- 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. “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.
- iv. “Annual Maintenance Charge” shall mean the charges set out in Consideration clause.
- v. "Authentication" shall mean the process by which the Customer’s identification is authenticated by the Acquiring/Issuing Banks.
- vi. “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.
- vii. “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.
- viii. ‘’CAMEL’’ framework (Capital adequacy, Asset quality, Management, Earnings, Liquidity, Systems and controls)
- ix. "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.
- x. “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.
- xi. “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.
- xii. “Commercial Payment Schedule” shall mean a separate payment schedule agreed between the Customer and Enkash setting out the Transaction Discount Rate, the set-up fee, Annual Maintenance Charges, security deposit and any other charges payable by the Customer for the Enkash Services.
- xiii. “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 EnKash (“Disclosing Party” to the other Party (“Receiving Party”) within the framework of these Terms and Conditions 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.
- xiv. Customer Charges shall have the meaning set out under Paragraph 6 (iii).
- xv. "Customer/Corporate/Enterprise" shall mean an individual or legal entity, who/which purchases/utilize 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) or in case of utility the actual Bill amount presented by Utility biller for services utilized by the customer/corporate/enterprise 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. “Financial Institution” shall mean one or more of ‘EnKash’ approved banks or financial institutions including NBFC.
- xx. "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.
- xxi. “Customer EnKash Account” shall mean the Customer bank account maintained with EnKash in order to provide the EnKash Services to the Customer.
- xxii. "Vendor Bank Account" shall mean the bank account maintained by Vendor for payment, which Customer nominates for settlement of Vendor Settlement Amount and the details of which are provided in Vendor Information Form (VIF) to EnKash.
- xxiii. “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.
- xxiv. “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.
- xxv. “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.
- xxvi. “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.
- xxvii. “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.
- xxviii. “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.
- xxix. “EnKash Services” shall have the meaning ascribed to it under “Services” as defined herein and more particularly described in the Scope of Work hereto provided through EnKash Services Products.
- xxx. “EnKash Services Product” shall mean the EnKash products by means of which EnKash provides EnKash Services. The Customer will be provided with the EnKash Services Product in the manner described in the Terms and Conditions.
- xxxi. “EnKash Site” shall mean the websites provided by EnKash (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.
- xxxii. "Products" shall mean goods and/or services offered for sale by the Customer or Vendor on its site or through other medium.
- xxxiii. "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.
- xxxiv. "RBI" shall mean the Reserve Bank of India.
- xxxv. “Settlement Amount” shall mean final amount to be settled and transferred to the Vendor Bank Account or Customer/Service provider Bank Account (as the case may be) after due collection of charges/fees payable to EnKash under these Terms and Conditions.
- xxxvi. “Services” shall mean EnKash facilitating Payments and Financial Supply Chain Management through an online platform or anything which uses EnKash Services Product
- xxxvii. "Vendor/Partner/Vendors/Partners" shall mean the supplier or purchaser of goods or services to or from Customer.
- xxxviii. “Territory” shall mean boundaries within India.
- xxxix. “Transaction” shall mean information related to the payment for purchase or sell of goods and services by Customer.
- xl. “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 these Terms and Conditions.
- xli. "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.
- EnKash has developed a software application (“Software Application”) and established EnKash Sites. It will act as an intermediary by creating a platform between the Customer, Vendors Utility Solution providers and the respective Acquiring and/or issuing Banks by means of the Software Application and EnKash Site, for enabling the Customers or Vendors to make payment of Transaction Amount on EnKash Site for Transactions carried through the Payment Mechanisms using Acquiring and/or Issuing Bank’s Services. In order to serve in this role, EnKash has entered into agreements with various Acquiring and/or Issuing Banks to enable use of POS terminals/internet payment gateways/Payment Mechanisms developed by them and/or developed between EnKash & various Acquiring/Issuing banks and process payments using Acquiring and/or issuing Bank Services. Once the payment instruction is Authenticated and Authorized by the respective Acquiring and/or issuing Bank in respect of a Transaction, the Acquiring and/or issuing Bank will transfer such approved Transaction Amount to the Nodal Account. The Customer hereby directs and authorizes EnKash to receive, hold, disburse and settle the Transaction Amount in accordance with and subject to the Terms and Conditions. EnKash shall provide the initial set-up and integration and deployment of ‘EnKash’ systems and solutions at the Customer’s site, including training to Customer personnel. (“Enkash Services”).
- The Customer agrees that:
- i. Customer shall provide all the information and details required by EnKash and fill all forms as may be specified by EnKash including without limitation, Vendor Information Form, Customer Information Form, Authority Letter Admin information. List of forms, information and documents required by EnKash is as provided under. Customer acknowledges and agrees that one or more forms or letter may be required by the Company in physical signed copies.
- ii. Customer shall also provide such declarations as specified by Enkash and required by the Acquiring Bank in the form and manner as may be specified by EnKash.
- iii. Customer shall be responsible for accuracy of information provided by the Customer under the forms specified above.
- iv. Customer will provide appropriate infrastructure for access of the EnKash Site provided by EnKash.
- v. 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 under the Terms and Conditions;
- vi. Authentication of any information and legitimacy of Customer’s Vendors is the Customer responsibility.
- vii. A payment due to the Financial Institutions is a sole responsibility and liability of the Customer including any charges in connection with the same. EnKash will act purely on the instructions of the Customer as per the information provided by the Customer.
- viii. Customer will be responsible to identify and clearly articulate the Vendors/ Utility service provider who need to be paid.
- ix. Customer is responsible and accountable for all the information and due diligence of its Vendors/ Utility Service Provider.
- x. Authorized user referred as “Admin” is empowered to nominate and authorize other users of the EnKash Site. Admin to identify the user rights and will receive both “maker and checker” rights
- xi. Responsibility of the Admin to intimate in writing or through mail (registered email id) in the event of changes in the profiles of maker or checker.
4. “ENKASH” OBLIGATIONS
- EnKash” will (i) provide to Customer the Services requested and used by Customer, including without limitation the transmission of Transaction information to “Financial Institutions” (ii) provide Customer with access to standardized reports regarding Customer’s Transactions processed using the Services. Customer is aware that the payment solution extended to the Customer by EnKash is in association with the Financial/Issuing Institution and in case of (i) any issues with respect to default committed by the Customer (ii) any event of fraud in connection with payment of outstanding through the EnKash processing Services, EnKash shall not be responsible for the same and that the matter shall be independently settled between the Customer and the Financial/Issuing Institution. EnKash shall ensure timely and seamless payment to the Vendors/Utility partners of the Customer and collections from the Vendors/ Buyers in accordance with the payment instructions provided by the Customer.
5. APPROVAL AND REGISTRATION TO AVAIL EnKash SERVICES/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 shall notify EnKash in writing of such change and such change will be subject to approval by EnKash. The Customer understands that in order to avail 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 these Terms and Conditions 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 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.
6. FEES AND PAYMENT TERMS
7. 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 accepting these Terms and Conditions do not purport to be a license from EnKash to Customer about the trademark or system of EnKash in any manner whatsoever.
8. RIGHT/TITLE/INTEREST & OWNERSHIP
- EnKash reserves and 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 (“Property Rights”) and/or which are developed in connection with the Enkash Services and Enkash Site, or already developed. EnKash does not convey any proprietary rights or other interest therein to Customer. Customer has a non-exclusive, revocable and a limited access to use EnKash Site but cannot 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. Customer understands 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 as they shall remain the exclusive property of the EnKash. Upon termination of Customer’s engagement with Enkash for whatsoever reasons, 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.
- 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. 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 herein (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
10. LIMITATION OF LIABILITY
- Notwithstanding anything stated herein, the aggregate liability of EnKash to the Customer from any cause whatsoever shall not in any event exceed the sum equivalent to the preceding one month’s aggregate TDR margin earned by EnKash from the date of occurrence of such liability. Provided that EnKash shall not be liable to the Customer for any special, incidental, indirect or consequential damages, damages from loss of profits or business opportunities even if the Customer shall have been advised in advance of the possibility of such loss, cost or damages. In no event shall the Nodal Bank or the Acquiring and/or Issuing Bank be liable to the Customer in any way. In no event will EnKash be liable for any loss of profits, revenues, business opportunities, exemplary, punitive, special, incidental, and indirect or consequential damages. EnKash will not be liable for any loss, expenses or damage whatsoever caused by:
- a. Failure for whatever reason of a card or any Equipment or the system to function properly or at all; or
- b. Unauthorized acquisition of information by any person through Customer or other interception of communication on the system.
- c. EnKash will not entertain any requests of Chargeback from the Customer or Issuing Institution,
- d. Any trade related dispute between Customer or Customer’s Vendors or Customers service provider will be settled outside the purview of these terms.
- e. EnKash is only providing a platform for payment facilitation.
- However, notwithstanding anything herein, 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 terms, in the event that the Settlement Amounts to be transferred to the Vendor have not been transferred, EnKash shall endeavor to settle the relevant Settlement Amount to the Vendor’s account within 7 (seven) days of notification from the Customer. In addition,n 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.
- i. 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.
- ii. 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.
- i. Customer shall indemnify and keep indemnified the Company, and its directors, affiliates, employees, and agents against any loss or costs, charges and expenses required to be incurred or suffered by the Company (including attorneys’ and expert witnesses’ costs and fees) arising out of any obligation of the Customer due to any act or omission or breach which is attributable to Customer.
- ii. The Customer hereby undertakes and agrees to indemnify, defend and hold harmless EnKash for violations of Anti Money Laundering regulations.
- iii. The Customer hereby undertakes and agrees to indemnify, defend and hold harmless EnKash and/or the Acquiring and/or Issuing Banks including their officers, directors and agents from and against all actions, proceedings, claims (including third party claims), liabilities (including statutory liability), penalties, demands and costs (including without limitation, legal costs), awards, damages, losses and/or expenses however arising directly or indirectly, including but not limited to, as a result of:
- a. breach or non-performance by the Customer of any of its undertakings, warranties, covenants, declarations or obligations under these Terms and Conditions;
- b. breach of confidentiality and intellectual property rights obligations by the Customer;
- c. any act, deed, negligence, omission, misrepresentation, default, misconduct, non-performance or fraud by the Customer, its employees, contractors, agents;
- d. any hacking or lapse in security of the Customer Systems or the Customer data;
- e. Chargebacks or refunds relating to the Transactions contemplated under these Terms and Conditions;
- f. breach of law, rules regulations, legal requirements (including RBI regulations, Card Association Rules, Acquiring and/or Issuing Bank rules) in force in India and/or in any place from where the Customers is making the Transaction and/or where the Product is or to be Delivered and/or where the respective Issuing Institution is incorporated/registered/established; or
- g. any fines, penalties or interest imposed directly or indirectly on EnKash on account of Customer’s or Transactions conducted through Customer under these Terms and Conditions.
13. CONFIDENTIAL INFORMATION
- i. The Customer will, at all times, maintain confidentiality regarding any business, technical or financial information that is, at the time of disclosure, designated in writing as confidential, exercising reasonable business judgment, to be confidential. The Customer agrees to protect the proprietary information 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 Customer 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 the Customer, generally known or available to the public;
- b. Is known to the Customer at the time of receiving such information as evidenced by documentation then rightfully in the possession of the Customer and to which no confidentiality exists;
- c. Is furnished to others by the Customer without restriction of disclosure;
- d. Is thereafter rightfully furnished to the Customer 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 EnKash shall have been given a reasonable opportunity to resist disclosure and/or to obtain a suitable protective order.
14. GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION
- The provisions of these Terms and Conditions shall be governed by and construed in accordance with Indian law.
- Any dispute, controversy or claims arising out of or relating to these Terms and Conditions or the breach, termination or invalidity thereof, shall be settled by arbitration at Mumbai, 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 appointed by Enkash.