- "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.
- "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.
- "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.
- "Authentication" shall mean the process by which the Customer's identification is authenticated by the Acquiring/Issuing Banks.
- "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.
- "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/Issuing Bank as a Holidays etc.
- "Card Association(s)" shall mean any of Visa, MasterCard, Visa Electron, Maestro, Rupay, Diners, American Express or any other card association as may be specified by EnKash from time to time.
- "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.
- "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’s 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.
- "Commercial Payment Schedule" shall mean a separate payment schedule agreed between the Customer and EnKash setting out the Service Fee (defined below), the set-up fee, annual maintenance charges, security deposit and any other charges payable by the Customer for the EnKash Services.
- "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. Confidential Information shall also include the details of Customers, available on the EnKash Platform.
- “Customer Charges” shall have the meaning set out under Paragraph 6 (iii).
- "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/EnKash, payment of which gets directed to Payment Mechanism provided by EnKash under EnKash Services.
- "Customer/Corporate/Enterprise Bank Account" shall mean a bank account or credit/debit/ prepaid/ cash card account of the Customer with Issuing Institution.
- "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.
- "Customer Data" shall mean data and information that Customer submits to EnKash or to EnKash Sites or on the Platform in connection with the Services, including information stored in or processed through the EnKash Platform. However, such data or information shall not include the data or information which is/are in public domain;
- "Financial Institution" shall mean one or more of 'EnKash' approved banks or financial institutions including NBFC.
- "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.
- "Customer EnKash Account" shall mean the Customer account maintained with EnKash in order to provide the EnKash Services to the Customer.
- "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 to EnKash.
- "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.
- "Nodal Account" shall mean an non-operative account held by EnKash with any of the banks for the purpose of pooling the monies collected from Customers on behalf of the Vendors/ Partners/ Customer and facilitating the transfer of these funds in final settlement to the Vendors/ Partners/ Customer (after deducting Service Fee 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.
- "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/ Partners/ Customer and facilitating the transfer of these funds in final settlement to the Vendor/ Partners/ Customer (after deducting Service Fee or as per arrangement with Corporate , pursuant to RBI notification DPSS.CO.PD.No.1102/02.14.08/2009-10, dated 24/11/2009 or any other RBI notifications or guidelines amended from time to time.
- "One Click Checkout" shall mean the facility provided to the Customers to use its Valid Card details with EnKash designated industry standard compliant third party for payment with a single click.
- "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.
- "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.
- "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.
- "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.
- "EnKash Sites" shall mean the websites provided by EnKash by means of which EnKash provides EnKash Services to the Customers and Vendors.
- "Products" shall mean goods and/or services offered for sale by the Customer or Vendor or EnKash on its Sites or through other mediums.
- "POS Terminal" shall mean a point of sale device placed in a Vendor/Corporate location which is connected to the acquiring bank system via telephone lines and is designed to authorize, record and settle data by electronic means for all sales transactions with acquiring banks.
- "RBI" shall mean the Reserve Bank of India.
- "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.
- "Services" shall mean EnKash facilitating Payments and payments related products & other related products or services to customers and businesses through its platform or with use of its platform or services and also Financial Supply Chain Management through an online platform or anything which uses EnKash Services Product.
- "Vendor/Partner/Vendors/Partners" shall mean the supplier or purchaser of goods or services to or from Customer.
- "Territory" shall mean boundaries within India.
- "Transaction" shall mean the payment for purchase or sell of goods and services by Customer or EnKash, where the delivery of the goods or services associated with such transactions is immediate or simultaneous to the payment or where the payment is being made after the goods or services have been delivered and consumed. ‘Transactions’ shall not include any transaction where the payment is made in advance while the goods/services are delivered/performed in a deferred manner.
- "Work Orders" shall mean a request by Customer to EnKash for access of EnKash Platform and provisioning of Services as per the terms and conditions stated in these Terms and Conditions.
- "Valid Card" shall mean any unexpired credit card, prepaid or debit card which is issued by an Issuing Institution designated to issue a Visa, MasterCard, RuPay, 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 facilitates EnKash Services between the Customer and Vendors/ Partners/ Utility Solution providers through the EnKash Platform. It also enables the Customers or Vendors to make payment of Transaction Amount through EnKash Platform for Transactions carried through the Payment Mechanisms using Acquiring and/or Issuing Bank's 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' Platform at the Customer's sites, including training to Customer personnel.
- EnKash facilitates the issuance of corporate credit cards and prepaid cards to its corporate Customers where such cards are issued by its partner banks (“Partner Banks”). In its arrangement with the Partner Banks, the Partner Banks issue co-branded cards and EnKash undertakes marketing, promotion and distribution services in relation to these cards, for the purpose of facilitating the issuance of the credit cards and prepaid cards. Notwithstanding anything stated herein, it is hereby clarified that EnKash shall not undertake any KYC verification process or decision in relation to the approval or disapproval of the issuance of the cards to the users and the same shall be undertaken directly by the Partner Bank. Any KYC verification and the decision in relation to the issuance of the cards shall be the sole responsibility of the Partner Bank and EnKash shall not be liable for the same in any manner.
- EnKash also facilitates the issuance of credit and prepaid cards to the employees of its corporate Customers, wherein the Customers pay the amount up to the assigned credit limit on each card in advance and EnKash facilitates the issuance of such cards, through its arrangement with the Partner Bank(s). These corporate cards can be customised as per the request of the Customers. The Partner Bank(s) issue the card and process all transactions requested by the Customers. EnKash shall undertake marketing, distribution and promotion of the credit card. Please read the terms and conditions governing the credit cards issued by the Partner Bank, where such issuance is facilitated by EnKash, available at enkash.com and the terms and conditions governing the prepaid card issued by the Partner Bank and facilitated by EnKash, available at enkash.com
- EnKash provides spend management dashboard to its Customers which shall provide for management of all spends, including payables, receivables, and expenses, including employee expenses (“Spend Management Service”). Every Customer on the Platform gets a unique login on sign up and/or on issuance of the card by the Partner Bank through EnKash, which enables the spend management dashboard for all such Customers where any transaction occurring on their card or on Platform is fed in real time onto the spend management dashboard with details such as value, merchant, time, etc.
- EnKash also provides a dashboard which allows the Customers to track the number of days for which payments have been outstanding and other relevant information, thereby allowing them to track their spends. EnKash further provides a dashboard which allows the Customers to track any payment due to the Customers, the number of days for which payments have been outstanding and other relevant information.
3. Eligibility and Access
- EnKash Services is not available to minors i.e. persons under the age of 18 (eighteen) years or to any users suspended or removed from the EnKash Platform for any reason whatsoever. Customer represents that he/she is of legal age to form a binding contract and is not a person barred from using or accessing the EnKash Platform under the applicable laws of India. You may use the EnKash Service only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.
- EnKash Services is always evolving and the form and nature of the EnKash Services may change from time to time without prior notice to the Customer. In addition, EnKash may stop (permanently or temporarily) providing EnKash Services (or any features within EnKash Services) to you or the Customers generally and may not be able to provide you with prior notice. EnKash also retains the right to create limits on use, storage and features at its sole discretion at any time without prior notice to you.
4. User Account, Passwords and Security
- In order to use the EnKash Service, you will have to register on the EnKash Platform by providing certain details about yourself, including your name, mobile number, email address and such other details as may be required and create an account (“Account”). Additionally, Customers are prohibited from selling, trading, or otherwise transferring their Account to another party.
- Customer shall ensure and confirm that the Account information provided by them is complete, accurate and up-to-date. If there is any change in the Account information, you shall promptly update your Account information on the EnKash Platform. If you provide any information that is untrue, inaccurate, not current or incomplete (or becomes untrue, inaccurate, not current or incomplete), or if EnKash has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, EnKash has the right to suspend or terminate your Account and refuse any and all current or future use of the EnKash Service (or any portion thereof) at its discretion, in addition to any right that EnKash may have against you at law or in equity, for any misrepresentation of information provided by you.
- Customer is responsible for maintaining the confidentiality of the Account information, safeguarding the password or credentials that you use to access the Service and for any activities or actions under your Account. You are encouraged to use "strong" passwords (passwords that use a combination of upper and lower-case letters, numbers and symbols) with your Account and with other accounts that you may connect to your Account (such as Facebook, Twitter or your email).
- Customer agrees to (a) immediately notify EnKash of any unauthorized use of your Account information or any other breach of security, and (b) ensure that you exit from your Account at the end of each session. EnKash cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. Further, EnKash will not be liable for any loss that you may incur as a consequence of unauthorized use of your Account either with or without your knowledge.
- Customer may be held liable for losses incurred by EnKash or any other user of or visitor of the EnKash Platform due to authorized or unauthorized use of your Account as a result of your failure in keeping your Account information secure and confidential.
- Customer may terminate their account at any time by writing to EnKash at firstname.lastname@example.org
5. Customer Representations, Warranties and Covenants:
- The Customer agrees that:
- Customer shall provide all the information and details required by EnKash and fill all forms as may be required by EnKash
- Customer shall also provide such declarations as specified by EnKash and required by the Bank in the form and manner as may be specified by EnKash.
- Customer shall be responsible for accuracy of information provided by the Customer under the forms specified above.
- he/she will provide appropriate infrastructure for access of the EnKash Platform provided by EnKash, on its platform.
- Customer will ensure that the EnKash Platform 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;
- Customer shall be solely responsible for the authentication of any information and legitimacy of Customer's Vendors.
- Customer shall be solely liable for payment due to the Financial Institutions 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.
- Customer will be responsible to identify and clearly articulate the Vendors/ Utility /GST/ Rental service provider who needs to be paid.
- Customer is responsible and accountable for all the information and due diligence of its Vendors/ Utility Service Provider/ Partners.
- Customer understands and acknowledges that the Platform permits only transactions where delivery of the goods or services associated with such transactions is immediate or simultaneous to the payment or transactions where payment is being made after the goods or services have been delivered and consumed (“DvP Transaction”). You undertake that you shall use the EnKash Platform only for performing DvP Transactions and shall not perform any transactions where the payment is made in advance while the goods/services are delivered/performed in a deferred manner.
6. Approval And registration To Avail EnKash Services/Acquring AND/OR Issuing Bank Services
- 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 Bank's 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.
7. Fees And Payment Terms
- In consideration for EnKash Services, the Customer agrees to pay EnKash, service fee as may be agreed between the EnKash and the Customer in writing (“Service Fee”), which can be deducted by EnKash from the Transaction Amount in respect of each completed Transaction. The Customer also agrees to pay EnKash an additional Service Fee as agreed in writing which could be flat, monthly or annual fees. EnKash reserves the right to revise the service fee periodically, and EnKash will intimate the Customer of any such change within reasonable time.
- Any other amounts payable by the Customer such as the set-up fee, annual maintenance charges, security deposit and any other charges ("Customer Charge") shall be agreed between the Customer and EnKash in writing
8. Payment Arrangement
- EnKash shall endeavour to instruct the Nodal Bank to transmit the Settlement Amount from the Nodal Account to the Vendor's Bank Account or in Customer Bank Account in case the Customer is accepting payments from Vendors within the time-period prescribed by RBI commencing from date of Completion of Transaction as separately mutually agreed. If 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").
- The transmission of the Settlement Amount to the Vendor Bank/Utility/GST/Rental Service provider bank account 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. The Customer shall be solely responsible for all payments with respect to refunds and Chargebacks 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 Platform or through other medium.
Notwithstanding anything contained herein, 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.
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 or utility service provider. 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. All Settlement Amount due to the Vendor(s), Customer or utility service provider 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. EnKash reserves the right to reject or de-board any Vendor/service provider found violating Acquiring/Issuing bank norms & guidelines and/or for OFAC/Sanctions/AML purposes.
9. Authorization And Authentication Of Transaction
- The EnKash, Acquiring and/or Issuing Banks and/or Card Association has the right to 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 Applicable Laws, rules, regulations, guidelines in force in India, etc. 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, 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.
10. Right/Title/Interest & Ownership
- EnKash reserves and retains all of its right, title, and interest in and to the services connected to the EnKash Platform, 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, including the trademark ‘EnKash’ ("Intellectual Property Rights") and/or which are developed in connection with the EnKash Services and EnKash Platform, 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 Platform but cannot reproduce, communicate, modify or reverse engineer the EnKash Platform. Customer must not copy or allow any third party an access to the EnKash Platform without prior written consent from EnKash. Customer understands that EnKash is in no way transferring or assigning its Intellectual Property Rights in EnKash Platform 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 Platform or the Services.
12. 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 Service Fee earned by EnKash from the Transactions undertaken by the Customer on the EnKash Platform, during the month preceding 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 EnKash has 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:
- Failure for whatever reason of a card issued by EnKash or any Equipment or the system to function properly or at all; or
- Unauthorized acquisition of information by any person through other Customers on the Platform or other interception of communication on the system EnKash Platform;
- EnKash will not entertain any requests of Chargeback from the Customer or Issuing Institution;
- Any trade related dispute between Customer or Customer's Vendors or Customers service provider; will be settled outside the purview of these terms.
13. Confidential Information
- There may be links to third-party websites or resources on the Platform. Customer acknowledges and agrees that EnKash is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the EnKash of such websites or resources or the content, products, or services available from such websites or resources. Customer acknowledges sole responsibility for and assumes all risk arising from your use of any such websites or resources.
- Customers acknowledge and agree that their use of the EnKash Platform is at their own risk and that the EnKash Platform is provided on an “as is” and “as available” basis.
- However, notwithstanding anything herein, the Customer acknowledges that EnKash Platform, 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 non-infringement, 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.
- EnKash does not warrant or endorse the effectiveness, quality or safety of the EnKash Services available on the EnKash Platform.
- 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.
- Customer acknowledges and agrees that EnKash will have no liability for any: (i) errors, mistakes, or inaccuracies of any content available on EnKash Platform; (ii) personal injury, property damage, or other harm resulting from your access to or use of the EnKash Platform; (iii) any unauthorized access to or use of EnKash servers, any personal information, or user data; (iv) any interruption of transmission to or from the EnKash Platform; (v) any bugs, viruses, trojan horses, or the like that may be transmitted on or through the EnKash Platform; or (vi) any damages, losses, costs, expenses, or liabilities of any kind incurred as a result of any Transaction performed through the EnKash Platform.
- EnKash shall not be responsible for non-availability of the EnKash Services during periodic maintenance operations or any unplanned suspension of access to EnKash Services that may occur due to technical reasons or for any reason beyond EnKash’s control.
- 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 EnKash Platform, EnKash Services and/or the Payment Mechanism, hacking or unauthorized access of the EnKash Services, or EnKash Platform, non-availability of connectivity between the Customer Systems and EnKash Platform, etc. Any material/information downloaded or otherwise obtained through the use of the EnKash Services is done at the Customer's own discretion and risk and the Customer and its Vendor's 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.
- EnKash's sole obligation and the Customer's sole and exclusive remedy in the event of interruption in EnKash Platform, or loss of use and/or access to EnKash Platform, if any, will be to use all reasonable endeavours to repair and restore the EnKash Services and/or access to the Payment Mechanism as soon as reasonably possible.
- 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 and are hereby expressly disclaimed by EnKash.
- EnKash will not entertain any requests of Chargeback from the Customer or Issuing Institution.
- Customer shall indemnify and keep indemnified EnKash, and its directors, affiliates, employees, and agents against any loss or costs, charges and expenses required to be incurred or suffered by EnKash (including attorney's 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.
- The Customer hereby undertakes and agrees to indemnify, defend and hold harmless EnKash for violations of Anti Money Laundering regulations.
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:
- Breach or non-performance by the Customer of any of its undertakings, warranties, covenants, declarations or obligations under these Terms and Conditions;
- Breach of confidentiality and intellectual property rights obligations by the Customer;
- Any act, deed, negligence, omission, misrepresentation, default, misconduct, non-performance or fraud by the Customer, its employees, contractors, agents;
- Chargebacks or refunds relating to the Transactions contemplated under these Terms and Conditions;
- 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
- 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.
17. Violation of Terms
- Customer agrees that any violation of these Terms will constitute an unlawful and unfair business practice, and will cause irreparable harm to EnKash for which monetary damages would be inadequate, and you consent to EnKash obtaining any injunctive or equitable relief that they deem necessary or appropriate in such circumstances. These remedies are in addition to any other remedies that EnKash may have at law or in equity. If EnKash takes any legal action against you as a result of your violation of these Terms, they will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief that may be granted.
18. Suspension and Termination
- The Terms will continue to apply until terminated by either the Customer or EnKash as set forth below. If you object to the Terms or are dissatisfied with the EnKash Services, your only recourse is to (i) close your Account; and (ii) stop accessing the EnKash Services.
- EnKash reserves the right to terminate, discontinue, suspend, limit, or restrict your account or your use of the EnKash Services or access to EnKash Platform at any time, without notice or liability, if EnKash so determines in its sole discretion, for any reason whatsoever. Additionally, EnKash reserves the right to delist you or block your future access to the EnKash Service or suspend or terminate your Account if it believes, in its sole discretion that you have infringed, breached, violated, abused, or unethically manipulated or exploited any term of these Terms or anyway otherwise acted unethically.
19. 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.
20. General Terms
- Waiver and Severability
The failure of EnKash to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.
- Entire Agreement
- EnKash retains the unconditional right to revise these Terms from time to time, the most current version will always be on the Platform. You can determine when this Terms was last modified by referring to the “Last Updated” legend above. It shall be your responsibility to check this Terms periodically for changes. Your continued use and access of the Service shall signify your acceptance of the amended Terms and your consent to be legally bound by the same.
- Grievance Redressal
- Any complaints arising from the use of the EnKash Service may be addressed to the following:
- The Grievance Redressal Officer shall, upon receiving the complaint initiate inquiry into the same and shall endeavour to resolve the complaint promptly, in accordance with the Applicable Laws.