(b) Returns and Refunds: Merchant will accept and process returns, refunds and
adjustments in accordance with these Service Terms and the refund policy and/or
return policy of Merchant. Mswipe will determine and calculate the amount of all
refunds and adjustments (including any taxes, shipping and handling, or other
charges) or other amounts to be paid by Merchant, on behalf of Merchant, to
customers in connection with Merchant Transactions (including in relation to
Merchant Transactions that failed), using a functionality Mswipe enable for Seller
Central. This functionality may be modified or discontinued by Mswipe at any time
without notice and is subject to the Programme Policies and the terms of the Amazon
Services T & C. Merchant will route all refunds and adjustment payments (including
in relation to Merchant Transactions that failed) through Amazon Pay Site which
Mswipe will process through the account. Merchant will provide any such payments
to the customer (which may be in the same payment form originally used to purchase
Merchant Product or an alternate payment form accepted by the customer in which
the payment may be provided by Mswipe), and Merchant will reimburse Mswipe for
all amounts so paid. For the purposes of making the aforesaid payments to the
customer, Merchant authorize Mswipe to make such payments or disbursements from
Merchant available balance in its account (as defined in clause 5.18.6 (a)). In the
event Merchant balance in the account is insufficient to process the refund request,
Mswipe will process such amounts due to the customer on Merchant’s behalf, and
Merchant will reimburse Mswipe for all amounts so paid.
If Mswipe inform Merchant that Mswipe have received a claim under the "A to Z
Guarantee" (or any successor program) offered in connection with the Amazon
Service on the Amazon Pay Site, or any chargeback or other dispute, concerning one
of Merchant Transactions, Merchant will or cause to deliver to Mswipe within one (1)
day after request by Mswipe (if the claim relates to digital products/services) or
two
(2) days after request by Mswipe (if the claim relates to physical goods), to the
extent applicable: (a) proof of delivery of Merchant Product(s); (b) the Amazon
transaction identification number; and (c) a description of Merchant Product(s). If
Merchant fail to comply with the prior sentence, or if the claim, chargeback, or
dispute is not caused by: (y) fraud for which Mswipe is responsible under Section
5.22.2 (b); or (z) Mswipe’s failure to make your Transaction Information available
as
the same was received by Mswipe, then Merchant will promptly reimburse Mswipe
in accordance with the Service Fee Payments section of the General Terms for the
amount of the customer purchase (including the Purchase Price, all associated
shipping and handling charges and all taxes and any fees retained by Amazon
hereunder) and all associated credit card association, bank or other payment
processing, re-presentment and/or penalty fees associated with the original
purchase and any chargeback or refund, in each case to the extent paid or payable
by Mswipe and/or Amazon or their Affiliates.
5.22.5 Compensation
(a) Mswipe will deduct the applicable Merchant Service Fee for each transaction
during the term of this Agreement.
(b) Unless otherwise agreed in writing, all taxes or surcharges imposed on any of
the
above-mentioned fees payable by Merchant to Mswipe will be deducted in addition
to the fee and will be Merchant’s responsibility.
(c) Unless otherwise agreed in writing, all taxes or surcharges imposed on any of
the
above-mentioned fees payable by Merchant to Mswipe, will be payable in addition
to the fee and will be Merchant’s responsibility.
5.22.6 Sales Proceeds & Refunds
(a) Account: Remittances to Merchant for Merchant Transactions will be made in
accordance with the applicable Laws through an appropriate account permitted
thereunder ("Account"). Up to such date permitted by Reserve Bank of India ("RBI"),
the Account will be a nodal account in accordance with the directions issued by RBI
for the opening and operation of accounts and settlement of payments for electronic
payment transactions involving intermediaries vide its notification RBI/2009-
10/231DPSS.CO.PD.No.1102 / 02.14.08/ 2009-10 dated November 24, 2009, and
subsequently, Account will be an escrow account in accordance with the Guidelines
on Regulation of Payment Aggregators and Payment Gateways issued by RBI, or
through another account if permitted under applicable laws. Merchant authorizes
and permits Mswipe to collect and disclose any information (which may include
personal or sensitive information such as Merchant Bank Account information) made
available to Mswipe in connection with this Agreement to a bank, auditor, processing
agency, or third party contracted by Mswipe in connection with this Agreement.
(b) Except as otherwise stated in this Agreement (including without limitation
Section 3 of the General Terms), Merchant authorize Mswipe to remit the Settlement
Amount (based on reconciliation undertaken by Mswipe) to its bank account in
respect of a Merchant Transaction, and Mswipe will remit the Settlement Amount on
the Payment Date. When Merchant either initially provide or later change its bank
account information, the date of making the payment of the Settlement Amount to
Merchant will be deferred for a period of up to 14 days.
(c) In the event that Mswipe elect not to recover from Merchant a customer's
chargeback, failed payment, or other payment reversal (a "Payment Failure"),
Merchant irrevocably assigns to Mswipe all its rights, title and interest in and
associated with that Payment Failure.
5.22.7 Effect of Termination:
Upon termination of these e-Payment Service Terms in connection with the Amazon
Pay Site, all rights and obligations of the parties under these e-Payment Service
Terms with regard to the Amazon Pay Site will be extinguished, except that the
rights and obligations of the parties with respect to Merchant Transactions
occurring
during the term will survive the termination or expiration of the term.
5.22.8 Tax Matters
(a) In addition to the General Terms, Merchant agrees that the price stated by
Merchant for Merchant Products is exclusive of all taxes including VAT/CST, customs
duty, excise duty, service tax, goods and services tax or other tax or levy that
Merchant may be required to remit in connection with such sale.
(b) All payments by Mswipe to Merchant will be made subject to any applicable
withholding taxes under the applicable Law. Mswipe will retain, in addition to any
other amounts it may retain under this Agreement (including its net fees together
with any applicable taxes Mswipe determines it is obligated to charge or collect on
the fees), an amount equal to the legally applicable withholding taxes at the
applicable rate.
(c) If Merchant is required to deposit withholding tax in the form and manner as
prescribed under applicable Governing laws, Merchant will issue an appropriate tax
withholding certificate for such amount to Mswipe.
(d) Merchant may submit a reimbursement claim with a valid tax withholding
certificate in Form 16A within one month from the due date of issuance of Form 16A
as per statutory timelines. Mswipe shall reimburse the claim post verification and
reconciliation with service fee as per books of accounts. Mswipe will have right to
reject the claim if the claimed amount does not match with service fees invoices.
Mswipe shall maintain the right to recover any excessive claims paid to
Merchant.
(e) Mswipe may, but will not be required to, obtain an order for lower or NIL
withholding tax from the Indian Revenue authorities. In case Mswipe successfully
procures such an order, it will communicate the same to Merchant. In that case, the
amounts retained will be in accordance with the directions contained in the order
as in force at the point in time when tax is required to be deducted at the source.
5.23 Damage to Soundbox:
Mswipe shall be entitled to charge the Merchant for the costs of the Soundbox(s)
and/or the costs of repairing the Soundbox(s) in the event the Soundbox(s) is/are
damaged or is/are used in an improper manner by the Merchant.
5.24 e-Payment Definitions
5.24.1 "Payment Date" means, with respect to any of Merchant’s Merchant
Transactions, within 1 (One) day after the date of the Merchant Transaction became
an Eligible Transaction unless otherwise mutually agreed by the parties in writing
provided that Mswipe may, in its sole discretion, designate any early day as the
Payment Date as deemed necessary under the applicable Laws.
5.24.2 "Purchase Price" means the total gross amount payable or paid by a customer
for Merchant Product (including taxes and customs duties).
5.24.3 "Sales Proceeds" means the gross sales proceeds paid by customers in the
course of any of Merchant Transactions, including the Purchase Price, all shipping,
handling, convenience, gift wrap and other charges, any taxes and customs duties.
5.24.4 "Settlement Amount" means Sales Proceeds (which Merchant will accept as
payment in full for the sale and shipping and handling of Merchant Products),
amounts representing refunds for failed, disputed, returned or cancelled
transactions and payment received for onward transfer to merchants for promotional
activities, incentives or cashbacks etc., less: (a) the Merchant Service Fee (b)
taxes
required to be charged by Mswipe on Mswipe’s fees; (c) any refunds due to
customers; (d) payment of amount received under promotional activities, incentives
or cashbacks etc.; (e) payment to various merchants or service providers, if
applicable; and (f) any other applicable fee prescribed under the Programme
Policies.
5.25.1 Definitions:
(a) “Soundbox” shall mean a small portable speaker for daily payment alerts, which
comes with a SIM based connectivity. When a Customer makes a payment by scanning
an UPI QR code, the Sound Box will notify Merchant of successful transaction with
an alert
(b) “Alert Services” shall mean alerts of each payment received by Merchant from
customers using the Payment Method.
(c) "Payment Method" means either or both of the two options chosen by Merchant
for acceptance of electronic payments towards the sale of Merchant Products at the
Merchant Store, (a) Amazon Pay balance ("Amazon Pay balance Method"); or (b)
other electronic payment methods being the functionality made available by
Amazon to enable customers of Merchant to use a quick response code or VPA to
make payments in respect of sale of Merchant Products using payment methods that
may be offered and enabled by third-parties ("e-Payment Method(s)").
5.25.2 Merchant shall make use of the Soundboxes for Alert Service as contemplated
under the terms of this Agreement. In the event a Merchant at whose Store the
Soundbox has been installed, fails to have any transaction where customer has used
the Payment Methods to make payment for the transaction, for continued period of
15 (fifteen) days, Merchant shall return the Soundbox to Mswipe immediately.
5.25.3 Merchant shall comply with the following obligations during their use of the
Soundbox at its respective Merchant Store:
(a) it will ensure safe custody and security of the Soundbox and be solely
responsible
for all loss or damage to the Soundbox caused, as a result of, negligence or
mishandling by it, which will be determined after investigation by Mswipe and/or
Amazon.
(b) Upon termination of the Merchant relationship with Mswipe, it shall return the
Soundbox in a good and working condition. In the event any Soundbox is returned in
a damaged or non-working condition (in any manner) or it claims that the Soundbox
has been lost or stolen, Merchant will pay the cost of the Soundbox to Mswipe, in
addition to other rights or remedies available to Amazon and/or Mswipe against the
Merchant under contract, at Law or in equity.
(c) The Merchant will provide ingress and egress rights to Amazon and/or Mswipe
and its deployed personnel, agent or third-party service providers, for the purpose
of any future repair, maintenance, replacement, upgradation, deinstallation or
review of the Soundbox.
6.1. Mswipe shall deliver or cause to be delivered to the Merchant, the Equipment, Other Equipment and Features (if any) together with Mswipe Systems, at a place specified in the Application or electronically. The mode of delivery of the Equipment and Other Equipment may be affected in a manner mutually agreed between the Parties but after receipt of installation fees and delivery charges, as maybe applicable, by Mswipe. In case of sale of any Equipment by Mswipe pursuant to the Terms and Conditions, the ownership and all risks associated with such Equipment shall pass on to the Merchant upon delivery.
7.1. The Merchant shall pay the following charges to Mswipe:
7.2. Installation charges as specified in the Application and such charges shall be
non-refundable and in case the Equipment is licensed to the Merchant, cost of
Equipment in case of damage or loss or non-return of Equipment upon termination
of the arrangement between the Merchant and Mswipe as specified in Clause 14.6
herein.
7.3. Repair of Equipment: Subject to these terms and conditions, charges for repair
of the Equipment as may be applicable on case to case basis shall be paid by the
Merchant.
7.4. Equipment Sale: Sale price of the Equipment and Other Equipment as specified
by Mswipe shall be paid by the Merchant.
7.5. Fees for use of the Features: Fee for right to use/avail each Feature shall be
notified to the Merchant from time to time and may be on monthly, quarterly or
annual basis.
7.6 Fees for usage of Soundbox: If applicable, the Merchant hereby permits Mswipe
to deduct the rental fees for Soundbox payable to Amazon from the Settlement
Amount payable by Mswipe to the Merchant for transactions of the Merchant, on the
immediately succeeding settlement cycle at the end of previous month. Mswipe
reserves the right to remove and de-install the Soundbox in case the Merchant fails
to pay the rental fees for the Soundbox for a period of 30 (thirty) days from the
due
date.
7.7. Fees for availing Support Services: Fee for Support Services shall be paid by
the
Merchant on a monthly basis. However, initially fee for availing the Support
Services
for the period as specified in the Application shall be paid in advance and after
expiry of this period, fee shall be paid on a monthly basis (refer to the
Application).
The Merchant agrees, acknowledges and authorises that Mswipe shall have the right
to debit the monthly fees for availing Support Services and the Features, as may be
availed by the Merchant up to 7 (seven) days before the start of the billing cycle.
Any delayed payments would attract interest @ 2% per month.
7.8. Mswipe will raise periodical invoices for recovery of various payments.
7.9. For the purpose of payment of the fees and other charges under these Terms
and Conditions, the Merchant shall give his unconditional consent and authorize
Mswipe to debit Merchant’s bank account through Electronic Clearing System (“ECS”)
and or valid standing instructions in the manner as provided in the Application. The
Merchant further authorizes Mswipe to recover all costs and expenses in the event
the payment of any amounts and other monetary obligations are not honoured on
the respective due dates as per the ECS mandate and or the standing instructions.
The details of Merchant’s bank account through which the Merchant desires to
arrange for payment to Mswipe by means of ECS is provided in the Application. The
Merchant shall provide valid standing instructions for debiting the Merchant’s
account in the manner as may be required by Mswipe from time to time.
8.1. Taxes, etc.: The Merchant shall be responsible for any applicable goods and
services and similar taxes and impositions (“Taxes”) payable with respect to Other
Equipment or provision of Support Services or availing any Feature or otherwise
arising out of or in connection with the Application and these Terms and Conditions,
whether currently applicable or made applicable in future.
8.2. Withholding: The Merchant shall be responsible to deduct the tax at source as
applicable under Income Tax Act, 1961 or any other laws, rules, or regulations as
may be applicable from time to time and deposit the same to the credit of the
government within the respective due dates. Also, the Merchant shall be responsible
to submit the certificate of tax deducted or any other document evidencing
deduction of tax as applicable within 30 days from the due date for submission of
returns of tax deduction to the government. The duty to comply with the provisions
of tax deduction solely rests upon the Merchant and Mswipe shall not be liable for
the same under any circumstances and in any manner whatsoever. Subject to this
Clause 8.2, the Merchant shall make all payments of amounts/fees due under this
Application to Mswipe free and clear of, and without reduction for, any withholding
taxes.
8.3. Audit: The Merchant shall, for a period of 8 (eight) years from the date of
transaction, keep complete and accurate records regarding (i) the Support Services
provided by Mswipe under this Application; (ii) proof of delivery of products and
services supplied by the Merchant in the manner satisfactory to Mswipe; (iii)
customer identity proof; and (iv) such other information as may be required by
Mswipe from time to time or necessary for the Merchant or Mswipe to validate the
Merchant's compliance with its obligations, rights and fees owed under these the
Application and Terms and Conditions. The Merchant shall provide such information
to Mswipe within three (3) days of Mswipe's written request and with not less than
two (2) days' prior notice, Mswipe, its Sponsor Banks or their respective
representatives may inspect, audit, and copy such records of the Merchant and
access the Equipment, at any time during the Merchant's regular business hours.
9.1. The Merchant represents and warrants to Mswipe that on the date hereof:
9.1.1. It is an entity duly incorporated, validly existing and in good standing
under
the laws of India;
9.1.2. It has all necessary power and authority to enter into this arrangement;
9.1.3. The persons signing the Application physically or digitally in the manner
specified by Mswipe on behalf of the Merchant have the authority to sign, execute
and accept it on behalf of the Merchant so as to create binding obligations on the
Merchant and all information provided by the Merchant pursuant to the Application
and these Terms and Conditions is true and correct;
9.1.4. The execution and delivery of the Application, and the consummation of the
transaction contemplated hereby, and the fulfilment of and compliance with the
Terms and Conditions hereof, do not (i) violate any applicable laws, judicial or
administrative order, award, judgment or decree applicable to it, or (ii) conflict
with the terms, conditions or provisions of its constitutive documents or any other
contractual obligations or regulations; and
9.1.5. The Application and these Terms and Conditions, whether in physical form or
in electronic form, constitutes valid and legally binding obligation and will be
enforceable against the Merchant in accordance with these Terms and Conditions.
9.2. The Merchant shall comply with all the applicable laws including the guidelines
and standard Terms and Conditions as set out herein and such other amended
guidelines and terms issued by Mswipe from time to time and further acknowledge
that Mswipe shall not have any obligation to verify whether or not the Merchant has
acted in accordance therewith.
9.3. Mswipe reserves the right to modify, add or remove any part of these Terms
and Conditions at any time without prior consent of the Merchant.
9.4. Mswipe is not giving any warranties either express or implied, whether of
merchantability or fitness for any particular use or otherwise, in respect of the
Equipment or Other Equipment or any Support Services or any Features provided
under the Application and or these Terms and Conditions and no waiver, alteration
or modification of the foregoing condition shall be valid unless made in writing and
signed by Mswipe. The Merchant’s sole and exclusive remedy in the event of
interruption to or loss of use and/or access to the Support Services and/ or any
Feature shall be to get the Support Services and/ or Feature, as the case may be
restored from Mswipe. Mswipe will use reasonable endeavours, at its sole and
absolute discretion which shall be final and binding on the Merchant, to restore the
Support Services and/ or the Feature and/or access to the Support Services and/ or
the Feature as soon as reasonably possible.
9.5. The Merchant acknowledges that it has been advised that no agent, employee
or representative of Mswipe has any authority to buy and sell or affirm or promise
any representation and warranty concerning the Equipment or Other Equipment or
Support Services or Features, and unless such affirmation, promise or representation
and warranty is specifically set forth in these Terms and Conditions, it does not
form
part of the Application and or these Terms and Conditions and shall not be
enforceable against Mswipe. The Merchant acknowledges that it is cognizant of this
provision and evidences its agreement to be bound thereby.
9.6. The Merchant declares, assures, undertakes and covenants that it shall not
offer
any Products, which are illegal or offensive or banned as per the list provided in
Schedule A (as updated from time to time) and/or are not in compliance with
applicable laws, rules and regulations whether central, state, local or
international
of all jurisdictions from where the Merchants avail the Mswipe services.
10.1. The Merchant recognizes that it may be given and have access to Confidential
Information of Mswipe. The Merchant undertakes not to use any such Confidential
Information, for its own purposes except as permitted hereunder, without the prior
written consent of Mswipe. The Merchant further undertakes that it shall at all
times
during and after termination of this Application keep the Confidential Information
confidential and not disclose it to any third party. The contents of the Application
shall also be kept confidential.
10.2. No announcement, circular, press releases, advertising, marketing materials
or promotional materials in connection with the subject matter of these Terms and
Conditions shall be made or issued (whether in print, electronically or otherwise)
by
or on behalf of the Merchant other than (i) as required by law or (ii) to any
authority
to which the Merchant is subject, without the prior written consent of Mswipe except
where such an announcement is required by reason of any of (i) or (ii) above, the
Merchant shall consult with Mswipe as to the contents of any such announcement
and take into account all reasonable request of Mswipe relating thereto.
11.1. Except for use permitted under this Application, the Merchant shall not use
any Mswipe's trademark, service mark, trade name or logo without specific
authorization to the effect. Any infringement of any Mswipe's Intellectual Property
Rights shall be subject to legal action and damages.
11.2. The Merchant shall not to do anything whatsoever which might impair Mswipe's
right, title or interest in or to Mswipe's Intellectual Property Rights and agree
that
the Merchant shall not acquire or attempt to acquire any right, claims, title or
interest, license in or to any of the Intellectual Property Rights of Mswipe. The
Merchant shall not decompile/disassemble, or create or attempt to create or
reconstruct, by reverse engineering or otherwise, any hardware, software or code
supplied under the Application and or these Terms and Conditions including in
respect of the Equipment or Other Equipment or use it to create any derivative work.
12.1. Third Party Products: The Equipment, the Other Equipment and the Features
may include material which Mswipe licenses from third parties. To the extent
required by any such third party in its applicable license or resale agreement with
Mswipe, such third party shall be a direct and intended third party beneficiary of
the arrangement between Mswipe and the Merchant, insofar as it pertains to
protection of Intellectual Property Rights, disclaimers of implied warranties, and
limitations and exclusions of liability. The Merchant shall fully indemnify Mswipe
and
Facility Providers against any third party claim alleging that its Intellectual
Property
Rights are infringed by the Merchant.
12.2. Protection against Unauthorized Use: The Merchant shall promptly notify
Mswipe of any unauthorized use of any Equipment, Other Equipment or Feature of
which the Merchant becomes aware. In the event of any unauthorized use by any
user, the Merchant shall immediately terminate and prevent further occurrences of
such unauthorized use. If Mswipe commences any legal proceeding in connection
with such unauthorized use, then Mswipe may, at Mswipe's option and expense,
participate in or control any such proceeding. In such event, the Merchant and
Mswipe shall each provide the other with such authority, information and assistance
related to such proceeding as may be reasonably necessary to safeguard Mswipe's
interests and the Merchant's rights under these Terms and Conditions.
12.3. Server Connections: The Merchant shall reasonably maintain the Equipment,
Other Equipment or the Feature such that the Merchant can get connected to Mswipe
Gateway at all times without any lags. However, if the Mswipe Gateway fails to
respond, the Merchant shall report the issue and Mswipe will fix it as early as
possible.
13.1. The Merchant hereby undertakes to honour and accept every Valid Mode when properly presented as payment by Customers for all transactions. The Merchant shall not engage in such acceptance practices or procedures that discriminate against or discourage the use of cards issued by a card scheme in favour of any other card that is also accepted by the Merchant or Other Mode accepted by the Merchant.
14.1. The Merchant shall use the Equipment, Other Equipment or the Features
exclusively for the transactions with Customer during the term of the arrangement
between the Merchant and Mswipe.
14.2. Mswipe shall be entitled to charge the Merchant for the costs of the Equipment
and/or the costs of repairing the Equipment(s) in the event the Equipment(s) is/are
damaged or is/are used in an improper manner by the Merchant.
14.3. The Merchant shall not permit any third party to perform any maintenance
services on the Equipment(s) or effect modification or enhancement or
software/engineering changes to the Equipment(s) without the prior written consent
of Mswipe.
14.4. The Merchant shall not (i) sell, assign, loan, time share, transfer, lease or
otherwise cause or allow or attempt to cause or allow, any dealings with the
Equipment or Feature or any encumbrance on the Equipment or the Feature to be
created; (ii) remove, conceal or alter any markings, tags or plates attached to the
Equipment or the Features or part of it; (iii) disallow Mswipe's right to access,
repossess or dispose of the Equipment or the Feature pursuant to these Terms and
Conditions; or (iv) otherwise to be encumbered in any way whatsoever.
14.5. The Merchant shall not: (a) permit any third party to access or use any
Feature
using the Merchant’s user account (other than such Merchant’s employees); (b)
interfere with, disrupt, alter, translate, or modify the Features or any part
thereof,
or create an undue burden on the Features and/or Mswipe networks; (d) reverse
engineer, decompile, disassemble, or reverse compile any Feature; or (e) introduce
software or automated agents or scripts to any Feature so as to produce multiple
accounts, generate automated searches, requests and queries, or to strip, scrape,
or mine data from the Feature or Mswipe’s servers.
14.6. The loss or damage arising out of negligence, or misuse of the Equipment and
/ or default in payment due to any reason whatsoever shall be recovered by Mswipe
from the Merchant in the following manner:
Wisepad: INR 4,500/-
Wisepad G2: INR 6,000/-
Wisepos (with bar code): INR 16,000/-
Wisepos (without bar code): INR 14,000/-
Soundbox(s): INR 2,000/-.
All the above amounts shall be exclusive of taxes and the Merchant shall be liable
to pay the above amounts plus all applicable taxes thereon.
14.7. Notwithstanding anything to the contrary, Mswipe may modify the list of
Equipment as stated in Clause 14.6 including upon introduction of any new model of
Equipment and shall fix the price of the same at its sole discretion which shall be
payable by the Merchant in accordance with Clause 14.6 in respect of such
Equipment.
14.8. The Merchant shall permit the authorized representatives of Mswipe or
Mswipe's authorized agent to carry out physical inspections of the Equipment (or
possession of the Equipment in case of termination of the arrangement between
Mswipe and the Merchant) during business hours, with or without prior notice.
14.9. Mswipe may seek enhancement of the Equipment for provision of additional
services using the Equipment. The Merchant shall allow Mswipe or Mswipe's agent to
undertake such enhancements and facilitate and provide such services.
14.10. The Merchant shall make timely payment of the various charges only to the
authorized representatives of Mswipe.
14.11. The Merchant shall ensure that it displays on the Merchant's premises such
notices, disclaimers, warranties and indemnities as Mswipe may require from time
to time in this regard. The Merchant shall at all times display on such conspicuous
place a notice stating that ‘CARDS ARE ACCEPTED HERE’ as may be provided by
Mswipe from time to time.
14.12. The Merchant shall adopt appropriate measures of privacy, which measures
should clearly ensure that the privacy of its Customers is protected, and no
information given by such Customers shall be utilized in any manner whatsoever
which could directly or indirectly result in any harm to the Customers or which
would
constitute a breach of such privacy.
14.13. The Merchant hereby undertakes and agrees:
14.13.1. Not to describe itself as an agent, representative, partner or employee of
Mswipe or Facility Providers and to ensure that its products are at all times, be
marketed and/or distributed as the products marketed / sold by the Merchants. It
shall also take all necessary steps and/or precautions to ensure that the products
are not mistaken or misrepresented as being associated with, being sold by,
marketed by or being offered for sale by Mswipe or Facility Providers in respect of
the Support Services and any ancillary matter and neither of these entities nor
Mswipe shall bear any liability in this regard.
14.13.2. Not to make any representations to its customers or any third party or give
any warranties which may require Mswipe or Facility Providers to undertake or be
liable for, whether directly or indirectly, any obligation and/or responsibility to
customers or any third party.
15.1. Merchant must obtain an authorization through Mswipe Gateway for each and
every charge incurred by the Card Member/ Customer and shall not deliver the goods
or services until authorization is received through Mswipe Gateway. Authorization in
respect of charges can be obtained by swiping or dipping the Valid Card and
validating the transaction by the Customer providing their unique personal
identification number (PIN) or such other details as may be necessary under
applicable law or required by Mswipe from time to time using the Equipment or
through Other Mode by validating the transaction by the Customer in the manner
prescribed by Mswipe from time to time for using the Other Mode.
15.2. If the Merchant accepts charges without prior authorization, Mswipe will not
be responsible for any such charges or any part thereof and all such charges will be
accepted only on a collection basis.
15.3. In the event of the Valid Card being an international card or card issued by
American Express, the Merchant shall accept the charges only upon presentment of
a valid identity proof of the Card Member/ Customer and shall require the Card
Member/ Customer to submit a copy of the same before authorization of the
charges.
15.4. Splitting of charges into two (2) or more Transaction Receipts will not be
acceptable to Mswipe.
15.5. Mswipe reserves the right to refuse the charges if an authorization is
declined.
Any authorization given through the Equipment will be at Mswipe’s absolute
discretion and Mswipe may further, in such an event, also direct the Merchant to
take immediate preventive action.
15.6. In case of any disputes regarding authorizations given by Mswipe regarding any
details pertaining thereto (whether as to card number, expiry date of a Valid Card,
amount, date and the time of charges, time at which authorization is given or
otherwise whatsoever), the decision of Mswipe to grant or refuse authorization and
the details mentioned by Mswipe shall be final and binding on the Merchant.
15.7. Merchant shall be responsible for verification of Card Member/ Customer
including the validity of the Card, identity of the person transacting with the
photograph on the Valid Card (in case of photo Valid Card), ensuring that the Card
Member/ Customer has signed on the signature strip of the Valid Cars and verifying
the signature on back panel of Valid Card with the signature of the said Card
Member/ Customer on the Transaction Receipt wherever applicable. In the event of
mismatch of credentials, Merchant shall follow procedure as laid down by Mswipe
from time to time.
15.8. The Merchant shall not process or deposit transactions with Mswipe for or on
behalf of any third party. The Merchant will also not give cash advance by showing
the transaction as a sale transaction. The Merchant shall not accept payment from
a Cardholder/ Customer to re-finance an existing debt.
15.9. Mswipe reserves the right to discontinue the Support Service and/or terminate
this Application or terminate the right to use the Equipment granted to the Merchant
on any of the aforesaid grounds and recover such amounts from the Merchant in case
it is exposed to losses due to Chargebacks or any other reason.
15.10. The Merchant shall refrain from indulging in any practice whereby the
Merchant refuses to accept a Valid Mode for payment.
16.1. The Merchant in handling transaction(s) via the Equipment and Mswipe
Gateway must ensure that the extraction of data from the Valid Card or the Other
Mode must be in the manner specified by Mswipe (this may vary from time to time
but Mswipe will give prior notice of variation to the Merchant).
16.2. Deliver to the Cardholder/ Customer a bill mentioning the Transaction Amount
received from the Cardholder/ Customer through the Equipment and Mswipe
Gateway.
16.3. The Merchant understands and acknowledges that the Facility Providers
reserve the right to impose limits on the number of transactions undertaken using a
particular Valid Mode and the value of a single transaction during any time period,
and reserves the right to refuse to make payments to the Merchant in respect of
transactions exceeding such limit. Mswipe also reserves the right to fix a daily
merchant limit (i.e. the amount beyond which the Valid Mode cannot be accepted
in a day on the Equipment and or Mswipe Gateway) or such other limits as may be
specified by Mswipe from time to time.
16.4. Unless otherwise permitted by applicable law or Mswipe, the Merchant shall
not require any Cardholder/ Customer to pay any surcharge, to pay any part of the
MDR, whether through any increase in price or otherwise, or to pay any
contemporaneous finance charge in connection with the transaction in which a Valid
Mode is used.
17.1. In consideration of the transaction processing services the Merchant agrees to
pay to Mswipe, the Merchant Discount Rate as mentioned in the Application and any
further charges as detailed in the Application and or these Terms and Conditions,
which shall be deducted by Mswipe from the amounts payable to the Merchant in
respect of a Transaction Amount.
17.2. If any extra credit is given by the Merchant to the Cardholder/ Customer
without prior approval of Mswipe, the Merchant shall do so at its own risk and
responsibility. In such case the entire transaction would be treated as void and
Mswipe will reject payment of the same.
17.3. All applicable tax including service tax, consumption tax or value added tax
whether currently in force or introduced after the effective date of the Application
and any other taxes, duties, fees and charges arising out of the performance of the
Application shall be borne by the Merchant.
18.1. The Merchant agrees to inform the Cardholder/ Customer about its credit
refund policy clearly mentioning the same in bill invoice and/ or on the
website.
18.2. If in respect of any transaction, any goods/ services are not received as
described, by the Cardholder/ Customer or are lawfully rejected or accepted for or
services are not performed or partly performed or cancelled or price is lawfully
disputed by the Cardholder/ Customer or price adjustment is allowed, the Merchant
shall not make a cash refund but shall provide the invoice and other relevant
documents to Mswipe for verification and investigation. The Merchant shall sign and
date each invoice and other related documents to be provided to Mswipe and include
a brief description of the items concerned therein.
18.3. In the event of a refund to a Cardholder/ Customer, the Merchant shall not
make a cash refund to the Cardholder/ Customer. The Merchant must a refund
request in the manner as specified by Mswipe from time to time. The Merchant must
not process a refund transaction, unless there is a preceding corresponding debit on
a card account. In the event that only Transaction Receipt are presented to Mswipe
at any time, the Merchant shall at the same time make payment of the net refund
(i.e. the total refund(s) to the Cardholder(s)/ Customer(s) less the discount) to
Mswipe. The Merchant shall ensure that Mswipe has enough funds of the Merchants
to process any refund request received from the Merchant. Mswipe shall not be liable
to process any refunds request in case of insufficiency of Merchant’s funds.
18.4. The Merchant agrees and acknowledges that refunds shall not be processed by
Mswipe after a period of 180 days from the date of transaction.
18.5. The Merchant further agrees and acknowledges that, in case of any refund or
chargeback, the MDR charged by Mswipe shall not be refunded to the Merchant or
the Cardholder/Customer.
18.6. In situations where there is a time gap between the sale date and the refund
date, which causes a currency translation difference for transactions on foreign
cards, Mswipe will have the right to recover the equivalent INR amount pertaining
to such foreign exchange currency translation differences from the Merchant, for
the purpose of crediting the same to the Cardholder's/ Customer’s account.
18.7. By presentation of any transaction information (which for the purposes of
these
Terms and Conditions means any invoice, delivery report and/ or any information in
respect of any transaction presented to Mswipe by or on behalf of the Merchant) the
Merchant warrants to and agrees with the Mswipe and the Facility Providers:
18.7.1. that the Merchant has supplied or caused to be supplied, the goods/ and or
services to which the transaction information relates and to the value stated
therein
and a price not greater or otherwise on terms not less favourable than the same
price and terms at and on which such goods and/ or service are supplied by the
Merchant for cash;
18.7.2. that no other Transaction Receipt or invoice or information shall be issued
or presented in respect of the goods and/ or services to which the transaction
information relates;
18.7.3. that the provision of credit for the supply of goods and/ or services to
which
the transaction information relates is not unlawful; and
18.7.4. that the transaction information relates to a Valid Charge and that the
Merchant has complied with these Terms and Conditions.
18.8. Neither the receipt by Mswipe of any transaction information nor any payment
by or any act of omission by Mswipe (other than an express written acknowledgement
or waiver thereof by Mswipe) shall constitute or be deemed to constitute any
acknowledgement or waiver of compliance by the Merchant with any of the
warranties specified in this Application.
19.1. Subject to the provision of Clauses 3.2 and 19.2 hereof, and without prejudice
to the right conferred by Clause 21 hereinafter appearing, Mswipe shall pay to the
Merchant, Valid Charges specified in the Transaction Receipt received at their
offices within 3 working days of receipt, except under circumstances beyond the
reasonable control of Mswipe. Payment of such charges by Mswipe is not to be
construed or deemed to mean that the charges involved are Valid Charges. Mswipe
will be entitled, at any time to set-off and adjust outstanding of the Merchant,
against all payments due to the Merchant and such set-off and/or adjustments shall
be final and binding on the Merchant.
19.2. Where Mswipe has reason to believe that any charges have been fraudulently
incurred or charged either on a Valid Mode or a counterfeit card or where Mswipe
has reason to investigate or cause to be investigated any charges (hereinafter
referred to as “Suspect Charges”), Mswipe shall be entitled to withhold payment
(without interest) pertaining to such Suspect Charge(s).
19.3. Provided that if Mswipe determines after due enquiry and investigation that
the charge is a Valid Charge and not a Suspect Charge, Mswipe shall release such
withheld payment.
19.4. Provided further that if Mswipe determines after due enquiry and investigation
that any Suspect Charge is not a Valid Charge, Mswipe shall be entitled not to pay
the same at all to the Merchant and or deduct such amounts from any Transaction
Amounts payable to the Merchant and the Merchant undertakes not to raise any
claims thereto.
19.5. If Mswipe suspects, on reasonable ground and in its sole and exclusive
opinion,
that the Merchant has been negligent, or has committed a breach of these Terms
and Conditions or act/s of dishonesty or fraud against Mswipe or any Cardholder/
Customer, Mswipe shall be entitled to suspend all payments under these Terms and
Conditions to the Merchant pending enquiries by Mswipe and resolution of the same
to the Mswipe's satisfaction.
19.6. The Merchant hereby acknowledges that it may enter into credit facility with
various lenders whereby the repayment of loans shall be routed through Mswipe.
The Merchant hereby unconditionally authorises Mswipe to deduct all such amounts
as may be agreed between the Merchant and the lender from the net payments to
be paid by Mswipe to the Merchant.
19.7. Net payments after deducting the fees, MDR or any other amount recoverable
from the Merchant, Mswipe shall make payment to the Merchant account directly.
19.8. In the event of a Customer making a purchase by a Valid Mode and the customer
or the bank associated with Mswipe with whom the Customer has taken the Valid
Card or the account with respect to which the Other Mode is linked to raises any
dispute whatsoever, Mswipe shall forthwith inform the Merchant of the same and
the Merchant shall be obliged, forthwith, to refund all such amounts received
without any demur or protest whatsoever. Mswipe shall, without prejudice to its
other rights, be entitled to debit the payment to be made to the Merchant and/or
from any other account of the Merchant with Mswipe and/or shall also be entitled
to set-off the same from any amounts due to the Merchant by Mswipe and make a
corresponding credit to the Customer's Valid Card or account, as the case may be. If
the dispute raised by the Customer is decided, to the satisfaction of Mswipe or
Facility Providers, in favour of the Merchant, such payment shall be forthwith
returned to the Merchant without any interest after the monies have been recovered
from the Customer. Mswipe or Facility Providers shall not be liable for any delay in
returning the payment to the Merchant and shall be absolved from all liabilities
thereon.
19.9. In the event of a Customer making a purchase by a Valid Mode and requesting
Facility Providers for a refund on any grounds whatsoever, or in the event of the
Customer raising any dispute in respect of the products whatsoever, Mswipe shall
forthwith inform the Merchant of the same and shall cause and the Merchant shall
be obliged to, forthwith, refund all such amounts to Mswipe and such refund shall
be made in a period of not more than five (5) days. If the Merchant and the Customer
are unable to arrive at a satisfactory resolution of the problem within a period of
ten (10) days thereafter, Mswipe shall be entitled to cause a direct credit to the
disputing Customer's account for the disputed amount by debiting the Merchant's
account. Such a debit to the Merchant's account and the direct credit to the
disputing Customer's account shall not be disputed by the Merchant in any manner
whatsoever. In the event of the Customer and the Merchant arriving at a settlement
within the said 10 day period, Mswipe shall cause to deal with the said moneys in
accordance with the terms of the settlement arrived at. Mswipe or Facility Providers
shall not be liable to any Customer and the Merchant shall indemnify and keep
indemnified Mswipe and Facility Providers against any claims, damages, liabilities,
costs, expenses, legal fees suffered by Mswipe and Facility Providers.
20.1. If a SIM Card has been provided along with the Equipment or Other Equipment as specified in the Application, then the Merchant undertakes to use this SIM Card only with the Equipment or Other Equipment provided under the Application and only for the purpose of telecommunication between the Equipment and Mswipe’s server.
21.1. The Merchant undertakes that any charges accepted by Mswipe, which prove to be uncollectable and or are Chargebacks, shall be the exclusive financial responsibility of the Merchant. The Merchant undertakes to pay such uncollectible charges and or Chargebacks (including any processing fees or any other fees incurred by Mswipe in respect of such uncollectible charges and/or Chargebacks) without any demur or protest.
22.1. The Merchant hereby also confirms and acknowledges that it is aware of and
agrees to abide by the guidelines of the card schemes, especially the requirement
of inclusion of the Merchant's name in the NMAS, if the merchant acts in
contravention of the various clauses of these Terms and Conditions.
22.2. Deployment of other applications in the Equipment or Other Equipment: The
Merchant shall not deploy any other payment applications in the Equipment or Other
Equipment which has the capacity to capture card number or card details, except
after being informed to Mswipe in advance and concurrence thereof obtained from
Mswipe.
22.3. Compliance to Security Standards: In the interest of security of Card
transactions, the Merchant shall comply with PCIDSS standards and arrange to
encourage deployment of PABP compliant applications in the Equipment.
22.4. Capture only its own transactions: The Merchant shall capture only the
transactions done in its establishment in the Equipment or Other Equipment
deployed. On no account, shall the Merchant offer to capture the transactions done
on other establishments.
22.5. In the event of any display or advertisement of any product or service or the
display/ advertisement or distribution / sale of any product being, in the view of
Mswipe or any regulatory / statutory / judicial / quasi-judicial authority, contrary
to any applicable law, regulation, government policy, order or guideline including
all applicable foreign laws, regulations, Mswipe shall be entitled to call upon the
Merchant to cause removal or discontinuation of such display, advertisement,
distribution or sale, as the case may be. The Merchant shall, on receipt of such a
request, forthwith, discontinue with such practice. Provided that, in the event the
Merchant satisfies Mswipe that the same is not contrary to the aforesaid, it shall
not
be required to discontinue/get discontinued such practice.
22.6. Mswipe or Facility Providers shall not be responsible for any delivery,
aftersales service, payment, invoicing or collection, customer enquiries (not
limited to
sales enquiries), technical support maintenance services and/or any other
obligations or services relating to or in respect of the products whatsoever.
22.7. The Merchant agrees and undertakes that any and all disputes regarding
quality, merchantability, non-delivery/nonfulfillment and delay in delivery /
fulfilment of the products or otherwise will be dealt with by and between the
Merchant and the customer directly and Mswipe and Facility Providers shall not be
made party to any such disputes. The Merchant shall hold Mswipe including Facility
Providers saved and harmless from any such actions or claims that may be initiated
against it for reason thereof.
22.8. In no event shall Mswipe be required to or deemed to establish any contract
for the sale and purchase of the products with the Customer. The Merchant further
undertakes to ensure that the appropriate notices and disclaimers are provided to
the Customer informing that the Customer is purchasing the products solely from
the Merchant pursuant to a sale and purchase agreement with the Merchant through
the Equipment provided by Mswipe.
22.9. Mswipe and Facility Providers shall not be liable in contract, tort or
otherwise
for any indirect or consequential loss or damage sustained by the Merchant by any
use of or reliance on the electronic communication, orders or messages including
that of Support Services provided by Mswipe to the Merchant whether with or
without the utilization of any security measures, including but not limited to any
loss or damage resulting as a consequence of any defects, delays, interruptions,
errors, inaccuracies or failures in the various communications and Mswipe
specifically excludes the same to the fullest extent permitted by law even if Mswipe
shall have been advised in advance of the possibility of such damages.
22.10. Whilst Mswipe shall use its best endeavours to ensure that there is no
breakdown/ interruption or any technical flaw in the Support Services, the Merchant
shall not hold Mswipe responsible for any breakdown / interruption or any technical
flaw in the Support Services and/or any consequent delay or failure in completion
of payment instructions as a consequence thereof.
23.1. In case any Valid Charges of any Card Member/ Customer are required to be credited back to such Card Member/ Customer in accordance with these Terms and Conditions, the Merchant will not allow such Card Member/ Customer to encash any cheque and/or the Merchant will not make any cash advances and cash refunds directly to such Card Member/ Customer. Further, Mswipe will not be responsible or held liable for refund of such Valid Charges, by the Merchant directly to the Card Member/ Customer. Merchant will not do cash refund for Card swiped or dipped or the Other Mode used at the establishment for making payment to the Merchant.
24.1. Where the Merchant proposes to change the nature of business or merchandise sold, which may result in the Merchant category to be changed in the books of the card schemes, the Equipment, Other Equipment and the Support Services shall be used only after such change is informed to Mswipe and acceptance thereof is conveyed in writing to the Merchant.
25.1. The Merchant shall indemnify, defend, and hold Mswipe and Facility Providers
including its directors, employees and agents harmless from and against any
liabilities, claims or demands (including the costs, expenses, dispute resolution
costs
and attorneys' fees on account thereof) relating to or which may result from any:
25.1.1. Breach by the Merchant of its obligations, including but not limited to
those
specified in these Terms and Conditions;
25.1.2. Any injuries to persons or damage to the Equipment, including theft,
resulting from Merchant's acts or omissions;
25.1.3. Any claims brought against Mswipe arising in whole or in part out of claims
brought against the Merchant involving, fraud, mishandling or misplacing
Transaction Receipt during the term;
25.1.4. Any claim or proceeding brought by the customer against Mswipe or Facility
Providers in respect of any products of the Merchant;
25.1.5. Claim or proceeding brought against Mswipe or Facility Providers in respect
of any services or operations of the Merchant;
25.1.6. Any act of negligence or default by the Merchant or the Merchant's
affiliates,
agents, employees or licensees or the Merchant;
25.1.7. Any act or omission by the Merchant in respect of the sale of /payment for
the products;
25.1.8. Any fines, penalties, interest on delayed payments imposed directly or
indirectly on Mswipe and/or Facility Providers on account of the Merchant and/or
the products.
25.2. Notwithstanding anything contained in these Terms and Conditions, in no event
shall Mswipe and Facility Providers be directly or indirectly liable to the Merchant
for any consequential, remote, direct, indirect, special, incidental or punitive
loss,
damages, compensation, costs, charges or expenses (including without limitation,
loss of profits or revenues, loss of opportunity etc.) of any nature whatsoever by
reason of termination of the arrangement between the Merchant and Mswipe.
25.3. The Merchant shall fully indemnify and keep indemnified Mswipe and/or
Facility Providers from all damages, costs, legal fees, charges and expenses, and
losses that Mswipe and/or Facility Providers may incur as a consequence of any
failure whether temporary or permanent of the Support Services (as modified from
time to time) provided by Facility Providers to the extent such failure results in
any
wrongful or incorrect payment to the Merchant. The Merchant shall also undertake
to make good and reimburse Mswipe and/or Facility Providers and/or the customer
for any failure of the Support Services, to the extent of such failure results in
any
wrongful or incorrect payment to the Merchant.
25.4. In the event of Mswipe being entitled to be indemnified pursuant to these
Terms and Conditions, Mswipe shall be entitled to accordingly and to such extent
debit the payments to be made to the Merchant irrespective of any dispute that the
Merchant may have in respect of such debit and shall be also entitled to collect the
said money in any manner whatsoever.
26.1. This Application shall become effective on the Effective Date and shall remain
in full force till either Party delivers to the other Party a written notice for
termination of this Application as per provisions under this Application or if the
Merchant declines to accept the Terms and Conditions electronically.
26.2. Mswipe can terminate this Application with or without reason whatsoever by
providing an advance notice of seven (7) days. The Merchant can terminate this
Application with reason by providing an advance notice of thirty (30) days.
26.3. Notwithstanding the above, Mswipe may terminate this Application with
immediate effect and without notice in the event that the Merchant breaches any
of the Terms and Conditions or fails to honour, observe, adhere to, abide by or
comply with any directions or instruction issued by Mswipe and/or fails to honour,
observe, perform or undertake any of its obligation under the Application and or
these Terms and Conditions or if the chargeback in any month crosses 0.3 % of total
transaction value of that month.
26.4. If there is a breach by the Merchant of its obligations or responsibilities
under
this Application, then Mswipe shall have the right to immediately suspend
performance of its obligations hereunder till the time such breach is cured by the
Merchant.
26.5. Where any refund claimed by Mswipe exceeds the amount due to the Merchant,
the difference thereof shall be a debt due from the Merchant to Mswipe and be
forthwith recoverable by action.
26.6. Further on termination of the arrangement between the Merchant and Mswipe,
the Merchant shall immediately on such termination return the Equipment to Mswipe
in good and working condition (save and except normal wear and tear). Merchant
hereby agrees, acknowledges and authorizes Mswipe to recover the cost of the
Equipment from ECS or valid standing instructions in the event the Merchant fails to
return the Equipment upon termination of the arrangement between the Merchant
and Mswipe or the Equipment returned are damaged.
27.1. In the event of the Merchant is not transacting with Mswipe on any Card issued
by a particular card scheme for a continuous period of three (3) months, Mswipe
reserves the rights to cancel the Merchant's affiliation in relation to that
particular
card scheme.
27.2. The Merchant hereby acknowledges that Mswipe may from time to time
procure, extract or obtain credit related information about the Merchant from
various credit bureaus including but not limited to Credit Information Bureau
(India)
Limited (CIBIL). The Merchant hereby agrees, authorizes and permits Mswipe to
procure, extract and or obtain such information without prior intimation to the
Merchant.
27.3. Merchant shall follow the processes and procedures as laid down by Mswipe for
resolving queries/issues concerning the Customer, Valid Card, the Equipment,
Support Services and telecom services. Merchant acknowledges receipt of such
procedures, processes and relevant contact numbers for query resolution.
27.4. If the Merchant fails to comply with these Terms and Conditions or in the
event
the Equipment provided by Mswipe is damaged or stolen then the Merchant shall
immediately pay the amounts mentioned in Clause 14.6, as applicable, to Mswipe
for the Equipment. Further the noncompliance of these Terms and Conditions by the
Merchant shall be construed as material breach of these Terms and Conditions and
without prejudice to other rights of Mswipe under these Terms and Conditions, the
Merchant shall immediately return the Equipment in working condition with all
accessories and packaging on demand by Mswipe.
28.1. Governing Law And Dispute Resolution This Application shall be governed by
and construed in accordance with the laws of India. All disputes under this
Application shall be referred to arbitration by sole arbitrator appointed by Mswipe.
The proceedings of such arbitration shall be governed by the provisions of the
Arbitration and Conciliation Act of 1996 (as amended from time to time) and shall
be held at Mumbai, India. The Parties shall be entitled to apply to the competent
courts for interim or interlocutory relief in respect of such arbitration. Subject
to
the above, competent courts in Mumbai, India shall have exclusive jurisdiction over
any of the disputes arising out of or in connection with this Application.
28.2. Force Majeure Neither Party shall be liable to the other nor shall be in
default
if such Party is adversely affected due to circumstances beyond its reasonable
control such as applicable laws, natural calamities, acts of God, threat of wars,
riots, strikes, acts of Government, shortages of materials, industrial emergencies,
etc.
28.3. Documents The Merchant agrees and undertakes to provide all such true and
correct documents including but not limited to proof of identification, declaration
in case of proprietorship concern, address proof etc. as and in the form required by
Mswipe at the time of submitting this Application and from time to time.
28.4. General These Terms and Conditions (along with the Application) constitute
the entire agreement between the parties with respect to the subject matter herein
and supersedes all prior arrangements between the parties regarding such subject
matter. The arrangement between Mswipe and the Merchant is non-exclusive and on
principal to principal basis and nothing contained herein creates any agency or
partnership or joint venture relationship between the Mswipe and the Merchant. The
Merchant shall not assign or transfer any of its rights and liabilities to any third
party.
No failure on the part of Mswipe to exercise or delay in exercising any of its
rights
will be deemed a waiver thereof, nor will any single or partial exercise preclude
any
further or other exercise of such or any other right. Any notices/communication to
be given by a party to the other shall be sent by registered letter or email to the
other party at the address/email ID last notified by such party. However, any notice
or communication sent by Mswipe to the Merchant via email or message on the
registered email or registered mobile number or of the Merchant or via or in - app
notification shall considered a valid written notice and shall be deemed to have
been
duly served on the day such email, message or notification is sent. Mswipe will
protect and use Merchant’s Information in accordance with its Privacy Policy
available at www.mswipe.com. If any part of these Terms and Conditions is
unenforceable because of any rule of law, public policy or for any other reason,
such
unenforceable provision shall be severed from these Terms and Conditions, and the
remaining provisions of these Terms and Conditions shall remain in full force and
effect. The provisions of these Terms and Conditions which by its nature survives
shall survive the termination of the arrangement between the Merchant and Mswipe.
29. MODIFICATIONS TO THESE TERMS AND CONDITIONS
29.1 Mswipe may, in its sole and absolute discretion, change these Terms and
Conditions from time to time. Mswipe will post notice of such changes on the website
and / or the mobile app. Merchant agrees and acknowledges that if the Merchant
objects to any such changes, its sole recourse shall be to cease using the Mswipe
services, products, websites, Features, and/or the Support Services. Continued use
of Mswipe services, products, website and/or the Support Services following notice
of any such changes shall indicate its acknowledgement of such changes and
agreement to be bound by the terms and conditions of such changes. Certain
provisions of these Terms and Conditions may be superseded by expressly-designated
legal notices or terms located on particular pages of the Mswipe websites,
application and/or be communicated to the Merchant through any other means as
per these Terms and Conditions and, in such circumstances, the expresslydesignated
legal notice or term shall be deemed to be incorporated into these Terms
and Conditions and supersede the provision(s) of these Terms and Conditions that
are designated as being superseded.
29.1 Mswipe may, in its sole and absolute discretion, change these Terms and Conditions from time to time. Mswipe will post notice of such changes on the website and / or the mobile app. Merchant agrees and acknowledges that if the Merchant objects to any such changes, its sole recourse shall be to cease using the Mswipe services, products, websites, Features, and/or the Support Services. Continued use of Mswipe services, products, website and/or the Support Services following notice of any such changes shall indicate its acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. Certain provisions of these Terms and Conditions may be superseded by expressly-designated legal notices or terms located on particular pages of the Mswipe websites, application and/or be communicated to the Merchant through any other means as per these Terms and Conditions and, in such circumstances, the expresslydesignated legal notice or term shall be deemed to be incorporated into these Terms and Conditions and supersede the provision(s) of these Terms and Conditions that are designated as being superseded.
30.1 Please e-mail Mswipe at helpdesk@mswipe.com or contact Mswipe on our
customer support: 1800-102-2699. The Merchant may contact Mswipe with any
enquiry relating to these Terms and Condition and can also do the same by writing
to Mswipe’s grievance officer at the address provided below:
Name: - Ms. Wasifa Shaikh
Marathon Future,
26th Floor, A Wing,
Mafatlal Mills Compound
N.M. Joshi Marg, Lower Parel,
Mumbai – 400 013
Email id: grievance@mswipe.com
Mswipe may retain Merchant or user information for a minimum of 180 days in cases where such Merchant or user information has been disabled on account of violation of the laws in India or grievances received by Mswipe or where the Merchant or user registration is cancelled or withdrawn.
Using Mswipe services, Features, Support Services in any manner or for whatsoever
purpose, to host, display, upload, modify, publish, transmit, update or share any
information that:
s
i. belongs to another person and to which the Merchant and or the user does not
have any right to,
ii. is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic,
paedophilic, libellous, invasive of another's privacy, hateful, or racially,
ethnically
objectionable, disparaging, relating or encouraging money laundering or gambling,
or otherwise unlawful in any manner whatever,
iii. harm minors in any way,
iv. infringes any patent, trademark, copyright or other proprietary rights of any
third
party,
v. violates any law for the time being in force,
vi. deceives or misleads the addressee about the origin of such messages or
communicates any information which is grossly offensive or menacing in nature,
vii. impersonate another person,
viii. contains software viruses or any other computer code, files or programs
designed to interrupt, destroy or limit the functionality of any computer resource,
and
ix. threatens the unity, integrity, defence, security or sovereignty of India,
friendly
relations with foreign states, or public order or causes incitement to the
commission
of any cognisable offence or prevents investigation of any offence or is insulting
any
other nation.