ARTICLE 1: SCOPE, DEFINITIONS & INTERPRETATION
1.1 Scope
- Futuretek Commerce Private Limited ("Getepay”) has developed and is the owner of integrated payment platform that is used by Getepay to provide services relating to onboarding of merchant & facilitation of electronic payments through different modes such as (a): Valid Card transactions to effect payments to merchants including recurring payments on a subscription model and e-mandate payments; (b) net-banking transactions from Customer’s bank accounts including transactions for e-mandate payments; (c) payments from Customer’s Wallets; (d) payments through UPI ; (e) Payments effected through inter alia the National Electronics Fund Transfer (NEFT) system, Real Time Gross Settlement (RTGS) system and Immediate Payment Service (IMPS) and (f) recurring payments through modes such as e-NACH, e-Mandate services, UPI Mandate Services etc. (hereinafter referred to as the “Getepay Services”).
- This Terms and Conditions is between you (“Merchant”) and Getepay, and shall govern your use of Getepay 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” merchant agreement or login to merchant APP or by accessing and using our products and/or services in any way, you agree to be bound by these Terms and Conditions.
- The Merchant provides platform on the web/mobile or over the counter to its Customers for selling its products/services to its Customers.
- The Merchant is desirous of obtaining payment gateway services (Including UPI) of Getepay and Alert Services through Equipment for receiving payments in respect of services/Products rendered by the Merchant to its Customers.
1.2 Definitions
In this Agreement unless the context otherwise requires:
- "Acquiring Banks/ Payment Service Provider" shall mean various banks, financial institutions, Card Organizations who are defined and licensed under the Payment and Settlement Systems Act, 2007 and the rules and regulations framed thereunder.
- "Acquiring Bank Services" shall mean the Payment Gateway Network and services provided by the Acquiring Banks such as (i) routing internet based (a): Valid Card transactions to effect payments to merchants including recurring payments on a subscription model and e-mandate payments; (b) net-banking transactions from Customer’s bank accounts including transactions for e-mandate payments; (c) payments from Customer’s Wallets; (d) payments through UPI ; (e) Payments effected through inter alia the National Electronics Fund Transfer (NEFT) system, Real Time Gross Settlement (RTGS) system and Immediate Payment Service (IMPS) and (f) recurring payments through modes such as e-NACH, e-Mandate services, etc; (ii) providing Authentication and Authorization from Card Organizations or other third party clearing houses; and (iii) facilitating transmission of funds to the Customer’s account once a Chargeback is approved by the Partner Bank.
- "Alert Services" shall refer to the notifications provided to the Merchant for each payment received from the Customers utilizing the specified Processing Mechanism for any Transaction.
- "Authentication" shall mean the process by which Customer identity is authenticated in the Processing Mechanism.
- "Authorization" shall mean the process by which the availability of requisite balances / limit (to conduct the transaction requested) and approval of the Issuer for effecting a charge on the Customer’s credit card, debit card, bank account, e-wallet or any other valid source of payment being used by the Customer in the Transaction are established in the Processing Mechanism.
- "Card Organization(s)" shall mean any of Visa/MasterCard/Visa Electron/Maestro/Diners/American Express/Rupay or any other debit or credit card issued as per their respective Card Organization Rules as specified by Getepay from time to time bearing the signature of the holder.
- "Card Organization Rules" shall mean the written rules, regulations, releases, guidelines, processes, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Card Organization.
- "Chargeback" shall mean the reversal of an approved and settled Transaction, such reversal being requested by an Issuer pursuant to a request from a Customer, in a manner such that the Customer Payment Amount is settled by the Payment Service Provider to the Customer’s account, subject to the Partner Bank’s approval to effect the Chargeback.
- "Customer(s)" shall mean any person who is availing services or products of the Merchant using Getepay Services to make the payment/remittance.
- "Customer Payment Amount" shall mean the total amount paid by the Customer towards the Merchant Services which will include, inter alia, charges and other taxes, duties, costs, charges, and expenses in respect of the Merchant Services.
- "Equipment" shall mean the equipment as specified in the Registration Form as may be provided or sold for Authorization by Getepay to the Merchant, which comes with a Subscriber Identity Module (“SIM”) based connectivity and does not include Getepay’s systems (embedded and connective software), confidential documentation or any related and other Intellectual Property Rights supplied by Getepay.
- "Facility Providers" means various banks, banking entity, card association, financial institutions and various software services providers as well as Third Party service providers, who are in the business of providing information technology services, including but not limited to, internet based electronic commerce, internet payment gateway and electronic software distribution services, who have an arrangement with Getepay to facilitate use of internet Payment Gateways to route internet based Transactions.
- "Features" shall mean
- "Getepay Fees" means the rates which Getepay/Bank would charge for Getepay Services, which shall include Getepay’s dashboard services, Getepay’s API services and other value added services as specified in onboarding Form/ LOI or Merchant this signed/agreed by the Merchant. Merchant also agrees to amendments to Getepay fees as updated on the Getepay Merchant APP or communicated to the merchant on SMS/email from time to time by Getepay.
- "Issuer" shall mean any bank/entity that has issued a Valid Card or a bank account or a Wallet or any other valid instrument to transact, to a Customer.
- "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 GETEPAY and GETEPAY will intimate Merchant of any such change on the Getepay Merchant APP, SMS or email.
- "Merchant Services" shall mean the products, whether in physical or digital form or any service provided by the Merchant at the Merchant Store for sale, offered for sale or sold to its Customer/s, the remittance/payment for which is to be made through the Customer’s valid accounts / Valid Card/s or bank account or any of the modes of payment offered under the Getepay Services Suite.
- "Merchant Store(s)" means the physical shop, store, outlet or any other premises controlled and/or operated by the Merchant Services are offered for sale.
- "Onboarding" or "Integration" is the process that is required to be completed to enable the Merchant to be registered on Getepay’s platform to commence use of the Getepay Services.
- "Payment Gateway" shall mean and include the software, applications, systems and protocols that may be stipulated by Getepay to enable the Authentication of Customers and the Authorization of payments effected by a Customer through any of the modes of payment offered , in accordance with the Processing Mechanism.
- "Payment Gateway Network" shall mean the hardware, software and telecommunications tools necessary to perform protocol conversion between different networks or applications and all associated software required for the Acquiring Bank to submit Authorization and data capture transactions to Getepay and to transmit Authorization and settlement of transactions between the Merchant and Getepay.
- "Partner Banks" shall mean the banks from which Getepay obtains nodal accounts for holding the Customer Payment Amounts in turn to facilitate the settlement of Customer Payment Amounts to the Merchant’s account
- "Processing Mechanism" means the payment mechanism through the internet utilizing the Payment Gateway Networks of Acquiring Banks including steps relating to Authentication and Authorisation for the purpose of effecting the transfer of funds from the Customer’s account to Getepay’s nodal account followed by settlement of such funds to the Merchant’s account.
- "Registration Form" shall mean the merchant Registration form, whether physical or digital, submitted by the Merchant and verified and accepted by Getepay for the purpose of availing of Getepay’s services.
- "Soundbox" shall mean a small portable speaker for payment alerts, equipped with SIM based connectivity, designed to notify the Merchant with a loud alert when a Customer makes a payment by scanning an UPI QR code.
- "Terms and Conditions" shall mean these terms and conditions as provided herein, and any and all schedules, appendices, annexure and exhibits attached to it and includes any addition, modification, amendment, addendum or deletion thereof agreed to in writing by the Parties.
- "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 Customer.
- "Transaction" shall mean a financial transaction conducted by the Customer through Getepay Services.
- "Third Party" means any entity/person who is not a party to the Terms and Conditions.
- "Unified Payments Interface" or "UPI" is a payment system that powers multiple bank accounts into a single payment network of any participating banks which permits merging several banking features, seamless fund routing & merchant payments into one hood.
- "Valid Card" shall mean any unexpired credit card or debit card which is issued by an Issuer designated to issue a VISA/MasterCard/Visa Electron/Maestro/American Express/Rupay card or any other debit or credit card as per the Card Organisation Rules as specified by Getepay from time to time, bearing the signature of the holder.
- "Valid Mode" shall mean the Valid Card and the Other Modes of payments ;
- "Wallet" shall mean a pre-paid payment instrument that facilitates purchase of goods and services against the value stored on these instruments. The value stored on such instruments represents the value paid for by the holders by cash, by debit to a bank account, or by credit card.
- "Website" shall mean the website which is established by the Merchant for the purposes of enabling its Customers to purchase products and services offered by the Merchant and to carry out the Transactions for that purpose alone.
ARTICLE 2: GETEPAY SERVICES
2.1 Provision of GETEPAY Services:
- Getepay shall provide the Getepay Services based on the terms and conditions.
- Getepay is entitled to Tweak the scope of the Getepay Services for enhancement, security of Transactions or improvement of Getepay Services in its absolute discretion, provided that nothing in the foregoing provision shall limit Getepay’s obligations or liabilities under these Terms and Conditions for the Getepay Services. Getepay shall not be required to take the consent of the Merchant for carrying out these Tweaks, during the course of these Terms and Conditions. For the purpose of clarity, "Tweak" shall mean optimization procedures, both manual and machine learning based, for different modes of payments in order to improve the payment performance.
- Getepay shall deliver or cause to be delivered to the Merchant, the Equipment, at a place specified by the Merchant and agreed by Getepay. The mode of delivery shall be in a manner mutually agreed between the Parties but after receipt of installation fees and delivery charges, as maybe applicable, by Getepay.
- At the time of installation of the Equipment availed by the Merchant, Getepay's representative may train the Merchant about the procedure for using the Equipment ("Support Services”).
- To provide Support Services, no separate charges are recovered by Getepay from the Merchant pursuant to these terms and conditions.
- The Merchant shall at all times during the period of use of the Equipment avail the Support Services provided by or on behalf of Getepay.
- The Merchant agrees and acknowledges that Getepay 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 Getepay except in case of purchase of Equipment.
- Getepay shall reserve the right to disable, suspend or permanently disallow access to either part or whole of the Getepay Services if Getepay observes a significantly high volume of disputed Transactions, Chargebacks and escalations originating in relation to the Transactions originating from the Merchant Store.
- The Merchant agrees and acknowledges that Getepay shall be the absolute owner of any intellectual property rights underlying customizations, if any, carried out by Getepay and the Merchant shall have no rights over such intellectual property rights arising on account of the customizations made by Getepay.
- Getepay will assist in Onboarding of merchant, invoicing of Getepay and providing a platform through which the merchant will get access to Transactions processed through the payment acquiring mode deployed on his/her Website/ at his/her location.
- The Merchant may contact Getepay for any other additional information and support at the phone number(s) and email address(es) given by Getepay from time to time, in this regard.
- The Parties reserve the right to terminate these Terms and Conditions in accordance with Article 16 of these Terms and Conditions in the event of any breach and/or as a result of any unauthorized use and/or infringement of the other’s intellectual property rights.
- Merchant undertakes that it will not route any ban category transactions specially gaming, crpyto, lottery and any other ban categories as defined by Futuretek from time to time. Merchant understand that Futuretek will be free to take legal action along with claim of upto 3x of the processed transaction amount against the Merchant in case found guilty of processing such transactions along with withholding of the settlement amount.
ARTICLE 3: FEES
- In consideration for receiving the Getepay Services, the Merchant agrees to pay requisite Getepay Fees, on a monthly fee as specified in the Registration Form to the Getepay along with the installation and delivery charges with respect to the equipment in accordance with the Terms and Conditions mentioned herein. Getepay Fees can be changed by Getepay, at any time by updating the Fees on the Getepay website or Mobile app. The Merchant agrees to accept the revised Fee/charges and in case the fee/charges revised are not acceptable to the Merchant, Getepay is free to stop the Getepay Services. It is agreed between the Parties that the Fees shall be deducted from the Customer Payment Amount prior to settlement of the Customer Payment Amount to the Merchant’s account as per Article 4.
- Getepay shall raise a system-generated invoice and send it to the Merchant via email or text message or made available on Getepay merchant portal or mobile APP or any other medium , specifying the details of the said Getepay Service availed and the amount to be paid by the Merchant. Getepay will raise periodical invoices for recovery of various payments.
- In respect of any unpaid amounts, by the Merchant to Getepay (in case of Chargebacks and refunds in excess of the amount held in the nodal account), Merchant shall make due payment of any and all the invoices of Getepay within three (3) days from the receipt of the invoice, failing which Getepay shall be entitled to charge interest of two percent (2%) per month on the unpaid amount. Without prejudice to the above, Getepay is also entitled to suspend its services hereunder until all payments, along with the interest payable is fully cleared by the Merchant. (The Merchant shall be responsible for the Merchant’s failure to pay amounts due to Getepay and any amount unpaid by the Merchant shall be paid by the Merchant.)
- Installation charges as specified in the Registration Form 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 Getepay as specified in the merchant agreement and any updation thereof or as agreed with the merchant)
- Repair of Equipment: Subject to these terms and conditions, charges for repair of the Equipment as may be applicable on a case-to-case basis shall be paid by the Merchant.
- Equipment Sale: The sale price of the Equipment as specified by Getepay shall be paid by the Merchant.
- If such circumstances arise concerning the financial conditions of the Merchant which threaten Merchant’s ability to fulfill its payments obligation, Getepay shall have the right to suspend the Getepay Services and to require the full payment of the Getepay Services in advance.
- Payments of fees contemplated under Article 3 shall be subject to applicable taxes as per the provisions of applicable law.
ARTICLE 4: SETTLEMENTS TO THE MERCHANT
- The total Customer Payment Amount(s), in respect of the Transactions of the Customers through various channels covered under these Terms and Conditions shall be deposited directly in the nodal/escrow account as per the prevailing Reserve Bank of India (“RBI") guidelines.
- Subject to Getepay’s withholding rights under Article 3, Article 5.5, Article 15.6 and Article 15.7, the monies deposited in the nodal account shall be transferred to the Merchant’s account within T + 1 bank working days (T being the date on which the Customer Payment Amount is realized by Getepay in its nodal account) or within such other period as the Partner Bank may take to transfer the aforesaid monies to the Merchant’s account after deduction of Fees as agreed under these Terms and Conditions
ARTICLE 5: SETTLEMENT OF PAYMENTS
- In processing the Transactions, Getepay shall be entitled to rely upon all electronic communications, orders or messages sent to Bank through the Processing Mechanism and to the extent this is in compliance with the Processing Mechanism and any applicable laws and guidelines of the RBI, Bank shall not be obligated to verify or make further inquiry into the identity of the sender, or the message integrity, of any communications, orders or messages. Merchant shall in no circumstance dispute such reliance by Getepay.
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Getepay shall be entitled to recover from the Merchant, from time to time, any amounts due from it or the Merchant or incurred by Getepay on account of the following:
a) Chargeback of Transactions with penalties if any levied on Getepay.
b) Any penalties or charges which may be levied on Getepay by the Acquiring Banks or the clearing house viz. Reserve Bank of India or the Partner Banks or any of the Facility Providers for acts or omissions attributable to the Merchant, arising inter alia on account of excessive Chargeback of Transactions or out of excessive failure of Transactions, the extent of excessiveness of such Chargeback or failures shall be determined by the Partner Bank or on account of excessive Customer disputes and/or any other reason as per Partner Banks's discretion.
c) Any other amount due to Getepay from Merchant. - If there are reasonable grounds to suspect that a Transaction has been conducted in breach of these Terms and Conditions or with the intent to defraud any of the Facility Providers in the Payment Gateway, Bank shall be entitled to suspend / withhold the payments of the Customer Payment Amount to the Merchant, pending enquiries by Getepay and/or the Acquiring Banks till the resolution of such issues.
- In respect of any breaches or fraudulent Transactions, etc. contemplated in Article 5.3, if such breaches or fraudulent Transactions, etc. are caused by Merchant, then Merchant (as the case may be) shall indemnify and hold Getepay harmless against any such claims made by the Issuing Bank or the Customer, as the case may be.
- In case of an occurrence of a Chargeback event, Getepay shall be entitled to withhold the settlements to the Merchant, pending enquiries by the Partner Bank or any regulatory body and/or Payment Gateway Provider till the resolution of such issues. Getepay shall also have the right to block any future payments to the Merchant in this regard until the Chargeback event/s are resolved.
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No Guarantee of Payment
Authorisation of a Transaction/success response on the API, Screen or any means does not guarantee payment to the merchant/client for a Transaction nor is it a guarantee that it will not be subject to a Chargeback or that merchant/client will not be subject to a debit in relation to that Transaction. Should a cardholder deny having participated in a Transaction, Bank may, at its discretion, withhold or return in respect of card not present Transactions the relevant Transaction/Transactions as unpaid.
ARTICLE 6: COVENANTS OF MERCHANT
- The Merchant acknowledges that Getepay shall not be responsible for any Customer claims for refund of payments made by the Customers. All Customer claims for refund of payments (for any reason whatsoever) shall be the responsibility of the Merchant and any refund payments shall be made directly by the Merchant to the Customer post the settlement is made to the Merchant. In case the Merchant wants the refunds to be routed through Getepay, the Merchant has to fund the nodal account of Getepay accordingly.
- Merchant agrees and acknowledges that Getepay is not bound to provide any support services on termination of the Terms and Conditions.
- Merchant may promote Getepay Services in its Website or physical outlet and may endeavour but not be obligated to promote Getepay Services in other advertisements, and publications.
- Merchant undertakes to provide all the information and assistance as is required by Getepay if the same is required to be provided to government or judicial/quasi-judicial authorities by Getepay.
- Merchant undertakes not to offer or facilitate the offering of any products, which are illegal or offensive or prohibited as per the list provided in Annexure B and/or not in compliance with applicable laws, rules and regulations prescribed by any regulatory authorities in India. In addition, Merchant undertakes to comply with and shall ensure that all Transactions by Customers will be in compliance with applicable guidelines, rules, and regulations issued by RBI, Partner Banks, Acquiring Banks and/or Card Associations.
- Merchant agrees and understands that Getepay reserves the right to suspend settlement of any Customer Payment Amounts and/or Getepay Services until such time that Merchant does not discontinue selling or facilitating the sale of prohibited products mentioned in Annexures or does not conform to all applicable laws and regulations in force from time to time. In addition, Getepay reserves the right to terminate these Terms and Conditions without further notice in the case of breach of this Article by the Merchant.
- The Merchant shall not represent himself as an agent and/or representative of Getepay.
- The Merchant agrees and understands that Getepay has the right to refuse Getepay Service/s to anyone (without assigning any reason) at any time, at the sole discretion of Getepay.
- In no event, Getepay shall be required to or deemed to establish any contract for the sale and purchase of the Merchant Services 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 Getepay.
- The Merchant shall not by himself or by any Third Party permit any resale or commercial use of the Getepay Services such as permit any Third Party to use and benefit from the Getepay Services via a rental, lease, timesharing, service bureau or other arrangement.
- The Merchant shall capture only the Transactions done in its establishment as provided in the Registration Form. On no account, shall the Merchant himself or through a Third Party capture the Transactions done on other establishments.
- If a SIM Card has been provided along with the Equipment, then the Merchant undertakes to use this SIM Card only with the Equipment and only for the purpose of telecommunication between the Equipment and Getepay's server.
- In the event, a Merchant at whose establishment the Equipment has been installed, fails to have any Transaction where the Getepay Services could be utilised, for continued period of 90 days, the Merchant shall return the Equipment to Getepay immediately.
- Any fraudulent use of the Equipment to avail the Getepay Services, which causes any monetary loss to Getepay or the Facility Provider as a result of the Merchant’s actions shall be recovered from the Merchant. Without prejudice to the above, Getepay and the Facility Provider reserves the right to initiate legal proceedings against the Merchant for the fraudulent use of the Equipment or for any other unlawful act or omission in breach of these Terms and Conditions.
- The Merchant understands and acknowledges that the use of the Equipment in relation to Getepay Services requires internet/mobile network connectivity. The Merchant shall bear the costs incurred to access and use the Equipment and Getepay shall not, under any circumstances whatsoever, be responsible or liable for such costs.
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The Merchant shall comply with the following obligations during their use of the Equipment at its respective Merchant Store:
a) The Merchant shall ensure safe custody and security of the Equipment and be solely responsible for all loss or damage to the Equipment caused, as a result of, negligence or mishandling by it, which will be determined after investigation by Getepay. Getepay’s decision will be final in any case of the damage of the device. Provided that with respect to Article 19.2 (Replacement of Equipment), till the time the Equipment is not taken back by Getepay or the Facility Provider (as the case may be), it will be the sole responsibility of the Merchant to keep the Equipment in safe custody.
b) Upon termination of the Merchant relationship with Getepay, it shall return the Equipment in good and working condition. In the event, any Equipment is returned in a damaged or non-working condition (in any manner) or it claims that the Soundbox has been lost or stolen, the Merchant shall pay the cost of the Equipment to Getepay, in addition to other rights or remedies available to Getepay against the Merchant under contract, at Law or in equity.
c) The Merchant shall grant rights to Getepay and its deployed personnel, agent or third-party service providers, for the purpose of any future repair, maintenance, replacement, upgradation, de-installation or review of the Soundbox.
ARTICLE7: REPRESENTATION AND WARRANTIES
The Merchant represents and warrants that:
- It is an entity duly constituted and validly existing under Indian law;
- It has all necessary power and authority to enter into this arrangement;
- It holds valid and subsisting licenses, approvals, and consents as may be required for conducting its business;
- The persons signing the Application physically or digitally in the manner specified by Getepay, 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.
- The execution and delivery of the Registration Form, and the consummation of the transaction contemplated hereby, and the fulfillment of and compliance with the Terms and Conditions hereof, do not (i) violate any 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.
- The Registration Form and these Terms and Conditions, whether in physical form or in electronic form, constitute valid and legally binding obligation and will be enforceable against the Merchant in accordance with these Terms and Conditions.
- The Merchant has not given any false or misleading information to Getepay or the Facility Provider and any information provided by the Merchant is accurate, complete, and latest;
- The Merchant shall not use the Equipment for purposes that are not permitted by: (i) these Terms and Conditions; and (ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdiction;
- The Merchant shall not violate any of the terms specified under this Terms and Conditions and the Registration Form in relation to the Getepay Services;
- Getepay 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 Registration Form 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 Getepay. The Merchant's sole and exclusive remedy in the event of an interruption to or loss of use and/or access to the Getepay Services shall be to get the Getepay Services, as the case may be restored from Getepay. Getepay will use reasonable endeavours, at its sole and absolute discretion which shall be final and binding on the Merchant, to restore the Getepay Services and/or access to the Getepay Services as soon as reasonably possible.
- The Merchant acknowledges that it has been advised that no agent, employee, or representative of Getepay has any authority to buy and sell or affirm or promise any representation and warranty concerning the Equipment or the Getepay Services, 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 Getepay. The Merchant acknowledges that it is cognizant of this provision and evidences its agreement to be bound thereby.
ARTICLE 8: CONFIDENTIALITY
- Each Party acknowledges and agrees that in connection with this Termsand Conditions, the receiving party ("Receiving Party") shall not disclose to any Third Party, any Confidential Information (defined hereinbelow) of the disclosing party ("Disclosing Party") that the Receiving Party may have access to during and in connection with its performance of services hereunder. Confidential Information means any and all information or data of a confidential nature, or other information related to application, software (and intellectual property therein), network configuration, documents, accounts, business plans, products, promotional and marketing plans, tools, and techniques of business, information about a Party’s Customers, merchants, vendors, partners, employees, agents and contractors and processes and/or any other information in whole or in part of either Party.
- Getepay can establish contact with any Merchant’s Customer to validate the Transactions done by the Customer on the Merchant Website/location using Getepay Services for timely inspection and in case of dispute information being received by Getepay.
- The Merchant shall ensure that either the Merchant or any of its employees shall not reverse engineer, decompile, or disassemble any software shared/disclosed by Getepay.
- Each Party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of any Confidential Information and that the disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper.
- The Receiving Party will notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of Article 8 of these Terms and Conditions. The Receiving Party will cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of such Confidential Information and prevent its further unauthorized use.
- The Merchant further undertakes that it shall at all times during and after termination of this Terms & Conditions keep the Confidential Information confidential and not disclose it to any Third Party.
ARTICLE 9: DATA, SYSTEM SECURITY AND COMPLIANCES
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Security:
1. The Merchant and Getepay shall ensure that there are proper encryption and security measures at their respective Websites to prevent any hacking into information pertaining to Transactions contemplated under this Terms and Conditions. .
2, Merchant shall not
(i) decompile or reverse engineer the Getepay Payment Aggregator Services or Payment Processing services or otherwise attempt to obtain the source code of the Getepay Payment Aggregator Services or Payment Processing services;
(ii) allow any other person to use the Payment Aggregator Services or Payment Processing services, except the Merchant and its Customers as contemplated under this Terms and Conditions;
(iii) use the name or proprietary logo(s) of Futuretek without Futuretek’s prior written consent.
3. The Merchant shall ensure that the Merchant and/or its Customers agree to or have developed and implemented a mechanism for securing the link with Futuretek and/or the transmission of data in the course of the provision of the Payment Aggregator Services or Payment Processing services. If Merchant and/or its clients at any time during the Term of this Terms and Conditions fails to or is unable to implement any mechanism for securing transmission of data which may be required to do so by the Merchant and/or its Customers to provide/avail the Futuretek Services and as per the applicable laws, then Futuretek shall not be held responsible for the consequences thereof and shall further be obliged to cease to provide the Payment Aggregator Services or Payment Processing services as part of the Futuerek Services to the merchant without giving any notice. The Merchant shall be solely responsible for any and all financial liability/losses/claims/damages, whatsoever, arising out of and/or due to, such non-implementation of any mechanism for securing the link with Futuretek and/or transmission of data, by merchant and/or its Customer(s).
4. The Merchant shall ensure that it does not store any cardholder data or card details. The Customer of the Merchant shall enter the card details on the payment page of Getepay. The Merchant can only capture card details on its page if Merchant is PCI DSS certified and after approval from Getepay. - Electronic Communication: In processing the Transactions, Getepay shall be entitled to rely upon all electronic communications, and orders sent in the Merchant’s specified format to Getepay. Getepay shall not act on any electronic communications, orders or messages received online from the Merchant or the Customer which do not properly utilize the Merchant’s specified format and security measures as may be applicable from time to time.
- Security Requirements: In availing the Services, the Parties declare, assure and undertake to abide by the relevant security standards/regulations/ requirements/guidelines which would be applicable to the conduct of the Transactions contemplated under these Terms and Conditions, including, without limitation, (a) regulatory provisions as may be applicable from time to time, (b) security measures and resultant hardware/ software upgrade consequent upon upgrade of Merchant’s systems and procedures with a view to ensuring security of Transactions, (c) maintenance, protection, confidentiality and such other requirements with respect to Transaction data as may be imposed by any regulatory or standards authority including pursuant to PCI DSS, as applicable, and any modifications to or replacements of such programs that may occur from time to time.
ARTICLE 10: INTELLECTUAL PROPERTY
- Each Party acknowledges that it owns and/or is entitled to use any intellectual property used or adopted by a Party in the performance of its obligations under these Terms and Conditions or conduct of its business.
- Except as expressly set out in these Terms and Conditions no assignment of or license under any intellectual property right, whether registered or not, owned or controlled by a Party is granted to the other by these Terms and Conditions. “Intellectual Property Right” means any and all patents, copyrights, trade secret rights, trademark rights, design rights, and other proprietary or similar rights in intellectual property, existing now or in the future, including the rights to secure registrations, renewals and extensions thereof.
- No Party may, under any circumstances, seek to register any trademark, business name, business processes, inventions, company name, domain name using or incorporating the intellectual property of the other Party.
- It is agreed between the Parties that during the Term (defined hereinafter) any promotion or publicity by either Party of the other Party’s services should always carry the relevant Party’s trade mark or service mark as may be agreed between the Parties.
- Getepay is free to use the logo or name of the Merchant on its Website and client list without any prior approval required from the Merchant.
- This Article shall survive the termination or expiry of this Terms and Conditions.
ARTICLE 11: ADDITIONAL RIGHTS AND OBLIGATIONS
- Third-Party Products: The Equipment may include material that Getepay licenses from Third Parties. To the extent required by any such Third Party in its applicable license or resale agreement with Getepay, such Third Party shall be a direct and intended Third Party beneficiary of the arrangement between Getepay and the Merchant, insofar as it pertains to the protection of Intellectual Property Rights, disclaimers of implied warranties, and limitations, and exclusions of liability. The Merchant shall fully indemnify Getepay and/or Facility Providers (as the case may be) against any Third Party claim alleging that its Intellectual Property Rights are infringed by the Merchant.
- Protection against Unauthorized Use: The Merchant shall promptly notify Getepay and the Facility Provider of any unauthorized use of any Equipment of which the Merchant becomes aware. In the event of any unauthorized use by any Third Party, the Merchant shall immediately terminate and prevent further occurrences of such unauthorized use. If Getepay commences any legal proceeding in connection with such unauthorized use, then the Merchant shall, at Getepay's option and expense, participate in or control any such proceeding. In such event, the Merchant and Getepay shall each provide the other with such authority, information and assistance related to such proceeding as may be reasonably necessary to safeguard Getepay's interests and the Merchant's rights and covenants under these Terms and Conditions.
ARTICLE 12: INDEMNIFICATION AND REMEDY
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Notwithstanding anything contained in this Terms and Conditions, the Merchant hereby undertakes and agrees to indemnify, defend and hold harmless Getepay and Facility Providers including its parent, subsidiaries, affiliates, partners, officers, contractors, licensors, service providers, subcontractors, suppliers, directors, employees, and agents against all actions, proceedings, judgments, claims, liabilities (including statutory liabilities), penalties, demands and costs (including without limitation, legal costs of Getepay on a solicitor / attorney and own client basis), awards, damages (actual and consequential), losses and/or expenses arising under these Terms and Conditions on account of:
a) the Merchant’s breach of the terms of this Terms and Conditions.
b) any claim or proceeding brought by the Customer or any other person against Getepay in respect of any Merchant Services offered by the Merchant; or
c) any gross negligent act of Merchant’s agents, employees, licensees, contractors or Customers; or
d) any fines, penalties or interest imposed directly or indirectly on Getepay on account of breach by the Merchant’s obligations under this Terms and Conditions; or
e) breach of the confidentiality obligations by the Merchant, its agents, employees, officers, contractors, subcontractors, affiliates or any other representatives.
f) Should any proceedings be undertaken which may give rise to either Party’s liability under these Terms and Conditions, the other Party shall provide such Party with prompt written notice and an opportunity to participate in any such proceedings to represent its interest appropriately. Provided that Getepay shall not accept any liability for any loss or damage (actual and consequential) resulting from or in connection with the use of the Getepay Service/s or the inability to use it or for any loss or damage (actual and consequential) resulting from any delay or failure in the performance of the Getepay Service/s on account of any Third Party or due to any technical or technological failure or any other circumstances beyond Getepay’s control. - Not with standing the above, in no event shall Getepay be liable to the Merchant or to any Third Party for any losses or damages (actual or consequential) arising out of the Merchant’s use of the Getepay Services, whether based on warranty, contract, tort (including negligence) or otherwise.
ARTICLE 13: LIMITATION OF LIABILITY
- Except as otherwise provided in this Terms and Conditions, Getepay shall not be liable and responsible for any disputes, claims, losses, or damages arising out of any Third Party Software, interruptions, Chargeback, availability of connectivity of the network, delay in execution of the Transactions, in any manner whatsoever. It is agreed between the Parties that Getepay is a payment facilitator and in no event shall Getepay be liable to the Merchant for any consequential loss or damage or loss of profit, business, revenue, goodwill or anticipated savings arising out of the performance of the Getepay Services or otherwise. Subject to Article 14.2 below, under all circumstances, for any proven claims, demands etc. of whatsoever nature, the total liability of Getepay shall never exceed the Getepay Transaction/MDR Fees paid or payable by Merchant to Getepay for a period of 1 (one) month immediately preceding the date of such proven claim/demands.
ARTICLE 14: NO WARRANTY
- Except as provided herein below, Getepay disclaims implied warranties written or oral (if any), including but not limited to warranties of merchantability and fitness of Getepay Services.
- Getepay shall not be responsible for any losses sustained through (i) the use of counterfeit or stolen bank cards, or stolen devices; (ii) fraudulent electronic Transactions; or (iii) quality and service related claims pertaining to the Merchant Services.
ARTICLE 15: AUTO-RENEWAL
- Unless the Merchant disables the automatic renewal option, Getepay will automatically renew the applicable service when it comes up for renewal and will deduct the relevant fees from the payment method the Merchant have on file with Getepay at Getepay’s then current rates, which the Merchant acknowledges and agrees may be higher or lower than the rates for the original period. In case of a change in the fee structure, Getepay shall through its payment gateway or by themselves, intimate the same to the Merchant via email prior to such renewal.
ARTICLE 16: TERMINATION
- Each of the Parties is entitled to terminate these Terms and Conditions, at its option by giving a notice of not less than thirty (30) days in writing to the other Party.
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A Party shall be entitled at its option, to immediately terminate these Terms and Conditions by giving a written notice in that behalf, to the other Party on the occurrence of any of the following events:
a) If any Party becomes or is declared bankrupt or goes in liquidation voluntary or compulsory, except for the purpose of amalgamation or reconstruction;
b) If any Party ceases to carry on its business or suspends all or substantially all of its operations;
c) There is any change in applicable law, rules, regulations, directives or guidelines, which prevents the continuing of the arrangement under these Terms and Conditions;
d) If an event of any Force Majeure conditions (as described under Article 17) continues for a period in excess of two months;
e) If a Party engages in fraud or other illegal or unethical activities. - Termination of these Terms and Conditions shall not release any Party from the obligation to make payment of all amounts then due and/or payable; upon Termination both Parties shall settle all outstanding dues payable to the other Party and arrange to return all the documents and properties of the other Party.
- Termination of these Terms and Conditions shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision of these Terms and Conditions which is expressly or by implication intended to come into or continue in force on or after such termination.
- If there are reasonable grounds for Getepay to suspect or upon receiving an intimation in written mode of communication from the Issuer or Partner Bank that a Transaction conducted on the Merchant’s Website/outlet in suspicious manner which amounts to breach of these Terms and Conditions or as a fraudulent Transaction, against the Payment Service Provider(s) or any Customer, Getepay shall be entitled to suspend its services immediately, terminate these Terms and Conditions with immediate effect without having to give any notice of termination to the Merchant and withhold the settlements to the Merchant, pending enquiries by the Partner Bank and/or Payment Service Provider and till the resolution of such issues. Getepay shall also have the right to block any future payments in this regard. The Merchant acknowledge that the Partner Bank or Issuer may also be entitled to suspend their services pending any such inquiries and Getepay shall not be responsible for any interruption in Getepay Services caused due to suspension of services by the Partner Bank or Issuer.
- On the issuance of notice of termination under Article 16.1 or prior to the expiry of the these Terms and Conditions, Getepay reserves the right to withhold from the settlements , a certain sum computed based on a Stipulated Percentage (defined hereinbelow) in respect of Transactions (including the Transactions pending for settlement as on the date of notice of termination, if applicable) processed during a period of thirty (30) days prior to the date of termination and subject to settlement of Chargeback and refund claims from Customers during a one hundred and twenty (120) day period from the date of issue of termination notice (“Withholding Term”), Getepay shall, after processing such settlements, transfer the balance amount to the Merchant on the completion of the Withholding Term. The ‘Stipulated Percentage’ is the proportion of the total amount in respect of all claims towards Chargebacks, refunds, fraudulent Transactions out of the total Customer Payment Amounts in respect of all Transactions during the Term of the Terms and Conditions.
- Further it is agreed between the Parties that in the event any amount is to be received from the Merchant due to excessive Chargebacks or refunds or any other issues relating to any complaints of the Merchant’s Customers and is over and above the amount which has been withheld by Getepay, Getepay shall have a right to raise an invoice relating to such payments to be made and the Merchant agrees to make payments of such invoice within a period of 3 (Three) days of receiving the invoice.
- Getepay reserves the right to terminate the link with a specific acquiring bank forthwith by giving notice/intimation, in the event that the Acquiring Bank terminates its arrangement with Getepay.
ARTICLE 17: FORCE MAJEURE
- Force Majeure shall be any event or occurrence starting after the date of this Terms and Conditions, whatever the origin, which cannot be foreseen and is beyond the control of, and cannot be circumvented by the Party affected, and which renders the performance of the obligations impossible, including but not limited to acts of governmental policy/authority, fires, floods, earthquakes or other natural disasters, explosions, epidemic, general strikes, riots, war (declared and undeclared), rebellion and sabotage.
- The Party affected by a Force Majeure event shall not be liable to the other Party for its delay in the performance of, or non-performance, of its obligations or any part thereof under these Terms and Conditions. The Party affected by a Force Majeure event shall give notice of the Force Majeure event to the other party as soon as possible. Thus, the Parties agree to not hold each other liable for any delay or adverse effect caused due to the occurrence of such an event.
ARTICLE 18: DISPUTE RESOLUTION AND JURISDICTION
- In the event of a dispute in connection with this Terms and Conditions, the disputing Party shall issue a notice to the other Party to seek resolution of the dispute. Forthwith upon receipt of the notice by the other Party, the Parties shall engage in mutual discussions and endeavor to resolve the dispute within a period of thirty (30) days from the date of receipt by the other Party. In the event the dispute is not resolved within such period of thirty (30) days, the dispute shall be referred to a sole arbitrator appointed mutually by the Parties for arbitration in accordance with the Arbitration and Conciliation Act, 1996. The arbitration shall be held at Jaipur, India and the arbitration shall be conducted in the English language. This Terms and Conditions thereof shall be governed by laws of India and courts of Jaipur shall have exclusive jurisdiction to entertain a dispute in connection herewith.
ARTICLE 19: MISCELLANEOUS
- Non-Compete and Non-Solicitation: During the Term of these Terms and Conditions, and for 1 year after termination or expiry, the Merchant shall not employ or solicit for hire as an employee, consultant or otherwise any of the Getepay’s professional personnel who have had direct involvement with the activities with relation to any of the Getepay’S Services, without the Getepay’S express written consent, provided, however, that the Merchant shall not be precluded from hiring any employee of Getepay after a time period of from the date of termination of the employment of that professional personnel with Getepay, provided that the hiring party did not solicit the termination.
- Replacement of Equipment: If the Equipment/s supplied to the Merchant is/are damaged/defective/not working, as per the specifications provided by Getepay, the Merchant shall inform Getepay and/or the Facility Provider (as the case may be) about the defect within days of delivery of the Equipment, in the manner specified by Getepay and/or the Facility Provider (as the case may be). Getepay shall investigate the defects in the Equipment. After the investigation is completed of the defect, Getepay shall either repair or replace the concerned Equipment/s within days of receipt of the request. Provided that it shall be at the sole discretion of Getepay to not replace or return the Equipment/s if Getepay finds that the damage/defect was due to action/inaction of the Merchant.
- Cooperation: The Merchant acknowledges that its timely provision of access to its systems and various devices, as well as assistance, processes, cooperation, complete and accurate information and data from its officers, agents, and employees and suitably configured hardware and software are essential to performance of any Getepay Services. Merchant should allow Getepay to audit and inspect business processes followed by Merchant related to Getepay Services and suggest suitable changes thereto
- Entire Agreement: These Terms and Conditions, including the Schedules and Annexures attached hereto, constitutes the entire agreement between the parties, and supersedes all other prior or contemporaneous communications between the Parties (whether written or oral) relating to the subject matter hereof.
- Relationship between the Parties: Getepay and Merchant shall be independent contractors with each other for all purposes at all times, and neither Party shall act as or hold itself out as an agent for the other, nor shall either Party create or attempt to create liabilities for the other Party. Getepay has no connection or interest of whatsoever nature in the business of the Merchants or the goods/services offered/ marketed by the Merchant. We do not in any manner take part in their business, directly or indirectly and are nowhere concerned or connected to the revenue of the Merchants. Getepay shall only provide the Getepay Services to the Merchant/Buyer in the capacity as an independent contractor.
- Notices: Notices, writings and other communications under these Terms and Conditions may be delivered by hand, by registered mail, by overnight courier service, or facsimile to the addresses and numbers specified as follows or to such other addresses and numbers as may be specified in writing to the Parties as per details mentioned on .
- Notice will be deemed given in the case of hand delivery or registered mail or overnight courier upon written acknowledgement of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party; in the case of facsimile upon completion of transmission as long as the sender’s facsimile machine creates and the sender retains a transmission report showing successful transmission.
- Notice will be deemed given in the case of hand delivery or registered mail or overnight courier upon written acknowledgement of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party; in the case of facsimile upon completion of transmission as long as the sender’s facsimile machine creates and the sender retains a transmission report showing successful transmission.
- Survival: The provisions of Articles 8, 10, 12, and 13 shall survive the expiry or termination of these Terms and Conditions.
ANNEXURE B
Prohibited Activities and Services
- Adult goods and services which includes pornography and other sexually suggestive materials (including literature, imagery and other media); escort or prostitution services; Website access and/or Website memberships of pornography or illegal sites;
- Alcohol which includes alcohol or alcoholic beverages such as beer, liquor, wine, or champagne;
- Body parts which includes organs or other body parts;
- Bulk marketing tools which includes email lists, software, or other products enabling unsolicited email messages (spam);
- Cabledescramblers and black boxes which includes devices intended to obtain cable and satellite signals for free;
- Child pornography which includes pornographic materials involving minors;
- Copyright unlocking devices which includes Mod chips or other devices designed to circumvent copyright protection;
- Copyrighted media which includes unauthorized copies of books, music, movies, and other licensed or protected materials;
- Copyrighted software which includes unauthorized copies of software, video games and other licensed or protected materials, including OEM or bundled software;
- Counterfeit and unauthorized goods which includes replicas or imitations of designer goods; items without a celebrity endorsement that would normally require such an association; fake autographs, counterfeit stamps, and other potentially unauthorized goods;
- Drugs and drug paraphernalia which includes illegal drugs and drug accessories, including herbal drugs like salvia and magic mushrooms;
- Drug test circumvention aids which includes drug cleansing shakes, urine test additives, and related items;
- Endangered species which includes plants, animals or other organisms (including product derivatives) in danger of extinction;
- Gaming/gambling which includes lottery tickets, sports bets, memberships/ enrolment in online gambling sites, and related content;
- Government IDs or documents which includes fake IDs, passports, diplomas, and noble titles;
- Hacking and cracking materials which includes manuals, how-to guides, information, or equipment enabling illegal access to software, servers, website, or other protected property;
- Illegal goods which includes materials, products, or information promoting illegal goods or enabling illegal acts;
- Miracle cures which includes unsubstantiated cures, remedies or other items marketed as quick health fixes;
- Offensive goods which includes literature, products or other materials that:
- Defame or slander any person or groups of people based on race, ethnicity, national origin, religion, sex, or other factors;
- Encourage or incite violent acts;
- Promote intolerance or hatred.
- Offensive goods, crime which includes crime scene photos or items, such as personal belongings, associated with criminals;
- Pyrotechnic devices, combustibles, corrosives and hazardous materials which includes explosives and related goods; toxic, flammable, and radioactive materials and substances;
- Regulated goods which includes air bags; batteries containing mercury; Freon or similar substances/refrigerants; chemical/industrial solvents; government uniforms; car titles; license plates; police badges and law enforcement equipment; lock-picking devices; pesticides; postage meters; recalled items; slot machines; surveillance equipment; goods regulated by government or other agency specifications;
- Securities which includes government bonds or related financial products;
- Tobacco and cigarettes which includes cigarettes, cigars, chewing tobacco, and related products;
- Traffic devices which includes radar detectors/jammers, license plate covers, traffic signal changers, and related products;
- Weapons which includes firearms, ammunition, knives, brass knuckles, gun parts, and other armaments;
- Wholesale currency which includes discounted currencies or currency exchanges;
- Live animals or hides/skins/teeth, nails and other parts etc. of animals;
- Multi-Level Marketing collection fees;
- Matrix sites or sites using a matrix scheme approach;
- Work-at-home approach and/or Work-at-home information;
- Drop-shipped merchandise;
- Any product or service which is not in compliance with all applicable laws and regulations whether federal, state, local or international, including the laws of India;
- The Merchant providing services that have the potential of casting the Payment Gateway Facilitators in a poor light and/or that may be prone to Buy & Deny attitude of the cardholders when billed (e.g. Adult material/ Mature content/Escort services/ friend finders) and thus leading to chargeback and fraud losses;
- Businesses or website that operate within the scope of laws which are not absolutely clear or are ambiguous in nature (e.g. Web-based telephony, Website supplying medicines or controlled substances, website that promise online match- making);
- Businesses out rightly banned by law (e.g. Betting & Gambling/ publications or content that is likely to be interpreted by the authorities as leading to moral turpitude or decadence or incite caste/communal tensions, lotteries/sweepstakes & games of chance;
- The Merchant who deal in intangible goods/ services (eg. Software download/ Health/ Beauty Products), and businesses involved in pyramid marketing schemes or get-rich-quick schemes. Any other product or Service, which in the sole opinion of either the Partner Bank or the Acquiring, is detrimental to the image and interests of either of them / both of them, as communicated by either of them/ both of them to the Merchant from time to time. This shall be without prejudice to any other terms & conditions mentioned in this Agreement;
- Mailing lists
- Virtual currency, Cryptocurrency, prohibited investments for commercial gain or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world.
- Money laundering services.
- Database providers (for tele-callers).
- Bidding/Auction houses.
- Activities prohibited by the Telecom Regulatory Authority of India
- Any other activities prohibited by applicable law.