Terms and Conditions for Merchant Acquisition
This Merchant Agreement (the “Agreement”) is a legal and binding agreement between Merchant (“Merchant” shall mean the person who is signing at the end of this Agreement) and OBOPAY Mobile Technology India Private Ltd (“OBOPAY”). Please read it carefully. By applying for the Services through OBOPAY’s online application process or otherwise, Merchant acknowledges that Merchant has read and agree to be bound by (and that your company will be bound by) all of the terms and conditions of this Agreement and all documents incorporated by reference.
- DEFINITION OF TERMS AND INTERPRETATION
- In the Agreement, (i) capitalised terms defined by inclusion in quotations and/ or parenthesis have the meanings so ascribed; and (ii) the following terms shall have the meanings assigned to them herein below:
- “Consumer” shall mean the consumer who shall make payments to the Merchant by using Obo-Money Wallet or make payments using the Services;
- “Guidelines” shall mean the applicable laws, guidelines, regulations, notifications and instructions issued by Reserve Bank of India (“RBI”) and also all relevant regulators and/or bodies in relation to the operation of the Obo-Money Wallet and Services;
- “Obo-Money Wallet” shall mean the holder of all semi-closed prepaid instrument issued by OBOPAY and/ or any other payment instrument issued by OBOPAY to the Consumer and/ or other instruments added therein by the Consumer in accordance with the Guidelines that enables collection of payments by the merchants from their consumers;
- “OBOPAY Website” shall mean and include www.obopay.com, mobile application of OBOPAY, any successor website/ applications, any website of OBOPAY’s affiliates or any other channel facilitated & permitted by OBOPAY;
- “Merchant Account” shall be the account maintained by OBOPAY at its end to enable OBOPAY to accept and/or settle payments received from the Consumer;
- “Merchant Application Form”/ “MAF” shall mean the form to be completed by the Merchant and submitted along with necessary supporting documents, either online on OBOPAY Website or physically at designated and authorized agents of OBOPAY;
- Settlement Account” shall mean the settlement account of the Merchant identified in the MAF to which the proceeds of the Transactions processed on behalf of the Merchant are to be credited as per the records of the Merchant Accounts. OBOPAY may change the settlement account of the Merchant in its records on the request of the Merchant; and
- “Transactions” shall mean any transaction initiated or performed between a Merchant and a Consumer utilising the Obo-Money Wallet and/or Services.
- SCOPE OF THE AGREEMENT:
OBOPAY has agreed to provide and the Merchant has agreed to avail the Services on non-exclusive basis on the terms and conditions of this Agreement.
- MERCHANT ACCOUNT REGISTRATION AND OTHER OBLIGATIONS OF MERCHANT
- On receipt of MAF, KYC documents and other documents as requested by OBOPAY and on approval of Services by OBOPAY for the Merchant, OBOPAY shall activate the Merchant Account for the Merchant and the same shall be intimated to the Merchant.
- OBOPAY shall not be liable for any losses or damages caused to any person whatsoever as a result of any such request being unauthorised, inaccurate or fraudulent.
- Merchant agrees that OBOPAY may use its logos, service marks and its trade marks on a non-exclusive, royalty-free, license for displaying it on any of the marketing material of OBOPAY in the list of Merchants or as a Merchant of OBOPAY
- Merchant shall not request the Consumer for sharing any confidential Consumer details to be used in Transaction by the Consumer which is including but not limited to passwords, account number and PIN in relation to Obo-Money Wallet and Services, shall not save and/or store any such confidential Consumer details and shall not share such confidential information with third parties.
- INSPECTION AND INSTALLATION
- OBOPAY may carry out audit or inspection at the Merchant Location for the purpose of this Agreement i.e. in case of any audit directed by RBI or any such regulatory authority, if there is any fraud or similar transactions etc. In case of such audit or inspection the Merchant shall provide necessary information, documents, papers to the authorised representative of OBOPAY as may be requested by the authorized representative.
- The Merchant hereby authorises OBOPAY to share information /documents obtained from Merchant to the credit rating organisation at the discretion of OBOPAY to verify Merchants’ credit rating for the Merchant Account activation at the cost of OBOPAY.
- TERM OF THE AGREEMENT
This Agreement is effective from the date of execution by both the Parties and shall remain valid until terminated in accordance with the terms of this Agreement.
- OBOPAY’S ROLE AND RESPONSIBILITES
6.1 Parties hereby agree and acknowledge that the responsibility of OBOPAY in relation to the Obo-Money Wallet and the Services shall be limited to only such instances where the Consumer decides to use the facility of Obo-Money Wallet or Services at the Merchant Locations and OBOPAY’s role shall be limited to facilitating the payment mechanism between the Consumer and the Merchant.
6.2 The right to accept or cancel a Transaction after the same has been initiated by the Consumer through the Services shall vest with the Merchant. However, in the event a Transaction is cancelled, the Merchant shall be under an obligation to refund the amount of such Transaction.
6.3 Notwithstanding anything to the contrary contained in this Agreement, OBOPAY shall have a right to restrict or prohibit a Transaction, at its sole discretion, if such Transaction is in breach or likely to breach of applicable laws
6.4 OBOPAY shall not be liable to the Merchant on account of any Consumer or the Merchant being unable to access the Services OBOPAY will notify Merchant in case of any maintenance activity time to time.
- TECHNICAL & BUSINESS REQUIREMENTS
OBOPAY shall time to time notify specific technical and business procedures and policies to be followed for optimal use of the Services.
- RESTRICTED USE
The Merchant shall not act as a payment intermediary, aggregator or service bureau or otherwise resell the Services on behalf of any third party including handling, processing or transmitting funds for any third party. The Merchant also shall not use the Services to process cash advances.
- UNAUTHORIZED OR ILLEGAL USE
The Parties hereby agree that OBOPAY is under no obligation to authorize or settle any Transaction that is in violation of any agreement and applicable regulations or exposes other Consumers, OBOPAY’s process or incurs harm to OBOPAY.
The Merchant shall pay OBOPAY the applicable fees and the cost of installation if applicable as agreed hereunder or in MAF or by execution of separate mutually agreed document in writing for the Services applied by Merchant on the execution of this Agreement and approved by OBOPAY. The Parties agree that the fees shall be as may be mutually agreed and communicated to the Merchant by OBOPAY depending on the Services chosen by the Merchant and approved by OBOPAY time to time.
OBOPAY will collect an interest free security deposit from the Merchant for the use of its Services as may be mutually agreed by the Parties.
- REFUNDS AND CHARGEBACK
The Merchant shall process refunds of monies as mentioned in this Agreement including the Transaction amounts through the Services, wherever applicable and/ or other Merchant Locations, within prescribed time as notified by the OBOPAY for such refunds from time to time and shall notify OBOPAY, in case if any Transaction amount is to be refunded to the Consumer.
In case of a “Chargeback transaction”, repudiation of any transaction by a Consumer, or a request for refund by any Consumer for any reason whatsoever, OBOPAY shall be entitled to debit to the account of Merchant or withhold from the amounts due from it to Merchant, from time to time, to recover any amounts due from it or incurred by OBOPAY on account of Chargeback transactions, as per applicable guidelines of RBI and card associations that are authorized by RBI.. Further, the Parties hereby agree that OBOPAY shall, at any time, be entitled to set-off any or all amounts due to it from a Merchant, in connection with any or all Chargeback transaction.
The Merchant shall indemnify and keep OBOPAY indemnified from any actions, claims, costs, loss, damages, expenses, or liabilities resigning out of (a) a transaction
- RIGHT TO WITHHOLD PAYMENT
OBOPAY shall be, in relation to a Transaction, entitled at any time to refuse payment hereunder to the Merchant or if payment has been made to the Merchant, to debit the Merchant Account or to seek immediate reimbursement from the Merchant towards the amounts paid, notwithstanding any authorisation given by OBOPAY to the Merchant if: (a) Consumer disputes the Transaction; (b) any suspicious Transaction/activity appears in Merchants Account;
- DISCLOSURES AND NOTICES
OBOPAY shall provide disclosures and notices required by law and other information about the Merchant Account and Settlement Account to the Merchant electronically through email address registered with OBOPAY and if the email is not registered by the Merchant with OBOPAY such notices shall be displayed on the Obo-Money Website. Such disclosures and notices are considered received by the Merchant within 24 hours of such posting on the Obo-Money Website.
- COMPLIANCE WITH PAYMENT STANDARDS
The Merchant agrees that all the systems of the Merchant shall be compliant with the applicable payment industry standards if applicable to the Merchant.
- SUSPENSION OR TERMINATION BY OBOPAY
15.1 OBOPAY and Merchant may terminate this Agreement by giving 30 (thirty) days’ notice to the other Party in writing without assigning any reason.
15.2 OBOPAY reserves the right to cease to provide Services and/ or close the Merchant Account, without giving any notice to Merchant(a) if the Merchant has breached the terms of this Agreement or applicable laws (b) Merchants failure or neglect to use the Services or Merchant Account for a continuous period of [180 (one hundred eighty) days].
The relationship between OBOPAY and the Merchant is limited to a contractual relationship for the provision of Services and is not one of a principal and agent. For the sake of clarity the Parties agree that the relationship between the Merchant and OBOPAY shall be on principal to principal basis. The Services are protected by trademarks, copyright, trade secret and other intellectual property laws. The Merchant agrees and acknowledges that for the purpose of this Agreement, OBOPAY is and shall continue to be the owner of all trademarks, copyrights, trade secrets and other intellectual property rights in the Services, the Merchant also agrees and undertakes not to claim any right over any such trademark, copyright, trade secrets and/or other intellectual property rights
The Merchant shall indemnify, defend and hold harmless OBOPAY from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest and expenses including without limitation attorneys’ fees arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by any person or entity that arises out of or relates to or in connection with: (a) any actual or alleged breach of the Merchant’s representations, warranties, or obligations set forth in this Agreement; (b) violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (c) violation of any law, rule or regulation of India or any other country (d) consumer or any other party’s access and/or use of the Merchant Account with the Merchant’s unique username, password or other appropriate security code; and/ or (e) Transaction or any sale or proposed sale of goods and/ or services by a Consumer at Merchant Location. (f) Wrongful or improper use of OBOPAY technologies.
- REPRESENTATION AND WARRANTIES
The Merchant represents, undertakes and warrants to OBOPAY that: (a) any Transaction submitted will represent a bona fide sale or rendering of services by the Merchant; (b) any Transactions submitted will accurately describe the goods and/or services sold and delivered by Merchant to a purchaser; (c) it shall fulfill all obligations to each Consumer for which a Transaction has been submitted and will resolve any consumer dispute or complaint directly with the purchaser/ Consumer; (d) the Merchant and all Transactions initiated by the Merchant will comply with all national, state, and local laws, rules, and regulations applicable to the Merchant and/or the business, including any applicable tax laws and regulations;
The Service is provided on an “as is” and “as available” basis. Use of the Service is at the Merchant’s own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties for a particular purpose, or non-infringement.
- LIMITATION OF LIABILITY AND DAMAGES
19.1 OBOPAY, nor its affiliates nor any of their respective directors, officers, employees or agents shall be liable for any losses or damages resulting from the hacking, tampering or other unauthorized access or use of OBOPAY technologies, Merchant Account, Settlement Account or the information contained therein or any claims from any consumer purchasing or proposed to purchase any goods and/ or services from the Merchant.
19.2 In the event that any Party breaches this Agreement, in addition to any other remedies provided pursuant to this Agreement or applicable law, the non-breaching Party will be entitled to recover from the breaching Party only the actual and direct damages that the non-breaching Party incurs on account of such breach.
- GOVERNING LAW
The validity, interpretation, and performance of the Agreement shall be controlled by and construed under the laws of India. Subject to Clause 24, the courts in Bengaluru shall have exclusive jurisdiction over any dispute, differences or claims arising out of the Agreement.
Any Dispute arising out of or in connection with the Agreement shall be amicably settled at the first instance by mutual discussions and negotiations. In the event the dispute is not resolved within 30 (thirty) days then any Party may refer the same to the arbitration of single arbitrator to be appointed mutually by the Parties. The provisions of the Arbitration and Conciliation Act, 1996 shall be applicable to such arbitration or any enactment of statutory modification thereof. The arbitration proceedings shall be in the English language. The place of arbitration shall be Mumbai. The award of the arbitral tribunal shall be final and binding upon the Parties and no appeal against the same shall lie to any court. Notwithstanding the foregoing, either Party may bring an action before the courts in Bengaluru of appropriate jurisdiction for interim injunctive relief. Merchant agrees and acknowledges that OBOPAY shall not be made party to any dispute with Consumer/card holder/ any other consumer which is in connection with/ over services rendered and/ or goods sold by the Merchant and the Merchant agrees to indemnify OBOPAY from any loss, cost, compensation etc. arising out of the disputes with the Consumer.
- RIGHT TO AMEND
The Parties may amend this Agreement on the mutually agreed terms and conditions in writing.
The Parties agree that this Agreement, and any rights and licenses granted hereunder may be assigned by OBOPAY to any person/ entity with prior written intimation to the Merchant. Merchant cannot assign this Agreement to third parties.
- OTHER PROVISIONS
The Agreement does not limit any rights that OBOPAY may have under trade secret, copyright, patent, or other laws. OBOPAY’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term in this Agreement shall be deemed as a further or continuing waiver of such term or any other term.
- FORCE MAJEURE
Notwithstanding the provisions of this Agreement, Merchant shall not be eligible for liquidated damages, damages or any cost or termination for default against OBOPAY, if and to the extent that the delay in performance or other failure to perform its obligations under the contract is the result of an event of Force Majeure. If a Force Majeure situation arises, OBOPAY shall as soon as reasonably possible notify the Merchant in writing of such conditions and the cause thereof. Unless otherwise directed by the Merchant in writing, OBOPAY shall continue to perform its obligations under the Agreement as far as reasonably practical, and shall seek all reasonable alternative means for performance not prevented by the Force Majeure event. Merchant may terminate this contract, by giving a written notice of minimum 30 days to OBOPAY, if as a result of Force Majeure, OBOPAY being unable to perform a material portion of the Services for a period of more than two months.