By clicking on the "Terms " and successfully completing the registration process for your Account, You are stating that You are Eligible to be a Customer with Us and that You have read, understood and agreed to be bound by all of these Terms and Conditions of Service ("T&Cs"), which are not subject to negotiation.
Please note that these T&Cs will be incorporated into any Physical Contract We may execute with ou in future and will be enforceable against You to the same extent as the terms of the Physical Contract. Therefore, We request You to please read these T&Cs carefully before clicking on the "Terms and Conditions" checkbox.
Please go through these terms carefully. It is important that you spend time reading the terms as they constitute a legal agreement ("Agreement") between / (the "Website" or "Site") and 1.You 2.Your Organization
This document is an electronic record in terms of Information Technology Act, 2000 and generated by a computer system and does not require any physical or digital signatures. This document is published in accordance with the provisions of Rule 3 of the Information Technology (Intermediaries guidelines) Rules, 2011 that provide for the due diligence to be exercised by the Website.
These Terms of Use ("Terms") including our Privacy & Legal Policy define the terms and conditions under which you're allowed to use the Website and how we'll treat your account and while you are a Customer. If you have any questions about our terms, feel free to contact us at sales@enkash.com
YOUR AGREEMENT WITH ENKASH (Nehat Tech Solutions Pvt. Ltd.) 1. We reserve the right to modify the Terms at any time without giving you any prior notice. Your use of the Website following any such modification constitutes your agreement to follow and be bound by the Terms as modified. Any additional terms and conditions, disclaimers, privacy policies and other policies applicable in general and/ or to specific areas of this Website or to particular Service are also considered as Terms.
2. You acknowledge that you will be bound by this Agreement for availing any of the Services offered by us.
3. Your access to use of the Website and the Services will be solely at the discretion of Nehat Tech Solutions Pvt. Ltd./ EnKash.
4. The Agreement is published in compliance of, and is governed by the provisions of Indian law, including but limited to:
1. the Indian Contract Act, 1872,
2. the (Indian) Information Technology Act, 2000, and
3. the rules, regulations, guidelines and clarifications framed thereunder, including the (Indian) Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011, and the (Indian) Information Technology (Intermediaries Guidelines) Rules, 2011.
APPROVAL OF TERMS 1. By using the Website and its Services, You agree that You have read and understood these Terms and You agree to be bound by these Terms and use the Services in compliance with these Terms. Please read these Terms carefully. If You do not agree to be bound by (or cannot comply with) any of the terms below, please leave the Website immediately and terminate your account with us. The information that You obtain or receive from EnKash, its Team, contractors, partners, sponsors, advertisers or otherwise on the Website is for informational and scheduling purposes only.
2. The information provided on the Website is not professional advice and must not be considered as such. Your use of information provided on the Website is solely at Your own risk.
3. You can accept the Terms by:
1. Using the Website; or
2. By actually using the Services. In this case, You understand and agree that EnKash will treat Your use of the Services as acceptance of the Terms from that point onwards.
4. For being a valid User You must satisfy the following conditions:
1. You are of legal age to form a binding contract with EnKash; or
2. You are not a person barred from receiving the Services under the laws of India or other countries including the country in which you are resident or from which you use the services.
5. I give consent to EnKash to collect KYC documents from PSUs and Government agencies on my behalf.
EnKash (Nehat Tech Solutions Pvt. Ltd.) is engaged in the business of facilitating Payments and Financial Supply Chain Management through its platform through usage of letter of credit, bank transfers, credit cards and other negotiable instruments; facilitating acquiring of card users for Banks, NBFC’s and Financial Institutions; of enabling credit evaluation, creating and improving the technological space to facilitate solutions in travel management, payroll management, facility, manpower management services etc. along with internet and digital marketing services for Customers.
EnKash has developed a Software Application and is also hosting EnKash Sites by way of which EnKash provides payment solutions to businesses/organizations and facilitates them in providing online/POS payments using credit/debit cards, net banking, bank transfers and various other acceptable modes of Payment Mechanism options provided by EnKash.
NOW THEREFORE IT IS HEREBY AGREED BETWEEN THE PARTIES HERETO AS FOLLOWS:
DEFINITIONS i. “Acquiring Banks” shall mean various banks, financial institutions, Card Associations, payment system providers who are defined and licensed under the Payment and Settlement Systems Act, 2007 and other software providers who are in the business of providing information technology services, including but not limited to, POS terminals, internet based electronic commerce, internet payment gateway and electronic software distribution services.
ii. “Acquiring Bank Services” shall mean the POS/payment gateway system and services provided by the Acquiring Banks such as to (i) route internet/POS terminal based Valid Card transactions;
(ii) offer various facilities through the internet/POS terminals, including Net Banking facilities;
(iii) provide Authentication and Authorization from Card Associations/Issuing Institutions or other third party clearing houses; and
(iv) provide settlement facilities in respect of payment instructions initiated by the customers.
iii. "Agreement" shall mean this Service Agreement, all schedules, appendices, annexures and exhibits attached to it or incorporated in it by reference.
iv. ‘’AML’’ Anti Money Laundering standards.
v. “Applicable Law” shall mean all laws, ordinances, judgments of any court or government authority, administrative or regulatory including notifications or guidelines issued by Reserve Bank of India.
vi. “Annual Maintenance Charge” shall mean the charges as set out through offline communication between Us & You
vii. "Authentication" shall mean the process by which the Customer’s identification is authenticated by the Acquiring/Issuing Banks.
viii. "Authorization" shall mean the process by which the Issuing Institution and/or banks and/or the relevant Card Association electronically or otherwise convey the approval of the charge (i.e. if the Customer has a Valid Card and/or the required credit limit/ debit limit to pay the Customer Charge requested) on a Transaction being undertaken by a Customer.
ix. “Business Days” shall mean (i) A day other than Saturday or Sunday or (ii) a day other than on which the Banks in India and/or Reserve Bank of India are closed for business / clearing, or (iii) a day other than on which normal business in India could not be transacted due to storms, floods, bandhs, strikes, or (iv) any days other than declared by EnKash and/or Acquiring Bank as a Holidays etc.
x. ‘’CAMEL’’ framework (Capital adequacy, Asset quality, Management, Earnings, Liquidity, Systems and controls)
xi. "Card Association(s)" shall mean any of Visa, MasterCard, Visa Electron, Maestro, Diners, American Express or any other card association as may be specified by EnKash from time to time.
xii. “Card Association Rules” shall mean the written rules, regulations, releases, guidelines, processes, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Card Association.
xiii. Chargeback” shall mean the approved and settled card or net banking Transactions which are raised or disputed by the valid cardholder or valid account holder to the Issuing bank or its bank and at any time reversed or debited (shall also include similar debits to EnKash bank accounts, if any) by the Acquiring and/or Issuing Bank for any reason whatsoever, together with the bank fees, penalties and other charges incidental thereto if any.
xiv. “Confidential Information” shall mean any and all written, oral or other tangible or intangible form of information, discoveries, ideas, concepts, know-how (whether patentable or copyrightable or not), research, development, designs, drawings, blueprints, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, algorithms, software programs, marketing plans or techniques, technical, financial, or business information” trade secrets which includes but is not restricted to any portion or scientific or technical or proprietary information, design, process, procedure, formula or improvement which is not generally available to the public as delivered by either Party (“Disclosing Party” to the other Party (“Receiving Party”) within the framework of this Agreement or resulting therefrom. Provided that confidential information disclosed orally or those produced by electronic media or through any other intangible means shall be deemed confidential if it is identified as being confidential if it is reduced in writing within (30) thirty days of the date of disclosure. Such writing shall specify the date, time, place, persons involved and the substance of the confidential information so disclosed.
xv. "Customer/Corporate/Enterprise" shall mean an individual or legal entity, who/which purchases or sells Products or Services from or to the Vendors/Partners, payment of which gets directed to Payment Mechanism provided by EnKash under EnKash Services.
xvi. “Customer/Corporate/Enterprise Bank Account” shall mean a bank account or credit/debit/ prepaid/ cash card account of the Customer with Issuing Institution.
xvii. “Customer/Corporate/Enterprise Charge/Transaction Amount” shall mean the sale price of the products purchased or sold by the Customer plus the shipping charge (if any) and all other taxes, duties, costs, charges and expenses in respect of the Products/payment that are to be paid by the Customer or Vendors, as the case may be.
xviii. “Customer Data” shall mean data and information that Customer submits to EnKash or to EnKash Site in connection with the Services, including information stored in or processed through the EnKash Site. However, such data or information shall not include the data or information which is/are in public domain;
xix. “Delivery” shall mean (i) in respect of a goods or services, delivery of the goods by a courier /parcel service appointed by the Vendors, to the Customer or goods/services delivered by Customer to its Vendors/Partners within Delivery Due Date at the address specified by the Customer or Vendor, as the case may be, in this behalf; or (ii) in respect of a service, delivery or performance of provisions of service within the Delivery Due Date. xx. “Delivery Due Date” shall mean the date/period displayed on the EnKash Site or otherwise notified to the Customer on or before which the Vendor shall deliver the Products to the Customer(s).
xxi. “Financial Institution” shall mean one or more of ‘EnKash’ approved banks or financial institutions including NBFC.
xxii. "Issuing Institution or Issuing bank" shall mean a bank or financial institution or other legal entity, with which the Customer or Vendor (as the case may be) has a Net Banking account and/or which has issued the Valid Card to the Customers or Vendors.
xxiii. “Customer EnKash Account” shall mean the Customer bank account maintained with EnKash in order to provide the EnKash Services to the Customer.
xxiv. "Vendor Bank Account" shall mean the bank account maintained by Vendor for payment, which Customer nominates for settlement of Vendor Settlement Amount xxv. “Net Banking Account” shall mean the facility and internet account provided by the Issuing Institution to Customers or Vendors holding a bank account with the Issuing Institutions specified by EnKash from time to time. Provided that the bank account is not listed in current warning or restricted bank account bulletins or notices.
xxvi. “Nodal Account” shall mean an inoperative account held by EnKash with any of the banks for the purpose of pooling the monies collected from Customers on behalf of the Vendors and facilitating the transfer of these funds in final settlement to the Vendors (after deducting TDR or as per arrangement between Customer & its Vendor), pursuant to RBI notification DPSS.CO.PD.No.1102/ 02.14.08/2009-10, dated 24/11/2009 or any other RBI notifications amended from time to time.
xxvii. “Nodal Bank” shall mean the bank(s) designated by EnKash for the purpose of pooling the funds collected from Customers on behalf of the Vendor and facilitating the transfer of these funds in final settlement to the Vendor (after deducting TDR or as per arrangement between corporate & their Vendor/Vendors), pursuant to RBI notification DPSS.CO.PD.No.1102/ 02.14.08/2009-10, dated 24/11/2009 or any other RBI notifications/guidelines amended from time to time.
xxviii. “One Click Checkout” shall mean the facility provided to the Customers to save its Valid Card details on the EnKash server and/or EnKash designated industry standard compliant third party for payment with a single click.
xxix. “Outstanding Amount” shall mean the amount payable by the Customer or Vendor to EnKash, Acquiring and/or Issuing Banks towards Chargebacks or any fees, penalty or other payments owed to EnKash by the Customer or Vendor; and any claims, cost or expenses as a result of the proceedings filed against EnKash and/or Acquiring and/or Issuing Banks by the Customers or any third Party.
xxx. “Payment Mechanism” shall mean the mechanism of making payment by utilizing the internet/POS terminal/Batch Auth/Batch Upload/any other form of facilities of various Acquiring and/or Issuing Banks, Card Associations, card payment systems and through such other modes and mechanisms of payment and delivery as may be notified by EnKash from time to time.
xxxi. “EnKash Services” shall have the meaning ascribed to it under “Services” as defined herein
xxxii. “EnKash Services Product” shall mean the EnKash products by means of which EnKash provides EnKash Services.
xxxiii. “EnKash Site” shall mean the websites provided by Nehat Tech Solutions Private Limited (i.e. EnKash.in and/or EnKash.com depending upon the EnKash Services Product) by means of which EnKash provides aggregative Internet Payment Gateway/POS terminal services/other Payment Mechanism/EnKash Services to the Customers and Vendors.
xxxiv.
"Products" shall mean goods and/or services offered for sale by the Customer or Vendor on its site or through other medium.
xxxv. “Proof of Delivery” shall mean sufficient legitimate records evidencing Delivery of the Product to the Customer or Vendor, as the case may be, (i.e. Courier Company’s delivery confirmation and delivery confirmation by the Customer).
xxxvi. "POS Terminal": A point of sale device placed in a Vendor/Corporate location which is connected to acquiring bank system via telephone lines and is designed to authorize, record and settle data by electronic means for all sales transactions with acquiring bank. xxxvii. "RBI" shall mean the Reserve Bank of India.
xxxviii. “Settlement Amount” shall mean final amount to be settled and transferred to the Vendor Bank Account or Customer Bank Account (as the case may be) after due collection of charges/fees payable to EnKash under this agreement.
xxxix. “Services” shall mean EnKash facilitating Payments and Financial Supply Chain Management through an online platform or anything which uses EnKash Services Product
xl. "Vendor/Partner/Vendors/Partners" shall mean the supplier or purchaser of goods or services to or from Customer.
xli. “Territory” shall mean boundaries within India.
xlii. “Transaction” shall mean information related to the payment for purchase or sell of goods and services by Customer.
xliii. “Transaction Discount Rate” or “TDR” shall mean the rates as specified in Schedule C.
xliv. “Work Orders” shall mean a request by Customer to EnKash for access of EnKash Sites and provisioning of Services as per the terms and conditions stated in this agreement. xlv. "Valid Card" shall mean any unexpired credit card or debit card which is issued by an Issuing Institution designated to issue a Visa, MasterCard, American Express, Visa Electron or a Maestro or cash card, pre-paid card or other card as may be specified by EnKash from time to time. Provided that the card is not listed in current warning or restricted card bulletins or notices and bears the signature of the person in whose name the card is issued.
In this Agreement: i. Words denoting the singular number include the plural number and vice versa, words denoting the masculine gender include the feminine gender and words denoting persons include companies.
ii. Headings are inserted for convenience only and shall not affect the construction of this Agreement.
iii. In case of any ambiguity or discrepancy between the Clauses and the Annexures to this Agreement, the Clauses shall prevail.
iv. Any reference to any agreement, deed, instrument, license, code or other document of any description shall be construed, at the particular time, as a reference to that agreement, deed, instrument, license code or other document as the same may then have been amended, varied, supplemented, modified, suspended or novated.
CUSTOMER OBLIGATIONS The Customer agrees that during the term of this Agreement: i. Customer will submit the Customer Information Form (CIF) to EnKash separately.
ii. Customer should submit its KYC as per format provided by EnKash
iii. Customer will provide appropriate infrastructure for access of the EnKash Site provided by EnKash.
iv. Customer will ensure that the EnKash Site is operated by authorized identified competent personnel in accordance with the furnished operating instructions and are used only for the purposes contemplated by this Agreement;
v. Customer will provide the underlying documents to authenticate transactions as per CAMEL and AML
vi. Customer will have to submit and approve invoices raised for the payments and the bank account details of their Vendors is and shall be a sole responsibility of the Customer.
vii. Authentication of the address, KYC and legitimacy of Customer’s Vendors is the Customer responsibility.
viii. A payment due to the Financial Institutions is a sole responsibility and liability of the Customer including any charges in connection with the same.
ix. Customer will be responsible for the AML/ CAMEL policies as adhered by the banks
APPROVAL AND REGISTRATION TO AVAIL EnKash SERIVCES/ACQUIRNG AND/OR ISSUING BANK SERVICES i. The customer shall disclose the exact business category/business sub-category for which the Customer will be using the EnKash Services and shall only avail the EnKash Services through approved mechanism by EnKash. In order to use the EnKash Services for any other purpose, the Customer understands and acknowledges that it shall notify EnKash in writing of such change and such change will be subject to approval by EnKash.
ii. The Customer understands that in order to avail the EnKash Services and Acquiring and/or Issuing Bank Services, the customer must be approved by and registered with EnKash, the Acquiring and/ or Issuing Banks and/or Nodal Bank. Any undertaking with respect to the EnKash Services under this Agreement shall be subject to EnKash’s, the Acquiring and/or Issuing Banks’ and/or Nodal Bank’s approval and completion of the registration process. The Customer shall provide EnKash with all such documents as required by EnKash to register the Customer with EnKash, the Acquiring and/or Issuing Banks and/or Nodal Bank. The Customer further understands and acknowledges that EnKash, the Acquiring and/or Issuing Banks and/or Nodal Bank have the right to withdraw their approval/consent at any time prior to or after commencement of the EnKash Services.
FEES AND PAYMENT TERMS i. In consideration for EnKash Services, the Customer agrees to pay EnKash as per written or verbal communication agreed by EnKash TERMS OF PAYMENT
i. Subject to any other Clause of this Agreement, EnKash shall endeavor to instruct the Nodal Bank to transmit the Settlement Amount from its Nodal Account within the time period prescribed by RBI commencing from date of Completion of Transaction
ii. In the event that the Customer opts for EnKash Services using EnKash Services Product, the Customer understand that the Transaction shall be completed only upon receipt of the Transaction Amount in the Nodal Account from the Acquiring and/or Issuing Banks and reconciliation of the same by the Acquiring and/or Issuing Banks, EnKash and the Nodal Bank (“EnKash Completion of Transaction”)
iii. The Customer further acknowledges that transmission of the Settlement Amount shall be subject to reconciliation of the Customer Charge by the Acquiring and/or Issuing Banks, EnKash and the Nodal Bank after actual receipt of Transaction Amount in the Nodal Account. iv. The Customer hereby agrees that all payments with respect to refunds and Chargebacks shall be the sole responsibility of the Customer and EnKash shall not be liable for any claims, disputes, penalties which may arise in connection with such refunds or Chargebacks. The Customer agrees to indemnify EnKash in respect of any claims, disputes, penalties, costs and expenses arising directly or indirectly in relation to refunds or Chargebacks for all Transactions initiated and instructed through the EnKash Site or through other medium.
v. Notwithstanding anything contained anywhere in this Agreement, the Customer hereby fully confirms and agrees that EnKash, Acquiring and/or Issuing Bank and Nodal Bank reserve the right to reject payments with respect to any Customer Charge for reasons including but not limited to unlawful, unenforceable, doubtful or erroneous Transaction, Chargeback, refund, fraud, suspicious activities, card Authentication and Authorization issues, overpayment made due to mathematical errors or otherwise, penalties incurred, Transaction related issues, issues related to Delivery, Customer Charge or Product, if the Transaction was not made in accordance with the requirements of EnKash and/or the Acquiring and/or Issuing Banks and/or Card Association.
vi. In the event of rejection of payment with respect to Customer Charge, Chargeback, refunds or other Outstanding Amounts due to EnKash, Acquiring and/or Issuing Bank, EnKash and/or the Acquiring and/or Issuing Bank reserve the right to reverse the credit given to the Customer or Vendor or Vendors Bank Account or set-off the payment amount rejected, Chargeback or refunded or the Outstanding Amount against Settlement Amount payable to the Vendor or Vendors or Customer. EnKash and/or Acquiring and/or Issuing Banks may also deduct the payment amount due from future Settlement Amounts payable to the Vendor or Vendors or Customer with respect to subsequent Transactions and/or ask to pay before any future transaction processing.
vii. All Settlement Amount due under this Agreement may be suspended or delayed till such time as EnKash, the Acquiring and/or Issuing Banks and/or nodal bank deems fit, if (a) the Customer or a third party commits any fraud or violates any law or legal requirement; (b) EnKash and/or the Acquiring and/or Issuing Banks have reasons to believe that a fraud has been committed by the Customers, (c) the Customer has excessive pending Chargebacks or poses high Chargeback and/or refund Risk; or (d) for any other reasonable reasons.
viii. The Customer hereby agrees and undertakes that EnKash reserves the right to reject or de-board any Vendor found violating Acquiring/Issuing bank norms & guidelines and/or for OFAC/Sanctions/AML purposes.
AUTHORIZATION AND AUTHENTICATION OF TRANSACTION i. The Acquiring and/or Issuing Bank will authenticate, authorize, and process the payment instructions given by the Customer or Vendors on the EnKash site or Customer Systems in respect of the Transactions upon fulfillment of valid criteria as set forth by the Acquiring and/or Issuing Banks and the Card Associations from time to time and accordingly transfer such approved Customer Charge to the Nodal Account.
ii. The Customer understands that EnKash, Acquiring and/or Issuing Banks and/or Card Association may reject authorization of Transaction placed by the Customer for any reason including but not limited to risk management, suspicion of fraudulent, illegal or doubtful Transactions, selling of banned items, use of compromised Valid Cards, use of blacklisted/banned cards or in accordance with the RBI, Acquiring Banks, Issuing Institution and/or Card Association rules, guidelines, regulations, etc and any other laws, rules, regulations, guidelines in force in India, etc.
iii. The Customer acknowledges that as a risk management tool, EnKash and/or the Acquiring and/or Issuing Banks reserve the right to limit or restrict transaction size, amount and/or monthly volume at any time. For the purpose of clarity such limitations or restrictions may be imposed for the following reasons including but not limited to limits/restrictions on the number of purchases which may be charged on an individual Valid Card or net banking account during any time period, unusual monetary value of Transaction, etc. Further, as a security measure, EnKash may at its sole discretion block any card number, account numbers, group of cards or Transactions from any specific blocked or blacklisted Customer cards, accounts, specific, group of IP addresses, devices, geographic locations and / or any such risk mitigation measures it wishes to undertake.
TRADE MARK, LICENSE AND USE THEREOF Trade Mark and Use thereof: “EnKash” is an exclusive trademark of EnKash and use of the same would require prior written permission of EnKash. The software and system developed by EnKash solely belong to EnKash and entering into this agreement does not purport to be a license from EnKash to Customer about the trademark or system of EnKash in any manner whatsoever.
RIGHT/TITLE/INTEREST & OWNERSHIP i. EnKash hereby reserves and shall retains all of its right, title, and interest in and to the services connected to the EnKash Site, and all its copyrights, patents, trademarks, service marks, design rights (whether registered or unregistered), trade secrets, know-how, expertise, and all other similar proprietary rights associated therewith (“Intellectual Property Rights”) and/or which are developed in connection with this Agreement, or already developed. EnKash does not convey any proprietary rights or other interest therein to Customer by virtue of this agreement.
ii. Customer is granted only a non-exclusive, revocable and a limited access to use EnKash Site as per the term of this Agreement. Customer must not reproduce, communicate, modify or reverse engineer the EnKash Site, Customer must not copy or allow any third party an access to the EnKash Site without prior written consent from EnKash.
iii. It is clearly and well understood by and between the parties to this agreement that EnKash is in no way transferring or assigning its proprietary rights on EnKash Site or any of its other products and services to the Customer or any other party. These shall remain the exclusive property of the EnKash.
iv. Upon termination of this Agreement for whatsoever reasons as provided in this Agreement, the Customer will deliver and return to EnKash all documents, samples, and other materials which may have been provided by EnKash in connection with the EnKash Site or the Services.
PRIVACY In addition to the terms and conditions regarding privacy above & specified elsewhere, Customer acknowledges and agrees that in the course of providing the Services, EnKash will capture certain transaction specific and user specific information (collectively, the “Customer Data’”). Customer agrees to provide to EnKash, and EnKash shall capture, the Customer Data that is required by the EnKash Site and is necessary for EnKash to provide the Services herein and in future. EnKash shall not disclose Customer Data to third parties without prior permission from the Customer, except that EnKash shall have the rights:
i. to use the Data as necessary to perform the Services contemplated in this Agreement
(including distributing the Data to third parties providing services to EnKash); ii. to maintain the Data as long as necessary or as required by law;
iii. to provide the Data as required by law or court order, and
iv. to use the data for carrying out analysis that will help improve the Services and bring more Services in future.
CONFIDENTIALITY i. The Parties will, at all times, maintain confidentiality regarding the contents of this Agreement and any business, technical or financial information that is, at the time of disclosure, designated in writing as confidential, or would be understood by Parties, exercising reasonable business judgment, to be confidential. The parties agree to protect the proprietary information of the other with the same standard of care and procedures used by themselves to protect their own proprietary information of similar importance but at all times using at least a reasonable degree of care.
ii. The receiving Party shall not be liable for disclosure or use of any confidential information if the same:
a. Was at the time received or which thereafter becomes, through no act or failure on the part of such party, generally known or available to the public;
b. Is known to such party at the time of receiving such information as evidenced by documentation then rightfully in the possession of either party and to which no confidentiality exists;
c. Is furnished to others by the other party without restriction of disclosure;
d. Is thereafter rightfully furnished to such party by a third party without restriction by that third party on disclosure; or has been disclosed pursuant to the requirements of law or court order without restrictions or other protection against public disclosure; provided, however, that the other party shall have been given a reasonable opportunity to resist disclosure and/or to obtain a suitable protective order.
LIMITATION OF LIABILITY i. In no event will EnKash be liable for any loss of profits, revenues, business opportunities, exemplary, punitive, special, incidental, and indirect or consequential damages.
a. EnKash will not be liable for any loss, expenses or damage whatsoever caused by:
b. Failure for whatever reason of a card or any Equipment or the system to function properly or at all; or
c. Unauthorized acquisition of information by any person through Customer or other interception of communication on the system.
d. EnKash will not entertain any requests of Chargeback from the Customer or Issuing Institution
e. Any trade related dispute between Customer or Customer’s Vendors will be settled outside the purview of the agreement
f. EnKash is only providing a platform for payment facilitation.
REPRESENTATION AND WARRANTIES Both Parties represents and warrants that: i. They have all requisite power and authority to execute this Agreement and deliver and perform their respective obligations under this Agreement and has been fully authorized by all requisite corporate actions to do so;
ii. They hold and shall continue to hold all necessary statutory and regulatory permissions, approvals and permits for the running and operation of its establishment for the conduct of its business, and for compliance with this Agreement;
iii. They shall comply at all times, with all laws, industry codes, applicable standards or other regulations or directions issued under the Applicable Law;
iv. The Customer represents and warrants to EnKash that they are not in violation of any OFAC/Sanctions/AML regulations that may be applicable.
DISCLAIMER i. It is clearly understood and agreed that the Services herein shall conform in all material respects to, and to the extent of, the applicable documentation provided by the Customer to EnKash.
ii. EnKash will make all reasonable efforts to provide uninterrupted service subject to down time and regular maintenance. However, notwithstanding anything in this Agreement, the Customer acknowledges that EnKash Site, EnKash Services and the Acquiring and/or Issuing Bank’s Services may not be uninterrupted or error free or free from any virus or other malicious, destructive or corrupting code, program or macro and EnKash and the Acquiring and/or Issuing Banks disclaim all warranties, express or implied, written or oral, including but not limited to warranties of merchantability and fitness of the services for a particular purpose. The Customer also acknowledges that the arrangement between one or more Acquiring and/or Issuing Banks and EnKash may terminate at any time and services of such Acquiring and/or Issuing Banks may be withdrawn. Although EnKash adopts security measures it considers appropriate for the offer of the EnKash Service, it does not assure or guarantee that no person will overcome or subvert the security measures and gain unauthorized access to the EnKash Service or the Customer data. EnKash shall not be responsible or liable if any unauthorized person hacks into or gains access to the EnKash Service or to the Customer’s EnKash Account. In event of incorrect settlement in the Customer’s Account due to error on the part of EnKash or the Bank, EnKash shall have the right to reverse the extra funds from the Customer/Vendor Bank Account. In addition, the Customer and/or its Vendor/Vendors shall be fully liable to return the extra funds settled within 7 (seven) days of intimation by EnKash. Subject to the other clauses of this Agreement, in the event that the Settlement Amounts to be transferred have not been transferred, EnKash shall endeavor to settle the relevant Settlement Amount within 7 (seven) days of notification from the Customer. In addition EnKash shall not be liable to the Customer for any loss or damage whatsoever or howsoever caused or arising, directly or indirectly, including without limitation, as a result of loss of data; interruption or stoppage to the Customer’s access to and/or use of the Systems, EnKash Services and/or the Payment Mechanism, interruption or stoppage of EnKash Site, hacking or unauthorized access to the EnKash Services, Software Application and Internet Payment Gateway, non-availability of connectivity between the Customer Systems and EnKash Site, etc. Any material/information downloaded or otherwise obtained through the use of the EnKash Services is done at the Customer’s and its Vendors’ own discretion and risk and the Customer and its Vendors’ will be solely responsible for any damage to its computer system or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by the Customer from EnKash or through or from the use of EnKash Services shall create any warranty. EnKash shall have no liability in this respect.
iii. EnKash's sole obligation and the Customer’s sole and exclusive remedy in the event of interruption in EnKash Site, or loss of use and/or access to EnKash Site, if any, will be to use all reasonable endeavors to repair and restore the Services and/or access to the Payment Mechanism as soon as reasonably possible.
iv. EXCEPT AS EXPRESSLY SET FORTH ABOVE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EnKash MAKES NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES OR SOFTWARE, AND ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF CUSTOMER’S ABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED BY EnKash.
INDEMNIFICATION The Customer hereby agrees to indemnify and hold EnKash (Nehat Tech Solutions Pvt. Ltd.), its directors, officers, employees and agents harmless at all times from any loss, claim, prejudice, damage, costs, taxes, duties, penalties, interest thereon or expenses of any kind (including but not limited to liabilities, judgments, attorney’s fees) or any other liabilities including third party liabilities that may occur, arising from or relating to;
i) any breach of the representations and warranties made by the Customer including but not limited to the obligations of EnKash under this Agreement pertaining to data protection, confidentiality and intellectual property rights of EnKash, or any guidelines issued by EnKash and Issuing or Acquiring Banks,
ii) Non-performance, inadequate performance, provision of deficient Services, breach by Customer, its Personnel of any of the terms, conditions, covenants, representations, undertakings, obligations or warranties under this Agreement,
iii) any contravention and/or non-compliance on the part of the Customer with any laws, ordinance, regulations and codes as may be applicable from time to time including in the jurisdiction of its operation relating to the Customer and EnKash, Issuing Bank, Acquiring Bank or any industry practice, or violation of any policies of EnKash, Issuing Bank, Acquiring Bank, or on account of non-compliance with the terms of this Agreement and/or any general or specific directions by or on behalf of EnKash as given from time to time,
iv) loss / damage etc on account of any delay in submission or non-submission or submission of incorrect information and / or documents.
v) any losses and expenses and/or outgoings whatsoever that may be or are incurred or suffered by EnKash on account of any assets, being lost in transit, misplaced, damaged, stolen or destroyed, misused or for any other reason whatsoever and/or on account of any acts of the Customer and/or of any Personnel engaged by the Customer.
vi) any act, commission or omission attributable to the improper handling of the EnKash’s property or loss, misappropriations, misuse or damage to the documents or instruments / things of EnKash or to the Acts, omissions, errors, representations, misrepresentations, misconduct, negligence of the Customer or by any Personnel of the Customer, which has resulted whether on account of breach of any of the conditions of this Agreement by the Customer and/or its Personnel engaged by the Customer or within the control of the Customer or otherwise,
vii) any act of negligence, misfeasance or fraud, or violation any proprietary and intellectual property rights of EnKash or any third party, including without limitation, confidential relationships, patent, trade secrets, copyright, rights and any other proprietary rights.
and shall forthwith and without demur reimburse, pay and fully compensate EnKash as sought by EnKash on first demand for all outgoings of whatever nature and on whatsoever account, as also for all costs and expenses (including professional and legal fees and costs) which are incurred by EnKash in connection with investigating, preparing to defend and defending any Claim or initiating and conducting legal proceedings, whether or not in connection with pending or threatened actions, proceedings, litigation, etc., in which EnKash is made a party.
GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION i. The provisions of this Agreement shall be governed by, and construed in accordance with Indian law.
ii. Any dispute, controversy or claims arising out of or relating to this Agreement or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the provisions of the Indian Arbitration and Conciliation Act, 1996. The arbitral tribunal shall be composed of a Sole Arbitrator to be mutually appointed by the Parties.
iii. The place of arbitration shall be Mumbai and any award whether interim or final, shall be made, and shall be deemed for all purposes between the parties to be made, in Mumbai. iv. The arbitral procedure shall be conducted in the English language and any award or awards shall be rendered in English. The procedural law of the arbitration shall be Indian law.
v. The award of the arbitrator shall be final and conclusive and binding upon the Parties. The Parties further agree (to the maximum extent possible and allowed to them) that such enforcement shall be subject to the provisions of the Indian Arbitration and Conciliation Act, 1996 and courts of Mumbai and neither Party shall seek to resist the enforcement of any award on the basis that award is not subject to such provisions.
ASSIGNMENT Neither Party shall assign or transfer all or any part of its rights under this Agreement to a third party without the consent of the other Party. In the event there is any change in the constitution, structure, management or ownership of EnKash, this Agreement along with all the rights and obligations shall automatically get transferred, assigned and / or novated in favour of such new, transferee or restructured entity, as the case may be, upon written intimation of the same to the Customer.
SEVERABILITY The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of this Agreement, including any such provision, in any other jurisdiction, it being intended that all rights and obligations of the Parties hereunder shall be enforceable to the fullest extent permitted by law.’
INDEPENDENT CONTRACTOR RELATIONSHIP EnKash’s relation to Customer under this Agreement is that of an independent contractor and both the Parties have entered into this Agreement on principal-to-principal basis. Nothing in this Agreement is intended or shall be construed to create a partnership, joint venture, or employer-employee or principal-agent relationship between Customer and EnKash or between Customer and any of EnKash’s employees.
NOTICES The Customer must deliver all notices, consents, and approvals required or permitted under this Agreement in writing to EnKash at below addresses: Email Id: sales@enkash.com
FORCE MAJEURE EnKash shall not be liable for its failure to perform under this Agreement as a result of any event of force majeure events like acts of god, fire, wars, sabotage, civil unrest, labour unrest, action of Statutory Authorities or local or Central Governments, change in Laws, Rules and Regulations, affecting the performance of EnKash or the Acquiring Banks or the Issuing Banks.
ENTIRE AGREEMENT; AMENDMENTS This Agreement is the final, complete, and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the Parties that contradict any part of this agreement. No modification of or amendment to this Agreement will be effective unless in writing and signed by the Party to be charged.
SURVIVAL OF PROVISIONS The terms and provisions of this Agreement that by their nature and content are intended to survive the performance hereof by any or all Parties hereto shall so survive the completion and termination of this Agreement. Below is Banned list of Products for all EnKash’s Customers for which EnKash Services cannot be availed and forms part of this Agreement:- 1. Securities including shares, bonds, debentures, share tips etc. and/or any other financial instruments/assets of any description.
2. Living, dead creatures and/or the whole or any part of any animal which has been kept or preserved by any means Endangered species, which includes plants, animals or other organisms (including product derivatives) in danger of extinction. E.g. Elephant Tusks, Rhino Horns, etc.
3. Weapons which includes firearms, ammunition, knives, brass knuckles, gun parts, and other armaments.
4. Tobacco and cigarettes which includes cigarettes, cigars, chewing tobacco, and related products.
5. Alcohol which includes alcohol or alcoholic beverages such as beer, liquor, wine, or champagne.
6. Drugs and drug paraphernalia which include illegal drugs and drug accessories, including herbal drugs like salvia and magic mushrooms. Psychotropic (mood altering) substances, narcotics, intoxicants of any description, medicines, palliative/curative substances. Prescription drugs or herbal drugs or any kind of online pharmacies which includes drugs or other products requiring a prescription by a licensed medical Practitioner. Herbal and Ayurvedic products.
7. Religious items, including books, artifacts, etc. of any description or any other such item which is likely to affect the religious sentiments of any person.
8. "Antiquities" and "Art Treasures".
9. Adult goods and services 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.
10. Body parts which includes organs or other body parts.
11. Child pornography which includes pornographic materials involving minors
12. Copyrighted media which includes unauthorized copies of books, music, movies, and other licensed or protected materials. Digital download/PDF (eBook, software) e.g.: Music/Movies: content downloaded from the internet and burned on CDs and sold as genuine.
13. Copyrighted software which includes unauthorized copies of software, video games and other licensed or protected materials, including OEM or bundled Software. E.g.: Downloaded software copied/ burned on a marketable CD and sold as authentic/ trial versions of software downloaded and sold as genuine. Bundled software is software distributed with another product such as a piece of computer hardware or other electronic devices or a group of software packages which are sold together and are released/ authorized by Manufacturers Only.
14. 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.
15. Endangered species which includes plants, animals or other organisms (including derivatives) in danger of extinction.
16. Gaming/gambling which includes lottery tickets, contests, sports bets, memberships/ enrollment in online gambling sites, and related content.
17. Hacking and cracking materials which includes manuals, how-to-do guides, information, or equipment enabling illegal access to software, servers, websites, or other protected property.
18. Illegal goods which includes materials, products, or information promoting illegal goods or enabling illegal acts.
19. Offensive goods which includes literature, products or other materials that:
a. Defame or slander any person or groups of people based on race, ethnicity, national origin, religion, sex, or other factors.
b. Encourage or incite violent acts.
c. Promote intolerance or hatred.
d. Offensive goods, crime which includes crime scene photos or items, such as personal belongings, associated with criminals.
20. Pyrotechnic devices, combustibles, corrosives and hazardous materials which includes explosives, fireworks and related goods; toxic, flammable, and radioactive materials and substances.
21. 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.
22. Wholesale currency which includes discounted currencies or currency exchanges.
23. Any product or service which is not in compliance with all applicable laws and regulations of India or international, whether federal, state, local.
24. Businesses or websites that operate within the scope of laws which are not absolutely clear or are ambiguous in nature (e.g. Web-based telephony, Websites supplying medicines or controlled substances, websites that promise online match-making).
25. Businesses banned/kept strict vigil on, by law (e.g. Betting & Gambling/lotteries/sweepstakes & games of chance).
26. SIM cards.
27. Selling of medical packages.
28. Unauthorized Wallet services.
29. Sites booking online appointments, websites selling VIA Call Centers.
30. Technical Support Eg: Web Hosting, SEO, Web designing, and allied services.
31. Pyramid/Referral Schemes Eg: A pyramid scheme/ referral scheme is an unsustainable business model that involves promising participants payment or services, primarily for enrolling other people into the scheme, rather than supplying any real investment or sale of products or services to the public.
32. Marketing – Bulk Emails, Bulk SMS’s. Eg: mails/messages sent via mail servers and/or Bulk SMS service providers.
33. Spy Camera’s and Likewise.
34. Protein Supplements, Height increaser, Weight Loss/Gain, Impotency, Hair Loss/Hair Fall , Memory Enhancement, etc.
35. Counseling and consulting services/market research - Online Consulting – Of any Kind.
36. Recruitment classifieds/job portals. work-at-home jobs/information. 37. Rental services for goods.
38. Government IDs or documents which includes fake IDs, passports, diplomas, and noble titles. 39. Drop-shipped merchandise. Eg: Drop shipping is a supply chain management technique in which the retailer does not keep goods in stock, but instead transfers customer orders and shipment details to either the manufacturer or a wholesaler, who then ships the goods directly to the customer.
40. Portfolio design. Eg: Financial services like Mutual Funds, Stocks, IPOs, etc.
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